Davey v Miller
[2018] ACTSC 32
•27 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Davey v Miller |
Citation: | [2018] ACTSC 32 |
Hearing Date: | 11 December 2017 |
DecisionDate: | 27 February 2018 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – Appeal from the Magistrates Court – appeal from convictions – whether the decision was unsafe and unsatisfactory – whether the Magistrate erred in admitting tendency evidence – whether findings of fact not open on evidence – DNA evidence – record of interview – whether Magistrate able to dismiss appellant’s denials of wrongdoing in interview without evidence of internal inconsistency or inherent implausibility – audio-visual recording – consideration of DNA evidence – only one of relevant circumstances EVIDENCE – Tendency – s 97 of Evidence Act 2011 (ACT) – probative value of the tendency evidence – characterisation of conduct – Hughes v The Queen [2017] HCA 20; 92 ALJR 52 – purpose of adducing the tendency evidence in this case was to establish the identity of the offender – significance of the probative value of the tendency evidence is to be assessed in the light of other evidence called by the prosecution – species of circumstantial evidence |
Legislation Cited: | Crimes Act 1900 (ACT) s 28(2)(b) Crimes Act 1900 (NSW) s 308E(1) |
Cases Cited: | Chamberlain v R (No 2) (1984) 153 CLR 521 Hughes v The Queen [2017] HCA 20; 92 ALJR 52 |
Parties: | Adam Davey (Appellant) Daniel Miller (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Mr T Hickey (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 55 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 27 August 2017 Case Title: R v Adam Davey Court File Numbers: CC15/2559; CC15/2560; CC15/2561 |
BURNS J:
On 23 June 2017, Magistrate Campbell convicted the appellant of the following three offences:
one charge contrary to s 311 of the Criminal Code 2002 (ACT) alleging that on 27 August 2013 the appellant entered a building, namely, [redacted] in Charnwood, as a trespasser with intent to commit an offence that involved causing harm to anyone in the building (CC2015/2559);
one charge contrary to s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT) alleging that the appellant, being subject to a protection order under the provisions of the Domestic Violence and Protection Orders Act 2008 (ACT), who had been personally served with a copy of the protection order, did on 27 August 2013, in the Australian Capital Territory contravene the protection order (CC2015/2560);
one charge contrary to s 28(2)(b) of the Crimes Act 1900 (ACT) alleging that the appellant on 27 August 2013 placed a corrosive substance in circumstances dangerous to the physical well-being of another person, namely, HB (CC2015/2561).
The appellant appealed from the convictions on the following grounds:
(a)the decision of the Magistrate was unsafe and unsatisfactory;
(b)the Magistrate erred in admitting tendency evidence over objection; and
(c)the Magistrate made findings of fact that were not open on the evidence.
I will set out the background to the case before the Magistrate, as provided by her Honour in her reasons delivered on 23 June 2017. Before I do so, it is convenient to provide brief details of what the learned Magistrate referred to as the “Yass Incident”, evidence of which was admitted as tendency evidence in the hearing before the Magistrate. On 3 June 2014 the appellant was convicted in the Yass Local Court of an offence that between 3 June 2013 and 22 June 2013 at Yass he did cause an unauthorised impairment of electronic communication to a computer, a Samsung Galaxy S3 smart phone belonging to HB (then known as [redacted]) knowing that the impairment was unauthorised and intending to impair the said electronic communication contrary to s 308E(1) of the Crimes Act 1900 (NSW). The details of the Yass Incident are set out in the background to the case as determined by the learned Magistrate:
By way of background I note that the defendant and [HB] were married and lived together in NSW in the first half of 2013. They separated on 18 June 2013. The conduct engaged in by the defendant in the Yass Incident occurred between 3 and 22 June 2013, although it appears that the defendant actually started accessing and tracking his wife’s phone and her calls from early March 2013.
The details of the Yass Incident are contained in the NSW police statement of facts used at the defendant’s sentencing hearing. A summary of it, adopted from the DPP’s written submissions… is as follows:
· The defendant and [HB] had been in a relationship for approximately 8 years when she advised him on 17 June 2013 that the marriage was over and she intended to move out of the home;
· Unbeknownst to [HB] the defendant had secretly installed an application named ‘Cerberus’ on her mobile phone. This application allowed him to operate functions of [HB]’s phone via SMS commands or remotely with a computer send commands to the phone;
· Between 17 and 22 June 2013 [HB] noticed a number of unauthorised processes occurring on her phone. During this time the defendant used the ‘Cerberus’ application to send messages to her new partner, Mark Williamson, purporting to be [HB]. These messages included the following:
I showed my husband last night, now you are causing me marriage problems. TBH (to be honest) they are getting too creepy, I told you I’m married, please don’t EVER contact me again, or we will make a harassment charge. DO NOT REPLY (18 June 2013)
stop texting me. Stay the hell away from me OMG (20 June 2013)
· On 20 June 2013 the defendant used ‘Cerberus‘ to monitor a conversation between [HB] and Mr Williamson before the defendant interrupted, addressing Mr Williamson, saying “stay away from [HB], we are married and we are trying to get marriage counselling. She’s nuts and we are trying to work through it”;
· Subsequent forensic analysis of the defendant’s computer confirmed he had been accessing the ’Cerberus‘ website. The defendant had sent 695 Cerberus commands externally from him (sic) computer to [HB]’s mobile phone between 3 March 2013 and 22 June 2013. These included starting a track of the location of her phone, accessing [HB]’s SMS log and her phone call log. The majority of the commands were sent between 16 June and 22 June 2013, after [HB] had left the defendant.
