R v Aitchison (No 2)
[2018] ACTSC 72
•20 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Aitchison (No 2) |
Citation: | [2018] ACTSC 72 |
Hearing Date: | 13 March 2018 |
DecisionDate: | 20 March 2018 |
Before: | Elkaim J |
Decision: | See [20] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – further 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, 100 and 101 |
Cases Cited: | Aitchison v Director of Public Prosecutions (Unreported, Supreme Court of the ACT, Higgins J, 31 October 1996) R v DL [2018] ACTSC 28 R v Aitchison [2017] ACTSC 260 |
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:
On 12 September 2017, I dealt with an application by the Crown to adduce tendency evidence in the trial of the respondent. The trial was due to commence in November 2017. I granted the Crown leave to adduce evidence of the charged acts as tendency evidence. The permission extended to the use of the evidence in each individual count to support every other count in the indictment (R v Aitchison [2017] ACTSC 260).
Unfortunately, the trial was not reached. It has been relisted to commence in April 2018.
On 9 February 2018, the Crown filed a further application seeking leave to adduce evidence in relation to a further 12 incidents to prove that the respondent had a certain tendency. The incidents are set out in the Further Notice to Adduce Tendency Evidence, dated 8 February 2018. The additional 12 incidents do not relate to the complainant named in the indictment.
By way of summary, I note the following:
(a)The 19 counts on the indictment relate to offences that allegedly occurred between 1987 and 1989.
(b)Incident 1 concerns an allegation that in 1970 the respondent committed unlawful sexual acts upon a brother and sister, aged 8 and 7 respectively, while at the children’s home.
(c)Incident 1 was the subject of charges in 1996. In July 1996, the respondent filed a summons seeking a stay of proceedings. On 31 October 1996, Higgins J, as he then was, ordered that the proceedings be permanently stayed (Aitchison v Director of Public Prosecutions (Unreported, Supreme Court of the ACT, Higgins J, 31 October 1996)).
(d)Incidents 2 and 3 relate to offences that occurred in about 1987 and 1988 involving a boy aged 8 to 9. These incidents were the subject of charges in the Australian Capital Territory. The respondent was convicted and sentenced for these offences.
(e)Incidents 4, 5, 6, 7 and 8 also involve the complainant in Incidents 2 and 3. These incidents were not the subject of criminal proceedings. They are alleged to have occurred in about 1990 and 1991.
(f)Incidents 9, 10, 11, 12, 13, 14 and 15 relate to the charged acts contained in the indictment, involving the complainant child. I granted the Crown leave to adduce evidence of these acts as tendency evidence on a previous occasion (R v Aitchison [2017] ACTSC 260).
(g)Incidents 16, 17, 18 and 19 concern allegations that, in about 1991, the respondent committed unlawful sexual acts on a brother and sister, aged 12 to 13 and 10 to 11 respectively. Incidents 16 and 17 were the subject of charges in New South Wales. The respondent entered pleas of guilty to these charges, following negotiations with the Crown. The respondent was sentenced by Moore J in the NSW District Court on 17 December 1992. It appears that the respondent was not charged in respect of Incident 18 or 19.
In R v Aitchison [2017] ACTSC 260, I set out the general principles to be applied in considering ss 97 and 101 of the Evidence Act 2011 (ACT). I do not think that I need to repeat those principles here. This matter has primarily concerned s 101 and whether the probative value of the evidence substantially outweighs any prejudicial effect it might have on the respondent.
The respondent initially challenged the amount of notice that had been given, submitting that it was unreasonable. After the Crown made an undertaking to provide certain transcripts, it was conceded that this issue was not of great significance. Having regard to the undertakings made by the Crown, I am satisfied that the notice requirements can be dispensed with pursuant to s 100 of the Evidence Act 2011 (ACT).
