R v JONES (No 2)
[2013] SADC 108
•4 July 2013
District Court of South Australia
(Criminal)
R v JONES (No 2)
[2013] SADC 108
Ruling of His Honour Judge Slattery (ex tempore)
4 July 2013
CRIMINAL LAW - EVIDENCE
Application by prosecution to lead evidence of discreditable conduct - purpose for which evidence may and may not be used - probative value of evidence outweighs prejudicial effect - proper directions to be given to jury.
Leave granted to prosecution.
Evidence Act (SA) 1929 S.34P, s34R , referred to.
R v C, CN [2013] SASCFC 44, applied.
Harris v Director of Public Prosecutions [1952] AC 694, discussed.
R v JONES (No 2)
[2013] SADC 108
The question for my consideration is the application by the prosecution to lead further material from Detective Brevet Sergeant Melissa Benson.
In the evidence thus far in this trial, Detective Brevet Sergeant Melissa Benson has given evidence in relation to an interview with the accused that took place on 19 December 2011 at the Holden Hill Police Station. The interview was recorded. A deposition was provided by Detective Benson dated 7 June 2012 and attached to it was a transcript of the interview consisting of some 45 pages.
A Rule 15 notice was delivered by the accused and in respect of the content of the transcript, and therefore the film of the interview, I have ordered that certain excisions of those materials take place.
In evidence yesterday, 3 July 2013, Detective Benson provided an amended record of interview that consists of some 40 pages. It is marked ‘MFI P13’. One of the issues that were raised in the context of the Rule 15 notice was material that formerly was contained on p.43 and top of p.44 of the annexure to Detective Benson’s declaration. That material relates to questions put by Detective Benson to the accused in respect of his use of the drug ecstasy as follows:-
“QDown below and um. Before you mentioned when we were talking about the. The yellow pill that you know from your knowledge or whatever of drugs. That you just put two and two together basically and ah, came up with the ecstasy what. What is your um, do you have a drug history at all or do you use or.
AOh you see it around. Everywhere you go.
Q Yeah.
AYou work around that industry long enough. You get to find out everything.
QYeah. Do you use yourself.
ANot usually no.
QNot usually but on the odd occasion.
AYep.
QYeah and what do you take. Not that we’re gonna do anything about that. Ha.
AI might have a pill occasionally.
QYeah.
Abut very rarely.”
There was an initial objection by Mr Crowe for the accused in respect of that material but that objection was withdrawn. Mr Crowe correctly raised with me in the trial that the evidence is still in the nature of discreditable conduct evidence and therefore s.34P had an application including any consequential matters under s.34R of the Evidence Act.
There was some doubt about whether or not the prosecution was to lead this evidence from Detective Benson. This morning Mr Powell for the prosecution has informed me that having reflected on the matter overnight he wishes to lead the evidence from Detective Benson. Mr Crowe’s position has not changed in respect of the evidence but of course s.34P still is a matter to be taken into account.
S.34P of the Evidence Act reads as follows:-
“34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4) Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).”
This provision has received consideration from the Court of Criminal Appeal in the decision of R v C, CN [2013] SASCFC 44. The relevant portions of the judgment of White J, who wrote the judgment of the court, are in this context, to be found at paras.[18], [23], [24], [25], [26] and [27] of the judgment:-
“[18] The manner of expression of subs (2) indicates that a trial judge must be positively satisfied that the conditions for admissibility do exist: they are not matters for the parties’ agreement, nor are they matters which need not be addressed in the absence of formal objection by the opposing party. Section 34P(2) means what it says: the admission of discreditable conduct evidence is made expressly contingent on a trial judge’s satisfaction of the specified matters, and in forming the requisite satisfaction the judge must have regard to the matters specified in subs (3). A party’s consent, or an absence of objection, may assist a judge in reaching the requisite state of satisfaction, but they cannot be a substitute for that satisfaction. That does not preclude parties and the courts from adopting flexible procedures, e.g., in a trial by judge alone, the parties may agree that the judge should hear the proposed evidence of discreditable conduct as part of the trial in order to facilitate a ruling on the admissibility of the evidence at the close of the prosecution case.
