R v BC (No 2)
[2020] ACTCA 24
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v BC (No 2) |
Citation: | [2020] ACTCA 24 |
Hearing Date(s): | 5 February 2020 |
DecisionDate: | 5 February 2020 |
ReasonsDate: | 14 May 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [33]-[35] |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Application for leave to appeal from interlocutory orders – tendency evidence – admissibility of tendency evidence relating to facts to which accused has pleaded guilty |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 76(3) Evidence Act 2011 (ACT) s 101 |
Cases Cited: | Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 House v The King (1936) 55 CLR 499 |
Parties: | The Queen (Applicant) BC (Respondent) |
Representation: | Counsel K McCann (Applicant) J O’Keefe (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) John O’Keefe Lawyers (Respondent) | |
File Number(s): | ACTCA 61 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 13 December 2019 Case Title: R v BC Citation: [2019] ACTSC 391 |
LOUKAS-KARLSSON J:
Introduction
The respondent has been charged with 7 counts of committing an act of indecency on a person under 10 years of age and 3 counts of engaging in sexual intercourse with a person under 16 years of age. These charges relate to allegations that he sexually abused his cousin LC who was approximately 6 years younger than himself between 2002 and 2010. His trial was due to begin on 23 March 2020.
On 7 November 2019 the applicant served on the respondent a Notice of Intention to Adduce Tendency Evidence seeking to adduce evidence of 9 incidents.
On 13 December 2019 the applicant’s application to adduce tendency evidence was heard by Justice Elkaim (the interlocutory judge). His Honour made the following orders:
(a) That the Crown be permitted to adduce tendency evidence as outlined in incidents 1 through 7 and incident 9 as set out in the Notice to Adduce Tendency Evidence dated 7 November 2019 to prove that the respondent had a tendency to have a particular state of mind (to have a sexual interest in LC) and to act in a particular way (to act on his sexual interest in LC);
(b) The Crown is not permitted to adduce evidence of incident 8 as set out in the Notice to Adduce Tendency Evidence dated 7 November 2019.
By an application dated 20 December 2019 the applicant sought leave to appeal from those interlocutory orders refusing the applicant’s application to lead evidence of incident 8 as tendency evidence. It also sought that the pre-trial evidence hearing listed on 13 February 2020 be vacated and that the trial of the respondent listed to commence on 23 March be vacated as consequential orders should leave be granted.
The draft grounds of the proposed appeal were annexed to the affidavit of Sofia Janackovic in support of the application for leave to appeal:
(a) His Honour erred in finding that the probative value of the evidence of incident 8 was outweighed by the prejudice of the admission of that incident;
(b) His Honour failed to consider, or properly consider, the probative value of the evidence of incident 8 to the Crown case;
(c) His Honour failed to consider, or properly consider, the prejudicial effect of the evidence of incident 8;
(d) His Honour failed to give reasons, or any adequate reasons regarding the prejudicial effect of the evidence of incident 8;
(e) His Honour failed to give adequate reasons as to why the prejudicial effect of the evidence outweighed the probative value of the evidence.
On 5 February 2020 I granted leave to appeal from that interlocutory decision. The following are the reasons for that decision.
The proceedings before the interlocutory judge
The Notice set out the particulars of 9 incidents, with incident 8 being one to which the respondent had already entered a plea of guilty. It was described in the notice as follows:
Incident 8 – SCC 192 of 2019 (Conception Incident)
(h) Substance of the evidence
On a weekend in June 2010, the accused drove himself and the complainant to a mountain near Woden. The accused pulled his car up to the side of the road. The accused told the complainant to go to a big rock, approximately a metre or two from the side of the roadside, with him. The complainant went over to the rock and the accused pushed the complainant onto the rock. The complainant then pulled the complainant’s pants down to her ankles before pulling his own trackpants down a little bit and then pulling out his penis. The accused lifted the complainant’s left leg up a bit and inserted his penis into her vagina before beginning to thrust hard. Eventually the accused ejaculated inside the complainant. This incident of sexual intercourse resulted in conception.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
June 2010 at a mountain near Woden
(b)(ii) The names and addresses of each person who saw, heard, or otherwise perceived the conduct:
[LC]
In the course of submissions before the interlocutory judge the following exchanges took place:
HIS HONOUR: Won’t a jury say to itself he is admitting doing that one and won’t a Crown prosecutor be entitled to say to the jury, and I would imagine would because it’s important, say ‘He has denied – members of the jury, you would have noticed he had denied A, B, C and D but did you pick up that he did not deny F? You can only use that for the reasons that his Honour is going to tell you’ but if that’s not prejudicial, then what is?
