R v Arthur Hoyle
[2017] ACTSC 24
•13 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
R v Arthur Hoyle
Citation:
[2017] ACTSC 24
Hearing Date:
3 February 2017
DecisionDate:
13 February 2017
Before:
Robinson AJ
Decision:
I allow the tendency evidence.
I decline to order separate Trials.
Catchwords:
CRIMINAL LAW – EVIDENCE – similar facts – judicial discretion to admit or exclude evidence – pre-trial application to rely upon tendency evidence – pre-trial application for separate trials.
Legislation Cited:
Evidence Act 2011 (ACT) ss 55, 97, 101, 137, 192A
Cases Cited:
El Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93
IMM v The Queen [2016] HCA 14; (2016) 90 ALJR 529
R v Ford [2009] NSWCCA 306; [2009] 201 A.Crim R 451
Sokolowskyj v The Queen [2014] NSWCCA 55; (2014) 239 A Crim R 528Vojneski v The Queen [2016] ACTCA 57
Texts Cited:
John Dyson Heydon AC QC, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2014)
Parties:
The Queen (Crown)
Arthur Hoyle (Defendant)
Representation:
Counsel
Mr T Hickey (Crown)
Ms L Chapman SC (Defendant)
Solicitors
ACT Director of Public Prosecutions (Crown)
Bradley Allen Love Lawyers (Defendant)
File Number:
SCC 150 of 2016
ROBINSON AJ:
1. This judgment deals with two pre trial applications under s 192A of the Evidence Act 2011 (ACT) which I will call “the Act” in these reasons.
2. Arthur Hoyle, the Accused, faces trial on an indictment containing 11 counts which I set out below.
3. The Crown seeks to rely upon tendency evidence. The Accused applies to sever the indictment so that there is one trial on five counts of the indictment and a further trial consisting of six counts. The five counts are concerned with one complainant. The Accused took no issue with the remaining six counts, which involve five other complainants, being tried together.
4. Counsel for the Accused, Ms Chapman SC foreshadowed the possibility of a further application being brought in due course based upon the ground of contamination or concoction. However, inquiries are still in progress concerning that matter. At the present time there is no application concerning that matter on foot.
5. The trial is fixed to commence on 20 March 2017.
6. It is useful to set out the counts in the indictment in abbreviated form:
That on 20 April 2015 at Canberra Arthur Marshall Hoyle committed an act of indecency in the presence of ZG, without her consent, being reckless as to whether she was consenting.
That on 20 April 2015 at Canberra aforesaid Arthur Marshall Hoyle committed an act of indecency on ZG, without her consent, being reckless as to whether she was consenting.
That on 23 April 2015 at Canberra aforesaid Arthur Marshall Hoyle committed an act of indecency on KA, without her consent, being reckless as to whether she was consenting.
That on 23 April 2015 at Canberra aforesaid Arthur Marshall Hoyle committed an act of indecency on TL, without her consent, being reckless as to whether she was consenting.
That on 29 April 2015 at Canberra aforesaid Arthur Marshall Hoyle committed an act of indecency on TL, without her consent, being reckless as to whether she was consenting.
That on 29 April 2015 at Canberra aforesaid Arthur Marshall Hoyle engaged in sexual intercourse with TL, without her consent, being reckless as to whether she was consenting.
That on 29 April 2015 at Canberra aforesaid Arthur Marshall Hoyle committed an act of indecency on TL, without her consent, being reckless as to whether she was consenting.
That on 29 April 2015 at Canberra aforesaid Arthur Marshall Hoyle engaged in sexual intercourse with TL, without her consent, being reckless as to whether she was consenting.
That on 24 April 2015 at Canberra aforesaid Arthur Marshall Hoyle committed an act of indecency on EO, without her consent, being reckless as to whether she was consenting.
That on 28 April 2015 at Canberra aforesaid Arthur Marshall Hoyle committed an act of indecency on KK, without her consent, being reckless as to whether she was consenting.
