Director of Public Prosecutions v Connell
[2023] ACTSC 220
•9 August 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Connell |
Citation: | [2023] ACTSC 220 |
Hearing Date: | 14 June 2023 |
DecisionDate: | 9 August 2023 |
Before: | Loukas-Karlsson J |
Decision: | (1) The prosecution is permitted to lead tendency evidence particularised as Incidents 3-10 in the Amended Notice of Intention to Adduce Tendency Evidence dated 17 May 2023. (2) The prosecution is not permitted to lead tendency evidence particularised as Incidents 1-2 in the Amended Notice of Intention to Adduce Tendency Evidence dated 17 May 2023. |
Catchwords: . | CRIMINAL LAW – EVIDENCE – pre-trial application – application to adduce tendency evidence – charged and uncharged acts – proceedings involving alleged historical child sexual offences – s 97A of the Evidence Act 2011 (ACT) – presumption that tendency evidence has significant probative value – exceptional circumstances – application refused in part |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 71, 76, 92E Evidence Act 1995 (NSW) Evidence Act 2011 (ACT) ss 97, 97A, 101, 137 |
Cases Cited: | Betasovki v The Queen [2022] NSWCCA 246 |
Parties: | ACT Director of Public Prosecutions ( Applicant) John Patrick Connell ( Respondent) |
Representation: | Counsel D Swan (Applicant) S Whybrow SC ( Respondent) |
| Solicitors ACT Director of Public Prosecution David Healey Solicitors ( Respondent) | |
File Number: | SCC 342 of 2022 |
LOUKAS-KARLSSON J
Introduction
On 9 August 2023, I made orders concerning this tendency application. At that time, I reserved my reasons. Reasons now follow.
The accused, Mr John Connell, is charged with historical child sexual offences on an indictment dated 22 February 2023, pursuant to the Crimes Act 1900 (ACT) (Crimes Act).
The matter is listed for trial by jury to commence in October 2023.
The tendency application came before me for hearing on 14 June 2023. By way of an application in proceeding, the prosecution in this matter sought 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).
The complainant with respect to all counts on the indictment is GE. The tendency evidence concerns both charged and uncharged conduct relating to both the complaint, GE, and to her sister, DM.
The application is sought on the basis that the incidents are cross-admissible for tendency purposes. I note counsel for the accused did not seek to be heard against the application for tendency evidence concerning the charged acts allegedly committed against the complainant, Incidents 3-10. Counsel for the accused opposed the admission of evidence concerning the uncharged acts against the complainant’s sister, DM, Incidents 1 and 2.
The application is supported by two affidavits of a solicitor, Ms Lee.
Tendency application
The prosecution seeks to adduce evidence of 10 incidents outlined in the Amended Notice of Intention to Adduce Tendency Evidence dated 17 May 2023. The relevant tendencies sought to be adduced are as follows:
(a)The accused had a tendency to act in a particular way, namely:
(i)To act upon his sexual interest in adolescent girls (Incidents 1-10);
(ii)To act upon his sexual interest in GE (Incidents 3-10).
(b)Tendency to have a particular state of mind:
(i)To have a sexual interest in adolescent girls (Incidents 1-10);
(ii)To have a sexual interest in GE (Incidents 3-10).
There are two forms of evidence that the prosecution seeks to adduce by this application which it asserts the tendency is borne out of. First, the charged acts on the indictment (Incidents 3, 4, 5, 6, 7, 8, and 10) and second, the uncharged acts (Incidents 1, 2, and 9).
Broadly, Incidents 1 and 2 relate to DM, the sister of the complainant, involving the offender engaging in sexual intercourse with DM when she was 16 years of age.
Incidents 3-10 relate to the complainant, GE, and traverse a period when GE was aged approximately between 12 and 15 years of age. Incident 9 is an uncharged incident.
