R v Grey
[2019] ACTSC 104
•30 April 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
R v Grey
Citation:
[2019] ACTSC 104
Hearing Date:
29 April 2019
Decision Date:
30 April 2019
Before:
Elkaim J
Decision:
See [17]
Catchwords:
CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – acts of indecency without consent – sexual intercourse without consent – offences against sex workers
Legislation Cited:
Crimes Act 1900 (ACT) ss 54(1), 60(1), 64(1)
Criminal Code 2002 (ACT) s 44
Evidence Act 2011 (ACT) s 97
Cases Cited:
McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045
Parties:
The Queen (Applicant)
Bradley Grey (Respondent)
Representation:
Counsel
T Hickey (Applicant)
B Morrisroe (Respondent)
Solicitors
ACT Director of Public Prosecutions (Applicant)
Legal Aid ACT (Respondent)
File Numbers:
SCC 246 of 2018; SCC 247 of 2018
ELKAIM J:
1. On 17 January 2019 the Crown filed an application seeking leave to adduce tendency and coincidence evidence in the form stated in the relevant notices to adduce such evidence.
2. An application of this sort requires notice to be given to the respondent. In this case notice was given and no issue is taken in that respect. In fact very little issue was taken generally when the matter came to be heard. Notably the Crown effectively abandoned the application for coincidence evidence, rather concentrating, in a slightly amended form, on the application for tendency evidence to be allowed.
3. The application for the adducing of tendency evidence is made pursuant to s 97 of the Evidence Act 2011 (ACT). The application is supported by an affidavit of Ms Sofia Janackovic affirmed on 15 January 2018.
4. The accused is charged with 27 separate offences. They are as follows:
(a) Counts 1, 4, 7, 8, 10, 12, 15, 19, 20 and 26: Act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT);
(b) Counts 2, 3, 5, 6, 9, 11, 13, 14, 16, 17, 18, 21, 22, 23, 24 and 25: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act; and
(c) Count 27: Attempt sexual intercourse without consent, contrary to s 54(1) of the Crimes Act, by virtue of s 44 of the Criminal Code 2002 (ACT).
5. There are also three charges transferred from the Magistrates Court but they are not relevant to the current application.
6. The respondent is due to stand trial for these offences on 11 June 2019. He has denied the allegations and has pleaded not guilty to all charges.
7. Quoting from its written submissions, the Crown wishes to lead evidence to prove that the accused acted in the following ways and had the following states of mind:
(a) To represent to new female recruits for escort work at Mitchell Mistresses that they had to undergo training which involved sexual activity with him.
(b) To use the training as a means for obtaining sexual gratification from new female recruits to escort work at Mitchell Mistresses.
(c) An intention to make new female recruits for escort work at Mitchell Mistresses believe that they had to undergo the training which involved sexual activity with him.
Tendency application
8. The respondent did not oppose the application in a general sense and did not suggest that there should be separate trials relating to each of the separate complainants. Rather the respondent concentrated his submissions on attacking the Crown’s position that the evidence revealed that the various complainants “had to” undergo training. The Crown’s case, in a nutshell, is that the respondent, who was the manager of a brothel, told new recruits that it was necessary for them to undergo training in the sexual activities that they would be required to perform as escorts. In fact, alleges the Crown, the training was no more than a guise to enable the respondent to achieve sexual gratification from the complainants. In doing so he negated the apparent consent of the complainants by his misrepresentation of the facts or by the abuse of the power that he held over them.
9. Because of the degree of agreement between the parties I do not intend to say a great deal about the requirements of an application of this type. The following will suffice. Section 97 of the Evidence Act is as follows:
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.
10. Section 101(2) states:
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.
11. A general statement about tendency evidence was recently made in the High Court in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045, at [16]:
The scheme of the Evidence Act with respect to the admission of tendency evidence about a defendant adduced by the prosecution in a criminal proceeding is explained in Hughes v The Queen. Section 97(1) conditions the admission of evidence to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, on the court's assessment that the evidence will, by itself or taken with other evidence adduced by the party seeking to adduce it, have "significant probative value". Section 101(2) provides that, in a criminal proceeding, tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the defendant.
