Director of Public Prosecutions v Smith (No 2)
[2024] ACTSC 95
•9 April 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Smith (No 2) |
Citation: | [2024] ACTSC 95 |
Hearing Date: | 7 August 2023 |
Decision Date: | 9 April 2024 |
Before: | Loukas-Karlsson J |
Decision: | The prosecution is not permitted to adduce evidence of incidents 1 to 6 as outlined in the Notice of Intention to Adduce Tendency Evidence dated 3 July 2023. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency Evidence – Pre-trial Application – Application by prosecution to adduce tendency evidence – evidence suggesting a tendency to commit acts of family violence upon his domestic partner generally – application dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 54, 60 Family Violence Act 2016 (ACT), s 8 Supreme Court Act 1933 (ACT), s68D(1)(b) |
Cases Cited: | Allen v The Queen [2020] NSWCCA 173 DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568 Director of Public Prosecutions v Ivanisevic [2023] ACTSC 34 Director of Public Prosecutions v Mastalerz [2024] ACTSC 30 Director of Public Prosecutions v Murphy [2023] ACTSC 4 Director of Public Prosecutions v Timosevski [2024] ACTSC 85 El-Haddad v The Queen [2015] NSWCCA 10; 88 NSWLR 93 Harlen (a pseudonym) v The King [2023] VSCA 269 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 Morey (a pseudonym) v The King [2023] VSCA 153 Parkinson v Alexander [2017] ACTSC 201 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v Davidson (No 1) [2019] NSWSC 980 R v Ford [2009] NSWCCA 306; 201 A Crim R 451 R v PWD [2010] NSWCCA 209, 205 A Crim R 75 R v QX (No 5) [2021] ACTSC 247; 292 A Crim R 193 R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 Restricted judgment [2024] ACTSC 78 RHB v The Queen [2011] VSCA 295 Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 Taylor v The Queen [2020] NSWCCA 355 TB v The Queen [2019] NSWCCA 224 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 Xie v The Queen [2021] NSWCCA 1; 386 ALR 371 |
Parties: | Director of Public Prosecutions Lachlan Smith ( Accused) |
Representation: | Counsel S Bargwanna ( DPP) K Bolas ( Accused) |
| Solicitors ACT Director of Public Prosecutions Kim Bolas Legal Group ( Accused) | |
File Number: | SCC 106 and 107 of 2023 |
LOUKAS-KARLSSON J:
Introduction
1․The prosecution seeks to adduce tendency evidence that the accused has a tendency to commit acts of family violence upon his former domestic partner (the complainant).
2․The accused, Mr Smith, is charged on indictment with the following:
(a)one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT); and
(b)one count of an act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT).
3․There is a transfer charge of common assault. The transfer charge is irrelevant for the purposes of this tendency application as the charges on the indictment must be the focus of the tendency evidence application: see s68D(1)(b) Supreme Court Act 1933 (ACT). The transfer charge (CC2022/5677) is not one of the incidents the plaintiff seeks to rely on as tendency evidence.
4․The accused and complainant met in 2021. The complainant was 16 and the accused was 17 at the time. The complainant became pregnant approximately two months into the relationship. The alleged offences occurred on 4 December 2021 when the complainant was 34 weeks pregnant. At this time the accused was 18 years and 6 months old.
5․The allegations are that the accused touched the complainant’s vagina, implying she had been unfaithful to him, then proceeded to grab the complainant by the arm and pull her to the floor. The accused then allegedly forced the complainant to perform fellatio on him. This went on for approximately 30 minutes.
6․The prosecution relied on six incidents as the specific tendency events. The prosecution submitted that the accused’s alleged tendency to engage in family violence against his domestic partner, is indicative of a specific behavioural tendency directed towards a particular person such that it is significantly probative.
7․The accused opposed the application.
8․For the below reasons, the application should be dismissed.
Tendency Application
9․In July 2023, the prosecution filed a Notice of Intention to adduce tendency evidence (Tendency Notice) in the proceeding against the accused. The Tendency Notice set out the substance of the evidence that the prosecution relied on to establish the tendency asserted. The application in the proceeding was filed along with an affidavit of a solicitor (the supporting affidavit).
