Director of Public Prosecutions (ACT) v Naing
[2022] ACTSC 263
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions (ACT) v Naing |
Citation: | [2022] ACTSC 263 |
Hearing Date: | 26 August 2022 |
DecisionDate: | 29 September 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [90] |
Catchwords: . | CRIMINAL LAW – EVIDENCE – pre-trial applications – application to adduce tendency evidence – charged acts – uncharged acts – s 97A of the Evidence Act 2011 (ACT) – presumption that evidence has significant probative value – presumption rebutted – application to adduce evidence of complainant’s sexual activities |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 61 |
Cases Cited: | IMM v The Queen [2016] HCA 14; 257 CLR 300 |
Parties: | ACT Director of Public Prosecutions ( Applicant) Sithu Naing ( Respondent) |
Representation: | Counsel R Christensen SC (Applicant) S Robinson ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Applicant) Hugo Law Group ( Respondent) | |
File Number: | SCC 147 of 2022 |
LOUKAS-KARLSSON J
Introduction
The accused, Sithu Naing, is charged with four counts of an act of indecency on a person under 16 years, and two counts of sexual intercourse with a person under 16 years, contrary to ss 61(2) and 55(2) of the Crimes Act 1900 (ACT). The matter is listed for trial by jury to commence in January 2023.
The matter came before me for hearing on 26 August 2022. By way of two Applications in Proceeding, the prosecution in this matter seeks a pre-trial ruling to adduce tendency evidence in the trial of the accused pursuant to s 97 of the Evidence Act 2011 (ACT) (Evidence Act) (first application), and a pre-trial ruling to adduce evidence of “prior sexual history” pursuant to s 76(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) (second application). I note section 76 refers to “sexual activities”, not to the phrase “prior sexual history”.
On 26 August 2022 I heard these applications as well as an application to appoint an intermediary for a witness, and an application for the listing of a ground rules hearing in respect of this witness. I subsequently made those orders.
In addition, on this same date, a ground rules hearing was held in relation to the giving of evidence of the first and second complainant. Pursuant to s 4AF of the EMP Act I made orders giving directions for the giving of evidence of the first and second complainant in light of the intermediary reports and submissions of the parties regarding the recommendations contained in those reports.
During the hearing on 26 August 2022, I reserved my decision in respect of the first application concerning tendency and the second application concerning “prior sexual history”. My decision, and reasons, now follow.
Tendency Application
Pursuant to the Notice of Intention to Adduce Tendency Evidence dated 5 August 2022, the prosecution intends to adduce evidence:
(a)That the accused has a sexual interest in girls under 16 years of age (Tendency 1).
(b)That the accused has a tendency to act on that sexual interest by engaging in contact including contact of a sexual nature with girls opportunistically available to him (Tendency 2).
There are two forms of evidence that the prosecution seeks to adduce by this application which it asserts the tendency is borne out of. Firstly, the charged acts on the indictment (‘incident 3’, ‘incident 4’, and ‘incident 6’) and, second, uncharged acts (‘incident 1’, ‘incident 2’, and ‘incident 5’).
The prosecution seeks to adduce this evidence on the basis that it can be summarised as firstly, single complainant tendency ie: each individual child’s allegations are cross-admissible for tendency purposes in relation to each of the incidents the child describes; and, cross admissibility tendency ie: the evidence involving the other complainant is admissible for tendency purposes when the jury are considering each complainant’s evidence.
The specific material that the prosecution intends to adduce proving the alleged tendencies are as follows:
(a)Incident 1, Uncharged Act:
(i)Substance of the evidence: The accused touched and squeezed the first complainant’s thighs, when she was aged 10 or 11 years, while they were having dinner at the table.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: On a date unknown between 28 September 2015 and 13 May 2020, at the accused’s residence.
(b)Incident 2, Uncharged Act:
(i)Substance of the evidence: the accused engaged in contact with the first complainant when she was aged 10 to 14 years, that included the following: putting his hand on and touching her thigh, rubbing her back, hugging the child “weirdly”, holding her waist, and squeezing, grabbing and rubbing her thighs.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: on a date unknown between 28 September 2015 and 13 May 2020, at an address in the ACT.
(c)Incident 3: Charged Act:
Count 1: Act of indecency on a person [the first complainant] under 16 years
‘Brother’s room’/ ‘Hoodie’ incident
(i)Substance of the evidence: while sitting on a bed, the accused put his hand under the jumper of the first complainant, when she was aged 10 to 14 years, and touched her stomach and chest
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: on a date unknown between 28 September 2015 and 13 May 2020 at an address in the ACT.
(d)Incident 4: Charged Acts:
Counts 2, 3, 4: Act of indecency on a person [the first complainant] under 16 years
‘Couch incident’
(i)Substance of the evidence: while laying on a couch, the accused engaged in contact with the first complainant when she was aged 10 to 14 years, that included:
a.Holding the chest, stomach, buttocks and leg over her clothes
b.Moving his hand under her clothes and touching her breasts and stomach
c.Moving his hand down and touching her stomach and inner thighs
d.Moving his finger in a circular motion on the clitoris
e.Moving his fingers as if trying to put his fingers in the vagina
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: on a date unknown between 28 September 2015 and 13 May 2020 at an address in the ACT.
