R v KH
[2015] ACTSC 339
•4 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KH |
Citation: | [2015] ACTSC 339 |
Hearing Date(s): | 23 October 2015 |
DecisionDate: | 4 November 2015 |
Before: | Burns J |
Decision: | See [26] – [27] |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – engaging in sexual intercourse without consent. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind, namely to exert domination and control through the use of physical force on the complainant – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways, namely to use violence against the complainant and to use violence against the complainant to have her submit to sexual intercourse without her consent – application allowed in part. |
Legislation Cited: | Crimes Act 1900 (ACT) s 92D Evidence Act 2011 (ACT) ss 97, 101, 135, 137 |
Cases Cited: | R v Dunn [2004] NSWCCA 346 R v Lam [2014] ACTSC 49 |
Parties: | The Queen (Crown) KH (Defendant) |
Representation: | Counsel Ms S McMurray (Crown) Mr R Thomas (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Gil-Jones Barker (Defendant) | |
File Number(s): | SCC 7A of 2014; SCC 242 of 2014 |
BURNS J:
The accused is currently awaiting trial with respect to one count contrary to s 92D (1) of the Crimes Act 1900 (ACT) alleging that, between 1 May 1992 and 25 October 1993, he engaged in sexual intercourse with QQ (the complainant) without her consent, knowing that she was not consenting, or being reckless as to whether she was consenting. The trial of the accused is listed to commence on 23 November 2015.
A number of summary offences of assault have also been transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT) as, I understand, related offences to be dealt with under Part 8 of the Supreme Court Act 1933 (ACT).
On or about 18 August 2014, the Crown served on the accused a Notice of Intention to Adduce Tendency Evidence (the notice), setting out 11 incidents the Crown proposes leading at the trial of the accused to prove that:
(a)the accused had a tendency to have a particular state of mind, namely:
(i)to exert domination and control through the use of physical force on QQ; and
(b)the accused had a tendency to act in particular ways, namely:
(i)to use violence towards QQ; and
(ii)to use violence towards QQ to have her submit to sexual intercourse without her consent.
By an application dated 19 August 2014, the Crown seeks orders that it be permitted to adduce evidence as outlined in incidents 1 to 11 in the notice as tendency evidence at the trial of the accused pursuant to s 97 of the Evidence Act 2011 (ACT). In the alternative, the Crown would propose leading this evidence as context or relationship evidence.
By separate applications dated 20 August 2014, the Crown also seeks orders that certain witnesses called at the trial be permitted to give their evidence by audiovisual link from a place outside the courtroom and that a support person be present with the witness when they give evidence. Whilst these applications were lodged in this Court in August 2014, they did not come before me for hearing until 23 October 2015. The reason for this delay, as I understand it, was that the accused was awaiting trial in Victoria with respect to charges arising out of alleged events described in some of the incidents in the notice. Those charges were, however, resolved on 17 April 2015 in a manner to which I will refer later in these reasons. It is therefore regrettable that the Crown did not seek to bring on the present applications at an earlier time.
It is convenient to deal first with the application to lead tendency evidence, as this potentially has an impact on the applications concerning the witnesses.
The tendency application
The incidents that the Crown proposes leading as tendency evidence, as set out in the notice, are:
Incident 1 (uncharged)
(a)Substance of the evidence:
During 1991, the accused went to bed in the master bedroom at his flower farm. During that evening [QQ] heard a noise from the bedroom and saw the accused punching the headboard of the bed. [QQ] went to bed in the spare room so as not to wake the accused. During the night the accused entered the spare bedroom and turned on the light. He took hold of her hair and dragged her out of bed, onto the floor and into the children’s bedroom to show them ’their slut of a mother’. He then dragged her up the hallway into the master bedroom where he pushed her onto the bed saying to [QQ] this is ’where you belong’. The accused still had hold of her hair and pushed her head back. He then inserted his penis into her vagina and had violent sexual intercourse with her. He kept saying to her ‘you always upset me bitch’. Afterwards he paced around the room saying ’I can’t believe you do this’.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
In 1991 in Toorloo Arm, Victoria
...