12. The evidence to be put forward as establishing the tendencies is contained within nine alleged incidents, each relating to a different complainant. Abbreviated from the relevant notice, the incidents are as follows:
Incident 1 (Counts 1 - 3)
(i) On 30 December 2015, the accused masturbated himself while he received a massage from the complainant. The accused ejaculated. He then performed oral sex on the complainant and digitally penetrated her vagina.
Incident 2 (Count 4)
(ii) On 30 March 2016, the accused placed the complainants hand on his penis while he was receiving a massage from her.
Incident 3 (Counts 5 - 7)
(iii) On 9 May 2016, the accused performed oral sex on the complainant. The accused then directed the complainant to perform oral sex on him where they subsequently participated in mutual oral sex. The accused also masturbated himself after directing the complainant to suck his nipples until he ejaculated.
Incident 4 (Counts 8 - 14)
(iv) On 5 August 2016, the accused rubbed the complainant’s vagina during a massage. He then digitally penetrated the complainant’s vagina, massaged her breasts and performed oral sex on her. He then directed the complainant to masturbate his penis. He again performed oral sex on the complainant while she masturbated him. The accused directed the complainant to perform oral sex on him. A condom was not used and the accused ejaculated.
Incident 5 (Counts 15 - 18)
(v) On 27 August 2016, the accused, during a massage, directed the complainant to massage his penis. The accused then directed the complainant to perform oral sex on him. A condom was not used. Afterwards, the pair engaged in penile-vaginal sexual intercourse.
Incident 6 (Counts 19 - 21)
(vi) On 1 December 2016, the accused was photographing the complainant in sexualised poses including close-ups of her genitalia. The accused repeatedly used his hands to adjust the complainant’s vagina, namely her labia, while he was taking the photos. The accused subsequently massaged the complainant’s breasts, thighs and pubic region. After that, the complainant performed oral sex on the accused. The accused ejaculated into a condom.
Incident 7 (Counts 22 - 23)
(vii) On 14 December 2016, the accused performed oral sex on the complainant. He then directed the complainant to perform oral sex on him. The accused ejaculated into a condom.
Incident 8 (Counts 24 - 25)
(viii) On 26 December 2016, the accused performed oral sex on the complainant and digitally penetrated her vagina. The accused then directed the complainant to perform oral sex on him. A condom was not used.
Incident 9 (Counts 26 - 27)
(ix) On 7 January 2017, the accused attempted to place his hands between the complainant’s legs, propositioned her, and grabbed her hand and tried to put it on his penis. The accused then attempted to perform oral sex on the complainant. The accused then masturbated himself until he ejaculated.
13. As mentioned above, the main point taken by the respondent is that when looked at individually, there was no consistency amongst the complainants from which an inference could be drawn that they had no choice but to undergo the so-called training. I disagree. The document prepared by the Crown and which I have now marked as MFI ‘1’ demonstrates the consistency through the evidence of the complainants of the requirement to undergo training.
14. The respondent also submitted that any permitted tendency should be framed in a different fashion to that proposed by the Crown. Learned counsel for the respondent suggested a single tendency, such as a tendency “to engage in sexual activity with new female recruits for escort work at Mitchell Mistresses prior to them commencing their first shift”. I suggested some variations to this proposal but agreement was not able to be reached by the parties.
15. The failure to reach agreement did not reflect a chasm between their positions, but rather their differing views about the alleged necessity for each recruit to undergo training. While I generally agree with the respondent’s position that the tendency should be simplified to a single sentence, my satisfaction about the Crown’s position concerning the necessity for training, I think leaves little choice but to frame the permissible tendency evidence in the manner proposed by the Crown.
Orders
16. Accordingly, I make the following order: The application to adduce tendency evidence, pursuant to s 97 of the Evidence Act 2011 (ACT), as described in the Notice to Adduce Tendency Evidence dated 15 January 2019 is allowed.
17. The Crown is permitted to adduce evidence in relation to Incidents 1 to 9 in the Notice of Intention to Adduce Tendency Evidence dated 15 January 2019 to prove that the accused had the following states of mind and acted in particular ways, namely:
(a) To represent to new female recruits for escort work at Mitchell Mistresses that they had to undergo training which involved sexual activity with him.
(b) To use the training as a means for obtaining sexual gratification from new female recruits to escort work at Mitchell Mistresses.
(c) An intention to make new female recruits for escort work at Mitchell Mistresses believe that they had to undergo the training which involved sexual activity with him.
I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
Associate:
Date: 9 January 2020