Brown v Tasmania
[2019] TASCCA 4
•17 April 2019
[2019] TASCCA 4
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Brown v Tasmania [2019] TASCCA 4
PARTIES: BROWN, Christo
v
STATE OF TASMANIA
FILE NO: CCA 2629/2018
DELIVERED ON: 17 April 2019
DELIVERED AT: Hobart
HEARING DATE: 15 November 2018
JUDGMENT OF: Brett J, Geason J, Marshall AJ
CATCHWORDS:
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – Generally – Conduct that post-dated the crimes – Tendency of appellant to impose himself in a sexual manner upon females whilst they were in a vulnerable position, namely while asleep in bed – Whether the conduct had significant probative value in respect of a charge of rape – Evidence relevant to circumstantial proof of identity – Evidence had significant probative value and any prejudice arising was low – Trial judge did not err in admitting evidence.
Evidence Act2001 (Tas), ss 97, 101(2).
McPhillamy v The Queen [2018] HCA 52, 361 ALR 13; Hughes v The Queen [2017] HCA 20, 344 ALR 187, followed.
R v Bauer [2018] HCA 40, 92 ALJR 846, referred to.
Aust Dig Criminal Law [2780]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Appellant found guilty of one count of rape, one count of aggravated burglary, one count of demanding money with menaces with intent to steal – Youth of appellant only mitigating factor – Elderly complainant had to give evidence – Eight years' imprisonment not manifestly excessive.
Baldock v Tasmania [2015] TASCCA 3, referred to.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: A Hensley
Respondent: D Coates SC
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASCCA 4
Number of paragraphs: 71
Serial No 4/2019
File No CCA 2629/2018
CHRISTO BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
GEASON J (Dissenting)
MARSHALL AJ
17 April 2019
Order of the Court
Appeal dismissed.
Serial No 4/2019
File No CCA 2629/2018
CHRISTO BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
17 April 2019
I have had the advantage of reading in draft the reasons for judgment of Marshall AJ. I agree with the conclusions reached by his Honour with respect to both grounds of appeal. I would also dismiss the appeal.
In respect of tendency evidence, the plurality in Hughes [2017] HCA 20, 344 ALR 187, said at [40]:
"The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at 485 [125]: 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged."
The qualification referred to in this passage was a point of some significance in this case. The admissibility of the evidence for a tendency purpose depended on whether it had "significant probative value". This required an assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. This, in turn, depended upon an assessment of the reasoning process which was available to the jury with respect to proof of the facts in issue. The crucial fact in issue in this case was the identity of the offender, that is, whether the person who committed the crime was the appellant. Taken by itself, the impugned evidence would have lacked the requisite probative value with respect to proof of this fact. There was not sufficient similarity between the conduct said to establish the tendency, and the conduct of the person who perpetrated the crime alleged in the indictment, to support a reasoning process that it was highly probable that the same person must have committed both crimes. However, when combined with other evidence, the asserted tendency evidence constituted an important component of a strong circumstantial case. The evidence was clearly capable of establishing the tendency asserted by the prosecution, which was defined by the tendency notice to be a tendency to impose himself in a sexual manner upon females whilst they were in a vulnerable position, namely whilst asleep in bed. Although this asserted tendency was criticised by the appellant as lacking sufficient specificity to have the requisite probative effect, in my view it, in fact, contained more specificity than was necessary to support its probative value. The crucial aspect with respect to the circumstantial reasoning open to the jury on the question of identity was that the appellant had a tendency to impose himself in a sexual manner upon females. The fact that the female was in a vulnerable position at the time contributed to the probative value of the tendency, but was not dependent on the female being in bed or asleep. The feature of imposition meant that the appellant's tendency was to physically engage in a sexual way with a female without seeking or obtaining her consent. Clearly, taken alone, this tendency was too broad to identify him as the offender in this case. However, when considered with the other circumstantial evidence relating to the question of identity, the evidence supported the improbability that another person with similar characteristics, who was in the area at the same time, and had the same tendency, that is, a tendency to impose himself sexually upon females without seeking or obtaining their consent, was responsible for the crime. It also strengthened the significance of the location of DNA which had a high probability match with the accused, and supported the conclusions available from the evidence of flight and false alibi. The tendency evidence was a piece of circumstantial evidence, which the trial judge correctly concluded, having regard to the balance of the circumstantial case, had significant probative value. It was an important "strand" in a "strands in the cable" circumstantial case. The evidence was correctly admitted.
