R v CT
[2017] ACTSC 43
•24 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v CT |
Citation: | [2017] ACTSC 43 |
Hearing Date(s): | 20 February 2017 |
DecisionDate: | 24 February 2017 |
Before: | Mossop J |
Decision: | See [28]-[29] |
Catchwords: | EVIDENCE – Tendency evidence – where tendency incidents involve charged acts involving same complainant as well as charged acts involving his brother – where credibility or reliability of complainant is in issue |
Legislation Cited: | Evidence Act 2011 (ACT) |
Cases Cited: | IMM v The Queen [2016] HCA 14 RHB v The Queen [2011] VSCA 295 |
Parties: | The Queen (Crown) CT (Defendant) |
Representation: | Counsel P Burgoyne-Scutts (Crown) J Sabharwal (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Defendant) | |
File Number(s): | SCC 155 of 2016 |
MOSSOP J:
Charges
The accused is the father of two boys. I will refer to these boys as Son 1 and Son 2. He has been charged with five counts of committing an act of indecency. Two counts relate to Son 1. Three counts relate to Son 2. Both boys were under 10 years old at the time of the alleged offences. The counts, the alleged victim and the dates when they are said to have occurred are set out below.
Count number
Alleged victim
Date of the offence
1
Son 2
8 April 2016-17 April 2016
2
Son 1
30 November 2015-1 January 2016
3
Son 2
1 January 2015-31 December 2015
4
Son 2
28 June 2011-27 June 2012
5
Son 1
12 March 2015-14 March 2016
By a pre-trial application Crown has applied for a ruling that it be permitted to rely upon the evidence in support of each of the charges as tendency evidence in relation to each of the other charges. The tendencies sought to be proved are that the accused had a particular state of mind, namely, to have a sexual interest in his sons and that he had a tendency to act upon that interest by putting his hand down his sons’ pants and touched them in the crotch area, genitals and/or bottom.
Crown case
The accused was in a relationship with a woman from 2006. The children of the relationship, Sons 1 and 2, were born in 2007 and 2008 respectively. The relationship between the accused and the mother of the two sons ended prior to the birth of Son 2. The accused remained in the house that had been the family home.
The two sons stayed with the accused on most Saturday nights as well as some other times. The rest of the time they lived with their mother and her new partner.
Count 1 relates to the weekend of 16 April 2016 where the two sons were spending two nights at the accused’s house. While the two boys were watching a movie with the accused sitting on a couch in the lounge room, Son 1 moved off the lounge and onto a chair. The accused is then alleged to have put his hand down Son 2’s pants and touched his penis.
Count 2 relates the period 30 November 2015 to 1 January 2016. The two sons were at the accused’s house for a family gathering. After family members had left and the accused had finished washing up, the accused had joined Son 1 on the couch in the lounge room. He is alleged to have put his hand down Son 1’s pants and touched him in the crotch area for about 15 to 20 seconds.
Count 3 occurred sometime in 2015 (that is, between 1 January 2015 and 31 December 2015) it is alleged that the two sons were sitting on a couch in the lounge room. After they started arguing the accused sat between them. A short time later Son 1 got off the couch to play in a different part of the room. The accused put his hand down Son 2’s pants. Son 2 asked him to stop and the accused eventually took his hand out of his pants.
Count 4 relates to a period between March 2010 and March 2012 when the sons were at the accused’s house. Son 2 was standing near the television and Son 1 was lying on a Winnie the Pooh couch. The accused is alleged to have walked up behind Son 2 and put his hand down his pants.
Count 5 is alleged to have occurred in the period 12 March 2015 to 14 March 2016. Both boys were in the lounge room at the accused’s residence. Son 1 was sitting on the couch watching SpongeBob SquarePants. Son 2 was in the kitchen playing marbles. The accused is alleged to have come into the room and sat down next to Son 1 and touched his genitals.
Tendency application
Section 97 of the Evidence Act 2011 is relevantly as follows:
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.