· The defendant was subsequently convicted in the Yass Local Court on 3 June 2014 to a charge of ‘un-authorised impairment of electronic communication’ per s 308E(1) of the Crimes Act 1900 (NSW).
I infer from the extended version of the facts of the Yass Incident… that the defendant had some skill in managing information technology –
[…]
On 2 July 2013 [HB] sought an interim domestic violence order against [the appellant] in New South Wales. That order was granted and registered in the ACT on the same date. The effect of this registration is that the order was enforceable in the ACT as if it were a final order of this Court that had been personally served on the defendant. “Standard conditions” of the order included prohibitions on the defendant harassing the protected person ([HB]) or engaging in any other conduct that intimidated her. There was an additional condition that “the defendant must not go within 100 metres of the premises at which the protected person may from time to time reside or work”.
On 13 August 2013 [HB] moved into the address in [redacted] Charnwood with her new partner Mark Williamson. Ultimately the couple had a daughter together although they later separated.
On 27 August 2013 [HB] left her new residence in Charnwood to go to work. Mr Williamson had already left. She had cleaned the house at the weekend and left it that morning in a locked and secure state. On her return home [HB] found:
· the bed in a messy state,
· a pair of pink women’s underpants in the bed (which led her to believe there had been another female in her bed),
· a small section of a condom wrapper on the floor next to the bed ‘as if it had been dropped’,
· a piece of women’s sanitary pad wrapper on the toilet floor,
· a number of items belonging to her had been stolen,
· the garage door was unlocked, and
· a window was broken.
On 28 August 2013 [HB] took a shower and found a ’corrosive substance‘ in her hair conditioner which was not in it the day before when she had used it.
On 3 June 2014 the defendant was convicted in the Yass Local Court of an offence that between 3 June 2013 and 22 June 2013 at Yass ‘he did cause an unauthorised impairment of electronic communication to a computer, a Samsung Galaxy S3 smart phone… Belonging to [HB] knowing that the impairment was unauthorised intending to impair the said electronic communication” contrary to section 308E (1) of the Crimes Act 1900 (NSW)…
Over a year after the burglaries, on 3 September 2014, the defendant underwent a buccal swab. His DNA was found to be on the pink underpants found by [HB] in her bed on 27 August 2013.
There was evidence before the Magistrate, which has not been subjected to challenge in the present appeal, that an examination of the contents of the bottle of conditioner used by HB on 28 August 2013 revealed that it had been contaminated with a foreign liquid of high pH, which was highly alkaline, corrosive and would cause burns on direct contact.
On the basis of evidence given by a forensic biologist, the Magistrate was satisfied that the appellant’s DNA was found on the pink women’s underpants which were found by HB in her bed on 27 August 2013. That finding has not been the subject of challenge in this appeal.
The Magistrate quoted with evident acceptance evidence of the informant, Senior Constable Miller, that it was clear from the early stages of the investigation that “the circumstances were quite bizarre and unusual, and certainly not the normal sort of burglary that [he] would attend.” The Magistrate also accepted that the evidence established that the appellant possesses expert technical knowledge in the field of computers and mobile telephone devices. His ability to locate HB using this knowledge, as demonstrated by the evidence in the Yass Incident, supported an inference, the Magistrate said, that he had the requisite skills to locate her home in Charnwood.
The tendency evidence
The prosecution made an application prior to the hearing date to lead tendency evidence at the hearing of the charges against the appellant. That evidence consisted of the evidence relating to the Yass Incident. The prosecution sought to prove that the appellant had a tendency to act in a particular way, namely to engage in covert surveillance of HB, and to sabotage by deception the relationship between HB and Mr Williamson. The prosecution also sought to prove that the appellant had a tendency to have a particular state of mind being a tendency to be jealous of HB’s new relationship with Mr Williamson, or to be angry with HB for leaving the relationship.
The tendency application was heard prior to the hearing of the charges themselves. In her reasons delivered on 23 June 2017 for finding the offences proved against the appellant, Magistrate Campbell referred to her earlier reasons for admitting the tendency evidence:
As I said in my earlier decision – what occurred in the Yass Incident demonstrated a level of jealousy of a quite extraordinary degree going beyond the normal reaction one might expect in a relationship breakdown. The defendant attempted to undermine or harm the relationship between his wife and her new partner and he engaged in conduct designed to achieve this by attempting to deceive the parties in relation to their understanding of the conduct of the other. This is what I found made his conduct distinctive and stand out from the ordinary human reaction of jealousy so often seen when one partner forms a new relationship. It is what gave the evidence of what occurred in the Yass Incident probative value in the current proceedings. It is relied on by the prosecution in this hearing to prove the identity of the offender.
