R v KQE
[2022] ACTSC 69
•4 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KQE |
Citation: | [2022] ACTSC 69 |
Hearing Dates: | 13 December 2021, 16, 17, 25 February 2022 |
DecisionDate: | 4 April 2022 |
Before: | McWilliam AJ |
Decision: | See [104] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency Evidence – Pre-trial application – allegations of child sexual offences – where two different complainants – whether sufficient grounds to determine that tendency evidence of a sexual interest in children and of a tendency to act on that interest does not have significant probative value – where one instance occurred when accused was between 12 and 14 years old CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – whether charges on indictment should be severed due to different complainants and different facts in issue CRIMINAL LAW – EVIDENCE – Pre-trial application – admissibility of admission made by accused upon arrest – whether circumstances make it unlikely the truth of admission is adversely affected – where admission vague and no caution had yet been issued by arresting police officer – where accused is a 17-year-old Aboriginal person with an intellectual disability and a history of trauma – whether gratuitous concurrence part of circumstances affecting reliability of admission |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 264, 434B Crimes Act 1914 (Cth) ss 23B, 23F, 23V Evidence Act 2011 (ACT) div 4.4.3, pt 3.4, ss 81, 85, 88, 90, 94, 97, 97A, 101, 137, 138, 165 |
Cases Cited: | Bowles v Western Australia [2011] WASCA 191 DPP v DL [2018] ACTCA 61 Taylor v R [2020] NSWCCA 355DPP v DL [2018] ACTCA 61 |
Texts Cited: | New South Wales, Parliamentary Debates, Legislative Assembly, 25 February 2020, (Mark Speakman, Attorney-General) Stephen Odgers, Uniform Evidence Law (Thomson Reuters,16th ed, 2021) |
Parties: | The Crown KQE (a pseudonym) |
Representation: | Counsel K Marson (Crown) J Cooper (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Accused) | |
File Number(s): | SCC 65 of 2021 SCC 135 of 2021 |
McWilliam AJ:
The accused, who has been given the pseudonym “KQE”, is charged with the following offences, contrary to s 55(1) of the Crimes Act 1900 (ACT) (Crimes Act):
(a)Count 1 (CH2020/857): That between 5 and 14 March 2020, the accused engaged in sexual intercourse with a person under the age of 10 years, a complainant who will be referred to as “SL”.
(b)Count 2 (CH2020/858): Further, that between 5 and 14 March 2020, the accused engaged in sexual intercourse with a person under the age of 10 years (again, SL).
The accused is further charged with the following offence contrary to s 55(2) of the Crimes Act:
(c)Count 3 (CH2021/3263): That on 21 March 2021, the accused engaged in sexual intercourse with a person under the age of 16, a different complainant, who will be referred to as “LT”.
The maximum penalty for an offence under s 55(1) of the Crimes Act is imprisonment for 17 years, and the maximum penalty for an offence under s 55(2) is imprisonment for 14 years.
The interlocutory applications for determination
Six interlocutory applications were listed before the Court for determination. They were as follows:
(1) An application by the accused, dated 14 February 2022, for leave to disclose protected confidence evidence pursuant to Division 4.4.3 of the Evidence Act 2011 (ACT) (Evidence Act), (accused’s protected confidence application).
(2) An application by the accused, dated 16 February 2022, for an intermediary to be appointed for the accused, again, pursuant to s 4AK of the E(MP) Act (accused’s intermediary application).
(3) An application by the Director-General, Community Services Directorate (Director-General), dated 10 December 2021, for the whole of the subpoena to produce addressed to Child and Youth Protection Services dated 17 November 2021 to be set aside, or in the alternative, for the parties to be precluded from accessing the documents (Director-General’s application).
(4) An application by the Crown, dated 10 September 2021, pursuant to s 97 of the Evidence Act, that the Crown be permitted to adduce tendency evidence set out in an amended notice of intention to adduce tendency evidence dated 14 December 2021 (tendency application).
