R v RD [2012] NSWDC 242

District Court New South Wales

Medium Neutral Citation: R v RD [2012] NSWDC 242 Hearing dates: 27/07/2012 Decision date: 27 July 2012 Jurisdiction: Criminal Before: Murrell SC DCJ Decision: Tendency evidence admitted re two complainants, rejected re third complainant. Catchwords: CRIMINAL LAW- Evidence- tendency- application on voire dire to adduce evidence that the accused has a tendency to be sexually interested in young girls- evidence of other complainants from separate trials- risk of concoction and contamination- similarity of acts- distance in time- whether significant probative value to facts in issue. Legislation Cited: Evidence Act 1995 (Cth) ss 97, 101 Cases Cited: R v Cittadini [2008] NSWCCA 256 Dao V R [2011] NSWCCA 63 R v PWD [2010] NSWCCA 209 AE v R [2008] NSWCCA 52 Hoch v The Queen (1998) 165 CLR 222 BP v R [2010] NSWCCA 261 R v OGD [2000] NSWCCA 404 Category: Separate question Parties: The Crown RD Representation: Mr P Wagstaff (Crown) Mr M Smith (Accused) Office of the Director of Public Prosecutions NSW McGirr James Hall & Associates (Accused) File Number(s): 2009/223470 Publication restriction: There is to be no publication of the names of the complainants or any material that tends to identify the complainants.

Ruling on Tendency Evidence 1A prosecutor can rely on evidence showing that an accused tends to think or act in a particular way if the "tendency evidence" has "significant probative value" and the probative value "substantially outweighs any prejudicial effect" on the accused. In this case, three young women (complainants A, B and C) allege that, in 2002, the accused sexually assaulted them. The Crown argues that the evidence of each complainant should be admitted in the trials relating to the other complainants because it shows a tendency of the accused to be sexually interested in young girls and to act upon that interest. In addition, the prosecutor seeks to rely upon A's evidence of sexual conduct in Queensland and a photograph of a naked girl (said to be A) that police found at the premises of the accused. In the trials relating to A and C (but not B), I will admit evidence of each in the trial relating to the other because I am satisfied that it has significant probative value and its probative value substantially outweighs any unfair prejudice to the accused. 2The Crown gave appropriate notice of its intention to adduce tendency evidence (voir dire Exhibit 5). 3The Crown submits that the evidence is also admissible as coincidence evidence. However, the Crown's principal concern is to use it as tendency evidence. 4It is not necessary to address the coincidence issue because it raises considerations similar to those raised by the tendency argument. Insofar as it raises different considerations, in the circumstances of this case, it would be more difficult for the Crown to establish admissibility. 5The Crown does not pursue the foreshadowed application to adduce tendency evidence in relation to complainant D, in relation to A's evidence that the accused showed her photographs of naked children, or in relation to B's evidence that the accused encouraged her to wear only knickers.