The conduct engaged in by the intruder certainly appeared to be directed at [HB] – to her physical wellbeing, her psychological state (raising concerns about her partners fidelity) and the items which were stolen belonged to her and included medication prescribed for her. It is consistent with the tendency demonstrated by the defendant in the Yass Incident and supports the inference that it was the defendant who also committed these later offences again in an attempt to undermine the relationship between his wife and Mr Williamson.
The Magistrate correctly identified the purpose for which the prosecution sought to lead this evidence, saying:
The fact in issue in these proceedings is whether it was the defendant who entered [HB]’s residence and engaged in the conduct the intruder clearly undertook once inside. The prosecution seek to rely on evidence of the Yass Incident to show that while there is no direct evidence that the defendant is the offender in the current matters a process of tendency reasoning will allow the court to draw an inference that it was he who entered [HB]’s townhouse because, only two months before, he had shown a tendency to engage in deceptive conduct designed to undermine the relationship between his wife and her new partner and that he was motivated to do so by jealousy and/or anger. I am satisfied that the question whether the defendant had a tendency as alleged by the prosecution is relevant to the fact in issue in relation to the current proceedings.
…
I am satisfied that the evidence of the Yass Incident could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent. Ordinary human experience tells us that the tendency of a person in a relationship, or often after it has been ended by the other party, to be suspicious or jealous is not uncommon. The claimed tendency here goes beyond those things which are commonplace and is what gives the evidence the requisite significant probative value for the purposes of s 97.
The reference to s 97 in the above extract is clearly a reference to s 97 of the Evidence Act 2011 (ACT) which provides, inter alia, that evidence of a tendency that a person has or had is not admissible to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind unless the Court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value. Even where a Court is satisfied that the test prescribed in s 97 is satisfied, in criminal proceedings the proposed tendency evidence must not be admitted unless the Court is satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
The DNA evidence
The prosecution called evidence in the proceedings before the Magistrate from a forensic biologist, Carol-Ann Schenk. Ms Schenk’s biology team at the Australian Federal police was responsible for the examination and analysis of the interior and exterior surfaces of the pink women’s underpants found in HB’s bed. She provided a report which was admitted as an exhibit in the hearing, and also gave oral evidence. Ms Schenk gave evidence that there were “good amounts” of DNA on the underpants which could be extracted for analysis. She concluded that there were two individuals who had contributed to the DNA sample which was obtained from the underpants. One of those two people had contributed a greater amount of DNA. She referred to this person as the major contributor, and the other person as the minor contributor. She was unable to say what specific biological source the DNA in the major profile came from, but it was possible that the source was from the deposit of skin cells. The presence of DNA on the underpants did not enable her to say anything about the timeframe or the circumstances under which the DNA was transferred to that item.
With regard to the mixed DNA profile from the underwear, Ms Schenk concluded that the appellant could not be excluded as the source of the major component. The evidence, she said, is at least 31 septillion times more likely if the major component of the observed a DNA profile originated from the appellant than if it originated from another unknown, unrelated individual selected at random from the Australian Caucasian subpopulation. In her opinion this finding when considered in isolation from other information provided extremely strong support for the proposition that the major component of the DNA profile obtained from the underpants came from the appellant.
Cross-examination of Ms Schenk was largely directed towards establishing the possibility that the major component of the DNA obtained from the underwear, if it were found to be the appellant’s DNA, may have come to be on the underpants through secondary transference. Counsel for the appellant put to Ms Schenk that if the appellant had come into physical contact with the minor contributor to the DNA profile obtained from the underpants, and that minor contributor subsequently touched the underwear, it was possible that the appellant’s DNA profile would be transferred by that person to the underwear. Ms Schenk said:
I would expect the person who has touched the object would leave the most DNA but there are some factors that do affect the transfer of DNA and they can be the nature of the surface that you are contacting, whether it is porous, non-porous.
[…]
[S]omething like underpants is probably a good place for the transfer of DNA because of the texture – you know, the nature of the fabric. It also depends on how long there was contact (a) between the two people when they shook hands for example so how long that contact was will affect the amount of DNA transferred and also how long the contact with the underpants was. That would also have an impact on how much DNA was transferred but yes you would expect to see the other person’s DNA generally in equal or greater concentration but it is hard to be definitive about that.
Ms Schenk went on to say that it was possible that the profile from the major contributor could have been transferred to the underpants by the minor contributor, but she would not say that was likely.
The record of interview
The informant, Senior Constable Miller, gave evidence that after speaking to HB on 27 August 2013, in his mind the appellant was a suspect with regard to the burglary that occurred that day. He waited until he was advised that a DNA profile had been obtained from the pink women’s underpants which was capable of being compared with other DNA samples before speaking to the appellant. By that time, of course, he was also aware of the contamination of the hair conditioner which came to HB’s attention on 28 August 2013. Senior Constable Miller conducted two interviews with the appellant, one on 26 February 2014 and one on 2 March 2015. As I understand it, these interviews were both audio and video recorded. The prosecution, in the proceedings before the Magistrate, sought to tender the transcripts of those two interviews:
Your Honour, I’ll seek to tender those two transcripts of those records of interview. I don’t seek to play them.
MR EDMONDS: Your Honour, there’s no objection to the first one. If I could just double-check the second. I am just trying to find that again in my brief.
HER HONOUR: Are you saying the first is relevant, or it’s just for completeness as such? You do want me to read it at some stage presumably?
