R v Ed
[2018] ACTSC 62
•13 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v ED |
Citation: | [2018] ACTSC 62 |
Hearing Date: | 13 March 2018 |
DecisionDate: | 13 March 2018 |
Before: | Murrell CJ |
Decision: | Evidence of Incident 2 will be admitted as tendency evidence. Evidence of Incident 1 will not be admitted. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Application to adduce tendency evidence – tendency of the accused to have a sexual interest in the complainant – tendency of the accused to act on his interest – whether proposed evidence has significant probative value – whether probative value outweighs prejudicial effect |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 97(1), 101(2) |
Cases Cited: | R v Kisun [2016] ACTSC 212 IMM v The Queen [2016] HCA 14; 257 CLR 300 Vojneskiv The Queen [2016] ACTCA 57 |
Parties: | The Queen (Crown) ED (Accused) |
Representation: | Counsel Mr P Dixon (Crown) Ms K Musgrove (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 314 of 2017 |
MURRELL CJ:
In prosecutions for sexual assault, the Crown seeks to rely on tendency evidence.
The charges
The accused is charged with seven counts of sexual misconduct towards his 13 year old cousin (the complainant). There are two counts of committing an act of indecency, four counts of engaging in sexual intercourse (including digital and penile penetration of the complainant’s anus and/or vagina) and one count of attempting to engage in sexual intercourse. It is alleged that the offences occurred late one night between 4 and 9 July 2016, while the accused was visiting his aunt, the complainant’s mother.
About two weeks later, the complainant informed her mother that she had “had sex” with the accused and “didn’t want to do it”. She was concerned that she had become pregnant.
The evidence to be adduced as tendency evidence
The Crown has given notice of intention to adduce evidence of the following incidents:
Incident 1
In the school holiday period between 2012 and 2013, the complainant visited the accused at his home in Sydney. The complainant was in the accused’s bed. As she was falling asleep, he digitally penetrated her.
Incident 2
In the school holiday period between 2015 and 2016, the complainant visited the accused at his home in Sydney. The complainant was asleep in the accused’s bed. The accused approached the complainant, began to kiss her and then digitally penetrated her. In March 2016, the complainant told her friend S, that the accused had “touched her before” and “touched her inappropriately.”
Incidents 1 and 2 were not charged in these proceedings because the alleged conduct occurred in NSW.
The Crown seeks to rely upon the incidents as evidence that the accused had the tendencies:
(a)To have a particular state of mind – a sexual interest in the complainant.
(b)To act in a particular way – to utilise his relationship with the complainant to engage in sexual activities with her when they were alone in a bed together.
Issues
In R v Kisun [2016] ACTSC 212 (Kisun), I said at [41]:
In summary, on a tendency application a court must consider the following questions:
a) Has the tendering party identified a s 97 tendency (a tendency to think or act in a “particular” way)?
b) Are the tendency incidents (individually or in combination) capable of establishing the asserted tendency?
c) What is the relevant “fact in issue” in the proceedings?
d) If the jury accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
e) Does the tendency evidence have significant probative value; could it be influential in the context of fact-finding/important or of consequence in proving or disproving the existence of the fact in issue?
f) What unfair prejudice attaches to the tendency evidence?
g) Does the probative value of the tendency evidence substantially outweigh any prejudicial effect, taking into account the impact of jury directions?
As to (d), to be admissible, evidence must be relevant. If accepted, it must be capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: Evidence Act 2011 (ACT) s 55 (Evidence Act). Evidence may be relevant because it is relevant to credibility.
For tendency evidence to be admissible, it must be more than merely relevant. Section 97(1) of the Evidence Act requires that it have “significant probative value”. The evidence must be influential in the context of fact-finding, important or of consequence in proving or disproving the existence of a fact in issue.
Section 101(2) of the Evidence Act imposes the further restriction that tendency evidence cannot be used against the accused “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.” In Kisun, I observed at [38]–[39]:
Evidence that an accused has engaged in uncharged criminal conduct is always prejudicial; it raises bad character and may suggest a propensity to criminal behaviour.
However, the s 101 reference to prejudicial effect is a reference to unfair prejudice. There may be an unfair prejudicial effect if the jury may misuse evidence by relying upon the evidence to reason in an improper way (e.g., by reasoning that, because the accused is a person of bad character, it is more likely that he committed the offence). Alternatively, the jury may become diverted by the inflammatory content of evidence. In either case it is relevant to ask whether the risk can be adequately addressed by direction: Festa v The Queen (2001) 208 CLR 593 per McHugh J at [51]; R v Costa at [64].
