R v DL
[2018] ACTCA 9
•28 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v DL |
Citation: | [2018] ACTCA 9 |
Hearing Date: | 28 February 2018 |
DecisionDate: | 28 February 2018 |
ReasonsDate: | 6 April 2018 |
Before: | Burns J |
Decision: | See [19] |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Application for leave to appeal from interlocutory orders – tendency evidence |
Legislation Cited: | Evidence Act 2011 (ACT) ss 97, 101 Supreme Court Act1933 (ACT) ss 37, 37J(1) |
Cases Cited: | Miles v R [2013] ACTCA 52 Quach v Butt [2017] ACTCA 4 |
Parties: | The Queen (Applicant) DL (Respondent) |
Representation: | Counsel Ms J Campbell (Applicant) Mr S Holt QC (by telephone link) (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Hannay Lawyers (Respondent) | |
File Number: | ACTCA 3 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 23 February 2018 Case Title: R v DL Citation: [2018] ACTSC 28 |
BURNS J:
The respondent has been charged with 4 counts of incest and 4 counts of committing an act of indecency on a person under 10 years of age. The charges relate to allegations that he sexually abused his granddaughters SL and UL between 2005 and 2010. His trial was due to commence on 3 April 2018.
On 19 February 2018 the Crown filed an Amended Notice of Intention to Adduce Tendency Evidence (the Notice) seeking to adduce evidence of 9 incidents to prove that the respondent had stipulated tendencies. The respondent did not oppose the application with respect to the first 6 incidents, but did oppose it with regard to incidents 7, 8 and 9.
On 23 February 2018 Elkaim J made the following order:
That the Crown be permitted to adduce tendency evidence outlined as Incidents 1 to 6 in the Amended Notice of Intention to Adduce Tendency Evidence dated 19 February 2018 as tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT), in particular to prove that the accused had a tendency to act in particular ways and have particular states of mind in the following ways:
(a) To have a sexual interest in pre-pubescent females.
(b) To have a sexual interest in his pre-pubescent female granddaughters.
(c) To have a disinhibited disregard of the risk of discovery of his sexual conduct towards his granddaughters by other family members.
(d) To use his familial relationships to obtain access to his pre-pubescent granddaughters so he could engage in sexual activities with them.
(e) To engage in sexual conduct with his granddaughters whilst other family members are present or nearby.
By an Application dated 26 February 2018 the Crown sought leave to appeal from the interlocutory orders made by Elkaim J, in effect refusing the Crown’s application to lead evidence of incidents 7, 8 and 9 as tendency evidence. The grounds of the proposed appeal were annexed to the affidavit of Amanda Mifsud in support of the application for leave to appeal:
(a) Elkaim J erred in finding that the word “prejudice” in s 101(2) of the Evidence Act 2011 (ACT) included prejudice to the respondent in other proceedings; and
(b) Elkaim J erred in not admitting evidence of incidents 7, 8 and 9 to be led as tendency evidence.
The application for leave to appeal came before me, sitting as a single judge exercising the jurisdiction of the Court of Appeal under s 37J(1) of the Supreme Court Act1933 (ACT), on 28 February 2018. Ms Campbell appeared for the Crown and Mr Holt QC appeared by audiolink for the respondent.
The complainants were due to give pre-trial evidence on 5 March 2018, and it was part of the Crown’s application that if leave to appeal were granted then the dates for the pre-trial evidence and the trial should be vacated. In view of the urgency of the matter, after hearing counsel I gave my decision refusing leave to appeal, and indicating that I would publish my reasons at a later time. These are those reasons.
The proceedings before Elkaim J
The Notice set out particulars of 9 incidents, evidence of which the Crown proposed to lead as tendency evidence. The first 6 incidents referred to alleged events which formed the basis of the 8 counts on the indictment. Incidents 7, 8 and 9 were referred to in the Notice as “uncharged incidents”, although in the particular circumstances this description was somewhat misleading. A better description would be that the alleged events in incidents 7, 8 and 9 do not form the basis of any charge that the respondent is facing in the ACT. The respondent is, in fact, awaiting trial in Queensland on charges arising out of those alleged events.