I agree with Marshall AJ's conclusion in relation to the ground alleging manifest excess of sentence. I have nothing further to add.
File No CCA 2629/2018
CHRISTO BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
17 April 2019
The appellant appeals against his conviction for rape. There are two grounds of appeal. The first asserts that the learned trial judge erred in law in admitting evidence under s 97 of the Evidence Act 2001 ("the Act") intended to prove tendency. The second asserts that the sentence of eight years' imprisonment was manifestly excessive in all the circumstances.
Ground 1
In accordance with s 97(1)(a) of the Act the Crown gave notice to the appellant that it intended to adduce evidence that the accused had a tendency to a particular state of mind, "... namely to impose himself, in a sexual manner, upon females, whilst they were in a vulnerable position, namely while in asleep [sic] in a bed."
The evidence relied upon by the State was to be given by a witness known as LJS. Her evidence was that on 21 July 2016 the accused had got into her bed while she was sleeping and proceeded to indecently assault her. For this conduct the appellant was convicted of indecent assault in Queensland. The evidence is more fully set out in the judgment of Marshall AJ at [47]. (I will refer to the evidence relating to the Queensland conviction as the "tendency evidence" and to the matter upon which the appellant was standing trial in Tasmania as "the offence").
The appellant objected to the Court receiving the tendency evidence. He contended that s 97 of the Act was not satisfied in that the evidence did not have significant probative value. He submitted too, that its probative value did not substantially outweigh its prejudicial effect as required by s 101(2) of the Act.
The Evidence Act
Section 97 of the Act prohibits the admission of tendency evidence unless certain conditions are met:
"(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless —
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
Section 101(2) of the Act places a further constraint upon the admissibility of such evidence. It provides:
"(2) Tendency evidence about a defendant, .., adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."
A pre-trial hearing was conducted. The Court's ruling was handed down by Pearce J on 23 April 2018. (There is utility in dealing with matters such as this in the pre-trial phase because it avoids the need to send a jury away while the matter is argued and determined.)
His Honour's reasons for admitting the evidence appear at [20]-[23] of his decision, as follows:
"[20] The first thing to notice about the proposed evidence is that it is of events which post-date the crimes. The fact that the tendency evidence relates to events after the alleged conduct in issue does not necessarily mean that the probative value of the evidence is reduced: RH v The Queen [2014] NSWCCA 71, 241 A Crim R 1 at [88]-[130].
[21] In this case, the proposed evidence is of a single event which took place about a year after the alleged crimes. There are some differences in the conduct. Both complainants are female but there is a significant variance in age – one is a young adult and the other is 76. One complainant was in public accommodation and the other was in her home. In one case the perpetrator desisted when confronted, and in the other the perpetrator used force to overcome resistance. It was thus a case of unlawful touching rather than rape. However I accept that the evidence of the July 2016 assault supports the identified tendency, that the accused 'had a particular state of mind, namely to impose himself, in a sexual manner, upon females, whilst they were in a vulnerable position, namely while asleep in a bed'. The more contentious question is the extent to which the tendency makes more likely the relevant fact in issue, namely whether the accused is the person responsible for the rape. I have concluded that, despite the differences in the conduct I have referred to, the similarities are such that evidence of the tendency could, when taken with the other evidence, support to a significant extent, the inference that he was the perpetrator on the earlier occasion. It is evidence that is influential in the context of the jury's consideration of that issue. I find that the evidence of tendency is of significant probative value.
[22] I turn to the assessment of whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. As I am presently informed, evidence of the 2016 assault will only be admitted as evidence of tendency. It is not admissible on any other basis. It may, as is commonly the case in matters such as this, be edited to avoid mention of trial, conviction and imprisonment for any offence. It is the conduct itself which is relevant, not the consequences of it. There is, inevitably, some risk that the jury will focus on, and be diverted by, evidence of other serious criminal conduct. Consideration of the risk of unfairness should include whether the evidence tends to induce a subconscious bias against the accused: see Sokolowskyj v The Queen [2014] NSWCCA 55, 239 A Crim R 528 at [56]–[57]. However, with proper directions, I do not consider that the nature of the evidence is such that it is likely to divert the jury from its task of rationally assessing the evidence and their ability to properly consider the basis on which the evidence is admitted. Juries are commonly given directions as to the use which can be made of tendency evidence. It is to be assumed that juries will comply with such directions: Gilbert v The Queen [2000] HCA 15, 201 CLR 414 per Hayne J at [31]. I think that, in the circumstances of this case, the directions will sufficiently 'overcome the prejudicial effects of the evidence, individually and collectively, upon the jury': Patel v The Queen [2012] HCA 29, 247 CLR 531 at [113] per French CJ, Hayne, Kiefel and Bell JJ. I do not see that there is much possibility that the evidence will improperly be given more weight than it deserves.