(e)Incident 5: Uncharged Acts: engaging in contact with the second complainant
(i)Substance of the evidence: the accused engaged in contact with the second complainant when she was aged 10 or 11 years, that included
a.Massaging her feet and rubbing his hands on her legs
b.Touching the buttocks, legs and thighs, close to the vagina
c.Particulars of the date, time, place and circumstances at or in which the conduct occurred: on a date unknown between 11 May 2020 and 28 August 2021 at an address in the ACT.
(f)Incident 6: Charged Acts: Counts 5, 6: Sexual intercourse with a person [the second complainant] between 10 and 16 years
‘After Karaoke’/’Couch incident’
(i)While laying on the couch, the accused engaged in contact with the second complainant when she was aged 10 or 11 years, that included: twice digitally penetrating the vagina, with a short interval in time between the acts of penetration during which the accused smelt his fingers
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: on a date unknown between 11 May 2020 and 28 August 2021, at an address in the ACT.
Legislation
Tendency
10. I have addressed the impact of the changes to the law concerning tendency evidence in some detail in R v QX (No 5) [2021] ACTSC 247 (QX (No 5)), with respect to the introduction of s 97A and changes to s 101. It is appropriate to set out the relevant legislation.
11. Section 97 of the Evidence Act 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 present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)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.
(2)Subsection (1)(a) does not apply if–
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict tendency evidence presented by another party.
12. Section 97A provides:
Admissibility of tendency evidence in proceedings involving child sexual offences
(1)This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97 (1) (b) and section 101 (2):
(a)tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest);
(b)tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3)Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.
(4)Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5)The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:
(a)the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act);
(b)the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;
(c)the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act;
(d)the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;
(e)the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;
(f)the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features;
(g) the level of generality of the tendency to which the tendency evidence relates.
(6) In this section:
child sexual offence—
(a)means each of the following offences (however described and regardless of when it occurred):
(i) an offence against, or arising under, a territory law involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence;
(ii) an offence against, or arising under, a territory law involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence;
(iii) an offence against, or arising under, a law of the Commonwealth, a State or a foreign country that, if committed in the Territory, would have been an offence of a kind mentioned in subparagraph (i) or (ii); but
NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).
(b)does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct
13. Further, s 101 of the Evidence Act provides as follows:
(1)This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
14. Section 101 was amended to take effect from September 2020. The crux of the s 101 amendments were first to remove the word “substantially”, and second to replace the phrase “prejudicial effect” with the phrase “unfair prejudice”: see R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 (Bauer) at [73] and QX (No 5) at [31].
Consideration
15. In Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370, Murrell CJ and Refshauge J at [47]-[48] considered how tendency evidence is likely to be relevant to proving a fact in issue:
In criminal proceedings tendency evidence is often called to show that, at the time of the alleged offence, the accused tended to think or act in a particular way that makes it more likely that he or she committed the offence because the behavioural or mental tendency of the accused conformed to the offending behaviour. Or, to put it another way, evidence may support an inference that the accused tended to behave or think in a particular way which makes it more likely that the accused did so at the time of the offence
16. In Taylor v R [2020] NSWCCA 355 Bell P, as his Honour then was, considered authorities as to the admissibility of tendency evidence. His Honour set out propositions that guide the determination of admissibility. The following propositions are relevant:
(a)The starting point is to identify with some precision what the tendering party proposes to establish by the evidence it seeks to tender, and to consider whether the proffered evidence is in fact evidence of the tendency asserted or described in the Tendency Notice;
(b)If the evidence is of the tendency propounded, the next step is to ascertain whether or not that evidence is of probative value. That expression is described in the Dictionary of the Evidence Act as meaning “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. That definition mirrors the definition of “relevant evidence” in s 55 of the Evidence Act.
(c)If the evidence is of probative value, the next question is whether the probative value of the evidence should be characterised as “significant” within the meaning of s 97 of the Evidence Act. This means, as the High Court made plain in IMM v The Queen [2016] HCA 14; 257 CLR 300, that the evidence must have a probative value extending beyond the mere fact that it is relevant;
(d)The assessment of the significance of the probative value of the evidence is to be undertaken on the assumption that the evidence will be accepted by the jury and taken at its highest.
17. Counsel for the accused did not oppose that tendency evidence be admitted in relation to the charged acts. Counsel for the accused submitted that there is not significant probative value with respect to the uncharged acts.
