R v Anderson
[2019] ACTSC 235
•27 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Anderson |
Citation: | [2019] ACTSC 235 |
Hearing Date: | 27 August 2019 |
DecisionDate: | 27 August 2019 |
Before: | Elkaim J |
Decision: | See [19] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – accused charged with multiple sexual offences – acts of indecency with and in the presence of young people – whether or not the accused had a sexual interest in young males and a tendency to act on his sexual interest |
Legislation Cited: | Crimes Act 1900 (ACT) s 61(2) Evidence Act 2011 (ACT) ss 97, 101 |
Cases Cited: | McPhillamy v The Queen [2018] HCA 52; 92 ALRJ 1045 |
Parties: | The Queen (Crown) Patrick Anderson (Accused) |
Representation: | Counsel P Dixon (Crown) J Campbell (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 111 of 2019 |
ELKAIM J:
This is an application by the Crown to be permitted to adduce tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT). The application is supported by an affidavit of Ms Isabella Coker affirmed on 25 July 2019, as well as a Notice of Intention to adduce tendency evidence of the same date.
The accused is charged with 6 counts of committing an act indecency with a young person contrary to s 61(2) of the Crimes Act 1900 (ACT). All offences relate to the same complainant, KM, and are alleged to have occurred between 2005 and 2007 when the complainant was aged approximately between 11 and 13 years old.
The accused is set to stand trial for these matters on 18 November 2019.
The tendencies, as outlined in the Notice are as follows. A tendency to have:
(a)A sexual interest in young males and to act on his sexual interest with young males; and
(b)A sexual interest in KM and to act on this sexual interest.
In the course of the hearing for the application the Crown sought leave to amend the second tendency to read as follows:
The accused acted on his sexual interest in boys between the age of, and including, 11 and 16 to whom he had access to, or a relationship with, on occasions when he was acting as their carer.
I allowed the amendment. The accused did not object to the amendment, but maintained the opposition to the application.
The tendencies are asserted to arise from 10 separate incidents. The first 7 incidents concern the sole complainant to all of the counts in the indictment. Incidents 8, 9 and 10 relate to a different person, who was the complainant in proceedings which resulted in the conviction of the accused.
The accused did not oppose the application in respect of Incidents 1, 2, 3, 4, 5 and 7.
Sections 97 and 101 of the Evidence Act are relevant. The sections are as follows:
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 person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2)Subsection (1) (a) does not apply if—
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict tendency evidence presented by another party.
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1) This section applies only in a criminal proceeding and 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.
(3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
(Notes omitted)
The following passages from the decision of the High Court in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045, commencing at [26] are relevant:
[26] As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of “B” and “C” was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring.
[27] Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to “B”'s and “C”'s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against “A”.
…
[31] Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over “A”, an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that “A” was vulnerable in the way that “B” and “C” were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with “A”'s account that the appellant followed him into a public toilet and molested him.
(Footnotes omitted)
Incident 6: The Crown accepted that its case in respect of this incident was weak but did not abandon it. I agree with the accused’s submission that the incident “does not have the capacity to rationally affect the assessment of the probability of the existence of a fact in issue”. The facts are simply too vague. It is not known to whom the accused was speaking on the telephone. Remembering that the asserted tendency is to have a sexual interest in a young person, this could not be established if, for example, the accused was talking to an adult.
Incident 8: The first point made by the accused was that the action of squeezing the victim’s buttocks was equivocal and did not necessarily suggest a sexual interest. I reject this submission because of the plea of guilty made in the Port Macquarie Local Court on 23 March 2009 for the offence of an aggravated indecent assault, arising from this incident. The ingredients of the offence include a recognition that the relevant act had a sexual connotation. I think the plea defeats the accused’s submission.
The second submission made by the accused related to the probative value of the incident in relation to the offences charged in the indictment. I agree with this submission. I do not think the facts in Incident 8 contain enough probative value to surmount the threshold in s 101(2).
Incident 9: The first submission made by the accused was that the text messages could have suggested a sexual interest in a young person but they did not contain any evidence of the accused acting upon that interest. This submission suggests the need for a separate act to have occurred besides the sending of the text messages. In my view the sending itself is capable of being seen as acting on the interest.
The difficulty with this incident is the uncertainty as to whom the text message was sent. The details of the incident state that it was sent to a young person named, after anonymisation, NS. The evidence however does not support that conclusion. It is clear from the police record of interview with TF (again after anonymisation) that the phone was given by the accused to TF who, in turn, gave it to NS. This is apparent from Questions 298 onwards of the record of interview with TF. There is no evidence to suggest that the accused was aware that TF gave the phone to NS. Accordingly, while the sending of the text message may be seen as displaying a sexual interest in a young person, the nominated young person cannot be established as the intended recipient of the message.
I further note that the incident cannot definitively be shown to have been the subject of any plea of guilty in the Port Macquarie Local Court.
Incident 10: The difficulty here also relates to the probative value of the evidence, especially when compared to the potential prejudicial effect on the accused. There is clearly an apparent indecent flavour to the accused’s actions in exposing his penis. However his penis was not erect, he made no suggestion as to what, if anything, should be done with his penis and he immediately returned it to its proper place within his trousers when told to do so by NS. In addition, once again, the plea in the Port Macquarie Local Court does not necessarily relate to this incident.
Finally, I make this comment in relation to all of the incidents concerning NS. The amended second tendency, in its endeavour to broaden the scope of the tendency to include a commonality between the relationship with NS and that with the present complainant, creates a far too wide description of the respective relationships. As stated in McPhillamy at [31] there needs to be a more precise identification of a feature linking the different assertions of sexual misconduct. The present complainant was generally not under the care of the accused when the alleged incidents took place. By contrast NS was specifically under the supervised care of the accused.
I make the following orders:
(a)The application to adduce tendency evidence, pursuant to s 97 of the Evidence Act 2011 (ACT), as described in the Notice of Intention to adduce tendency evidence dated 25 July 2019 is permitted to this extent: The Crown may rely on Incidents 1, 2, 3, 4, 5 and 7 to prove a tendency on the part of the accused that he had a sexual interest in KM and to act on this sexual interest.
(b)The balance of the Crown application is dismissed.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 30 April 2020 |
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