The specific material that the prosecution intends to adduce to prove the alleged tendencies are as follows:
(a)Incident 1 (Uncharged conduct):
(i)When DM was 16 years of age, the accused took DM out for dinner before returning together to his home address. That evening, the accused engaged in penile-vaginal sexual intercourse with DM at his home. DM cried and experienced significant pain during this incident. The sexual intercourse concluded when the accused ejaculated onto her stomach. The accused was approximately 25 years of age.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between January 1983 and January 1984 at the accused’s home address, understood to be in Richardson, ACT.
(b)Incident 2 (Uncharged conduct):
(i)On another date following Incident 1, the accused engaged in penile-vaginal sexual intercourse with DM at his home address. The accused was approximately 25 years of age.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between January 1983 and January 1984 at the accused’s home address, understood to be in Richardson, ACT.
(c)Incident 3 (Counts 1 and 2):
(i)During an evening in 1982, GE was at home with her family and the accused. At the time, GE was approximately 12 years of age. The family and the accused were gathered in the family room as they watched a movie together. GE offered to make everyone cups of tea, left the family room and proceeded to the kitchen, followed by the accused.
While in the kitchen, GE was seated on the kitchen bench and the accused leant against the kitchen sink. The accused came towards GE and kissed her, putting his tongue in her mouth for approximately 30 seconds. The accused then stepped back and said words to the effect of “I’ve waited a long time to do that”.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between 23 December 1981 and 25 December 1984 in Rivett, ACT.
(d)Incident 4 (Count 1):
(i)When GE was 14 years of age, the accused took her to dinner at a restaurant in Kingston, ACT. After attending dinner, the complainant was “pretty sure” that the accused kissed her at his car, and that they later attended the cinema.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: At or around March or April 1985 in Kingston, ACT.
(e)Incident 5 (Counts 1 and 3):
(i)The accused had cooked GE dinner at his home. Following dinner, the accused started kissing GE and progressed to fondling GE’s breasts as they sat on the couch. This conduct occurred repeatedly on several further occasions over a period of several months. At all times GE was under 16 years of age.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between 23 December 1984 and 28 November 1985 at the accused’s home address, understood to be in Richardson ACT.
(f)Incident 6 (Count 1):
(i)The accused told GE in a telephone conversation that, were they to continue seeing each other, the relationship would have to progress to being a sexual relationship. GE was under the age of 16 years.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between 23 December 1984 and 30 June 1986 via telephone call where the accused and GE were at separate locations understood to both be addresses in the ACT.
(g)Incident 7 (Counts 1, 4 and 5):
(i)On the next occasion that GE and the accused met (following the phone call in Incident 6) the accused engaged in penile-vaginal sexual intercourse with GE. This was the first occasion that GE and the accused engaged in penile-vaginal sexual intercourse. GE was aged under 16 years of age.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between 1 July 1985 and 30 June 1986 at the accused’s address, understood to be in Richardson ACT.
(h)Incident 8 (Counts 1, 6 and 7):
(i)The accused acquired a soft-core pornography film on video cassette which he watched with GE. GE was under the age of 16 years.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between 1 January 1984 and 23 December 1986 at the accused’s address, understood to be in Richardson, ACT.
(i)Incident 9 (Uncharged conduct):
(i)In April 1986 the accused took GE for an overnight trip to Sydney, NSW for the purpose of attending a concert. They stayed at a hotel in the Sydney CBD and GE believes they had sexual intercourse. GE was under 16 years of age.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between 1 April 1986 and 27 and 30 April 1986 in Sydney, NSW.
(j)Incident 10 (Counts 1, 8 and 9):
(i)In about 1986, GE and the accused had been kissing and after GE had been undressed, she felt that she did not want to have sex and that she had “made it pretty clear [to the accused] that [she] wasn’t interested”. Despite this, they engaged in penile-vaginal intercourse. GE recalls silently crying as she and the accused had sex on the floor, with him on top of her, and of feeling that the accused was choosing to not read the signs that she was disinterested in having sex with him. He later dropped her home that evening. GE was under the age of 16 years.
(ii)Particulars of the date, time, place and circumstances at or in which the conduct occurred: Between 1 July 1985 and 23 December 1986 at the accused’s address, understood to be in Richardson, ACT.