I was initially concerned as to whether the stay that had been ordered by Higgins J in respect of Incident 1 could operate as a quasi-estoppel. On further reflection, I have come to the view that categorising the stay as such would be inappropriate. The preferable approach is to consider the prejudice to the accused that could or will arise in the forthcoming trial from the use of Incident 1, taking into account its probative value.
To treat the stay as a quasi-estoppel would give rise to a broader issue, namely whether the “prejudice” referred to in s 101 is confined to prejudice in the respondent’s trial. It would be necessary to determine whether “prejudice” could extend to a finding of guilt in respect of charges which have been the subject of a stay. In another tendency application (R v DL [2018] ACTSC 28 (‘DL’)), I concluded that “any prejudicial effect” is not restricted to prejudice in the trial. As the trial in that matter has not yet been heard, the decision in DL has not been published. For present purposes, I will proceed on the approach outlined at [7].
For clarity, I am not deciding whether there is any limit to the phrase “any prejudice” in s 101. Rather, I am deciding the matter on the basis that the prejudicial effect is that to the accused in his forthcoming trial.
The Crown submitted that the probative value of the evidence may differ in respect of each incident. In a Record of Interview, the respondent stated that he has no sexual interest in female children because he is a homosexual. The Crown is concerned that this statement may be relied upon by the respondent in defence of the charges, noting that the complainant is female. Accordingly, the incidents concerning female children might be regarded as having higher probative value than the incidents concerning male children.
I agree with the Crown and accept that a distinction can be drawn between the incidents concerning female children and the incidents concerning male children.
In respect of Incident 1, it is also necessary to take into account the length of time that has passed. Incident 1 is alleged to have occurred in 1970. The offences currently before the Court are alleged to have occurred between 1987 and 1989. Incidents 16, 17, 18 and 19 are alleged to have occurred in about 1991.
I am satisfied that there is probative value in each of the incidents. This is particularly the case when regard is had to the refined tendency that is sought to be proved by the evidence. The Crown stated the tendency in this way:
That the accused had a tendency to have a particular state of mind and to act in particular ways, namely:
(a)to have a sexual interest in children whom he met through church or music related activities and to use that relationship or opportunity to obtain access to children to engage in sexual or indecent activities with them.
I am further satisfied that the incidents concerning the female children are capable of having greater probative value than the incidents concerning the male children, because of the case that may be run by the respondent.
Notwithstanding the above conclusions, I am of the view that Incidents 1, 4, 5, 6, 7, 8, 18 and 19 may not be adduced as tendency evidence against the respondent. I do not think that the “probative value of the evidence substantially outweighs any prejudicial effect it may have” on the respondent. My reasons are as follows:
(a)Incident 1: In 1996, Higgins J granted a permanent stay of proceedings due to the delay between the alleged offences and the charges being laid. His Honour observed that: “[t]he applicant has not been shown to have been aware of the allegations until questioned in 1995”. The respondent was entitled to assume that he would never have to face the allegations described in this incident. To essentially re-enliven the allegations, such that they must be defended, gives rise to substantial prejudice in the trial. The probative value of the female child’s evidence does not outweigh its prejudicial effect. The fact that this Incident allegedly occurred in 1970 only reinforces my conclusion. The Crown informed me that it did not intend to call any expert evidence to suggest that a propensity to act in a particular way in a particular year was likely to be suggestive of a propensity some 17 years later.
(b)Incidents 4, 5, 6, 7 and 8: These incidents are alleged to have occurred after the offences contained in the indictment. This in itself creates a prejudice, because use of the incidents would involve asking a jury to find that a tendency that existed in 1990 also existed at an earlier time. The probative value of the evidence must, therefore, be of less weight. If this were the only issue, I probably would have allowed the application. However, the Crown in New South Wales appears to have not pressed charges in respect of Incidents 4, 5, 6, 7 and 8. The respondent is entitled to expect that he would not be required to meet the allegations making up these incidents. The potential prejudice is not, in my view, outweighed by the probative value of the evidence. I note that this decision is made against the background of allowing the Crown to rely upon Incidents 2 and 3 as tendency evidence.
