Director of Public Prosecutions v Timosevski

[2024] ACTSC 85

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Timosevski

Citation: 

[2024] ACTSC 85

Hearing Date: 

19 March 2024

Decision Date: 

19 March 2024

Reasons Date:

28 March 2024

Before:

Loukas-Karlsson J

Decision: 

That the prosecution be permitted to adduce tendency evidence as notified in the Notice of Intention to Adduce Tendency Evidence dated 6 February 2024.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence - charged and uncharged incidents - significant probative value – whether probative value of evidence outweighs danger of unfair prejudice – single complainant – presumption s97A Evidence Act

Legislation Cited: 

Evidence Act 2011 (ACT) ss 55, 97, 97A, 101

Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT)

Cases Cited: 

DPP v Mastalerz [2024] ACTSC 30

DPP v Murphy [2023] ACTSC 4

Elomar vThe Queen [2014] NSWCCA 303; 316 ALR 206

HML v The Queen [2008] HCA 16; 235 CLR 334

Hughes v The Queen [2017] HCA 20; 263 CLR 338

Papakosmas v The Queen [1999] HCA 37; 196 CLR 297

R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56

R v PWD [2010] NSWCCA 209; 205 A Crim R 75

R v QX (No 5) [2021] ACTSC 247; 292 A Crim R 193

Restricted judgment [2024] ACTSC 35

Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528

TL v The King [2022] HCA 35; 275 CLR 83

TL v The Queen [2020] NSWCCA 265

Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370

Parties: 

ACT Director of Public Prosecutions ( Applicant)

Jaryn Timosevski ( Respondent)

Representation: 

Counsel

M Howe ( Applicant)

J Maher ( Respondent)

Solicitors

ACT Director of Public Prosecutions

Tu’ulakitau Mcguire Lawyers ( Respondent)

File Numbers:

SCC 238 and 239 of 2023

LOUKAS-KARLSSON J:     

Introduction

1. The prosecution has sought to adduce tendency evidence, pursuant to ss 97, 97A and 101 of the Evidence Act 2011 (ACT) (Evidence Act), that the accused had a sexual interest in the child complainant, and a tendency to act on that interest.

2. The accused, Mr Timosevski, is charged on indictment with the following:

   (a)Count 1: act of indecency with a person under 16.

   (b)Count 2: act of indecency with a person under 16.

   (c)Count 3: sexual intercourse with a person under 16.

   (d)Count 4: act of indecency with a person under 16.

   (e)Count 5: act of indecency with a person under 16.

   (f)Count 6: sexual intercourse with a person under 16.

   (g)Count 7: sexual intercourse with a person under 16.

   (h)Count 8: supply cannabis to a child.

   (i)Count 9: supply cannabis to a child.

   (j)Count 10: supply cannabis to a child.

3. The charges all relate to the same complainant.

4. The accused and the complainant met on Friday 2 December 2023 on a dating application known as ‘Tinder’. The prosecution alleged that the complainant was 13 years old at the time of the alleged offences, and the accused was 21 at the time of the alleged offences.

5. Specifically, the prosecution alleged that the accused, after meeting the complainant on Tinder, offered to teach her how to drive and offered her free vapes and drugs. The prosecution further alleged that between 5 or 6 December 2022 and 9 or 10 December 2022, the accused committed acts of indecency and had sexual intercourse with the complainant and supplied cannabis to the complainant.

6. The prosecution relied on four incidents as the specific tendency events. I note that incident 1 is the subject of Counts 1-3 on the indictment. Incident 2 is the subject of Counts 4–6 on the indictment. Incident 3 is an “uncharged” incident. Incident 4 is the subject of Count 7 on the indictment.

7. I note that, as submitted by the prosecution, this application is concerned with the use of evidence, rather than its admissibility. The prosecution submitted that each of the incidents referred to in the Notice of Intention to Adduce Tendency Evidence will be led as part of the trial irrespective of the determination of this application.  I note again in this context that there is an uncharged incident (incident 3).

8. The accused did not oppose the prosecution’s application and did not seek to be heard on the application. At the same time, the accused did not consent to the application. The Court must determine whether or not the application should be dismissed or granted.

9. For the below reasons, the prosecution application should be granted.

Tendency Application

1. On 8 February 2024, the prosecution filed a Notice of Intention to Adduce Tendency Evidence dated 6 February 2024 (Tendency Notice) in the proceeding against the accused. The Tendency Notice sets out the substance of the evidence that the prosecution relied on to establish the tendency asserted. The application in proceeding was filed along with an affidavit of a solicitor (the supporting affidavit).

