R v Garay
[2020] ACTSC 317
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Garay |
Citation: | [2020] ACTSC 317 |
Hearing Date: | 18 August 2020 |
DecisionDate: | 18 August 2020 |
ReasonsDate: | 30 November 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [32] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – admissibility of tendency evidence – child sexual offences |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 65, 92E and 92K Evidence Act 2011 (ACT) ss 55, 97, 98, 100 and 101 |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 247 CLR 300 Vojneski v The Queen [2016] ACTCA 57; A Crim R 370 |
Parties: | The Queen (Crown) John Paul Garay (Accused) |
Representation: | Counsel S Jerome (Crown) J Campbell (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 117 and 118 of 2020 |
LOUKAS-KARLSSON J:
Introduction
The prosecution in this matter sought a pre-trial ruling on the admissibility of tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT) (Evidence Act).
The accused is charged with the following offences allegedly committed between 28 January 1986 and 5 December 1988 against a single complainant aged between 12 and 14 years old:
(a)One count of maintaining a sexual relationship with a young person, contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 25 years’ imprisonment.
(b)Two counts of sexual intercourse with a young person, contrary to s 92E of the Crimes Act. The maximum penalty for this offence is 14 years’ imprisonment.
(c)16 counts of acts of indecency with a young person, contrary to s 92K(2) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment.
In addition to the above charges, the accused has pleaded guilty to one count of possession of child exploitation material, contrary to s 65 of the Crimes Act. This charge has been committed to the Supreme Court for sentence and is not the subject of the current application.
The prosecution sought to adduce evidence to demonstrate the following tendencies:
(a)Tendency 1: A tendency to have a sexual interest in the complainant and to act on that sexual interest by masturbating the complainant’s penis when laying down together for his own sexual gratification.
(b)Tendency 2: A tendency to have a sexual interest in teenage boys and act on that sexual interest by lying in his bed with the teenage boy and engaging in sexual activity with them for his own sexual gratification.
In demonstrating these tendencies, the prosecution sought to rely on evidence of three incidents:
(a)Incident 1: The Flowerdale Road Incident;
(b)Incident 2: The Webster Road Incident; and
(c)Incident 3: The Wanniassa House Incident.
At the hearing on 18 August 2020, the prosecution indicated that Tendency 2 was no longer relied upon, and the application in that respect was withdrawn. It was further indicated that Incident 3 was no longer relied upon and the application in that respect was similarly withdrawn.
The prosecution additionally sought an Order that the evidence in relation to each count on the indictment and the incidents referred to in the prosecution’s tendency notice is cross-admissible as tendency evidence, so that the evidence relating to each charge is admissible as proof of each other charge on the indictment.
Relevant Legislation
Section 97 of the Evidence Act provides as follows:
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.
Section 101 of the Evidence Act provided, as at 18 August 2020, as follows[1]:
[1] Section 101 has since been amended, with effect from 1 September 2020. Section 101(2) now reads: “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 outweighs the danger of unfair prejudice to the defendant”.
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.
Tendency Incidents
Incident 1: The Flowerdale Road incident
Between 5 December 1979 and 18 October 1982, when the complainant was in early primary school, he went to the accused’s house on Flowerdale Road, NSW. They watched television together on the lounge, with the accused seated with his back against the arm of the lounge. The complainant’s back was resting on the accused chest and the complainant fell asleep between the accused’s legs. When the complainant woke up, the accused’s hands were down the complainant’s pants. He touched with the complainant’s erect penis for a few minutes and then removed his hands. The complainant did not speak about the incident to the accused or anyone else.
Incident 2: The Webster Road incident
Between 18 October 1982 and 20 February 1986, the accused took the complainant to a community radio station and then returned to the accused’s house on Webster Road, NSW. They watched a “Twilight Zone” movie. The accused and complainant were laying on the lounge, with the complainant in between the accused’s legs. The complainant fell asleep and woke up to the accused masturbating the complainant’s penis. The complainant pretended to be asleep. The accused masturbated the complainant until ejaculation (although due to the complainant’s age, no sperm came out). The complainant and accused did not speak about the incident. They finished watching the movie and the accused drove the complainant home.
Tendency Application
As stated above, at the hearing, the prosecution withdrew the application in respect of Tendency 2, which related to Incident 3.
Following the amendment of the application, counsel for the accused did not oppose the application by the prosecution to rely on Incidents 1 and 2 to demonstrate Tendency 1, if the Court determined that the evidence meets the legislative threshold (T 2.33-41).