MR SWAN: They are both relevant.
HER HONOUR: Okay.
MR SWAN: Firstly, I’ll just broadly outline the contents of them. Firstly, there’s the first record of interview which occurs at a time where the defendant’s DNA has not been collected. The allegations are put to the defendant. As my friend indicated earlier, that’s the records of interview where the defendant makes an off-the-cuff comment about having been at work, amongst other things. The second in time interview, the allegation in relation to the DNA is put squarely to the defendant regarding the major profile and the results to which no comment is said to a number of questions put to him.
MR EDMONDS: Yes, your Honour. There would be a short objection to the second interview. My friend has just refreshed my memory about it. It’s not necessarily a big issue, but in terms of doing things properly, I don’t understand my friend to be saying there are any admissions in it, therefore it’s hearsay. I don’t know what exception to the hearsay rule applies, if it’s not that they are admissions, they’re simply, “No comment”, “No comment,” “No comment.”
Now, the first interview on the other hand, whilst in some respects a similar point could be made because they’re denials rather than admissions, I certainly understand that that’s been put in as a matter of fairness in accordance with my friend’s obligations to put all relevant evidence before the court, even though it’s potentially – well, it’s evidence not consistent with guilty, but, your Honour, I just think as a matter of propriety I should object to the second interview, not suggesting your Honour would read anything into the “no comments” but it just shouldn’t be in, your Honour, and it’s not admissible on my view.
MR SWAN: It’s not pressed, your Honour.
HER HONOUR: Well done. I think it’s become a habit in this jurisdiction for records of interview often to go in when, in fact, for the reasons you’ve averted to, Mr Edmonds, they’re not admissible.
MR EDMONDS: Yes.
HER HONOUR: If no objection is taken they often just end up as evidence.
MR EDMONDS: Sorry, what exhibit number was the first interview, your Honour.
HER HONOUR: I don’t know. I don’t think it’s formally been tendered yet, has it?
MR SWAN: No. So I seek to tender that first interview
EXHIBIT #11 – TRANCRIPT OF RECORD OF INTERVIEW
HER HONOUR: Thank you. I’ll read that later.
The Magistrate’s decision
After correctly acknowledging that the prosecution case was based on circumstantial evidence, the Magistrate said:
I have considered all of the evidence as a whole. I have also considered whether there is any other reasonable conclusion arising from the facts… which is inconsistent with the guilt of the defendant. I have determined that there is no such conclusion.
Ultimately the predominance of the defendant’s DNA profile as the major contributor on the underpants, the location and the circumstances in which that item of clothing was found, the theft of electronic and other personal items belonging to [HB], the evidence of the defendant’s tendency to engage in conduct which attempted to undermine the relationship between [HB] and her new partner and the absence of any other rational explanation for the presence of the underpants in [HB]’s bed are all items of circumstantial evidence which I accept and which combine to establish that the defendant was the intruder.
I am satisfied beyond reasonable doubt that it was the defendant who unlawfully entered the premises at a time when a court order was in place prohibiting him from doing so, who stole items belonging to his wife, who placed the underpants with his DNA on them in the bed and who also carefully staged the placement of the other items in the bathroom and on the bedside floor.
I am also satisfied that the complainant used the hair conditioner a day or so before 27 August 2013 without a problem and then used it the day after the burglary. The timing is such that it is highly improbable that two such incidents would happen at similar times, in the same location and for completely unrelated reasons. The irresistible inference is that the same person motivated by the same animus towards [HB] was the offender in each case.
I am satisfied beyond reasonable doubt that the defendant, being the intruder, also adulterated their hair conditioner.
….
I find each of the three offences proved beyond reasonable doubt.
The appellant’s submissions
The appellant noted that the evidence given by the forensic biologist was to the effect that a mixed DNA profile was found on the pink underpants. He submitted that there was a real possibility that “the burglar” was the unknown contributor of the minor component of the mixed DNA profile found in the underwear. With regard to the location of his DNA on the pink underpants, the appellant submitted that there were at least two reasonable hypotheses consistent with innocence arising from the evidence and which had not been excluded. These were:
(a)DNA matching the defendant’s DNA profile could have been transferred to the underwear by the unknown burglar who was the minor contributor to the DNA profile and whose DNA profile was not on the DNA database checked by the AFP. The appellant submitted that the unknown burglar may have been one of HB’s friends who was then a drug user or a person unknown to HB; or
(b)DNA matching the defendant’s DNA profile could have been transferred to the underwear by HB by means of tertiary transference, if the defendant’s DNA had been deposited onto the packaging or bags used by her to pack up her things when she moved out of their former residence at Yass in June 2013, which was then subsequently transferred by HB to the underwear when she touched it on 27 August 2013.
