R v Aitchison
[2017] ACTSC 260
•12 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Aitchison |
Citation: | [2017] ACTSC 260 |
Hearing Date: | 8 September 2017 |
DecisionDate: | 12 September 2017 |
Before: | Elkaim J |
Decision: | See [40] |
Catchwords: | CRIMINAL LAW – 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 its potential prejudicial effect |
Legislation Cited: | Evidence Act 2011 (ACT) ss 97 and 101 |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 344 ALR 187 IMM v The Queen [2016] HCA 14; 257 CLR 30 Vojneski v The Queen [2016] ACTCA 57 |
Parties: | The Queen (Applicant) John Aitchison (Respondent) |
Representation: | Counsel Mr T Hickey (Applicant) Mr J Lawton (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Ben Aulich & Associates (Respondent) | |
File Number: | SCC 291 of 2016 |
ELKAIM J:
Sections 97 and 101 of the Evidence Act 2011 (ACT) deal with the ‘tendency rule’. Section 97(1) provides that:
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 [certain conditions are met].
Section 101 operates to impose further restrictions on the use of tendency evidence in criminal proceedings.
Section 97(1) requires that reasonable notice of a party’s intention to present tendency evidence is given to the other party. There is no dispute that reasonable notice was given in this matter.
Section 97(1) also requires that the evidence sought to be adduced has “significant probative value”. The question of whether evidence is significantly probative has been the subject of much judicial authority. For present purposes, I have primarily considered the decision of the High Court in IMM v The Queen [2016] HCA 14; 257 CLR 300 (‘IMM’) and the judgment of Burns J in R v CX [2016] ACTSC 106 (‘CX’).
The accused is due to face trial in November 2017, on an indictment containing 19 counts. The facts behind the 19 counts arise from seven different incidents. The relevant notice, dated 18 August 2017, outlines the facts relied upon by the Crown.
All of the incidents concern allegations of sexual offences committed by the accused against one complainant between August 1987 and October 1989. The complainant was born in 1973. She was between 13 and 15 years of age when the offences are alleged to have occurred.
The application to adduce tendency evidence is supported by the affidavit of Mr Murray Thomas, dated 21 August 2017. No objection was taken to the affidavit. It contains the evidence upon which the Crown relies to establish its case against the accused.
In addition to the application to adduce tendency evidence, the Crown also sought leave to lead the same evidence as context or relationship evidence. The Crown’s application was opposed in its entirety. The parties provided helpful written submissions and also made oral submissions, mostly arising from the questions that I put to them.
The tendency alleged by the Crown is that the accused had a sexual attraction to the complainant, a girl under the age of 16, and acted upon that tendency by obtaining sexual gratification from her. The Crown proposes to lead evidence of each of the counts in the indictment as evidence of that tendency.
The 19 counts in the indictment are made up of 11 counts of committing an act of indecency with a young person and eight counts of sexual intercourse with a young person.
By way of brief background, the complainant lived in Canberra with her mother and young brother. She was a member of a youth orchestra which rehearsed at a church in a suburb of Canberra. The accused was employed in the church and came to know the complainant and her mother. A friendship developed between the complainant’s mother and the accused. The complainant was encouraged to confide in the accused.
The first incident is alleged to have occurred when the complainant was rehearsing a violin piece in the church. It is alleged that the accused was looking at her and touching his groin, appearing to have an erection.
The second incident is alleged to have occurred some weeks later, again while the complainant was rehearsing in the church. The accused is said to have lowered his pants and pulled the complainant’s underpants down. He inserted his penis into her anus and sexual intercourse took place.
The third incident, to which counts three to six relate, is alleged to have occurred in the community hall next to the church. The accused placed himself on top of the complainant, touched her breast and kissed her. He inserted a finger into her vagina and then had penile-vaginal intercourse with her.
The fourth incident is the subject of counts seven to 11. It is alleged to have occurred in a swimming pool at the complainant’s home. The complainant and the accused were in the pool together. It is alleged that the accused put his hand inside her swimming costume and touched her groin. He grabbed and squeezed her breasts. He inserted his finger into her vagina on a number of occasions and placed her hand on his erect penis.