Incidents 7, 8 and 9 were described in the Notice as follows:
Incident 7
(a)Substance of the evidence
On another occasion in the morning between 2010 and 2012 [UL] awoke early. [SL] was in the study and [UL] went to the media room where she sat on the accused’s lap whilst the accused was watching television. The accused picked her up and placed her facing towards him. The accused pulled down his and [UL]’s pants and had penile-vaginal sexual intercourse with her.
(b)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between September 2009 to December 201 [sic], at [redacted], Queensland
[…]
Incident 8
(a)Substance of the evidence:
On another occasion in the morning between 2011 and 2012 the accused got into bed with [SL]. [UL] and [LL] had been sleeping in the room with [SL] but had left the bedroom and were in other areas of the house at the time. The accused hugged [SL] and applied a vibrator to her genitalia. He also used his index finger to trace around her nipples. Whilst touching her breasts, the accused kissed [SL] and inserted his tongue into her mouth.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 2011 to December 2012, [redacted], Queensland
[…]
Incident 9
(a)Substance of the evidence:
On execution of a search warrant at the accused’s house at [redacted], Queensland, police seized an Apple Imac [sic] computer, two hard disk drives and an ipad [sic]. Forensic digital examination of these devices found child exploitation material, including photographs of pre-pubescent children and virtual videos depicting incest.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On 15 February 2017 at [redacted], Queensland.
It was accepted by the respondent in the proceedings before Elkaim J that evidence of the incidents in the Notice, with the exception of incident 9, would have significant probative value, such that the requirements of s 97 of the Evidence Act 2011 (ACT) were met. The respondent took a pragmatic approach to the evidence of incidents 1 to 6, on the basis that the jury would inevitably have that evidence before them, and as such the respondent accepted that the probative value of the evidence substantially outweighed any prejudicial effect the evidence may have on him. The test under s 101 of the Evidence Act 2011 (ACT) was therefore satisfied with regard to the evidence of incidents 1 to 6.
With regard to incidents 7, 8 and 9, however, the respondent submitted that the test in s 101 was not satisfied. In relation to incidents 7 and 8 the respondent submitted that there would be prejudice to him in having to, in effect, meet allegations in these proceedings in respect of which charges are currently pending in Queensland. The respondent submitted that if he wished to maintain his right to silence in respect of the Queensland charges, he would be unable to properly respond to the allegations in incidents 7 and 8 in his trial in the ACT. With regard to incident 9, the same submission was made, but in addition it was submitted that evidence of this incident could not be admitted as tendency evidence on the basis proposed by the Crown.
In rejecting the Crown’s application with regard to incidents 7 and 8, Elkaim J considered whether the prejudice referred to in s 101 must be prejudice accruing in the ACT proceedings, or whether it may extend to prejudice which the respondent may suffer in defending the Queensland proceedings. In his Honour’s opinion, relevant prejudice for the purposes of s 101 need not be prejudice accruing in the proceedings in which the evidence is proposed to be led, but may extend to prejudice in other proceedings, such as the proceedings against the respondent in Queensland.
For the same reason Elkaim J refused the Crown’s application with regard to incident 9. His Honour indicated that had he not excluded the evidence of incident 9 on that basis, he would have otherwise found it to be admissible.
The relevant law
The power of the Court of Appeal to entertain an appeal such as that proposed by the Crown is found in s 37E of the Supreme Court Act 1933 (ACT). However, by virtue of s 37E(4), where the order sought to be appealed is an interlocutory order, an appeal may only be brought with the leave of the Court. In Quach v Butt [2017] ACTCA 4 (Quach v Butt), Refshauge J said in relation to applications for leave to appeal from interlocutory orders:
11. The purpose of the requirement for leave is to limit “a string of appeals from interlocutory judgments of a single judge in the course of a trial which delay and interfere with the proper conduct of a trial and hamper the proper administration of justice”: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431. It may also be accepted that with the increase in litigation and the pressure on Court resources, which bring long legal delays (Commissioner of Australian Federal Police v Razzi (1991) 101 ALR 425 at 430), three judges of the Court of Appeal should not be troubled with an interlocutory appeal unless the Court, constituted by a single judge, can be satisfied that the decision against which the appeal is sought to be taken is wrong, or likely to be wrong, and that substantial injustice will be done by leaving that erroneous decision unreversed. Indeed, any interlocutory decision which can affect the final result of proceedings can be addressed later in an appeal from the final order: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at 483-4; [5]-[8], 497; [51].
