R v Aguer
[2023] ACTSC 48
•15 March 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Aguer |
Citation: | [2023] ACTSC 48 |
Hearing Date(s): | 15 March 2023 |
DecisionDate: | 15 March 2023 |
Before: | Norrish AJ |
Decision: | See [28] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – Tendency and Coincidence evidence – application to adduce coincidence evidence granted – application to adduce tendency evidence to be considered by the trial judge |
Legislation Cited: | Evidence Act 2011 (ACT) ss 97, 98, 101 Criminal Code 1995 (Cth) s 135.1(3) |
Cases Cited: | Fischetti v The Queen [2019] ACTCA 2 Giourtalis v The Queen [2013] NSWCCA 216 R v Nassif [2004] NSWCCA 443 |
Parties: | The King ( Crown) Ruben Majok Aleer Aguer ( Accused) |
Representation: | Counsel M Keks ( Crown) J Moffett ( Accused) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Fraser Criminal Law ( Accused) | |
File Number(s): | SCC 96 of 2022 |
NORRISH AJ:
In this matter, an application is made by the prosecution that it be permitted to adduce evidence of the conduct of the accused to prove both that he had a tendency to act in a particular way and to have a particular state of mind (s 97 of the Evidence Act 2011 (ACT) (the Act)) and/or that two or more events happened to prove that the accused had a particular state of mind (s 98 of the Evidence Act 2011 (ACT)), the latter evidence being shortly described as “coincidence evidence.”
The Crown proposes to arraign the accused in respect of 31 counts contrary to s 135.1(3) of the Criminal Code 1995 (Cth). Shortly put, it is alleged by the prosecution that between 26 May 2014 and 12 October 2015, the accused, in respect of 31 different groups of transactions, falsely represented that he had provided services, with the intention on his part of dishonestly causing loss to the Commonwealth.
The amended Crown case statement sets out an outline of the allegations against the accused, who, at relevant times, was an approved “provider” responsible for “managerial and administration services” pursuant to what is described as the “Family Assistance Law.” This legislative structure allows for “family day care” where an educator “looks after children in their own home,” working in conjunction with the relevant “provider” or relevant “providers.”
It is alleged, in relation to each count, that the accused made claims in his capacity as the sole operator and one of the two general managers of a corporation called “Long Life Family Day Care Pty Ltd” (“Long Life”) for the payment of services that were not rendered by particular educators. The monies received were dispersed either to the corporation, to the accused himself, or to particular educators. Each count relates to claims in respect of sessions of care for particular children purportedly cared for by specific educators, with 18 counts relating to one particular educator, who, as I understand it, was the partner of the accused, and the remaining 13 counts relating to other educators.
The Crown alleges that for the purposes of both tendency and coincidence reasoning, the particular state of mind sought to be proved by the evidence is that the accused “knew” that each of the false representations that he made to the Department, that is sessions of day care had been provided by particular educators to particular children on behalf of “Long Life,” were false.
The consideration of the Crown's notices relating to its desire to rely upon tendency and coincidence reasoning in the proof of guilt of the accused requires regard to be had to s 97, concerning tendency evidence, s 98, concerning “coincidence reasoning” and s 101 of the Act.
The material produced by the Crown to the Court, including its written submissions, has been considered by learned counsel for the accused who appears before me. The position of the accused’s counsel is that the accused neither consents nor objects to the course of action sought to be undertaken by the Crown in the context of what could be called, a “qualified” concession by the accused.
I raised with the parties the issue of whether it was appropriate, in the circumstances of the case, to rely upon both tendency and coincidence reasoning, for this may cause confusion in the minds of the jury, or at least make the case more complicated in its presentation than is required in all of the circumstances of the matter.
I should say, in addition to the excellent written submissions prepared by the Crown, I have been assisted by supplementary submissions made by the learned Crown prosecutor today, addressing matters that emerged from my concern about both tendency and coincidence reasoning being left to the jury. The comments I make now about that aspect of the matter, by reference to the submissions, are not to be seen as necessarily concluding what might be the ultimate decision made in this respect. But the Crown, in my view, fairly conceded that it may be thought, at face value, that “coincidence reasoning” was the stronger of the two bases for reliance upon the evidence of particular conduct specific to particular counts being available in relation to the proof of other counts in the indictment.
It emerged from the oral submissions that the Crown indicated, in the context of the matters that I had raised, and by regard to the very submissions that were being made by the Crown about the relative strengths of tendency and coincidence reasoning, that it may be a matter where it would be proper for myself, considering the matter before the trial, to make a ruling permitting the use of what could be called “coincidence reasoning,” and to allow the issue of whether “tendency reasoning” should be left to the jury for the trial judge, having regard to all the circumstances that are available for consideration at the end of the Crown case. This course of action is not opposed and, in fact, is, as I understood it, embraced by learned counsel for the accused.
I should state the basis of the Crown’s applications. I return then to the untrammeled written submissions of the Crown as prepared before the conduct of the proceedings today. The Crown, in those submissions, submitted that the evidence of claimed tendency, pursuant to s 97 of the Act, has significant probative value.
The Crown submits, in relation to the issue of tendency, that it is able to establish that the accused made a large number of false representations in respect of many educators and children in the course of the conduct of his business over a relatively confined period of time. It is submitted by the prosecution that the accused engaged in a pattern of behaviour, or had a modus operandi, in which he would routinely engage, knowingly making false representations that care had taken place when it had not.
The Crown wishes to proceed on the basis that if the jury found the applicant guilty of any one count, then the jury may consider his guilt of that offence, and considering his guilt in relation to other offences, as evidence of his tendency to commit such crimes, and that successive proof of these matters strengthen the evidence of the existence of such a tendency, citing the New South Wales decision of R v Nassif [2004] NSWCCA 443, particularly at [51].