[23] I have concluded that the probative value of the 2016 evidence, the subject of the tendency notice, dated 8 November 2017, substantially outweighs any prejudicial effect it may have on the accused. The objection to that evidence is overruled. The evidence will be admitted." [My emphasis.]
The trial
The appellant entered pleas of not guilty to the charges on the indictment.
The complainant's evidence on the trial was pre-recorded and played to the jury.
The facts alleged by the State were:
"a Just before 2am on Wednesday the 29th of July 2015 the Complainant, a lady then aged 76, was in bed asleep in the bedroom of her home ... where she lived alone.
b The Complainant woke to find the Appellant in her room.
c The Appellant pushed his arm tight across the Complainant's neck and drew the covers of the bed over the Complainant's head.
d The Appellant demanded sex and asked the Complainant to remove her clothes.
e When the Complainant refused to remove her clothes, the Appellant pulled off the Complainant's pyjama trousers and underpants.
f The Appellant removed his penis from his jeans and the Complainant tried to push the Appellant away. The Appellant then vaginally raped the Complainant.
g At some stage during the time the Appellant was present, he demanded that the Complainant give him money.
h The Complainant removed notes from her purse but the Appellant did not take them."
Tendency
Tendency evidence is evidence which allows a jury to reason that "he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue": Hughes v The Queen [2017] HCA 20, 92 ALJR 52 at [70] per Gageler J. It must be significantly probative of the offence charged: s 97. To make evidence of previous offending significantly probative of a subsequent offence "there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence": Hughes (above) per Nettle J at [154].
The effect of ss 97 and 101 of the Act is that unless the court thinks the evidence has significant probative value (by itself or having regard to other evidence) which probative value substantially outweighs any prejudicial effect, it cannot be used for that purpose.
The task requires the court to make an evaluative judgment: Hughes (above) [42] and [105].
The nature of the enquiry means that reasonable minds may reach different conclusions: Hughes (above) [42]. A court of appeal may take a different view of the evidence resulting in a new trial. That fact may be a relevant matter for the prosecution to consider when determining what tendency evidence it will rely on: DKA v The State of Western Australia [2017] WASCA 44 at [69].
The probative value of evidence, defined in s 3(1) of the Act, is the extent to which it is capable of rationally affecting the assessment of the probability of the existence of a fact in issue. The facts in issue in a criminal proceeding are the facts which establish the elements of the charged offence: Hughes at [16].
The starting point is therefore identification of the facts in issue.
The fact in issue for relevant purposes in this trial was the identity of the offender.
When identity is in issue the probative value of the tendency evidence "will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence": Hughes (above) at [39].
It follows that "close similarity" between the tendency evidence and the offence, will be at the centre of the analysis of probative value in this case.
In The Queen v Bauer [2018] HCA 40, 92 ALJR 846 at [58], the court repeated the need for a "common feature" in multiple complainant cases. Whilst this case is not a multiple complainant case of the same type as in that case, the tendency evidence and the offence involve different complainant's and the point is apposite:
"[58] In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true." [My emphasis.]
The court approached the task before it in this case correctly identifying the matters to which it was required to have regard, and examining the issue of whether there were similarities between the conduct evidencing the asserted tendency and the offence. The trial judge was clearly mindful of the need to look for the indicia of similarity necessary to establish significant probative value.
Having identified at [21] that there "were some differences" and set out those differences, the Court concluded that the similarities were such that evidence could, when taken with the other evidence, support to a significant extent the inference that the appellant was the perpetrator.
The basis upon which it was said the tendency evidence could support "to a significant extent" the inference that the appellant was the offender is not stated in the court’s reasons. How it was said that other evidence to be led on the trial affected that conclusion, is not disclosed.