In this case, the accused conceded that the Crown gave reasonable notice of its intention to adduce tendency evidence.
The accused canvassed the following issues:
(a)Is the evidence capable of establishing the tendencies asserted by the Crown?
(b)Does the proposed evidence have significant probative value?
(c)Does the probative value outweigh the prejudicial effect?
Is the evidence capable of establishing the tendencies that are asserted?
I have no doubt that the evidence of each incident is capable of establishing both a tendency to have a sexual interest in the complainant and a tendency to act on that sexual interest by touching her inappropriately.
Insofar as it is alleged that the accused tended to act on his sexual interest in the complainant by “utilising” their relationship as cousins, this wording may imply that manipulation of the relationship was integral to the tendency. I do not consider that the evidence supports that qualification. The evidence is at least equally consistent with the opportunistic acting out of sexual interest.
Further, while each tendency episode relates to an occasion when the complainant was in bed, I consider that the fact that she was in bed is not critical to the tendency. It was usual for the accused to share a bed and/or bedroom with the complainant when they visited each other’s residences. In relation to many such occasions, there is no suggestion of sexual impropriety.
With these qualifications, the evidence is more than capable of establishing the asserted tendencies.
Does the proposed evidence have significant probative value?
The critical facts in issue in these proceedings are whether any or all of the charged conduct occurred. The “facts in issue” can only be resolved by deciding the complainant’s credibility.
If it was established that, at the time of the alleged offences, the accused tended to have a sexual interest in the complainant and tended to act on that sexual interest, that could be a powerful circumstance supporting the prosecution case, and making it more likely that the complainant should be believed in relation to the charged conduct: Vojneskiv The Queen [2016] ACTCA 57 at [48] and [79].
But where the question is whether the complainant should be believed in relation to the charged conduct, tendency evidence that comes solely from the complainant will generally lack significant probative value. Self-evidently, it is most unlikely that tendency evidence will make a complainant’s evidence about charged events more believable if the tendency evidence itself is wholly dependent on the credibility of the complainant.
In IMM v The Queen [2016] HCA 14; 257 CLR 300 at [62]–[63], the Court pointed out that the probative value of the evidence in that case was its capacity to support the credibility of the complainant’s account. The Court noted that unless there was evidence from a source independent of the complainant, evidence from the complainant to show an accused’s sexual interest and/or conduct will generally have limited, if any, capacity to rationally affect the probability that the complainant’s account of the charged offences is true. The s 97(1)(b) test of significant probative value is unlikely to be met.
In this case, the evidence about Incident 1 comes solely from the complainant. I am not satisfied that the evidence has significant probative value.
In relation to Incident 2, the complaint made to S was made in very general terms. However, it was a complaint of inappropriate sexual touching made no more than three months after the alleged incident. If accepted, the incident evidences both a sexual interest in the complainant predating the charged conduct by no more than eight months, and a willingness to act on the sexual interest. Given the proximity of the complaint to the alleged incident, the complaint both supports the complainant’s credibility in relation to Incident 2 and also provides some evidence of the facts asserted (although the asserted facts were very vague in nature).
In addition to providing tendency evidence, Incident 2 is context evidence; it shows that the charged conduct did not occur ‘out of the blue’.
I am satisfied that the evidence about Incident 2 is of significant probative value.
Does the probative value outweigh the prejudicial effect?
Unfair prejudice means the danger that a fact-finder may use the evidence in an illogical manner or be diverted from their task by the emotive nature of the evidence in question.
The accused submitted that the evidence of Incident 2 may unfairly inflame the jury.
It is appropriate that the evidence about Incident 2 be brief and no more detailed than necessary to establish the asserted tendencies and show that the complainant has a reasonably detailed recall of the incident.
I foresee no real risk that the jury would misuse the evidence by using it in an illogical or emotive way. Incident 2 is no more unsavoury than the charged conduct. In any event, the limited way in which the evidence may be used can readily be explained to the jury and – if the trial judge considers this to be necessary – the jury can be cautioned against an emotional response.
Orders
The evidence of Incident 2 will be admitted to establish that the accused tended to have a sexual interest in the complainant and tended to act on his sexual interest by engaging in sexual activity with her.
As it lacks significant probative value, the evidence of Incident 1 will not be admitted.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 15 May 2018 |
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