...
NoteThe tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
Section 101 of the Evidence Act prevents reliance by the prosecution on tendency evidence unless “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.”
While the indictment was amended following the taking of pre-trial evidence from Son 1 and Son 2, and the matters the subject of the tendency application altered so that only charged acts were sought to be relied upon there was ultimately no issue that reasonable notice had been given for the purposes of s 97(1)(a). The real contest was over whether or not the evidence would have substantial probative value.
Submissions
Counsel for the Crown drew attention to the decision in RHB v The Queen [2011] VSCA 295 at [18] where Nettle JA (with whom Harper JA agreed) said:
18 As Hansen JA observed in KRI v R, the test for the admissibility of tendency evidence is one of fact and degree to be assessed in light of the facts and circumstances of the particular case. And in the facts and circumstances of this case, I am not persuaded there is room for doubt about it. As the judge held, it is a remarkable thing for a man to commit sexual acts against his female lineal descendants. It is still more remarkable when, in each case, the nature of the acts is similar if not identical, even if they are commonplace sexual acts. It is even more remarkable that in each case the acts were committed in the home while the victim was in the applicant’s care, while other adults were close by and the risk of detection was significant. It follows that, if accepted, the evidence of the applicant’s prior offending against his daughters would demonstrate that he had a tendency to be sexually attracted to his young female descendants and to act upon that attraction in similar ways at different times, when the victims were in his home under his care and thus vulnerable to his advances. As such, as the judge held, it would be capable of rationally affecting the assessment of the probability of the applicant having had a sexual interest in his granddaughter and giving effect to it by committing the offence alleged. (footnote omitted)
The Crown said that the evidence proposed to be led was of substantial probative value because of the unusual nature of the evidence of a father having a sexual interest in his sons and the similarity between the acts alleged. Counsel for the Crown submitted that counts 1, 2, 3 and 5 all occurred in 2015 or 2016, should be characterised as a course of conduct and that the evidence was significant in excluding the contention that the touching was innocent or accidental. She submitted that because all acts relied upon for tendency purposes were the subject of charges there was no relevant prejudice to the accused from their admission as tendency evidence.
Counsel for the defendant relied upon the decision in IMM v The Queen (2016) ALJR 529; [2016] HCA 14 (IMM). In that case, the High Court considered the admissibility as tendency evidence of uncorroborated evidence by the complainant. The evidence identified as tendency evidence in IMM was relatively minor conduct, consisting of the claim that some time after the sexual assaults charged, the accused, who was having his back massaged by the complainant and another person, ran his hand up the complainant’s leg on the outside of her shorts.
The majority (French CJ, Keifel, Bell and Keane JJ) accepted at [61] “that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant”. However, the majority concluded that the evidence did not have “significant” probative value as required by s 97(1)(b), saying:
62. In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. 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.
63. Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.
Gageler J said at [107]:
The difficulty of concluding that the complainant’s testimony about the massage incident was capable of having significant probative value was not just that the testimony was uncorroborated. Her testimony about the massage incident was uncorroborated within a context in which the credibility of the whole of her testimony was in issue. There was nothing to make her uncorroborated testimony about that incident more credible than her uncorroborated testimony about the occasions of the offence charged. There was no rational basis for the jury to accept one part of the complainant’s testimony but to reject the other. The increased probability of the appellant having committed the offences which would follow from the jury accepting that part of the complainant's testimony which constituted tendency evidence could in those circumstances add nothing of consequence to the jury's assessment of that probability based on its consideration of that part of the complainant's testimony which constituted direct testimony about what the appellant in fact did on the occasions of the offences. The probative value of the tendency evidence could not be regarded as significant.
The submissions of the defendant did not descend to a detailed analysis of the evidence given by the two sons. However counsel submitted that in the light of the decision in IMM the evidence should not be permitted to be relied upon, at least to the extent to which the evidence was uncorroborated.
Consideration and conclusion
The Crown has identified an alleged tendency on the part of the accused to think or act in a particular way.