That on 28 April 2015 at Canberra aforesaid Arthur Marshall Hoyle committed an act of indecency on UU, without her consent, being reckless as to whether she was consenting.
7. It will be noted that all alleged offences occur within a 10 day period.
Reliance on Tendency Evidence
8. The Crown identified the fact in issue to which the tendency evidence was directed as the inappropriate sexual touching of each complainant.
9. By way of context, the Accused was, at the time of the events, a university lecturer. The six complainants were each female students at that university. The Accused was either in charge of detecting plagiarism or had taken it upon himself to detect plagiarism. For present purposes, it is unnecessary to determine this fact.
10. The Accused met each complainant alone in his office. (He met one of these complainants twice in his office, a situation I will come to in greater detail later.)
11. I was told from the bar table that it is the position of the Accused that he is making no admissions in relation to the trial and so the fact of whether or not he inappropriately touched any complainant in his office is not admitted. There is, therefore, a factual issue on each count in the trial. The Crown says that the inappropriate touching of other complainants, in the circumstances, increases the probability that a given complainant will have been inappropriately touched in that office.
12. The evidence sought to be led at trial is said by the Crown to reveal a distinctive modus operandi. On each occasion the Accused initiated contact with the complainants by email and asked them to meet him in his office. On each occasion he met them alone. On each occasion he told them that there was an issue with their assignment. On each occasion the Crown will contend, he suggested expressly or by inference that they could provide him with some form of sexual favour to avoid an adverse report being made by him. On each occasion, the Crown will contend, the Accused then made some form of sexual advance by touching parts of their body or trying to kiss them.
13. In his written submissions, filed prior to the hearing of the application, the Crown Prosecutor attached a table of the evidence to be relied upon to prove the tendencies. There is agreement that the table accurately sets out the matters extracted from the complainants’ statements. (The bolded words are in the original.)
| Incident | Date | Complainant | Summary of Incident |
| 1 (Counts 1-2) | 20 April 2015 | ZG |
|
| 2 (Count 3) | 23 April 2015 | KA |
|
| 3 (Count 4) | 23 April 2015 | TL |
|
| 4 (Counts 5-8) | 29 April 2015 | TL |
|
| 5 (Count 9) | 24 April 2015 | EO |
|
| 6 (Count 10) | 28 April 2015 | KK |
|
| 7 (Count 11) | 28 April 2015 | UU |
|
14. During the course of the hearing the Crown Prosecutor reformulated the tendencies relied upon as follows:
That the accused had a tendency to have a particular state of mind, namely:
(a)An intention to obtain sexual gratification from female students while alone with them in his office.
That the accused had a tendency to act in a particular way, namely:
(b)To invite female students into his office, to meet them alone, use concerns about their assignments to suggest they engage in sexual activity with him and to make sexual advances on female students.
Section 97(1)
15. The application is made under s 97(1) of the Act. The section is as follows:
(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.
16. No point is taken by the Accused on the giving of reasonable notice.
17. The majority decision in IMM v The Queen (2016) 90 ALJR 529 at [38]-[39] and [52] requires me to determine the admissibility of evidence under s 55(1) of the Act on the basis that the evidence will be accepted by the jury and be treated as credible and reliable.
18. Leaving s 55(1) of the Act and going to the requirements of s 97(1)(b) of the Act, the criterion of “probative value” becomes “significant probative value”. The latter expression is not defined in the Act.
19. In IMM at [46], the majority give apparent approval to the suggestion in Cross on Evidence as to the expressions meaning:
Cross on Evidence suggests that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
20. Consistently with the reasoning concerning the admissibility of evidence under s 55(1) above, the majority decision in IMM again requires me not to apply any tests of reliability or credibility to the admissibility of the evidence sought to be adduced for the purposes of s 97(1)(b) of the Act. (See IMM at [54]).
21. It was not in dispute that the same evidence from any individual complainant was admissible on the count to which it directly related.
