Director of Public Prosecutions v Murphy
[2023] ACTSC 4
•16 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Murphy |
Citation: | [2023] ACTSC 4 |
Hearing Date: | 18 October 2022 |
Submissions Last Received: | 10 November 2022 |
Decision Date: | 16 December 2022 |
Reasons Date: | 20 January 2023 |
Before: | Loukas-Karlsson J |
Decision: | See [67]-[68] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – charged and uncharged conduct – cross-admissibility of tendency evidence – significant probative value – whether probative value of evidence outweighs danger of unfair prejudice – severing of indictment |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 61, 264 |
Cases Cited: | BC v The Queen [2019] NSWCCA 111 |
Texts Cited: | Australian Law Reform Commission Uniform Evidence Law (Report No 102, 2005) |
Parties: | Shay Kahu Murphy (Applicant) ACT Director of Public Prosecutions |
Representation: | Counsel A Williamson ( Applicant) J Maher (Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Applicant) Fortify Legal ( Respondent) | |
File Numbers: | SCC 92 and 93 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․The accused, Shay Kahu Murphy, is charged with 19 counts against four complainants in one indictment. All four complainants are previous intimate partners of the accused. It is appropriate that the complainants not be referred to by name, in light of the fact that some of the charges involve sexual allegations.
(a)Counts 1–9: nine offences against the first complainant in the period between 31 August 2011 and 1 March 2012.
(i)Count 1: CC2022/1149 – Unlawful confinement. The maximum penalty for this offence is 10 years’ imprisonment.
(ii)Count 2: CC2022/1147 – Unlawful confinement.
(iii)Count 3 (C2022/1150): Negligently causing grievous bodily harm. The maximum penalty for this offence is 5 years’ imprisonment.
(iv)Count 4 (alternative to Count 3): Recklessly inflict actual bodily harm. The maximum penalty for this offence is 5 years’ imprisonment.
(v)Count 5 (CC2022/1151): Intentionally inflict grievous bodily harm. The maximum penalty for this offence is 20 years’ imprisonment.
(vi)Count 6 (alternative to Count 5): Recklessly inflict actual bodily harm.
(vii)Count 7 (CC2022/1152): Negligently causing grievous bodily harm.
(viii)Count 8 (alternative to Count 7): Recklessly inflict actual bodily harm.
(ix)Count 9 (CC2022/1153): Sexual intercourse without consent. The maximum penalty for this offence is 12 years’ imprisonment.
There are two transferred charges of common assault against the first complainant from the same period (CC2022/1148 and CC2022/1146).
(b)Counts 10–17: offences against the second complainant in the period 1 August 2012 to 30 November 2018.
(i)Count 10: Assault occasioning actual bodily harm. The maximum penalty for this offence is 5 years’ imprisonment.
(ii)Count 11 (CC2021/11053): Act of indecency without consent. The maximum penalty for this offence is seven years’ imprisonment.
(iii)Count 12 (CC2021/11054): Assault occasioning actual bodily harm.
(iv)Count 13: Choke, suffocate or strangle. The maximum penalty for this offence is five years’ imprisonment.
(v)Count 14 (CC2021/11056): Choke, suffocate or strangle so as to render insensible. The maximum penalty for this offence is ten years’ imprisonment.
(vi)Count 15 (CC2021/11057): Sexual intercourse without consent.
There are four transferred charges of common assault against the second complainant and one of property damage from the same period (CC2021/11049, CC2021/11050, CC2021/11051, CC2021/11052, and CC2021/11058).
(c)Count 18: an offence of choking against the third complainant on 1 September 2019. There are seven transferred charges of common assault against the third complainant and three property damage charges (CC2021/11190, CC2021/8853, CC2021/11193, CC2021/11194, CC2021/11195, CC2021/11196, CC2021/11197, CC2021/11198, CC2021/11199, CC2021/11200). I note the property damage charges involving the second and third complainants are not the subject of the tendency application.
