R v BP

[2019] NSWDC 112

District Court

New South Wales

Medium Neutral Citation:	R v BP [2019] NSWDC 112
Hearing dates:	1 April 2019
Date of orders:	04 April 2019
Decision date:	04 April 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Tendency evidence allowed
Catchwords:	CRIMINAL LAW – EVIDENCE – tendency evidence – probative value – uncharged act – act relied upon occurred after charged acts – similar act – same victim – issue of temporal disconnect
Legislation Cited:	Evidence Act 1995
Cases Cited:	BC v R [2015] NSWCCA 327 Hughes v The Queen [2017] HCA 20 IMM v The Queen [2016] HCA 14 McPhillamy v The Queen [2018] HCA 52 R v AC [2018] NSWCCA 130 R v SK [2011] NSWCCA 292 RH v R [2014] HCATrans 282 RH v R [2014] NSWCCA 71 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40
Texts Cited:	None
Category:	Procedural and other rulings
Parties:	Regina (Crown) BP (Accused)
Representation:	Counsel: Ms K Tennant (Crown) Mr J O’Sullivan (Accused)   Solicitors: ODPP (Crown) David Kelly Lawyers (Accused)
File Number(s):	2017/313106
Publication restriction:	Non-Publication order regarding the identity of the complainant and the Accused

Judgment

Introduction

1. Pursuant to a Notice for Tendency Evidence dated 28 March 2019, the Crown sought to make use of an uncharged act as establishing tendency in respect of the Accused.

2. Counsel for the Accused opposed the evidence being used in that fashion, submitting that by reason of delay between the charged and uncharged acts, the probative value of the evidence had diminished to the point that it either lacked any probative value or was outweighed by the prejudice to his client.

3. Nevertheless, Counsel for the Accused accepted that the evidence was admissible for another purpose. That is to place the complaint evidence in context. The fact that the evidence of the uncharged act would be before the jury for that other purpose diminishes the prejudicial effect.

4. For the argument on the use of the evidence for a tendency purpose, it was agreed that the period which had elapsed between the charged and the uncharged acts was 6 years.

The Tendency Notice

5. The Crown gave notice on 28 March 2019 that it intended to adduce evidence of an uncharged act in order to establish that the Accused had a tendency to act in particular way, or to have a particular state of mind. No issue was taken as to the time of service of the notice, nor as to its content.

6. The Indictment upon which the Accused was arraigned included two counts, as follows:

1. between 22 July 2004 and 31 December 2006, at Kariong in the State of New South Wales, the Accused did assault the complainant and at the time of the assault committed an act of indecency on the complainant, a child under the age of 10 years, namely, 7, 8 or 9 years; and

2. Between 22 July 2004 and 31 December 2006, at Kariong in the State of New South Wales, the Accused did have sexual intercourse with the complainant, who was at that time under the age of 10 years, namely, 7, 8 or 9 years.

7. The Crown case was and the evidence established that those two incidents occurred virtually simultaneously.

8. By the Tendency Notice, the Accused was informed:

The Crown seeks to lead tendency evidence of the uncharged incident in Queensland in relation to counts 1 and 2 on the indictment and that the evidence be cross admissible between counts 1 and 2 on the indictment.

9. As to the question of cross admissibility, Counsel for the Accused conceded that the two counts were relevant in a tendency sense against each other, but did not accept that the Queensland incident met the test under s97 of the Evidence Act for admissibility for that purpose.

10. The Crown notice went on to state:

“The Tendency sought to be proved is:

(a) the tendency of the accused to have a particular state of mind, namely his sexual interest in the complainant;

(b) the tendency to act on that sexual interest, namely, a tendency to engage in sexual touching of the complainant’s vagina in circumstances where her mother is not present and there is a high risk of detection.”

11. Further, in respect of those tendencies, the Crown notified the Accused of the following:

“That is the tendency of the accused to have a sexual interest in the complainant, the Crown relies upon the evidence that the accused:

(a) waits until the complainant’s mother is not present; and

(b) touches the complainant on the vagina.

12. The Crown prepared a Crown Tendency Bundle (VD1 Exhibit A), which set out the evidence to be relied upon by the Crown to establish tendency. That included the following:

1. transcript of video recording with the complainant, dated 18 February 2013 (MFI 3 in the proceedings). In particular, the questions and answers to 99 and 105-144;

2. the statement of the complainant dated 29 July 2016, in particular paragraphs 26 and 27;

3. diary entry of the complainant, comprising digital images 27 and 28, behind tab 6 of the Crown Tendency Bundle; and

4. diary entry of the complainant, comprising digital images 5, 33, 34 and 35, behind tab 7 of the Crown Tendency Bundle.