The fifth incident is alleged to have occurred at the complainant’s home. She was sitting on the sofa. The accused came into the room and locked the door. He had penile-vaginal intercourse with her.
The sixth incident, to which counts 13 to 15 relate, is alleged to have occurred in the same room as the fifth incident. The accused kissed the complainant, put her hand on his penis and then had penile-vaginal intercourse with her.
The final incident, to which counts 16 to 19 relate, is alleged to have occurred in the complainant’s bedroom. The accused touched the complainant on different parts of her body, kissed her, inserted a finger into her vagina and then had penile-vaginal intercourse with her.
The first point of contention between the parties arose from whether or not the decision of the plurality in IMM distinguished between the use of charged and uncharged acts in support of an alleged tendency. French CJ, Kiefel, Bell and Keane JJ said this at [62]:
In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant’s account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. This is not to say that a complainant’s unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
The Crown conceded that, other than the complaint evidence, the complainant’s uncorroborated account was the only source of evidence against the accused. The Crown also conceded that the complainant’s account did not have any “special features” which gave it significant probative value. Accordingly, if there is no distinction between a charged and an uncharged act, the Crown would not be successful in its application.
In my view, the last two sentences of the passage quoted above make it clear that the Court is distinguishing between charged and uncharged acts. The accused referred me to the decision of Gageler J at [107], where his Honour said:
The difficulty of concluding that the complainant’s testimony about the massage incident was capable of having significant probative value was not just that the testimony was uncorroborated. Her testimony about the massage incident was uncorroborated within a context in which the credibility of the whole of her testimony was in issue. There was nothing to make her uncorroborated testimony about that incident more credible than her uncorroborated testimony about the occasions of the offences charged. There was no rational basis for the jury to accept one part of the complainant’s evidence but to reject the other. The increased probability of the appellant having committed the offences which would follow from the jury accepting that part of the complainant’s testimony which constituted tendency evidence could in those circumstances add nothing of consequence to the jury’s assessment of that probability based on its consideration of that part of the complainant’s testimony which constituted direct testimony about what the appellant in fact did on the occasion of the offences. The probative value of the tendency evidence could not be regarded as significant.
The accused submitted that it is implicit in the above passage that no distinction should be drawn between a charged and an uncharged event. I disagree. I do not think that this distinction was the focus of the point being discussed by his Honour. I am of the view that the passage is directed at the likelihood of the jury accepting the proposed tendency evidence as demonstrating an “increased probability of the appellant having committed the offences”.
I think that the approach adopted by Burns J, from [34] of his judgment in CX, confirms my view that there is a distinction between charged and uncharged acts. In [35], his Honour notes: “[t]he Crown will not be permitted to lead evidence of the uncharged acts as tendency evidence. The evidence does not possess significant probative value”. His Honour then allowed the Crown to lead some charged acts as tendency evidence.
It follows that I reject the accused’s submission that the tendency application must necessarily fail because there are no “special features” to the complainant’s evidence.
The next issue that arises is whether or not the evidence that is sought to be led has significant probative value. In [40] of CX, Burns J said this:
In order to meet the test in s 97, it is not sufficient that the evidence has probative value. It must possess significant probative value. In R v Lock (1997) 91 A Crim R 356, Hunt CJ at CL said that “[t]he significance of the probative value of the tendency evidence must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact”. In the present case I am unaware of the accused having made any formal admission with respect to any of the charges, so that it must be assumed that everything is in issue, including whether the events alleged by the Crown ever occurred. Evidence that the accused has the tendencies alleged by the Crown could be of considerable importance in the jury determining whether it is satisfied that the accused did the acts alleged.
In the accused’s record of interview (Annexure 13 of the affidavit of Mr Murray Thomas), the accused makes it clear that he denies that the events alleged ever occurred. The Crown will, therefore, be required to prove the complainant’s allegations against the accused. This will probably not include, as is suggested to be part of the Crown’s purpose for leading tendency evidence, that any of the events occurred as a result of innocent or accidental contact.
In my view, the evidence sought to be led as tendency evidence can be characterised as stated by the High Court in Hughes v The Queen [2017] HCA 20; 344 ALR 187 at [41]:
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.
