R v Alas
[2017] ACTSC 272
•18 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Alas |
Citation: | [2017] ACTSC 272 |
Hearing Date: | 18 September 2017 |
DecisionDate: | 18 September 2017 |
Before: | Elkaim J |
Decision: | See paragraph [28] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – whether the probative value of the evidence outweighs its potential prejudicial effect. |
Legislation Cited: | Evidence Act 2011 (ACT) ss 97 and 101 |
Cases Cited: | Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 Hughes v The Queen [2017] HCA 20; 344 ALR 187 |
Parties: | The Queen (Applicant) Baltazar Alas (Respondent) |
Representation: | Counsel Ms E Beljic (Applicant) Ms K Musgrove (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) ACT Legal Aid (Respondent) | |
File Number: | SCC 290 of 2016 |
ELKAIM J:
The accused has pleaded not guilty to seven counts in an indictment dated 14 March 2017. All of the counts allege sexual encounters with the one complainant. The first two counts concern acts of indecency committed upon the complainant when she was under the age of 16. The next five counts alleged sexual intercourse with the complainant, again when she was under the age of 16.
By an application filed on 25 August 2017, the Crown has sought leave to adduce tendency evidence, as set out in a notice dated 24 August 2017. There is no dispute that reasonable notice was given in this matter.
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.
According to the case statement, the accused met the complainant when she was 14 years of age and living in the same apartment complex as the accused. It is alleged that the accused became friendly with the complainant and kissed her. A short time later, they began a sexual relationship. This resulted in the complainant becoming pregnant on two occasions, before she reached 16 years of age.
The first pregnancy miscarried but the second led to the birth of a child. DNA testing revealed the overwhelming likelihood that the accused is the father of the child. In discussion today, it appears that this point is not in dispute, although no formal admissions were made. It also emerged that, subject to the Crown proving its case, the focus of the defence would be that the accused reasonably believed that the complainant was over the age of 16.
On the Crown case, the complainant told the accused that she was 14 on the second occasion that sexual intercourse took place.
Although there are seven counts in the indictment, the Crown has classified seven incidents as forming the subject of the evidence that it wishes to adduce as tendency evidence.
The specific tendency that is alleged is that the accused had a sexual interest in the complainant (specifically) and he acted upon that interest.
The first incident refers to the accused taking the complainant into his apartment, closing the door and kissing her. The kissing included the insertion of his tongue into her mouth.
The second incident relates to a second episode of kissing followed by sexual intercourse.
The third and fourth incidents relate to separate acts of sexual intercourse. The fifth incident is the sexual intercourse that led to the first pregnancy. The sixth incident is the sexual intercourse that produced the second pregnancy.
The seventh incident does not relate to any of the counts in the indictment. It refers to the ongoing relationship between the accused and the complainant after she reached the age of 16. She turned 16 in October 2001. This incident relates to events from 2003 until 2011, during which time the accused and the complainant were in a relationship and had three more children. During this period, the complainant was 18 years of age or older. Accordingly, subject to any issue of consent, the relationship was legal.
I think a distinction must be drawn between the first six incidents and the seventh incident. The Crown characterised the seventh incident as an uncharged act. I do not think that is correct. At least in the context of tendency evidence, an uncharged act refers to a criminal act which is not the subject of a charge. As already noted, the relationship between the accused and the complainant between 2003 and 2011 was not unlawful. Plainly, the seventh incident does not relate to an uncharged act as described in IMM v The Queen [2016] HCA 14; 257 CLR 300 (‘IMM’).
Dealing then with the first six incidents, I think they do qualify as evidence capable of being led as tendency evidence in the manner described by the High Court in Hughes v The Queen [2017] HCA 20; 344 ALR 187, at paragraph [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.
The accused submitted that a distinction needed to be drawn between direct evidence and tendency evidence. The accused further submitted that if the incidence could be described as direct evidence then “there is no need for any reasoning process to be undertaken relating to the evidence, it goes directly to some of the elements of the offences”.
The accused primarily relied on a recent decision of the Tasmanian Court of Criminal Appeal in Pattison v Tasmania [2017] TASCCA 13. The Court referred with approval to the judgment of the New South Wales Court of Criminal Appeal in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 (‘Elomar’) as providing “a most useful analysis of what tendency evidence actually is”.
The accused specifically pointed to paragraph [360] of Elomar:
Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.
The accused submitted that there was direct evidence for the charged acts (incidents 1 to 6); namely, the complainant said that the events occurred. Except in respect of the sixth incident, where there is independent DNA evidence, the direct evidence (assuming the accused puts the events in issue) is solely that of the complainant. In my view, evidence of this nature could be categorised as potentially inadequate because it rises and falls on the acceptance of the testimony of one person only, describing facts many years ago when the witness was a young person.
The Court at this stage does not, and cannot, make any decision on the adequacy or reliability of the complainant’s evidence (IMM).
Because of the distinction I have just made with the sixth incident, and because, as will be seen, I am of the view that the first five incidents can be used as tendency evidence, it will be necessary to make a specific order limiting the use of the sixth incident.
Returning to s 97 and the question of whether the evidence has significant probative value, I have taken the approach referred to by Burns J in R v CX [2016] ACTSC 106, at paragraph [40]:
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 present case, although it was suggested that the primary issue is likely to be the accused’s knowledge of the complainant’s age, as I have already said, no admissions were made so the Crown will be required to proceed as if “everything is in issue”.
On this basis I am satisfied that the first six incidents can be led as tendency evidence although the first five incidents cannot be adduced as tendency evidence in respect of the sixth incident.
It was also submitted that, having regard to s 101, I should conclude that the prejudicial value of the proposed tendency evidence would outweigh its probative value. There will of course be a prejudicial effect from the evidence but in my view it can be adequately dealt with by directions to the jury. There is a presumption that directions will be effective (R v PWD [2010] NSWCCA 209; 205 A Crim R 75).
Finally, dealing with the seventh incident I am of the view that it cannot be led as tendency evidence. As I have already said it relates to facts which do not amount to any illegal activity. I do not see how participation in a legal act can be indicative of a tendency to engage in an illegal act. The fact that this same complainant is involved does not assist because the purpose of the tendency evidence is to establish a criminal offence involving a person under the age of 16.
Accordingly I reject the application in respect of the seventh incident.
I make the following orders:
(a)The Crown is permitted to adduce evidence of incidents 1 to 6 inclusive to show that the accused had a sexual attraction to the complainant and acted upon it.
(b)The permission extends to the use of the evidence in each individual count to support every other count in the indictment other than Count 7.
(c)The Crown is not permitted to lead, as tendency evidence, the matters referred to in Incident 7.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 12 December 2017 |
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