2. For clarity and convenience, I will refer to the applicant as the prosecution and the respondent as the accused.

Tendency Notice

1. In accordance with the Tendency Notice, the prosecution sought to adduce evidence in the matter against the accused to prove that the accused had a sexual interest in the child complainant, and a tendency to act on that interest.

2. As particularised in the Tendency Notice, the prosecution relied upon 4 incidents, allegedly occurring between 5 or 6 December 2022 and 9 or 10 December 2022 to support the above asserted tendency. The specific material the prosecution intends to adduce to prove the alleged tendency is as follows:

Incident	Count / Charge no	Date	Particulars
1.	Count 1 - act of indecency with a person under 16	5 or 6 December 2022	The accused removed the complainant’s bra and groped her breasts while in his car.
	Count 2 – act of indecency with a person under 16	5 or 6 December 2022	The accused took all of the complainant’s clothes off and touched her everywhere, including her breasts and her vagina.
	Count 3 – sexual intercourse with a person under 16	5 or 6 December 2022	The accused engaged in penile-vaginal intercourse with the complainant whilst she was on top. She told him to stop but he kept going.
2.	Count 4 – act of indecency with a person under 16	7 or 8 December 2022	The accused began ‘squishing’ the complainant’s breasts over her T-shirt.
	Count 5 – act of indecency with a person under 16	7 or 8 December 2022	The accused put the complainant’s hand on his penis and used her hand and his own hand to masturbate himself.
	Count 6 – sexual intercourse with a person under 16	7 or 8  December 2022	The accused put his penis into the complainant’s vagina and moved her up and down.
3.	Uncharged incident	8 December 2022	The complainant returned to the accused’s house and they engaged in penile-vaginal intercourse on that date.
4.	Count 7 – sexual intercourse with a person under 16	9 or 10 December 2022	The accused put his penis into the complainant’s vagina while she was laying down, and he was on top of her.

1. The supporting affidavit exhibits the following material that the prosecution relied on in support of the tendency evidence application:

   (a)Annexed to the application and marked ‘IRH1’ is a copy of the prosecution Case Statement filed 27 October 2023.

   (b)Annexed and marked ‘IRH2’ is a copy of the Notice of intention to adduce tendency evidence dated 6 February 2024.

   (c)Annexed and market ‘IRH3’ is a copy of the transcript of complainant’s evidence in chief interview dated 11 December 2022.

   (d)Annexed and marked ‘IRH4’ is a copy of [redacted] online post made by the complainant.

Legislation and Legal principles

1. s 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.

   Note   The 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)

1. Section 97A of the Evidence Act 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.

(emphasis added)

1. 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)

Consideration

1. 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); and

   (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

1. In relation to whether the presumption in s97A(2) applies, in QX (No 5) I stated at [79]-[85]

   Does the evidence, either by itself or having regard to other evidence, have significant probative value? Section 97(1)(b)

   [79]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?

   [80] 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.

   …

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?

…

[85] 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.”

1. This is a matter where the s97A presumption applies and significant probative value is therefore presumed. There are no exceptional circumstances in this case.

Unfair prejudice

1. As I stated in QX (No 5), s 101(2) requires the Court to make a judgment as to whether the jury, if the tendency evidence is adduced, will use the evidence improperly or unfairly in some way.

2. In Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370, 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)

3. In Hughes v The Queen [2017] HCA 20; 263 CLR 338, the High Court 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)

4. However, as noted in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 by McHugh J at [91], “evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.”

5. 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 following the commencement of the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT) in 2020: see Murphy at [10] and [16]-[21].

Conclusion

1. Relevantly, tendency evidence has been described as a stepping stone. That is, in the sense of being indirect evidence providing a foundation for an inference that because a person has a particular tendency, it is more likely that the person acted/had the state of mind at the time of the criminal allegation. It may allow for tendency reasoning. I note Elomar v The Queen [2014] NSWCCA 303; 316 ALR 206 at [359] where the NSW Court of Criminal Appeal stated at [359]:

   Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning.

1. Further, I note as I did at the outset that counsel for the accused indicated that the accused did not seek to be heard on the application.

2. The prosecution submitted that the significant probative value of the tendency evidence (presumed under s97A of the Evidence Act) outweighs the danger of unfair prejudice to the accused. For the reasons that follow, I agree.

