Director of Public Prosecutions v Ivanisevic
[2023] ACTSC 34
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Ivanisevic |
Citation: | [2023] ACTSC 34 |
Hearing Date: | 3 March 2023 |
DecisionDate: | 3 March 2023 |
Before: | McCallum CJ |
Decision: | That the prosecution be permitted to adduce tendency evidence as notified in the notice of intention to adduce tendency evidence dated 25 January 2023. |
Catchwords: | EVIDENCE LAW – TENDENCY EVIDENCE – Criminal proceedings – tendency of accused to act in an aggressive and violent manner toward the complainant – whether the probative value of the evidence outweighs the danger of unfair prejudice to the accused – whether generality of tendency would undermine Markuleski direction |
Legislation Cited: | Evidence Act 1995 (ACT) ss 97, 101 |
Cases Cited: | Gipp v R [1998] HCA 21; 194 CLR 106 Hoyle v R [2018] ACTCA 42; 339 FCR 11 Qualtieri v R [2006] NSWCCA 95 |
Parties: | Director of Public Prosecutions Marko Ivanisevic ( Accused) |
Representation: | Counsel G Cuthel ( DPP) T Jackson ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Accused) | |
File Numbers: | SCC 272 of 2022 SCC 273 of 2022 |
McCALLUM CJ:
The accused has been committed for trial on an indictment containing nine counts alleging threatened or actual violence in the context of a domestic relationship. The indictment filed by the prosecution on 28 November 2022 includes three counts of assault occasioning actual bodily harm and one of intentionally inflicting grievous bodily harm. By application filed 27 January 2023, the Director of Public Prosecutions seeks a ruling permitting him to rely on tendency evidence. The application is opposed by the accused. This judgment provides the ruling on that application.
The application proceeded by reference to a case statement summarising the evidence the prosecutor anticipates adducing in support of the nine charges. I will provide a brief summary of that statement in order to give context to my determination of the application.
The accused is almost 60 and the complainant is just over 40. They met in mid-2020 and had a brief, intimate relationship described by the complainant as “off and on”. The relationship came to an end in mid-2021, not long after it had commenced, when the complainant entered residential rehabilitation. On New Year's Eve that year, she left the residential rehabilitation after drinking some wine and returned to the company of the accused. Thereafter, for a short period ending in mid-March 2022, the complainant and the accused were effectively in a domestic relationship in which she lived at his house and kept her possessions there.
The first incident of violence complained of by the complainant arose from an argument between her and the accused as to whether she had slept with a man who had stayed temporarily at her previous address when she was living there. The accused confronted the complainant with an allegation that she had had sex with that man while he was staying at her property. She denied the allegation. The accused is alleged to have slapped her across the face multiple times, asking her to confess to having sexual relations with that man. Ultimately, she confessed, at which point the accused is alleged to have said, “see? How hard was that? You copped a beating just for that.” It is alleged that the accused then assaulted the complainant with a drinking glass, hitting her with it on the chin and causing a laceration which produced a scar that is still visible.
Further incidents of violence, generally surrounding the accused's apparent jealousy over any previous sexual relationship between the complainant and the other man, are alleged to have occurred in late January and early February. During that time, the accused is alleged to have stabbed the complainant in the leg with a silver pocketknife while they were driving, evidently with a view to locating the other man. The complainant is alleged to have suffered stab wounds to the thigh as a result of that incident and alleges that the accused said to her when they returned home, “I can't believe I actually did that.” It is alleged that the accused did not allow the complainant to seek medical treatment. It is suggested that he may have attempted to stitch or suture the wounds himself.
At some point, the complainant persuaded the accused that they needed to visit a community health centre to obtain clean needles for their drug use. They attended the centre on 24 February 2022, when the complainant says she sought assistance from staff whilst the accused remained in the car. At that time she made a statement to police which was recorded. However, she returned to the accused four days later as she found herself with no money and having all of her possessions at his house.
