R v BC (No 3)
[2020] ACTCA 49
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v BC (No 3) |
Citation: | [2020] ACTCA 49 |
Hearing Date: | 3 August 2020 |
DecisionDate: | 3 August 2020 |
ReasonsDate: | 30 October 2020 |
Before: | Mossop, Loukas-Karlsson, and Abraham JJ |
Decision: | Appeal allowed |
Catchwords: | CRIMINAL LAW – Interlocutory appeal – Admissibility of evidence – whether evidence of admitted offending admissible as tendency evidence – whether probative value of evidence substantially outweighed prejudicial effect |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55(2), 61(1) Evidence Act 2011 (ACT) ss 97, 101, 135, 137 |
Cases Cited: | BC v R [2019] NSWCCA 111 DPP (NSW) v RDT [2018] NSWCCA 293 Warren v Coombes (1979) 142 CLR 531 |
Parties: | The Queen (Appellant) BC (Respondent) |
Representation: | Counsel T Hickey (Appellant) J O’Keefe (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Tu’ulakitau McGuire (Respondent) | |
File Number: | ACTCA 61 of 2019 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 13 December 2019 Case Title: R v BC Citation: [2019] ACTSC 391 |
THE COURT:
Introduction
On 3 August 2020 the Court made the following orders:
(a)Appeal allowed.
(b)The order made by the court on 13 December 2019 is set aside and the following order made: The Crown is permitted to adduce evidence as tendency evidence outlined as Incidents 1-9 set out in the Notice of Intention to Adduce Tendency Evidence dated 7 November 2019 as tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT) (Evidence Act) to prove that the accused had a tendency to act in a particular way and to have a particular state of mind as described in the notice.
The Court indicated at that time that reasons would be published at a later date. The reasons follow.
This was an appeal against an interlocutory decision of a judge of the Court.
Because of its interlocutory nature, leave to appeal was required. Leave was granted on 5 February 2020 by Loukas-Karlsson J: see R v BC (No 2) [2020] ACTCA 24.
Background to the appeal
The primary judge was asked to make a pre-trial ruling concerning the admissibility of tendency evidence.
In summary, the accused is alleged to have committed various sexual acts upon his female cousin who was six years younger than him. All of the alleged offences relate to the same complainant. There are seven counts of committing an act of indecency with a young person under 10 years of age contrary to s 61(1) of the Crimes Act 1900 (ACT) (Crimes Act) and three counts of sexual intercourse with a young person under 16 years of age contrary to s 55(2) of the Crimes Act. It is also relevant to note that the accused has pleaded guilty to a further count of sexual intercourse with a young person under the age of 16 years. That was an act of sexual intercourse which led to conception. Genetic testing indicated that the accused was the father.
The Crown had sought an order that it be permitted to adduce evidence of Incidents 1-9 outlined in a tendency notice dated 7 November 2019.
The incidents identified on the tendency notice and their relationship to the charges is summarised in the following table:
Incident Date Range Relevant counts Name Incident 1 2002 – 2003 Uncharged acts Incident 2 January 2002 – December 2003 Count 1 Laundry incident Incident 3 January 2002 – December 2003 Count 2, 3 Murder in the dark incident Incident 4 January 2002 – December 2003 Count 4 Football club van incident Incident 5 January 2002 – December 2003 Count 5, 6 Statesman hotel incident Incident 6 October 2004 – January 2005 Count 7 Karly’s baby incident Incident 7 January 2010 – March 2010 Count 8 First sexual intercourse incident Incident 8 June 2010 Conception incident Incident 9 June 2010 – August 2010 Count 9, 10 Last sexual intercourse incident
The primary judge permitted each of the incidents except for Incident 8 to be used as tendency evidence.
Grounds of appeal
The grounds of appeal may be summarised as follows:
(a)The primary judge erred in finding the respondent’s inability to deny Incident 8 was a form of unfair prejudice for the purposes of s 101(2) of the Evidence Act.
(b)The primary judge erred in finding the admission of Incident 8 would impair the respondent’s ability to conduct his defence at trial.
(c)The primary judge erred in finding the probative value of the evidence of Incident 8 was substantially outweighed by the prejudicial effect of the admission of that incident.
Standard of Review
It was, until relatively recent times, the generally accepted position that the standard of appellate review under s 101(2) of the Evidence Act, required a House v The King (1936) 55 CLR 499 (House v The King) error: see for example Vojneski v The Queen [2016] ACTCA 57 at [13].