18. As I outlined in QX (No 5) at [71] and R v Deacon [2021] ACTSC 292 at [75]:
Following the amendments to the Evidence Act, the process for determining whether the prosecution will be permitted to adduce the tendency evidence is as follows:
(a) Establishing that the evidence is relevant pursuant to s 55 of the Evidence Act;
(b) Determining the preliminary threshold in s 97 of the Evidence Act:
(1) Whether the prosecution has provided sufficient notice: s 97(1)(a);
(2)Whether the evidence has significant probative value: s 97(1)(b). At this stage of the analysis, consideration must also be given as to whether the presumption in s 97A(2) of the Evidence Act applies in the proceeding and whether there are any sufficient grounds to rebut the presumption pursuant to ss 97A(4) and (5).
(c) If the evidence satisfies s 97 of the Evidence Act, then proceeding to determine whether the probative value of the evidence outweighs the danger of unfair prejudice to the defendant: s 101(2).
(d) Additionally, a final further step may be consideration of whether the Court should use the discretion to refuse to admit the evidence pursuant to s 135 or whether the Court must refuse to admit the evidence pursuant to s 137.
Relevance – s 55
19. The evidence is relevant pursuant to s 55 of the Evidence Act. No issue was taken by counsel for the accused as to relevance. The primary issue addressed was significant probative value.
S 97A – ‘significant probative value’
20. Relevantly in QX (No 5) at [79]-[85] I stated the following:
Prior to undertaking the analysis required by s 97(1)(b), the Court is required to determine whether the presumption in s 97A(2) applies to this matter.
Does the presumption in s 97A(2) apply?
In order for the presumption in s 97A(2) to apply to this matter, the proceeding must be concerned with whether the commission by the accused of an act that constitutes, or may constitute, a child sexual offence is a fact in issue: s 97A(1) Evidence Act.
“Child sexual offence” is defined in s 97A(6). The alleged offences in this proceeding include offences under ACT law involving sexual intercourse with a person who was a child at the time of the offence, as well as an offence of an unlawful sexual act with person who was a child at the time of the offence … The alleged offences are therefore “child sexual offences” within the meaning of s 97A(6)(a)(i) and (ii).
That the accused had a sexual interest in the complainant and was prepared to act on that sexual interest by engaging in sexual activity with the complainant for his own sexual gratification is therefore presumed to have significant probative value for the purpose of ss 97(1)(b) and 101(2): s 97A(2) Evidence Act.
Are there “sufficient grounds” for the Court to determine that the presumption in s 97A(2) does not apply: s 97A(4); Are there “exceptional circumstances” to consider the matters in s 97A(5) when determining if there are “sufficient grounds” to negate the presumption?
…
As Abadee DCJ observed in R v Brookman [2021] NSWDC 110 (R v Brookman), the first NSW first instance decision applying s 97A, at [39]:
…the accused’s sexual interest in the complainant as at the date of the offending, the expected evidence of the complainant’s about the accused’s ‘uncharged acts’, reflected in each of his witness statements, does have probative value. The salience of this in establishing sexual interest in a particular person was recognised in Bauer, even before the 2020 amendments to the Evidence Act
21. Further, in WG v R, KG v R [2020] NSWCCA 155 at [1177]-[1178], Fullerton J stated the following in relation to uncharged acts of commissioning photographs:
While the photographs did not constitute a sexual act, it was open to the jury to regard KG’s conduct in commissioning photographs of a sexualised nature as capable of showing a tendency to have a sexual interest in her children.
Ultimately, of course, whether the photographs were capable of exposing a tendency of that kind was a matter for the jury…
22. The prosecution submitted that here, the presumption in s 97A(2) applies. The proceeding is concerned with a ‘child sexual offence’, there are no exceptional circumstances, and there is not ‘sufficient grounds’ to rebut the resumption. Accordingly, the prosecution submitted that the evidence of the charged acts and the uncharged conduct have the requisite significant probative value.
23. The prosecution submitted that the uncharged acts evidence here is capable of establishing the contended tendencies and the contended tendencies then inform the fact in issue. Given the strength of how the uncharged act evidence will establish those tendencies, the prosecution submitted there is significant probative value, and this is in conjunction with the statutory presumption that there is significant probative value. The prosecution submitted that there are not sufficient grounds to rebut that presumption; that there is no basis upon which the statutory presumption is rebutted.
24. Counsel for the accused submitted that the court would be satisfied that sufficient grounds exist to find that the uncharged acts do not have significant probative value. In my view that is correct for the following reasons.
25. The uncharged acts by themselves viewed in isolation, that is viewed together but apart from the charged acts, are not, or barely, probative in demonstrating the accused's sexual interest in children. In my view, viewed in isolation the incidents do not cross the relevant threshold of significant probative value.
26. The uncharged acts only evince a sexual interest in children when viewed together with the charged acts. This contrasts with the tendency evidence adduced in QX (No 5), R v Brookman [2021] NSWDC 100, and R v RCA [2022] NTSC 6, cases which considered s 97A of the Evidence Act, and in which the tendency evidence was clearly sexual in nature.
