District Court New South Wales Medium Neutral Citation: R v Hill [2019] NSWDC 513 Hearing dates: 5/9/19 and 19/9/19 Date of orders: 19 September 2019 Decision date: 19 September 2019 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: I admit the evidence sought to be relied on by the Crown referred to in the application. I order a judge alone trial. Catchwords: Criminal – tendency – judge alone – kidnapping – aggravated sexual assault Legislation Cited: Crimes Act 1900 Evidence Act 1995 Cases Cited: Elomar & Ors v R [2014] NSWCCA 303 Jiang v R [2010] NSWCCA 277 O'Leary v The King (1946) 73 CLR 566 R v Adam [1999] 47 NSWLR 267 R v Player [2000] NSWCCA 123 The Queen v Bauer [2018] HCA 40 Category: Procedural and other rulings Parties: DPP (Prosecution) Brett David Hill (Accused) Representation: Counsel: Mr L Carr SC for DPP Mr A Norrie for Accused File Number(s): 18/186689 Publication restriction: Non-publication order in relation to the identity of the complainant. Judgment 1. The Accused faces trial on an indictment currently containing 10 counts. Counts 1 to 9 relate to events which occurred on 12 June 2018. Shortly stated, the Crown case is that the Accused abducted the 11-year-old Complainant, and committed various sexual offences upon her, at three different locations, over a period of several hours that day. 2. Count 10, to which the Accused has pleaded guilty, is that on 16 June 2018, he had in his possession "child abuse material". The Accused has also entered a plea of guilty to count 4, being an offence of aggravated sexual intercourse, namely an act of forced fellatio. 3. In addition, the Accused has entered pleas of guilty in the Local Court to 4 other offences, which also occurred on the date of the abduction. Those offences are as follows: – 1. aggravated kidnapping (Crimes Act 1900 s 86 (2)) - formerly sequence 1; 2. aggravated sexual assault (Crimes Act 1900 s 61J (1)) – an act of forced fellatio - formerly sequence 2; 3. aggravated sexual assault – an act of digital / vaginal penetration - formerly sequence 6; 4. aggravated sexual assault – an act of digital / anal penetration - formerly sequence 7. 1. Put shortly, the pleas of guilty already entered by the Accused confirm his agreement with the following matters. That, on 12 June 2018, he kidnapped the Complainant as she was walking through Hudson Park in Newcastle, forced her to perform fellatio on him, then drove her to an unknown "forest" location, where he again forced her to perform fellatio, and then used a finger or fingers to penetrate her vagina and anus. These matters are all admitted by him. 2. The remaining allegations, which will be the subject of a trial, all relate to other forms of sexual indecency or sexual assault that are alleged to have been committed by the Accused in the course of his detention of the Complainant on 12 June 2018. Application to lead "tendency" evidence 1. The Crown, in a document dated 16 August 2019, gave notice to the Accused of an intention, at trial, to adduce "tendency" evidence. Specifically in that regard, the Crown seeks firstly to rely on the evidence relating to (disputed) counts 1 - 3 and (disputed) counts 5 - 9, in support of each other of those counts in the indictment. In addition, the Crown seeks to rely as "tendency" evidence on the 5 charges relating to the events of 12 June 2018, to which the Accused has, as noted above, entered pleas of guilty. I note however, appropriately in my view, that the Crown does not seek to rely on the Accused's guilty plea to count 10, being an offence of being in possession of "child abuse material". 2. The Crown submitted that the material identified in its tendency notice is admissible to show that the Accused had a tendency to have a particular state of mind, being a sexual interest in the Complainant, and a tendency to act on that state of mind in a particular way, namely to sexually assault the Complainant. 3. In support of its argument, the Crown cited a series of relatively recent decisions of the High Court of Australia, which have considered the admissibility of "tendency evidence". The Crown put particular emphasis on the decision in The Queen v Bauer [2018] HCA 40, where the Court, at paragraph 60, stated that evidence that an accused has committed one sexual offence against a person, taken in conjunction with evidence of another sexual offence against the same person, suggests that the accused has a sexual interest or attraction to that person, and a tendency to act on it. In those circumstances, the Court noted that it is more likely that the accused will continue to seek to fulfill the attraction by committing further sexual acts with the person as the opportunity arises. 4. In my view, for the reasons set out hereafter, the evidence upon which the Crown seeks to rely as "tendency" evidence is admissible in the Accused's upcoming trial on each of the disputed counts in the indictment. 5. However, the admissibility of the evidence does not depend upon "tendency reasoning", and the evidence is not caught by s.97 of the Evidence Act 1995. The "tendency rule" is an exclusionary rule, which applies to evidence suggesting that an accused has a "tendency" to act in a particular way, or a "tendency" to have a particular state of mind. In this case, the Crown argues that the evidence tends to prove a tendency to have a sexual interest in the Complainant, and a tendency to act on that sexual interest. 