13. The notice ended by stating the relevance of the tendency evidence to the facts in issue as following:

“The tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue:

(i) whether the accused rubbed the complainant on the vagina while she was watching television between 2004-2006 after her mum went to bed.

(ii) whether the accused digitally penetrated the complainant in 2004-2006 in her home after her mum had gone to bed.”

The Queensland Incident (the uncharged act)

14. This ruling is based upon the evidence which was available to the Court at the time the application was made. Of course, subsequently, the complainant gave evidence as to what occurred in Queensland. Whilst that evidence was substantially consistent with prior representations concerning same, the evidence will not be the basis for determining this pre-trial issue.

15. In the Crown Case Statement (VD1 Exhibit A, Tab 3), the Queensland incident is described in paragraph 8:

“On an occasion during the 2012-2013 Christmas school holidays, the complainant, her mother and the accused went on holiday to Queensland. During the holiday they stayed at a house for two nights, all sleeping on a mattress on the floor. One night the accused and the complainant’s mother got up to use the bathroom. When the accused returned from the bathroom he lay down on the mattress next to the complainant and started touching her vagina on the outside of her clothing. The complainant’s mother returned from the bathroom a short time later and the accused then stopped touching the complainant.”

16. The Crown Case Statement goes on to describe that the complainant’s mother noticed scratch marks on the complainant’s arms in the early part of the 2013 school year. A counselling session was arranged for 15 February 2013.

17. On a date around that time, the complainant made a disclosure to her mother, which is described in the Crown Case Statement in the following terms:

“On the way to the dentist, the complainant disclosed to her mother that during the family trip to Queensland the accused had “fingered” her on one occasion during the night. The complainant also disclosed to her mother that when she was about 9 years old and watching a movie the accused put his arm around her and “molested” her. The complainant was reluctant to provide any further detail.”

18. This led to officers from The Entrance Child Abuse Squad attending the complainant’s school and interviewing her. Whilst she disclosed that the Accused had done “stuff”, she was a reluctant interviewee. She wrote on a piece of paper “when I was 8 or 9 he inappropriately touched me”.

19. It was not until 29 July 2016 that a formal complaint was made by the complainant to Police and a full statement was made. As a result, the Police re-opened the investigation arising from the complaints, ultimately resolving in the arrest of the Accused.

20. The complainant’s statement to the Police dated 29 July 2016 was behind tab 5 of VD1 Exhibit A. It provided a detailed account of the charged acts and also information about the uncharged act in Queensland, sought to be relied upon for a tendency purpose. Commencing at paragraph 26 of that statement, the complainant stated:

“In regards to the second occasion, I was on holidays in Queensland with my Mum and (the accused). We stayed at a couple of places which were family of (the accused) and I recall it was after Christmas during the school holidays in 2012 and I was 15 years old. We stayed in Queensland for over a week and the house where this second incident happened we stayed for 2 of those nights. We went to Dreamworld during that holiday.

Mum, (the accused) and I were sleeping on a mattress on the floor of a room in this house. I remember (the accused) woke up during the night and asked Mum where the bathroom was because he had to go. They both got up and (the accused) came back a short time later but Mum hadn’t come back yet. He laid down on the mattress next to me and he started touching me on the vagina on the outside of my clothing. Mum came back a short time later and he stopped touching me.”

21. The complainant then provided a diagram illustrating the room where that incident occurred.

22. The Crown also relied upon a number of diary entries appearing in tabs 6 and 7 of the Crown Tendency Bundle. Those diary entries became part of the diary extracts in the trial (Exhibit D). I do not intend to set out the diary entries in detail, save to note that they contain references to both the charged acts and the uncharged acts known as the “Queensland incident”.

The Crown’s Submissions

23. The Crown sought to rely upon the uncharged act for three purposes. They were:

1. as tendency evidence;

2. as being cross admissible in respect of the two counts on the Indictment; and

3. as context evidence in relation to the timing of the complaint made by the complainant to her mother and friends.

24. As might be expected, the Crown submitted that the tendency evidence had significant probative value in terms of s97(1)(b) of the Evidence Act (“the Act”). Section 97 provides as follows:

97 THE 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 adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100, or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

25. As mentioned previously, no issue was taken with the service of the notice to adduce tendency evidence and the provisions in s97(2) had no bearing upon the issue.