In order to succeed in the application, the prosecution must establish the following:
(a)That the evidence is relevant under s 55 of the Evidence Act;
(b)That the tendency evidence has significant probative value pursuant to s 97 of the Evidence Act; and
(c)That the probative value of the tendency evidence substantially outweighs any prejudicial effect.
In dealing with the application, I adopt the approach outlined in Vojneski v The Queen [2016] ACTCA 57; A Crim R 370.
Relevance: s 55 of the Evidence Act
In order to determine the relevance of the evidence the subject of the tendency notice, the court must first consider the threshold issue of relevance. At this stage of the enquiry, “it Is necessary to identify the purpose or purposes for which the evidence is tendered”: IMM v The Queen [2016] HCA 14; 247 CLR 300 at [37] (IMM).
The evidence the subject of the tendency notice is sought to be adduced to show that the accused has the tendency to think and act in relatively distinctive or particular ways. As summarised by Gageler J in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [70] (Hughes), the purpose of the prosecution seeking to adduce the evidence contained in the tendency notice is to draw upon the inferential reasoning of tendency evidence:
Tendency evidence is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.
The first question on relevance is whether the prosecution has identified a s 97 tendency.
The prosecution sought to adduce evidence that the accused had a tendency to have a particular state of mind and to act in a particular way, namely a tendency to have a sexual interest in the complainant and to act on that sexual interest by masturbating the complainant’s penis when laying down together for his own sexual gratification.
The prosecution has identified a s 97 tendency.
The next question is whether the events are capable of establishing the asserted tendency. In my view, Incidents 1 and 2 are capable of establishing the asserted tendency.
The third question is: what are the relevant “facts in issue” in the proceedings? In this case, whether or not the accused engaged in sexual acts with the complainant is a fact in issue.
The final question on relevance is, if the fact finder accepted that the tendency incident occurred and demonstrated the asserted tendency, could the tendency inform a fact in issue? I accept that the tendency could inform a fact in issue in this case. In my view, this is self-evidently clear.
Significant Probative Value of the Tendency Evidence: s 97 of the Evidence Act
The High Court explained “significant probative value” in the context of tendency evidence in IMM at [46] and [64] (French CJ, Kiefel, Bell and Keane JJ) as follows:
[46]Cross on Evidence suggests that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
…
[64]The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue…
In Hughes at [41] (Kiefel CJ, Bell, Keane and Edelman JJ), the High Court stated that assessing probative value involves a two-step process:
In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself and together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
Hughes concerned child sex offences committed against multiple complainants. The majority of the High Court in Hughes held that tendency evidence of the accused’s interest in female children and tendency evidence to act on that interest by engaging in sexual activity with female children opportunistically was capable of having significant probative vale within the meaning of s 97(1)(b). In relation to tendency evidence in the context of child sexual offence proceedings, the majority made the following comments at [40]:
In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.
Finally, the full bench of the High Court in The Queen v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 stated at [42]:
Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
I am satisfied in this case that the tendency evidence identified by the prosecution and described above has significant probative value.
Whether the probative value of the evidence substantially outweighs any prejudicial effect: s 101 of the Evidence Act
The majority in Hughes stated at [17]:
The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a 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.
The prosecution submitted that the evidence sought to be adduced is not of a quality or nature that would present a real risk that a jury might act improperly, such as being aroused to horror or an instinct to punish. Secondly, the prosecution submitted that there is no “solid basis” to suggest that there is a real risk that the jury would misuse the tendency evidence sought to be adduced.
In relation to the balancing exercise required by s 101, the prosecution submitted that “tendency evidence is not viewed in a vacuum”. It was therefore submitted that, in circumstances where the accused has maintained his right to silence and the critical issue in the trial is whether the conduct occurred, the tendency conduct of the accused takes on great significance.
Conclusion & Orders
In my view, the tendency evidence sought to be adduced by the prosecution is relevant and is of significant probative value. Further, this significant probative value substantially outweighs any prejudicial effect. I therefore make the following orders:
(a)The prosecution is permitted to adduce tendency evidence in relation to the cross-admissibility of Counts 1-19 in the Indictment.
(b)The prosecution is permitted to lead as tendency evidence Incidents 1 and 2 as outlined in the Notice of Intention to Adduce Tendency Evidence dated 10 August 2020.
(c)The tendency is outlined as Tendency 1 in the Notice to Adduce Tendency Evidence dated 10 August 2020.
I note that these reasons are not to be published, other than to parties, until the accused’s trial is complete.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: L Skinner Date: 30 November 2020 |
4
0