10․For clarity and convenience, I will refer to the applicant as the prosecution and the respondent as the accused.
Tendency Notice
11․In accordance with the Tendency Notice, the prosecution is seeking to adduce evidence in the matter against the accused to prove that he had a tendency to act in a particular way, namely that:
(a)the accused had a tendency to commit acts of family violence upon his domestic partner (the complainant) generally.
12․Originally, the prosecution sought to adduce tendency evidence on two different bases. On 7 August 2023, when the matter was listed before me, the prosecution stated it no longer relied upon the second ground. Thus the only tendency asserted is as stated above.
13․As particularised in the Tendency Notice, the prosecution relied upon six incidents to support the above asserted tendency. I note that incident 1 is the subject of a charge of assault occasioning actual bodily harm to the complainant (CC2021/6249). The accused was convicted and sentenced for that charge on 2 February 2022 and received six months imprisonment. The specific material the prosecution intends to adduce to prove the alleged tendency is as follows:
Incident
Substance of evidence
1
On Sunday 13 June 2021, the accused punched the complainant using a closed fist, impacting the complainant’s face causing swelling to her nose, a cut to the inside of her upper lip and immediate pain.
2
On an unknown number of occasions on unknown previous dates during the course of their relationship (after approximately January/February 2022), the complainant would “get bashed” if she refused sexual intercourse with the accused.
3
On an unknown date (approximately around March 2022), the accused locked the complainant in a room in his mother’s house while he “went out”. This occurred on more than one occasion.
4
On unknown dates after the commencement of the relationship between the accused and complainant (approximately around January/February 2022), the accused controlled the food that the complainant was allowed to consume. It is noted that the reference to 2023 in the Tendency Notice appears to be a typographical error.
5
On approximately two or three occasions during the course of their relationship (after January/February 2022), police were called to the complainant’s mother’s premises because the complainant was screaming. On each of these occasions, the accused locked the front door of the home and begged the complainant not to report his conduct to police. The accused threatened to hurt the complainant and her unborn daughter if the complaint spoke with police about incidents between the pair. The accused and his mother would force the complainant to tell police that everything was ‘fine’ and that their attendance was not required.
6
On an unknown date on an unknown number of occasions, the accused physically assaulted the complainant, including biting and hitting the complainant. These assaults would result in injuries to areas that would not be visible, including bruises to the complainant’s breasts, legs, shoulders and arms. The specific dates of these incidents are apparently uncertain.
14․The supporting affidavit exhibits the following material that the prosecution relied on in support of the tendency evidence application.
(a)bench sheets for a former charge for assault occasioning actual bodily harm to the complainant (CC2021/6249). This is in reference to Incident 1;
(b)the statement of facts regarding the charge of assault occasioning actual bodily harm to the complainant (CC2021/6249). This is also in reference to Incident 1;
(c)the case statement for the matter presently before the Court;
(d)the indictment for the matter presently before the Court;
(e)the criminal history of the accused; and
(f)the evidence in chief interview transcript of the complainant in these proceedings.
15․I note in respect of the interview transcript that there are matters that arise that have not been the specific subject of the tendency application nor of submissions. Further, to my analysis there has ben no correlation by the prosecution as to which specific parts of the Record of Interview are related to which incidents in the tendency application. This adds an unnecessary degree of difficulty to the tendency application.
16․While a transcript of the complainant’s evidence in chief interview was provided to the Court as referred to above, it was only briefly referred to in the prosecution’s oral submissions. The only reference was a general reference by the prosecution during submissions:
MR BARGWANNA: In the complainant’s evidence-in-chief interview she outlines the allegations in relation to those two charges. However, she also goes into some detail about the background of the relationship and refers to a number of uncharged acts of family violence which are outlined through dot point, I beg your pardon, paragraph 4(a) - - -
HER HONOUR: Paragraph 4(a) of what document?
MR BARGWANNA: Of the Crown’s written submissions through to paragraph 6 of the prosecution’s written submissions.
17․That is, that this interview was the source of the evidence generally that gave rise to this tendency application. There are no specific references to particular portions of the Record of Interview.
Legal principles
18․The admission of tendency evidence is governed by ss 97 and 101 of the Evidence Act 2011 (ACT) (Evidence Act). It is relevant to set out s 97 below:
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.
