R v Ford

[2009] NSWDC 39

CITATION:	R v FORD [2009] NSWDC 39
HEARING DATE(S):	10 March 2009
JUDGMENT DATE:	10 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused and the evidence therefore will be admitted.
CATCHWORDS:	CRIMINAL LAW - Judgment - Application to adduce evidence - Tendency evidence - Prejudicial effect - Significance of omission of "unfair" is s101 Evidence Act
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Colby v The Queen [1999] NSWCCA 261 DPP v Boardman [1975] AC 421
TEXTS CITED:	Stephen Odgers, Uniform Evidence Law ALRC Report 102
PARTIES:	The Crown Adrian Ford
FILE NUMBER(S):	DC 08/11/1441
COUNSEL:	R Cooley - The Crown N Mikhaiel
SOLICITORS:	NSW DPP Dignan and Hanrahan

JUDGMENT

1 HIS HONOUR: Adrian Ford pleaded not guilty this morning to a charge that he, on 14 January 2007 at Narellan Vale, had sexual intercourse with TL without her consent, knowing that she was not consenting.

2 Before a jury was empanelled the Crown indicated that it wished me to rule on the admissibility of what it said was tendency evidence. It tendered to me statements made by TL, as well as two other women, ZM and AG. I was told that the latter two women had actually given evidence against the accused in separate proceedings but I was asked to proceed on the basis that their evidence did not significantly depart from their statements.

3 The allegation to be prosecuted by the Crown in the present trial is that he had sexual intercourse with the TL, that act of intercourse beginning while she was asleep, having attended a party at his home earlier and drunk a considerable amount of alcohol.

4 The statements of the other two women refer to incidents occurring some months after the date on the indictment, 17 January 2007. Each of those women alleges that after attending a party at the accused’s home and drinking alcohol to excess and having gone to sleep they woke up to find the accused indecently assaulting them. The Crown says that the evidence of ZM and AG is admissible in the present trial as it demonstrates a tendency on the part of the accused to sexually molest women sleeping at his home, after those women have consumed alcohol at parties held at the home.

5 I note that the accused was found guilty of the allegations involving AG and ZM, but, of course, the Crown proposes to proceed, if allowed in this trial, by calling ZM and AG to give evidence, with no reference being made to the earlier convictions.

6 Ms Mikhaiel objects to the evidence being admitted. She says that the evidence does not have the significant probative value required by s 97 of the Evidence Act and further that the probative value of the evidence does not substantially outweigh the prejudicial effect it may have on her client.

7 I confess to thinking that the law in relation to the applications of s 97 and s 101 of the Evidence Act was fairly settled, but Ms Mikhaiel pointed out to me something which I had not previously noticed and that is the absence of the word “unfair” in s 101(2). Whilst the exercise of any discretion by me under s 135 and s 137 of the Evidence Act requires that I look at the danger of unfair prejudice according to s 101(2) all I am looking at is any prejudicial effect.

8 The omission of the word “unfair" is difficult to understand. All probative evidence adduced by the Crown has a prejudicial effect upon the accused. Unless the concept of unfairness is introduced into the test in s 101(2) then no evidence would ever be admitted as tendency evidence because as soon as it had the significant probative value required by s 97 it would automatically have an equal prejudicial effect. No tendency evidence could ever satisfy the test under s 101(2).

9 I suspect that the reason I had not noticed before, until Ms Mikhaiel pointed it out to me, that the word “unfair” does not appear in s 101, was because the authorities have proceeded on the basis that the concept of unfairness is to be introduced into s 101.

10 In his most recent edition of Uniform Evidence Law, that being the Eighth Edition, Mr Odgers, at p 433, does address this issue. He, too, noticed the absence of the word ‘unfair’ and says this:

“Turning to the concept of ‘prejudicial effect’ the evidence ‘may have on the defendant’, it is curious that there is no reference to ‘unfair prejudice’, as in s 137. Despite this, it would be absurd if the concept of ‘prejudicial effect’ applied simply on the basis that the evidence tended to prove the guilt of the defendant, thereby ‘prejudicing’ the defendant’s prospects of acquittal. The concept should be understood in substantially the same way as ‘unfair prejudice’ in s 137, albeit with an emphasis on the evidence may, rather than necessarily will impact adversely upon the defendant.”

11 Mr Odgers does not cite any authority for the suggestion he makes, although he could have referred to a decision of the Court of Criminal Appeal in Colby v The Queen [1999] NSWCCA 261 where at [97] Mason P says this:

“Section 101(2) further restricts tendency and coincidence evidence by precluding its use by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. Prejudice is not established by the mere fact of the weight of the evidence in relation to the ultimate issue. The focus is upon the danger that the tribunal of fact will use the evidence upon a basis logically unconnected with the issues in the case.”

12 Others who have noticed that the word “unfair” does not appear in s 101 include the Law Reform Commission in its recent review of the Evidence Act. (ALRC report 102). At p 380 of that report the Commission, at footnote 61, refers to this issue. Footnote 61 reads:

“The expression ‘prejudicial effect’ is not qualified by the word ‘unfair’. One commentator, Peter Bayne, considers the significance of this omission but concludes, correctly it is suggested, that properly construed the prejudice in question is unfair prejudice.”

13 The Commission then refers to Mr Bayne’s article and cites a number of cases including Colby, the decision of Court of Criminal Appeal to which I have just referred.