(5) An application by the accused, dated 16 September 2021, seeking:
(a) That the charges in matters SCC 65 of 2021 and SCC 135 of 2021 be the subject of separate trials, pursuant to s 264 of the Crimes Act (severance issue); and
(b) That an alleged admission by the accused, relied upon in the Crown case be excluded, pursuant to Part 3.4 of the Evidence Act (admission issue).
(6) A separate application, dated 7 September 2021, seeks the same order in relation to the severance issue, and is dealt with as part of the application dated 16 September 2021.
The first three of the applications listed above have been either determined or otherwise resolved during the hearing as follows:
(a)The accused’s protected confidence application was withdrawn and formally dismissed by orders made on 25 February 2022.
(b)The accused’s intermediary application was granted by consent, with orders also made on 25 February 2022.
(c)With regard to the Director-General’s application, and following some oral argument, the parties have resolved the substance of that application with production having occurred and the process of redactions currently underway.
These reasons deal with the remaining three applications for determination, being the tendency application, and the accused’s applications of 7 and 16 September 2021 dealing with the severance and admission issues.
The tendency application
The Crown seeks to establish that the accused has a tendency to:
(a)have a sexual interest in female children that are known to him and younger than him (Tendency 1);
(b)act on that sexual interest by engaging in sexual activity with female children known to him and younger than him, when in a residence with them (Tendency 2); and
(c)create opportunities to engage in sexual activity with female children when in a residence with them, by taking them or encouraging them to a part of the residence where they are alone and away from other occupants (Tendency 3).
The Crown’s application seeks that each charged act be cross-admissible in respect of the other counts. The substance of the evidence is set out in the Amended Notice of Intention to Adduce Tendency Evidence dated 14 December 2021 (Amended Tendency Notice). The Tendency Notice amends the Notice of Intention to Adduce Tendency Evidence dated 8 September 2021 (Tendency Notice). The alleged facts in the Amended Tendency Notice in relation to Counts 1 to 3 are summarised as follows:
(a)In relation to Count 1, the accused, aged 17, was staying over at the house of his friend. He was sleeping in the same room as his friend and his friend’s sister, SL (the complainant). The accused woke SL and walked her into the computer room, where he placed his penis into her mouth and ejaculated. SL was seven years old at the time.
(b)In relation to Count 2, on the night following the incident that is the subject of Count 1, the accused again woke SL and took her into the computer room and put his penis in her mouth and ejaculated.
(c)Count 3 concerns conduct that occurred when the accused was 18 and at his father’s house. The accused has a half-brother, “LE”, in that the accused and LE share the same father. LE in turn has a half-sister (with whom he shares a mother), the complainant, LT. LT is not a blood relation of the accused. On 20 March 2021, LE and LT went to visit LE and the accused’s father and stayed the night. On the following evening, 21 March 2021, the accused approached LT where she was sitting on a couch in the lounge room. The accused said to LT, “I need to talk to you”. LT asked if they could talk in the lounge room, but the accused said, “[n]o can we talk outside?”, before grabbing her right arm and pulling her off the couch. The accused grabbed LT’s hips and arm and guided her out of the sliding glass doors towards a detached room in the back yard of the premises. The accused pushed LT into the room and towards the bed. He put his penis in her vagina several times, despite her physical and verbal resistance.
The Amended Tendency Notice also includes a further incident that is not the subject of the present charges (or any charges). The Crown seeks to adduce evidence of the further incident as tendency evidence, on the basis that it falls within the described tendencies as propounded in both the Tendency Notice and Amended Tendency Notice. The substance of this evidence concerns conduct alleged to have occurred between 2014 and 2016, when the accused was aged between 12 and 14. The alleged facts in the Amended Tendency Notice in relation to the further incident is summarised as follows:
(a)LE and LT were living at the house of the accused. LT was aged between 6 and 8 years old at the time. She and her sister, “LI”, were playing with Barbies in a room in the house. The adults at the house were outside.
(b)The accused came into the room where the girls were playing and began touching LT’s chest. At some point he tried to take off her shirt.
(c)The accused then asked LT and LI to go under the bed with him. He pressed his penis against LT’s bum and rubbed her chest. He did the same thing to LI. At some point, LT said “[w]hat are you doing?”. The accused said “[n]othing” and left the room.