22. Ms Chapman attacked the generality of the expressed tendencies. She drew my attention to Vojneski v The Queen [2016] ACTCA 57 and the observations made therein. Ms Chapman submitted that there may be probative value in the evidence but that it did not rise to the level of significant probative value.
23. I disagree with that submission, and I find that the evidence proposed to be led as tendency evidence will have significant probative value in relation to the fact in issue in each count in the trial. The specificity of the expressed tendencies is a critical factor. The alleged actions of the Accused on each occasion, and the circumstances surrounding those actions, exhibits a very high degree of similarity in material aspects. In El Haddad v The Queen (2015) 88 NSWLR 93 at [71]-[72] Leeming JA referred to the reasoning process-
Most recently, in Sokolowskyj v R [2014] NSWCCA 55 at [40], Hoeben CJ at CL said that:
“One of the difficulties for the Crown in establishing ‘significant probative value’ was the high level of generality of the tendency relied upon. A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, i.e. to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly.”
That is to say, the specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.
Section 101(2) of the Act
24. There is a further restriction on the use of tendency evidence by the prosecution. Section 101(2) of the Act provides relevantly:
Tendency evidence…cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
25. It will be seen that the section does not say “unfair” prejudicial effect, as it might have done by analogy with s137 of the Act. Nevertheless, I propose to follow a line of cases recognising that the reference to “prejudicial effect” in s 101(2) must be to unfair prejudice, with that expression encompassing the risk that the evidence may be misused, whatever directions are given to the jury.
26. In this case we are not concerned with uncharged acts constituting forms of misbehaviour.
27. At this point it is convenient to say something more about counts four, five, six, seven and eight of the indictment where TL is the complainant. According to her statement, on 23 April 2015, TL was the subject of an indecent assault by the Accused similar to other complainants. Relevantly, according to her statement, TL received another email from the Accused on 29 April 2015 and again she went to his office. TL alleges that the Accused started by indecently touching her, but that the Accused’s conduct progressed to the point where there was both digital and penile intercourse without her consent, being counts six and eight in the indictment.
28. Ms Chapman submitted that the unfair prejudice flowed from the fact that the Accused is charged with two counts of rape with respect to TL as opposed to counts of indecent assault on all other five complainants. In order to deal properly with this particular prejudice, Ms Chapman submitted that a separate trial order should be made.
29. As I understood her, Ms Chapman was relying on two separate but related grounds for a separate trial. They were both based upon the proposition that the “full on rape” allegations, as Ms Chapman referred to them at the hearing, were qualitatively different from the indecent assaults or of a “different and significantly more serious nature”, as she expressed the same point in her written submissions.
30. The first submission was that the tendency evidence given by the other complainants was “not sufficiently probative of what happened on the second occasion”, a reference to 29 April 2015 and TL. The Crown in its submissions relies upon the fact that the indecent touching is a fact in issue on the charge of sexual intercourse without consent. True it is that it is not an element of that charge, but it is a fact which the Crown would be entitled to lead as evidence in chief on the charge. The Crown’s submission is that the more serious misconduct which occurred after the touching of TL is merely a progression along a continuum of sexual misconduct. The Crown says that it can rely on the tendency evidence from the other five complainants to increase the probability of the fact of the initial sexual touching of TL being found in favour of the Crown. In a trial where TL was the sole complainant, Ms Chapman did not submit that evidence concerning the initial sexual touching would be excluded as irrelevant or prejudicial.
31. I took Ms Chapman’s submission “sufficiently probative” in that context to be that which is to be weighed against unfair prejudice.
32. The second submission was that the additional gravity of a charge of rape brought with it a prejudice to the Accused in the context of five other complainants giving evidence of indecent assault. A number of cases were referred to in submissions on this aspect of the application. Ms Chapman referred to Vojneskiv The Queen and Sokolowskyj v The Queen [2014] NSWCCA 55. The Crown referred to R v Ford [2009] 201 A.Crim R 451.