Incident 2 (uncharged)
(a)Substance of the evidence:
One evening in 1991, [QQ] was sleep in [LM’s] bed with her, at the accused’s farm. During the night, the accused entered the bedroom and turned on the light. He grabbed [QQ] by her hair and dragged her out of the bed over [LM]. He dragged her into the other children’s bedroom and was screaming. The accused then dragged [QQ] to the master bedroom. The next morning [QQ] had a black eye.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
During 1991 in Toorloo Arm, Victoria
...
Incident 3 (uncharged)
(a)Substance of the evidence:
During 1991, [QQ] was asleep in a bed with [MN] in a bedroom at the accused’s farm. During the night the accused entered the bedroom, turned on the light, took hold of [QQ’s] hair and dragged her out of bed. He also hit her across the face with her hands. The accused dragged [QQ] into the bedroom where [another child, LM] was sleeping and yelled, ‘look at your slut of a mother’. The accused then dragged [QQ] into the master bedroom.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
During 1991 in Toorloo Arm, Victoria.
...
Incident 4 (uncharged)
(a)Substance of the evidence:
Between 1991 and early 1992 the accused was out on a tractor. He then came inside, approached [QQ] and punched her to the face. She lost consciousness, but when she woke, the accused was back out on the tractor. [QQ] had a sore jaw and a swollen bruised eye as a result of being hit by the accused.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between December 1991 and early 1992 at Toorloo Arm in Victoria.
...
Incident 5 (uncharged)
(a)Substance of the evidence:
Between 1992 and 1993, the accused and [QQ] were arguing in their residence in Palmerston, ACT. The accused dragged [QQ] by the hair through the house.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1992 and 1993 at [redacted], Palmerston, ACT
...
Incident 6 (Count 1 and summary charges CC2013/7355 and CC2013/7356)
(a)Substance of the evidence:
Between 1992 and 1993, [QQ] walked into the living room of the residence in Palmerston, ACT. She saw her son, [KC], standing in the middle of the lounge room with his pants around his ankles. The accused was also in the room. [QQ] asked the accused what was going on. He then pushed her into [KC’s] bedroom and onto the bed, breaking it. He then began hitting her.
Later that evening the accused and [QQ] were in bed together in the master bedroom with the light off. The accused began hitting the complainant to the face with this hand. She rolled away from him so that he could not strike her. The accused moved behind her and inserted his penis into her vagina from behind.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1992 and 1993 at [redacted], Palmerston, ACT
...
Incident 7 (uncharged)
(a)Substance of the evidence:
Between 1992 and 1993, the accused, [QQ] and the children were visiting the accused’s farm in Victoria. [QQ] was in the kitchen unpacking the dishwasher. The accused was drinking and stating that he couldn’t go into town because people thought he was a ’nutter’. He then picked up a knife and pushed [QQ] into the kitchen bench. He ran the knife across her throat asking if she thought he was a ‘nutter’.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1992 and 1993 in Toorloo Arm Victoria
...
Incident 8 (Summary charge – CC2013/7358)
(a)Substance of the evidence:
Between 1992 in 1993, [QQ] was completing deliveries for the accused’s flower business in Canberra. She drove past a doctor’s surgery and went in to see if she could get something to help her sleep. When she returned to work the accused was angry with her for taking longer than expected. He slapped her across the face and tipped the sleeping pill she had obtained down the sink.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1992 and 1993 in Canberra, ACT
...
Incident 9 (uncharged)
(a)Substance of the evidence:
Between 1991 and 1993, the accused, [QQ] and the children were on holidays in Coffs Harbour and were staying in a motel. The accused and [QQ} argued. During the argument the accused held [QQ] down on the floor and choked her. He also dragged her by the hair.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1991 and 1993 in Coffs Harbour, NSW
...
Incident 10 (uncharged)
(a)Substance of the evidence:
One evening between 1992 and 1993 the accused and [QQ] were arguing in the hallway near [KC’s] bedroom at Palmerston, Canberra. The accused held [QQ’s] forehead and banged it against the architrave, only stopping when [QQ] fell to the floor and passed out. When [QQ] regained consciousness, [KC] was sitting next to her, crying and patting her on the arm. The accused unzipped his jeans and let them fall to his ankles and then pulled his underwear down. He grabbed the back of [KC’s] top. He then pulled down the complainant’s jeans and underwear and inserted his penis into her vagina thrusting it in and out until he ejaculated. The accused was holding on to [KC] throughout this and [KC] was crying and had urinated himself. The accused then ran his hand through the puddle on the floor and rubbed it all over [KC’s] face.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1992 and 1993 at [redacted] Palmerston, ACT.