In R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 (Bauer) the High Court stated at [61] in the context of dealing with tendency evidence that in assessing whether evidence is of significant probative value ‘there can only ever be one correct answer’, and that in an appeal it is for the Court itself to determine whether evidence is of significant probative value, as distinct from deciding whether it was open to the trial judge to conclude that it was: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [41]-[48] per Gageler J; Warren v Coombes (1979) 142 CLR 531. A line is drawn between a unique outcome and the correctness standard on the one hand, and on the other hand a range of legally available outcomes such as sentencing, where the House v The King standard applies: see Sidaros v The Queen [2020] ACTCA 11 (Sidaros v The Queen). See also DPP (NSW) v RDT [2018] NSWCCA 293.
In Kadir v The Queen [2020] HCA 1; 94 ALJR 168 the High Court found it unnecessary to decide whether the correctness standard now applied to s 138. In Sidaros v The Queen this Court applied the correctness standard to s 90 and s 138, although it also applied House v The King in the alternative.
In BC v R [2019] NSWCCA 111 (BC) at [60] the NSW Court of Criminal Appeal applied the s 97 reasoning in Bauer to s 101, although that was in a situation where the parties agreed to that approach. BC was applied in Jackson v R [2020] NSWCCA 5, noting that the approach was by agreement of the parties. BC has also been applied in Vaggv R [2020] NSWCCA 134.
The Court was not assisted with any detailed submissions on this aspect, and those NSW authorities were not referred to.
In that context, for the purposes of this appeal it is not appropriate or necessary to resolve the unsettled issue of the standard for review of a ruling under s 101(2) of the Evidence Act. It is unnecessary to express any conclusion as to whether the correctness test or the principles in House v The King apply, because regardless of which standard is applied, the Court has come to the view that the primary judge erred in either event. This Court, applying the correctness standard, finds that the primary judge reached an incorrect decision. A House v The King error has also been demonstrated, as discussed below.
Ground (a) – inability to deny the conception incident is not a form of unfair prejudice
Ground (b) – admission of the incident does not impair the respondent’s ability to conduct his defence
Ground (c) – probative value of conception incident substantially outweighs its prejudicial effect
It is appropriate to deal with the three related grounds together.
Section 97 of the Evidence Act provides:
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.
At the time of the primary judge’s decision and at the time of the appeal decision, s 101 of the Evidence Act relevantly provided as follows:[1]
[1] Section 101(2) of the Evidence Act, as amended 1 September 2020, now reads: 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 outweighs the danger of unfair prejudice to the defendant.
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.
(Emphasis added)
Section 135 provides:
135General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
(Emphasis added)
Section 137 provides:
137Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
(Emphasis added)
In respect to Incident 8 the Crown indicated to the primary judge that it intended to lead evidence of the incident and the DNA evidence to prove that the child was accused’s, but that the fact the applicant pleaded guilty was not intended to be led. That may be seen as a position favourable to the respondent, as, at least arguably in the context of this case, there appears to be no obvious reason why the evidence of the admission would not be admissible in addition to the evidence that is to be led.
The primary judge permitted each of the incidents except for Incident 8 to be used as tendency evidence. In relation to Incident 8 the extent of the primary judge’s ex tempore reasons for so ruling are at [8]-[9]:
That brings me to the last matter raised by the accused. That concerns what is called the conception incident. The accused has already pleaded guilty to this incident having occurred.
Going back to the basics of a tendency application, the relevant sections of the Evidence Act 2011 (ACT) are ss 97 and 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 I also bear 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. I also note that, even absent the conception incident, there is significant evidence against the accused.
The respondent’s case is that, with the exception of Incident 8, all the other allegations are fabricated. It follows that the complainant’s credibility will be the central issue at trial.
This is in a context where the evidence will be that on 6 September 2010 the complainant told her mother that she had been raped and that she was pregnant. The complainant spoke to the police and, on the Crown case, made up a story that it was a stranger who had done it, and then informed the police she did not wish to continue the investigation. The Crown case is that at that time she was too scared to disclose that the accused was her rapist. The complainant disclosed that in 2018 and asked that the investigation be re-activated.
Against that background, a number of observations may be made.
First, the evidence in relation to Incident 8 had significant probative value. The primary judge appears to have accepted that proposition as the evidence of the other acts was admitted as tendency evidence and this Incident was excluded by operation of s 101. That said, it is necessary to consider why it is plain that the evidence has such value as only then can s 101 properly be considered.