Legislation
Tendency
I have dealt with the changes to the law concerning tendency evidence and ss 97A and 101 of the Evidence Act in Director of Public Prosecutions (ACT) v Naing [2022] ACTSC 263 (Naing) and R v QX (No 5) [2021] ACTSC 247 (QX (No 5)).
Relevant to this application, ss 97, 97A and 101 of the Evidence Act are set out below.
Section 97 of the Evidence Act provides:
97The tendency rule
(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.
Section 97A of the Evidence Act provides:
97A 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
Note State 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
Further, s 101 of the Evidence Act provides as follows:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(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.
As I outlined in Naing at [15]-[16]:
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.
(emphasis added)
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.
Ultimately, as properly accepted by both parties in written submissions, the prosecution may adduce evidence of the conduct of an accused to be used to prove that the accused has a tendency to act in a particular way, or to have a particular state of mind, if:
(a)The evidence of tendency is relevant: s 55;
(b)The prosecution gives reasonable notice in writing of its intention to adduce tendency evidence: s 97(1)(a);
(c)The evidence will, either by itself or having regard to other evidence adduced, have significant probative value: s 97(1)(b); and
(d)The probative value of the tendency evidence outweighs the danger of unfair prejudice to the accused: s 101(2).
Further, under s 137 of the Evidence Act, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Submissions
As stated earlier, in relation to Incidents 3-10 (concerning charged acts, and one uncharged incident, in relation to the complainant), counsel for the accused did not seek to be heard in relation to the tendency application. That is properly conceding cross-admissibility in relation to Incidents 3-10.
Counsel for the accused however objected to tendency evidence relating to Incidents 1 and 2, the uncharged conduct concerning the complainant’s sister, DM, on the basis that the tendency evidence:
(a)Taken at its highest, it is not relevant to or probative of any fact in issue in the trial, and therefore is inadmissible pursuant to s 55;
(b)Is not relevant to establishing any tendency relevant to a fact in issue;
(c)There are exceptional circumstances justifying a determination that the tendency evidence does not have significant probative value pursuant to s 97A(4); and
(d)The court must refuse to admit the evidence because its probative value is outweighed by the danger of unfair prejudice to the accused, pursuant to s 137.
Relevance
The prosecution submitted that the contended tendencies, if established, are readily capable of informing the ultimate fact in issue and are thus relevant. The prosecution submitted that if the jury accepted that one or more incidents occurred, which demonstrated the asserted tendencies, then those tendencies could inform the ultimate fact in issue in this matter; namely, whether the accused committed the offences alleged.
Notice
Further, the prosecution submitted that the requirement for reasonable notice is established. This is clearly so.
Significant probative value
Counsel for the accused submitted that all counts on the indictment are properly characterised as child sexual offences and therefore s 97A of the Evidence Act is enlivened.
The prosecution submitted that the s 97A presumption applies with respect to all incidents (1-10), including the uncharged acts concerning the complainant’s sister. Specifically, that it is presumed that the tendency evidence that the accused has a sexual interest in ‘adolescent girls’, and acted upon that sexual interest, will have significant probative value.
Section 97A(2) provides that tendency evidence that an accused had, or has, a sexual interest in children (even if not acted upon), and tendency evidence about the accused acting on a sexual interest that the accused had, or has, in children will have significant probative value.
The prosecution submitted that this presumption of significant probative value applies as s 97A is enlivened with respect to all incidents. Conversely, as stated earlier, the accused submitted it does not apply to the incidents concerning the complainant’s sister (Incidents 1 and 2).
There is no requirement that the similarity between the alleged incidents is “striking”. See Betasovki v The Queen [2022] NSWCCA 246 at [93]:
It is not necessary that the common features be capable of being described as “striking”. What is needed is a sufficient link between the distinct events as to mean that one piece of conduct has significant probative value as regards another. That link need not be peculiar.
In TL v The King [2022] HCA 35; 405 ALR 578 the High Court unanimously held that there is no general rule that tendency evidence must be closely similar to the charged act. Rather, the focus is on whether the evidence supports the tendency and the extent to which the tendency makes the facts sought to be proved more likely.