(d)Count 19 (CC2022/310): an offence of assault occasioning actual bodily harm against the fourth complainant on 7 November 2021.
2․The matter is listed for trial to commence on 30 January 2023.
3․The matter came before me for hearing on 18 October 2022. 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).
4․After the hearing on 18 October 2022, I reserved my decision. Orders were made on 16 December 2022 with reasons reserved. The reasons now follow.
Tendency application
5․The applicant (who I will refer to as the prosecution for the sake of convenience and to forestall unnecessary complexity) seeks that the prosecution be permitted to lead tendency evidence as relevant to each charge.
6․The tendencies sought to be established, and relied upon as relevant to the facts in issue in the matter, are as follows:
(a)To use physical force or violence against his intimate partners;
(b)To push his intimate partners forcefully, or to throw or hold his partners to the ground;
(c)To use physical force against his intimate partners in a way that restricted their freedom of movement.
7․At the hearing, the prosecution stated that primary reliance is upon the first aspect of the tendency – that is, the tendency to use physical force or violence against his intimate partners. It was further submitted that if the first aspect of the tendency is allowed, then the prosecution would not press for the other two tendencies (T23.26-27).
8․The application to adduce tendency evidence is brought pursuant to s 97 of the Evidence Act and involves evidence of the allegations that are contained in the indictment along with transferred charges (the “charged” acts). Further, there are two allegations of “uncharged conduct”. The application is put on the basis that each charged act is cross-admissible and that the uncharged conduct is also relevant to the proof of each charged act.
Legislation
Tendency
9․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; 292 A Crim R 193, with respect to the introduction of s 97A and changes to s 101.
10․The law concerning the admissibility of tendency evidence has changed following the commencement of the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) on 1 September 2020. These amendments reflect the ACT Legislative Assembly’s intention to implement the recommendations of the Royal Commission into Institutional Responses to Child Sexual Assault as they relate to tendency and coincidence evidence.
11․The Royal Commission stated:
In the Consultation Paper, we noted that the concerns of the courts have been stated repeatedly for so long, and in such strong terms, that it may seem difficult to question them. They may take on the air of incontrovertible truth by their widespread acceptance and repetition throughout common law jurisdictions.
However, even without undertaking empirical research such as the Jury Reasoning Research we commissioned, we stated that there may be reasons to doubt at least the strength, and possibly also the veracity, of the concerns.
12․One of the considerations that led the Royal Commission to reject many of the ‘orthodox’ judicial assumptions about tendency evidence was the jury research that had been undertaken.
13․The Royal Commission considered similar provisions in other countries. It focused heavily on the provisions of the Criminal Justice Act 2003 (UK) which set a lower threshold for the admission of tendency and coincidence evidence than most Australian jurisdictions.
14․Ultimately, the Royal Commission reached the following conclusions:
We are satisfied that the current law needs to change to facilitate more admissibility and cross-admissibility of tendency and coincidence evidence and more joint trials in child sexual abuse matters…
Fundamentally, we consider that the law in this area has become unnecessarily complicated and unfairly protective of the accused. The common law and various statutory provisions have developed to exclude relevant evidence, and the tests for admissibility have developed in ways that give the accused unwarranted protection against the possibility of conviction, resulting in injustice to complainants and the community.
15․As a result of the amending Act, the bar for the admission of tendency evidence has been lowered.
The reforms
16․The reforms as to the admission of tendency evidence come in two parts. The first reform relates to s 97A and the admissibility of tendency evidence in proceedings involving child sexual offences and is not relevant for the current application.
17․The second reform is concerned with the balancing test in s 101 of the Evidence Act and s 101 has been amended to remove the word substantial. As such, it is now only necessary that the probative value of the evidence outweighs the danger of unfair prejudice.
Section 101
18․Relevantly, s 101(2) of the Evidence Act, as amended, provides:
…
(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.