26. The Crown drew the Court’s attention to the general statement made by the Court of Criminal Appeal in R v AC [2018] NSWCCA 130, where Meagher JA, Bellew and Fagan JJ said at [31]:

“the interests of the community and the complainants are not advanced if evidence available to the Crown which has a significant probative value is not able to be adduced in circumstances where it would not be unfair to the accused or any witness that the Crown be allowed to rely on the evidence.”

27. That is a statement of general application but does not assist the Crown in demonstrating that the evidence in question had significant probative value which substantially outweighs any prejudice to the Accused.

28. The Crown sought to define “significant probative value” by first referring to the definition of “probative value” in the Dictionary to the Act:

“”probative value” of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

29. The Court’s attention was drawn to the decision of the High Court in IMM v The Queen [2016] HCA 14 where at [45] the majority joint judgment stated:

“The use of the term "probative value" and the word "extent" in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.”

30. Reference was also made to the High Court’s decision in the matter of Hughes v The Queen [2017] HCA 20 where at [16] the Court found that:

“Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.”

31. The Crown placed emphasis on the use of the word “could” both in the definition under the Act of “probative value” and in the High Court’s reference to it. In attempting to show significant probative value, the Crown relied upon the striking similarity between the charged acts and the uncharged act and submitted that the fact that they occurred six years apart did not diminish the probative value of that evidence.

32. The Court was referred to RH v R [2014] NSWCCA 71, McPhillamy v The Queen [2018] HCA 52, IMM and Hughes.

33. In the assessment of the value of the evidence, it was submitted by the Crown that the Court must take the evidence at its highest (IMM at [44]). That is, the assessment as to admissibility is to be based on the assumption that the jury will accept the evidence (IMM at [49]). In assessing the value of the evidence, the trial judge is not to determine the credibility or the reliability of the evidence or the witness providing it. The only question is whether the evidence is capable of rationally affecting a finding or findings of fact (IMM at [39]).

34. The Crown then turned its submissions to the question of weighing the probative value against the prejudicial effect. Whilst it is plain that any tendency evidence of any type will have a prejudicial effect upon the Accused, s101 requires the evaluation to take place. Section 101 relevantly provides as follows:

101 FURTHER RESTRICTIONS ON TENDENCY EVIDENCE AND COINCIDENCE EVIDENCE ADDUCED BY PROSECUTION

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced 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 adduces to explain or contradict tendency evidence adduced by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.

35. The Court was referred to the decision of the Court of Criminal Appeal in R v SK [2011] NSWCCA 292 in which Latham J, with whom Giles JA and Rothman J agreed, stated at [34]:

“It is not however, prejudicial simply because it tends to prove the commission of the offences. That constitutes, subject to proper directions, appropriate use of the evidence, not its misuse.”

36. After referring to the decision of Beech-Jones in BC v R [2015] NSWCCA 327 at [81], the Crown submitted that the probative value of the evidence substantially outweighed any prejudicial effect.

37. Finally, the Crown submitted that any risk of misuse of the evidence by the jury could be ameliorated by appropriate directions in the course of summing up.

38. I note that specific directions were provided to the jury in the course of summing up. The summing up document (MFI 15), including the direction about the use of evidence for a tendency purpose was agreed by both parties.

Accused’s Submissions

39. It was submitted by Counsel for the Accused that the evidence of the Queensland incident did not satisfy the definition of significant probative value in s97(1)(b) of the Act. This argument was principally advanced on the basis that the temporal disconnect between the charged and uncharged acts (agreed to be six years) deprived the evidence of establishing any pattern or tendency. It was submitted that the gap in time was such that its value was weakened by the prospect that the Accused had reformed or rehabilitated in the interim.

40. Ultimately, it was submitted on behalf of the Accused that the evidence did not have significant probative value and that, given the passing of time, the prejudicial effect of the evidence would outweigh the probative value of that evidence.

Consideration

41. The Court reserved its ruling in relation to the admissibility of tendency evidence as evidence about the Queensland incident was admissible in any event to explain the delay in complaint and the context within which the complaint was made. That was agreed by Counsel for the Accused.

42. Prior to Counsel for the Accused closing his examination-in-chief of his client, the Court informed Counsel of its intention to permit the evidence of the Queensland incident to be used as intended by s97. That afforded Counsel for the Accused the opportunity to adduce evidence so as to contradict the tendency contended for by the Crown. That invitation was not taken up and it may not have been necessary for further evidence to be adduced in any event as the Accused had flatly denied ever touching the complainant inappropriately.

