District Court New South Wales Medium Neutral Citation: R v LM [2019] NSWDC 70 Hearing dates: 5 March 2019 Decision date: 05 March 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Tendency evidence not admissible on Count 4; Count 7 is to be severed from Counts 1 to 4 inclusive; expert evidence not to be adduced by the Crown before the completion of the complainant's evidence. Catchwords: CRIMINAL – Pre - trial orders – sexual intercourse without consent; intentional choking – intimidation – tendency evidence – severance of counts – whether expert evidence admissible in Crown case before the evidence of the complainant. Legislation Cited: Evidence Act 1995 (NSW), ss101, 135, and 137 Criminal Procedure Act 1986 (NSW), s130A Category: Procedural and other rulings Parties: Regina LM Representation: Crown: Ms Curran (Trial Advocate) Accused: Ms Alderton (Counsel) File Number(s): 2017/68475 Publication restriction: Non publication order of the name of the complainant or any other thing which might identify her directly or indirectly, including the name of the accused. Judgment 1. Yesterday LM was arraigned on an indictment which contained seven counts. He was arraigned not for the purpose of a trial but for the purpose of pre-trial orders being made in accordance with s 130A of the Criminal Procedure Act 1986 (NSW). The accused's substantive trial is fixed for hearing in this registry on 29 April 2019. 2. Upon his arraignment, the accused pleaded not guilty to counts 1, 2, 3, 4 and 7. He pleaded guilty to counts 5 and 6 and convictions were entered. 3. Briefly put, counts 1 to 3 inclusive allege non-consensual sexual intercourse with his former partner; count 4 alleges an intentional choking of that same complainant; and count 7 relates to acts of intimidation allegedly done, or directed towards, that complainant in her capacity as a witness in the other counts. 4. In the context of the voir dire, the Court has been asked to make rulings on 3 discrete issues: first, whether the Crown can adduce tendency evidence in connection with count 4; secondly, whether all of the (remaining) counts should be tried before the one jury; and thirdly, whether the evidence of a proposed expert can be admitted in the trial and, when, during the trial, it might be admitted. 5. For the reasons I shall soon identify I have come to the following conclusions. 6. First, that the tendency evidence is not to be admitted in relation to count 4. 7. Secondly, count 7 is to be severed - and the trial in relation to count 7 is to run immediately after the balance of the remaining counts. It follows from what I have just said, that counts 1 to 4 shall be run in the one trial and count 4 is not to be severed. 8. Thirdly, in relation to the expert, I order that the Crown is not to seek to adduce the evidence of the expert before the evidence of the complainant is given because the decision as to whether or not the expert's evidence is to be admitted in the trial (viz. whether it is relevant) will be a matter for the trial judge after she or he has heard the evidence of the complainant. 9. I have decided not to reserve on these questions: in part because it seems to me that the answers are relatively straightforward; and in part, because of the pressing nature of the Court's business. I shall express myself therefore relatively briefly. 10. I turn first to the purported tendency evidence. 11. This evidence, as I have indicated, is relevant only to the fourth count on the indictment. 12. Count 4 alleges that on 4 March 2017 the accused intentionally choked the complainant. The context of that count seems to be that, earlier in the day, the accused is alleged to have had non-consensual penile vaginal sexual intercourse with the complainant. The evidence that the Crown seeks to adduce as tendency evidence relates to two incidents that are said to have occurred between the accused and the complainant in mid-2007 and on Christmas Day 2009. 13. Prima facie under the Evidence Act 1995 (NSW), tendency evidence is inadmissible; and the onus is on the party seeking to rely on that evidence to get it in under one of the relevant statutory exceptions. 14. The first test for contested tendency evidence is whether the evidence is relevant. As has been frequently observed, the test of relevance is a relatively undemanding one and I accept that the disputed material falls within the definition of relevance. 15. However, there is a second limb to that aspect and, that is, that it has strong probative value. 16. Unlike a case where an accused is alleged in the past to have had a sexual interest in children, the alleged activities in 2007 and 2009 are of a different character altogether. 17. Moreover, it will be observed that, in relation to the first aspect of the proposed tendency evidence, the events are alleged to have happened approximately ten years beforehand and, in relation to the second, over eight years. 18. In my view, those two alleged incidents do not have strong probative value within the meaning of the authorities (and, I pause to observe, that the corroborating material concerning them is of a very imprecise nature.). 