6. However, in my view, this is not a correct characterisation of the evidence, because the evidence does not show a "tendency" in the Accused to have that state of mind, and a "tendency" to act on it. The admitted offences occurred, and the alleged offences are said to have occurred, on the same day, against the same Complainant. In those circumstances, the evidence is highly probative that the Accused did in fact have a sexual interest in the Complainant, which he did in fact act upon. Evidence of the acts to which pleas of guilty have been entered, and evidence of the other (disputed) acts alleged in the indictment, is relevant and probative of the Crown case. The evidence is admissible firstly to show an actual state of mind in the Accused at the time he committed the admitted offences. And secondly it is admissible because it forms part of a connected series of events, which commenced upon the abduction of the Complainant and ended upon her release 4 to 5 hours later: see O'Leary v The King (1946) 73 CLR 566; R v Adam [1999] 47 NSWLR 267; R v Player [2000] NSWCCA 123 at [11]-[17]; at [21]-[22]; Jiang v R [2010] NSWCCA 277 at [45]-[47]; Elomar & Ors v R [2014] NSWCCA 303. 7. I note that Counsel for the Accused, while not conceding the point, fairly and candidly accepted in oral submissions that the evidence in question was likely to be admissible in the manner I have set out. 8. Counsel did however, argue that the evidence, and in particular, evidence of the matters to which pleas of guilty have been entered, carries the danger of unfair prejudice. Although this submission was made in the context of an argument that the evidence in question was "tendency" evidence, I have nonetheless considered the question of whether the evidence should be excluded under s137 or s135 of the Evidence Act 1995. As has been said in many cases, evidence is not unfairly prejudicial simply because it tends to prove the commission of the alleged offences. In my view, the evidence is such that it would be contrary to common sense not to admit it, and its probative value far outweighs any danger of unfair prejudice. 9. I rule therefore, that the evidence sought to be relied on by the Crown is admissible in the Accused's trial. Application for Judge alone trial 1. The Accused has made an application for his trial to be heard by judge alone. I note that he has received advice in relation to the effect of such an order from an Australian legal practitioner. The Crown opposes the application for Judge alone trial. 2. In support of his application, the Accused relies essentially on the publicity, particularly in the Newcastle area, which his case has already attracted, and is likely to attract, and furthermore, the potential prejudice to his case that may arise by reason of my ruling in relation to the evidence of other admitted and alleged acts involving the complainant on the day in question. 3. Given that the Prosecutor does not agree to the accused being tried by Judge alone, I may only make such an order if I consider that it is in the interests of justice to do so. 4. I accept that there has been a good deal of pre-trial publicity in relation to this case, and that it is likely that more publicity will be attracted particularly in the local area, once the Accused's trial commences. In my view, this publicity does not in itself mandate a judge alone trial. Appropriate directions would be given to the jury, as happens in many cases, and it must be assumed that the jury will follow those directions. 5. However, each case must depend upon its own particular circumstances. In this case, while appropriate directions would be given to the jury, there can of course be no guarantee that such directions would completely eliminate any possibility of unfairness. In addition, there would be the difficulty in a jury trial of giving appropriate directions as to the manner in which the jury may use the evidence relating to other acts committed or said to have been committed on the day in question. While this potential difficulty is not insurmountable, it is another factor that I have taken into account in determining whether it is "in the interests of justice" to order that the Accused be tried by Judge alone. 6. In deciding that question I have taken into account also the importance of the participation of the community, and in particular the question of whether the trial will involve factual issues requiring the application of objective community standards. However, there can be no argument in this case that "objective community standards" will need to be applied to the acts alleged to have been carried out against the Complainant, because no one would suggest that if these acts did occur, they would not amount to very serious criminality. I do not consider therefore, that a jury would be better placed than a judge alone in determining the questions of fact that are likely to arise in this case. 7. In all the circumstances, I am satisfied that it is in the interests of justice for the Accused's trial to be conducted by Judge alone, and I therefore make an order to that effect. 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: 19 September 2019