Wright v R [2025] NSWCCA 108
Wright v R [2025] NSWCCA 108 · Read the judgment on AustLII
Catchwords: Tendency notices – reasonable notice – late notice
The Court of Criminal Appeal (‘CCA’) has held that a tendency notice served only a few days before trial can still amount to ‘reasonable notice’ under the Evidence Act, provided it causes no actual prejudice to the accused, and despite requirements for it to be served typically many months earlier. The decision suggests that courts will focus on practical fairness, rather than strict compliance with procedural timeframes when assessing the validity of late tendency notices.
The applicant was charged with sexual offences. Four days before trial, the Crown served a tendency notice, seeking cross-admissibility of the evidence of each of the counts. The trial was not able to start on schedule because the applicant’s counsel contracted COVID-19; the trial was delayed by a week, and legal argument about the validity of the late notice was adjourned to a day in the interim. At the argument the Crown conceded that the notice was late, but asserted that it was reasonable and not unfair. When the judge pointed out that the delay in the start of the trial might partly alleviate the unfairness, the applicant’s counsel conceded that ‘by the time we come up to trial I won’t have much of a leg to stand on’ (at [21]). The applicant was ultimately convicted. He appealed on grounds including that the District Court had erred in its decision that there had been ‘reasonable notice’ within the meaning of s 97(1)(a) of the Evidence Act 1995 (NSW).
Evidence Act 1995 (NSW) s 97(1)(a) requires that notice of tendency be the subject of a notice, and s 99 provides that any such notice must be in accordance with regulations or rules of court. District Court Rules 1973 (NSW) Part 53, r 10C provides that r 31.5 of the Uniform Civil Procedure Rules (‘UCPR’) applies in criminal proceedings. Finally, UCPR r 31.5 provides, broadly, that the notice should normally be given 21 days before the date when the court will determine when the matter should be set down for hearing.
The Court (Stern JA, with whom McHugh JA and Garling J agreed) observed, by reference to previous authority, that the purpose of the s 97 notice is first and foremost to give the person against whom the evidence is to be adduced a reasonable opportunity to address and respond to it, as well as to direct attention to the tendency sought to be proved and the circumstances and conduct relied upon to establish it. It is also intended to achieve the overarching purpose of providing procedural fairness to other parties (at [28]-[30]). In the present case, the Court considered that these purposes were met because there was said to be no suggestion whatsoever that the late service of the tendency notice caused any prejudice to the applicant – not least because the applicant’s counsel had conceded as much before the judge who determined the issue. No new evidence was relied upon to establish the tendency, and the applicant would have some 11 days’ notice of the tendency sought to be proved (at [42]).
On appeal (but not at first instance) the applicant argued that the primary judge had been in error by failing to make reference to UCPR r 31.5, which provides that at least 21 days’ notice is required. The Court held that there is nothing in s 97 of the Evidence Act which suggests that the question of whether, as a matter of timing, reasonable notice has been given must be determined by reference to the fact or the extent of non-compliance with any regulations or rules of court. Rather, the text of the section suggests that the question of whether notice of tendency is reasonable is to be evaluated by the court, having regard to the purpose of s 97 in the context of the Evidence Act as a whole. Parliament did not, for example, render s 97 ‘subject to’ any such rules or requirements (at [47]). In circumstances such as those in this case, where the Crown does not seek positively to rely upon compliance with UCPR r 31.5, and where the lateness of the tendency notice was accepted by the Crown and taken into account by the trial judge, the trial judge did not err in not making any express reference in her reasons to the terms of s 99 of the Evidence Act or UCPR r 31.5 (at [55]). The appeal against conviction (and the subsequent appeal against the sentence) was dismissed.
Practitioners will no doubt fear that this will lead to an increase in the number of late tendency notices. One might observe that there is a stark difference between what this decision condoned (a matter of a few days’ notice), and UCPR r 31.5, which would typically require the tendency notice to be served 21 days before the arraignment (i.e. typically many months before trial). As ever, every case turns on its own facts, but practitioners may be well-served to raise any non-service of a tendency notice at arraignment, as well as at subsequent case management appearances. If that does not enthuse compliance, then where the issue has been raised over a long period of time the prosecution may find it more difficult to argue that late notice is reasonable.