14 I am satisfied therefore that properly understood s 101(2) is to be interpreted as requiring me to balance the probative value of the evidence against any unfair prejudicial effect it may have on the accused. In doing that I am interpreting s 101 in a way which avoids an absurdity, and perhaps more importantly, following the authority of Colby which binds me.

15 Having sorted out the legal issue raised by Ms Mikhaiel let me turn to the particular matter before me. What the Crown has attempted to do is to establish a pattern of the accused’s behaviour or even as is sometimes described a modus operandi. In doing so it is important to go through the allegations made by the three separate complainants to identify points of similarity and of course points of dissimilarity.

16 I am satisfied that what is established by the evidence is a tendency on the part of the accused to do something unusual, that is to indecently assault women who are asleep at his place after having attended a party there. Of course, I do not use the words ‘indecently assault’ in any technical legal sense here. I encompass within the term ‘indecent assault’ sexual assaults such as that alleged by the complainant in the present trial. So unusual is this behaviour that I am satisfied that the evidence to be adduced by the Crown has significant probative value.

17 I bear in mind also that it is not simply a case of one woman coming along to give evidence of what I regard as similar conduct to that alleged in the present trial but there are two. Of course those two events occurred on the same evening or morning and the allegation to be made by the Crown in the present trial is said to have taken place at a different time, but there is not such a significant temporal difference, being only about four months, to suggest that the time difference is of much significance at all. After all, we are talking about the tendency of a person to act in a particular way in particular circumstances and it would be easy to conclude that the period of months is unlikely to make much of a difference.

18 Ms Mikhaiel refers also to the fact that the allegation made in the present trial is one of sexual intercourse and that the accused is alleged not to have stopped after the complainant awoke and realised what was happening, whereas in relation to the latter two allegations, they being the ones which have already been dealt with at trial, what is alleged a sexual assault involving no sexual intercourse, the accused apparently being prepared to stop once he was told to. They are, of course, differences which I have taken into account. But given that Ms TL, the complainant in the present matter, was asleep until she woke up to find the accused having sexual intercourse with her she, simply does not know whether what preceded that was activity such as described by the other two women.

19 Ms Mikhaiel also referred in her written submissions to the circumstance that there was a delay of several months between when TL said she was sexually assaulted, and when she complained to police, whereas the other two women complained to police the day after they were assaulted. Given that the focus of this enquiry is on the tendency of the accused to act in a particular way that difference should be ignored as irrelevant.

20 I am satisfied that the evidence does have a significant probative value demonstrating a modus operandi on the part of the accused to do things virtually identical to what he is alleged to have done against TL on 14 January 2007.

21 As I attempted to make clear in coming to that conclusion, I have had regard to what I consider to be unusual behaviour. The more unusual behaviour is, the more it says about the tendency of a person to act in that way. That has been the approach of the law for many, many years. One only needs to look at the decision of the DPP v Boardman [1975] AC 421 to understand that.

22 Of course, it is not enough that there is significant probative value. One must perform the balancing test set out in s 101(2) as I have interpreted that section to be. In determining the prejudicial effect that the admission of the evidence would have on the accused, in particular in determining whether the probative value of the evidence substantially outweighs that prejudicial effect, one must of course bear in mind that directions will go a long way to deal with this issue. In fact the directions may lead to the situation where there is no unfair prejudice at all. I consider that I am able to fashion directions to a jury which will focus the jurors’ attentions on the real issues to be decided in this trial. It is the experience of the law, backed up by empirical research, that jurors do their best to follow instructions given to them by trial judges. That is not to say that jurors are immune from prejudice and emotion, but it is to say in assessing the effect of any directions to be given in this matter I should proceed on the basis that jurors will do their best to apply them.

23 Ms Mikhaiel referred to the sheer weight of numbers and said that if the evidence was admitted it would be “game, set and match” for her client. All that does is point to the high probative value of the evidence. It does not suggest that the jurors will look at matters unfairly or in a manner logically unconnected with the issues in the case.

24 It is suggested by Ms Mikhaiel, adopting what Mr Odgers says at p 343 of his book, that the jury might be influenced to convict the accused as punishment for conduct other than that charged. Of course one way round that would be to tell the jury that he is already to be punished for the conduct described by AG and ZM but that would lead to other problems for the accused, so it is probably unlikely that that evidence would be led. I consider, however, that a firm direction from me will deal with that possible prejudicial effect.

25 Ms Mikhaiel says that the jury may overestimate the probative value of the evidence, but in a case where counsel will no doubt point out the differences between the conduct alleged by AG and ZM on the one hand and the complainant in the present trial on the other I do not consider that that is a real possibility. Nor do I consider that the jury will be distracted from the central issues in the trial or may too readily accept other prosecution evidence. The issues in this trial will resolve themselves, as I understand it, to quite a simply matter, did the accused have sexual intercourse with the complainant as she alleges?

26 I understand that there is no forensic evidence to back up what the complainant says and the issue will ultimately resolve as to whether the complainant is honest and reliable when she describes what she remembers occurring. In such circumstances to take into account the tendency of the accused to do something similar to two other women would not be to be distracted from the central issue and the real issue to be resolved.

27 It cannot be the case that the sheer weight of numbers is enough to demonstrate unfair prejudice. The prosecution is not disentitled from bringing a powerful Crown case because s 101(2) of the Evidence Act. The fact that the introduction of this evidence does make this a strong Crown case is not the issue.

28 I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused and the evidence therefore will be admitted.

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