…
19․Accordingly, as discussed above, there is no longer a requirement that the probative value of tendency or coincidence evidence “substantially” outweigh the danger of unfair prejudice to the defendant. The omission of the word “substantially” alters the test for admissibility.
20․The amendment to s 101 implements the Uniform Evidence Law (Tendency and Coincidence) Model Provisions 2019 developed by the Council of Attorneys-General working group relating to tendency and coincidence evidence. The model provision in turn reflects the conclusions of the Royal Commission. In particular, the Royal Commission concluded that the risk of unfair prejudice arising from tendency and coincidence evidence has been overstated.
21․The Royal Commission further concluded that the test in s 101(2) was unjustifiably skewed towards the exclusion of tendency and coincidence evidence:
... [W]e do not accept the current unequal weighting of the test in favour of exclusion. That is, it is not clear why the probative value of the evidence should be required to 'substantially outweigh' the risk of unfair prejudice. We agree with Professor Hamer's submission in response to the Consultation Paper in this regard, that:
The asymmetry in s 101, skewing the test towards exclusion, appears unjustifiable. The test can be viewed as a cost/benefit assessment where the evidence will be rejected even where the benefit (probative value) outweighs the cost (prejudicial risk). The asymmetry displays a conservative respect for what was 'one of the most deeply rooted and jealously guarded principles of our criminal law (Maxwell v DPP [1935] AC 309, 317). This conservatism appears unjustified.
22․Counsel for the accused correctly accepted that the amendment, through the removal of the word “substantially” from s 101(2), has been regarded as reducing the threshold or the height of the hurdle the prosecution must overcome.
Hearing 18 October and further submissions
23․After the hearing on 18 October, at the request of the Court, the parties filed further written submissions; firstly, concerning the High Court decision in TL v The King [2022] HCA 35; 405 ALR 578 (TL) delivered the next day on 19 October 2022 and, secondly, concerning the potential severance of the indictment.
24․In TL the High Court unanimously dismissed an appeal against a decision of the NSW Court of Appeal upholding the trial judge’s decision to admit into evidence two categories of tendency evidence. The appellant was on trial for the murder of his young stepdaughter. The prosecution sought to admit tendency evidence relating to burns the victim had sustained 10 days prior to her murder and hearsay complaint evidence from relatives that the offender had caused bruising and previously hit the victim. The tendency that the prosecution sought to advance was that the appellant had a tendency to “deliberately inflict physical harm on a child”. Counsel for the accused had argued at trial that the alleged tendency evidence was not sufficiently similar to the charged conduct (murder occasioned by blunt force trauma to the abdomen).
25․The High Court in TL 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.
Consideration
Probative value
26․It is to be noted that the facts and the issues that fell to be determined in TL were different to those in the matter before me. TL involved the murder of a child. The child died as a result of blunt force trauma administered to the abdomen. The primary issue at trial was identification. The prosecution case was that the offender was responsible for the murder. The accused suggested that the prosecution could not negate the reasonable possibility that the murderer was one of two other people.
27․The prosecution case in TL relied, in part, on tendency evidence involving a previous incident where the victim had been burned in a bathtub two weeks earlier, and evidence of complaint made by the victim in relation to the victim being punched by the appellant, and causing a bruise to the victim.
28․The High Court unanimously found that the tendency evidence was admissible. The High Court identified at [37] three key considerations leading the court to conclude that the evidence was of significant probative value, namely:
(a)A tendency to deliberately and violently inflict serious physical harm on the victim concerned acts directed to a single person, suggesting hostility on the part of the accused towards the victim;
(b)That tendency to deliberately harm a very young defenceless child is abnormal and unlikely to be shared by the others who were posited as the potential cause of the fatal injuries; and
(c)The probative value of the evidence was increased by the close proximity in time between the murder and the tendency incidents, all of which occurred in the space of about one month.