A Court is permitted to have regard to other evidence in the Crown case in order to determine whether a significant probative value is demonstrated, but as I have already noted, in cases where identity is the central issue, an application "will almost certainly depend upon similarity between facts evidencing tendency and facts in issue": Hughes (above) at [39]. That is a narrow question inviting a comparative analysis of the tendency evidence and the offence being tried. It is the similarity between the two upon which significant probative value will likely depend.
In my view the other evidence in the trial could not resolve any lack of similarity between the tendency evidence and the facts of the offence.
Other evidence in the trial may confirm those similarities in some way, or enable more nuanced analysis, revealing similarities not at first obvious. But other evidence will not make similar that which is not similar, to the point where as between the evidence relied on to prove tendency, and the offence, there is exhibited the requisite similarity to be probative of identity. I consider this to be necessarily true in every case where similarity between the facts evidencing tendency and the offence being tried is the question; a proposition which applies a priori in such instances.
The DNA evidence, and the evidence of skin colour, referred to by the State in this appeal, are matters relevant to the prosecution case generally and to the identity of the offender. But they do not bolster the probative value of the tendency evidence because they add nothing to whether there is exhibited similarity between the two episodes.
In my view therefore, reliance upon other evidence in the trial could not, elevate the probative value of the tendency evidence to the point where it was significantly probative of identity. As such reliance upon it for that purpose was erroneous, and error is established at this point.
In case I am wrong as to that, I will consider the matter of similarity between the tendency evidence and the offence.
The State relied upon "strong similarities between both crimes" for its application to introduce the tendency evidence relating to the Queensland conviction. This is its list:
1Both were opportunistic.
2 Both victims were female.
3 Both victims were asleep in their bed.
4 Both victims were sexually assaulted.
I consider the submission too broadly expressed, and too general in its identification of characteristics said to reveal similarity; see McPhillamy v The Queen [2018] HCA 52. It is a starting point but it is not an analysis.
The other evidence relied upon in this case involved the appellant's conviction for an indecent assault upon a female of his age, in a youth hostel in Queensland. It occurred after he had spent time with his victim and her friend, in a social context. His victim was asleep when he got into her bed and began touching her indecently. He desisted when asked to do so, and left the bed. Though totally inexcusable, it was not at all the same as the conduct the subject of the offence which involved a sexual assault upon a 76-year-old victim, who was awake at the time, and whose pleas for her attacker to desist, were ignored, and followed by penetrative sex. (As a matter of fact therefore, point 3 in the State's list is incorrect).
An opportunistic sexual assault on a female is a generic description of offending behaviour which includes a significant range of behaviours. It is so general as to be meaningless in the context of tendency. Relying upon the fact that there was a sexual assault is such a general statement of similarity as to have no value in the context of the considerations that are relevant to the admissibility of tendency evidence. What is required is something which makes the other evidence significantly probative of a subsequent offence. It is not every sexual offence that qualifies as tendency evidence. There are a number of examples cited in Hughes where sexual conduct was held to be lacking the requisite similarity to qualify as tendency evidence, for example Sokolowskyj v The Queen [2014] NSWCCA 55, 239 A Crim R 528. There the court held that generalised sexual activity insufficiently related to the elements of the offence charged is not enough: Sokolowskyj (above) at 537-538, [40]-[44]. That is the case here.
In Rapson v The Queen [2014] VSCA 216, 45 VR 103, the Crown conceded on appeal that evidence of two pupils concerning charges of penile-anal rape involving domination and violence was not cross-admissible on charges concerning six other pupils, which involved non-violent and non-penetrative fondling. The court accepted the Crown's concession, noting distinct differences in the gravity of the misconduct and the qualitative character of the surrounding circumstances.
Not only does the evidence relating to the offence in Queensland fall short of establishing a pattern of behaviour, there is not a striking pattern of similarity between the incidents. At its highest the other evidence related to sexual conduct not akin to rape, not exhibiting actual violence, and not persisted in over the protest of the victim. In my view, there are distinct differences in the gravity of the misconduct and in the qualitative character of the surrounding circumstances in this case. I conclude that the tendency evidence lacked the "close similarity" necessary for it to possess significant probative value as evidence of identity.
It is not necessary to consider s. 101 of the Act in view of that conclusion.
The admission of the tendency evidence amounted to an error. For these reasons I uphold ground 1.
Whilst I acknowledge the strength of other aspects of the Crown case, the admission of the tendency evidence was highly prejudicial to the appellant. I cannot say this has not resulted in a miscarriage of justice. In my view the conviction should be set aside and a new trial ordered.
