Director of Public Prosecutions v Small
[2022] ACTSC 325
•11 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Small |
Citation: | [2022] ACTSC 325 |
Hearing Date: | 11 November 2022 |
Decision Date: | 11 November 2022 |
Before: | Loukas-Karlsson J |
Decision: | (1) The prosecution be permitted to adduce evidence outlined as Incidents 1 to 16 in the Notice of Intention to Adduce Tendency Evidence dated 20 October 2022 as tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT). |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – charged acts – s 97A of the Evidence Act 2011 (ACT) – presumption that evidence has significant probative value – application not opposed by counsel for the accused – application allowed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 61 |
Cases Cited: | IMM v The Queen [2016] HCA 14; 257 CLR 300 |
Parties: | Director of Public Prosecutions ( Applicant) Thomas Lewyn Small ( Respondent) |
Representation: | Counsel S Janackovic ( Applicant) D Healey ( Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) David Healey Solicitors ( Respondent) | |
File Number: | SCC 181 of 2022 |
LOUKAS-KARLSSON J:
Introduction
1․The accused, Thomas Small, is charged with four counts of an act of indecency on a person under 16 years, contrary to s 61(2) of the Crimes Act 1900 (ACT) (Crimes Act); two counts of sexual intercourse with a person under 16 years, contrary to s 55(2) of the Crimes Act; and one count of sexual intercourse with a person under 16 (course of conduct), contrary to ss 55(2) and 66B(1) of the Crimes Act. For the sake of convenience, the applicant will be referred to as the prosecution in these reasons.
2․The matter came before me for hearing on 11 November 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).
3․On 11 November 2022 I heard this application as well as a ground rules hearing in respect of this witness. Orders were made in relation to the tendency application and the ground rules hearing. Reasons follow in relation to the tendency application.
Tendency application
4․Pursuant to the Notice of Intention to Adduce Tendency Evidence dated 20 October 2022 the prosecution intends to adduce evidence:
(a)That the accused has a sexual interest in the child.
(b)That the accused has a tendency to act on that sexual interest in the child.
5․The specific material that the prosecution intends to adduce proving the alleged tendencies is as follows:
(a)Incident 1 (Count 1 and 2):
(i)While the accused’s brother was in the bathroom, the accused kissed the complainant on the lips for the very first time whilst they were seated on the couch, between 14 February 2015 – 15 February 2018 at a residence.
(b)Incident 2 (Count 1):
(i)The accused would kiss the complainant using his tongue between 14 February 2015 – 15 February 2018 at unknown locations.
(c)Incident 3 (Count 1 and Count 3):
(i)Whilst watching a movie and whilst the accused’s brother was seated in front of the accused and the complainant, the accused took his penis out of his pants and encouraged the complainant to suck his penis by making hand gestures and mouthing words. Conduct occurred between 14 February 2015 – 15 February 2018 at a residence.
(d)Incident 4 (Count 1):
(i)Whilst watching a movie, the accused placed a blanket over himself and the complainant. The accused touched the complainant on her legs and moved her legs apart in order to put his fingers in the complainant, between 14 February 2015 – 15 February 2018 at a residence.
(e)Incident 5 (Count 1):
(i)Whilst playing video games with the accused’s brother, the accused touched the complainant whilst she was seated behind the accused’s brother, between 14 February 2015 – 15 February 2018 at a residence.
(f)Incident 6 (Count 1):
(i)The accused would touch the complainant on the bottom and compliment her on her bottom, between 14 February 2015 – 15 February 2018 at a residence.
(g)Incident 7 (Count 1 and Count 4):
(i)Whilst in the kitchen, the accused was touching the complainant’s vagina and her bottom on the outside of her clothing as she stood behind the kitchen counter. The accused told the complainant that she was wet. This occurred whilst the accused’s brother and mother were seated on the couch.
(h)Incident 8 (Count 1):
(i)Whilst the accused’s brother and mother were in the kitchen, the accused placed his hand under the complainant’s school dress as the accused was watching television, between 14 February 2015 – 15 February 2018 at a residence.
(i)Incident 9 (Count 1):
(i)Whilst having his friends over at his home, the accused placed his foot between the complainant’s thighs as she sat on the ground, between 14 February 2015 – 15 February 2018 at a residence.
(j)Incident 10 (Count 1):
(i)During car rides with the accused’s brother, the accused touched the complainant’s leg whilst she was seated in the backseat and whilst the accused was driving, between 14 February 2015 – 15 February 2018 in the car.
(k)Incident 11 (Count 1):
(i)Whilst the complainant was on the toilet, the accused sent the complainant a photograph depicting his tongue or tongue-kissing over Snapchat and sent her a message to the effect of: ‘imagine this’, between 14 February 2015 – 15 February 2018 at an unknown location.
(l)Incident 12 (Count 1):
(i)In the car, the accused showed the complainant photographs of his penis contained on his mobile phone, between 14 February 2015 – 15 February 2018 at a residence.
(m)Incident 13 (Counts 1 and 5):
(i)After the complainant had repeatedly rebuffed the accused’s requests for her to perform oral sex on him for several days, the complainant acquiesced and performed oral sex between 14 February 2015 – 15 February 2018 at a park in Gordon.
(n)Incident 14 (Count 1):
(i)After the first occasion when the complainant performed oral sex on the accused, the complainant subsequently performed oral sex on the accused who would ejaculate in her mouth, between 14 February 2015 – 15 February 2018.
(o)Incident 15 (Counts 1 and 6):
(i)Whilst waiting for a light to stop shining on the playground at the park, the accused pulled up the complainant’s shirt and licked her chest, between 14 February 2015 and 15 February 2018 at a park.
