R v Hunt
[2016] ACTSC 5
•15 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hunt |
Citation: | [2016] ACTSC 5 |
Hearing Dates: | 15 December 2015 |
DecisionDate: | 15 December 2015 |
ReasonsDate: | 3 February 2016 |
Before: | Penfold J |
Decision: | The tendency to be put to the jury was that the accused was sexually attracted to young girls and had a tendency to act on that attraction. |
Catchwords: | CRIMINAL LAW - EVIDENCE – Similar Facts – tendency evidence – need to generalise the tendency exemplified by the evidence sought to be admitted – tendency described as relating to two named complainants could not justify admission of evidence relating to one complainant in relation to charges involving the other complainant – tendency reformulated. EVIDENCE – Admissibility and Relevancy – tendency evidence – need to generalise the tendency exemplified by the evidence sought to be admitted – tendency described as relating to two named complainants could not justify admission of evidence relating to one complainant in relation to charges involving the other complainant – tendency reformulated. |
Legislation Cited: | Evidence Act 2011 (ACT), s 97 |
Cases Cited: | Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 R v GM [2014] ACTSC 328 R v Tully (No 1) [2013] ACTSC 127 |
Texts Cited: | Odgers, Uniform Evidence Law (Thomson Reuters, 11th ed, 2014) |
Parties: | The Queen (Crown) Clyde Robert Hunt (Accused) |
Representation: | Counsel Ms S Gul (Crown) Mr J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Accused) | |
File Numbers: | SCC 92 of 2015; SCC 94 of 2015 |
Introduction
The Crown made an application for the purposes of s 97 of the Evidence Act 2011 (ACT) for a ruling permitting the admission of tendency evidence in the trial of Clyde Hunt on an indictment alleging a total of four sexual offences against two sisters. Burns J heard the application on 15 October 2015. The tendency application was not opposed by the defence, and accordingly Burns J made the following orders:
HH orders by consent that the Crown be permitted to adduce evidence outlined as Counts 1 – 4 and as uncharged incidents 1 – 4 in the Notice of Intention to adduce tendency evidence dated 24 September 2015 as evidence that the accused had a tendency to have a particular state of mind, namely to have a sexual attraction to [OM] and [QM], and a tendency to act in particular ways, namely:
to act on his attraction to [OM] and [QM]; and
to act on his attraction to [OM] and [QM] when their mother was not home/not present.
Those orders reflected the way the tendency application had been drafted; specifically, it alleged:
(a)A tendency by the accused to have a sexual attraction to both complainants, OM and QM.
(b)A tendency by the accused to act on his attraction to OM and QM, and to do so when their mother was not present.
Form of original tendency order
The intention of the tendency application was that the evidence of the accused’s conduct to each girl would be admissible in relation to the charge or charges in relation to the other girl – indeed, if the evidence was not to be cross-admissible, then the indictment should have been severed, and a separate trial should have been ordered in relation to each of the girls.
However, when I began to consider the exact form in which I should direct the jury about how they could use the evidence identified in the tendency application, it became apparent that the articulation of the primary tendency as a tendency to have a sexual interest in each of two named complainants raised considerable difficulties.
First, I could not see how evidence of a sexual interest in one named complainant could, of itself, indicate a tendency to have a sexual interest in another named complainant. Nor did it make any sense to me to say that a tendency identified as a tendency to have a sexual interest in two named complainants is probative of a particular allegation in relation to one of those named complainants, except to the extent that the tendency emerges from the evidence relied on to establish the sexual interest in the relevant complainant; that is, the reference to another complainant in describing the tendency is at best meaningless but also potentially misleading.
Counsel submitted that the tendency was drafted so as to identify the two complainants specifically because of comments made by Burns J in R v GJM [2014] ACTSC 328. In that decision, his Honour dealt with a tendency application setting out 16 incidents relating to three sisters whose mother was a friend of GM’s. The relevant tendency was identified as “To have a sexual attraction to girls under the age of 16”. Burns J held that this tendency did not have sufficient probative value, and that even if it did have significant probative value, that probative value would not substantially outweigh the potential prejudicial effect of the evidence. His Honour said at [14]:
The age of 16 years as set out in these tendencies was apparently chosen because that was the upper limit of the ages of the complainants and not because it revealed something distinctive about the accused.
