R v Jamie Schofield
[2013] ACTSC 247
•21 November 2013
R V JAMIE SCHOFIELD
[2013] ACTSC 247 (21 November 2013)
EVIDENCE – Admissibility – tendency and coincidence evidence – prior conduct – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101
TRIAL – Roles of judge and jury – tendency and coincidence evidence – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101
Children and Young People Act 2008 (ACT), s 356
Evidence Act 2011 (ACT), ss 55-56, 97-101, 108, 192A
R v Cittadini (2008) 189 A Crim R 492
R v Fletcher (2005) 156 A Crim R 308
R v Ford (2009) 201 A Crim R 451
R v Harker [2004] NSWCCA 427
R v Johnston (2012) 6 ACTLR 297
R v Lockyer (1996) 89 A Crim R 457
R v Saunders [2012] ACTSC 143
R v Smith (2008) 190 A Crim R 8
R v Zhang (2005) 158 A Crim R 504
Odgers, S, Uniform Evidence Law (Thomson Reuters, 10th ed, 2012)
EX TEMPORE JUDGMENT
No. SCC 63 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 21 November 2013
IN THE SUPREME COURT OF THE )
) No. SCC 63 of 2013
AUSTRALIAN CAPITAL TERRITORY )
R
v
JAMIE SCHOFIELD
ORDER
Judge: Refshauge J
Date: 21 November 2013
Place: Canberra
THE COURT ORDERS THAT:
The evidence listed in 2(a)(i), (ii) and (iii) and (b)(i) and (ii) of the Tendency Notice, filed by the prosecution, be inadmissible as tendency evidence.
The evidence listed in 2(a)(iv) of the Tendency Notice be admissible as tendency evidence.
In January 2011, Trevor Schofield was born to Tiffany Harber, who at the time was living with Jamie Schofield. Staff from Care and Protection Services, of the Community Services Directorate, investigated what was said to be non-accidental injuries found by CARU.
In due course, Jamie Schofield was charged with two offences of assaulting Trevor and occasioning him actual bodily harm, and, in the alternative, two offences of common assault on Trevor. The prosecution case was that Ms Harber said that the injuries were inflicted by Mr Schofield and she would give evidence of his behaviour in respect to Trevor.
Mr Schofield’s trial for these offences commenced on 20 November 2013. After he was arraigned a preliminary issue arose.
The prosecution had, on 18 November 2013, served on Mr Schofield’s lawyers a notice under s 97 of the Evidence Act 2011 (ACT) of its intention to adduce certain evidence of tendencies, which it set out in the notice.
Mr A Hopkins, counsel for Mr Schofield, objected to the admission of that evidence.
The admission of tendency evidence is regulated by ss 97-101 of the Evidence Act. Relevant to these proceedings are ss 97 and 101 which are relevantly in the following terms:
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.
Note The 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.
...
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.
I raised with both counsel the question of notice which, of course, under s 97(1)(a) of the Evidence Act, has to be reasonable notice. Although notice was given quite late, is said to be the result of proofing a witness shortly before the trial. Mr Hopkins did not claim that he had insufficient in notice.
The tendencies which the notice asserted the evidence would prove Mr Schofield has or had were:
[A] tendency to:
a. Injure Trevor Schofield (the child); and
b. Show indifference to:
i. pain or distress being exhibited by the child; and
ii. the child’s general welfare.
It seems to me essential that the notice should identify with particularity, as did the notice in this case, the tendency which it asserted is to be proved from the evidence sought to be adduced. It is only by this means that the court can assess any objection to the admission of the evidence.
In many cases, as Simpson J, with whom McClellan CJ at CL agreed, said in R v Fletcher (2005) 156 A Crim R 308 at 316; [33], it is not always possible to determine finally the actual probative value of a piece of evidence until the evidence in the case is complete. Nevertheless, that is not always the case, and, in a number of cases, decisions about the admissibility of what is sought to be adduced as tendency evidence can be made before trial, as provided for by s 192A of Evidence Act. Her Honour also pointed out that the test is whether the evidence could rationally affect, that is, was capable of rationally affecting, the probability of the existence of a fact in issue. Indeed, that is the test of admissibility under ss 55 and 56 of the Evidence Act. Again, it is not always easy to determine what facts are in issue, though, on a plea of not guilty, all the elements of an offence are thereby put in issue.