43. The reasons for reserving the ruling in relation to this evidentiary question were twofold. First was to look at authorities concerning the question of delay between charged and uncharged events. Second was to determine whether the Court could rely upon subsequent uncharged events to establish a tendency at the time of the original, earlier, charged offending. Neither party was initially able to provide the Court with any assistance with respect to the second question.

44. Upon examining authorities, it became clear that higher courts had turned their mind to both questions in other cases.

45. For example, in RH v R [2014] NSWCCA 71 (9 May 2014), the Court of Criminal Appeal dismissed an appeal brought by RH from his conviction for three counts of sexual intercourse with a child under 10 years, one count of sexual intercourse with a child aged between 10 and 16 years and two counts of aggravated indecent assault of a child under 16 years.

46. One count of aggravated indecent assault related to conduct against one foster daughter (Kay) in 2003, when she was 12 or 13 years of age. The remaining counts related to conduct against another foster child (Jane), which occurred between September 1989 and 1993, when she was between 9 and 12 years of age. That offending was separate in time by up to 14 years.

47. The trial at first instance proceeded on a joint indictment in respect of the complainants Jane and Kay.

48. At trial, evidence from Kay in relation to two prior uncharged incidents was admitted as tendency evidence in relation to the charged counts relating to Kay. Both the charged and uncharged acts against Kay were admitted as tendency evidence against the counts relating to Jane. Evidence of the conduct regarding Jane was admitted as tendency evidence for the charged count against Kay.

41. This is a similar circumstance to that which exists in the present trial. That is, that the trial judge in RH permitted evidence of events between 1989-1993 to be used in respect of alleged events in 2003 and, similarly, for uncharged acts against Kay in or about 2003 to be used against the Accused in the case relating to Jane, the offending for which occurred between ten and fourteen years prior. There was a further complicating factor in RH.

42. There was also further evidence in relation to a third foster daughter “Lisa” regarding five counts of aggravated indecent assault, occurring between December 2005 and November 2006 when she was eleven years old, to which RH had previously pleaded guilty. Evidence of the offences against Lisa (in 2005 and 2006) was admitted as tendency evidence against the counts involving Jane (1989-1993) and Kay (2003). The maximum time that elapsed was up to 14 years.

43. Counsel for the Appellant in that case sought to resist the evidence being used in that fashion on the basis that its probative value had been diminished because of the sequence of events, the differences between the alleged acts and the possibility of concoction or contamination of evidence. It was submitted that the prejudicial nature of the evidence was high.

44. I pause to note that the present case is more powerful in that the offending between the charged and uncharged acts were separated by a period of just six years, not up to 17 years as in RH and that the acts involved the same complainant and a very similar mode of offending.

45. The Court of Criminal Appeal did not agree with Counsel for the Appellant. In relation to the uncertainty of dates of earlier incidents, the Court held that it did not give rise to sufficient doubt as to whether the incidents had occurred so as to preclude reliance on them as tendency evidence by a properly instructed jury.

46. Similarly, the Court held that despite the gaps in time between the incidents complained of by the three girls and admissions of a later date, to prove a tendency in relation to an earlier time, the tendency evidence had probative value.

47. The matter of RH was the subject of a special leave application to the High Court on 12 December 2014: RH v R [2014] HCATrans 282.

48. The issue which was of concern in the present trial was squarely raised by the Chief Justice at page 7 of the transcript, in which he stated:

“The question is whether it is logically open to find a tendency at a particular time by reference to acts at a later time.”

57. Special leave was refused, but not before the Chief Justice made the following remarks:

“We see no reason to doubt the correctness of the conclusion of the Court of Criminal Appeal that the evidence of the later offences had significant probative value, despite temporal and other differences, and that any risk of contamination or concoction was not sufficient to warrant its exclusion. The case in our opinion does not provide a suitable vehicle for consideration of any broader issue of principle. The application for special leave is refused.”

58. The High Court next considered the topic in the matter IMM. In that case, the Appellant was convicted of sexually abusing his step-grandchild on three occasions. The Court of Criminal Appeal of the Northern Territory upheld the trial judge’s decision to admit evidence from the complainant’s friend and relatives to direct that the jury that, if they were satisfied of that complaint evidence, they could use it as “some evidence that an offence did occur” and, to admit tendency evidence from the complainant about the Appellant’s conduct during a massage that indicated his sexual interest in her.