In Bauer the High Court explained the relevance of the evidence of other sexual acts in a case, such as this, involving a single complainant, at [48]-[49] as follows:
Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
…Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts…..
Citing inter alia, HML v The Queen [2008] HCA 16; 235 CLR 334 (HML v The Queen) at [492]-[493], [506], [510], [512] per Kiefel J (as her Honour then was), and see [6]-[7], [11], [25]-[27] per Gleeson CJ, [103], [109]-[110] per Hayne J (Gummow and Kirby JJ agreeing at [41]-[59]), [277]-[278] per Heydon J.
The respondent’s submission that the evidence is of low probative value and does not go to any fact in issue is plainly incorrect.
In this case Incident 8 has particularly strong probative value because it led to conception, with evidence of the results of DNA testing establishing that the accused was the father. The DNA evidence is objective and independent evidence which shows that the evidence of the complainant that the accused committed that act is correct. It is the only such independent evidence in this case supporting the complainant’s account. Absent that evidence the Crown case will rely on the complainant’s evidence of the events alone. Given the relevance of the tendency reasoning process as described above, the significant probative value of this evidence is self-evident.
Even leaving aside any issue of tendency reasoning, it is evidence which confirms or tends to confirm her evidence that the accused committed these sexual acts upon her, including on the occasions the subject of the charges. The evidence confirms, or tends to confirm, the complainant’s account of the relevant events.
Second, in the context of s 101 of the Evidence Act, the prejudicial effect referred to is the danger that a jury might make improper use of the evidence.
In Bauer at [73], the High Court stated:
… Despite textual differences between the expressions "prejudicial effect" in s 101, "unfairly prejudicial" in s 135 and "unfair prejudice" in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.
The only reason given by the primary judge as to purported prejudice is the difficulty for the respondent of denying the allegations in Incident 8 and “therefore it would significantly impair his capacity to conduct the rest of his defence”. The primary judge erred in so concluding. Such a consideration does not amount to prejudicial effect within the meaning of s 101(2). His Honour did not engage with or apply the principles relevant to a consideration of what amounts to unfair prejudice within s 101 in his ex tempore reasons.
The probative strength of the evidence is not a basis to exclude the evidence. There is no prejudice other than in the sense that, if accepted, it may be relevant to and support the Crown in its case and be destructive of the defence position. Such prejudice only arises because of the probative value of the evidence itself. It does not provide a basis for the exclusion of the evidence by operation of the test in s 101(2). As Gleeson CJ observed in HML v The Queen at [12], “[prejudice] does not mean its legitimate tendency to inculpate”. “Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted": Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 (Papakosmas) at [91] per McHugh J.
The respondent’s submission that there is “procedural disadvantage” in that it creates a difficulty in conducting the trial because he is not able to deny Incident 8, is really no more than the finding of the primary judge under a different name. That the respondent appeared to rely significantly on the fact that a guilty plea was entered and therefore he could not challenge the offence, misunderstands the significance of the plea. Irrespective of the plea having been entered, Incident 8 could not be challenged if his instructions were that he had committed that Incident. As observed above, that is significant because it is the only independent and objective evidence which supports the complainant’s evidence in circumstances where the defence case will necessarily involve a challenge to the complainant’s credibility. In reality it is not the plea that is the difficulty for the respondent but the DNA evidence implicating him in the Incident. In any event, leaving aside how the admission of this evidence could be described as procedural disadvantage, that the admission of Incident 8 means that the accused has to make orthodox forensic decisions at trial does not constitute unfair prejudice within the meaning of s 101(2).
In so far as the respondent sought to suggest that Incident 8 is unfairly prejudicial “because of its scandalous content and the jury will misuse the evidence”, that submission cannot be accepted. Apart from general assertions, the respondent did not elaborate on why that would be so. The probative value of Incident 8, as well as the danger of any potential misuse, is to be assessed, in the context of the allegations against the accused which relates to sexual conduct over many years, starting from when the complainant was very young. In that context there is no proper basis to suggest the evidence will be misused. The jury will be given appropriate directions as to the use of this evidence, and warned against any impermissible reasoning. There is no basis to suppose the jury will do other than follow those directions: Bauer at [74] and see Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31]; Glennon v The Queen (1992) 173 CLR 592 at 615.
