R v Swain [2020] NSWDC 198

R v Swain [2020] NSWDC 198

The application for trial by judge alone was allowed due to COVID-19 legislative amendments and circumstances making jury trial impracticable. Evidence of the accused's New Zealand criminal convictions was excluded under s 91 of the Evidence Act, but admissions made in police interviews and complaints were admissible as tendency evidence. Tendency evidence from uncharged acts and cross-admissibility between complainants were allowed due to significant probative value despite the time gaps and differences in circumstances.

Parties
Prosecutor: Director of Public Prosecutions; Accused: Mr JL Swain
Jurisdiction
Australia
Judgment Date
11 May 2020
Procedural Posture
Criminal / Procedural Ruling Prior to Trial
Outcome
Trial to proceed by judge alone; tendency evidence (excluding facts of NZ convictions) admissible; cross-admissibility allowed between complainants; tender of criminal history rejected.
Legal Topics
Tendency Evidence, Cross Admissibility, Trial by Judge Alone, COVID 19 Emergency Measures, Admissibility of Foreign Criminal History
Criminal Law Evidence Tendency Evidence Cross Admissibility Trial by Judge Alone COVID 19 Emergency Measures Admissibility of Foreign Criminal History

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Parties

Director of Public Prosecutions

Prosecutor

Mr JL Swain

Accused

Procedural Posture

Criminal / Procedural Ruling Prior to Trial

Legal Issues

  1. 1 Whether tendency evidence is admissible as between complainants
  2. 2 Whether evidence of uncharged conduct and foreign criminal history is admissible as tendency evidence
  3. 3 Whether trial should proceed by judge alone relying on COVID-19 pandemic

Ratio Decidendi

The application for trial by judge alone was allowed due to COVID-19 legislative amendments and circumstances making jury trial impracticable. Evidence of the accused's New Zealand criminal convictions was excluded under s 91 of the Evidence Act, but admissions made in police interviews and complaints were admissible as tendency evidence. Tendency evidence from uncharged acts and cross-admissibility between complainants were allowed due to significant probative value despite the time gaps and differences in circumstances.

Court Disposition

Trial to proceed by judge alone; tendency evidence (excluding facts of NZ convictions) admissible; cross-admissibility allowed between complainants; tender of criminal history rejected.

Orders

  • Accused's application for trial by judge alone granted.
  • Crown's application to lead tendency evidence from complainant HK and the New Zealand history (excluding facts of convictions) granted.