(d)LI told LT not to tell anyone what happened.
In respect of Counts 1 and 2, the facts in issue include whether the accused engaged in sexual intercourse with complainant SL. In respect of Count 3, at issue will be the accused’s state of mind, and whether he knew the complainant LT was not at least 16 years of age at the time of the alleged offence.
Relevant provisions
Section 97 of the Evidence Act provides:
(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 the person has or had a tendency… 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…; and
(b) the court thinks the evidence will, either by itself or having regard to other evidence presented… by the party seeking to present the evidence, have significant probative value.
Exceptions are listed in s 97(2) of the Evidence Act, but they are immaterial here.
As the accused’s commission of child sexual offences on each of the counts is a fact in issue, the tendency application attracts the operation of the new s 97A of the Evidence Act. It provides:
Admissibility of tendency evidence in proceedings involving child sexual offences
(1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2) It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97 (1) (b) and section 101 (2):
(a) tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest);
(b) tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.
(4) Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:
(a) the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act ) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act );
(b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;
(c)the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject's age, sex or gender) are different to those of the subject of the alleged sexual interest or act;
(d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;
(e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;
(f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features;
(g) the level of generality of the tendency to which the tendency evidence relates.
(6) In this section:
"child sexual offence"—
(a) means each of the following offences (however described and regardless of when it occurred):
(i) an offence against, or arising under, a territory law involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence;
(ii) an offence against, or arising under, a territory law involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence;
(iii) an offence against, or arising under, a law of the Commonwealth, a State or a foreign country that, if committed in the Territory, would have been an offence of a kind mentioned in subparagraph (i) or (ii); but
Note …
(b) does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.
Section 101(2) of the Evidence Act must also be considered. It relevantly provides:
Tendency evidence about a defendant, … that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
The Crown provided a detailed history of the background to the introduction of s 97A and the amendment to s 101(2), which was a result of the Legislative Assembly implementing reforms recommended following the Royal Commission into Institutional Responses to Child Sexual Assault. They were uniform reforms made by agreement of the Council of Attorneys-General, as such, the ACT legislation is partly informed by reference to explanatory statements made in NSW. It suffices to note here that previously, s 101(2) required that the probative value of the evidence “substantially” outweigh the danger of unfair prejudice to the defendant.
In Taylor v R [2020] NSWCCA 355, Bell P (as his Honour then was) set out a number of principles in respect of the interrelationship between ss 97 and 101(2) of equivalent sections in the Evidence Act 1995 (NSW)at [122]:
…
(xviii) …The amendments to s 101(2) of the Evidence Act have been regarded as reducing the height of the hurdle the Crown must overcome to secure the admission of tendency evidence: see R Weinstein, J Anderson, J Marychurch and J Roy, Uniform Evidence Law in Australia (3rd ed, 2020, LexisNexis) at 528-531;
(xix) the assessment required under s 101(2) involves the trial judge making an evaluative judgment; it is not a discretionary exercise: see, for example, R v Cook [2004] NSWCCA 52 at [38]; and Ford at [63].
…
Although Bell P was in dissent on the particular question of whether the evidence in the case before the NSW Court of Criminal Appeal had significant probative value, what has been extracted above as to s 101(2) is uncontroversial.
Bell P also referred (at [122]) to what constitutes “unfair prejudice” in the NSW equivalent to s 101(2) as amended:
“(xxii) …harm to the interests of the accused that is unfair, because there is a real risk the evidence will be misused by the jury in some unfair way, for example, by providing some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves… .”
That appears to reflect what has been the consistent interpretation of the language of the provision: see R v Bauer [2018] HCA 40; 92 ALJR 846 at [73]. However, in this jurisdiction, the Court of Appeal has commented that what constitutes ‘unfair prejudice’ extends further in DPP v DL [2018] ACTCA 61 (DPP v DL), saying this of s 101(2) at [34]:
We do not agree with the Director’s submission that “unfair prejudice [is restricted to] the real risk that the jury will misuse evidence in some unfair way in the trial”. True it is that the relevant prejudicial effect must arise out of the evidence sought to be adduced in the proceedings and that that evidence is necessarily tendency evidence, it is nevertheless the prejudicial effect it may have on the defendant which is critical. That is a wider criterion. … It may include procedural disadvantage flowing from the admission of that evidence in a given case.