NoteThe tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
(emphasis added)
19․Section 101 of the Evidence Act provides:
101 Further 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)
20․In my decision in R v QX (No 5) [2021] ACTSC 247; 292 A Crim R 193 (QX (No 5)), I set out the process for determining whether the prosecution may be permitted to adduce tendency evidence. The steps are 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).
(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.
Significant probative value
21․It is well established that in the assessment of the probative value of the evidence, the court must proceed on the basis that the evidence is accepted: IMM v The Queen [2016] HCA 14; 257 CLR 300 (IMM) at [48]-[49]. Importantly, the nature of the fact in issue to which a tendency is sought to prove, will inform whether the evidence has significant probative value and, properly, “the evidence must be influential in the context of fact-finding”: IMM at [46]. See Restricted judgment [2024] ACTSC 78 and DPP v Timosevski [2024] ACTSC 85 for my discussion of the general principles.
22․Relevantly, concerning significant probative value, the High Court in Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes) at [41], identified a two-step process:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of 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. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
(emphasis added)
23․Thus, in looking at the two interrelated but separate matters, there is likely to be a high degree of probative value where the evidence both strongly supports first the proof of a tendency and second the tendency strongly supports the proof of a fact that makes up the offence charged. Both matters must be considered and analysed carefully.
24․Importantly, Hughes recognised that there is no longer a requirement of “similarity” between the acts or incidents which are said to support proof of a particular tendency: see [37]. Later at [39] the Court in Hughes stated:
Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove.
(emphasis added)
25․The prosecution correctly submitted that incidents may support an inference that an accused had a behavioural “tendency” even if the incidents themselves are somewhat dissimilar, referring to Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 (Vojneski) at [50] per Murrell CJ and Refshauge J.
26․As the prosecution correctly submitted, repetition of conduct may evidence a tendency: RHB v The Queen [2011] VSCA 295 at [20]-[22]. Further, it has been held that a tendency can be established from a single incident: R v Davidson (No 1) [2019] NSWSC 980 at [32]-[36].
27․The specificity of the tendency informs the probative value. In El-Haddad v The Queen [2015] NSWCCA 10; 88 NSWLR 93 (El-Haddad) at [72], Leeming JA stated:
[T]he specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.
(emphasis added)
28․Thus specificity and probative value are related. The general is not as probative as the specific.
29․Tendency evidence may also be retrospective: TB v The Queen [2019] NSWCCA 224. However, such conduct does not have the same “predictive capacity” as past conduct: R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 (Sean (No 2)) at [21] citing Parkinson v Alexander [2017] ACTSC 201 (Parkinson) at [55]. I discuss this issue further below at [65].
30․The principles set out above are relevant to my assessment of significant probative value and will be considered further at [48] – [71] of this judgment. See also Restricted judgment [2024] ACTSC 78 and DPP v Timosevski [2024] ACTSC 85.
Unfair prejudice
31․As I stated in QX (No 5), DPP v Timosevski [2024] ACTSC 85 and Restricted judgment [2024] ACTSC 78, in assessing unfair prejudice, a court must look at the potential risk that the tribunal of fact, in the event the evidence is adduced, will use the evidence improperly or in some unfair way.
32․In Vojneski, Murrell CJ and Refshauge J stated at [61]-[63]:
61.Section 101(2) requires the identification of the probative value and the prejudicial effect of the tendency evidence. Then a balancing exercise must be conducted on the facts of each case: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [95], Hughes at [190].
62.At the s 101 stage of the inquiry, it is necessary to identify the type or types of prejudicial effect in question: Ford per Campbell JA at [64].
63.The reference to prejudicial effect is a reference to unfair prejudice; the risk that the fact-finder will misuse the evidence in an unfair way by giving it more weight than it logically deserves or by responding emotionally to the inflammatory content of the evidence, where the risk cannot be cured by direction: Festa v The Queen [2001] HCA 72; 208 CLR 593 per McHugh J at [51] (Festa), Lam at [31]–[32], R v Costa (No 1) [2015] ACTSC 63 at [44]. As noted above, tendency evidence usually raises disreputable conduct, i.e. contains inherent prejudice. But in many cases this prejudicial effect can be greatly reduced by appropriate jury directions. In particular cases, tendency evidence may have another prejudicial effect.