The prosecution submitted that all incidents alleged are sexualised in nature and occur over a defined period, being approximately between 1982 and 1985. During those years, the accused was aged between 24 and 27 years of age.
The prosecution emphasised that the complainant and DM were sisters in the same family with whom the accused had a close and trusted relationship. Further, both were properly described as being adolescent when the accused expressed and acted upon his sexual interest in them, and each were “courted” by the accused. The prosecution submitted that, save for Incident 3, the accused acted upon his sexual interest after having first taken each adolescent girl out unaccompanied for dinner or another social activity.
With respect to Incidents 3-10, the prosecution submitted that these incidents speak to the accused having an abiding sexual interest in the complainant specifically. At all relevant times, the complainant was a child between the ages of 12 and 15 years.
Probative value vs unfair prejudice
Unfair prejudice refers to the danger of evidence being misused, as opposed to evidence merely making it more likely that the accused would be convicted: see Papakosmos v The Queen [1999] HCA 37; 196 CLR 297at [91]-[92]; R v BC (No 3) [2020] ACTCA 49 at [32].
In carrying out the balancing exercise required under s 101(2) of the Evidence Act, the Court must consider and have regard to mitigating actions which may be available to the Court, such as the making of appropriate directions to address risk: R v Thompson [2014] ACTSC 276 per Murrell CJ at [11]; R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 per Beazley JA at [32].
The prosecution submitted that the probative value of the evidence outweighs any danger of unfair prejudice.
Further, the prosecution submitted that there is minimal danger that the jury would misuse the tendency evidence or use it in an irrational, emotional or improper manner. The prosecution submitted that prejudice is more likely to arise if evidence of acts constituting a more serious offence is led as tendency evidence to support a less serious crime. In this instance it is not alleged that Incidents 1-2 constitute a criminal offence. With respect to Incidents 3-10, these all relate to either individual or more than one count on the indictment. The only uncharged criminal conduct is Incident 9 and this incident does not disclose a more serious offence than those the accused faces on the indictment.
Accused submissions concerning Incidents 1-2 and the operation of s 97A and s 101
Counsel for the accused submitted that the relevant fact in issue in the proceedings is whether the accused, in respect of each count, engaged in sexual activity with a child under the age of 16 years of age. In relation to the counts, the complainant is alleged to have been between 12 and 15 years of age.
Counsel for the accused referred to the following excerpts from the NSW Attorney General when introducing the relevantly identical amendments to the Evidence Act 1995 (NSW), extracted from my remarks in QX (No 5):
…
The royal commission noted that child sexual offences are "generally committed in private and with no eyewitnesses [and] no medical or scientific evidence capable of confirming the abuse". The royal commission also noted:
Where the only evidence of child sexual abuse is the complainant's evidence, it can be difficult for the jury to be satisfied beyond reasonable doubt that the alleged offence occurred. The jury is effectively considering a "word against word" case.
In these cases, evidence of other allegations—or convictions—of child sexual abuse perpetrated by the accused person can be valuable evidence to assist the trier of fact to determine whether it is more likely that the alleged offence or offences occurred, as the allegation is supported by evidence from other complainants or witnesses who say that the accused also sexually abused them. This evidence can also provide crucial support for the complainant's credibility or reliability.
Counsel for the accused referred to the approach I adopted in Naing at [18], 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.
Broadly as to relevance, as discussed earlier at [23], counsel for the accused accepted the prosecution submissions as to relevance concerning Incidents 3-10, however contends that the prosecution' submission that the accused has a sexual interest in ‘adolescent’ girls has no relevance to whether or not the accused committed the offences on the indictment, unless ‘adolescent’ is taken to be girls under the age of 16 years.
The evidence of Incidents 1-2, counsel for the accused submitted, establish that the accused engaged in lawful sexual activity with a person over the age of 16, being the complainant’s sister. It would also establish that this conduct occurred in circumstances where the accused had known the complainant’s sister since the age of around 10-12 years; had been taking her out by herself from age 15; notwithstanding opportunities to do so, he did not "lay a hand on her” before she turned 16.