The appellant submitted that the tendency evidence admitted by the Magistrate was wrongly admitted. The appellant submitted that the Magistrate applied the wrong test in determining to admit the evidence. The appellant correctly identified that the probative value of the tendency evidence lay in its ability to prove that it was more likely that it was the appellant who had committed these offences than some other person. He then drew my attention to the decision of the High Court in Hughes v The Queen [2017] HCA 20; 92 ALJR 52 (Hughes) where the plurality (Kiefel CJ, Bell, Keane and Edelman JJ) said, at [39], concerning the use of tendency evidence where the issue is the identity of the offender:
…the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
In the present case, the appellant submitted, the Magistrate had found no “striking similarity” or “underlying unity” between the prior New South Wales offences committed by the appellant and the offences which occurred on 27 August 2013 so as to make it more likely that it was the same person who had committed both sets of offences. The appellant further submitted that the state of mind sought to be attributed to the appellant by the tendency evidence, namely that he was “jealous” and “angry” with the victim following the breakdown of their eight year marriage, is hardly a startling revelation or particularly probative, as many people in his position possess a similar state of mind and yet do not commit the type of offence in question. He submitted that evidence of the Yass Incident could not significantly affect the likelihood that the appellant committed the offences on 27 August 2013, as it did nothing more than raise a possible motive.
Counsel for the appellant accepted that evidence of the Yass Incident was admissible for a non-tendency purpose, namely to establish a possible motive for the appellant to have committed the offences in August 2013. He correctly submitted that if the evidence were admitted for this purpose, the provisions of s 95 of the Evidence Act 2011 (ACT) prohibited the use of that evidence as tendency evidence.
Counsel for the appellant complained about the process by which the transcript of the record of interview conducted on 26 February 2014 came into evidence. He submitted that the Magistrate had not viewed the actual video recording of the interview in which the appellant had made consistent denials of involvement in any of the alleged offences in August 2013. He said that he had not been supplied with a copy of the video. He submitted that in the absence of any inherently implausible aspects to the appellant’s “evidence” or prior inconsistent statements, it was not open to the Magistrate to reject the appellant’s “evidence in the TROI (taped record of interview)” without being able to assess his demeanour whilst making his denials to the police. In particular, counsel for the appellant placed emphasis on the fact that the appellant, in denying any involvement in the subject offences, told police that he did not have any ongoing ill will against HB and said that he had “moved on” and found a new partner. Counsel for the appellant submitted that the Magistrate, in her reasons for finding the offences proved, did not give any reason for rejecting the denials of the appellant as to his involvement in these offences which he made in the course of his interview with the police. In the absence of the Magistrate viewing the video recording, leading to an inability to assess the appellant’s demeanour when he made his denials, counsel for the appellant submitted that it was not open to the Magistrate to reject the appellant’s “evidence”, even if it was open to her to place less weight upon the same having regard to it not being sworn evidence. Accordingly, he submitted the appellant’s convictions should be quashed and the appellant acquitted.
In the alternative, he submitted, the failure of the prosecution to tender the video of the interview when it was obliged to do so caused the miscarriage of justice by denying the accused a reasonable chance of acquittal as it could not be determined that if the Magistrate had been able to assess the appellant’s demeanour in the interview she may not have rejected his evidence. A finding for the appellant on this issue, he submitted, should result in the proceedings being remitted to the Magistrates Court for rehearing. The appellant referred me to the decision of the High Court in Mahmood v Western Australia [2008] HCA 1; 232 CLR 397 (Mahmood v Western Australia) as authority for the proposition that the prosecution were obliged to tender the video recording of the interview.
Finally, counsel for the appellant submitted that there was no direct evidence to rebut the appellant’s “evidence” in his interview with the police that he did not know where HB was living in August 2013 and that he did not have any motive to commit these offences. He further submitted that it was not open to the Magistrate to reject the appellant’s “evidence” in the interview, in the absence of having viewed the video, without finding that his statements were inherently implausible or were subject to some internal inconsistency.
I will interpolate at this point to immediately correct the apparent misunderstanding on the part of counsel for the appellant that statements made by the appellant in the course of the interview with police and which were before the Magistrates Court in the form of a transcript of that interview, in some way constituted evidence given by the appellant in those proceedings. This is simply incorrect. The appellant gave no evidence in the proceedings in the Magistrates Court. The transcript contained a record of out of Court statements made by the appellant to police. It was accepted by counsel for the appellant in the proceedings in the Magistrates Court that those statements were relevant and admissible. The admission into evidence of the transcript does not, however, convert those statements into evidence given by the appellant in the proceedings before the Magistrate.
The respondent’s submissions
With regard to the appellant’s submission that the Magistrate had erred in admitting the tendency evidence, the respondent submitted that the tendencies found by the Magistrate were not simply tendencies to be jealous or angry. The respondent accepted that tendencies expressed at that level of generality could not have significant probative value. The tendencies found by the Magistrate were, the respondent submitted, much more specific and identified tendencies on the part of the appellant that went significantly beyond ordinary reactions to the breakup of a relationship. The Magistrate also determined that the probative value of the evidence substantially outweighed any prejudicial effect it may have upon the appellant, and therefore satisfied the test under s 101 of the Evidence Act 2011 (ACT). The respondent submitted that no error had been demonstrated in the reasoning process of the Magistrate in admitting the tendency evidence.
With regard to the failure of the prosecution to tender the video recording of the appellant’s interview with police on 26 February 2014, the respondent noted that the appellant did not object when the prosecutor tendered the transcript of the interview in the proceedings before the Magistrate. No submissions were made by the parties to the Magistrate about the inferences she should draw from the absence of the video recording, and no complaint was raised until the appellant now seeks to raise it for the first time on appeal. The respondent submitted that the circumstances in Mahmood v Western Australia were very different, such that one could not draw from that decision the general proposition suggested by the appellant.