In the circumstances I do not need to consider the other ground of appeal.
File No CCA 2629/2018
CHRISTO BROWN v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
17 April 2019
The appellant was convicted of one count of rape, contrary to s 185 of the Criminal Code, one count of aggravated burglary, contrary to s 245 of the Code, and one count of demanding money with menaces with intent to steal, contrary to s 242 of the Code. He was sentenced to serve a period of eight years' imprisonment with effect from 2 October 2017.
The appellant has appealed against the convictions and sentence. He raises two grounds of appeal. The first is that the trial judge erred in law in admitting tendency evidence under s 97 of the Evidence Act 2001. The second is that the sentence of eight years' imprisonment was manifestly excessive in all the circumstances.
Ground 1 – tendency evidence
In order to put the tendency evidence in context, it is important to focus on the facts before the jury relevant to the crime of rape. They were as follows, as set out in the appellant's written submissions:
"aJust before 2am on Wednesday the 29th of July 2015 the Complainant, a lady then aged 76, was in bed asleep in the bedroom of her home ... where she lived alone.
bThe Complainant woke to find the Appellant in her room.
cThe Appellant pushed his arm tight across the Complainant's neck and drew the covers of the bed over the Complainant's head.
dThe Appellant demanded sex and asked the Complainant to remove her clothes.
eWhen the Complainant refused to remove her clothes, the Appellant pulled off the Complainant's pyjama trousers and underpants.
fThe Appellant removed his penis from his jeans and the Complainant tried to push the Appellant away. The Appellant then vaginally raped the Complainant.
gAt some stage during the time the Appellant was present, he demanded that the Complainant give him money.
hThe Complainant removed notes from her purse but the Appellant did not take them."
The tendency evidence relied on to support the prosecution case on the rape charge came from a witness called LJS. A summary of that evidence is set out in par 15 of the appellant's written submissions as follows:
"On the 22nd of July 2016 she, in the company of a male friend [JF], was staying in dormitory style accommodation at a backpackers hostel ... There were approximately 14 beds. She was staying on the bottom of a bunk bed, with [Mr F] staying on the top of the same bunk bed.
She first met [the appellant] at about 7:00pm on that same evening. He was in the accommodation when she and [Mr F] returned from work at that hour. There was a short conversation with the Appellant during which he enquired whether [LJS] and [Mr F] were in a relationship. He was informed they were not. At the end of the conversation the Appellant winked at [LJS].
[LJS] and [Mr F] left the accommodation before returning at approximately 9:30-10:00pm. There were other people staying in the accommodation. [LJS] went to sleep before waking at approximately 3:00am the next morning. She awoke to the Appellant 'spooning' her in bed.
[LJS] initially thought that person was [Mr F] and was not alarmed. However, when that person began to rub his groin against her bottom and attempt to remove her underwear she looked at the hand, saw that it was black, and realized it was the Appellant in bed with her.
She told the Appellant words to the effect of 'I think you better get the fuck out of my bed', and the Appellant smiled and got out of the bed, seemingly returning to his own bed in the same room."
The trial judge gave reasons for his ruling to admit the tendency evidence in a ruling given on 23 April 2018. At [20] to [23], his Honour said as follows:
"[20] The first thing to notice about the proposed evidence is that it is of events which post-date the crimes. The fact that the tendency evidence relates to events after the alleged conduct in issue does not necessarily mean that the probative value of the evidence is reduced: RH v The Queen [2014] NSWCCA 71, 241 A Crim R 1 at [88]-[130].
[21] In this case, the proposed evidence is of a single event which took place about a year after the alleged crimes. There are some differences in the conduct. Both complainants are female but there is a significant variance in age – one is a young adult and the other is 76. One complainant was in public accommodation and the other was in her home. In one case the perpetrator desisted when confronted, and in the other the perpetrator used force to overcome resistance. It was thus a case of unlawful touching rather than rape. However I accept that the evidence of the July 2016 assault supports the identified tendency, that the accused 'had a particular state of mind, namely to impose himself, in a sexual manner, upon females, whilst they were in a vulnerable position, namely while asleep in a bed'. The more contentious question is the extent to which the tendency makes more likely the relevant fact in issue, namely whether the accused is the person responsible for the rape. I have concluded that, despite the differences in the conduct I have referred to, the similarities are such that evidence of the tendency could, when taken with the other evidence, support to a significant extent, the inference that he was the perpetrator on the earlier occasion. It is evidence that is influential in the context of the jury's consideration of that issue. I find that the evidence of tendency is of significant probative value.