(emphasis added)
33․In Hughes, the plurality observed the types of prejudice which may arise when tendency evidence is used. The plurality stated at [17]:
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. 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.
(emphasis added)
34․Relevantly, as I stated in DPP v Murphy [2023] ACTSC 4 (Murphy), there is no longer a requirement for the probative value of tendency evidence to “substantially” outweigh the danger of unfair prejudice to the defendant due to a change in legislation which came into effect on 1 September 2020: see Murphy at [10] and [16]-[21].
Prosecution submissions
35․In supporting the admissibility of the tendencies, the prosecution relied upon the construction of the definition of ‘family violence’ in the Family Violence Act 2016 (ACT): see s 8(1). The prosecution noted that types of behaviours that constitute family violence are broad, and can include physical, sexual, economic and verbal abuse, damaging property and coercion. The prosecution submitted that the complainant’s evidence about the nature of her relationship with the accused fits this definition. The prosecution submitted that because the accused has engaged in a number of different types of family violence, the tendency makes it more likely that he engages in “the sexual type of family violence.”
36․In Vojneski the Court disapproved of the use of general tendencies as they relate to violent behaviour. In Vojneski, two of the impugned tendencies were expressed as a tendency of the accused to become quickly aroused to anger and to act violently when angered and a tendency of the accused to act violently when under the influence of alcohol and/or marijuana. Murrell CJ and Refshauge J drew a distinction between these general tendencies and a tendency to become quickly aroused to anger and then to use knives to threaten or inflict harm on people or objects, which was said to be a relatively distinct tendency: see Vojneski at [36]-[37]. The prosecution submitted that the tendency sought to be adduced in this matter rises to this requisite level of specificity as outlined in Vojneski because it is a distinctive behavioural trait that incorporates the use, or threatened use, of physical and sexual violence, and coercion and control against one specific person during the course of their domestic relationship. As I will discuss later, I do not accept the submission that the tendency is particularised at a high level of specificity.
37․The prosecution submitted that this distinctive behavioural trait that incorporates the use, or threatened use, of physical and sexual violence and coercion and control against the complainant during the course of their domestic relationship goes to a fact in issue in proving the accused engaged in sexual intercourse without the consent of the complainant. The prosecution submitted the tendency would also apply to the act of indecency charge.
38․The prosecution accepted that similarities between the tendency incidents and the charged offences will often have a direct bearing on the probative value of the evidence. The prosecution submitted that each incident in the instant matter has points of differentiation however, the prosecution submitted that the accused’s tendency to commit family violence in the various different forms outlined is similar to, and indicative of, a behavioural tendency.
39․In summary, the prosecution submitted the tendency incidents demonstrate the following in relation to the accused’s behaviour towards the complainant:
(a)the willingness of the accused to engage in physical violence towards the complainant demonstrates his disregard for the physical comfort and safety of the complainant;
(b)the accused’s willingness to deprive the complainant of both her liberty and life essentials such as food, reinforces his disregard for her physical wellbeing and demonstrates a willingness to exert control over the complainant;
(c)the accused’s threats to hurt the complainant and her unborn child if she spoke with police, demonstrates that the accused is willing to exert emotional control and coercion over the complainant in order to obtain an outcome beneficial to his will and desires; and
(d)these are consistent with the type of behaviours which are alleged to form the offending conduct; in that the accused engaged in sexual intercourse without the consent of the complainant, in order to satisfy his sexual desires.
40․In relation to unfair prejudice, the prosecution submitted unfair prejudice could arise from the nature of the tendency evidence but could be overcome with judicial direction. Further, the prosecution submitted:
(a)the tendency incidents are objectively less serious than the charged matter;
(b)there are only six incidents. The jury will not be overwhelmed by a raft of uncharged conduct stretching back many years;
(c)the incidents will not give rise to a plethora of questions or confusion; and
(d)the alleged tendency conduct, while serious, does not have the same depraved character of offences such as for example, child sexual assaults.
Accused submissions
41․Counsel for the accused prepared written submissions opposing the application. Although counsel was unable to attend the hearing of the application, the solicitor for the accused, Ms Bolas, provided brief oral submissions.