I think that the evidence in this case has precisely the character described by Burns J in the last sentence of [40] in CX:
Evidence that the accused has the tendencies alleged by the Crown could be of considerable importance in the jury determining whether it is satisfied that the accused did the acts alleged.
The evidence falls within the definition of a tendency as explained in Vojneski v The Queen [2016] ACTCA 57, at [44]:
A tendency under s 97 of the Evidence Act is a tendency “to act in a particular way or to have a particular state of mind”, i.e. a tendency to think or act in a relatively distinctive (“particular”) way. To qualify as “tendency evidence”, evidence of one or more “tendency incidents” must show a behavioural or mental “tendency” and must not be a random collection of incidents that say nothing “particular” about the offender’s thinking or behaviour.
It follows that I am of the view that the evidence in respect of each incident has significant probative value in proving the other incidents.
The next point that arises is whether, for the purposes of s 101, I should assess the reliability of the complainant’s evidence. The Crown submitted that I should not. Rather, I should assume that the evidence is reliable and take it at its highest. The accused submitted, through his counsel, that I should take reliability into account.
I agree with the Crown. I do not see why there should be any distinction made between sections 97 and 101 in this regard. It is clear from IMM that, for the purposes of s 97, the evidence is assumed to be reliable. Evidence that comes before me at this stage has not been tested and may differ from the evidence that is ultimately given at trial. The same features apply to it in respect of s 101.
In respect of s 101, there is no doubt that the evidence is capable of having a prejudicial effect on the accused. Although there is only one complainant, there is a risk that the “jury will misuse the evidence by reasoning that the accused must be guilty if multiple complaints... are tried together” (see [41] of CX). However, as Burns J noted, “[t]his danger can largely be ameliorated by appropriate judicial directions to the jury”.
The appropriate jury directions have been refined through numerous judicial authorities. There is a presumption that they will be effective. In R v PWD [2010] NSWCCA 209; 205 A Crim R 75, at [89] and [90], Beazley JA noted:
I have also reached the conclusion that the evidence upon which the Crown seeks to rely is not excluded by s 101(2). Of its nature, tendency evidence will have a prejudicial effect. However, I am of the opinion that her Honour erred in finding that whatever significant probative value there may be in the evidence, that did not substantially outweigh its prejudicial effect. Her Honour’s reason for this conclusion was that there was more than a real risk that the jury would focus on the allegations of serious criminal conduct and be unable to properly consider the basis upon which the evidence would be admitted.
This reasoning fails to recognise the intelligence and focus with which juries go about their deliberations. In this regard, the court is also entitled to take into account that juries are to be properly directed as to the use to which such evidence is to be put.
I will therefore allow the Crown’s application to adduce tendency evidence.
Turning now to the application to lead the evidence in each count as context or relationship evidence, the Crown submitted that there were two reasons why I should allow the evidence as context and relationship evidence. Firstly, it was submitted that the evidence “demonstrated the nature of the relationship between the accused and the complainant and explains why she did not complain promptly”. Secondly, it was submitted that the evidence “gave context to the other counts which might otherwise appear to have occurred ‘out of the blue’”.
The accused suggested a “deprecation” of the Crown’s approach and submitted that the use of the evidence to explain the lack of complaint was “bootstrapping” the complainant’s evidence. While I agree with the accused, I would express my agreement differently.
The Crown now has leave to lead the evidence as tendency evidence. This will not only provide the context to the evidence but also plainly establish the relationship between accused and the complainant, bearing in mind that the Crown says the tendency is that the accused had a sexual interest in the complainant.
In addition, I think that the jury directions will become overly complicated if they are to include not only directions in relation to tendency but also directions as to context and relationship.
Accordingly, I make the following orders:
(a)The Crown is permitted to adduce evidence of the charged acts to show that the accused had a sexual attraction to the complainant and acted on it by obtaining sexual gratification from her.
(b)The permission extends to the use of the evidence in each individual count to support every other count in the indictment.
(c)The Crown is not permitted to lead the evidence of each count as context or relationship evidence.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 12 September 2017 |
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