The Crown submitted that, “the more numerous the claims of tenancy evidence, and the more specific, the stronger the probative value” and, thus, more likely proof of the commission, “and thus, the more likely the admission of the evidence,” citing Nassif.
The Crown submits that the likely issue at the trial will be the question of the state of mind of the accused and, particularly, whether the accused knew that specific representations relevant to each count were false. It transpires that counsel for the accused concedes that this will be the relevant issue in the trial, bearing in mind admissions made by the accused about the fact that certain representations were made and other objective evidence that supports the position of the Crown that these representations were made by the accused.
The Crown submitted in its written submissions that, as there was no direct evidence of a state of mind of the accused, the existence of the alleged tendency would be significant in such a circumstantial case that exists to establish that state of mind. The specific nature of the alleged tendency supports a conclusion that it has “significant probative value.” It is submitted by the Crown that if the jury could be satisfied the accused had the tendency to make false representations to the Department of a particular nature, it would rationally affect the probability of the existence of the fact that the accused knew that the representations were false to a significant extent.
Insofar as the issue of coincidence reasoning and its relevance in proof of guilt, the Crown points to the process of reasoning underlying the probative value of this evidence for this purpose. It notes, firstly, that it requires proof of two or more events occurring. Secondly, there were similarities in those events or circumstances in which those events occurred or both. Thirdly, having regard to those similarities, it was improbable that the two events occurred coincidentally, and, fourthly, therefore, the accused either performed a particular act or had a particular state of mind.
The Crown states that the nature of the false representations and the circumstances in which they were made were “strikingly similar” and, thus, it is “improbable that the false representations were made coincidentally” (or accidentally), or were made by “honest mistake” on the part of the accused.
On this basis it is submitted by the Crown, by reference to the reliance upon coincidence reasoning, that if the Crown were satisfied that the representations were made and were false in a particular instance, because the relevant care required to have occurred had not taken place, it could take into account the improbability of coincidence when considering a particular count on the indictment.
Furthermore, the Crown submitted that in the context of the consideration of s 101(2) of the Act, the evidence for both “tendency” and “coincidence” purposes had significant probative value. In the context of the circumstantial case relied upon to establish the state of mind of the accused, it is submitted that the only available inference, in all of the circumstances, was that, by reference to both methods of reasoning, the accused knew that the care, which was the subject of a particular representation, had not been provided.
Further, it is submitted there is no danger of “unfair prejudice” because the evidence is not of an inflammatory or emotional character, the accused is not required to answer for uncharged conduct, and any such prejudice that may arise can be ameliorated by direction in the traditional manner, such as the jury being required to give separate consideration to each count. I should point out, in relation to the issue of the consideration of s 101(2) of the Act, I agree with the Crown's analysis.
The Crown, in its written submission, cites a number of authorities that deal with the issue of cross-admissibility of evidence in the context of alleged frauds for both tendency and coincidence purposes. Two of those judgments are worth citing without further comment. Fischetti v The Queen [2019] ACTCA 2, a judgment of the ACT Court of Appeal delivered on 13 February 2019, and the New South Wales judgment to which I referred to in the course of discussion of this matter, Giourtalis v The Queen [2013] NSWCCA 216, particularly at [54]–[70].
Those judgments both reflect upon the issue of the reliance upon tendency and/or coincidence reasoning in the context of what could be loosely described as “fraud” cases which could be a general description of the matters with which the indictment in this matter is concerned. In particular, the New South Wales authority deals with an instance where, at least implicitly, the New South Wales Court of Criminal Appeal approved the use of tendency and coincidence reasoning in relation to the same set of allegations.
As I said earlier, however, it seemed to me, by consideration of all of the material, that it might fairly be thought that the reliance upon coincidence reasoning was of more significant probative purpose than the reliance upon tendency reasoning. As the Crown's written submissions make clear, there is a complexity in the avenue of tendency reasoning which does not arise in the use of the reasoning permitted by s 98 of the Act.
Having regard to all of the material, and having regard to the position of the parties, I conclude, ultimately, that I should grant the application of the Crown and permit, for the purposes of the conduct of the trial at this point, the use of evidence for “coincidence” purposes pursuant to s 98 of the Act on the basis suggested by the Crown, and that the question of law, as it is described in the Crown's application, set out at paragraph 2, is answered in the affirmative. That is, that “coincidence” evidence identified by the Crown is admissible for the purposes of the trial, pursuant to s 98 of the Act, and ought not be excluded by consideration of s 101 of the Act.
As to whether leaving both “tendency” and “coincidence” reasoning to the jury may be unnecessarily complicated, a fair judgment of whether that is so is really one, to my mind, to be made by the trial judge. Thus, in the circumstances, the question of law identified in paragraph 1 of the application I need not answer at this time.
I must say that one would have thought, at the end of the day, that s 101 would not be engaged, in respect of the reliance upon that evidence for tendency purposes to exclude it. But again, these are matters best left, in due course, to the trial judge, having regard to the state of the evidence in the Crown case at trial.
Orders
I make the following orders:
(1) The coincidence evidence identified in the application in proceedings filed 25 November 2022 by the Crown is admissible pursuant to s 98 of the Evidence Act 2011 (ACT) and ought not be excluded pursuant to s 101 Evidence Act 2011 (ACT).
(2) The issue of whether the Crown may adduce “tendency evidence” (from the conduct of the accused) pursuant to s 97 of the Evidence Act 2011 (ACT) be left to the Trial Judge on further application of the Crown, relying on the current application filed.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Norrish Associate: Date: |
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