Turning to the appellant’s submission that the convictions were unsafe and unsatisfactory, the respondent submitted that it was open to the Magistrate to reject the hypothesis of secondary transference based upon the evidence of Ms Schenk. The respondent also submitted that the Magistrate had clearly taken into account the contents of the interview between the appellant and police on 26 February 2014.
The respondent acknowledged that the prosecution case against the appellant was circumstantial. He submitted that the Magistrate had given herself the correct directions in relation to a circumstantial evidence case, and having considered all the evidence as a whole she found the appellant guilty. The respondent referred to the decision in The Queen v Baden-Clay [2016] HCA 35 at [47] as establishing that in such a case “the evidence is not to be looked at in a piecemeal fashion, at trial or on appeal”.
Finally, the respondent submitted that upon a review of the evidence as a whole it was open to the Magistrate to find beyond reasonable doubt that the accused was guilty of all three offences.
Consideration
I will commence by considering the second ground of appeal, alleging that the Magistrate erred in admitting tendency evidence. In my opinion this ground should be rejected.
Contrary to the submissions made by the appellant, the tendencies to have a particular state of mind or to act in a particular way were not expressed by the Magistrate at such a level of generality as to deprive them of any significant probative value. In particular, I reject the submission that the Magistrate determined that the state of mind to be attributed to the appellant was simply a tendency to be jealous or angry. I entirely agree with the determination of the Magistrate that the evidence relating to the Yass Incident demonstrated a level of jealousy of a quite extraordinary degree going beyond the normal reaction one might expect in a relationship breakdown. It is important to acknowledge that her Honour went further, and characterised the evidence relating to the Yass Incident as demonstrating an attempt by the appellant to undermine or harm the relationship between HB and Mr Williamson, and that he engaged in conduct designed to achieve this by attempting to deceive the parties in relation to the understanding of the conduct of the other. Counsel for the appellant did not, in these proceedings, cavil with her Honour’s characterisation of that conduct in these terms.
The essence of the submission made by the appellant was that in order for the evidence of the Yass Incident to be admissible as tendency evidence in order to prove that it was the accused who was the intruder into HB’s unit on 27 August 2013, there must be a “striking similarity” or “underlying unity” between the conduct of the appellant in the Yass Incident, and the conduct alleged in the offences before the Magistrate. In support of that proposition he relied upon the decision in Hughes v The Queen, cited above. The issue in Hughes was the extent to which, if at all, evidence of conduct adduced to prove a tendency is required to display features of similarity with the facts in issue before it can be assessed as having “significant probative value”. Hughes involved the provisions of the Evidence Act 1995 (NSW), but they are relevantly identical to the provisions of the Evidence Act 2011 (ACT). The appellant in Hughes was convicted of a number of sexual offences against several children. The Crown was permitted to lead tendency evidence at his trial. An appeal by the appellant Hughes to the New South Wales Court of Criminal Appeal was unsuccessful. Hughes was granted special leave to appeal to the High Court regarding the admission of the tendency evidence. After identifying the issue to be determined in the appeal in the terms set out above, the plurality said at [2]:
The issue arises in the familiar context of the trial of counts charging an accused with sexual offences against several children at which the prosecution seeks to adduce the evidence of each complainant in support of its case on each count. The issue reduces in this case to the question of whether proof that a man of mature years as a sexual interest in female children aged under 16 years (‘underage girls‘) and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value on his trial for a sexual offence involving an underage girl. The answer is that, in a case in which the complainant’s evidence of the conduct the subject of the charge is in issue, proof of that tendency may have that capacity.
In the course of their reasons, the plurality examined the decision of the Court of Appeal of Victoria in Velkoski v The Queen [2014] VSCA 121; 45 VR 680 (Velkoski). The indictment in Velkoski charged the accused with 15 counts of committing an indecent act with a child under the age of 16 and one count of attempting to commit that offence. The offences were alleged to have been committed against three complainants while they were attending a childcare centre conducted by the accused’s wife. The indecent acts alleged varied in their nature and included touching a child’s penis, encouraging a child to take hold of the accused’s penis, touching a child on the vagina and touching a child on the bottom. The admissibility of the tendency evidence was governed by the provisions of the Evidence Act 2008 (Vic), which are relevantly identical to the provisions of the Evidence Act 1995 (NSW) and the Evidence Act 2011 (ACT). At trial, the defence did not object to the reception of the tendency evidence. Upon conviction, the accused appealed and resiled from his position at trial that the tendency evidence was admissible. In setting aside the convictions and ordering a new trial, the Court of Appeal said at [3]:
[W]e have examined the principle which is applied in determining whether tendency evidence is admissible. The principle consistently applied in this Court is that the evidence must possess sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct.
Later, at [37] – [39], the plurality in Hughes said:
The Velkoski analysis proceeds upon the assumption that, regardless of the fact in issue, the probative value of tendency evidence lies in the degree of similarity of “operative features” of the act that prove the tendency. It is an analysis that treats tendency evidence as if it were confined to a tendency to perform a particular act. Depending upon the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the act which evidence it. Velkoski is illustrative.