In this case, Mr Hopkins, sensibly and helpfully, made it clear that the relevant fact in issue was whether it was Mr Schofield, rather than some other person, who inflicted injuries on Trevor, or that they were inflicted in some other way. Hence, what the prosecution was seeking to prove by adducing the evidence was that I, as the judge of fact, would be assisted in finding that Mr Schofield caused the injuries suffered by Trevor by that evidence. Thus, Simpson J, with whom McClellan CJ at CL agreed, said in R v Cittadini (2008) 189 A Crim R 492 at 495; [22]-[23]:
Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.
Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).
Similarly, Howie J, with whom Santow JA and Bell J agreed, put it in R v Harker [2004] NSWCCA 427 at [57]:
[T]endency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that, because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion.
Such evidence need not show acts closely similar to those that constitute the crime charged (R v Smith (2008) 190 A Crim R 8 at 12-13; [17], R v Ford (2009) 201 A Crim R 451 at 467; [43]), nor repetition on very many occasions (R v Ford at 467; [45];, R v Johnston (2012) 6 ACTLR 297 at 309; [44], 310; [47]).
The evidence sought to be adduced
The first pieces of the evidence sought to be adduced were to be given by Ms Harber. They were, however, the physical acts that were said to constitute the offences charged, that is to say, that:
[T]he accused:
i. Squeezed the child about the stomach abdomen, resulting in the accused’s finger going under his rib cage and the child vomiting and crying;
ii. Punched the child in the stomach with a clenched fist.
These were, it became clear, the particulars of each of the two incidents that were said to be the assaults on the child, the subject of the charges.
The basis on which they were said to be admissible was that it was said by the prosecution that, in the words of s 97(1)(b) of the Evidence Act, it, “will ... having regard to other evidence ... have significant probative value.”
The difficulty I have with this submission is the circularity of the argument. The tendency evidence is to rationally affect an assessment of the probability of the existence of a fact in issue. The fact in issue itself, however, cannot be used, either alone or having regard to other evidence, somehow to prove itself. As Burns J said in R v Saunders [2012] ACTSC 143 at [38]:
Tendency evidence is led for the purposes of establishing that the accused committed the offence charged against him or her. The act of sexual intercourse alleged by the Crown to constitute the offence cannot be an act relevant to the proof of the charge by way of tendency reasoning. It is the very act to be proved.
I rejected the evidence as tendency evidence. Of course, it is otherwise admissible as evidence of the physical acts said to be those of the offences, but there is no tendency element in there.
The next piece of evidence was described as follows, namely that the accused:
iii. Sat idly by whilst the child was on the floor crying after having fallen from a couch;
The difficulty with this evidence is that it is not easy to see how that evidence by itself is evidence of tendency without much more description of the particular circumstances and the way in which that evidence fits into other evidence in the case. This can be one of the difficulties of trying to decide on an issue without a voir dire or at least the hearing of the evidence in the case itself.
For example, the child may not have been crying in a serious way, at least to the perception of Mr Schofield; the way in which the fall occurred may not have been such that the child was clearly hurt but only startled; Mr Schofield may have genuinely thought that the child was not really in distress or in pain.
The factual matrix is sufficiently complicated that it is difficult to decide the question divorced from the actual evidence.
The test is, of course, that the evidence must have significant probative value. As Simpson J, with whom Buddin J agreed, said in R v Zhang (2005) 158 A Crim R 504 at 537; [139]:
The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted. [emphasis original]
What Hunt CJ at CL said in R v Lockyer (1996) 89 A Crim R 457 at 459 was:
There is no definition of ‘significant’ probative value as that phrase is used in s 97. In its context as I have outlined it, however, ‘significant’ probative value must mean something more than mere relevance but something less than a ‘substantial’ degree of relevance.