19. Even if I were wrong as to whether or not the material was not strongly probative, there are a number of protections in the Evidence Act such that material, even if relevant and of strong probative value, may be excluded. It may be excluded: under s 101 if there is, relevantly, prejudicial effect; under s 135 if it is unfairly prejudicial; or under s 137 if there is unfair prejudice. As the High Court observed in The Queen v Bauer [2018] HCA 40, these textual differences essentially convey the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way. 20. Each of those sections, in my view, is engaged for present purposes because of the length of time which has elapsed between the event charged in the indictment and the two incidents pleaded in the tendency notice. In this respect, the vagueness of the contemporaneous records – and, indeed, the loss or destruction of a number of those records - gives rise to relevant prejudice within the meaning of those three sections. 21. I therefore order that the Crown may not adduce the two matters of tendency which it seeks to advance in relation to count 4. 22. I turn now to the severance argument. 23. Initially, the Crown sought to advance all seven counts before the jury. Of course now that counts 5 and 6 have been the subject of pleas of guilty, the subject matters of those counts will not be adduced before any jury. 24. The tests in relation to severance are well-established and are conveniently set out in the helpful and detailed submissions of the solicitor advocate for the Crown and counsel for the accused. 25. The Crown's position is that all of the remaining counts should be run before the one jury. The accused's position is that counts 1 to 3 inclusive may run before one jury, count 4 before a second jury, and count 7 before a third jury. I reject each of those positions. 26. The complainant in relation to counts 1 to 4 is the same person: the former partner of the accused. It is undesirable that she should be required to give evidence more than once; and the broad allegations against the accused in counts 1 to 4 are generally of a common theme - a form of domestic violence (the first three allegations being of a sexual kind; the fourth not necessarily so, although I have noted the assertion of the complainant, in the voir dire material, that physical assault upon her by the accused gave rise to some form of sexual pleasure to him.). I do not think that the jury would have any difficulty in dealing with those four counts together. I do not think that the jury would be misled or misapply any of the evidence in relation to count 4 in considering the other three counts. I have presided over many trials where, without any difficulty, a mixture of counts such as these four have been able to be conveniently run before the same jury. 27. A different position applies in relation to count 7. It is dealing with quite a different subject matter and does not require the same involvement of the complainant. If that count were to run before the jury considering counts 1 to 4, amongst other things, the jury would be informed that the accused was in custody at the time of the alleged events in count 7. And it is difficult to conceive a direction to be given to the jury which would, in truth, adequately deal with the prejudice arising from that revelation to that jury. 28. The Crown, in part, seeks to rely on the contents of count 7 as some form of consciousness of guilt, thereby making it admissible in connection with counts 1 to 4. However, reference to the law pertaining to consciousness of guilt will reveal that the Crown will face some difficulties in seeking to advance that contention. 29. On balance, I have concluded that the limited forensic utility available to the Crown of consciousness of guilt does not outweigh the very substantial prejudice to the accused if the facts and circumstances underpinning count 7 were advanced to the jury considering counts 1 to 4. 30. I therefore sever count 7 and direct that the trial in relation to that count immediately follow on from the trial of counts 1 to 4. 31. This leaves me with the final pre-trial issue. 32. The Crown seeks to adduce the evidence of Professor Susan Hayes, relying upon a combination of s 79(1) and s 108C of the Evidence Act. As I indicated at the beginning of these remarks, the Crown has foreshadowed its intention of calling Professor Hayes before the complainant. I have to say that I find that a remarkable proposition. I have never known it to be the case in any criminal trial that a witness of controversy is advanced ahead of a complainant in circumstances where (as here) that course is opposed by the accused. 33. Furthermore, in the context of this case, there is a very good practical reason why Professor Hayes' evidence should not be advanced before the complainant and that is because the relevance of her evidence can only be assessed in the context of the complainant's evidence. It may well be that the issues sought to be advanced through Professor Hayes' report do not need to be agitated given the manner in which the complainant is cross-examined. No final assessment can be made about the relevance of Professor Hayes' evidence until the complainant has finished her own evidence. 34. It therefore will be a matter for the trial judge to determine the relevance of that evidence. 35. I direct that these remarks be transcribed and for a hard copy to be placed in the Court file. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2019