The further counts on the indictment are offences alleged to have been committed in the period between 7 January 2022 and 16 March 2022. After that date, the complainant again left the accused on an occasion when he had called police to attend their premises because he wished to complain about the alleged theft of a car he was trying to sell. In short, in between that period, there were further assaults which were different in nature. It is not necessary to detail the particular kinds of allegations, having regard to the submissions I am about to consider.
The prosecution does not seek to rely on evidence of any other allegation of violence against the accused beyond those made by the complainant in the present trial, nor is it sought to rely on any additional evidence beyond what is summarised in the case statement. The scope of the application is limited to permitting the prosecution to rely on the evidence on each count alleging domestic violence as tendency evidence to support each other count.
The tendency particularised in the application in proceeding filed by the prosecution is that the accused “had a tendency to act in an aggressive and violent manner towards the complainant”. It may be accepted, as submitted by Mr Jackson on behalf of the accused, that that tendency is expressed in broad terms. However, it must be assessed in the context of other features of the offences alleged in the case statement. In short, all of the offences are alleged to have been committed against the same complainant within a relatively short period of time, mostly in the accused's house, on some occasions in his car but always, as submitted by the prosecutor, “on the accused’s territory” at a time when, according to the complainant's allegations, he was exercising a degree of coercion and control over her.
The parties both provided helpful written submissions for which the Court is grateful. As noted in the prosecution submissions, the first question the Court must consider is whether the evidence is relevant. That is not disputed in the present case. The evidence is plainly relevant.
It is necessary then to turn to s 97(1) of the Evidence Act 2011 (ACT), which provides:
The 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.
Again, helpfully, Mr Jackson's submissions addressed the requirements of that provision with a number of concessions. First, he accepted that due notice has been given, as required by s 97(1)(a). Secondly, as to s 97(1)(b), Mr Jackson submitted:
The breadth and generality of the “tendency” asserted means that the Court on the application is likely to find the test under s 97 of the Evidence Act…as being met due to the level of generality meeting the relevance test under s 55 of the Act and as such the focus of these submissions is whether or not the Applicant has discharged its onus under s 101 of the Act.
Section 101 imposes an additional hurdle in criminal proceedings. That section relevantly provides:
Further restrictions on tendency evidence and coincidence evidence presented by the 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.
The test for assessing the probative value of tendency evidence is now settled by the decision of the High Court in Hughes v the Queen [2017] HCA 20; 263 CLR 338. The majority in that case rejected the proposition that the probative value of tendency evidence lies in the “degree of similarity” of the acts that prove the tendency: at [37].
The majority explained at [41] that the assessment of whether evidence has significant probative value requires the Court to consider two “interrelated but separate” matters:
The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence.
Mr Jackson submitted that, given that the allegations in the indictment involve violent conduct towards the complainant and given the generality of the tendency specified in the tendency notice, the evidence on any one count cannot be said to have significant probative value in support of any of the other counts. He relied in that context by way of contrast on the decision of the ACT Court of Appeal in Hoyle v R [2018] ACTCA 42; 339 FCR 11 at [120], where there was a significant level of specificity in the alleged tendency.
I do not think the decision in Hoyle is of much assistance here. That was a case concerned with an alleged tendency on the part of the accused “to obtain sexual gratification from female students while alone with them in his office”. The tendency evidence was sought to prove assaults of more than one complainant and, in that context, the requirement for specificity of the tendency identified in the tendency notice was appropriate.
Where allegations are made by a single complainant, I think it is generally accepted that a tendency can be specified at a higher level of generality. Even if I am wrong about that, as I have already explained, the evidence sought to be relied upon in the present case (as foreshadowed in the Crown case statement) does have a measure of specificity, namely, that all of the offences are alleged to have occurred within a short period of time, within the context of a domestic relationship and within the context of allegations of coercive or controlling conduct.