Burns J went on at [15]:
In R v Johnston (2012) 6 ACTLR 297 I cited the decision of Campbell JA in R v Ford (2009) 201 A Crim R 451 that s 97 does not require the tendency alleged by the Crown to be strikingly or closely similar to those alleged to constitute the charged offences. I expressed the view that a tendency to be sexually attracted to young children was sufficiently precise or distinctive as to possess significant probative value. That was in the context of a sexual assault on an 8 year old child, and in circumstances where child pornography had been found on the accused’s computer. The sexual attraction of the accused in Johnston to pre-pubescent females as revealed by his possession of the child pornography was a sufficiently distinctive state of mind to allow the jury to conclude that the accused had a tendency to be sexually attracted to pre-pubescent females. If the jury was satisfied that the accused in Johnston possessed that tendency, that was a circumstance which they could take into account in determining the guilt of the accused on the sexual assault and related charges.
In the GM decision, Burns J, although deciding that there should be three separate trials (each trial relating to the allegations made by a different sister), also went on to conclude that, in the trial relating to allegations by the eldest sister, evidence of acts in relation to that sister which were not the subject of charges would be admissible as evidence of the accused’s tendency to be sexually attracted to that sister and to engage in sexual activities with her.
As implied by Burns J, a tendency to have a sexual interest in pre-pubescent girls is different from, and more distinctive than, a tendency to have a sexual interest in girls under 16, many of whom may well be sexually mature and indistinguishable in their presentation from 16-year-olds and indeed somewhat older females. A person who finds himself sexually attracted to a particular person who happens to be only 15 does not thereby demonstrate a tendency to be attracted to under-age girls if that 15-year-old presents as older. A person who demonstrates an attraction to 8- or 10-year-olds presenting as such would however seem to demonstrate a more distinctive tendency.
In the course of my discussion with counsel, consideration was also given to two other cases.
In R v PWD (2010) A Crim R 75 at [34], the relevant tendency was summarised as:
A tendency to have a sexual interest in young male students, to engage in sexual activities with young male students, and to use his position of authority to obtain access to young male students so that he could engage in sexual activity with them.
In R v Tully (No. 1) [2013] ACTSC 127 Burns J decided another pre-trial application in relation to tendency evidence, specifically in relation to tendencies identified by the Crown as:
(a) to have a sexual attraction to young girls;
(b) to act on his sexual attraction to young girls; and
(c) to take advantage of his parents’ friendships with other families to gain access to young girls.
His Honour made orders permitting evidence to be led to establish the first two tendencies, namely that the accused had tendencies to have a sexual attraction to young girls and to act on his sexual attraction to young girls.
Need to generalise tendency exemplified by evidence
It is apparent even from that review of a very small number of cases that the asserted tendency, in order to have any probative value, must be able to be expressed in sufficiently general terms to provide a basis for inferring particular conduct in a situation other than (but not necessarily different from) the situation or situations in which the tendency is said to have been demonstrated or exemplified.
In relation to the need to be able to generalise the tendency, I note in passing the comments made by Hamilton J in Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579 at [12] that:
It appears to me from these definitions that the word “tendency” imports a degree of generality. It seems to me a contorted and unnatural use of language to say that Mr Renshaw had a tendency in negotiating this contract to insist on the provision of umbrellas as a precondition of dealing.
These comments were relied on by Hamilton J to find that the evidence of one attempt to negotiate a particular contract (for the supply of coffee and branded umbrellas from a coffee supplier) was relevant to a dispute over the contents of the agreement reached in a concluded negotiation for the supply of coffee from another coffee supplier, and was accordingly admissible, but was not tendency evidence. His Honour said at [7]:
7 ... the portion of Mr Renshaw’s evidence that recounts a conversation with Toby of Toby’s Estate Coffee ... makes it plain that at a point of time close to that of the conversations the subject of this judgment, and with a view to entering into a contract for the supply of coffee as was finally entered into in some form between the plaintiff and the defendants, one of the defendants raised with Toby the desire for and importance of umbrellas being obtained, and that negotiations with Toby ceased when he indicated that he could not or would not supply umbrellas. That does seem to me a piece of evidence that would rationally affect the assessment of the probability of what was said by both defendants, who were partners running an existing coffee shop, when they, in each other’s presence, dealt with the representatives of the plaintiff. It reflects on the question of which versions of the conversations concerning umbrellas were more probable.
This approach has been criticised by Stephen Odgers in Uniform Evidence Law (Thomson Reuters, 11th ed, 2014) at p 472, [1.3.6660]. Mr Odgers makes two points, in effect:
(a)that if evidence lacks a sufficient degree of generality to permit an inference of conforming conduct from behaviour in a similar situation or situations, it may lack sufficient probative value to be admissible as tendency evidence; and
(b)evidence that would not be admissible as tendency evidence because of its inadequate probative value should not be admitted as a basis for an inference of conforming conduct in a similar situation without having to meet the pre-requisites for the admission of tendency evidence.
