R v Euc
[2019] ACTSC 185
•2 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v EUC |
Citation: | [2019] ACTSC 185 |
Hearing Date: | 2 May 2019 |
DecisionDate: | 2 May 2019 |
ReasonsDate: | 17 July 2019 |
Before: | Burns J |
Decision: | See [1] and [31] |
Catchwords: | CRIMINAL LAW – Application In Proceeding – Tendency evidence – reasons for decision to make orders sought by the Crown – relevance of proposed tendency evidence – probative value of proposed tendency evidence – whether alleged incidents were too remote in time to afford significant probative value –whether alleged incidents possess sufficient similarity – whether probative value of proposed tendency evidence significantly outweighs potential prejudicial effect |
Legislation Cited: | Evidence Act 1906 (WA) s 31A Evidence Act 2011 (ACT) s 97, 101 |
Cases Cited: | McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 Hughes v The Queen [2017] HCA 20; 92 ALJR 52 IMM v The Queen [2016] HCA 14; 257 CLR 300 |
Parties: | The Queen (Crown/Applicant) EUC (Accused/Respondent) |
Representation: | Counsel S Beaumont (Crown/Applicant) J Sabharwal (Accused/Respondent) |
| Solicitors ACT Director of Public Prosecutions (Crown/Applicant) Legal Aid ACT (Accused/Respondent) | |
File Number: | SCC 277 of 2018 |
BURNS J
By an application in proceeding dated 14 March 2019 the Crown sought orders that it be permitted to adduce tendency evidence at the trial of the accused, as notified to the accused in a notice of intention to adduce tendency evidence dated 13 March 2019 (the notice). The application came before me on 2 May 2019. As the matter was listed for Criminal Case Conference on 3 May 2019, I gave my decision allowing the application and making the orders sought by the Crown on 2 May 2019. I said at that time that I would publish my reasons at a later time. These are my reasons.
The charges
The accused was awaiting trial on an indictment alleging the following offences:
· Count One: that between 1 January 2009 and 1 March 2010 the accused engaged in sexual intercourse with a person under the age of 10 years, EC, and who was to his knowledge his lineal descendant.
· Count Two: that on 13 May 2017 the accused committed an act of indecency on a person under the age of 16 years, being EC.
· Count Three: that on 13 May 2017 the accused used a child 12 years of age or older, namely EC, for the production of child exploitation material.
To these charges he had entered pleas of not guilty. As he had made no formal admissions, it was to be assumed that all matters were in issue.
The notice
The notice set out five incidents of which the Crown proposed to lead evidence at the accused’s trial in order to prove that the accused had the following tendencies:
(a) a tendency to act in particular ways, namely:
(i)to act on his sexual interest in his daughter by removing her pants and exposing her genitals for the purpose of sexual gratification, including:
A: performing cunnilingus on his daughter
B: shaving his daughter’s pubic and genital region
C: looking at, and/or taking digital images of his daughter’s genitals
D: looking at, and/or taking digital images of his daughter’s genitals while she slept;
(b) a tendency to have particular states of mind, namely:
(i)to have a sexual interest in his daughter
(ii)to have an interest in taking digital images of his daughter’s genital area.
Incident 1 in the notice refers to Count 1 on the indictment. It is alleged that between 1 January 2009 and 1 March 2010, at the accused’s home office, the accused performed cunnilingus on the complainant.
Incident 2 in the notice refers to Count 2 on the indictment. It is alleged that on or about 13 May 2017, at the accused’s home, the accused shaved the complainant’s pubic and genital region.
Incident 3 in the notice refers to Count 3 on the indictment. It is alleged that on or about 13 May 2017, at the accused’s home, the accused used his mobile phone to photograph the complainant’s pubic and genital area after he had shaved it.
Incident 4 in the notice refers to an uncharged act. It is alleged that between 1 March 2010 and 1 January 2018, at the accused’s home, the complainant awoke to find that her pants had been removed while she was asleep, and the accused was sitting naked on the edge of the bed looking at his phone.
Incident 5 in the notice refers to an uncharged act. It is alleged that between 13 May 2017 and 1 October 2017, at the accused’s home, the complainant awoke to find that her pants had been removed while she was asleep, and the accused was sitting naked on the edge of the bed looking at his phone.
The complainant is the only witness to the alleged events referred to in each of the incidents.
The relevant legislation
The tendency rule is set out in s 97 of the Evidence Act 2011 (ACT) (‘the Evidence Act’):
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 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.
(2) Subsection (1) (a) does not apply if—
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict tendency evidence presented by another party.
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.
The provisions of s 101 of the Evidence Act are also relevant:
101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(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.