29․Unlike TL, the issue in the matter before me is whether the offending occurred at all. Identity is not in issue.
30․In TL the High Court reiterated a number of points of general principle. Importantly, the High Court noted:
(a)The assessment of probative value requires that the possible use to which the evidence might be put be taken at its highest;
(b)There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence;
(c)Similarity is relevant to, but not determinative of, probative value;
(d)Universal rules are to be avoided, as the relevant facts are determinative in tendency cases.
31․Importantly, the prosecution noted that in TL there was no striking or strong similarity between mechanics of the blows to the abdomen constituting the murder, and the conduct constituting the tendency evidence. Indeed, there were significant differences in the conduct involved in the murder and the tendency incidents. The probative value of the evidence derived, in part, from the circumstances in which the murder and the tendency incidents occurred. That is to say, there was similarity in the alleged circumstances in that they all involved alleged acts of violence against the one victim, involving the deliberate infliction of harm.
32․The assessment of the probative value in the case before me includes a consideration of the following factors:
(a)There is similarity in the circumstances in which the alleged offending occurred. All the incidents involve physical harm against an intimate partner in the context of their relationship. Most of the incidents occurred in the context of an argument where the accused was paranoid about the complainant having an interest in other men, or feeling aggrieved that the complainant had given too much attention to friends or family;
(b)The number of incidents;
(c)The relatively close proximity in time in which the incidents occurred. With the exception of a four year pause in offending, the alleged offending occurred, on average, every six months over a 10-year period;
(d)The fact that there are four separate complainants, with complaint witnesses relating to each complainant, and the availability of medical evidence corroborating the accounts of the complainants with respect to a number of the counts.
33․Further, it is useful at this juncture to also consider the NSW decision of Taylor v R [2020] NSWCCA 355 (Taylor).
34․In Taylor, the appellant was charged with a number of domestic violence offences against the complainant. The appeal concerned the ninth count on the indictment, which involved the proposition that the appellant gained external access to the balcony of the complainant’s apartment on the fourth floor of a five story apartment block, despite the trial judge’s observation that this was inexplicable. In support of Counts 1-10, the prosecution relied upon tendency evidence (an agreed Statement of Facts regarding a separate charge against the appellant involving his partner in 2008). Included were statements concerning the history of domestic violence throughout their marriage, circumstances where the appellant was verbally aggressive to his wife, and detailing a violent assault by the appellant against his partner. The relevant ground of appeal concerned whether evidence in relation to the 2008 incident ought to have been admitted as tendency evidence. While the appeal was successful in part, on the first ground that the verdict was unreasonable, it was unsuccessful on the second ground (tendency). As to ground 2, the majority found that the tendency evidence had significant probative value, which “substantially outweighed” (as was the test at the time) its prejudicial effect. Bell P, as his Honour then was, in dissent, found that the tendency evidence was not of significant probative value. Additionally, his Honour considered authorities as to the admissibility of tendency evidence and his Honour usefully summarised a number of propositions that guide the determination of admissibility at [122].
35․His Honour found that the tendency evidence relied upon did not have significant probative value because the conduct occurred in very different circumstances to the conduct the subject of the charges; the passage of time between the events the subject of the tendency evidence and the matters charged (being about 10 years); and the relative generality with which the tendency was formulated: see [123]-[127] of the judgment. See also R v Joiner [2002] NSWCCA 354; 133 A Crim R 90.
36․The prosecution submitted that it would be a “highly incongruous” result if the application were refused in this matter compared with Taylor. I note that in Taylor, Bell P was in dissent as to the result.
37․In my view it is clear that there is, undeniably, probative value in the tendency evidence sought to be adduced by the prosecution for the reasons outlined at [32] above. The similarity in circumstances is clear. The questions that now fall to be considered are twofold:
(a)The question of significant probative value; and
(b)The operation of s 101 and potential severance.
