R v BI (No 3)
[2016] ACTSC 356
•12 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BI (No 3) |
Citation: | [2016] ACTSC 356 |
Hearing Date: | 1 December 2016 |
DecisionDate: Reasons Date: | 1 December 2016 12 December 2016 |
Before: | Refshauge J |
Decision: | The objection to the cross-examination of TM about his conviction for the offence of obtaining money by deception is overruled. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by jury – historical sexual offences – multiple offences – multiple complainants – multiple charges – act of indecency against a person aged 16 years or below – sexual intercourse with a person aged 16 years or below – incest EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Witnesses – admissibility of evidence – credibility evidence – advance ruling and findings – EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – Privilege in relation to self-incrimination – s 128 certificate issued by the Court – s 128 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Evidence Act 1995 (Cth), s 103 Evidence Act 2011 (ACT), ss 97, 101, 102, 103, 103(1), 103(2), 128, 135, 137, 192A |
Cases Cited: | Bugg v Day (1949) 79 CLR 442 Director of Public Prosecutions v Kocoglu [2012] VSC 185 |
Texts Cited: | Australian Law Reform Commission, Report on Evidence (Report No 26, 1985) S Odgers SC, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) |
Parties: | The Queen (Crown) BI (Defendant) |
Representation: | Counsel Mr A Williamson and Mr S McLaughlin (Crown) Mr M Kukulies-Smith (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Defendant) | |
File Number: | SCC 64 of 2016 |
REFSHAUGE J:
This trial concerns allegations of sexual offences by four complainants, all of whom were under the age of 16 years at the time. The offences were said to have been committed by the accused BI against them between 1995 and 2012. To each of the 21 counts on the indictment, BI has pleaded not guilty.
One of the complainants, TM, was, at the time, the much younger brother of BI’s then wife, who was living with BI and his wife at the relevant time.
TM has given evidence of four incidents involving acts of indecency and sexual intercourse in a period of approximately six months in 1995 or 1996.
Later, he says, he demanded money from BI because of the damaging effect he said the alleged offences had on his life. He demanded of BI that, if BI did not give him money, he would go to the police and tell them of the sexual acts he claimed BI had performed.
He said that BI did give him money from time to time. TM said:
I know he put [$]1000 in once for me. He put like another [$]300 in and maybe a couple of dribs [and] drabs here and there, maybe [$]100 here or something there. I don’t, I don’t remember many of them. Just a couple of times that I remember.
The Crown characterised the facts given in this evidence as amounting to blackmail. As a confession of what might be a serious criminal offence, the Crown prosecutor submitted that this would, in itself, have some effect on the credibility of TM.
Accordingly, this evidence was given under a certificate issued by me under s 128 of the Evidence Act 2011 (ACT), which prohibits the evidence or any evidence obtained as a consequence of TM giving that evidence being used in any other proceedings against TM, except proceedings for giving false evidence.
Mr M Kukulies-Smith, who appeared for BI, applied, however, to cross-examine TM about a conviction of TM in Newcastle, New South Wales, for an offence of obtaining money by deception.
The Crown prosecutor sought an advance ruling under s 192A of the Evidence Act as to whether the evidence of that conviction was to be permitted as a subject of
cross-examination, a useful provision for such purposes: R v BI (No 2) [2016] ACTSC 355 at [5]. That is a proper course for the Crown prosecutor to take.
Certainly, had the Crown prosecutor been the counsel to seek to engage in such
cross-examination, he would almost certainly have been required to raise the matter with defence counsel, who would almost certainly seek such a ruling. See Montgomery v The Queen [2013] NSWCCA 73 at [6]. Defence counsel is not under the same ethical obligations as the Crown prosecutor, but appropriately joined in the application. In the interests of the proper conduct of the trial, the opportunity for consideration of the issue in advance was efficient and appropriate.
The Court was able to consider the matter outside ordinary Court hours so as to avoid the jury having to be confined in the jury room for the duration of the argument on the issue, though that can be unavoidable at times.
On 1 December 2016, I overruled the objection to this evidence. These are my reasons.
The evidence
I was favoured with a Statement of Facts prepared by NSW police for the prosecution of the offences of obtaining money by deception of which TM was convicted in the NSW District Court. In brief, those facts disclosed that TM and the victim of the offence had lived together on-and-off for a number of years. During that time, TM helped the victim to undertake tasks on his computer as he was more proficient than the victim in the use of computers. The task included banking and financial transactions.
In September 2006, the victim received a sum of money from an insurance company in compensation for injuries sustained in a motor vehicle collision. The money was placed in the victim’s bank account.
At the time, TM had a gambling account into which funds could be transferred electronically from other accounts, including bank accounts. Money could then be withdrawn from the gambling account.
Between 4 October 2006 and 1 November 2006, TM transferred funds totalling $17,010.17 from the victim’s bank account on 19 occasions. The money was transferred to TM’s gambling account and then withdrawn. TM was arrested and, when interviewed by police, made full admissions to committing the offences. He was later convicted of the offence.