27. When the uncharged acts are viewed together with the charged acts, the uncharged acts nevertheless remain barely probative with respect to a sexual interest in children. The difference in their respective probative value is clear. The uncharged acts are significantly less probative of both the tendency asserted and the likelihood of the charged acts having occurred than are the charged acts.
28. Removing the charged acts renders the uncharged acts as minimally probative of the tendency asserted, whereas removing the uncharged acts leaves the charged acts as significantly probative of the asserted tendency and the likelihood of the occurrence of the other charged acts. This assists in demonstrating the fact that the uncharged acts are not of significant probative value.
29. The prosecution ultimately correctly submitted that in terms of the question of admissibility, the question at this point is whether or not the evidence, if taken at its highest and accepted in the manner in which the prosecution contends it can be, amounts to significant probative value. I have taken the evidence at its highest, in context, and not in isolation in assessing the evidence.
30. Nevertheless in my view, taking the evidence at its highest as discussed above, the accused has demonstrated sufficient grounds for the purposes of s 97A(4).
31. It is clearly the case that the uncharged acts cannot be seen in isolation. These uncharged acts at their highest may be assessed as sexual in context of the charged acts. That does not end the court’s analysis as to whether the acts are significantly probative. The statutory presumption at s 97(A)(2) does not end the enquiry, as the operation of ss 97A(4) and (5) must be considered.
32. As I have stated earlier, there is a stark contrast in probative value between the uncharged acts and the charged acts. For the foregoing reasons I have determined that the proposed tendency evidence in relation to the uncharged acts does not have sufficient probative value. I am satisfied that there are sufficient grounds to do so. I note that the evidence of uncharged acts, while not available as tendency evidence, will be available as context evidence at trial. Additionally, the charged acts will be available as tendency evidence.
33. In oral submissions, counsel for the accused also submitted in relation to s 97A(5)(a) if I were to find that these uncharged acts are sexual acts, just different in nature, then the accused would face the additional hurdle of s 97A(5). If this is so, counsel submitted exceptional circumstances arise.
34. Counsel submitted in that regard that the uncharged acts are so much less probative than the charged acts. I agree.
35. In respect of counsel for the accused’s reference to tendency adduced in other cases, the prosecution submitted that it is unhelpful to compare this case to other cases. In reliance on this the prosecution drew the court’s attention to R v KQE [2022] ACTSC 69, an unpublished decision of McWilliam AJ. Paragraph 41 of that decision outlines that the reason identified must be sufficient to displace a statutory presumption, which the prosecution submitted is a high threshold post-September 2020 amendments to the Evidence Act. The prosecution therefore correctly submitted that in light of this requirement, drawing a comparison between the allegations here and what are said to be the facts of the conduct with what has occurred in other cases is not of assistance. I have taken this into account in reaching my conclusion.
36. Nevertheless, in my view in this case exceptional circumstances arise. This is for the reason that even if the acts can be said to be sexual acts in the broader context of the charged sexual acts, the avowed gulf between the nature of the uncharged and charged acts provides the basis for exceptional circumstances. This is particularly so in circumstances where the uncharged incidents are not inherently sexual in nature.
37. The sexual interest or act to which the tendency evidence relates is a sexual interest or act that only exists in context, as opposed to being a different form of a clear sexual act.
38. In conclusion, in my view, there are sufficient grounds to displace the statutory presumption in s 97A(2).
Probative value outweighed by danger of unfair prejudice
39. As I outlined in QX (No 5) at [88]-[89]:
The presumption in s 97A(2) applies to both the analysis required by s 97(1)(b), as well as s 101(2) of the Evidence Act. Therefore, the tendency evidence is presumed to have significant probative value in the exercise of determining whether the probative value outweighs the danger of unfair prejudice to the accused.
As noted by Bell P in Taylor v R [2020] NSWCCA 355 when discussing the change to s 101(2) in NSW at [122(xvii) and (xviii)]:
Prior to the 2020 amendments to s 101(2), the significant probative value of the evidence had to substantially outweigh the danger of unfair prejudice. “Substantially” is a stronger concept than “significant” as used in the expression “significant probative value” in s 97(1) of the Evidence Act. It is emphatic and places a high hurdle in the way of the admission of evidence that is not only relevant but significantly so;
Following the 2020 amendments to s 101(2) of the Evidence Act, tendency evidence cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. The amendments to s 101(2) of the Evidence Act have been regarded as reducing the height of the hurdle the Crown must overcome to secure the admission of tendency evidence.
40. In R v BC (No 3) [2020] ACTCA 49, in the context of considering the exclusion of evidence per s 101(2) of the Evidence Act, the Court noted:
In the context of s 101 [of the] Evidence Act, the prejudicial effect referred to is the danger that a jury might make improper use of the evidence
41. In relation to the uncharged acts, the prosecution submitted the following.
42. As with the charged acts, the relevant question regarding admissibility is governed by sections 97 and 97A. Because the offence is a child sexual offence matter, the question is ultimately whether the statutory presumption, that the evidence has significant probative value, has been rebutted (s 97A(4)).