...
Incident 11 (Summary charge – CC2013/7359)
(a)Substance of the evidence:
In October 1993, the accused and [QQ] woke up at about 5.30 am and got dressed. During this time the accused spat in [QQ’s] face and kicked her. Then he went and got a glass of water. When he returned, [QQ] put her hand out for the glass of water and the accused poured it over her head calling her an ungrateful slut.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
In October 1993 at [redacted], Palmerston, ACT.
The following provisions of the Evidence Act 2011 (ACT) are relevant:
97The 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.
101Further 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.
In R v Lam [2014] ACTSC 49, Refshauge J, after reviewing numerous authorities concerning the operation of the tendency rule, summarised the principles at [40] as follows:
I summarise the effect of the relevant provisions of the Evidence Act and the consideration of them by the authorities as follows:
· Evidence that the accused had a tendency to act in a particular way, or to have a particular state of mind, can be admissible to prove that he had that tendency, but only if the Court thinks that that evidence will have “significant probative value”: s 97(1)(b).
· An application to the court to permit such evidence to be led should carefully articulate the tendency that the evidence is said to prove.
· In approaching an application for permission to adduce tendency evidence the court must assess the extent to which the evidence has the capacity rationally to affect the probability of the fact in issue and then to assess and predict the probative value that the jury might ascribe to the evidence.
· Accordingly, it is important to identify the use to which the proposed evidence is to be put and the issue which it addresses.
· In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the Crown will be drawn.
· It must also be assessed having regard to all the evidence in the case.
· Tendency evidence has “significant probative value” if it has more than “mere relevance”, or if it is “important” or “of consequence”, though it need not have a “substantial” degree of relevance.
· As a general rule, the greater the degree of specificity with which the similarities of the evidence can be identified, the more likely is the evidence to be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind.
· Nevertheless, admissible tendency evidence is not necessarily based on similarities and there is no requirement for the relevant conduct to be distinctive.
· Tendency evidence and coincidence evidence may not be used “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”: s 101(2).
· “The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to ‘some irrational, emotional or illogical response’ or ‘giving the evidence more weight than it truly deserves’”.
· There may be discretionary reasons for excluding or limiting the evidence such as where it is overwhelming or otherwise under ss 135, 136 or 137 of the Evidence Act.
In the present case, there is no suggestion that any admissions have been formally made, or are to be made, by the accused regarding the allegations forming the basis of the one count on the indictment. As such, it must be assumed that everything is in issue. The elements of the offence with which the accused is charged are:
(a)that he engaged in sexual intercourse with the complainant;
(b)that the complainant did not consent to engaging in sexual intercourse; and
(c)that he either knew the complainant was not consenting, or was reckless as to whether she was consenting.
The accused opposed the applications by the Crown to lead tendency evidence and/or context or relationship evidence. His first submission was that the proposal by the Crown to lead evidence of events said to have occurred in Victoria was an abuse of process because the accused had been charged with offences relating to those events in Victoria, which were dealt with in the County Court of Victoria in April this year. In that regard, he referred me to the decision of Gallop J in R v Tilley (1992) 109 FLR 155, where a stay of proceedings was granted in circumstances where the prosecution proposed proceeding with charges against an accused contrary to an agreement made some years before, when the accused was still a juvenile, about how the allegations against him would be dealt with. I am satisfied that there is no merit in this submission, but, in order to explain my reasons, it is necessary to say something briefly about the proceedings in the County Court of Victoria.
