The following case examines the complexity of tendency evidence and a successful defence in a sexual assault matter following multiple proceedings.

This matter has a lengthy procedural history, with the accused represented by Nyman Gibson Miralis in all matters since he was first charged in March 2015, for sexual assaults said to have occurred in the 1980’s.


The Local Court Hearing

Allegations made by a first complainant were dealt with in the Local Court in February 2016. Ultimately our client was acquitted in those proceedings because, having considered the rule of doli incapax, the Presiding Magistrate was not satisfied beyond reasonable doubt that the accused had understood what he was doing was seriously wrong.


What is Doli Incapax?

The doli incapax rule applies when a child, that is under the age of 14 but not under the age of 10 years, is accused and charged with a criminal offence. The words doli incapax mean ‘incapable of crime’ and the rationale for the rule is that a child under 14 is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong.

If the prosecution seek to convict a person of this age, they must prove that the child knew what they were doing was seriously wrong, as opposed simply mischievous or naughty.


The First Trial

In November 2016, allegations brought by the second complainant proceeded to Trial at Sydney District Court. Following a pre-Trial ruling, and despite the Local Court acquittal, the Crown was allowed to lead the allegations made by the first complainant as tendency evidence. It was advanced that our client had a tendency to ‘sexually assault his relatives.’

In December 2016, the jury returned a verdict of guilty on 1 of 3 counts and our client was sentenced to imprisonment for a term of 5 years, NPP 2 years 6 months. The jury did not return a verdict for the remaining counts.


What is Tendency Evidence?

Tendency Evidence is evidence of the character, reputation or conduct of a person adduced to prove that the person has a tendency (or propensity) to act in a particular way or to have a particular state of mind.

By way of example, the Crown might allege that a person who has been involved in bank robberies before is more likely to be guilty of committing a further bank robbery in similar circumstances.

A party who seeks to rely on this type of evidence is required to serve a notice on the other party in advance of the matter being heard.

In this instance, the Crown attempted to rely on evidence of acts between our client and the first complainant, said to have occurred when our client was himself a child, to prove that he was more likely to have assaulted the second complainant years later as an adult.


The Appeal

In June 2018, the Court of Criminal Appeal heard an appeal against our client’s conviction. The appeal against conviction was upheld and the conviction quashed on the basis of the Crown’s use of inadmissible tendency evidence. The matter was remitted and the Crown elected to proceed to a re-Trial.

In October 2018, our clients was granted bail following a successful release application. He had served 1 year, 10 month and 6 days in custody.


The Second Trial

In September 2019, the matter proceeded to re-Trial. The Crown revised their tendency notice and again attempted to lead the allegations made by the first complainant as tendency evidence. Following a pre-Trial argument and ruling, the evidence was excluded.

In October 2019, the jury was discharged having been unable to reach a verdict on any of the 3 counts. Having considered matters such as the public interest in maintaining further proceedings, the Crown declined to proceed to a further Trial and the matter was formally dismissed.



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