59. The High Court found that the tendency evidence ought not to have been admitted, as it was not sufficiently probative. In considering evidence of uncharged acts incidents reported by the complainant, the Court stated (at [62]):

“It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.”

60. In the present case, the “special features” include the fact that the acts involved the same complainant and that the charged and uncharged acts were of a sufficiently similar nature as to give rise to a compelling finding of significant probative value. On that basis, the High Court’s decision in IMM can be distinguished from the present case.

61. I have also had regard to the decision of the High Court in Hughes. That decision is also distinguishable from the present case on the basis that there were multiple complainants and a multitude of types of offending. In the present case, it is the consistency between the charged and uncharged acts which enhances the probative value of the evidence.

62. More recently in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, the High Court allowed a Crown appeal against a decision of the Victorian Court of Appeal that had quashed the Respondent’s convictions on 18 counts of sexual offences. When he was first tried in 2014 the Respondent was charged with 37 counts against five complainants, related to events between 1967 and 1998 (a period of 31 years) and convicted of 33 of those offences.

63. The High Court appeal concerned the Respondent’s 18 convictions in a 2016 trial in relation to a third complainant, his foster daughter, for alleged sexual offending between 1988 and 1998, when she was aged between 4 and 15 years of age, and the Respondent between 42 and 53.

64. The first thing to note is that the time period in question is ten years.

65. The Victorian Court of Appeal had quashed the Respondent’s convictions on a number of bases including that the jury should not have been told of evidence of uncharged sexual offences by the Respondent against the complainant, because such evidence did not satisfy the requirement of significant probative value. In considering tendency reasoning, the High Court stated at [48] that:

“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.”

66. In distinguishing Bauer from IMM, the Court at [55] stated:

“But, as the trial judge in this case observed, strictly speaking the reasoning of the plurality in IMM was limited to the case there under consideration: one which involved an uncharged act relatively remote in time and of a significantly different order of gravity from the charged offending.”

67. The comments of the High Court in [70] of Bauer is apposite in the present case:

In Murdoch, which predated IMM, the Victorian Court of Appeal stated that, in determining the admissibility of tendency evidence given by two complainants against an accused, if a trial judge determines that the similarity in the complainants' accounts is capable of reasonable explanation on the basis of contamination, concoction or collusion, the evidence cannot possess sufficient probative value for the purposes of s101 of the Evidence Act. In light of IMM, that approach must be taken as overruled. At common law, there is a need for separate judicial consideration of the risk of contamination, concoction or collusion, and a requirement that evidence be excluded if there is a reasonable possibility of it being affected by contamination, concoction or collusion. That requirement exists because of the common law rule of exclusion that, because tendency evidence is inadmissible unless there is no reasonable view of it consistent with innocence, tendency evidence is not admissible if there is a realistic possibility of it being affected by contamination, concoction or collusion. Under the Evidence Act, the position is different. The replacement of the Hoch test with the less demanding s97 criterion of significant probative value means that that common law rule of exclusion has no application. Under the Evidence Act, provided evidence is rationally capable of acceptance, the possibility of contamination, concoction or collusion falls to be assessed by the jury as part of the ordinary process of assessment of all factors that may affect the credibility and reliability of the evidence.”

68. Consistent with the observations of the High Court, I find that the evidence of the Queensland incident is rationally capable of acceptance and that any possibility of contamination or the like is a matter for the jury as part of the ordinary assessment of evidence at trial. I should note, other than the denial by the Accused, there is no evidence in the present case of concoction or the like and no submission was made to that effect.

69. I have also had regard to the judgment of the High Court in McPhillamy. That case involved the Appellant as engaging in uncharged acts as a boarding master in 1985, being used as tendency evidence in respect of charged acts in 1995-1996, in circumstances which were quite different. McPhillamy is readily distinguishable from the facts of the present case. In the present case, there was one complainant and the offending between the charged and uncharged acts were sufficiently similar to establish significant probative value.

70. Accordingly I find that the evidence of the Queensland incident has significant probative value within the meaning of s97(1)(b) of the Act. I further find that the probative value of that evidence substantially outweighs any prejudicial effect it might have on the Accused, particularly in circumstances where the evidence is to be led for another purpose, in any event.

71. Although no submission was made on behalf of the Accused pursuant to s135 or s137 of the Act, I find that the proper application of those sections would not exclude the evidence in question.

Note – These ex-tempore remarks were revised without access to the transcript of the Voir Dire.

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Decision last updated: 09 April 2019