R v DLW [2019] NSWDC 940

R v DLW [2019] NSWDC 940

The evidence of LW and KT did not have significant probative value as tendency evidence because their alleged incidents lacked sufficient common or linking features with the allegations of LM, AP and BW, including violence and threats of disclosure. Although AP's allegations shared sufficient common features with LM and BW, the four years eight months to five years eight months gap between the allegations concerning LM/AP and BW, combined with the fact that the earlier alleged tendency was manifested when the accused was a child and the later alleged conduct when he was an adult, made the inference that the accused retained the asserted tendency weak. The similarities relied on by the...

Jurisdiction
Australia
Judgment Date
18 December 2019
Procedural Posture
Criminal Proceedings; Child Sex Offences; Tendency Evidence and Indictment Amendment Ruling / Pre Trial Legal Argument on Crown Notice of Motion Seeking Leave to Present an Amended Indictment and to Adduce Tendency Evidence
Outcome
Crown application to rely on the disputed tendency evidence was declined, and leave to present the amended indictment was refused.
Legal Topics
['tendency Evidence' 'significant Probative Value' 'cross Admissibility in Multiple Complainant Sexual Offence Proceedings' 'amendment of Indictment' 'child Sex Offences']
['criminal Law' 'evidence' 'criminal Procedure'] ['tendency Evidence' 'significant Probative Value' 'cross Admissibility in Multiple Complainant Sexual Offence Proceedings' 'amendment of Indictment' 'child Sex Offences']

Case Brief

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Procedural Posture

Criminal Proceedings; Child Sex Offences; Tendency Evidence and Indictment Amendment Ruling / Pre Trial Legal Argument on Crown Notice of Motion Seeking Leave to Present an Amended Indictment and to Adduce Tendency Evidence

Legal Issues

  1. 1 ['Whether evidence of LW and KT concerning uncharged acts had significant probative value as tendency evidence in relation to counts 1 to 7.' 'Whether evidence concerning LM, AP and BW was cross-admissible as tendency evidence across complainants.' 'Whether the temporal gap between alleged offending when the accused was a child and later alleged offending when the accused was an adult weakened the probative value of the asserted tendency.' 'Whether leave should be granted to present the proposed amended indictment including the ex officio count concerning AP.']

Ratio Decidendi

The evidence of LW and KT did not have significant probative value as tendency evidence because their alleged incidents lacked sufficient common or linking features with the allegations of LM, AP and BW, including violence and threats of disclosure. Although AP's allegations shared sufficient common features with LM and BW, the four years eight months to five years eight months gap between the allegations concerning LM/AP and BW, combined with the fact that the earlier alleged tendency was manifested when the accused was a child and the later alleged conduct when he was an adult, made the inference that the accused retained the asserted tendency weak. The similarities relied on by the...

Court Disposition

Crown application to rely on the disputed tendency evidence was declined, and leave to present the amended indictment was refused.

Orders

  • ['The evidence of LW was not admitted as tendency evidence in relation to counts 1 to 7.' 'The evidence of KT was not admitted as tendency evidence in relation to counts 1 to 7.' 'The evidence of LM and AP was not admitted as tendency evidence with respect to counts 5 to 7 concerning BW.' 'The evidence of BW was not...