The second point made by Mr Jackson was to invoke support from the remarks of Howie J in Qualtieri v R [2006] NSWCCA 95 at [118]:
On the other hand evidence of the relationship between the accused and the complainant that is admitted for the purposes of showing that the accused had a tendency or propensity to have sexual relations with the complainant will almost never be found in the complainant’s account of his or her relationship with the accused. That is because the complainant’s account of the relationship would rarely have sufficient probative value to overcome the precondition of admissibility for tendency evidence in s 97 and s 101.
Mr Jackson submitted that those remarks have application to the present case. I do not accept that submission. His Honour was there discussing “relationship” evidence in the context of a child sexual assault case. Such evidence, as his Honour explained, is admissible to give context in circumstances where, if a child alleged the commission of a single offence absent any prior description of the kind of conduct commonly attending such prosecutions and sometimes described as grooming, the allegation of a single offence would appear surprising. That is why relationship evidence is admitted in such cases. His Honour was explaining that such evidence will not ordinarily be admissible to prove a tendency because it will lacking the probative force required to meet the test under s 97 unless it is proved beyond reasonable doubt. In that context, Howie J cited the decision of the High Court of Australia in Gipp v R [1998] HCA 21; 194 CLR 106 at [76], where the Court imposed a requirement to prove the tendency allegation beyond reasonable doubt. That specific context explains the terms in which the principle was articulated in the passage set out above.
In the present case, the allegations against the accused are of a very different kind. Child sexual assault carries the particular characteristic that it is generally accepted that persons who show a sexual interest in children may be said to have a tendency to show a sexual interest in other children. The premise of that reasoning is that it is not normal for a person to show a sexual interest in a child. Conversely, the fact that a person had sexual intercourse with one adult female would not ordinarily be admitted as tendency evidence to prove the likelihood of his having had sexual intercourse with another adult female. These remarks are made simply to illustrate the importance of assessing the nature of the particular tendency under consideration in order to assess “the extent to which the tendency makes more likely the facts making up the charged offence”: Hughes at [41].
The third point made by Mr Jackson in his written submissions relied on the remarks in Hughes at [17] of the majority judgment where their Honours said:
The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
That discussion of the ways in which a jury may reason to the prejudice of the accused is not particularly persuasive in the present case where the tendency is, as separately observed in Mr Jackson's submissions, effectively the allegations against him on the indictment.
Fourthly, Mr Jackson submitted that to allow the evidence to be relied upon to establish a tendency in the present case would tend to undermine the Markuleski direction. If that were correct, tendency evidence could never be admitted in a case where the tendency evidence was from the complainant in the counts on the indictment. That has not been the approach taken in many cases. In my respectful opinion, whilst careful directions need to be given to mitigate that risk, I do not think the bare admission of the evidence as tendency evidence of itself undermines the Markuleski direction. The majority in Hughes may be taken to have addressed that concern at [40] in saying “where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible”.
Finally, Mr Jackson submitted that the applicant has fallen into the bare “ipse dixit” fallacy that because there are multiple allegations of violent conduct, a tendency must arise. I do not accept that submission. As I have endeavoured to explain, it is always necessary to consider the particular nature of the tendency alleged.
In my assessment, the existence of an allegation that a man has within a period of about three months committed at least nine offences of violence against his domestic partner is capable of being significantly probative on the question whether any individual assault occurred. That proposition can be tested by considering the converse argument, which is not uncommonly heard in the criminal courts, that a man is unlikely to have assaulted his domestic partner on a particular occasion because he has never done so on any other occasion.
It is a matter of human experience that some domestic relationships are attended by violence. In my view, to preclude the prosecution from relying on the evidence as tendency evidence would be to permit an unrealistic assessment of the nature of the acts. I am persuaded that the evidence has significant probative value. Further, in my assessment, its probative value outweighs the danger of unfair prejudice to the defendant, which I would assess to be small. For those reasons, my ruling is that the evidence on each count may be relied upon by the prosecution as tendency evidence in relation to each other count.
Addendum: this ruling assumes that the evidence will be as set out in the Crown case statement.
I make the following order:
(1) That the prosecution be permitted to adduce tendency evidence as notified in the notice of intention to adduce tendency evidence dated 25 January 2023.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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