(p)Incident 16 (Counts 1, 7, 8 and 9):
(i)At a time, proximate to the complainant’s birthday and when on the playground at the park, the accused touched the complainant’s vagina, digitally penetrated the complainant’s vagina and had the complainant perform oral sex on him. The accused did not ejaculate in the complainant’s mouth but “finished himself” a short distance away from the complainant.
6․The application is sought by the prosecution on the basis that the complainant’s evidence about the sixteen incidents is cross-admissible for tendency purposes in relation to each count on the indictment.
Legislation
Tendency
7․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 (QX (No 5)), with respect to the introduction of s 97A and changes to s 101 of the Evidence Act. 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.
…
8․Section 97A provides:
97AAdmissibility 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.
9․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.
(emphasis added)
10․Section 101 was amended to take effect from September 2020. It is now only necessary that the probative value of the tendency evidence outweigh, rather than substantially outweigh, the danger of unfair prejudice.
Applicant’s submissions
11․The prosecution submitted that reasonable notice has been given (s 97(1)(a) of the Evidence Act), as the application was foreshadowed in the original case statement and pre-trial questionnaire of 18 August 2022, and the Notice was served on 20 October 2022.
12․The prosecution submitted that the ultimate facts in issue will be whether the physical conduct occurred, constituting the relationship between the accused and complainant and constituting the discrete charges of acts of indecency and acts of sexual intercourse; and whether the accused deliberately engaged in that conduct.
13․The prosecuted submitted that the contended tendencies, if established, are readily capable of informing the ultimate facts in issue and are thus relevant.
14․Clearly, the acts are relevant.
Significant probative value – s 97(1)(b)
15․The prosecution submitted that the presumption in s 97A(2) is engaged in the present matter, citing QX (No 5) at [79]. Here, the alleged offences are offences under ACT law, namely, persistent sexual abuse of a child, acts of indecency with a young person and sexual intercourse with a young person. The complainant was aged 11 to 13 years old during the alleged offending, therefore the offences are “child sexual offences”.
16․It is presumed that tendency evidence about the accused having a sexual interest in a child and acting on the sexual interest in a child has significant probative value: s 97A(2).
17․The prosecution submitted that the diverse array of sexualised activity, constituting the sixteen incidents outlined in the tendency notice, is demonstrative of the accused’s sexual interest in the child complainant and his willingness to fulfil that sexual interest.
18․The prosecution further submitted that these incidents, as outlined at [5], are clear evidence of the accused having a sexual interest in the child complainant and acting upon that sexual interest in the child complainant, and would therefore be captured under the presumption in s 97A(2). Therefore, significant probative value is established, unless the presumption is rebutted as per s 97A(4).
Probative value and unfair prejudice – s 101(2)
19․The prosecution referred to the matter of R v BC (No 3) [2020] ACTCA 49 at [32], where the Court of Appeal confirmed that “the prejudicial effect referred to is the danger that a jury might make improper use of the evidence”.
20․As noted in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 by McHugh J at [91]-[92]:
Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out:
The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way. (footnotes omitted)
In its Interim Report, the Australian Law Reform Commission explained:
By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.
21․As the Court noted in R v Thompson [2014] ACTSC 276, in the context of considering whether any danger associated with admitting the evidence can be reduced or eliminated, “a court may have regard to mitigating actions that may be available to the court, including the making of appropriate directions to address the danger of unfair prejudice.” The court must also identify the types of prejudicial effect the proposed evidence may give rise to: R v Ford [2009] NSWCCA 306; 273 ALR 286 at [64].
22․The prosecution submitted that the probative value of the evidence outweighs any danger of unfair prejudice in the present matter. The prosecution noted that s 97A is engaged so the evidence is presumed to have significant probative value. The prosecution further submitted that it is an important piece of circumstantial evidence given that if the tendencies are accepted, then it makes considerably more likely that the accused (while holding an unusual and peculiar mindset towards the child complainant) acted in the sexualised manner alleged towards the complainant on repeated occasions.
23․The prosecuted 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 compared this to a situation where evidence of acts constituting a more serious offence is led as tendency evidence to support a less serious offence. Here, the jury is considering evidence from a single complainant. The evidence would otherwise be admissible in the trial, as counsel for the accused submitted. The prosecution submitted that there would be no evidence which would otherwise not be before the jury.
Consideration
24․At the hearing, counsel for the accused indicated that the defence did not wish to be heard in relation to the tendency application. Nevertheless, the Court must consider the relevant legal principles and facts in this case in determining whether orders should be made.
25․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)
26․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.
27․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
28․The evidence is relevant pursuant to s 55 of the Evidence Act. No issue was taken by counsel for the accused as to relevance. Relevance is discussed earlier at [13]-[14].
‘Significant probative value’ – s 97A
29․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
Probative value outweighed by danger of unfair prejudice
30․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.
31․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.
32․In my view, applying the relevant legal principles to the facts in this case, it is clear that the ruling sought by the prosecution concerning tendency evidence should be granted.
33․It was noted at the hearing that counsel for the accused at the trial would be seeking a direction to the jury that before an alleged tendency incident could be considered as establishing the asserted tendency, the jury must be satisfied beyond reasonable doubt that the particular incident occurred. The prosecution correctly did not cavil with such a direction. It is clearly a direction that is required.
Orders
34․The order I made on 11 November 2022 is as follows:
(1)The prosecution be permitted to adduce evidence outlined as Incidents 1 to 16 in the Notice of Intention to Adduce Tendency Evidence dated 20 October 2022 as tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT).
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rebecca Emder Date: 28 November 2022 |
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