43. The prosecution submitted that the uncharged conduct is not unfairly prejudicial. The evidence will be otherwise admissible in the trial and will be adduced as relationship or context evidence, as per the assessment under s 55 of the Evidence Act.
44. The prosecution referred to the case of BRC v R [2020] NSWCCA 176; 284 A Crim R 124 at [62]-[64], where Simpson AJA observed:
One difference between tendency evidence and context evidence is that while the Crown might rely on conduct the subject of other charges in proof of any count on the indictment, “context” or “relationship” evidence invariably consists of evidence of conduct attributed to the accused that is not the subject of charge — “uncharged acts” or “uncharged conduct”, much discussed in HML. The purpose of the tender and admission of “relationship” or “context” evidence, post Evidence Act, is clearly and uncontroversially explained in the directions given in that respect by the trial judge (in paragraphs [57]–[60] of the first draft of the summing up).
Tendency evidence may also consist in evidence of “uncharged acts” as well as, as in this case, of acts or conduct that are the subject of charge. In this case the Crown did not seek to rely on the uncharged acts as tendency evidence, although it could have done so. Rather, it relied on the uncharged acts only as context evidence and the “charged acts” as tendency evidence. That meant that there was a clear division between, on the one hand, the tendency evidence on which the Crown relied, and, on the other hand, the context evidence on which it also relied, each for a different purpose.
Tendency evidence, in contrast to context evidence, is tendered precisely for the purpose of proving that the accused person had a particular propensity or disposition. Therein lies the distinction between context evidence and tendency evidence.
45. The prosecution submitted that the ‘uncharged’ conduct evidence is relied upon for tendency purposes as evidence for each single complainant, and as being relevant for tendency in a cross-admissible sense. The prosecution submitted that no unfair prejudice arises from the jury utilising this evidence for tendency purposes, in addition to its admissibility on a relationship/context basis.
46. In respect of s 101, counsel for the accused submitted that there is a danger of unfair prejudice as follows:
(a)The detail of the uncharged acts is lacking. While the Court must accept that the incidents occurred, the accused is prejudiced by having very little detail about them, including when they occurred, if others were present when they occurred (except for the "dining room incident" of the first complainant), and how often they occurred. This makes defending the accusations elusive to the point of unfairness.
(b)The jury will be diverted from their task of considering the counts on the indictment by being forced to ask themselves whether the uncharged acts were in fact indecent. This will be the case even if the jury accepts the asserted tendency, given that the uncharged acts are equivocal.
47. Counsel for the accused ultimately submitted that the uncharged acts are not significantly probative, but if they are deemed to be by the operation of s 97A(2), the danger of unfair prejudice outweighs the probative value
48. In oral submissions, the prosecution submitted that the only question remaining in relation to unfair prejudice concerns the directions given to the jury, and whether these directions would be unduly complicated in light of the fact that the evidence will be adduced in the trial in any event as relationship context evidence. At T28.45, the prosecution stated the following:
The question is then is it unduly complicated such that there is the level of prejudice if the jury is also receiving a tendency direction in respect to the uncharged acts.
49. The prosecution submitted that the granting of both the prosecution’s tendency and prior sexual history applications is less complicated for the conduct of the trial and for the jury directions in this matter. The prosecution referred to QX (No 5) at [92] in this regard, where the uncharged acts were admitted as tendency evidence and were not considered a difficulty for jury directions.
50. In light of my finding above at [38] that the evidence of uncharged acts does not have significant probative value, it is strictly unnecessary to consider this question. Nevertheless it is appropriate that I state the following. Even if I were satisfied that the evidence of uncharged acts had significant probative value, I am not persuaded that “the probative value of the evidence outweighs the danger of unfair prejudice to the [accused]”. This is because, in my view, the jury may be diverted from their task of considering the counts on the indictment to the task of whether the uncharged acts were in fact indecent.
Application concerning s 76
51. By way of an application in proceeding, the prosecution seeks the following orders:
(a)That the prosecution be granted leave to adduce evidence of the sexual activity of the first complainant, namely a sexual engagement with her boyfriend
(b)Any other orders the Court considers appropriate
52. The application is sought on the following ground:
(a)The evidence has substantial relevance to the facts in issue in this trial, being evidence of complaint in a child sexual offence proceeding
(b)The questions of law to be raised are as follows:
(i)whether the evidence of the first complainant’s boyfriend is “evidence of the sexual activities of the complainant” pursuant to s76(1) of the EMP Act and
(ii)whether the evidence has substantial relevance to the facts in issue pursuant to s 78(1)(a) of the EMP Act
53. Section 76(1) provides as follows:
76 General immunity of evidence of complainant’s sexual activities
(1) Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.
54. Section 78(1) provides as follows
78 Decision to give leave under s 76
(1) The court must not give leave under section 76 unless satisfied that the evidence—
(a) has substantial relevance to the facts in issue; or
(b) is a proper matter for cross-examination about credit.
