Director of Public Prosecutions v Wilson (a pseudonym)
[2025] ACTCA 4
•31 January 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | DPP v Wilson (a pseudonym) |
Citation: | [2025] ACTCA 4 |
Hearing Date: | 29 January 2025 |
Decision Date: | 31 January 2025 |
Before: | Mossop J |
Decision: | See [27] |
Catchwords: | APPEAL – LEAVE TO APPEAL FROM INTERLOCUTORY JUDGMENT – s 97A of the Evidence Act 2011 (ACT) – tendency evidence – assessment of significant probative value – where primary judge found exceptional circumstances under s 97A(5) – whether the standard of review under s 97A(4) is House v The King or correctness |
Legislation Cited: | Evidence Act 2011 (ACT), ss 97A, 101 Supreme Court Act 1933 (ACT), s 37E |
Cases Cited: | BC v R [2015] NSWCCA 327; 257 A Crim R 340 DPP v Wilson (a pseudonym) (No 2) [2024] ACTSC 286 DPP v Wilson (a pseudonym) [2023] ACTSC 100 House v The King (1936) 55 CLR 499 Hughes v The Queen [2017] HCA 20; 263 CLR 338 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 R v Bauer [2018] HCA 40; 266 CLR 56 R v Clarke [2023] NSWCCA 123; 111 NSWLR 501 R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 |
Parties: | Director of Public Prosecutions ( Appellant) Wilson (a pseudonym) ( Respondent) |
Representation: | Counsel V Engel SC with B Chifuntwe ( Appellant) A Williamson SC with J Cunliffe ( Respondent) |
| Solicitors ACT Director of Public Prosecutions AKN & Associates ( Respondent) | |
File Number: | ACTCA 28 of 2024 |
Decision Under Appeal: | Court/Tribunal: Supreme Court of the ACT Before: Taylor J Date of Decision: 16 September 2024 Case Title: DPP v Wilson (a pseudonym) (No 2) Citation: [2024] ACTSC 286 Court File Numbers: SCC 306 of 2022 SCC 354 of 2022 |
MOSSOP J:
Introduction
1․This is an application for leave to appeal from a decision of Taylor J: DPP v Wilson (a pseudonym) (No 2) [2024] ACTSC 286. The judgment of the primary judge involved the variation of an order made earlier by Berman AJ (DPP v Wilson (a pseudonym) [2023] ACTSC 100) and precluded an aspect of the cross‑admissibility of evidence in relation to offending alleged to have occurred against two sisters. The effect of the ruling was to require the severance of the retrial so that the allegations made by each sister were to be tried separately. The decision involved the application of s 97A of the Evidence Act 2011 (ACT), which contains provisions relating to the admissibility of tendency evidence in proceedings involving child sexual offences.
2․In determining whether or not to grant leave to appeal under s 37E(4) of the Supreme Court Act 1933 (ACT) from an interlocutory decision in a criminal matter, it is relevant to consider the following:
(a)whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by the Court of Appeal;
(b)whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong; and
(c)whether a grant of leave would fragment the criminal trial process, and if so, whether there are any circumstances sufficient to justify a grant of leave.
The charges
3․For present purposes, it is sufficient to note the following:
(a)charges 1 to 3 relate to conduct directed to LO (born in 2003);
(b)charges 4 to 9 relate to conduct directed to FO (born in 1996).
4․The factual allegations the subject of the charges are summarised in the primary judge’s reasons.
The primary judge’s ruling
5․The change in circumstances that provoked the application to revisit the earlier ruling was the expansion of the date range of the offending so that the offending against LO was alleged to have occurred in a period that extended from 2009 to 2012 rather than from 2011 to 2012. That meant that LO might have been as young as five years old.
6․The primary judge found exceptional circumstances in relation to the difference in the ages of the sisters at the time of the alleged offending against each. That was a matter in relation to which exceptional circumstances were required under s 97A(5)(c). The primary judge adopted the approach of Berman AJ and referred to the sexual interest demonstrated in LO as having the “flavour of paedophilia”, with the sexual interest in relation to FO being “an adolescent male acting on a sexual attraction to an age‑appropriate friend”.
7․The primary judge then went on to consider whether the tendency evidence did not have significant probative value under s 97A(4).
8․She described the incidents involving LO as being “unequivocally paedophilic” but “begin[ning] somewhat playfully”, and contrasted them with incidents involving FO, which were described as having “an air of menace and/or control about them” (at [49], [58]‑[59]).