[23] The application of s 34P requires a number of discrete steps and considerations by a trial judge. First, the judge must identify the use or uses for which the proposed evidence may be admitted. As was the case in the common law, there is no “closed list”[1] of the permissible uses of evidence of previous conduct of an accused, and s 34P does not purport to identify permissible uses. It does however contemplate that the intended use will be positively identified when the admissibility of the evidence is being considered. This is implicit in subs (2) and is, in any event, essential to the remaining steps. The Solicitor‑General, who appeared for the Director, acknowledged the necessity for a judge to identify at the commencement of the consideration of the admissibility of proposed discreditable conduct evidence the intended use or uses of the evidence.
[24] Secondly, the judge must be positively satisfied that the probative value of the evidence for the permissible use or uses “substantially outweighs” any prejudicial effect it may have on the defendant (subs (2)(a)). In determining that issue, the judge “must have regard”, as required by subs (3), to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used impermissibly. The impermissible use to which subs (3) refers includes, at the least, use of the evidence to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct (subs (1)(a)).
[25] Thirdly, if the identified permissible use or uses rely on a propensity or disposition of the defendant as circumstantial evidence of a fact in issue, the judge must be satisfied in addition that the evidence has “strong probative value” having regard to the particular issue or issues arising at trial (subs (2)(b)).
[26] Finally, having admitted the evidence, a trial judge is required by s 34R(1) to identify and explain the purposes for which the evidence may, and may not, be used.
[27] The sequential consideration just outlined may be applied most easily in those cases in which a defendant is charged with a single offence, although even in such cases, the consideration is required in relation to each allegation of discreditable conduct.”
[1] Harris v Director of Public Prosecutions [1952] AC 694 at 705.
In this action the evidence of the complainant is that she has no memory of events as they occurred on the evening of 16 and 17 December 2011 at the Tea Tree Gully Hotel. On that night she was with friends, both from work and other personal friends celebrating both her birthday and a break-up dinner from her work. The complainant’s evidence is that she is unable to remember anything of the evening from about 12.45am or thereabouts, onwards. The facts as alleged by the prosecution are that sometime around 2.30am on 17 December 2011 the accused carried or assisted the complainant to his car with the intention, or with the alleged intention of taking her home. The accused knew both the complainant and her mother through a connection with the business that the complainant’s mother operated and which was frequented by the accused. The complainant previously worked at that business.
The alleged offence in this matter is one of rape. The evidence of the complainant is that she has no memory of events between about 12.45am on 17 December and about 6.00am on 17 December at a time when she was being driven home by the accused. In the period between the hours of about 3.00am or thereabouts - and it’s not completely certain - and about 5.30 to 6.00am the accused and the complainant were in the accused’s residence at Brunel Drive at Modbury Heights.
Part of the evidence in this matter has been led from a Professor Jason White (Honours Bachelor of Science degree in Psychology from the University of Adelaide; PhD in Psychology from the University of Adelaide and post doctoral training in pharmacology in the United States). The evidence given by Professor White is that the assessment of the blood of the complainant in respect of this matter indicates an extremely high reading of alcohol in the range at 6.00am on his estimate of .21% and at 2.30am of approximately .27%. One of the features of the matter is that the evidence concerning the assessment of the complainant’s blood indicates the presence of MDMA, commonly called ‘ecstasy’. The question that arises is the ingestion or not on the relevant evening by the complainant of ecstasy. The evidence given by Professor White indicates that on the reading taken and on the tests that are available it could only be said that the ecstasy may have been taken in the time of the last four to five days prior to 16 and 17 December 2011.
The evidence that has been led in this matter indicates that as at 2.30am on 17 December 2011 the complainant was significantly drunk and affected by alcohol. I refer in particular to Exhibit P10 and the evidence of the friends of the complainant led in this matter, that is Ryan, Jasmine and Kate.
Under the decision of the Court of Criminal Appeal in R v C, CN it is necessary that I fulfil a number of steps required by the provisions of s.34P of the Evidence Act. The first is I must identify the useful uses by which the proposed evidence must be admitted. The second is that I must be positively satisfied that probative value of the evidence for the permissible use substantially outweighs any prejudicial effect it may have on the defendant. In doing so I must have regard to whether the permissible use is and can be kept sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used inadmissibly. Thirdly, if the identified permissible use or uses rely on propensity or disposition as circumstantial evidence of the fact in issue I must be satisfied that the evidence is of strong probative value. Propensity reasoning is not a matter that has been discussed or that has been the subject of submissions before me today and I do not need to consider that matter further. No submission has been put to me that s34P(2)(b) has any application.
