R v RJ [2011] NSWDC 158

District Court New South Wales

Medium Neutral Citation: R v RJ [2011] NSWDC 158 Decision date: 13 October 2011 Before: Colefax SC DCJ Decision: Catchwords: Application by Crown to adduce tendency evidence - late service of Notice by Crown - discretionary factors for dispensing with service of Notice requirements - whether non compliance with Notice requirements per se would entitle a Court not to dispense with service requirements Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: HML v R (2008) HCA 16 R v Harker [2004] NSWCCA 427 Category: Interlocutory applications Parties: Regina - Crown RJ - Accused Representation: Mr B Ingram - Crown Prosecutor Mr P Hamill SC and Ms M Swift - Accused File Number(s): 2009/216974 Publication restriction: Non-publication order for name and any other identifying features of the child/complainant

Judgment 1On 10 October 2011 the accused was arraigned on an indictment which in general terms alleged that on eight occasions between January 1990 and September 2000 he variously committed acts of indecency upon or had sexual intercourse with the complainant. 2To each of the eight counts on the indictment the accused pleaded not guilty. 3At the time of the first count the complainant was aged about two and a half years and at the time of the last count she was aged approximately sixteen years. 4After arraignment and before a jury was empanelled, a voir dire was conducted to determine whether the Crown could adduce tendency evidence as particularised in a notice served 23 September 2011; and/or context evidence of other alleged uncharged acts (that is, acts of a sexual nature involving the complainant and/or acts of domestic violence involving the complainant's mother). 5At the conclusion of the voir dire I indicated that I would not permit the Crown to lead evidence of "tendency". 6I also indicated I would not permit the Crown to lead detailed evidence of the "uncharged acts" but I would permit evidence of those matters to be adduced to explain a lack of contemporaneous complaint if confined to brief and general evidence to establish that the occasions, the subject of the offences alleged in counts 2 to 8 in the indictment, were not isolated incidents; see HML v R (2008) HCA 16 per Gleeson CJ at [28], Heydon J at [318] and Kiefel J at [513]. 7I also indicated that later in the trial I would give my reasons for those decisions. These briefly are those reasons. 8I turn firstly to the application to adduce tendency evidence. 9As I have already indicated the tendency notice was served on 23 September 2011. The accused was arraigned on 16 June 2011 following his committal for trial from the Local Court on 20 May 2011. Clearly the notice was served well out of time. No explanation for that delay was provided to the court by the Crown. 10At the commencement of the voir dire the Crown orally sought an order dispensing with the statutory notice requirements. Absent that dispensation, the failure of the Crown to give reasonable notice of its intention to adduce tendency evidence means that such evidence is inadmissible. 11Mr Hamill SC who, with Ms Swift, appeared for the accused, opposed the dispensation being given. Two bases were initially advanced for that opposition. First, because of prejudice. Secondly, because the matters particularised in the notice did not have significant probative value in proving that the accused had a tendency to act in a particular way; and/or that the probative value of the evidence sought to be adduced did not outweigh any prejudice it might have on the accused. 12In the result, however, the main issues agitated on this aspect of the voir dire were whether or not the notice satisfied s 97(1)(b) and/or s 101 of the Evidence Act . 13Before turning to that, however, I wish to say something about the late service of the notice. 14It is important to recall that no explanation of any kind was offered by the Crown as to why the service requirements clearly laid out by Parliament were not complied with. Informal enquiries that I have made of senior and experienced judges of this court, together with my own more limited experience, suggest that this is not an isolated incident. In fact Mr Hamill made the assertion, uncontradicted in the present case by the Crown Prosecutor, that it is a regular occurrence. 15In R v Harker [2004] NSWCCA 427 the Court of Criminal Appeal considered the discretionary factors which a court ought to take into account in determining an application to dispense with notice requirements. Unsurprisingly the court held that the two most important considerations were the probative value of the evidence and any prejudice caused to the respondent. 16One factor which the court did not consider, however, was repeated non-compliance by the Crown with the statutory requirement for service. Non-compliance is not simply a matter of case management but the ignoring of the express will of Parliament. 17There may well be an appropriate case where the mere fact of the Crown yet again not complying with the notice requirements in and of itself would entitle a court not to dispense with the service requirements and regardless of the weighing of the probative value of the evidence as against any prejudice to the respondent. 18This is a matter on which I would want fuller argument than was provided in the present voir dire. Subject to such argument, however, there does seem to me to be some force in such a proposition. 19However, the present case can be resolved without reference to that consideration. 20Because of the importance of the issue I have just referred to, I direct that this first part of this judgment be placed on the Caselaw database. The balance is not necessary for such publication.