12. In Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) [2008] ACTCA 9; 2 ACTLR 44 at 52-4; [29]-[40], I considered the various authorities as to the approach to be taken by a court considering whether to grant leave to appeal. I summarised them in Arrow International Australia Ltd v Konstrukt Pty Ltd at 58-9; [58], as follows:
(a)leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;
(b)a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;
(c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;
(d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;
(e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;
(f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and
(g) it may be a factor favouring the grant of leave that:
(i) the decision involves a matter of public importance; or
(ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
Quach v Butt arose out of a civil case. In Miles v R [2013] ACTCA 52, Penfold J considered an application for leave to appeal from interlocutory orders in criminal proceedings. Her Honour expressed the test to be applied at [11]:
11. The relevant tests for an application for leave to appeal an interlocutory order in a criminal matter can be summarised as follows:
(a) Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal.
(b) Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong.
(c) Whether a grant of leave would inappropriately fragment the criminal trial process.
(d) Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.
Reasons for refusal of leave
The question whether the prejudice referred to in s 101 of the Evidence Act 2011 (ACT) is prejudice that must arise in the proceedings in which the tendency evidence is to be led, or may include prejudice accruing to an accused in other proceedings, is worthy of further consideration at the intermediate appellate level. Counsel advised me that the issue does not appear to be the subject of any reported decision. If it could be said that the issue arose with any clarity in the present proceedings, I would have accepted that it was attended by sufficient doubt to warrant consideration by the Court of Appeal.
I was not satisfied, however, that the issue did arise with clarity in these proceedings, in the sense that the determination of Elkaim J that the relevant prejudice is not confined to prejudice in the current proceedings was an essential pre-condition to the making of his orders. The written submissions provided to Elkaim J by the respondent relied not only on the prejudicial effect that would accrue to him in the Queensland proceedings if the evidence was led in the present proceedings, but also to potential prejudice in the conduct of the present proceedings. The respondent submitted:
56. Considerations such as what evidence to challenge and what evidence to give or lead at trial, whether to cross examine witnesses called in the Crown case and the range of matters upon which to cross examine, will be significantly impacted by the need to avoid disclosing to the prosecution, complainants and any other witnesses, in advance of any criminal trial in Queensland, the defendant’s defence to the allegations.
Counsel for the respondent referred to this as “the chilling effect” that the leading of evidence of incidents 7, 8 and 9 would have on the present proceedings. The reasons of Elkaim J must be read against this background, and it is fair to say that his Honour must have accepted this submission, as it is simply the opposite side of the coin to the submission regarding prejudice in the Queensland proceedings. As such I was not satisfied that the very real and substantial question identified by the Crown arose with any real clarity in these proceedings. It follows that it was unnecessary to consider the respondent’s additional submission in regard to incident 9.
In addition, the decision which the Crown sought to challenge should not be confused or conflated with his Honour’s reasons for the decision. The decision impugned by the Crown was the decision to refuse the Crown’s application to lead evidence of incidents 7, 8 and 9 as tendency evidence. The proposed Notice of Appeal made it clear that to the extent that the Crown proposed to challenge that decision, it did so on the basis that the reasons given by his Honour were wrong in principle. It was my opinion that even if his Honour had fallen into error as alleged by the Crown (about which I make no comment), his decision could be upheld on other grounds. The jury will have before it the evidence of the 2 complainants with regard to incidents 1 to 6, relating to Counts 1 to 8 on the indictment. By virtue of the decision of Elkaim J the evidence with respect to each charge will be cross-admissible with respect to each of the other charges by way of proof of one or more of the tendencies alleged by the Crown. The addition of uncorroborated evidence by each of the complainants of one further incident against them could not add substantially to the weight of the Crown case, but could add very substantially to the potential prejudice to the respondent, no matter in what sense the term prejudice is used. With regards to incidents 7 and 8 I was therefore of the opinion that the Crown’s prospects for successfully challenging the decision was not sufficiently strong to warrant fragmentation of the criminal process, and vacation of the respondent’s trial date. For these reasons I was also satisfied that no substantial injustice would result if leave were refused with regard to incidents 7 and 8.
For these reasons I refused the Application.
I direct that these reasons not be published, other than to the Crown and the respondent, until the respondent’s trial is completed.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 6 April 2018 |
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