55. Subsection (4) requires:
(4) If the court gives leave under section 76, it must give written reasons for its decision.
56. The supporting affidavit outlines that on 5 March 2022, the first complainant participated in an Evidence in Chief interview with respect to the allegations against the accused. At Q/A 51, the first complainant states that she had told her boyfriend about the alleged offending by the accused.
57. On 10 March 2022, the first complainant’s boyfriend participated in an Evidence in Chief interview. He stated in the interview the following:
Q/A 11. And, um, when I would do things like – simply things, like put my hand on her thigh or something, it was things that she wasn’t comfortable with. And even though she hadn’t explained it to me yet, ah, I just – it was off bounds for her, so I didn’t do that. Ah, it wasn’t till a couple of months later that she told me her experience and why she wasn’t comfortable with those things all the time.
Q/A 17. … we were sitting on the couch and, um, we were with her family and stuff, just talking and everything, and I put my hand on her thigh, and she, like, sort of nudged it off. And I said, “are you okay?” And then she said, “I’ll talk to you about it after” … when it was in private with just us two, we sat on her bed and she just explained what had happened in the past and that it just wasn’t – there are times it just didn’t sit right with her and it reminded her of what happened. Um, and then she just asked for me to understand that if she wasn’t comfortable, to not get upset and that it wasn’t me, it was just she wasn’t comfortable at that time.
Q/A 23 and 24. … I think around June/July … it was around when [the first complainant] and I started getting sexual, I guess, and, ah, for both of us, it was the first time, and we were – we had sat down and talked about what we were comfortable with at the time …
58. The prosecution intends to lead evidence of the complaint made by the first complainant to her boyfriend as complaint evidence. The prosecution seeks to lead this evidence in its full context, including the circumstances that were occurring between the two of them that led the complainant to make the disclosure.
59. The prosecution submitted that they are seeking to lead this complaint in this context so the jury can appreciate the veracity of that complaint, of how it came about, and why the first complainant made that disclosure at that particular time. Further, it puts the disclosure in a timeline as her boyfriend described at what point of his relationship with the first complainant they began to engage in this type of activity which then led to her making the complaint.
60. The prosecution submitted that this could amount to prior sexual history and therefore requires the court’s leave pursuant to s 76(1). The prosecution noted that out of an abundance of caution, and particularly as the individuals are children under 18 years of age, the prosecution considered it appropriate that this application be brought.
61. The prosecution submitted that this application is limited to the description the first complainant’s boyfriend gives of an act such as putting his hand on her thigh and her nudging it off. The prosecution submitted that it does not go much higher than that in terms of the description of evidence that would be given. It is not, as the prosecution contrasted, an application concerned with leading a detailed sexual history between the complainant and a witness.
62. The prosecution relied on LMD v The Queen [2012] VSCA 164 as authority in respect of the admissibility of the full complaint in its context. The prosecution submitted that this case provides an example of courts being minded to admit complaint evidence in its full circumstance.
63. The prosecution compared this to a situation of complaint evidence that includes the distressed condition of a complainant or a person making a complaint.
64. The prosecution submitted that the jury are entitled to be given the full context and understanding of the complaint that is made. The prosecution submitted that this is a circumstance where the full context of the complaint is that there was a level of engagement with her boyfriend and the complaint has then arisen as it did in LMD. And it follows from that, in the prosecution’s submission, that there is substantial relevance to the facts in issue.
65. The prosecution submitted that this full context provides the timing, and that removing this context is ‘artificial’.
66. As noted by both counsel, I dealt with the legal principles and legislative regime in the context of an application to adduce evidence of a complainant’s prior sexual activities in the matter of R v QX (No 4) [2021] ACTSC 246 (QX (No 4)). The accused sought leave to cross-examine the complainant in relation to her prior sexual history.
67. I set out the following at paragraphs [15] to [24]:
Division 4.4.2 of the EMP Act provides the legislative regime governing evidence of a complainant’s sexual reputation and activities in a sexual offence proceeding. The present matter is a “sexual offence proceeding” within the meaning of s 41 of the EMP Act.
Evidence of a complainant’s sexual reputation is not admissible in a sexual offence proceeding and is subject to immunity: s 75 EMP Act.
Section 76 of the EMP Act establishes the general immunity for evidence of a complainant’s sexual activities. It provides:
76General immunity of evidence of complainant’s sexual activities
(1)Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding.
(2)Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.
An application for leave pursuant to s 76 must be made in writing. If the proceeding is before a jury, the application for leave must be made in the absence of the jury. If the accused person requests, the application must be heard in the absence of the complainant: s 77 EMP Act.
Section 78 of the EMP Act provides the procedure the Court must follow when deciding whether to grant leave pursuant to s 76:
78Decision to give leave under s 76
(1)The court must not give leave under section 76 unless satisfied that the evidence—
(a)has substantial relevance to the facts in issue; or
(b)is a proper matter for cross-examination about credit.