An affidavit of Trevor Joseph Barker, the accused’s solicitor, sworn on 22 October 2015, attested to the fact that the accused was committed for trial in Victoria on 16 April 2014 with respect to six offences. Subsequently, an indictment was filed alleging five offences of assault, three offences of intentionally causing injury and three offences of recklessly causing injury. On 17 April 2015, after negotiations between the accused’s legal representatives and the Victorian Office of Public Prosecutions, the Crown filed a fresh indictment containing one count of recklessly causing injury. The accused entered a plea of guilty to that count. On the basis of that plea, the Crown did not proceed with the remaining charges on the earlier indictment. I accept for present purposes that the evidence which the Crown now proposes adducing as tendency or context evidence includes evidence which was the basis of the charges in Victoria, including the charge to which the accused pleaded guilty, and the charges not proceeded with by the prosecution in Victoria.
The circumstances of the proceedings in Victoria, as revealed in this affidavit, provide no grounds for rejecting the evidence which the Crown now proposes to lead, providing that the other requirements for its admissibility are met. There is no suggestion that the Crown or other prosecution authorities in the ACT held out to the accused that evidence of the alleged events in Victoria would not be led in the accused’s trials in the ACT were he to plead guilty to the one charge of recklessly causing injury in the County Court. On that basis alone, the decision in R v Tilley is distinguishable. It is also relevant to note that the decision in Tilley was distinguished in the decision of the NSW Court of Criminal Appeal in R v Dunn [2004] NSWCCA 346 (Handley JA, James and Howie JJ), where it was described as turning on its own particular facts and not creating any precedent. There is no relevant unfairness to the accused in allowing evidence of the alleged events in Victoria to be led in his trial in the ACT, nor can it be said that such a course involves an abuse of process by the Crown.
The second submission made by the accused was that the prejudicial effect of the proposed evidence exceeded its probative value, and as such the evidence should not be led as either tendency evidence or context/relationship evidence, or alternatively it should be excluded pursuant to be discretionary exclusion provisions of the Evidence Act 2011. I will deal with those submissions below.
I am satisfied that the Crown should be allowed to lead evidence of Incidents 1 and 10 as tendency evidence to establish that the accused had a tendency to use violence towards the complainant to have her submit to sexual intercourse without her consent. The caveat to this ruling is that the Crown will not be entitled to lead evidence with respect to Incident 10 concerning the child KC urinating himself, or the accused running his hand through the puddle of urine and rubbing it on KC’s face. I am satisfied that the evidence which I propose admitting has significant probative value as it is evidence of similar acts said to have been committed by the accused with respect to the same complainant within a comparatively short period of time before the events the subject of the charge. If the jury were to accept that evidence, they would be entitled to find that the accused had a tendency to use violence towards the complainant in order to have her submit to sexual intercourse with the accused without her consent. A finding by the jury that the accused possessed such a tendency would be relevant to them determining whether the events the subject of the charge took place, and, if so, whether the accused knew that the complainant was not consenting to sexual intercourse or was reckless as to whether she was consenting.
I am also satisfied that the probative value of this evidence substantially outweighs any prejudicial effect it may have on the accused. The probative value of the evidence is very high. The risk of admitting this evidence is that the jury may adopt an impermissible reasoning process based purely on propensity or character. The risk of the jury misusing the evidence in this way can be minimised to an acceptable level by appropriate directions.
I have excluded the proposed evidence concerning KC in Incident 10, because the probative value of that evidence was minimal, whereas its prejudicial effect was likely to be significant.
The accused submitted that the evidence of alleged events in Victoria should be excluded on discretionary grounds, as to admit the evidence would require carefully crafted jury directions about those matters and, in particular, the proceedings in the County Court. For my part, I do not perceive any problem about directing the jury as to the alleged events in Victoria, nor do I see a necessity for the proceedings in the County Court to be canvassed at all. For these reasons, the evidence should not be excluded pursuant to the provisions of s 135 or s 137 of the Evidence Act 2011.
I am not satisfied that the evidence which the Crown proposes leading in relation to Incidents 2, 3, 4, 5, 7, 8, 9 and 11 have significant probative value as tendency evidence, as none of these incidents are alleged to have involved sexual offending by the accused. I understand that the Crown would like to assert that the accused had a tendency to exert domination and control over the complainant through the use of physical force on her, which may or may not be true. Such a tendency is, in my opinion, too remote from the issues with respect to the single charge against the accused to justify permitting the Crown to rely upon that tendency, or the evidence of these incidents as tendency evidence.