[22] I turn to the assessment of whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. As I am presently informed, evidence of the 2016 assault will only be admitted as evidence of tendency. It is not admissible on any other basis. It may, as is commonly the case in matters such as this, be edited to avoid mention of trial, conviction and imprisonment for any offence. It is the conduct itself which is relevant, not the consequences of it. There is, inevitably, some risk that the jury will focus on, and be diverted by, evidence of other serious criminal conduct. Consideration of the risk of unfairness should include whether the evidence tends to induce a subconscious bias against the accused: see Sokolowskyj v The Queen [2014] NSWCCA 55, 239 A Crim R 528 at [56]–[57]. However, with proper directions, I do not consider that the nature of the evidence is such that it is likely to divert the jury from its task of rationally assessing the evidence and their ability to properly consider the basis on which the evidence is admitted. Juries are commonly given directions as to the use which can be made of tendency evidence. It is to be assumed that juries will comply with such directions: Gilbert v The Queen [2000] HCA 15, 201 CLR 414 per Hayne J at [31]. I think that, in the circumstances of this case, the directions will sufficiently 'overcome the prejudicial effects of the evidence, individually and collectively, upon the jury': Patel v The Queen [2012] HCA 29, 247 CLR 531 at [113] per French CJ, Hayne, Kiefel and Bell JJ. I do not see that there is much possibility that the evidence will improperly be given more weight than it deserves.
[23] I have concluded that the probative value of the 2016 evidence, the subject of the tendency notice, dated 8 November 2017, substantially outweighs any prejudicial effect it may have on the accused. The objection to that evidence is overruled. The evidence will be admitted."
Tendency evidence is not admissible unless it meets certain qualifications set out in s 97 of the Evidence Act. That section provides:
"(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless —
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
Under s 101(2) of the Evidence Act, tendency evidence is not to be used against a defendant "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant".
The appellant submits that the tendency evidence of LJS refers to an act so different in character to the crimes which the appellant was charged with such that it does not have significant probative value, and what probative value it may have had did not substantially outweigh any prejudicial effect.
His Honour acknowledged that there were differences in the conduct the subject of the charges and the tendency evidence, but concluded that the similarities were such that the tendency evidence could, when taken with other evidence, support the inference that the appellant committed the rape. Critically the trial judge accepted that the evidence concerning LJS supported the identified tendency that the appellant "had a particular state of mind, namely to impose himself, in a sexual manner, upon females, whilst they were in a vulnerable position, namely while asleep in bed". I see no error in his Honour's characterisation of the tendency evidence. For the reasons given by the trial judge, that evidence was of significant probative value. The facts in each case refer to a perpetrator seeking to impose himself on females in a sexual way while they are asleep in bed. As counsel for the State points out, both fact situations involved opportunistic circumstances, female victims, victims asleep in bed, and victims who were sexually assaulted.
In McPhillamy v The Queen [2018] HCA 52, 361 ALR 13 at [26], the plurality said:
"... assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency."
In this case that required an identification of the tendency which the trial judge provided, as set out in the previous paragraph above, and an examination of whether the evidence in this case was capable of proving the tendency. His Honour held, correctly in my view, that the evidence in this case was capable of proving the tendency when taken with other evidence such as the presence of the appellant's DNA on the complainant's nightie.
The tendency evidence had probative value because it was capable of rationally affecting the probability of a fact in issue: see R v Bauer [2018] HCA 40, 92 ALJR 846 at [95]. The tendency evidence had significant probative value because it was important and of consequence. There is no requirement for the tendency evidence to be closely similar to the alleged offence for it to have significant probative value, although if it is strikingly similar, it will have significant probative value: see Hughes v The Queen [2017] HCA 20, 344 ALR 187 at [39]. What is required, as occurred in this case, is that there is some feature or features between the tendency evidence and the alleged offending that links them: see R v Bauer (above) at [58]. The linking factors were referred to by the trial judge as set out at [52].
Any prejudice arising out of the tendency evidence was low because, as the State submits, the tendency evidence involved an act where the attack was not overly violent, there were no threats of violence, no weapons involved, and the appellant desisted after complaint.