(3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
The relevant case law
In order to be admissible, evidence must be relevant to a fact in issue in the trial. Count 1 alleged an unambiguously sexual act by the accused and the issue was likely to be whether he did the act alleged by the Crown. Counts 2 and 3 were not unambiguously sexual. The accused made admissions to police in a recorded interview to shaving the complainant’s genital region, by way of instruction. He further admitted to then taking a photograph of her genital region to show the complainant the results. The fact in issue with regard to Counts 2 and 3 was therefore likely to be whether those acts were indecent, in the sense of having been engaged in for the accused’s sexual gratification.
The Crown’s submissions, stripped to their essentials, were:
(a) proof that the accused had a tendency to be sexually attracted to the complainant would have significant probative value in proving that the accused did the act in Count 1, and that his motive for doing the acts in Counts 2 and 3 was sexual gratification; and
(b) proof that the accused photographed the complainant’s genital region on occasions when there was no clear innocent motive for doing so would have significant probative value in meeting any possible defence that his actions were not motivated by sexual gratification.
The accused’s submissions, stated equally briefly, were:
(a) the events alleged in incident 1 were too remote in time from the events alleged in Counts 2 and 3 to afford those earlier events any significant probative value;
(b) the alleged events described in incident 1 do not possess sufficient similarity to the events described in the other incidents so as to give evidence of the other incidents significant probative value; and
(c) the probative value of the proposed tendency evidence did not significantly outweigh the potential prejudicial effect to the accused if the proposed evidence was to be admitted.
With regard to the submission that the events described in incident 1 were too remote in time from the other charged events as to possess significant probative value, the accused referred to McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 (McPhillamy). In that case, McPhillamy was charged with sexual offences against “A”, an 11 year old altar boy under the supervision of the accused who was an acolyte at a church. The offences were alleged to have been committed on two separate occasions in public toilets between November 1995 and March 1996. At the trial, witnesses “B” and “C” gave evidence that they had been sexually assaulted by McPhillamy when he was an assistant housemaster at a boarding school in 1985. At that time, B and C were 12 or 13 years old. The evidence of B and C was admitted to establish that McPhillamy had a tendency to be sexually attracted to young teenage males, and a tendency to act upon that attraction.
The High Court unanimously determined that the evidence of B and C should not have been admitted. The plurality (Kiefel CJ, Bell, Keane and Nettle JJ) said, at [26]:
…assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man’s sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of “B” and “C” was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it was an interest of a kind that is likely to be enduring.
Proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value… [T]here was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against “A”.
In the absence of evidence that the asserted tendency to act upon his asserted sexual attraction to young males had manifested itself between 1985 and 1996, the plurality considered that the inference that as at the dates of the alleged offences against “A” he possessed the tendency to act upon his alleged sexual attraction was weak. In addition, as the tendency evidence related to sexual misconduct with a person other than “A”, it would usually be necessary to identify some feature of the alleged sexual offending against “A”, and that alleged against “B” and “C”, which linked them together: see generally, Hughes v The Queen [2017] HCA 20; 92 ALJR 52 (Hughes).
McPhillamy, like Hughes, was a case where the prosecution sought to establish a tendency to engage in sexual misconduct expressed at a high level of generality. In McPhillamy, the tendency to have a particular state of mind was alleged to be a tendency to be sexually attracted to young teenage males who were under his supervision. In Hughes, the equivalent tendency was expressed to be a sexual interest in female children aged under 16 years. The prosecutor in each case was obliged to express the alleged tendency at a relatively high level of abstraction because it sought to prove the existence of the tendency by reference to the alleged sexual misconduct of the accused toward persons other than the complainant. In Hughes, of course, there were charges relating to multiple complainants, and the prosecution sought to adduce evidence regarding Hughes’ conduct towards each complainant as tendency evidence for use in determining the charges relating to the other complainants. In McPhillamy, as we have seen, the prosecution sought to adduce the evidence of “B” and “C” for tendency purposes in relation to the charges alleging sexual misconduct against “A”.
The present case is akin to that of The Queen v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 (Bauer), in that there is only one complainant, and the evidence which the Crown proposes to lead as tendency evidence comes only from the complainant. In Bauer, the accused had been the foster parent of the complainant. He was charged with and convicted of 18 sexual offences against the complainant said to have occurred between 1988 and 1998. Evidence of the charged acts, and of some uncharged acts, was admitted as tendency evidence at his trial to establish that he had a tendency to have a sexual interest in the complainant and a willingness to act upon that interest.
With regard to single-complainant sexual offence cases, the High Court made it clear that the complainant’s evidence of uncharged acts relating to him or her may be admissible as tendency evidence in proof of charged sexual offences without the evidence demonstrating some specified, unusual or particular feature as referred to in IMM v The Queen [2016] HCA 14; 257 CLR 300, or Hughes. The probative force of evidence of uncharged sexual activity of the accused involving the complainant is that it may demonstrate a sexual attraction, or “guilty passion” on the part of the accused toward the complainant. The High Court in Bauer said, at [50]-[51]:
50 Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
51 The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the “very high probative value” of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. As Hayne J (with whom Gummow and Kirby JJ agreed) concluded in HML:
“Generally speaking … there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried.”