Significant probative value
38․I underline at the outset the observation of Beech-Jones J in Taylor at [146], that a consideration of tendency evidence is fact specific and the admission of tendency evidence in one matter cannot be determinative of whether it is or isn’t admissible in another matter.
39․In TL, the High Court made the following general observations about the admissibility of tendency evidence at [29]:
There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of "significant probative value". That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact or facts in issue. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning. Put in different terms, that is why tendency evidence must have significant probative value. Otherwise, s 97 is reduced to relevance, which is addressed in s 55.
(omitting footnotes and emphasis added)
40․Of course, the primary issue in TL was identity and the evidence was significantly probative because, when considered with other evidence, it was capable of being important to a conclusion that the appellant was the perpetrator.
41․Identity is not in issue in the present matter because the accused was known to each of the complainants. Rather, the issue is whether the alleged offences occurred either at all or as alleged by the complainants.
42․Counsel for the accused submitted that the prosecution is driven to generalise the alleged tendencies because of the difficulties of finding a specific tendency from the evidence; and, further, that the level of generality involved deprives the evidence of significant probative value and the wide range of incidents relied on say nothing particular about the offender’s behaviour.
43․In determining that the tendency evidence had significant probative value in Taylor, Beech-Jones J considered it significant that rather than being a tendency to be violent to women generally, of its nature the asserted tendency manifested if, and when, the relationship came under stress or broke down.
44․In TheQueen v Bauer [2018] HCA 40; 266 CLR 56 (Bauer), the High Court stated at [58] that in multiple complainant cases, the logic of probability reasoning dictates that, for evidence of offending against one complainant to be significantly probative of offending against another, there must ordinarily be some feature of or about the offending which links the two together and the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant.
45․The case before me involves multiple complainants. In my view the fact that the accused has committed acts of physical force or violence in the context of an intimate relationship against one complainant is significantly probative of him having committed an offence against another complainant. There are significant “similarities in the circumstances” that link the offending as discussed at [32]. I am satisfied that there is significant probative value for the reason of the significant similarities in the circumstances.
46․The counts on the indictment concerning the first and second complainants both allege multiple charges involving violence. Importantly, the counts concerning the first and second complainants also include counts of sexual intercourse without consent. On the other hand, the counts concerning the third and fourth complainants concern matters of violence alone. There are no charges involving sexual intercourse without consent. Further, concerning the fourth complainant there is a sole count on the indictment charging Assault Occasioning Actual Bodily Harm. There is also only one count in relation to the third complainant. It should be noted that there are also a number of transferred charges including common assault and property damage that do not involve sexual allegations concerning the third complainant.
47․I have found that the tendency evidence is of significant probative value. Nevertheless, the difference in the nature of the allegations as between the first and second complainants on the one hand, and the third and fourth complainants on the other, is a matter that must be addressed when considering s 101 and potential severance.
Section 101 and potential severance
48․It is useful to state the previous general position at common law. In Harriman v the Queen (1989) 167 CLR 590 at 593-594, Brennan J stated that such evidence is inadmissible at common law “unless the probative force of the evidence clearly transcends the merely prejudicial effect of showing that the accused has committed other offences” (emphasis added). The majority in Pfennig v The Queen (1995) 182 CLR 461 posited a more restrictive rule of admissibility: no reasonable explanation other than inculpation.
49․Relevantly, s 101 provides the following:
…
(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.
…
50․Prejudicial effect is often inevitable: see BC v The Queen [2019] NSWCCA 111 (BC) at [96]: “the inevitable emotional response to the evidence”.
51․The Australian Law Reform Commission underlined the potential danger of unfair prejudice: see ALRC 102 [3.18]. The dangers include firstly, that the jury may be influenced to convict as punishment for conduct other than that charged (see R v Harker [2004] NSWCCA 427). Secondly, that juries may overestimate the probative value of the evidence, and may too readily accept other prosecution evidence adduced to prove guilt. Further, that juries may be distracted from the central issues in the trial. See also Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [17].