3. The prosecution submitted that the asserted tendencies are presumed to have a significant probative value under s97A of the Evidence Act. Further, I note the statements of the High Court in R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 as to cases involving a single complainant, at [49] – [51]:

   As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts…

   Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.

   The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the “very high probative value” of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.

4. The presumption can be rebutted if the Court determines there are sufficient grounds to do so: s97A(4)-(5) Evidence Act. The prosecution submitted that no such grounds exist. I agree, that in this case, no such grounds exist.

5. As to the danger of unfair prejudice, the prosecution submitted there is little danger of unfair prejudice. I agree as discussed below, taking into account the appropriateness of directions by the trial judge.

6. I note the critical question in the tendency application before me, is the question of the use of the evidence as tendency evidence, as opposed to the evidence being introduced in the trial at all.

7. Further, I note the comments made in TL v The Queen [2020] NSWCCA 265 (TL), that harm to a child will inevitably produce feelings of revulsion. I agree. Trial judges are called upon to give jury directions in such a manner as to ensure a fair trial. I additionally note Hoeben CJ in TL at [226]:

   Harm to a child will always engender strong feelings. That alone is not a bar in the many trials of sexual abuse where tendency evidence is admitted. The directions of a trial judge, as were given by her Honour in this case, can remove that risk of prejudice. Evidence of a tendency is not prejudicial simply because it tends to prove the commission of the offence which is charged. That constitutes, subject to proper directions, an appropriate use of the evidence, not its misuse. Nor is it prejudicial for a jury to reason that if the accused has demonstrated the alleged tendency, he or she is more likely to have committed the offence alleged. On the contrary, this is the very reasoning that underpins tendency evidence and the very basis upon which it is admitted.

   (emphasis added)

8. Thus, appropriate tendency directions by the Trial Judge may remove the risk of unfair prejudice. The question of unfair prejudice must be assessed in the context of appropriate Trial Directions to the jury by the Trial Judge. It is necessary to consider whether suitable directions can be formulated.

9. In summary, I conclude the following. First, there is significant probative value. Second, I must consider whether the probative value is outweighed by the danger of unfair prejudice. In this case, the probative value is not outweighed by the danger of unfair prejudice to the accused. There is significant probative value and any unfair prejudice may be dealt with by careful jury directions in this case: see for example R v PWD [2010] NSWCCA 209; 205 A Crim R 75 at [90]; see also TL and TL v The King [2022] HCA 35; 275 CLR 83.

10. Before concluding, I will be making two further points.

11. First, as I emphasised in Murphy at [59], a Court must assess the risks of unfair prejudice in light of potential directions without a general assumption that such directions will necessarily be successful: see Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528. I have assessed the risk of unfair prejudice in this case without a general assumption that a tendency direction will necessarily be successful. Rather it is my assessment that on the specific facts of this case the risks of unfair prejudice would be alleviated by careful direction by the trial judge.

12. Second, I note that in R v QX (No 5), I referred to the reservations of the High Court in HML v The Queen [2008] HCA 16; 235 CLR 334 regarding the use of the phrase “uncharged acts”:

    I note that in HML v The Queen [2008] HCA 16; 235 CLR 334 (HML v The Queen), three High Court Justices expressed reservation about the use of the phrase “uncharged acts” (Hayne J at [129]; Crennan J at [399] and Kiefel J at [492]. However, the High Court has since then used the phrase “uncharged acts” in subsequent cases: Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes v The Queen); R v Bauer(a pseudonym) [2018] HCA 40; 266 CLR 56 (R v Bauer). It appears the reservation surrounding the phrase was its use by a trial judge in directing a jury about tendency evidence, as it may convey to a jury “a view, on the part of the judge, that [the uncharged acts] were proper subjects for charges”: HML v The Queen at [492].

(emphasis added)

1. As I am self-evidently not at the stage of directing a jury, it is not appropriate for me to draft directions; that is a matter for the Trial Judge. It is not the function of this Court on an application such as this to draft trial directions: see DPP v Mastalerz [2024] ACTSC 30 at [105] and Restricted judgment [2024] ACTSC 35 at [57]. The injunction against the use of the phrase “uncharged acts” is a matter that may be borne in mind by the Trial Judge.

Orders

1. I make the following orders:

   (1)That the prosecution be permitted to adduce tendency evidence as notified in the Notice of Intention to Adduce Tendency Evidence dated 6 February 2024.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.

Associate:

Date: 28 March 2024