District Court New South Wales Medium Neutral Citation: R v JM [2020] NSWDC 179 Hearing dates: 6 May 2020 Date of orders: 06 May 2020 Decision date: 06 May 2020 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 19 Catchwords: EVIDENCE – application to lead tendency evidence – objection to cross-admissibility of tendency evidence as between complainants – whether tendency alleged is too general – whether tendency evidence is of significant probative value Legislation Cited: Evidence Act 1995 (NSW), ss 55, 97, 101 Cases Cited: Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300 McPhillamy v The Queen [2018] HCA 52 R v Bauer (a pseudonym) (2018) 92 ALJR 846 Texts Cited: Odgers, Uniform Evidence Law, 14th ed, Thomson Reuters Category: Procedural and other rulings Parties: Director of Public Prosecutions Mr JM Representation: Counsel: Mr J Peach for the Director of Public Prosecutions Mr J O'Sullivan for the accused Solicitors: Solicitor for the Director of Public Prosecutions Virginia Taylor Partners File Number(s): 2017/338111 Publication restriction: Non Publication Order on the names of the complainants, the accused and each of the complainants' and the accused's family members, or any information that may identify any of them. Pseudonyms have been used for the names of the complainants, the accused, and each of the family members of the complainants and the accused. Judgment BACKGROUND 1. The accused is to stand trial on an indictment containing 10 counts relating to alleged sexual offences against four different complainants, as follows: 1. That between 9 March 2015 and 22 July 2017, in Muswellbrook in the State of New South Wales, the accused had sexual intercourse with SS, a child then under the age of 10 years, namely, 7, 8 or 9 years. 2. That between 30 June 2017 and 22 July 2017, at Killarney Vale in the State of New South Wales, the accused assaulted SS and at the time of the assault committed an act of indecency on SS, a child then under the age of 16 years, namely, 9 years. 3. That between 1 April 2017 and 22 July 2017, in Blue Bay in the State of New South Wales, the accused assaulted IS and at the time of the assault committed an act of indecency on IS, a child then under the age of 16 years, namely, 7 years. 4. That between 1 April 2017 and 22 July 2017, in Killarney Vale in the State of New South Wales, assaulted IS and at the time of the assault committed an act of indecency on IS, a child then under the age of 16 years, namely, 7 years. 5. That between 9 March 2015 and 1 June 2017, in Blue Bay in the State of New South Wales, the accused assaulted DN and at the time of the assault committed an act of indecency on DN, a child then under the age of 16 years, namely, 3, 4 or 5 years. 6. That between 1 April 2017 and 22 July 2017, in Killarney Vale in the State of New South Wales, the accused assaulted DN and at the time of the assault committed an act of indecency on DN, a child then under the age of 16 years, namely, 5 years. 7. That between 9 March 2015 and 22 July 2017, in Muswellbrook in the State of New South Wales, the accused had sexual intercourse with DN and at the time of the assault committed an act of indecency on DN, a child then under the age of 10 years, namely, 3, 4 or 5 years. 8. That between 9 March 2015 and 22 July 2017, in Muswellbrook in the State of New South Wales, the accused assaulted DN and at the time of the assault committed an act of indecency on DN, a child then under the age of 16 years, namely, 3, 4 or 5 years. 9. That between 1 April 2017 and 22 July 2017, at Killarney Vale in the State of New South Wales, the accused assaulted DN and at the time of the assault committed an act of indecency on DN, a child then under the age of 16 years, namely, 5 years. 10. That between 1 January 2017 and 2 August 2017, in Killarney Vale in the State of New South Wales, the accused assaulted JN and at the time of the assault committed an act of indecency on JN, a child then under the age of 16 years, namely, 4 years. 1. As may be apparent, the Crown case, summarised in its statement (Exhibit A on this application) is that the events concern the relationship and dealings between 4 (out of 6) children of Ms DS and the accused over a period of approximately 2 and a half years (March 2015 to August 2017) (the 'relevant period'). The accused is the son of a friend of Ms DS, Mrs KM. During the relevant period, the accused's family lived for some of the time in Blue Bay (until May 2017) and for some of the time in Killarney Vale (from May 2017 onwards). The complainants' family lived at Muswellbrook. The Crown's case is that there were frequent occasions where both families mixed during the relevant period. 2. The Crown seeks to lead tendency evidence against the accused, in the form of the tendency notice dated 11 March 2020 (Exhibit B on the application). 3. The accused's objection is narrowly based. It is not to the use of tendency evidence between counts concerning any individual complainant. Objection is taken to the cross-admissibility of the tendency evidence as between the complainants. 4. In that regard, the relevant part of the tendency notice identified the 'tendency' as being described in paragraphs 4 & 5 of the tendency notice as follows: "4. The tendency sought to be proved is his tendency to have a particular state of mind, namely a sexual interest in children aged from 3 to 9 years old known to him through a family friend and his tendency to act on that sexual interest by engaging in sexual contact with children aged from 3 to 9 years old who are known to him through a family friend. 5. The common features of the allegations include: a) The allegations concern four children aged from 3 to 9 years of age. b) In each case, the allegations concern a child from the same biological family. The complainants are siblings. c) In each case, the complainant and young person were known to each other through their parents' friendship. d) In each case, the young person touched the genitals of the complainant with his hand. e) In relation to 2 complainants (SS and DN) the young person inserted his fingers into the complainant's vagina. f) The allegations occurred between about 9 March 2015 and about 2 August 2017, being a period of about 2 years and 5 months." 