9․The primary judge placed emphasis upon the age of the accused, being between 15 and 18, emphasising that because of his youth his behaviour could not necessarily be explained by reference to patterns of behaviour or fixed tendencies, referring to the decision in R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 and the dissenting judgment of Adams J in BC v R [2015] NSWCCA 327; 257 A Crim R 340 and saying (at [70]):
None of this is to say that evidence of conduct engaged in by a young person cannot ever be adduced in support of tendency reasoning. So much is clear from the result in BC. However, the probative value of evidence said to reveal a tendency in a young person in my view should be carefully scrutinised because of what can be accepted as to the significance of the developing brain and the limited opportunity a young person has to develop tendencies.
10․Her Honour then referred to the accused’s age when the offending against LO is said to have occurred, and the temporal connection between the offending against LO and FO, as undermining the capacity to characterise the accused’s conduct as a continuing manifestation of a tendency. The reference to the temporal connection between the offending against LO and FO appears to fall within the scope of s 97A(5)(e), being a matter in relation to which exceptional circumstances needed to be established.
11․Her Honour made reference to the similarities between the alleged conduct in circumstances involving both sisters and recognised that this added to the probative value of the evidence.
12․Her Honour then made reference to the decision in Hughes v The Queen [2017] HCA 20; 263 CLR 338 and the statement (at [64]) that:
A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.
13․Reliance upon this passage in Hughes and the generality of the tendency appears to be a matter which, if it was to be taken into account when determining whether there are sufficient grounds for the purposes of subs (4), required the establishment of exceptional circumstances pursuant to s 97A(5)(g).
14․One obscure aspect of the primary judge’s decision is that — although the application made by the accused sought that, notwithstanding the earlier ruling of Berman AJ, the evidence in relation to one complainant not be admissible as tendency evidence in relation to charges relating to the other complainant — the primary judge’s order only precluded the evidence relating to LO being admissible as tendency evidence in the charges against FO, and not the other way around. The order made left it open for the evidence in relation to FO to be admissible as tendency evidence in the proceedings involving LO. The reasons given by the primary judge do not explain any reason for the different treatment, although the reasons at [84]‑[85] do indicate a deliberate decision. They do not, for example, place reliance upon s 101 to provide a basis for the difference of approach. The reasons of the primary judge would be consistent with preventing any cross‑admissibility of tendency evidence between complainants. Notwithstanding the limited nature of the order actually made, the accused did not seek to disturb the order made by the primary judge.
The draft notice of appeal
15․The draft notice of appeal raises whether the primary judge erred in her approach to “exceptional circumstances” in s 97A(5) and whether the primary judge erred in concluding that the evidence lacked significant probative value.
16․The applicant submitted that:
(a)the presumption in s 97A applied;
(b)the primary judge erred in concluding that exceptional circumstances were established so as to permit consideration of matters in s 97A(5); and
(c)the primary judge erred in concluding the evidence lacked significant probative value.
Consideration
17․The respondent contends that the application of s 97A involves the exercise of a discretion as a result of the use of the word “may” in s 97A(4) and hence the test for review is House v The King (1936) 55 CLR 499, rather than correctness. By that means, the respondent seeks to make the decision less able to be challenged and hence more difficult for the applicant to obtain a grant of leave to appeal.
18․The Director explained that the significance of the allegations relating to LO in the trial relating to FO was that the evidence would, as in Hughes, help remove any doubts that the jury might have arising from the brazenness of the conduct. She therefore submitted that the exclusion of that evidence would significantly weaken the prosecution case.
19․The Director then made submissions to the effect that the circumstances were not such as to establish exceptional circumstances so as to permit the personal characteristics of the complainants to be taken into account under subs (4). She submitted that the circumstances relied upon were simply the existence of matters listed in s 97A(5), relying upon the statement in R v Clarke [2023] NSWCCA 123; 111 NSWLR 501 at [36] that in order to establish exceptional circumstances they needed to be “present in an exceptional degree” or that there needed to be “some other exceptional circumstance different altogether from anything in pars (a)‑(f)”.
20․As I have pointed out earlier, some aspects of the reasons are consistent with the primary judge having taken into account matters covered by s 97A(5)(e) and (g) without appearing to have considered whether there were exceptional circumstances in relation to each factor either by itself or in combination.
21․The Director then made submissions as to the particular matters relied upon by the primary judge to reach the conclusion that the evidence did not have significant probative value. The submissions contested the matters relied upon but also emphasised the significance of the fact that the complainants were siblings. To the extent that the relationship as siblings was not identified in the tendency notice that was before Berman AJ, the Director emphasised that what was before the primary judge was an application to vary the orders of Berman AJ, and his Honour had proceeded on a basis that gave significance to the familial relationship, saying at [41]:
The demonstrated tendency is much more than a tendency relating to children or young women generally. It is a tendency to have a sexual interest in girls from a particular family and to act on that sexual interest from time to time.