52․In R v GAC [2007] NSWCCA 315; 178 A Crim R 408, the danger was stated to be that “the jury might reason no more rationally than that, if the respondent molested [two other persons], he did the same to the complainant, and that emotion not rationality would govern”.
53․I note the number of other incidents relied upon to show tendency may generate unfairness: see R v Teys [2001] ACTSC 29; 119 A Crim R 398. On the other hand, the High Court in Bauer concluded in that case at [74] that “[t]he jury were most unlikely to have been overwhelmed by the nature and number of allegations”.
54․The Court in Bauer further stated at [74]:
The Crown case was essentially simple. Despite the number of charged and uncharged acts, the case presented was of an 11 year period over which the respondent offended against only one complainant, RC, as occasion presented, on the occasions of the charged acts. It is equally unlikely that the jury would have failed to consider the possibility that the respondent did not act on his sexual attraction to RC on the occasions of the charged acts. The trial judge several times specifically directed them that they could not convict the respondent of any charged act unless satisfied beyond reasonable doubt of the commission of that act, and further specifically directed them that they could not substitute evidence of other charged acts or other alleged uncharged acts, or a conclusion that the respondent had a sexual interest in RC, for what was alleged in the particular charge. There is no reason to doubt that the jury heeded those directions.
55․Where the tendency evidence only involves charged offences, rather than uncharged conduct or prior convictions, and the jury is directed to give separate consideration to each charge, this will mitigate the risk of prejudice: see BC.
56․In this case, there are also uncharged allegations which form part of the tendency application.
57․The NSW Court of Criminal Appeal has underlined that the emphasis must be on the particular circumstances of the case rather than on “general statements about the arousal of prejudice”. Unfair prejudice is not limited to the potential effect of the evidence on a jury. In R v Chase [2018] NSWCCA 71, it was accepted that consideration of the interest of the accused “in a fair trial” is permitted (Basten JA at [33]). In Director of Public Prosecutions v DL [2018] ACTCA 61; 14 ACTLR 62, the Court of Appeal accepted that the expression “any prejudicial effect it may have on the defendant’ is not limited to the “risk that the jury will misuse evidence in some unfair way in the trial” (at [34]). Rather, it is “apt to encompass some aspects of a fair trial” (at [30]).
58․It has long been observed that directions can go a long way to ameliorating any potential misuse of damaging evidence or other prejudicial effect. The ACT Court of Appeal has referred to “modern life” being “confronting” and juries “robust”: see Hoyle v The Queen [2018] ACTCA 42; 339 FCR 11 at [125]:
The court considered that there “was little, if any, danger of unfair prejudice associated with the charges… which asserted the more serious conduct of sexual intercourse [in respect of one complainant] … being heard together with those concerning” alleged indecent assaults on other complainants, observing that there was “no good reason to think that jurors would be so scandalised by the allegations relating to [the first complainant] that they would be incapable of dispassionately determining the charges concerning the other complainants”
59․A Court must engage in the balancing exercise, assessing the risks of unfair prejudice in the light of potential directions, without any general assumption that such directions will necessarily be successful: Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 at [52]-[57]. The Victorian Court of Appeal stated in Harris (a pseudonym) v The Queen [2015] VSCA 112; 44 VR 652 at [28]-[30] that where the directions would be “quite complicated and potentially confusing”, unfair prejudice may not be outweighed by the probative value of the evidence.
60․As I stated earlier at [46]-[47] the difference in the nature of the allegations as between the first and second complainants on the one hand and the third and fourth complainants is a matter that must be addressed when considering s 101 and potential severance. The allegations concerning the first and second complainants include allegations of sexual assault. The allegations concerning the third and fourth complainants do not.