COUNSEL: But again, how is the jury going to misuse that evidence?
HIS HONOUR: Because they know he concedes that he has done it.
COUNSEL: Well I suppose in terms of silence but what the Crown would be adducing in any event other forensic results and that is effectively indisputable.
HIS HONOUR: …[I]t is not that he could challenge that, it is that he can’t challenge anything else. Sorry, he can challenge it. I am just saying the prejudice of him having to concede one will affect the others.
The transcript of the ex tempore judgment of the interlocutory judge refusing permission to adduce the above as tendency evidence was expressed as follows:
Has already pleaded guilty to this incident having occurred. Going back to the basics of a tendency application the relevant sections in the Evidence Act are sections 97 and section 101. What concerns me here is that the prejudicial effect of this evidence significantly outweighs its probative value. I agree it has a good deal of probative value but bearing in mind that a jury would be asked to satisfy itself that the conception incident had occurred in order to use it in respect of the counts.
It follows that the accused would be prevented from denying his involvement in the conception incident and that would very significantly impair his capacity to conduct the rest of his defence…
Consideration
The relevant law
Both applicant and respondent were in agreement that the test for granting leave to appeal from an interlocutory order pursuant to s 37E(4) of the Supreme Court Act 1933 was recently set out by Burns J in R v DL [2018] ACTCA 9 (R v DL) at [13]-[14]. The four main considerations when the appeal is brought from an interlocutory matter in a criminal matter are as follows:
(a) Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal.
(b) Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong.
(c) Whether a grant of leave would inappropriately fragment the criminal trial process.
(d) Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.
The applicant’s submissions on leave to appeal
The applicant submitted that the standard of appellate review to be applied on appeal is the correctness standard as expressed in Warren v Coombes (1979) 142 CLR 531 rather than the standard expressed in House v The King (1936) 55 CLR 499 (House v The King). Counsel referred to the NSW decision of Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293 (RDT) at [12]-[17] in which Basten J addressed the standard of review which applies in relation to an appeal with respect to the admission of tendency evidence. It was submitted that while not the crux of this application, that a lesser standard than House v The King would apply upon review of the interlocutory decision (T 7.8-15). It was submitted further that even if the House v The King standard were to apply that the decision was still infected by error of that type (7.33-40; 18.40-45; 19.1-2).
Whether the decision complained of was attended with sufficient doubt
The applicant submitted that the interlocutory decision was attended with sufficient doubt to warrant the grant of leave to appeal and made the following submissions:
It was submitted that the crux of the applicant’s argument was that the interlocutory decision was “simply wrong” and “not logically correct at all” (T 9.36-40). It was submitted that the interlocutory judge had found there would be unfair prejudice due to the accused being prevented from denying his involvement in an incident which he had admitted his involvement in by way of his plea of guilty (T 9.43-46; T 10.1-2). It was submitted that there are countless authorities where tendency evidence involving prior convictions or admissions by an accused have been led, and that that fact alone is not a form of unfair prejudice (10.15-20) It was submitted that no authority could be found for the approach taken by the interlocutory judge (T 10.22-35).
It was further submitted that the interlocutory judge failed to address the importance of the evidence of incident 8 in the context of the application to adduce tendency evidence and the prosecution case. The applicant described the evidence demonstrating that the respondent had admittedly engaged in conduct similar to that charged as “monumentally probative”. It was submitted that given the respondent’s case was that the remaining charged incidents did not occur, the tendency evidence, including incident 8, was significantly probative in the assessment of the probability of the facts in issue.
It was additionally submitted that the interlocutory judge erred with respect to his findings regarding prejudice and provided no or no adequate reasons for his ultimate conclusion. The applicant accepted that in the context of considering the prejudice of the evidence, that prejudice is not limited to the risk that the jury will misuse the evidence and that it may include procedural disadvantage from its admission and the accused’s capacity to meet the actual evidence for an extraneous reason. It was submitted that this was not a case where critical witnesses had died, or evidence had been destroyed.