The expression of the accused’s sexual interest in young children was not confined to soliciting them to touch his penis: he repeatedly touched one complainant’s penis and he touched other complainants on their vaginas and bottoms. Confining the tendency evidence to counts charging an occasion on which he solicited one of the complainants to touch his penis did not give the tendency evidence its relative strength. There was no reason to find that the accused was more likely to act on his sexual interest in young children by soliciting one of the complainants to touch his penis than he was to sexually molest the complainant at the day-care centre in another way. Given that the issue in each case was the occurrence of the offence, proof of the tendencies which the prosecution identified had significant probative value.
Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
(Footnotes omitted)
Hughes was not a case where the tendency evidence was adduced in order to establish the identity of the offender with regard to a known offence. Hughes was well known to the complainants, who gave evidence at his trial. The purpose of adducing the tendency evidence in Hughes was to support the proposition that the accused Hughes had acted in the way alleged by the complainants, it being significantly more likely that he would have acted in such a way if he had the tendencies alleged by the Crown.
The present case differs from Hughes in that the purpose of adducing the tendency evidence was to establish the identity of the offender; the Crown sought to prove by use of the tendency evidence that it was the appellant who was the intruder into the premises of HB on 27 August 2013 and who contaminated the hair conditioner. If one were to read out of context that portion of the reasons of the plurality in Hughes set out above, one may well conclude that in such a case the probative value of the proposed to tendency evidence, and accordingly its admissibility, is dependent upon close similarity between the conduct evidencing the tendency and the conduct alleged in the offence. As I have noted, Hughes was not an identity case and the plurality, in their dicta concerning identity cases, did not purport to address all of the circumstances which may render tendency evidence admissible in such cases.
There will be cases where it is possible to infer solely on the basis of a demonstrated tendency to act in a particular way that the person who has that tendency is the same person who committed a known offence. One might refer to these as “forensic signature” cases, because the probative value of the tendency evidence is derived from the unusual nature of the conduct evidencing the tendency coupled with the similarity of that conduct to the conduct alleged in the known offence. It is not surprising, therefore, that in order to infer from tendency evidence alone that a person is the offender with regard to a known offence, the conduct from which that inference is sought to be drawn must be unusual and bear a striking similarity to the conduct alleged in the offence.
In my opinion, the extract from the decision of the plurality in Hughes to which I have referred does not directly address circumstances where, as here, the significance of the probative value of the tendency evidence is to be assessed in the light of other evidence called by the prosecution. It is not a requirement of s 97 of the Evidence Act 2011 (ACT) that, in a criminal matter, the significance of the probative value of proposed tendency evidence is to be assessed without regard to the other evidence to be adduced by the prosecution; indeed, the opposite is the position. Section 97(1)(b) specifically requires a Court in determining whether to admit proposed tendency evidence to assess the probative value of the proposed evidence “either by itself or having regard to other evidence presented or to be presented” by the party seeking to adduce the tendency evidence.
As the Magistrate correctly acknowledged, tendency evidence is a species of circumstantial evidence. In a circumstantial case presented by the prosecution, it will frequently be the case that any particular piece of circumstantial evidence viewed in isolation will not have significant probative value. But that is not how a circumstantial case is to be assessed. In R v Hillier [2007] HCA 13; 228 CLR 618 in a joint judgment Gummow, Hayne and Crennan JJ said at [46]:
It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
(Footnotes omitted)
Earlier, in Chamberlain v R (No 2) (1984) 153 CLR 521, Gibbs CJ and Mason J had said at 535:
In a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider “the weight which is to be given to the united force of all the circumstances put together”: per Lord Cairns, in Re Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.
[…]
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.
(Footnotes omitted)
Leaving aside the tendencies found by the Magistrate, the case against the appellant rested upon the location of the appellant’s DNA on the pink underwear found in HB’s bed, together with evidence that the appellant had a motive to have committed the offences. It would not have been surprising if the Magistrate had entertained a reasonable doubt about the guilt of the appellant based upon that evidence alone. It was open to the Magistrate on the evidence before her to be satisfied that whoever the intruder was, in placing the objects suggestive of sexual activity within HB’s apartment, they were motivated by a desire to undermine by deception the relationship between HB and Mr Williamson. Once that is accepted, the significance of the tendencies found by her Honour to arise from the evidence of the Yass Incident becomes undeniable. Only weeks before 27 August 2013, the appellant had engaged in conduct directed towards undermining by deception the relationship between HB and Mr Williamson. When the fact that the appellant, close to 27 August 2013, had demonstrated the tendencies found by her Honour to arise from the evidence of the Yass Incident, is combined with the DNA evidence, and the evidence that the items stolen on 27 August 2013 all belonged to HB, the case against the appellant not only becomes significantly stronger, it becomes compelling. The evidence of the Yass Incident and the tendencies found by her Honour would not, by themselves, have significant probative value, but when considered with the other evidence adduced by the prosecution the Magistrate was correct to conclude that that evidence and those tendencies had significant probative value, and that the probative value of the evidence substantially outweighed any prejudicial effect it may have on the appellant.