His Honour held that the probative value of the tendency evidence substantially outweighed any effect it may have on the appellant. The trial judge considered that, with proper directions, the jury would focus on its task of rationally assessing the evidence and the basis upon which it was admitted. Such directions, his Honour held, would overcome the prejudicial effects of the evidence, individually and collectively, upon the jury. The trial judge gave a warning to the jury in his charge that the only way they could use the tendency evidence was in considering whether it disclosed a tendency for the appellant to have a state of mind to impose himself on females in a sexual way while they were asleep in bed. Given the way his Honour dealt with the matter in his directions to the jury, I do not consider that the tendency evidence carried a significant risk of unfair prejudice to the appellant.
Consideration of the determination of the admissibility of tendency evidence involves an evaluative judgment: see Donoghue v Tasmania [2016] TASCCA 17 at [22], per Estcourt J. That process includes a consideration of the nature of the evidence, its probative value and whether the probative value outweighs any prejudicial effect. In my view, the trial judge correctly held that the tendency evidence had probative value and its probative value outweighed any prejudicial effect.
Ground 2 – sentence
The appellant submits that the sentence of eight years' imprisonment was manifestly excessive in all the circumstances. For an appeal against sentence to succeed, it must be shown that the sentencing order is so manifestly wrong that it must be the result of some undefinable error in the exercise of the judicial discretion: see Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31] to [34], per Porter J and Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J.
The appellant concedes that the current case is a bad example of the crime of rape, having regard to the age and fragility of the complainant and the invasion of her home. However his counsel points to the fact that he was only 18 years old at the time of the offences, and the appellant's youth places him in a better position to rehabilitate than older offenders.
The appellant's counsel has referred to four cases in Tasmania since 2015 in which defendants have been found guilty of rape and aggravated burglary. This case also involved demanding property with menaces.
The first case mentioned was that of Baldock v Tasmania [2015] TASCCA 3 where the complainant was 81 years old and was violently raped at home on her front porch by a 42-year-old defendant. The defendant was sentenced to six years' imprisonment with a non-parole period of four years.
The second case of ADD (2 March 2007) involved a particularly violent rape and a home invasion where the defendant, who was 24 years old, was sentenced to five years' imprisonment with a non-parole period of three years.
The third case of B (12 February 2010) involved a 22-year-old defendant who was sentenced to five years' imprisonment for a very violent rape of a former partner.
The fourth case of ALR (21 November 2006) involved a youthful defendant who committed two separate rapes and was sentenced to five years' imprisonment. Both victims were elderly women.
Counsel for the appellant submits that the appellant has received a much higher sentence for crimes of broadly similar facts than any other person, despite only being 18 years old. However counsel concedes that a simple comparison between sentences is of limited value.
Counsel for the State notes that the sentence is higher than sentences in recent years for a single count of rape, but observes that it is not historically outside the range as referred to in Sentencing in Tasmania, 2nd ed at 307 by Professor Warner, where the range of sentences for 27 cases of single counts of rape between 1990 and 2000 ranged from six months to eight years, with a median of three years.
There is no absolute requirement that a sentence be within range. Previous sentences are useful yardsticks only. The closest comparative case to the present is that of Baldock. However there are several features of that case which distinguish it from the present, and which justify a higher head sentence in this case than was given in Baldock. The following distinguishing features in Baldock were set out in the written submissions of counsel for the State. They are:
"(a)Mr Baldock pleaded guilty and made early admissions to police;
(b)He was assessed by a psychiatrist as having low intelligence and subsequent problems with 'executive function';
(c)He was also assessed as having little insight into the consequences of his crime;
(d)He was sentenced on the basis of having remorse for his conduct.
(e)There was no suggestion that he was of high risk of re-offending."
In the present case, the appellant pleaded not guilty and forced an elderly complainant to give evidence. There was no evidence of remorse. The appellant had extensive prior convictions for crimes of violence and dishonesty. He was psychologically assessed as at a high risk of committing further sexual violence. A pre-sentence report said that his long-term sexual recidivism was in the high category. The trial judge assessed his risk of re-offending as high.
In my view there was no error in the exercise of the trial judge's sentencing discretion. The sentence imposed was an appropriate one, in any event, in all the circumstances of the case, having regard to the aggravating features referred to above and the lack of mitigating features, apart from youth.
Conclusion
Both grounds of appeal lack merit. I would dismiss the appeal.
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