I am, however, satisfied that the Crown should be entitled to lead evidence of Incidents 2, 3, 4, 5, 7, and 9 as context or relationship evidence. Evidence of Incidents 1 and 10 (with the same caveat as above) would also be admissible on this basis. This evidence would allow the jury, if accepted, to better understand the relationship between the accused and the complainant. If this evidence were accepted, the jury could use it to assist in understanding why the complainant may not have made an immediate complaint with respect to the event the subject of the charge. Without such evidence, a jury might also consider the complainant’s evidence about the events the subject of the charge, as an isolated event, to be unlikely. The probative value of this evidence for that limited purpose is high, and exceeds the potential prejudicial effect of the evidence on the jury. The potential prejudicial effect of the evidence may also be minimised by appropriate directions to the jury.
I am not satisfied that the events described in Incidents 8 and 11 should be admitted as context or relationship evidence. These incidents lack the probative force of the other incidents which I would propose allowing the Crown to lead as context or relationship evidence.
The applications concerning witnesses
The Crown seeks an order that a witness, MN, give her evidence by audiovisual link from a place outside the courtroom. It also seeks an order that the witness be supported while giving her evidence by a support person. The reason for the application is that MN is a complainant in another trial of the accused (SCC 7B of 2014) in which he is accused of sexual offences against her. That trial is due to commence on 7 December 2015. The accused did not oppose the order sought by the Crown, and I am satisfied that it is appropriate to make the order. I am satisfied that I have the power to make the order pursuant to s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). I am further satisfied that the necessary facilities are available and that the evidence can be more conveniently given from a remote location and that the making of the order is not unfair to the accused.
With respect to the second part of the Crown’s application, that the witness be permitted to have a support person present with her in the remote witness room while she gives evidence, I can find nothing in the Evidence (Miscellaneous Provisions) Act 1991 which would permit me to make such an order. As the witness is neither the complainant nor a similar act witness in the trial due to commence on 23 November 2015, the provisions of s 38E of the Evidence (Miscellaneous Provisions) Act 1991 do not apply. At the present time, I will not make the order sought by the Crown, but I will permit the Crown to renew its application at the commencement of the trial to allow it to put further argument before the Court on this issue.
The Crown seeks similar orders with respect to another witness, LM, who will give evidence at the trial. The accused does not oppose the making of the orders. LM will be a complainant with respect to charges against the accused in the trial commencing on 7 December 2015, but she is not, of course, a complainant with respect to the present trial. I will make the order permitting the witness to give evidence from a remote witness room, and for the same reasons that I made the order with respect to MN. For the same reasons that I gave with respect to MN, I will not presently make an order allowing her to have a support person present during the giving of her evidence, but the Crown will be permitted to renew its application at the commencement of the trial.
The final Crown application is that the witness, KC, be permitted to give evidence via audiovisual link from a remote witness room, and that he be supported by a support person while he gives his evidence. The accused does not oppose the making of these orders. The witness is not a complainant with respect to the present trial, but is a complainant in the trial commencing on 7 December 2015. To the extent that it is proposed that KC will give evidence in the present trial concerning Incident 10, he is a “similar act witness” as defined in s 37 of the Evidence (Miscellaneous Provisions) Act 1991 and, by virtue of s 38E, he has an entitlement to have a support person present while he gives his evidence. Similarly, by virtue of s 43 of that Act, the witness is obliged to give evidence by audiovisual link unless the Court orders otherwise. For this reason, it is not necessary to make formal orders concerning KC.
Orders
I make the following formal orders/directions:
(a)the Crown will be permitted to lead evidence of Incidents 1 and 10 (subject to these reasons) as set out in the notice as evidence that the accused had a tendency to use violence towards the complainant in order to have her submit to sexual intercourse without her consent;
(b)the Crown will be permitted to lead evidence of Incidents 1, 2, 3, 4, 5, 7, 9 and 10 (subject to these reasons) as set out in the notice as context/relationship evidence;
(c)the Crown will not be permitted to lead evidence of Incidents 8 and 11 as either tendency evidence or context/relationship evidence; and
(d)the witnesses LM and MN will be permitted to give evidence by audiovisual link from a remote witness room.
In light of the upcoming trials, I also make an order that publication of this decision be prohibited until a further order of the Court.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 4 November 2015 |