42․Counsel for the accused relied on the authority of Sean (No 2). In that case, the accused was charged with murder and intentionally inflicting grievous bodily harm. The alleged tendency behaviour sought to be adduced was that the accused had a tendency to act disproportionately by using an offensive weapon or threatening to use an offensive weapon to inflict serious injury and a tendency to have an interest in the unlawful possession and use of knives. At [40], McCallum CJ held that the probative value of the evidence did not outweigh the danger of unfair prejudice for these reasons:
First, in my view, the evidence was highly prejudicial in painting the accused as a violent and volatile young man. Secondly, the incidents relied upon were many and would have involved a number of witnesses, potentially distracting the jury from their primary task. Thirdly, the accused faces outstanding charges in relation to the brick and rocky road incidents. As submitted by counsel for the accused, the presentation of that evidence would have involved “trials within a trial” and potentially have jeopardised the accused's defence of those other charges at a later stage. The existence of those pending charges could also constrain or influence the way in which the accused could respond to the tendency evidence in the trial.
(emphasis added)
43․Counsel for the accused submitted that the tendency evidence in this case would be “severely prejudicial” to the accused at trial because the uncharged matters carry very little weight and have little relevance to whether the accused had sexual intercourse without consent with the complainant. Counsel submitted that the uncharged allegations are highly prejudicial because the behaviours come under the broad umbrella of domestic violence and are not distinctive or particular ways of behaving.
44․Counsel for the accused also relied on a Victorian authority of Morey (a pseudonym) v The King [2023] VSCA 153 (Morey). That case was recently summarised by the Victorian Court of Appeal in Harlen (a pseudonym) v The King [2023] VSCA 269 at [37]-[38] when dealing with an interlocutory appeal:
Morey also concerned an intimate relationship between an accused and a complainant. That applicant was charged with a number of offences, including causing injury intentionally, rape, common assault and making a threat to kill. The prosecution sought to adduce evidence of a tendency of the applicant to assault and/or threaten to assault or kill the complainant or members of her family in order to compel her to comply with his demands. The judge granted the prosecution's application to admit and use the items in the tendency notice as tendency evidence (except for one item).
In allowing the appeal, this Court concluded that the purported tendency had no probative value and that any probative value was substantially outweighed by the prejudicial effect. The items of evidence which the prosecution were permitted to rely upon “barely established” the tendency. Further, none of the relevant charges involved any threat by the applicant that the complainant comply with his requirements. In particular, the complainant's evidence in respect of the rape charges was that the applicant had physically overcome her. There was no suggestion that he had induced her consent by threat, or that she complied with demands “out of [a] well-founded fear of the [applicant]”. It followed that the purported tendency evidence had no probative value at all.
(emphasis added)
45․Counsel submitted that in this case, the alleged sexual assault did not occur in a milieu where the accused had threatened violence if the complainant did not comply, rather, the allegation is that the accused forced the complainant to give him fellatio. I note from the Case Statement the allegations are that the accused “touched the complainant’s vagina,” “grabbed the complainant’s hair and made her open her mouth and begin performing fellatio on him” and “continually held her head and pushed it towards his penis making her continue penile-oral intercourse.”
46․Counsel for the accused submitted this case is analogous to Sean (No 2) and Morey.
47․I note as may be self evident that Sean (No 2) and Morey do have distinguishing facts, nevertheless both cases are of course relevant at the level of principle.
Consideration
Is the evidence relevant within the meaning of s 55 of the Evidence Act?
48․As I stated in QX (No 5) at [72], in assessing whether evidence is relevant it is necessary to identify the purpose for which the evidence is sought to be tendered: see IMM at [37].
49․In this case, the prosecution has identified the tendency sought to be adduced. The asserted tendency is that the accused had a tendency to engage in family violence against the complainant, that is, as broadly defined in the Family Violence Act s 8(1).
50․The ultimate issues in the forthcoming trial may include whether the accused engaged in the conduct alleged in the indictment and whether or not the complainant consented to the acts and whether or not the accused was reckless as to consent.
51․In my view, the evidence may be said to be broadly relevant.