(2)Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition.
(3)Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence.
(4)If the court gives leave under section 76, it must give written reasons for its decision.
(5)In this section:
proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception—cross‑examination as to credibility).
The current div 4.2.2 is in substantially similar terms to former regime set out in div 4.2.4. The principles that the Court applied in respect of the now repealed 4.2.4 continue to apply in respect of the current div 4.2.2 regime: R v Sutton (No 2) [2019] ACTSC 340 at [5].
The purposes of regimes such as div 4.2.2 includes the “protect[ion] of alleged victims of sexual offences from the embarrassment and intrusion upon privacy involved in an investigation of their personal lives”: R v Byczko (No 1) (1977) 16 SASR 507 at 539, cited in R v ST (No 2) [2014] ACTSC 52 at [27] (R v ST (No 2)). Another purpose is to ensure that cross-examination is confined within appropriate boundaries to reduce the risk that “the jury might misuse the evidence”: R v TF [2018] ACTSC 13 at [33] (R v TF).
In respect of s 78(1)(a), “relevance” has the same meaning as it appears in s 55 of the Evidence Act 2011 (ACT) (Evidence Act): R v CH and JW [2010] ACTSC 75 at [44] (R v CH and JW). Section 55 of the Evidence Act provides:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to present evidence.
As to the word “substantial” in s 78(1)(a) of the EMP Act, “substantial” relevance to the facts in issue means “considerable importance”, “concerning the essentials” or “important in material terms”: W v The Queen [2006] TASSC 52; 16 Tas R 1 at [46], applied in R v ST (No 2); R v Alas (No 2) [2017] ACTSC 333 at [9].
R v CH and JW at [67] establishes that determining whether evidence is a “proper matter for cross-examination about credit” pursuant to s 78(1)(b) require the Court to ask:
(a) Could the evidence substantially affect the assessment of the credibility of the complainant? Section 78(5) EMP Act; s 103(1) Evidence Act 2011 (ACT); and
(b) Would the evidence, if accepted, be likely to substantially impair confidence in the reliability of the complainant’s evidence? Section s 78(3) EMP Act.
The application was opposed by counsel for the accused.
Counsel referred to [21] of QX (No 4):
The purposes of regimes such as div 4.2.2 includes the “protect[ion] of alleged victims of sexual offences from the embarrassment and intrusion upon privacy involved in an investigation of their personal lives”: R v Byczko (No 1) (1977) 16 SASR 507 at 539, cited in R v ST (No 2) [2014] ACTSC 52 at [27] (R v ST (No 2)). Another purpose is to ensure that cross-examination is confined within appropriate boundaries to reduce the risk that “the jury might misuse the evidence”: R v TF [2018] ACTSC 13 at [33] (R v TF)
Counsel for the accused submitted in oral and written submissions that the evidence can only be seen, firstly, to bolster the credit of the complainant, rather than as complaint evidence, and, secondly, to act as a marker in time for the complainant’s complaint to her boyfriend.
Counsel for the accused pointed to the evidence in the first complainant’s boyfriend’s evidence-in-chief interview relating to the accused being reluctant to have him touch her legs in a sexual manner as related to bolstering credit, rather than a complaint purpose. Counsel for the accused submitted that it might fall foul of the credibility rule.
Counsel for the accused submitted that it is not substantially relevant, but rather, peripheral.
Counsel also referred to QX (No 4) at [23]:
… “substantial” relevance to the facts in issue means “considerable importance”, “concerning the essentials” or “important in material terms”: W v The Queen [2006] TASSC 52; 16 Tas R 1 at [46], applied in R v ST (No 2); R v Alas (No 2) [2017] ACTSC 333 at [9].
Ultimately, counsel for the accused submitted that the central point was that the evidence of the complainant’s sexual activity is “quite peripheral” to the “essentials” to be provided, and is of limited importance in the trial, and must therefore be excluded.
In written submissions counsel for the accused submitted the following:
(a)Firstly, unlike in many cases, the evidence of sexual activity proposed to be adduced in this matter occurred approximately five years after the charged and uncharged acts;
(b)As a result, the proposed evidence is not needed to explain the charged acts or anything about the accused or complainant at the time of the charged acts. Counsel referred to the matters of R v Seneviratne [2021] ACTSC 277 and R v Ellis [2018] ACTSC 196.
(c)It is doubtful that the answers at questions 11 and 17 (in respect of the complainant’s reluctance to having her leg touched) could be adduced in any event, because, in counsel’s submission, section 102 of the Evidence Act would operate without any apparent exception to preclude its operation. Counsel noted that sections 103 and 104 do not apply here, and s 106 and 108 would not operate.
