R v Batagoda
[2017] ACTSC 283
•26 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Batagoda |
Citation: | [2017] ACTSC 283 |
Hearing Date: | 26 September 2017 |
DecisionDate: | 26 September 2017 |
Before: | Elkaim J |
Decision: | See [23] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – charged and uncharged acts – whether the probative value of the evidence outweighs 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 R v PWD [2010] NSWCCA 209; 205 A Crim R 75 |
Parties: | The Queen (Applicant) Sunil Batagoda (Respondent) |
Representation: | Counsel Ms S Gul (Applicant) Mr J Stewart (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) ACT Legal Aid (Respondent) | |
File Number: | SCC 70 of 2017 |
ELKAIM J:
The accused has pleaded not guilty to 26 counts in an indictment dated 22 June 2017. The 26 counts relate to a series of allegations concerning four teenage females aged either 14 or 15. The offences are alleged to have occurred between 1 August 2016 and 20 February 2017. The accused is now 62 years of age.
On 12 September 2017, the Crown filed a Notice of Intention to Adduce Tendency Evidence at the forthcoming trial of the accused. The application was opposed and an application by the accused to sever the indictment was foreshadowed. In discussion, it emerged that the accused’s application would only arise if I refused the tendency application.
The accused has not taken any point in relation to having received reasonable notice of the Crown’s application.
The application is supported by an affidavit of Morgan Howe, dated 12 September 2017.
The 26 counts include allegations of sexual assault in the third degree, use of a child for the production of child exploitation material, acts of indecency on a young person, acts of indecency in the presence of a young person, sexual intercourse with a young person and sexual intercourse without consent.
For the purposes of this application, the counts have been amalgamated into 10 incidents. In brief terms, the Crown wishes to use the evidence in each incident in support of its case in the other incidents.
Two of the incidents (incidents 2 and 7) relate to uncharged acts. This is because they are alleged to have occurred in New South Wales. The Crown conceded that there were no special features to incident 7, as described in IMM v The Queen [2016] HCA 14; 257 CLR 30. The Crown did not press its application in respect of this incident.
In respect of incident 2, the Crown submitted there was a special feature, namely that it occurred in the presence of other persons. Accordingly, it was not a charge involving ‘one on one’ evidence. I agree that this is a special feature and that, subject to the balance of the application, incident 2 should be included.
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.
I do not propose to describe each incident. That is adequately done in the Notice. What can be seen is that they all allege the accused endeavouring to obtain sexual gratification from the complainants in circumstances in which persuasion, payment or favours are offered in pursuit of sexual activity.
The particulars of the tendency that the Crown wishes to advance are the following:
The accused had a tendency to act in a particular way, and have a particular state of mind, namely:
(a) to have a sexual interest in teenage females;
(b) to offer incitements such as free marijuana, alcohol, food and transport to teenage females so that he could engage in sexual activities with them;
(c) to offer money to teenage females to engage in sexual activities with him;
(d) to engage in sexual conduct with teenage females by either:
(i) requesting that they perform sexual acts upon him;
(ii) touching or exposing his penis in their presence;(iii) performing sexual acts on himself in their presence
Both parties provided useful written submissions and then, at the hearing this morning, addressed further matters that arose in discussion. The accused advanced two main arguments. Firstly, it was submitted that the facts of the respective incidents revealed charges of a “quite dissimilar nature”. To continue quoting from the written submissions on behalf of the accused to illustrate this point:
Some allegations involve the accused initiating sexualised behaviour, some involve the accused requesting sexualised activity, some involve complaints approaching the accused seeking to exchange sex for money or other things and some involve the accused videoing events.
I agree that there are significant differences in the descriptions of the 10 incidents as described by counsel for the accused. However, in my view they all fall within the overall tendency of the accused allegedly having a sexual interest in teenage females.
If I came to this conclusion, submitted the accused’s counsel, then the second point would arise, namely that the tendency put forward by the Crown should not go beyond the general tendency of a sexual interest in teenage females. It should not extend, for example, to the tendencies set out in subparagraphs (b), (c) and (d) of the tendency particulars set out above.
My initial reaction was in favour of the accused’s argument. I have, however, been persuaded to the contrary by the Crown. This is because of the approach taken by the High Court in Hughes v The Queen [2017] HCA 20; 344 ALR 187 (‘Hughes’), where there were different allegations against different children involved. This can be seen from the tendency notice quoted at [107] of the judgment.
I have come to the view that the more detailed particulars ((b), (c) and (d)) should be allowed because they fit within the overall test stated in Hughes and because they all illustrate the tendency to have a sexual interest in teenage females which manifests in different conduct but all of which retain the common tendency.
It is normal in judgments on applications of this sort to firstly examine whether the tendency evidence is likely to have a significant probative value. I have concentrated on the main issues that arose in argument but it should not be thought that I have not considered the threshold issues.
I am of the view that the evidence sought to be led as tendency evidence has significant probative value, as described in Hughes and also as set out by Burns J in the useful test he describes in R v CX [2016] ACTSC 106 at [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 this case, no admissions have been made and the Crown is entitled to assume that all matters it is required to prove will be in dispute.
In relation to s 101, I have no doubt that the tendency evidence will be of prejudicial effect but I am also of the view that it can be adequately dealt with by directions to the jury. There is, of course, a presumption that such directions will be effective (R v PWD [2010] NSWCCA 209; 205 A Crim R 75).
Accordingly, with the exception of the inclusion of incident 7, I will make the orders sought by the Crown.
I make the following orders:
(a)The Crown is permitted to lead the following tendency evidence:
The accused had a tendency to act in a particular way, and have a particular state of mind, namely:
(a) to have a sexual interest in teenage females;
(b) to offer incitements such as free marijuana, alcohol, food and transport to teenage females so that he could engage in sexual activities with them;
(c) to offer money to teenage females to engage in sexual activities with him;
(d) to engage in sexual conduct with teenage females by either:
(i) requesting that they perform sexual acts upon him;
(ii) touching or exposing his penis in their presence;(iii) performing sexual acts on himself in their presence
(b)The Crown is permitted to adduce evidence of the 10 incidents, other than incident 7, referred to in the Notice of Intention to Adduce Tendency Evidence filed 12 September 2017 as evidence that the accused had the tendencies set out in Order (a) above.
(c)The Crown is permitted to adduce evidence of the 10 incidents, other than incident 7, referred to in the Notice as evidence that the accused had tendencies (a) and (b).
(d)The Crown is permitted to adduce evidence of incidents 3, 5 and 6 referred to in the Notice as evidence that the accused had tendency (c).
(e)The Crown is permitted to adduce evidence of incidents 1, 3, 6 and 10 referred to in the Notice as evidence that the accused had tendency (d) (i).
(f)The Crown is permitted to adduce evidence of incidents 1, 3, 8 and 9 referred to in the Notice as evidence that the accused had tendency (d) (ii).
(g)The Crown is permitted to adduce evidence of incidents 3, 8 and 9 referred to in the Notice as evidence that the accused had tendency (d) (iii).
(h)Evidence in respect of each incident, other than incident 7, is cross-admissible as evidence against each other incident.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 26 September 2017 |
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