TM explained the offence by saying that he had earlier received a large inheritance which he and the victim had spent in just a few months on drugs, alcohol, and gambling. He said that, although there was no actual agreement, he believed that the victim would pay back some of the money from the compensation he received.
TM and the victim, however, had had a “falling out” and after the victim failed to pay him any money, TM thought he would just take the money out of the account, which he did.
The credibility rule
Section 102 of the Evidence Act provides that credibility evidence about a witness is not admissible. That is known as the credibility rule. There are, however, exceptions. One of those exceptions is found in s 103 of the Evidence Act, which provides as follows:
103 Exception – cross-examination as to credibility
(1) The credibility rule does not apply to evidence given by a witness in cross-examination if the evidence could substantially affect the assessment of the witness’s credibility.
(2) Without limiting the matters to which the court may have regard for subsection (1), it must have regard to –
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or happened.
The inclusion of the word “substantially” in s 103(1) of the Evidence Act distinguishes the provisions of the Act from the common law and imposed a limitation that was not imposed by the common law: R v RPS (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Hidden J, 13 August 1997).
When considering the evidence, the Court must have regard to the case as a whole: El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1056 at [12].
As originally enacted, the test of the Evidence Act 1995 (Cth) (the Commonwealth Evidence Act) which, until 2011 applied in this Territory, was that the evidence had to have substantial probative value. That phrase, however, had to be somewhat nuanced in relation to this issue. As Hunt CJ at CL said in R v RPS:
The ‘probative value’ of evidence is defined in the s 3 Dictionary as meaning ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’, but both the context in which that phrase appears and the subject matter of s 103 indicate that that definition does not apply. That is made clear by the terms of subs(2), which demonstrate that the evidence must have probative value in relation to the credit of the witness. Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of the witness.
As explained by Simpson J in R v El-Azzi [2004] NSWCCA 455 at [183]:
In my opinion, for this evidence to have had substantial probative value within the meaning of s 103(1), it must have had the potential to have a real bearing upon the assessment of the appellant’s credibility – and, particularly, to the appellant’s credibility in relation to the evidence he had given, or would give, at the trial. It cannot have had substantial probative value for the purposes of s 103(1) unless it was capable, in a significant way, of bearing upon that assessment.
In 2008, s 103 of the Commonwealth Evidence Act was amended, when the phrase “has substantial probative value” was omitted and “could substantially affect the assessment of the witness’s credibility” was substituted as it now appears. When the Evidence Act was made, it was in accordance with the uniform legislation as it then appeared, for example in the amended s 103 of the Commonwealth Evidence Act.
I note that this amendment broadly adopted the description used by Simpson J in R v El-Azzi.
In R v El-Azzi, Sperling J recognised (at [251]), that a conviction for an offence of serious dishonesty did address a witness’s credit and did in that case satisfy the requirements of substantial probative value. The offence in that case was one of corruptly taking a sum of money for helping named persons recover stolen property and not using due diligence to cause those who stole the property to be brought to trial.
In that case, the appellant was charged with a number of drug offences involving the manufacturing of methylamphetamine. They were, thus, not directly related to the matters the subject of the prior conviction, which was only relevant to dishonesty more generally.
This is to be contrasted with other offences, such as prior drug offences, which would not tend to prove untruthfulness, as opposed, perhaps, to the commission of similar offences. See Director of Public Prosecutions v Kocoglu [2012] VSC 185 at [35].
The conclusion in R v El-Azzi that prior convictions for offences of dishonesty are capable of substantially affecting the assessment of the credibility of a witness was confirmed in R v Tieu [2016] NSWCCA 111 at [129].
I must also have regard to the factors set out in s 103(2) of the Evidence Act. In particular, the passage of time may be relevant as was found in R v Rogerson (No 28) [2016] NSWSC 160 at [32], where the passage of approximately 22 years was held to be too significant a period since the prior offence and conviction to permit it to constitute substantial probative value.
The present application
In this case, the offence was one of dishonesty and committed over a closed but sustained period of time. It was not one isolated incident, but a series of dishonest acts.
They showed a sense of entitlement exhibited by TM, without any real basis which would have permitted TM to justify his actions.
The Crown first submitted that the evidence was not relevant. It was submitted that the conduct which might constitute blackmail was not contested; the Crown had led it and BI was not challenging it. Thus, the evidence of the earlier conviction was not required to prove that the conduct constituting the blackmail was more likely to have occurred than not.
I accept that this is so, but that is not how BI was putting the use to which he wished to make of the conviction. The challenge was to TM’s credibility more generally. Thus, if it could be sustained as such, the evidence was still admissible.
The Crown also drew attention to the comments by the Australian Law Reform Commission in its Report on Evidence (Report No 26, 1985) at [819]:
The research of psychologists suggests that emphasis should be placed on evidence of conduct which is similar to testifying untruthfully (ie involves false statements) and which took place in circumstances similar to those of testifying (ie the witness was under a substantial obligation to tell the truth at the time).
While that may be accepted, I note that the Commissioner continued:
Consideration was given to including a proposal to that effect but it was thought to be too limiting for the exercise of cross-examination.