The criticism is consistent with my basic proposition that the tendency relied on to justify the admission of evidence not directly relevant to a particular charge must be articulated with a sufficient degree of generality to enable a fact-finder to infer, from evidence of one event, what Mr Odgers describes as “conforming conduct in a similar situation”, being the conduct in issue in the trial. The criticism is not to the effect that tendency evidence need not be able to be generalised.
Rather, Hamilton J’s conclusion seems, with respect, to have gone wrong as a result of his Honour’s assumption that generalising from particular conduct could only be done by reference to a significant number of examples of the relevant conduct. It seems to me that the “generalising” should involve identifying a higher level conceptual similarity between the contents of the evidence of which is sought to be admitted as tendency evidence and the matter sought to be proved in the trial. It is necessary to identify in a meaningful way the tendency of which the subject of the proposed tendency evidence and the alleged conduct in issue at the trial would both be examples – it is not necessary that there be any particular number of examples of the tendency to be put in evidence.
The evidence
Each of the complainants gave evidence of the incidents the subjects of the charges, and of other incidents of sexual conduct towards her by the accused. In relation to each complainant, evidence of the other incidents might have been admitted as evidence supporting a tendency of the accused to have a sexual interest in that complainant. For the purpose of admitting incidents of sexual conduct (charged or otherwise) towards one complainant as supporting a tendency of the accused to have a sexual interest in the other complainant, the tendency needed to be generalised in some way. The tendency articulated in the application was not in my view generalised, or conceptualised, appropriately. Rather, the two possible tendencies, each relating to one complainant, were simply combined into a tendency relating to both complainants by name.
There are a number of ways in which the tendency could have been generalised or conceptualised. The most obvious form of the tendency would have been a tendency to have a sexual attraction to young girls (given that one complainant was at the relevant times 8 or 9 years old and the other was 9 or 10 years old). The cases dealt with by Burns J certainly seem to suggest that such a generalisation would have been available.
There may have been other relevant ways of generalising in this case, noting that, for instance, the girls were sisters who looked very much alike (at least by the time they gave evidence in this matter in 2014 and 2015). However, there is no need for present purposes to go beyond the proposition that each charged or other incident demonstrated a sexual interest in young girls. That expression of the relevant tendency would permit a sensible set of directions to be given to the jury about how the evidence of each incident can be used.
Problem with original form of tendency order
The problem with the original expression of the relevant tendency was that the standard tendency direction permits the jury to reach a tendency finding if they are satisfied beyond reasonable doubt of at least one of the relevant incidents. That is, in this case, the Crown must be saying that if the jury was satisfied beyond reasonable doubt of one of OM’s claims about sexual comments to her by the accused (for instance, his question whether she had ever seen a penis), then they were permitted to consider whether they were satisfied beyond reasonable doubt that the accused had a sexual attraction, not only to her personally (which might be a reasonable inference) but also to another particular girl (albeit a girl who was her sister). It is hard to see that a question to one girl about whether she had ever seen a penis could by any stretch of logic demonstrate a sexual interest in another particular girl.
On the other hand, if the identified tendency is a sexual attraction to young girls, then there is no problem in logic in saying to the jury that if they are satisfied beyond reasonable doubt that the accused engaged in a particular incident of sexual behaviour towards one of the girls, then they may consider whether he has a tendency to be sexually attracted to young girls and, if they are satisfied of that tendency beyond reasonable doubt, then they may use that tendency in determining whether they are satisfied beyond reasonable doubt of any of the charges relating to either one of the young girls involved in the trial.
What could be put to the jury?
This raised the question whether the relevant evidence could be put to the jury as tendency evidence, but as evidence of a tendency described in a different way from the way it was described in the tendency application and in Burns J’s pre-trial order permitting its admission in the trial.
New application
After further discussion between me and counsel, the prosecutor sought the amendment of the tendency order, which I treated as an oral application for the evidence that had been the subject of the original tendency application to be admitted as evidence that the accused had a sexual attraction to young girls and a tendency to act on that sexual attraction. Defence counsel did not oppose the application, noting that the cases did not support him in mounting any sensible argument against it.
Determination of how tendency issue to be put to jury
For the reasons set out above, I determined that the possibility that the accused had a tendency to be sexually attracted to young girls and to act on that attraction was the basis on which the tendency evidence would be put to the jury in my summing up.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 3 February 2016 |
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