It was submitted that it was “difficult to understand” how the respondent would be procedurally disadvantaged in the conduct of his trial through admission of his conduct. It was submitted that evidence of admitted conduct which is similar to the conduct which is charged on the indictment but denied may allow a jury to accept those allegations as reliable. It was submitted that in this context, the probability that a jury would be more likely to find the respondent guilty if the evidence was admitted was not a relevant form of prejudice in this context, and that this would not prevent the respondent from denying his involvement in the other charged matters (T 11.25-35).
It was further submitted that the interlocutory judge failed to explain how the respondent’s decision to plead guilty was a form of prejudice, and if it was a form of prejudice how it outweighed the probative value of the evidence. It was submitted that the interlocutory decision did not identify how directions could, or could not, be used to cure any prejudice (T 11.35-40; AWS [6]). It was submitted that it was not sufficient to simply state that the admission of the evidence would be unfairly prejudicial while making an assumption that the jury would act inappropriately on that evidence. It was submitted that in accordance with the authorities, juries can be trusted and directions are listened to (T 12.33-45). Submissions were made to the effect that a trial judge could go beyond a standard tendency direction if appropriate so that the jury’s mind could be appropriately focussed (T 13.1-5).
It was additionally submitted that the evidence of incident 8 had significant probative value, and that after undertaking application and analysis of s 101 of the Evidence Act 2011 (ACT) (Evidence Act) as explained in R v Bauer(a pseudonym) [2018] HCA 40; 92 ALJR 846 at [73], it was “difficult to identify any prejudicial effect which could be ascribed to the evidence” (AWS [7]). It was submitted that the interlocutory judge failed to engage in the proper approach to the balancing exercise under s 101 of the Evidence Act, and in particular no analysis of how important the evidence would be to the prosecution case. It was submitted that the authorities are clear that the fact that this piece of evidence may mean the jury might accept the complainant as reliable and thus find the respondent guilty was not a form of unfair prejudice (T 13.33-45).
It was submitted that the exchange between the prosecution and the interlocutory judge extracted at [8] above “feeds into” the argument that there was a failure to engage properly with the s 101 test in dealing with both prejudice and jury directions (T 23.13-16). It was submitted that the prosecution has met the House v The King standard on the basis that the interlocutory judge acted upon the wrong principle when determining what he did about prejudice, and by failing to engage in the proper analysis of the balancing exercise required by s 101 ( 23.34-43). It was submitted that the interlocutory judge erred with respect to principle in two ways. Firstly, by finding the respondent’s inability to deny incident 8 was a form of prejudice. Secondly, by erring in principle or by failing to take into account some material consideration by failing to engage properly with the consideration of directions in the balancing exercise (T 24.10-20).
Whether substantial injustice would result if leave were refused
The applicant submitted that the decision of the interlocutory judge was wrong and that there would be a substantial miscarriage of justice if leave were refused. The applicant submitted further that the prosecution case would be substantially weakened by the interlocutory decision as the significant probative value of that evidence substantially outweighed any prejudicial effect which might flow from the prosecution’s reliance on it at trial (T 14.10-25).
The applicant submitted that the present case could be distinguished from R v DL on the basis that incident 8 involved admitted conduct of a similar nature to that charged on indictment, rather than an uncharged allegation of similar conduct (T 15.9-13). It was submitted that in circumstances where the respondent’s case is that the charged conduct did not happen, evidence of incident 8 “undoubtedly established” the tendencies alleged, which in turn was significantly probative of the facts in issue in the trial. It was submitted that the evidence that the respondent had engaged in sexual intercourse with the complainant before is substantially probative to the ultimate fact in issue and was also distinguishable from R v DL in that respect (T 15.15-17). It was submitted that the absence of the evidence in incident 8 would deny the prosecution substantially probative evidence and in addition deny the contextual and factual circumstances of the relationship between the respondent and the complainant (T 15.17-21).
The applicant noted that the interlocutory decision is binding under s 76(3) of the Court Procedures Act 2004 (ACT) unless the trial judge finds that it is in the interests of justice that it not stand (T 15.25-30). It was submitted that would be difficult, and in the absence of a change in circumstances unlikely that the prosecution would be permitted to relitigate the issue before the trial judge, noting that a change in circumstances was not a legislative requirement (T 15.34-40). It was submitted further that unlike the respondent, in the event of an acquittal the prosecution has no right of appeal.
Fragmentation of the criminal process
The applicant acknowledged the principle that the High Court and ACT Courts have observed and applied on many occasions that the fragmentation of criminal trials to contest the rulings of a trial judge are highly undesirable and will only be allowed in exceptional circumstances. The applicant accepted that the trial and pre-trial evidence hearing would need to be vacated as a consequence of granting leave to appeal and that this outcome would be undesirable (T 15.45-47; T 16.1-10).