(c)Incidents 18 and 19: These incidents also suffer from similar difficulties to Incidents 4, 5, 6, 7 and 8. The Incidents are alleged to have occurred in 1991 and do not appear to have been the subject of charges. The prejudice that would be occasioned to the respondent outweighs the probative value of the evidence. While there is no direct evidence to suggest that Incident 18 was not the subject of a charge, this is implicit at [31] of the Crown’s submissions.
(d)Incidents 1 and 19: In the Further Prosecution Submissions, the Crown submitted that:
The similar fact evidence in relation to the [Incident 1] children or [the Incident 19 child] does not raise any question of double jeopardy. The accused is entitled to the full benefit of the stay in the sense that he can never be tried again for the offences to which they related. Rather the prosecution seeks to prove, by similar fact evidence, his guilt of the current offences. As such there is no unfair prejudice.
I think, with respect, that this submission misses the fundamental point. In order for the jury to use the similar fact evidence in the manner advocated by the Crown, they must first conclude that the events in Incident 1 and Incident 19 occurred. The respondent would, therefore, need to meet the allegations. This is precisely what he was relieved of having to do in 1996. The potential prejudicial effect outweighs the probative value of the evidence.
As far as Incidents 2, 3, 16 and 17 are concerned, I am satisfied that that they have significant probative value and that their probative value significantly outweighs their prejudicial effect. I acknowledge that Incidents 16 and 17 occurred some two or three years after the incidents referred to in the indictment. However, this does not so affect the probative value of the evidence such that it is outweighed by any prejudicial effect.
There is, however, one aspect to Incident 17 which requires some refinement. The description of the incident includes the respondent putting a nappy on the child. I do not see how this action can be seen as supporting the tendency alleged by the Crown. This was a point made by Moore J in the NSW District Court, who, in sentencing the respondent for the offences arising from Incidents 16 and 17, distinguished between a “paedophilic aberration” and a “childish regression and guilelessness”.
Finally, the respondent submitted that the further application was in itself prejudicial, requiring the application to be refused. This was because the Crown, having obtained certain orders in the first application, had effectively conducted an exercise to ‘shore up’ weaknesses in its case. The Crown knew about the other incidents before the first application and should have included all incidents in the earlier application. The respondent had prepared its defence to meet the original tendency orders and was, therefore, significantly prejudiced by the possibility of having to meet the new allegations.
I think that there is some merit in this submission. The Crown certainly seems to have been aware of the other incidents prior to the first application. The Crown did not, however, have the consent of the complainants in those incidents to give evidence at that time. I think that consent could probably have been obtained earlier and I do think that the accused is prejudiced by having to meet another tendency application. However, I do not agree that the prejudice is to such an extent that the Crown should not be allowed to pursue the application. In reaching this conclusion, I am not suggesting that the prejudice suffered by the accused in dealing with the application is, or is not, prejudice that falls within the “prejudice” referred to in s 101.
I make the following orders:
(i)The Crown is permitted to adduce evidence of Incidents 2, 3, 16 and 17 in the Further Notice of Intention to Adduce Tendency Evidence as evidence of a tendency to have a particular state of mind and to act in particular ways, namely:
to have a sexual interest in children whom he had met through church or music related activities and to use that relationship or opportunity to obtain access to children to engage in sexual or indecent activities with them.
(ii)The permission extends to the use of the evidence to support each count on the indictment.
(iii)The evidence to be adduced is not to include any evidence concerning the conviction of the accused, whether following trial or after a plea of guilty.
(iv)The evidence to be adduced arising from the facts described in Incident 17 is not to include any reference to the accused asking the child to wear a nappy.
(v)These orders are in addition to the orders made on 12 September 2017 and not in substitution of those orders.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 20 March 2018 |