Significant probative value
52․As was stated by the Court in Hughes, the two-step test involves first, assessing “the extent to which the evidence supports the tendency” and second, assessing “the extent to which the tendency makes more likely the facts making up the charged offence”. What is meant by “facts making up the charged offence” will ordinarily be the factual elements which make up the charged offence or an issue at law: see Hughes at [16].
53․Each case will turn on its own facts and is ‘fact specific’: see Taylor at [146]. Tendency evidence must have a “logical link to the elements of the offence charged”: see Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 (Sokolowskyj) at [44].
54․It is not necessary for the tendency to be closely similar to the committed acts: see R v Ford [2009] NSWCCA 306; 201 A Crim R 451 at [43] (Campbell JA with Howie and Rothman JJ agreeing). Although, the similarities and dissimilarities between the nature of the conduct can be relevant in assessing its probative value and significance: see DAO v The Queen [2011] NSWCCA 63; 81 NSWLR 568 at [180]-[181] (Simpson J with Kirby and Schmidt JJ agreeing).
55․As referred to earlier, specificity of the tendency goes some way in determining its probative value: see El-Haddad at [72]. In my view in the case before me, the tendency is cast by the prosecution at a broad, general level, that is, by referring to the definition of family violence. As stated at [35] above, the prosecution submitted that the definition of family violence under s8(1) Family Violence Act 2016 (ACT) is broad, and can include physical, sexual, economic and verbal abuse, damaging property and coercion.
56․In Sokolowskyj, the court emphasised the need for tendency evidence to be linked to a fact in issue. The Court at [44] further emphasised that overgeneralising is a flawed approach. Such generalising may detract from the importance of the elements of the alleged offence:
The flaw in the Crown case in support of the admission of the tendency evidence was that it failed to have regard to the fact that the evidence only had probative value if it increased the probability that the appellant committed the offence of indecently assaulting the complainant. In assessing the extent of the probative value of the evidence, the focus had to be on the fact in issue to which the evidence was said to logically relate. In that context, it was an error to generalise the conduct said to constitute the alleged offence in a way which removed the elements that made up the offence. In this case, the focus of the prosecution was on generalised sexual activity, which involved neither an assault nor a child. The focus of the tendency evidence should have been on the logical link to the elements of the offence charged, in this case involving both an assault and a child victim. The question was whether the evidence had “significant probative value” to prove the offence charged, ie indecently assaulting a young girl.
(emphasis added)
57․Again, in Morey, the court emphasised that there are difficulties with a tendency being expressed in a general fashion at [45]:
A critical element of the tendency sought to be established was that the conduct of the applicant alleged in the tendency notice was engaged in for the purpose of compelling the complainant to comply with the applicant’s demands. Without that element, the tendency alleged may have suffered from the defect identified in Henderson v The Queen, of being ‘no more or less than what might be described as the tendency of the abusers in [domestic] relationships to engage in … abusive behaviour towards their partners’.
(emphasis added)
58․Morey does therefore underline the importance of specificity in the delineation of a tendency. As I have stated, the tendency particularised by the prosecution tends towards the general rather than the specific.
59․In Murphy, I discussed the decision of Taylor at [34]-[35]. I summarised the following:
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].
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.
(emphasis added)
60․The majority in Taylor therefore found significant probative value concerning domestic violence tendency evidence in that case. I further note that the charges in the indictment in that case broadly concerned domestic violence.
61․In DPP v Ivanisevic [2023] ACTSC 34 (Ivanisevic), the prosecution sought to adduce tendency evidence that the accused had a tendency to act in an aggressive and violent manner towards the complainant. The accused was charged with three counts of assault occasioning actual bodily harm and one of intentionally inflicting grievous bodily harm. On the issue of evidence from a single complainant and specificity of the tendency, McCallum CJ stated at [18]:
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.
(emphasis added)
62․I note in Ivanisevic, the period of time of the alleged violent conduct was approximately three months. In this case it is approximately nine months (June 2021 – approximately March 2022) not including incident 6 which occurred on unknown dates. I further note the measure of specificity referred to by McCallum CJ in Ivanisevic. In finding the evidence had significant probative value, her Honour continued at [26]-[27]:
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.