Thus, the fact that the conduct leading to the earlier conviction does not have the particular character referred to in the research, namely of being similar to testifying untruthfully, it does not thereby render it inadmissible.
Some further commentary by the eminent author, S Odgers SC, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) at 790, seems to support such a limitation, though perhaps less strictly. I am, however, satisfied that the relevant authorities do not so restrict the admissibility of such evidence.
While there was no obligation on TM to tell the truth in a strict sense in connection with the conduct, TM was involved in actions that were inconsistent with the facts; he was giving instructions to a bank which he was not authorised to give and thereby giving what may reasonably be characterised as untruthful instructions. It was dishonesty of a kind that is relevant to the question of whether he is a credible witness.
The Crown then submitted that there was a risk that the jury might engage in tendency reasoning. It seems to me that there is a tension between an attack on credibility in cross-examination permitted under s 103 of the Evidence Act and tendency reasoning regulated by ss 97 and 101 of that Act.
Nevertheless, the jury can be directed as to how they may use such evidence and such directions are regularly given in respect of relationship or context evidence which suffers from somewhat the same risk of being used by a jury for tendency purposes. See Toki (No 3) [2000] NSWSC 999; 116 A Crim R 536 at 547; [75].
It does not seem to me to make the evidence inadmissible even if it were not admissible as tendency evidence.
The Crown further submitted that the evidence would not assist in showing TM was untruthful. This was not a case where TM was required to tell the truth but did not do so.
Such a circumstance is, I am satisfied, not the only basis on which cross-examination as to matters addressing a witness’s credibility is to be permitted. There are many cases where it has been accepted that a degree of dishonesty is a relevant matter, as is shown by the reference to that by Sperling J in R v El-Azzi referred to above (at [25]).
That does not mean that every act of dishonesty would be able to be introduced in cross-examination; it must still have the required capacity substantially to affect the assessment of the witness’s credibility.
The Crown finally submitted that the admission to conduct that could constitute blackmail was sufficient to address any challenge to TM’s credibility and that to permit reference to this conviction could not add to that, thus not meeting the test that the evidence must “substantially affect the assessment of the witness’s credibility”.
There seems to me to be two answers to that contention; in the first place, this is a different situation where there is no family connection which might be regarded as giving a degree of latitude to otherwise discreditable conduct.
Although TM had obviously lived and partied with the victim, there was no family relationship between them.
In the second place, it is a further incident which shows that the kind of conduct in which TM was prepared to engage was not an isolated incident which could be explained only by the alleged offending conduct, but was also relevant to his honesty more generally.
As was pointed out by Mr Kukulies-Smith, the demands which may constitute blackmail could, if standing alone, be seen as a reaction to extreme events, namely the alleged sexual abuse of TM by BI, whereas if the evidence of the conduct leading to the earlier conviction was to be admitted, that would put an appropriate context to the credibility of TM when he said that he did it for these reasons rather than for the purpose of enriching himself. To have resorted in other circumstances to such conduct when he wanted money was relevant to his credibility as a witness.
I accept that the history of s 103 of the Evidence Act, including the consideration of the issues by the Australian Law Reform Commission, shows that the provision was intended to limit attacks on the bad character of witnesses where the common law permitted even what might be regarded as trivial incidents to be led in
cross-examination: Bugg v Day (1949) 79 CLR 442 at 457.
I do not consider that the proposed cross-examination is inconsistent with the intention of s 103 of the Evidence Act.
I am satisfied that a jury may well take a different view of TM’s evidence if they are aware of his prior conviction and the circumstances of it. See R v Burns (2003) 137 A Crim R 557 at 579; [103].
Finally, the Crown submitted that I should consider whether I should exclude the evidence under s 135 of the Evidence Act because its probative value is substantially outweighed by the danger of unfair prejudice.
Usually section 137 which applies to criminal proceedings is the section used, but it is limited to unfair prejudice to an accused which appears to be why resorting to s 135 is the only relevant section. Exclusion of evidence under s 137 is mandatory but execution under s 135 is discretionary where the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.
It was difficult to comprehend precisely the unfair prejudice to the Crown, save that the jury might reject TM’s evidence by reasoning that as the conviction showed TM to have a criminal history, he should therefore not be believed. Arguably to have TM’s evidence rejected because of false reasoning is unfair to the party which has relied on his evidence.
If that is the unfair prejudice, I am satisfied that the giving of appropriate directions to the jury would likely remove any unfair prejudice, but I view it as non-existent. Given that there is a substantial probative value, I do not consider that s 135 of the Evidence Act is engaged.
Finally, Mr Kukulies-Smith pointed out that the evidence of the conduct led by the Crown that may constitute blackmail has the character of complaint evidence. That gives it a quality that strengthens its probative value. The evidence of the conduct leading to the prior conviction, however, will place that in an important context which will enable the jury to better evaluate that evidence in the light of the denials BI makes, namely that the sexual abuse did not occur.
Having carefully considered the evidence, I am satisfied that it has the capacity substantially to affect the assessment of TM’s credibility.
The object of the cross-examination on the prior conviction is overruled.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 12 December 2016 |
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