Nevertheless, it was submitted that this was an exceptional case which would justify that fragmentation to avoid an injustice. The applicant made the self-admittedly bold submission that if the interlocutory decision were allowed to stand it may set “quite a dangerous precedent”, being the idea that admitted conduct with significant probative value is not admitted for the reasons given by the interlocutory judge (T 16.14-18).
The respondent’s submissions on leave to appeal
The respondent agreed that the relevant test was outlined in R v DL and opposed the leave to appeal. The respondent cited Vojneski v The Queen [2016] ACTCA 57 at [12]-[14] for the proposition that decisions made under s 101(2) of the Evidence Act are reviewable pursuant to the principles as stated in House v The King (T 17.40-45; 18.1-10).
Whether the decision complained of was attended with sufficient doubt
The respondent submitted that the applicant had not demonstrated any arguable case of error in the decision of the interlocutory judge in his finding that the prejudice of allowing the tendency evidence outweighed its probative value when applying s 101(2) of the Evidence Act (T 19.10-15). It was submitted that this was a balancing act and that the correctness standard of appellate review did not apply to the decision.
The respondent drew attention to the exchanges between the interlocutory judge and the prosecution extracted at [8] above. It was submitted that if the jury were to hear the evidence of the admission with respect to incident 8 that it would be difficult for them to not then find that the respondent had a tendency to have sex with the complainant, which was not a tendency the prosecution was trying to establish (T 20.14-18). It was submitted that it would be very difficult to explain to the jury that the tendency evidence in incident 8 could only be treated as evidence of attraction and preparedness to act on the attraction (T 20.16-20).
It was submitted that the interlocutory judge did not deny that the evidence had probative value. The respondent did not deny that the evidence was probative but submitted that the prejudice outweighs its probative value (T 22.34-38). It was submitted that the interlocutory judge was concerned that the respondent had pleaded guilty to incident 8 and that allowing evidence of that incident would be unfairly prejudicial to the extent that it could not be cured with a jury direction. It was submitted further that the prosecution’s case does not depend upon the particular evidence contained in incident 8, and that there was plenty of other evidence going toward the establishment of the tendency that the prosecution could rely upon (T 22.15-20)
It was submitted that the prejudice associated with the admission of the evidence of the respondent’s plea of guilty to an incident unrelated to the charges “effectively would reverse the presumption of innocence because [the respondent is] presumed innocent of all the offences on the indictment.” (T 20.22-24). It was submitted that the evidence is so prejudicial that a jury would become emotional, especially when hearing of the conception and termination associated with incident 8. It was submitted that this had also been submitted by counsel to the interlocutory judge (T 20.30-36).
The respondent accepted that no authorities could be found supporting the approach taken by the interlocutory judge, submitting that it “may be new territory” (T 20.43-45).
Whether substantial injustice would result if leave were refused
The respondent submitted that while the prosecution’s case might be weakened by exclusion of evidence of incident 8 but that it would not result in a substantial injustice. It was submitted that the prosecution case would not fall over if the evidence were excluded, and that there was plenty of other evidence to support the prosecution’s case. It was submitted further that the prosecution had the opportunity to contest the interlocutory order before the trial judge, making the appeal against the orders unnecessary and redundant (T 21.42-45; 22.1-2). It was accepted by the respondent that the absence of suitable authorities may be of interest to the Court of Appeal but submitted that the Court of Appeal discourages appeals from interlocutory decisions (T 22.5-11).
Fragmentation of the criminal process
The respondent submitted that the applicant had not demonstrated exceptional circumstances which would justify delaying the trial. It was submitted that the grounds put forward by the applicant fail to demonstrate error on the part of the interlocutory judge or any exceptional circumstances justifying the grant of leave to appeal.
Conclusion
In determining the question of leave to appeal it is not necessary nor appropriate to settle the question of whether the correctness standard applies or House v The King applies. I have had regard to the four main considerations as set out in R v DL. In my view the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal. A grant of leave in these circumstances does inevitably fragment the trial process. Nevertheless, in this case there are exceptional circumstances that justify a grant of leave to avoid an injustice.
For these reasons I allowed the application.
I direct that these reasons not be published, other than to the applicant and the respondent, until the respondent’s trial is completed.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: |
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