(emphasis added)
63․In the present case, there is no doubt the tendency is cast by the prosecution at a level of generality. But that does not necessarily mean it does not satisfy the significant probative value test as discussed in Ivanisevic above. Much like the facts in Ivanisevic, the alleged tendency conduct occurred over a relatively short period of time; the conduct related to the same complainant; and the incidents occurred in the context of a domestic relationship and within the context of alleged coercive control. However, the tendency sought to be adduced in Ivanisevic, was a tendency for the accused to act in an aggressive and violent manner towards the complainant, and the charges on the indictment in that case included multiple counts of assault occasioning actual bodily harm and intentionally inflicting grievous bodily harm. Here, the tendency is that the accused committed acts of family violence on his domestic partner (the complainant) generally and, in contradistinction to Ivanisevic, the counts on the indictment (in the case I am considering) are sexual intercourse without consent and an act of indecency.
64․In relation to incidents 1, 2 and 6, although it is not a necessary condition of tendency evidence that it have similarities to the charged conduct, it is useful to highlight the similarities between these events:
(a)Generally, as can be surmised from the tendency notice, incidents 1, 2 and 6 occurred between the accused and the complainant in the absence of anyone else. I note in relation to incident 1 that a witness overheard the incident and saw and spoke with the complainant and the accused immediately after the assault;
(b)The incidents involved physical violence; and
(c)The incidents occurred within the context of a domestic relationship.
65․I am satisfied that these alleged tendency events have significant probative value as they prove the tendency and go towards proving factual elements of the offences. I am satisfied they have a necessary logical link to the elements of the charged offences. This is because, in my view, the accused’s tendency to be physically violent with the complainant assists in determining a fact in issue in this particular case. Nevertheless I note in respect of incident 2 that the allegations post date the sexual offences charged in the indictment. I note the prosecution written submission state Incident 2 occurred “on an unknown number of occasions on unknown previous dates during the course of their relationship (after approx. January/February 2022).” The two offences charged on the indictment occurred on 4 December 2021. It is of course accepted that post offence conduct can in appropriate cases establish a tendency. However as discussed by Refshauge J in Parkinson at [55] and McCallum CJ in Sean (No 2) at [21]-[24], such conduct does not have the same “predictive” capacity as past conduct. Importantly, McCallum CJ in that case emphasised at [24] that the “violent tendencies of adolescents require more cautious analysis”. In the case before me the accused was 17 at the commencement of the relationship and 18 at the time of the allegations. Such cautious analysis is appropriate and called for in my analysis of the proposed tendency evidence.
66․In relation to incidents 3, 4 and 5, the alleged conduct is of a different kind. They are more reflective of the accused being emotionally controlling and coercive and threatening. These incidents are indicative of an effort to control the relationship with the complainant and, unlike incidents 1, 2 and 6, do not involve actual physical violence. In my view, a tendency that the accused was emotionally controlling and coercive and threatening has more limited probative value.
67․As I have stated earlier, the prosecution’s tendency notice suffers from generality. That generality does not assist the prosecution’s tendency application but rather undermines it.
68․It is fraught with difficulty to reason that a tendency for the accused to coercively control the complainant significantly assists in determining the facts in issue in this specific case concerning the charges on the indictment. This is so in circumstances where, on the prosecution case statement, actual force was used in the commission of the offences. That is, the accused allegedly “touched the complainant’s vagina,” “grabbed the complainant’s hair and made her open her mouth and begin performing fellatio on him” and “continually held her head and pushed it towards his penis making her continue penile-oral intercourse.”
69․I note that incidents 3, 4 and 5 are all on unknown dates that apparently postdate the allegations on the indictment. In my view, there are some difficulties with the admissibility for tendency purposes of incidents 3, 4 and 5. Nevertheless I am prepared to assume for the purposes of determining this application that there is significant probative value. Even on that assumption, I am not persuaded that the probative value outweighs the danger of unfair prejudice under s 101. The danger of unfair prejudice in my view is clear in relation to incidents 3, 4 & 5.
70․In my view the risk of unfair prejudice is high and the probative value would be outweighed by the risk of unfair prejudice in respect of all six incidents. That is because there is a high risk the tribunal of fact may misuse this evidence and be unnecessarily distracted from the real facts in issues, namely, the proof beyond reasonable doubt or otherwise of the elements of each offence on 4 December 2021.