Thus, from an examination of the authorities, Stephen Odgers concludes, in Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 10th ed, 2012) at 460:
(a) the test in s 97(1)(b) (and s 98(1)(b)) requires the court to assess the capacity of the evidence to affect the assessment of the probability of the existence of a fact in issue (but not to engage in a ‘fact-finding exercise’ or assessment of the ‘weight’ of the evidence);
(b) ‘significant’ means ‘important’ or ‘of consequence’;
(c) an alternative explanation (than the inference relied on by the party adducing the evidence to prove a fact in issue) that is open on the evidence and is a real possibility and not fanciful may have the effect of depriving the evidence of an otherwise significant capacity to establish a fact in issue (and thus, of ‘significant probative value.’).
Applying this approach, it seemed to me that the evidence, as described, with all its limitations, did not have significant probative value of the kind of hypothesis outlined earlier. It may show only that Mr Schofield was indifferent to Trevor’s distress. There seems to me to be a leap between such indifference and positive acts of the application of force or causing actual injury by infliction on Trevor.
Further, there is a risk of improper reasoning, when s 101 of the Evidence Act applies. While I am not a jury but a judge, it seems to me that I should, nevertheless, be cautious about admitting evidence before me which I would not admit before a jury. That a jury may reason that indifference to suffering means Mr Schofield could the more readily inflict direct injury may be to rely on an inference that should by no means necessarily be drawn.
The final piece of evidence from Ms Harber was actually amended from that in the notice. Mr Hopkins took no objection. It was that Mr Schofield had picked up Trevor and thrown him with force into his cot. In my view, this evidence does have the necessary characteristic of being of significant probative value, since it is, or is closely akin to, Mr Schofield inflicting injury, or likely to do so, on Trevor. I would admit evidence of this event as tendency evidence.
The second group of evidence was to come from another witness. The first of that evidence was described as evidence “[o]f recent complaint with respect to Tiffany Harbour’s [sic] evidence.”
Complaint evidence may be adduced in certain circumstances under section 66 of the Evidence Act. The prosecution, however, did not rely on that provision. Indeed, it was said that it was expected that Ms Harber’s credibility would be challenged by the accused, and this evidence was then admissible under section 108 of the Evidence Act.
The complaints, it seems, would include at least the incident of Mr Schofield throwing Trevor into the cot, and thus support the tendency evidence that I have found would be admissible.
In the time available, I have not had the opportunity to give this mature reflection. But it seems to me that this is not tendency evidence in itself. It is admissible, if at all, as credibility evidence or under section 108 of the Evidence Act and, if successfully admitted as such, will, where relevant, support Ms Harber’s evidence both generally and specifically, which may include any admissible tendency evidence. But it is not admissible as tendency evidence in itself.
The final piece of evidence was described as follows:
That on two occasions between 6 March and 25 May 2011 [the witness] observed the accused to take the child into a room to change his nappy and close[d] the door. The child would then scream loudly and the child’s face would become red with distress, but the accused did not explain why the child was screaming.
It was said that the witness who would give this evidence was an experienced child care worker, who could give some evidence as to the quality of the screaming that she heard. That may be so, but it seems to me that there are formidable problems with this evidence. There is, by itself, no indication of what Mr Schofield is doing while in the room behind the closed doors. Were he to be rough or inexperienced in changing the child’s nappy, noting that there are only two occasions alleged, that may cause the screams, but would not prove the relevant tendency. There may be circumstances about the changing of the nappies, such as the child being constipated, which could cause the distress without any prejudicial inferences being able to be drawn.
In my view, the suggested evidence, in its stark reference in the tendency notice, leads to too speculative a series of inferences to show significant probative value. Accordingly, I rule that this evidence could not be adduced as tendency evidence at that stage.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 13 December 2013
Counsel for the Applicant: Mr A Williamson
Solicitor for the Applicant: Director of Public Prosecutions (ACT)
Counsel for the Respondent: Mr A Hopkins
Solicitor for the Respondent: Darryl Perkins Solicitors
Date of hearing: 20-21 November 2013
Date of judgment: 21 November 2013
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