Counsel for the accused submitted that the evidence sought to be led does “no more than (at its highest) establish that the accused did not commit a child sex offence in circumstances said to be similar to those pertaining to the counts on the indictment.”
Consideration
The first issue is relevance.
In my view, the proposed evidence of tendency concerning Incidents 1 and 2 is relevant. I have formed the view, in accordance with s 55 of the Evidence Act, that the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.
Nevertheless, I have formed the view that the proposed evidence of tendency should not be admitted for the following reasons.
The evidence does not pass the next stage of the test concerning significant probative value.
In accordance with section 97A(5) of the Evidence Act, I consider that there are exceptional circumstances that displace the presumption of significant probative value.
The prosecution has sought to lead evidence of lawful sexual activity with a person over the age of 16 to establish that the accused engaged in unlawful sexual offences with another person who was under the age of 16.
The exceptional circumstance is that the evidence sought to be adduced as tendency evidence is not evidence concerning a child under 16.
The critical issue at the trial will be whether the accused engaged in unlawful sexual activity with a child under the age of 16. The allegations concern a time period commencing when the complainant was aged approximately 12 years and continuing to age 14 or 15.
It was conceded by the prosecution that it is not alleged that Incidents 1 and 2 constitute a criminal offence.
For the purposes of s 101, in my view, there is a high degree of danger of unfairness were such evidence admitted.
This is not a case where I have formed the view that suitable directions could ameliorate the unfair prejudice. I have formed the contrary view. The use of evidence of lawful sexual activity in the specific circumstances of this case would create a real danger of unfair prejudice. Directions to the jury would likely serve to confuse and obfuscate, rather than illuminate, important distinctions in the law; that is, between legal and illegal sexual activity.
In conclusion, as outlined above, the exceptional circumstance in this case is that the evidence in question is not unlawful sexual activity. It is not characterised as such by the prosecution. It is lawful. Nevertheless, it is sought to be called by the prosecution in aid of proving unlawful sexual activity.
Despite the broad nature of the deeming, that is legislated for under s 97A of the Evidence Act, the legislation does not stretch to the facts of this case.
There is a divide between unlawful and lawful sexual activity that cannot be lost sight of in determining an application for tendency evidence. It is a distinction that cannot be avoided.
The prosecution application in this regard in respect of Incident 1 and 2 will be dismissed.
In light of my reasons for decision, it is not necessary to determine the further issue canvassed in oral and written submissions by both counsel. That further issue concerned the relationship between s 97A and s 137 of the Evidence Act.
Additionally, I note my previous remarks in QX (No 5) at [9]:
… [I]n HML v The Queen [2008] HCA 16; 235 CLR 334 (HML v The Queen), three High Court Justices expressed reservation about the use of the phrase “uncharged acts” (Hayne J at [129]; Crennan J at [399] and Kiefel J at [492]). However, the High Court has since then used the phrase “uncharged acts” in subsequent cases: Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes v The Queen); R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 (R v Bauer). It appears the reservation surrounding the phrase was its use by a trial judge in directing a jury about tendency evidence, as it may convey to a jury “a view, on the part of the judge, that [the uncharged acts] were proper subjects for charges”: HML v The Queen at [492].
Consistent with my approach in QX (No 5), and as this Court is self-evidently not at the stage of directing a jury, I have adopted the phrase “uncharged acts” throughout this judgment in line with submissions made by the parties and recent High Court case law. The injunction against the use of the phrase “uncharged acts” is a matter that will have to be borne in mind in relation to directions to the jury when that time arises.
Orders
For these reasons, I made the following orders on 9 August 2023:
(1) The prosecution is permitted to lead tendency evidence particularised as Incidents 3-10 in the Amended Notice of Intention to Adduce Tendency Evidence dated 17 May 2023, concerning the complainant, GE.
(2) The prosecution is not permitted to lead tendency evidence particularised as Incidents 1-2 in the Amended Notice of Intention to Adduce Tendency Evidence dated 17 May 2023, concerning DM.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: |
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