22․The respondent accused submitted that there was not sufficient doubt to warrant a grant of leave. The respondent contended that the age difference between the complainants was correctly found to be exceptional and that the potential difference in age meant that the offending in relation to LO had occurred when the accused was as young as 15. He submitted that there was no significant temporal proximity and that, having regard to the terms of the tendency notice, the question was not one involving sexual interest in child siblings. He submitted that the exceptional circumstances came from a combination of the factors in subs (5). Counsel emphasised the youth of the accused and the danger of relying upon tendencies in relation to a young and maturing brain. He submitted the prosecution of juveniles on indictment for sexual offences was exceptional in itself. He submitted that notwithstanding the enactment of s 97A, authorities such as Hughes, R v Bauer [2018] HCA 40; 266 CLR 56 and McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 were nevertheless relevant to the assessment of the probative value of the tendency evidence. The respondent pointed out the period between the alleged conduct in relation to the complainants was expanded as a result of the amendment of the indictment to extend the date range in relation to LO, submitted that the complainants’ different ages reflected a different type of sexual interest, and emphasised the distinction drawn by the primary judge between the nature of the allegations in relation to each complainant. Counsel made submissions pointing out the limited nature of the ruling which left it open to lead the evidence of FO in the trial relating to LO and also the potential for fragmentation of the criminal process.
23․I accept that if the decision of the primary judge is wrong then that will have significant consequences for the strength of the prosecution case in relation to FO, and hence, the Director will suffer an injustice that will be unable to be rectified in the event that the ruling was wrong. In my view, subject to the issue of fragmentation, the Director has established that the ruling is attended with sufficient doubt to warrant a grant of leave to appeal. Specifically, and without intending to confine the matters which might be raised upon any appeal, I consider that is established in relation to whether or not the threshold of exceptional circumstances was reached in relation to those of the matters considered by her Honour which fell within paras (a) to (g) of subs (5) and, if there were exceptional circumstances in relation to some or all of those, whether or not it was established that the tendency evidence did not have significant probative value.
24․In reaching this conclusion, I have not overlooked the argument put on behalf of the accused that the decision was a discretionary one. That reference to the word “may” in the context of the section as a whole does not clearly determine that the whole of the multi‑step exercise contemplated by s 97A is a discretionary one. Even if it was, then it would be open to the Director to establish an error of principle, error of fact or error of law and, having regard to the manner in which the application was put, reasonably open to the Director to contend that this threshold was met on an appeal. The respondent’s contention is therefore not sufficient to preclude a grant of leave and is a matter which can be argued on an appeal.
25․So far as the potential for fragmentation of the criminal process is concerned, the trials of both matters are listed back‑to‑back commencing on 12 May 2025. The court is able to list the appeal for hearing in the March sittings of the Court of Appeal. Having regard to the impending trial, it is likely that the Court of Appeal will be able to determine the outcome of the appeal prior to the commencement of the trial. There will be no relevant fragmentation of the criminal process notwithstanding that there will be additional proceedings that need to be attended to between now and the commencement of the first trial. In those circumstances, it is not necessary to consider whether, had a prompt hearing not been possible, a grant of leave would have been appropriate.
26․For those reasons, it is appropriate that there be a grant of leave to appeal.
Orders
27․The orders of the Court are:
(1)Leave to appeal is granted.
(2)The Director of Public Prosecutions is to file and serve a notice of appeal in the form of the draft notice of appeal, which is exhibit BC 9 to the affidavit of Bwalya Chifuntwe dated 23 September 2024 by 3 February 2025.
(3)The appeal is listed for hearing on 14 March 2025 at 2:15pm with an estimate of half a day.
(4)For the purposes of the application of Practice Direction 1 of 2016, appeal folder A is to be filed by 7 February 2025, and appeal folders B and C are to be filed by 4 March 2025.
(5)In the event that a party needs further direction as to the application or modification of Practice Direction 1 of 2016 in relation to the appeal, that party may seek further direction from the Registrar in chambers by email.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: |
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Amendments
28 April 2025 Substitute the pseudonym of the accused with the words “Wilson (a pseudonym)” in the following locations:
(a) the case title; (b) the coverpage, Cases Cited section (twice appearing); (c) the coverpage, Parties section; (d) the coverpage, Decision Under Appeal section; and (e) paragraph [1] (twice appearing).
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