33. It is necessary to determine whether the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have on the Accused without assuming that the directions given by the trial judge will necessarily be effective to cure any prejudice, as set out in R v Ford at [137]-[14]:
137 The Respondent points out, rightly, that section 101(2) requires more than a mere balancing of probative value with prejudicial effect – the probative value must substantially outweigh any prejudicial effect. Furthermore, section 101(2) involves taking into account the realistic possibility of how the jury might regard the evidence – the test concerns “any prejudicial effect it may have on the defendant”. There is no reason to believe that Judge Berman did not appreciate these matters. Judge Berman quoted the statement of Mason P in Colby v The Queen [1999] NSWCCA 261 at [97], a passage that includes:
“The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case …”.
138 The Respondent submits that the jury may react with revulsion to the allegation that the Respondent has sexually taken advantage of not just one young woman, but three. He submits that the jury will be tempted to punish the Respondent for global sexual criminality, rather than focusing strictly on the elements of the count in the indictment. He submits that one cannot be confident that directions will cure this sort of prejudice.
139 Judge Berman came to a different view. He considered he was:
“… able to fashion directions to a jury which will focus the jurors’ attentions on the real issues to be decided in this trial. It is the experience of the law, backed up by empirical research, that jurors do their best to follow instructions given to them by trial judges. That is not to say that jurors are immune from prejudice and emotion, but it is to say in assessing the effect of any directions to be given in this matter I should proceed on the basis that jurors will do their best to apply them.”
140 I agree with Judge Berman in this respect. Taking into account the ability (indeed, the duty) of the trial judge to give directions to the jury about how their task should be performed, I am satisfied that any prejudicial effect, of the type the Respondent identifies, can be dissipated. For that reason, the evidence passes the test in section 101(2).
34. In Sokolowskyj v The Queen, Hoeben CJ at CL wrote of the potential dangers of unfair prejudice at [48]:
In the present case, one of the dangers of unfair prejudice was that the jury would use the evidence in the way they were directed not to use it - to show that the appellant was a sexual deviant who, as a result, was the sort of person who was likely to have committed the offence alleged against him. A second danger was that the jury would be so emotionally affected by the evidence that they would disregard the appellant's account in his police interview and disregard the directions to assess the evidence in an unemotional manner. A third danger was that the jury might be disinclined to give the appellant the benefit of any reasonable doubt.
34. In Sokolowskyj the accused was facing a count of indecent assault on an eight year old girl in a toilet at a shopping centre, which incident was said to have occurred in 2008/9. The tendency evidence consisted of three instances of the accused exposing himself to females and/or masturbating in public places in 2000, 2001 and 2003.
35. In this case, Ms Chapman put the unfair prejudice as follows:
What we’ve got here is that the unfair prejudice we say is that that second incident relating to [TL] has shown that on the Crown case Mr Hoyle is a rapist and the second danger is that the jury would be so emotionally affected by that evidence they would disregard his account, if he chooses to give one, and disregard the directions to assess the evidence in an unemotional manner, and I’ll come to that in a moment. The third danger being that the jury might be disinclined to give the appellant the benefit of any reasonable doubt they might have in relation to the other five occasions which are the subject of the other accounts.
36. In my opinion, the tendency evidence sought to be tendered has very significant probative value in relation to the fact in issue in each count. The circumstances surrounding the events in question are quite refined. The tendencies relied upon are highly specific. Against this, I must weigh unfair prejudice - not simply prejudice. I do not believe that the Accused will suffer a real risk of unfair prejudice if the tendency evidence is admitted - at least not in circumstances where the trial judge will be able to give appropriately strong directions to the jury. I do not consider the facts of this case to be analogous to those of Sokolowskyj or to be of such a degree that they may give rise to unfair prejudice based upon emotion. In my opinion, the fact that the Accused is charged with sexual intercourse without consent in the circumstances of a trial concerning indecent assaults on women does not lead to the conclusion that there is a real risk that a jury will not follow instructions and render a dispassionate verdict on all counts.
Order
37. I allow the tendency evidence.
38. I decline to order separate Trials.
I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.
Associate:
Date: 13 February 2017
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