R v Agresti

[2015] ACTSC 105

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Agresti

Citation:

[2015] ACTSC 105

Hearing Date:

24 April 2015

DecisionDate:

14 May 2015

Before:

Burns J

Decision:

The Crown’s application to adduce tendency evidence is refused.

Category:

Principal Judgment

Catchwords:

CRIMINAL LAW – Particular Offences – offences against the person – sexual intercourse without consent and being reckless as to consent – trespass with intent to commit an offence that involves causing harm, or threatening to case harm, to anyone in the building.

EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by potential prejudicial effect – application refused.

Legislation Cited:

Crimes Act 1900 (ACT) s 67 (e)

Evidence Act 2011 (ACT) ss 97, 101

Cases Cited:

Saoud v R [2014] NSWCCA 136

Parties:

The Queen (Crown)

Harlan Agresti (Respondent)

Representation:

Counsel

Mr T Hickey (Crown)

Mr A Doig (Respondent)

Solicitors

ACT Director of Public Prosecutions (Crown)

S & T Lawyers (Respondent)

File Number:

SCC 252 of 2014

Burns J:

Background

1. The respondent, HA, is awaiting trial on three offences:

(a)FIRST COUNT: That on 22 June 2013 or 23 June 2013 at Canberra in the Australian Capital Territory, HA engaged in sexual intercourse with BN without her consent and being reckless as to whether she was consenting.

(b)SECOND COUNT: That between 1 February 2014 and 28 February 2014 at Canberra, HA entered or remained in a building as a trespasser with intent to commit an offence that involves causing harm, or threatening to cause harm, to anyone in the building.

(c)THIRD COUNT: That between 1 February 2014 and 28 February 2014 at Canberra, HA engaged in sexual intercourse with AG without her consent and being reckless as to whether she was consenting.

1. These three charges relate to two incidents which are alleged to have occurred at the Australian Defence Force Academy (ADFA) where the respondent was an officer cadet. The two complainants, BN and AG, were also officer cadets. In relation to the first count, it is alleged that, on 22 June 2013, BN attended nightclubs in Canberra with a number of other cadets. She became intoxicated and the respondent assisted her to her accommodation at ADFA. It is alleged that, while she was passing in and out of consciousness, the respondent had sexual intercourse with her. In relation to the second and third counts, it is further alleged that, on a night in February 2014, AG also attended a number of nightclubs in Canberra with other cadets including the respondent. She became intoxicated and the respondent is alleged to have assisted her to her accommodation at ADFA and made sexual advances which she rejected. It is alleged that, while she was getting ready for bed, the respondent entered her room and had sexual intercourse with her.

1. All three charges are currently contained on the same indictment. By an Application in proceeding dated 8 April 2015 (the Application), the Crown seeks orders that it be permitted to adduce evidence of each incident as tendency evidence with respect to the charges concerning the other incident in order to prove that the respondent had a tendency to act in particular ways and to have particular states of mind as described in a Notice of Intention to Adduce Tendency Evidence (the Tendency Notice) dated 8 April 2015. The Tendency Notice was served on the respondent and, as such, I am satisfied that the respondent was given reasonable notice of the Crown’s intention to adduce tendency evidence. The Tendency Notice particularises the acts and states of mind sought to be proved by the tendency evidence as follows:

That the accused had a tendency to have a particular state of mind, namely:

(a)      To sexually pursue young ADFA women while they were intoxicated.

(b)      To engage in sexual intercourse with young ADFA women while they   were intoxicated regardless of whether they were consenting.

That the accused had a tendency to act in particular ways, namely:

(a) To take advantage of young ADFA women while they were intoxicated by engaging in sexual intercourse with them;

(b)To engage in sexual intercourse with young ADFA women without their consent.

1. This application is governed by the following provisions of the Evidence Act2011 (ACT):

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 persons character or otherwise) to act in a particular way, or to have a particular state of mind unless –

(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the      evidence, have significant probative value.

101Further restrictions on tendency evidence and coincidence evidence adduced by  prosecution

(1)This section only applies in a criminal proceeding and so 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 substantially outweighs any prejudicial effect it may have on the defendant.