The above interpretation of s 101(2) was prior to the most recent amendments to s 101(2). The language previously referred to “prejudicial effect” rather than “unfair prejudice”. However, the purpose of amending the wording was not intended to result in any change in the operation of the provision, with the object of amendment expressed as being to align the language of s 101(2) with that of s 137 (which refers to the Court’s power to exclude evidence on the basis of unfair prejudice) and remove doubts about interpretation as between those sections. In Stephen Odgers, Uniform Evidence Law (Thomson Reuters,16th ed, 2021) at 834-5 [EA.101.183] (Uniform Evidence Law), the learned authors helpfully include and reference the relevant extracts of the Second Reading Speech of the NSW Attorney-General Mark Speakman of the Evidence Amendment (Tendency and Coincidence) Bill 2020 (New South Wales, Parliamentary Debates, Legislative Assembly, 25 February 2020, (Mark Speakman, Attorney-General)) (NSW Second Reading Speech), when the equivalent amendments were made in NSW.
It is unnecessary to repeat those extracts here. It suffices to note that given that there was not intended to be any change to interpretation of s 101(2) by using the words “unfair prejudice” instead of “prejudicial effect”, the ACT Court of Appeal’s broader interpretation of what constitutes “unfair prejudice” in DPP v DL would still apply.
When considering the application of s 101(2) on the present circumstances, I will interpret the question as whether there is a real risk the jury will construe any cross-admitted evidence, or evidence of the uncharged conduct, so as to give it unfair weight or to reach an unfair conclusion in relation to one charge based on an emotional response to the evidence relating to another. On the arguments of the parties here, it is unnecessary to traverse the broader interpretation of s 101(2) as applied in DPP v DL in this jurisdiction.
The Court must also perform the weighing exercise mandated by s 137 of the Evidence Act. In this case, that does not require a different consideration from the assessment and balancing exercise already required under the amended s 101. Counsel for the accused submits that the onus is on the Crown rather than the accused to establish the evidence has sufficient probative value to outweigh the risk of unfair prejudice, and I accept that the different onus can have significance. However, as will be seen below, on the arguments that have been made in the present application the question of onus does not produce any different result.
The competing arguments on the tendency application
Counsel for the accused does not dispute that the Crown gave reasonable notice in writing, as prescribed by s 97. I am satisfied that reasonable notice was given to the accused.
The issue then becomes whether the evidence has significant probative value: see s 97(1)(b). The test for “significant probative value” is set out in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [41] (Hughes), involving consideration of “two interrelated but separate” matters:
(a)The extent to which the evidence supports the tendency; and
(b)The extent to which the tendency makes more likely the facts making up the charged offence.
When determining the probative value of the evidence, considerations of its credibility and reliability are disregarded: IMM v The Queen [2016] HCA 14; 257 CLR 300 at [52] (IMM).
In this case, the Crown relies on the presumption in s 97A(2) that the evidence has “significant probative value” and thus meet the second requirement under s 97.
The Crown further submits that the probative value of the evidence it seeks to adduce is such that it outweighs any unfair prejudice said to arise: see s 101(2) of the Evidence Act.
Counsel for the accused does not take issue with the application of the presumption as the starting point, but submits that the Court should find there are “sufficient grounds” to determine that the tendency evidence does not have significant probative value, applying s 97A(4) of the Evidence Act. In making that submission, the counsel for the accused does not rely on any of the matters listed in s 97A(5); that is, he does not propound any “exceptional circumstances” which would permit those matters listed to be taken into account in the assessment of “sufficient grounds”.
The accused relies upon the following as constituting “sufficient grounds” for the Court to determine that the tendency evidence does not have significant probative value:
(1) The vulnerability of the accused; and
(2) The fact that there are different issues arising as between Counts 1 and 2, on the one hand, and Count 3 on the other.