(d)With respect to the prosecution’s use of questions 17 and 23-24 as a “marker in time”, counsel for the accused submitted that the lack of substantial relevance is demonstrated by the fact that the removal of the reference to the complainant’s sexual activity would not preclude or devalue the complaint evidence given by the first complainant’s boyfriend in any event. Counsel submitted that the complainant’s sexual activity is “quite peripheral” to the complaint evidence.
Counsel for the accused further submitted that the evidence of the complainant’s sexual activity comes from the first complainant’s boyfriend and not from the complainant herself. The complainant says nothing of her relationship with her boyfriend in her interview aside from the fact that he is her boyfriend.
In reply, the prosecution correctly submitted that the evidence is not about bolstering credit, but rather, it forms part of the complaint.
The prosecution ultimately correctly submitted that it is less complicated if the prosecution is permitted to lead this evidence because there is not an attempt by the parties to artificially adduce this evidence and run the risk of evidence coming out in evidence-in-chief or in cross-examination that has been deemed inadmissible.
In response, counsel for the accused noted that that the court does not need to consider these issues in terms of determining the prior sexual history application, as the test is one of ‘substantial relevance’. Counsel noted that any issues concerning s 137 of the Evidence Act and unfair prejudice do not arise as counsel have not made an application under s 137 for exclusion of evidence at this time.
Conclusion
As stated at [60], this application was brought for an “abundance of caution” pursuant to s 76(1). I am not persuaded that the complaint evidence falls within “sexual activities” as contemplated by s 76.
The prosecution made the following oral submissions:
The Crown’s submission is that the perhaps quite – it’s certainly not an application to lead detailed sexual history, between [the first complainant] and her boyfriend. It’s limited to the description he gives on an act such as putting his hand on her thigh and her nudging it off. It doesn’t go much higher than that in terms of the description of evidence that would be given. But out of an abundance of caution, given we are talking here of teenage children under 18 years of age, the Crown considered it appropriate that this application be brought.
…
And it is sought to adduce the complaint evidence in its full context so that it’s not misunderstood by the jury the circumstances in which that complaint was made and enables the jury to fully appreciate the experience of [the first complainant] and how she came to be making that complaint to her boyfriend …
…
I had no intention of leading anything beyond the complaint that [her boyfriend] has described so whether or not [the first complainant] and [her boyfriend] engaged in actual intercourse is entirely irrelevant and not sought to be adduced
In light of the prosecution submissions set out above and the narrow purpose for which the evidence is sought as complaint evidence, the evidence in my view does not fall within s 76. The purpose for which the prosecution will lead the evidence should not and does not, as set out above, extend beyond what is necessary to enable a proper consideration of the facts in issue.
In my view on the facts in this case a touching of the thigh is not “sexual activities” as contemplated by s 76. I note that counsel for the accused conceded the complaint has substantial relevance (see T52.46) and indicated there may be a further application under s 137 closer to trial (T53.7-9).
In conclusion in my view the evidence sought to be called does not fall within s 76. Further, in my view even if arguably it did fall within s 76, it would be appropriate to grant leave on the limited basis advanced by the prosecution in oral submissions set out at [81]. The complaint evidence has substantial relevance to the facts in issue.
Factual findings
I was asked to make factual findings in relation to the descriptions of the ‘charged’ and ‘uncharged’ acts contained in the prosecution’s Notice of Intention to Adduce Tendency Evidence.
In particular, counsel for the accused pointed to the second point at ‘Incident 5’. Counsel for accused submitted that there are two possible readings of the evidence, and that this portion of the evidence may be recounting one of the charged acts (rather than an uncharged act). For my own part I am not persuaded at this stage that this is necessarily a different event.
Further, counsel submitted in relation to the first complainant’s recorded interview where she demonstrates the accused’s actions in touching her thigh at the dining table (at answers 104 and 120). Counsel for the accused submitted that what was demonstrated is not sexual in nature. Further, contrary to what is asserted in the prosecution’s tendency notice, the first complainant specifically states that the touching did not involve “squeezing” (at answer 104), and that she states at answer 18 that she had considered the behaviour of the accused to be him “just trying to be friendly.”
The prosecution fairly conceded, in oral submissions, that this incident is not inherently sexual in nature when considered in isolation (T31.5-6).
In light of my findings concerning uncharged incidents not being adduced as tendency evidence, it is neither necessary nor appropriate for me to make any factual findings. These are matters for trial.
Orders
I make the following orders:
Regarding the application to adduce tendency evidence:
The uncharged acts in respect of both complainants are not permitted to be relied upon for tendency purposes by the prosecution, particularised as Incidents 1, 2, and 5 in the Notice of Intention to Adduce Tendency Evidence dated 5 August 2022.
The charged acts in respect of both complainants are permitted to be relied upon for tendency purposes by the prosecution, particularised as Incidents 3, 4 and 6 in the Notice of Intention to Adduce Tendency Evidence dated 5 August 2022.
Regarding the application under s 76 of the EMP Act:
To the extent that leave is required, leave is granted.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rebecca Emder Date: 29 September 2022 |
0
0