The tendency incidents identified in counts 1 to 5 are capable of establishing the asserted tendency. That is because they amount to incidents which would demonstrate that the accused had a sexual interest in his sons and that he has on other occasions engaged in similar conduct to that alleged in each particular count.
The relevant fact in issue in the proceedings is likely to be whether or not each alleged incident occurred.
If the jury accepted that the tendency incidents occurred and hence demonstrated the asserted tendency that tendency would be probative as to whether the incident the subject of the charge occurred.
The critical issue is whether the tendency evidence has significant probative value. There can be no doubt that where the incident relied upon for tendency purposes is proved by evidence other than the evidence of the complainant that supports the charged incident then the tendency evidence would have probative value and that probative value would be significant. Explained in a more concrete way, the occurrence of an incident involving Son 1 which demonstrated the asserted tendency would be evidence of significant probative value in relation to an incident involving Son 2 of which Son 2 had given evidence.
However the position is different where it is sought to use evidence of the complainant in relation to a tendency incident to support the evidence of the same complainant in relation to the charged incident. In those circumstances, where the issue is the credibility or reliability of the complainant’s evidence and the charge is substantially dependent upon the uncorroborated evidence of the complainant, the decision in IMM indicates that, in the absence of some special feature, the threshold of significant probative value is unlikely to be met. Applied to the present case that situation will exist where it is sought to rely upon the evidence of Son 1 in relation to a tendency incident in support of his evidence in relation to one of the charged incidents. The same would apply in relation to Son 2 where his evidence in relation to a tendency incident is relied upon to support his evidence on a charged incident.
While counts 1, 2, 4 and 5 are each substantially dependent upon the acceptance of the evidence of the complainant. Count 3 is different. That is an allegation of an act of indecency upon Son 2 where the evidence to support that allegation is given by Son 1 and not Son 2. Thus the evidence in support of the count 3 comes from a person other than the complainant and, if the jury accepted that evidence it would be substantially probative of the tendency asserted by the Crown existing in relation to the other charges of which Son 2 was the victim. It is therefore of substantial probative value in relation to the charges involving Son 2. I do not consider it to be substantially probative in relation to the charges involving Son 1 because even though involving a different victim, insofar as the issue in relation to the incidents involving Son 1 is the reliability or credibility of his evidence that the incidents occurred, that is not substantially added to by his evidence that an incident occurred involving Son 2.
So far as prejudice to the defendant is concerned, as each of the allegations sought to be relied upon by the Crown is a charged act, the prejudice that might arise if they were uncharged does not arise in the present case. Similarly there is nothing about the particular circumstances of the charges which would render it unfair to permit them to be used as tendency evidence.
I am satisfied that where the evidence has been shown to be of substantial probative value that probative value substantially outweighs any prejudicial effect upon the accused.
In summary my conclusion is that, except in relation to count 3, the evidence in support of each charge cannot be used as tendency evidence in relation to a charge involving the same complainant but can be used as tendency evidence in support of a charge involving a different complainant. Count 3 can be used as tendency evidence in relation to those charges involving Son 2. This unfortunately leads to a degree of complexity in the admissibility of the evidence. The result and my ruling is:
1. Count 1 (Son 2) can be used as tendency evidence in relation to count 2, 3 and 5 but not count 4.
2. Count 2 (Son 1) can be used as tendency evidence in relation to count 1 and 4 but not counts 3 or 5.
3. Count 3 (Son 2) can be used as tendency evidence in relation to counts 1 and 4 but not counts 2 and 5.
4. Count 4 (Son 2) can be used as tendency evidence in relation to counts 2, 3, 5 but not count 1.
5. Count 5 (Son 1) can be used as tendency evidence in relation to counts 1 and 4 but not counts 2 and 3.
Having regard to the upcoming trial, I also order this judgment not be published on the internet without further order of the Court.
| I certify that the preceding [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 24.02.17 |
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