It is convenient to deal with the remaining grounds of appeal, that the decision was unsafe and unsatisfactory and that the Magistrate made findings of fact not open on the evidence, together. The appellant complained that the Magistrate did not have before her a copy of the video recording of his interview with police on 26 February 2014. From this fact, he said, it followed that her Honour was unable to assess the credibility of the appellant, which in turn meant that it was not open to her Honour to dismiss the appellant’s denials of wrongdoing in the interview without evidence of internal inconsistency in his statements, or inherent implausibility. These propositions must be rejected. Counsel for the appellant consented to the tender of the transcript of the interview in the proceedings before the Magistrate. It was open to him to object to the tender and require the prosecution to produce the audiovisual recording of the interview. He did not do so, and no complaint is made by the appellant in these proceedings that this decision by counsel demonstrated incompetence. It has not been suggested that there was any legislative or other impediment upon evidence of the contents of the interview being placed before the Magistrate by way of tender of the transcript of the interview. The decision in Mahmood v Western Australia does not assist the appellant. That was a case concerning prosecutorial misbehaviour in making submissions to the jury based upon an extract of an audiovisual recording which had been tendered and in circumstances in which the Crown was aware that other portions of the audiovisual recording, which had not been tendered, undermined its submission. The decision does not stand for the proposition that the prosecution must always tender an audiovisual recording of an interview with an accused person.
The Magistrate, having received the transcript of the interview, was then required to determine, based upon all of the evidence, whether she was satisfied beyond reasonable doubt of the guilt of the appellant. Having read the transcript of the interview which was tendered in the Magistrates Court, I am satisfied that it is unlikely that the Magistrate would have been materially assisted by viewing the video recording. Much of the interview is taken up with procedural matters, and those parts directly addressing the alleged offences form a small part of the interview. The interview itself commenced at 10:11 am and concluded at 10:46 am. It was open to the Magistrate to reject the assertions of innocence made by the appellant in the interview based upon the cogency of the evidence in the prosecution case. It is clear that this is what occurred.
The remaining basis upon which the appellant submitted that the decisions were unsafe and unsatisfactory was based upon the DNA evidence. In particular, the appellant submitted that there were hypotheses as to how his DNA came to be on the pink underpants which were consistent with innocence and which had not been excluded by the evidence. The evidence of Ms Schenk was to the effect that it was possible that the appellant’s DNA came to be on the pink underpants by secondary transference. Her evidence, taken as a whole, was that while this was a possible scenario it was unlikely. The Magistrate was clearly aware of the evidence of Ms Schenk, because she specifically referred to it in her decision. As I noted earlier, this was a circumstantial evidence case and the location of the appellant’s DNA on the pink underwear was only one of the relevant circumstances before her Honour. The flaw in the appellant’s submission on this issue is that he seeks to isolate the evidence of one circumstance, being the location of his DNA on the pink underpants, and suggest that there is a hypothesis consistent with innocence with regard to that circumstance. I reiterate that this is not the correct approach to a circumstantial evidence case. All of the relevant circumstances must be considered as a whole. Doubtless, when considering all of the circumstances as a whole, the Court must consider any questions raised by the evidence about the probative value of any particular circumstance. So long as the Court bears in mind any such question when assessing the circumstantial evidence as a whole, there can be no question of error. It is apparent from the reasons for decision given by the Magistrate that she was fully aware of the evidence given by Ms Schenk regarding the possibility of secondary transference.
The ground of appeal alleging that the decisions were unsafe and unsatisfactory must fail; indeed, I am satisfied that the case against the appellant was quite compelling. It was clearly open to the Magistrate to be satisfied that an intruder entered HB’s residence on 27 August 2013, stole certain items of property belonging to HB and contaminated the bottle of hair conditioner in the bathroom with an alkaline substance. No challenge to these findings of fact was made by the appellant in these proceedings. The only rational inference was that the intruder gained entry through the broken window in the spare room, and then left through the garage. Even though Mr Williamson did not give evidence in the Magistrates Court proceedings, he may be excluded as the person who entered the premises during the day on 27 August 2013 as it would not have been necessary for him to gain entry by breaking a window. It was also an inevitable inference that the intruder who gained entry to the premises on 27 August 2013 also contaminated the bottle of hair conditioner at that time. I also note that no possible motive for Mr Williamson to have contaminated the bottle of hair conditioner has been suggested, or suggests itself. It was opened to the Magistrate to conclude that the person who entered the premises on 27 August 2013 and left the items suggesting sexual activity had occurred was not Mr Williamson. The only plausible reason for a person to have entered the premises on 27 August 2013 and to have left the items suggestive of sexual activity was to create distrust between HB and Mr Williamson, that is, to attempt to undermine by deception their relationship.
The appeal will be dismissed.
Postscript
This is another example of an appeal from a conviction, or finding of guilt, in the Magistrates Court where the appellant has not been sentenced: see Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190. I recommend to the Attorney-General that consideration be given to amending the Magistrates Court Act 1930 (ACT) to make it clear that an appeal to this Court in criminal proceedings does not lie until such time as the proceedings in the Magistrates Court are completed. The present situation allows for fragmentation of the criminal process, and for multiple appeals from the Magistrates Court to this Court in the same matter. It is also conducive to delay, as the present matter demonstrates.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 27 February 2018 |
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