61․It is open to the Court to grant the prosecution’s application in part only, or to order severance of particular counts by reason of the potential prejudice created by the joinder of all of the counts. Section 264(2) of the Crimes Act 1900 (ACT), relevantly provides:
…
(2)If, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment.
…
62․The application of the test in s 264 was considered by Refshauge J in some detail in R v Mack [2009] ACTSC 83 (Mack) where his Honour ultimately concluded that particularly discreditable allegations of sexual assault ought to be severed from an indictment containing other allegations of assault against the same complainant.
63․As noted earlier, the joint indictment contains offences alleged against both the first and second complainants that are significantly more serious than the offences alleged against the third and fourth complainants. I accept as argued by counsel for the accused, that the allegations concerning the first and second complainants are undoubtedly of a more serious nature. The allegations involving the second complainant include allegations that can be fairly described, as conceded by counsel for the accused, as “cruel and despicable, evidence of which is likely to arouse prejudice or excite revulsion.” On the other hand, there is only one count on the indictment alleged against the third and fourth complainants respectively. The potential for the jury to misuse the tendency evidence improperly in some unfair way is significant. This is in my view sufficient reason to order severance of the counts concerning the third and fourth complainants from the counts concerning the first and second complainants.
64․In my view, these counts should be severed. There is a danger of unfair prejudice in that the jury may be influenced to convict as punishment for the other more serious charges. Further, the jury may be distracted from the central issues in the trials concerning the third and fourth complainants by being heard in the context of the graver allegations concerning the first and second complainants. The probative value in this context does not outweigh the danger of unfair prejudice. A judge’s directions are not a panacea in all cases. Most, but not all, prejudice can be overcome by judicial instruction and direction. It cannot safely be assumed that judicial direction would necessarily be successful in this case.
65․In coming to this decision, I have taken into account the following factors:
(a)Evidence of prior illegal acts, especially where the illegal acts relate to alleged sexual acts or acts of domestic violence, may be prejudicial in terms of their impact: Taylor at [122].
(b)There is a danger of unfair prejudice to an accused where separate complainants give evidence of alleged offending against the accused in the course of a single trial. The predominate danger is that the jury will misuse the evidence by reasoning that the accused must be guilty if multiple complaints by multiple complainants are tried together: R v CX [2016] ACTSC 106 at [41].
(c)An unnecessary proliferation of counts involving multiple complainants, or unnecessary expansion of the ambit of the trial by reference to uncharged acts, may tip the balance in favour of rejecting an application to lead tendency evidence, and, where applicable, ordering that the indictment be severed: R v BI [2016] ACTSC 287 at [36].
(d)Overloading an indictment can be oppressive, and an accused person suffers the prejudice of having other discreditable conduct before a jury when otherwise such evidence might well be excluded: Mack at [41].
66․On the other hand, the allegations concerning the first and second complainants should be heard together with each other. Further, the allegations concerning the third and fourth complainants should be heard together with each other. If the trials are severed as I have outlined the significant probative value of the tendency evidence as discussed earlier at [38]-[47] outweighs the danger of unfair prejudice. Judicial direction in the context of two severed trials allows for fair trials to proceed. One trial concerning four complainants with cross-admissible tendency evidence that involves pronounced cascading levels of gravity could not.
Orders
67․On 16 December 2022, I made the following orders:
(1)The prosecution is permitted to lead tendency evidence particularised as incidents one to 15 in the Notice of Intention to Adduce Tendency Evidence dated 2 September 2022, in relation to complainants [first complainant] and [second complainant].
(2)In a separate trial, the prosecution is permitted to lead tendency evidence as particularised as incidents 16 to 24 in the Notice of Intention to Adduce Tendency Evidence dated 2 September 2022, in relation to complainants [third complainant] and [fourth complainant].
68․In light of the foregoing I formally ordered separate trials as delineated above in accordance with s 264 of the Crimes Act 1900 (ACT).
| I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rebecca Emder Date: 20 January 2022 |
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