71․I discuss more broadly the issue of unfair prejudice below.
Danger of unfair prejudice to the accused
72․In assessing unfair prejudice, regard must be had to whether the tribunal of fact, if the evidence were adduced, would use it in an unfair or improper way.
73․As to the balancing exercise under s 101 of the Evidence Act, in R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 the court stated at [73] that “prejudicial effect” conveys the idea of “harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way” (also see Xie v The Queen [2021] NSWCCA 1; 386 ALR 371 at [782]).
74․In Taylor, Bell P at [122 (xxiii)] (although in dissent as to the result in that case) usefully outlined a variety of factors in which unfair prejudice might arise. These include:
(a)The nature or quality of the conduct the subject of the tendency evidence;
(b)Whether or not it has been established or the subject of admissions;
(c)Where it involves a plethora of factors that might give rise to a confusion or distraction;
(d)Whether it is corroborated;
(e)An underestimation by the jury of the number of persons who share the tendency;
(f)Where there has been no past conviction or admission as to the past conduct, the need for an accused to answer uncharged conduct potentially stretching back over many years; and
(g)A jury’s emotional or irrational response to particular tendency evidence; or
(h)Any combination of the above factors which are non-exhaustive of the factors that may exist where as a consequence, unfair prejudice may arise.
75․I conclude that the risk of unfair prejudice to the accused in relation to incidents 1 to 6 is high and the probative value is outweighed by the risk of unfair prejudice. This is for the following reasons.
76․The probative value of the evidence does not outweigh the danger of unfair prejudice to the accused. This is because of a combination of the following factors:
(a)First, there are numerous incidents relied upon. The number of incidents relied upon by the prosecution may distract the jury from their principal task of determining the charges on the indictment.
(b)Second, the charges on the indictment relate to sexual offences. Tendency incidents 1, 3, 4, 5 and 6 do not relate to sexual offences as such.
(c)Third, tendency incidents 2, 3, 4 and 5 relate to post offence conduct. As discussed earlier at [65] “violent tendencies of adolescents require more cautious analysis” per R v Sean (No 2) at [24]. Such tendencies are more likely to be the subject of unfair prejudice and the predictive capacity is both lower and subject to hindsight bias.
(d)Fourth, the tendency incidents tend to a generalised assertion of general bad character. Such evidence may lead to unfair prejudice and thereby an unfair trial. A primary duty of all judges is to ensure fair trials in our courts.
77․I have taken into account, in considering whether the probative value of the tendency evidence outweighs its prejudicial effect, that the court is entitled to take into account that juries are to be properly directed as to the use such evidence may be put. See Taylor at [122(xxiv)] and R v PWD [2010] NSWCCA 209, 205 A Crim R 75 at [90].
78․The issue of proper trial directions is important, as is well understood by Trial Judges. Nevertheless jury directions are not an “unfailing panacea for all forms of prejudice”: see Taylor at [122(xxv)] and Allen v The Queen [2020] NSWCCA 173 at [111] and [160]. Jury directions are not a universal cure and in my view on the specific facts of this case jury directions would not cure unfair prejudice. A presumption of innocence should not be shrouded by a potential presumption of guilt. There must always be a careful analysis of purported tendency evidence and the issues of unfair prejudice, such that the use of tendency evidence does not undermine the presumption of innocence. Trial by bad character is anathema to proper criminal law principle. There is in my view a relevant and significant danger in the case before me, such that the probative value is outweighed by the danger of unfair prejudice.
79․Before concluding I make the following point. Self-evidently, the application that I have dealt with is in relation to tendency evidence. The application before me was not an application concerning what has come to be known as context evidence or background or relationship evidence. That category of evidence will be a matter for the Trial Judge as the reasoning process for context evidence is distinct from tendency evidence: see DPP v Mastalerz [2024] ACTSC 30 at [50]-[53].
Orders
80․I make the following orders:
(1)The prosecution is not permitted to adduce evidence of incidents 1 to 6 as outlined in the Notice of Intention to Adduce Tendency Evidence dated 3 July 2023.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 09 April 2024 |
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