R v DL
[2018] ACTSC 28
•23 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DL |
Citation: | [2018] ACTSC 28 |
Hearing Date: | 20 February 2018 |
DecisionDate: | 23 February 2018 |
Before: | Elkaim J |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – Application to adduce tendency evidence – charged and uncharged acts |
Legislation Cited: | Evidence Act 1977 (Qld) ss 15, 18 and 101 Evidence Act 2011 (ACT) ss 101 and 192 |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 344 ALR 187 IMM v The Queen [2016] HCA 14; 357 CLR 300 R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 |
Texts Cited: | Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006) 559 |
Parties: | The Queen (Applicant) DL (Respondent) |
Representation: | Counsel Ms J Campbell (Applicant) Mr S Holt QC (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Hannay Lawyers (Respondent) | |
File Number: | SCC 210 of 2017 |
ELKAIM J:
On 19 February 2018, the Crown filed an Amended Notice of Intention to Adduce Tendency Evidence. The original notice was filed on 24 January 2018. No point was taken arising from the late filing of the amended notice or in relation to the requirements for the giving of notice.
The respondent to the application is due to stand trial in April 2018 on eight counts in an indictment dated 22 January 2018.
The offences relate to the respondent’s granddaughters. The indictment contains four counts of an act of indecency and four counts of incest. The complainants were under the age of twelve when the offences were allegedly committed.
The applicant seeks to adduce evidence of nine incidents to prove that the respondent had stipulated tendencies. The respondent does not oppose the application in respect of the first six incidents. His resistance to the use of Incidents 7, 8 and 9 has two sources:
(a)Firstly, it is said that the use of Incidents 7, 8 and 9 would prejudice the respondent’s capacity to defend charges that have been laid against him in Queensland.
(b)Secondly, if the first point is unsuccessful, no tendency application can be successful in respect of Incident 9 because the evidence in support of this incident is inadmissible.
Counsel for the respondent described the respondent’s position in this way:
In respect of incidents 7 and 8, the defence position is that the preconditions for admissibility of evidence are otherwise met but that there would be a gross unfairness in the defendant being required to, in effect, defend allegations in respect of which charges are currently pending in another State. He will be deprived, if he wishes to maintain his right to silence in respect of the Queensland charges, from being able to properly respond to the allegations. This is prejudice of a most fundamental kind.
In relation to incident 9, the evidence is plainly inadmissible as tendency evidence as sought to be used by the Crown and, in any event, suffers the same problem as noted above, because [DL] is facing charges in relation to precisely the same material.
The first six incidents relate to the eight counts contained in the indictment. The offences are alleged to have occurred in the Australian Capital Territory. The final three incidents relate to offences that are alleged to have occurred in Queensland. They are the subject of charges in Queensland but have not yet reached the committal stage. It is expected that the respondent will not face trial in relation to these charges before the middle of 2019.
Incidents 7, 8 and 9
The application describes Incidents 7, 8 and 9 as follows:
Incident 7 (uncharged)
(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)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between September 2009 to December 2012, at [an address in Queensland].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[UL]
Incident 8 (uncharged)
(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 and December 2012, at [an address in Queensland]
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[SL]
Incident 9 (uncharged)
(a)Substance of the evidence:
On execution of a search warrant at the accused’s house at [an address in Queensland], police seized an Apple Imac computer, two hard disk drives and an ipad. 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 [an address in Queensland].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
Senior Constable Lara Antoinette Williams
Peter Reid
Detective Sergeant Mark Battye
Federal Agent Paul Delaney
Senior Constable Lauren Overall
Federal Agent Peter Ah Loy
Constable Matthew Humphries
Detective Senior Constable Craig Andrew
Federal Agent Kristian RizzoFederal Agent Justin Harbour
The respondent’s opposition to the use of Incidents 7, 8 and 9 arises from s 101 of Evidence Act 2011 (ACT) and, in particular, subsection (2) which is:
(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.
The respondent submitted that if Incidents 7, 8 and 9 were put before the jury, his capacity to meet the allegations in the Queensland proceedings would be significantly prejudiced. He might be compelled to reveal his defence, would lose his right to silence, and his capacity to make forensic decisions in the proceedings in the Australian Capital Territory could be dictated by the effect they would have on the Queensland proceedings.
The evidence forming Incidents 7, 8 and 9 is obviously probative and prejudicial to the respondent. That is normal in cases of this type. The question that arises here, however, is whether the additional prejudice engendered by the Queensland proceedings outweighs the probative value of the evidence.
As I understand the applicant’s position, it did not suggest that the respondent’s capacity to defend the Queensland proceedings would not be significantly prejudiced by the admission of the tendency evidence arising from Incidents 7, 8 and 9. The applicant did, however, submit that this prejudice could not be taken into account in assessing the application. This was because any prejudice was restricted to the effect on the jury hearing the case in the Australian Capital Territory. It did not extend to any other proceedings.
Both parties informed me that they had not been able to identify any authorities in which this issue had been dealt with. The applicant did say, however, that, at least by inference, there was support for its position.
I was firstly taken to the decision of the High Court in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 (‘Papakosmas’) at [91]:
Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD, Hunt CJ at CL pointed out:
“The prejudice to which each of the sections [s135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way” (footnote omitted).
The applicant then referred me to Hughes v The Queen [2017] HCA 20; 344 ALR 187 at [17]:
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
On the basis of the above quoted passages, the applicant submitted that the prejudicial effect of the evidence was restricted to the jury hearing the case. The passages above certainly emphasise the effect on a jury in a criminal trial but do not state (no doubt because the point was not in issue) that this is the only effect that can or must be considered.