And the fact of itself that evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant’s account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused’s guilt of the charged offences.
(footnotes omitted)
What emerges from a comparison of the decisions in Hughes and Bauer is that evidence demonstrating a tendency to be sexually attracted to a particular individual, without anything more, is likely to have greater probative value than evidence that the accused has a general tendency to act in a sexual manner or hold a state of mind concerning sexual matters. This is because it is not a tendency “at large”, but is a tendency directed towards a particular individual. The decision in McPhillamy recognises that where an alleged tendency is described at a high level of generality (at large) to give that tendency significant probative value there must be a demonstrated willingness to act upon the tendency temporally linking the tendency evidence to the charged acts.
The above extract from Bauer recognises that the period of time separating the tendency evidence from the charged events is relevant to assessing the extent to which the tendency evidence may have significant probative value in proving the charged events, even where the tendency evidence may establish a sexual attraction on the part of the accused towards the complainant. The period between the alleged tendency evidence and the charged events which may deprive the tendency evidence of significant probative value is not capable of exact statement; it must always remain a matter of judgment. Circumstances other than the mere fact of sexual attraction on the part of the accused towards the complainant may be relevant. In the present case, it is a highly unusual circumstance that the object of the alleged sexual attraction demonstrated by the tendency evidence is the accused’s daughter. It is also significant that the proposed tendency evidence was to be led to prove an unusual and very particular tendency, being to view and photograph the complainant’s genital area.
In Flessas v The State of Western Australia [2018] WASCA 210, the Court of Appeal of the Supreme Court of Western Australia (Buss P, Mazza and Beech JJA) rejected a submission that a period of 6 years between the appellant’s conviction for drug trafficking and him being charged with further offences of drug trafficking was such as to deprive the evidence of the earlier conviction of significant probative value as propensity evidence under s 31A of the Evidence Act 1906 (WA). The Court of Appeal referred to the decision in McPhillamy, but did not accept that the period of six years between the conviction and the charged events deprived the conviction of significant probative value.
In the present case, the event in incident 4 in the notice is said to have occurred sometime between March 2010 and January 2018. The Crown will clearly ask the jury to infer that the accused had just taken a photo of the complainant’s genital area and was viewing that photo. The events which form the basis of Count 1 are alleged to have occurred in the period between January 2009 and March 2010. The period between the events alleged in Count 1 and those alleged in incident 4, may therefore be everything from virtually contemporaneous to nine years. Incident 5 is alleged to have occurred in 2017, so that the period between the events alleged in Count 1 and those alleged in incident 5 is seven or eight years.
The period between the events alleged in Counts 2 and 3 and those alleged in incident 4 may be as long as seven years, but as short as virtually contemporaneous. The events alleged in Counts 2 and 3 and those alleged in incident 5 are all alleged to have occurred in 2017.
The events alleged in Count 1 and those alleged in Counts 2 and 3 occurred approximately seven or eight years apart.
If evidence of the events described in incidents 4 and 5 was not led by the Crown, and if Count 1 was tried separately to Counts 2 and 3, the jury would be presented with a potentially misleading picture. A jury trying Count 1 may well think it improbable that on a single occasion the accused demonstrated a sexual attraction to the complainant, his daughter. Similarly, a jury trying Counts 2 and 3 may accept the possibility that the accused engaged in his admitted activity for non-sexual reasons. If a jury accepted the evidence of the complainant regarding Count 1, and incidents 4 and 5, they may take a very different view of the accused’s motives for acting as he did with regard to Counts 2 and 3. Similarly, if the jury accepted the complainant’s evidence with regard to incidents 4 and 5, they may reason that the accused’s conduct revealed a sexual interest in the complainant. In my opinion, the period between the relevant events was not so extreme as to deprive the evidence of significant probative value.
The second objection raised by the accused was that there was insufficient similarity between the alleged events to give them significant probative value. In that regard, the plaintiff relied upon that part of [50] in the judgment in Bauer, set out at [21] above, which referred to “generally similar” sexual offences. In my opinion, this statement in Bauer was not intended to reinstitute a requirement that the acts alleged as tendency evidence must be similar in nature to those alleged in charges against an accused. This would be contrary to the decision of the plurality in Hughes at [39]. There may be cases where the nature of the alleged tendency event is of such a different nature or character to the charged events as to deprive the tendency evidence of significant probative value, even where there is only a single complainant. The present is not such a case. In the present case, the requirement for “general similarity” is satisfied by the fact that the tendency events, if accepted by the jury, may reveal a sexual attraction towards the complainant on the part of the accused.
For the purposes of s 101 of the Evidence Act, I was satisfied that the probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused. I was satisfied that appropriate directions to the jury would reduce any potential prejudicial effect.
For these reasons I made the orders sought by the Crown.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 17 July 2019 |
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