Finally, having admitted the evidence, I am required by s.34R(1) of the Evidence Act to identify and explain the purposes for which the evidence may and may not be used.
In argument Mr Powell for the prosecution informed me that the probative value of the evidence is that the complainant ingested ecstasy and it seems that it was something that she ingested that night. In my view that appears to be a logical conclusion, notwithstanding that Professor White would allow the four or five day period that I have previously mentioned.
The second matter is that if the complainant ingested ecstasy on the evening of 16 to 17 December 2011, and if her evidence is accepted by the jury, she was not aware of doing so. However, as Mr Powell argued that does not exclude the possibility that at some stage she did take it and she was conscious of that but simply has no memory of it. That leads to a discussion about her ingestion of ecstasy and one of the possibilities raised on the evidence, having regard to the fact that the complainant was in the company of the accused from at least 2.30am to about 6.00am on 17 December 2011, is that she obtained the ecstasy from the accused. It follows as a matter of argument that any knowledge of the accused about ecstasy or any capacity of the accused to access it and the potential that he may have had ecstasy on this night becomes an element of the prosecution case. That is, that the accused may have supplied the ecstasy to the complainant and the accused may be cross-examined on that topic. No submission to the contrary was made by Mr Crowe.
I am satisfied for the purposes of s.34P(2) that the discreditable conduct evidence may be used in the way in which Mr Powell has enunciated in his argument to me. In my opinion, the question of whether or not there was the ingestion of the ecstasy and, if so, the effect of that ingestion may become important evidential issues in this case.
This is because the evidence given thus far in this hearing of both ingestion and the effect of ecstasy is a matter that will be potentially important both in terms of the case for the defence but also for the purposes of the prosecution case.
One of those matters is, it is submitted, that the accused may have given the ecstasy to the complainant and that, in turn, the accused (who will give evidence) will be cross-examined about that assertion.
Another matter, and this informs the reasoning of Mr Crowe about why he did not object to the evidence, is that the accused may have recognised the effects of the drug and he behaved accordingly having regard to the physical state of the complainant. On one view, this evidence is potentially helpful to the accused.
I note in passing that the accused has been asked previously in the interview with police and he has strenuously denied any assertion that he gave ecstasy to the complainant.
The prejudicial effect that the accused may suffer by the jury being informed that he might have had possession of an ecstasy pill and might have occasionally used ecstasy (but very rarely) in my opinion is substantially outweighed by the probative value of the evidence sought to be led by the prosecution. The evidence led thus far in relation to the ingestion of the ecstasy pill has not been a subject that has been raised in cross-examination of any other witness apart from the complainant. The cross-examination by Mr Crowe of the complainant did not exclude the possibility that the complainant, if she ingested ecstasy on that evening of 16-17 December 2011, may have obtained the ecstasy tablet from the accused.
In my opinion, that is a matter that may have to be considered by the jury in their deliberations. It will ultimately depend upon the case to be put to the jury by and on behalf of the prosecution and the accused.
I am also satisfied that, upon a proper direction being given by me concerning any impermissible use as may be required to be considered under s.34P(3), any impermissible use can be kept separate and distinct from the permissible use and I am satisfied that I am able to give directions to remove any appreciable risk of any evidence being used for that purpose.
I am able to give the jury a direction that they should not and may not reason that merely because an admission has been made by the accused that on a very rare occasion he had ecstasy, he took an ecstasy pill, means that on this occasion he both had possession of ecstasy and he administered the ecstasy to the complainant. I am also able to give a direction to the jury that they may not engage in propensity reasoning; that because the accused was familiar with the use of ecstasy, he was a person more likely to have committed the offence of rape of the complainant.
I have already dealt with s.34P(2)(b) and in my opinion that matter is not apposite in this case.
Finally, I am required to consider s.34R(1) and (2) and I am satisfied, having regard to the matters that I have already set out above, that I am in a position to give a direction to the jury under s.34R(2) on the relevant factual matters, the burden of proof and the matters that are required to be established beyond reasonable doubt. I would have given those directions in any event.
In those circumstances, it is my decision to allow the prosecution to lead the evidence currently disclosed at p.43, lines 28-50 and p.44, lines 1-4 of the annexure to the statement of witness, Melissa Benson dated 7 June 2012. I also make an order under s.34P(5) dispensing with the requirements of s.34P(4).
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