The respondent submitted that the wording of s 101 did not support the applicant’s argument and highlighted the words “any prejudicial effect” [emphasis added]. The respondent noted that the starting point for the interpretation of the section was to give its words their plain meaning.
The respondent referred me to the discussion of Papakosmas in the report of the Australian Law Reform Commission in relation to exclusions pursuant to ss 135 and 137 of the Uniform Evidence Acts (Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006) 559 [16.27]). I was also taken to R v Suteski [2002] NSWCCA 509; 56 NSWLR 182 at [126] and [127].
The respondent then submitted that s 192(2)(b) of the Evidence Act 2011 (ACT) favoured his interpretation of s 101 because it told the court to consider, in deciding the application, whether it would be “unfair to the party”. This was consistent with the prejudicial effect in s 101 extending beyond the effect on the jury in the proceedings in the Australian Capital Territory.
In my view, “any prejudicial effect” cannot be restricted in the manner suggested by the applicant. Had the intention of the Legislature been to impose such a restriction, the wording of the section could easily have been amended to achieve that purpose. Once it is accepted that there will be substantial prejudice to an accused person, and assuming that the prejudice outweighs the probative value of the evidence, I do not see why the prejudicial effect should be limited to the matter in which the probative evidence is being relied upon.
It is perhaps not surprising that there are no authorities specifically on point. This may reflect a general recognition of the breadth of any prejudicial effect on a defendant. Whatever the case, I think that Incidents 7, 8 and 9 must be excluded from the evidence which can be adduced as tendency evidence.
I should mention a ‘back-up’ argument that was advanced by the applicant in the event that its primary argument failed. It submitted that the respondent could always rely upon s 128 of the Evidence Act 2011 (ACT) to limit the consequence in Queensland of any evidence or decision made in the ACT proceedings.
While I was initially attracted to this argument, I was reminded by counsel for the respondent that this section only concerns incriminating evidence. Accordingly, if the respondent gave exculpatory evidence in the trial in the Australian Capital Territory it could still be used against him in the trial in Queensland if, for example, he gave inconsistent evidence in the latter proceedings. Further s 128 would have no effect on answers given by witnesses (besides the respondent) and could not offer any protection arising from the making of forensic decisions.
I note that inconsistent statements made in ACT proceedings would, subject to discretionary rulings, be admissible in proceedings in Queensland pursuant to ss 18 and 101 of the Evidence Act 1977 (Qld). This observation includes consideration of s 15 of this Act, which would allow certain evidence of the ACT proceedings to be given with leave of the court.
Incident 9
My decision in respect of Incidents 7, 8 and 9 disposes of the need for a separate decision in respect of Incident 9. Nevertheless, I think I should state, at least briefly, my views in relation to this incident.
The respondent advanced two main arguments as to why Incident 9 should be excluded. Firstly, he said that possession of pornography could not be regarded as indicative of a tendency to act in the manner depicted in the material itself.
Secondly, as far as the animated videos on an ‘incest website’ were concerned, they were discovered on the respondent’s hard disk drive in February 2017. The last of the ACT offences allegedly occurred in December 2012. The respondent submitted that any tendency to act on a sexual interest in pre-pubescent females that existed in 2017 could not be relied upon as evidence of a tendency in 2012 or earlier.
In respect of the first argument, the respondent relied upon the following passage from McDonald v The Queen [2014] VSCA 80; 43 VR 152 at [25]:
Cases decided under these provisions suggest that possession of child pornography will usually not be regarded as having significant probative value in relation to alleged sexual offending against a particular child, because the fact that an accused has a general interest in viewing pornographic images of children does not mean that the person will act on that interest, by abusing a particular child…
The applicant submitted that a sexual attraction to pre-pubescent females, as evidenced by the pornographic material found in the respondent’s possession, was so specific that the evidence is admissible. As stated in IMM v The Queen [2016] HCA 14; 257 CLR 300 at [176]:
…What must be considered is the contribution which the evidence of the uncharged acts might make, if accepted, to whether the sexual acts to be proved are rendered more likely to have occurred.
The applicant then took me to a decision of the ACT Court of Appeal in Kelly v The Queen [2017] ACTCA 42. Paragraphs [38] and [41] are particularly relevant:
It has been held that relevant computer images of child pornography can be admitted as tendency evidence to show a tendency of an accused person to have a sexual interest in children. See R v Johnston [2012] ACTSC 89; 6 ACTLR 297.
…
The evidence of the images of adolescent girls in sexual poses, however, was highly probative of the asserted tendency and, without the other inherent and unfairly prejudicial images which were excluded, was properly admitted.
I think that the applicant’s position is correct. There might need to be a refining of the particular images included in the tendency application but, to the extent that they demonstrate a specific interest in sexual activity with pre-pubescent females, I think that the evidence would have been admissible.
Turning now to the question of timing, the applicant submitted that a person with a specific sexual tendency in 2017 would have had the same tendency in 2012. The Crown provided no evidence of this assertion other than ‘common sense’ and ‘logic’.
The respondent submitted that something more than common sense and logic was required to meet the test of admissibility. I agree that, as a general statement, common sense and logic are not enough where there has been a substantial gap in time between the viewing of the material and the alleged offences.
However, the period in question is different from the very lengthy periods normally seen in historical sex cases. The last offence in time allegedly occurred in December 2012. The animated videos were “created” in January 2017 (Report of Mr Reid, dated 4 December 2017). The intervening period is a little over four years. Some of the other material dates back to 2005 and the respondent told the police, during the execution of the search warrant, that some of the material was “years” old (Exhibit A, page 22).
I do not think that the material making up Incident 9 was so out of date as to not be admissible. But for my decision in respect of Incidents 7, 8 and 9, I would have permitted the applicant to adduce Incident 9 as tendency evidence.
Order
I make 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.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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