As the High Court in Bauer observed at [74]:
The jury were most unlikely to have been overwhelmed by the nature and number of allegations. The Crown case was essentially simple. Despite the number of charged and uncharged acts, the case presented was of an 11 year period over which the respondent offended against only one complainant, RC, as occasion presented, on the occasions of the charged acts. It is equally unlikely that the jury would have failed to consider the possibility that the respondent did not act on his sexual attraction to RC on the occasions of the charged acts. The trial judge several times specifically directed them that they could not convict the respondent of any charged act unless satisfied beyond reasonable doubt of the commission of that act, and further specifically directed them that they could not substitute evidence of other charged acts or other alleged uncharged acts, or a conclusion that the respondent had a sexual interest in RC, for what was alleged in the particular charge. There is no reason to doubt that the jury heeded those directions.
Those observations are apposite to this case.
There is nothing which suggests that the evidence of Incident 8 would give rise to the unfair prejudice contemplated by s 101 and of which the authorities speak. There is nothing which would suggest that the evidence, if admitted, would: be misused by the jury in some way; be given more weight than it deserved; divert the jury from its task; be evaluated by the jury through the application of some illegitimate form of reasoning; or be used in a way which is irrational or illogical: Papakosmas at [98]; Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470 at [140]; Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51]; R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [116].
Third, the primary judge’s reasons observed that absent Incident 8 there is still significant evidence against the accused. As Incident 8 involves the only independent and objective evidence implicating the accused in the alleged conduct, that statement is incorrect. Leaving that to one side, the primary judge’s reliance on that matter is misplaced. The issue is whether the conditions in s 97 and s 101 have been satisfied such that the evidence is admissible as tendency evidence. If those conditions are satisfied, in this case, that there is other evidence implicating the accused cannot properly effect the admissibility of the evidence. With respect to the primary judge, s 101 it is not about “levelling the field” between the parties.
Fourth, in any event, even leaving aside the erroneous finding in respect to prejudice, the primary judge did not conduct the appropriate weighing process in s 101. The primary judge did not consider the significant probative value of the evidence, nor whether there were appropriate steps that could be taken to alleviate any such prejudice.
Fifth, the respondent’s fallback positions should not be accepted. The first fallback position related to limiting Incident 8 to counts 9 and 10. There is no proper basis to do so. The nature of the sexual acts developed over the years. That there was a gap when the accused had little if any contact with the complainant, in the circumstances, does not affect the relevance or probative value of Incident 8 to the earlier counts: see for example: R v SK [2011] NSWCCA 292 at [26]. Given the relevance of the evidence, the reasoning is equally applicable to the conduct which occurred before this Incident, as it is to the conduct after. The second fallback position, which was that the jury should only be told that the accused has admitted to one other instance of sexual intercourse with the complainant occurring in June 2010 and that then the jury should not be told about the plea of guilty, or the pregnancy, or the DNA evidence, should not be accepted. The admission of Incident 8 is in specific circumstances, namely that there was a pregnancy which led to the authorities obtaining DNA evidence which implicated the accused. A generic statement about an admission would be incorrect, misleading, and capable of misuse. The jury would be entitled to know the context in which the admission was made, that is, in circumstances where the accused could not plausibly deny the offending in Incident 8. I note the Crown suggested, without accepting there was any relevant prejudice, that the termination might not be led, but that evidence would be led in relation to the fact of the pregnancy as well as the DNA evidence resulting from the conception.
Finally, it follows that the grounds of appeal have been established. Applying the relevant principles to a proper consideration of the evidence, Incident 8 was admissible as tendency evidence. As noted above there is no unfair prejudice within the meaning of s 101(2). Careful directions will be given to the jury about the proper use that can be made of this and the other tendency evidence.
Applying the correctness standard, the decision was wrong. Additionally, applying the House v The King principles, the primary judge erred by acting on a wrong principle in his decision not to admit the conception incident as tendency evidence.
The primary judge erred in concluding that for the purposes of s 101(2) the probative value of the evidence in relation to Incident 8 did not substantially outweigh any prejudicial effect it may have on the defendant. His Honour ought to have found that it did. The appeal was therefore allowed.
Orders
Appeal allowed.
The order made by the court on 13 December 2019 is set aside and the following order made: The Crown is permitted to adduce evidence as tendency evidence outlined as Incidents 1-9 set out in the Notice of Intention to Adduce Tendency Evidence dated 7 November 2019 as tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT) to prove that the accused had a tendency to act in a particular way and to have a particular state of mind as described in the notice.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Loukas-Karlsson, and Justice Abraham. Associate: Date: |
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