Consideration

1. In support of its application, the Crown referred me to the decision of the Court of Criminal Appeal in Saoud v R [2014] NSWCCA 136. The accused in that case was charged with seven counts of indecent assault and sexual assault on the basis of two separate complaints. The circumstances of each complaint were similar: the complainants, both former employees of the applicant, were invited to his business premises after hours to help with work, where he persisted in sexual advances despite attempts to resist. The accused denied the charges relating to the first complainant, but conceded the conduct constituting the indecent assaults with the second complainant, but said it was consensual. The primary judge determined that the evidence relating to each complainant should be cross admissible as tendency evidence with respect to the charges concerning the other complainant. On appeal, Basten JA, with whom Fullerton and R.A. Hulme JJ agreed, determined that the evidence had been properly admitted, saying, at [49], [50] and [52]:

At the most basic level, the evidence of the two complainants suggested that the applicant was a man who was willing to extract sexual gratification from young women, indifferent to their willingness to participate (or otherwise). Expressed at that level of generality and noting that the incidents were some 18 months apart, the conduct alleged in one case would have only limited probative value with respect to the conduct in the other. While lack of consent and lack of interest in consent are common to the various complaints, the mere fact of two sexual advances to different women over an 18 month period would demonstrate nothing of significance. However, to the extent that such evidence was material, the fact that the jury might accept that the indecent assaults on KS occurred, but involves consensual activity, would not necessarily deprive the evidence of AC of such probative value as it otherwise had with respect to the complaints of intercourse.

The prosecution case went further than the bland statement set out above: reliance was placed upon what appeared to constitute a particular mode of operation involving the following elements namely:

(a)      both complainants were former female employees;

(b)      both were aged in their early 20s;

(c)      each was invited to the business premises by the applicant;

(d)the offences occurred on the business premises but outside business hours when no other persons were present; and

(e)during their brief periods of employment, each had been subjected to unwanted and inappropriate touching by the applicant, indicating, by inference, a sexual interest.

……….

The critical element of each complainant’s evidence was that she was lured to a place where the applicant would be alone, by what appeared to be a plausible pretext. Whilst the office and his business may not appear to be an obvious location for consensual sexual activity, that fact in isolation would not be a powerful factor. However, when combined with the first factor (the luring on a pretext) and with a third factor, namely the willingness to proceed with serious sexual activity in the face of rejection, the combined effect allowed the trial judge to find significant probative value.

1. There are some superficial similarities between the allegations in the present matter and those in Saoud. The Crown case against the present respondent is that on each occasion he used the opportunity presented by the complainants’ intoxication to return to ADFA with the complainant and be alone with her for the purpose of engaging in sexual activity. I am satisfied, however, that a closer analysis reveals that these superficial similarities are misleading. The prosecution case in Saoud involved an allegation of a particular modus operandi by the accused, commencing with a deliberate act of the accused in inviting the complainants to his business premises at a time when he would have known there was no one else around. In the present case, there is no allegation that the respondent engaged in conduct designed to result in the complainants’ intoxication, or that he initiated the return of the complainant to ADFA. The most that can be said from the Crown’s point of view is that the evidence supports the proposition that the respondent opportunistically took advantage of the complainants’ intoxication.

1. There are, in addition, some significant differences between the two incidents alleged against the respondent. First, there is the degree of intoxication of the complainant. The Crown alleges that BN was intoxicated to the point of losing consciousness, whereas AG, while intoxicated, was able to tell the respondent that she did not want to have sex with him, after which it is alleged that he pushed her up against the wall and engaged in sexual intercourse.

1. At the hearing of the present application, counsel for the respondent indicated that the acts of sexual intercourse alleged against him would be admitted, and the significant issue at trial would be consent. There are two separate issues relating to consent which, accordingly, remain in issue. The prosecution must prove firstly that the complainant did not, in fact, consent to the alleged sexual activity. In addition, the prosecution must also prove that the respondent was reckless as to whether the complainant was consenting to that sexual activity.

1. Evidence that one complainant did not consent to sexual activity with the respondent on a particular date cannot assist the jury in determining that a different complainant did not consent to sexual activity with the respondent on a different day.

1. In an appropriate case, such as Saoud, evidence that the accused persisted in engaging in sexual conduct despite the absence of consent with a particular complainant may be relevant to establishing that he may have persisted in attempting sexual activity despite the absence of consent with another complainant. In the present case, however, different issues relating to consent arise with respect to the two different complainants. With respect to BN, the Crown case will be that she was unconscious so that she could not consent to engaging in sexual activity, and that the respondent knew she was intoxicated and was reckless as to whether she was consenting. The Crown will also, as I understand it, rely upon the provisions of s 67 (e) of the Crimes Act1900 (ACT) to argue that any consent was negated by the effects on the complainant of intoxicating liquor. On the other hand, it is anticipated that AG will give evidence that she told the respondent that she did not want to have sex with him. It is true that AG says that she froze when the respondent commenced sexual intercourse with her, which may give rise to an argument on the part of the respondent that he believed that she was consenting. There is, however, no suggestion (unlike BN) that sexual activity occurred when she was unconscious.

Decision

1. I am not satisfied that the evidence the Crown proposes leading as tendency evidence has significant probative value. I am further satisfied that the probative value of the proposed tendency evidence is outweighed by the potential prejudicial effect of the evidence. For this reason, the application to lead tendency evidence will be refused.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 14 May 2015