1. It is with respect to those particular paragraphs of the tendency notice to which objection is taken. STATUTORY PROVISIONS AND PURPOSES 1. The accused accepts that the relevance threshold in s 55 of the Evidence Act 1995 (NSW) for this evidence is passed. He accepts that s 101 has no application. His point is that the evidence, either by itself or having regard to other evidence to be adduced by the Crown, does not meet the threshold requirement of "significant probative value", as required by s 97((1)(b) of the Evidence Act. 2. The expression 'probative value' is defined in the Dictionary to mean: ""probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 1. In IMM v The Queen (2016) 257 CLR 300, the High Court (by majority) determined that the significance of the probative value of the tendency evidence depends upon the nature of the facts in issue to which the evidence is relevant and the significance, or importance, which that evidence may have in establishing those facts. 2. In Hughes v The Queen (2017) 92 ALJR 52; [2017] HCA 20, the High Court identified a two-step process: 1. the extent to which the evidence supports the tendency; and 2. the extent to which the tendency evidence makes it more likely that the offence occurred. 1. Relevant considerations in determining significant probative value (identified by Odgers, Uniform Evidence Law (14th ed, Thomson Reuters) at [EA.97.120, pp 705-707]) include: the number of occasions the particular conduct is relied upon; the time gaps between the conduct; and the degree of specificity of the alleged tendency. 2. In Hughes, the High Court (at [37]-[39]) indicated that it was unnecessary, for the purposes of s 97, for there to be striking similarities of a tendency to sexually offend in a particular manner. On the facts of that case, the tendency evidence involved a variety of sexual offending in a variety of circumstances, with people of different ages. But the Court said that where the evidence of misconduct concerns persons other than a particular complainant, it is necessary to identify some feature of the other sexual misconduct which is linked to the alleged offending [1] . As was pointed out by the Court in R v Bauer (a pseudonym) (2018) 92 ALRJ 846 at [58], the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of committing an offence against another complainant. ARGUMENT 1. The accused submitted that the tendency is expressed at too high a level of generality and that there were insufficient common features identified in the tendency notice to pass the relevant threshold. He submitted that although, in form, the particulars of the tendency identified in the notice purported to convey common features, in substance, they all amounted to the same thing: that the accused had a sexual interest in children and a disposition to act upon it. In accordance with case-law authority, it was said that this was not enough to sustain the requisite link between the alleged offending conduct against a complainant with the alleged conduct against other complainants. 2. More specifically, in demonstration of his points, Counsel for the accused pointed out that one of the complainants was a male. It could not be said, so it was argued, that a tendency to touch a girl's genitals could be probative of the issue of whether the accused touched the single male complainant (in count 10). Emphasis was also placed on the circumstance that the accused was himself a young person at the time of the allegations; a matter not evident in the cases referred to by the accused's Counsel. DETERMINATION 1. In my view, the Crown has demonstrated that there are common features, or a sufficient link between each individual complainant and the other complainants so as to give significant probative value. 2. The children were in a very young age band, between 3 and 9 years of age. I agree, in particular, with the submission that there might be a difference if a particular complainant was in their mid-teens. They were all from the same family. That is, the accused was allegedly disposed to act on his interest in connection with members of a family whose mother was friendly with his own mother. That is, it is alleged that he acted upon that interest in the particular context of a connection between his family and Ms DS's family. I further agree that the conduct was the tendency to touch the genital region of each of the complainants; although, I acknowledge, that in two cases, the touching extended to alleged vaginal penetration. Further, the alleged offending occurred on multiple occasions in a relatively confined period of two and a half years. In this last respect, the situation is very different to the facts of McPhillamy; where the asserted tendency was manifested more than a decade before the alleged offending conduct. These features take each case beyond the general case of an accused having a sexual interest in children and being disposed to acting upon that interest. 3. I must confess to not understanding the significance of the submission that the accused himself was only a child at the time of the alleged conduct. It was not suggested that, by reason of his age, it was not possible for the Crown to prove that, during the relevant period, he had a sexual interest in very young children. If it is relevant to the application, then it is another matter establishing interactions with the complainants which falls outside of ordinary human experience. 4. I considered, but ultimately decided against distinguishing the application of the tendency evidence against the position of the male complainant in respect to count 10. All of the above common features are applicable to his position; even if there be a difference in his case. 5. There being no objection taken under s 101(2) of the Evidence Act, the Crown is permitted to use the tendency evidence not only in relation to counts pertaining to each individual complainant, but also as being cross-admissible as tendency evidence with others. ********** Endnote 1. Hughes [2017] HCA at [64], followed in McPhillamy v The Queen [2018] HCA 52 at [31]. 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: 08 May 2020