As to the first ground, the counsel for the accused submits that the accused is an Aboriginal young person with significant learning limitations, who is also functionally illiterate. This combination of characteristics makes him vulnerable. The probative value of the evidence is less for someone in the position of the accused, because the accused’s circumstances lack the features that would normally make the type of evidence sought to be adduced probative. Examples given are the lack of any background relationship evidence and the lack of the accused ‘grooming’ the complainant or any other child. As a result, the accused submits that the evidence that is sought to be adduced is less significant.
As to the second ground argues, counsel for the accused submits:
(1) The issue with regard to Counts 1 and 2 (involving SL) is whether sexual intercourse occurred, which the accused submits is an objective fact in issue.
(2) For Count 3, the fact in issue is the accused’s state of mind, in that counsel for the accused will contend at trial that the accused believed LT was at least 16 years of age, which is a subjective enquiry.
(3) Accordingly, the evidence in relation to conduct involving SL does not rationally bear on the facts in issue in the charge involving LT, and vice versa.
In this regard, the accused referred the Court to the majority judgment in Stubley v Western Australia [2011] HCA 7; 242 CLR 274, in which evidence of the accused’s tendency “to engage in grave professional misconduct by manipulating his younger, vulnerable, female patients into having sexual contact with him” was found (at [74]) not to rationally affect the likelihood that the complainants did not consent to any such sexual contact.
In addition, for the uncharged conduct involving LT and her sister when she was younger, the accused submits that the accused was between the age of 12 and 14 at the time and as such, doli incapax considerations apply. As I understood the argument, it was that the evidence of the accused’s conduct in establishing a tendency at that young age, does not establish any tendency that the accused may have had at age 17 or 18 and is therefore not sufficiently probative to prove any element for Counts 1, 2 or 3.
The Crown’s response to the argument based on doli incapax was that the use to be made of the tendency evidence was that the accused had a sexual interest in female children that are known to him and younger than him and a tendency to act on that sexual interest. The Crown is not seeking to suggest that at age 12 or 14, the accused had a criminal sexual interest in female children, simply that he had an interest and had a tendency to act on that interest in a particular manner, namely by engaging in sexual activity with them and creating opportunities to engage in that sexual activity. The accused’s understanding of the wrongfulness of that conduct is not part of the tendency evidence, which is directed only to the existence of the interest. Nor does the accused’s understanding impact upon the extent to which the evidence proves a fact in issue.
With regard to s 101(2) of the Evidence Act, counsel for the accused submitted there were two reasons why the evidence cannot be used:
(1) The evidence is emotive and therefore dangerously distracting; and
(2) The procedural unfairness cannot be cured by direction.
I will deal with how those arguments were developed as part of the consideration of s 101(2) below.
Does the evidence have significant probative value (by virtue of the presumption)?
I accept that the evidence set out in the Amended Tendency Notice is evidence of the tendencies asserted. The tendencies for which the Crown contends are readily capable of informing those facts in issue, including both whether the physical conduct occurred as alleged, and whether the accused held a belief on reasonable grounds that the complainant in respect of Count 3 was at least 16 years old.
I also accept that the presumption in s 97A(2) applies. The first two tendencies expressly fall within each of the limbs of the presumption in s 97A(2) set out above. Tendency 3 may be viewed as a sub-category of the tendency to act on an alleged sexual interest in children (Tendency 2), in that part of acting on an interest may involve taking or encouraging the female child to a place where they are alone.
Are there sufficient grounds to displace the presumption that the evidence has significant probative value?
The term “sufficient grounds” is not defined, and, at present, there is little judicial guidance on what the term might constitute. The only case to consider the operation of s 97A in this jurisdiction is R v Garay (No. 2) [2020] ACTSC 331 (Garay (No. 2)). However, in that case Elkaim J was considering whether there were exceptional circumstances warranting the consideration of a number of the matters listed in s 97A(5) (see Garay (No. 2) at [17]-[20]).
The accused does not rely on any of the matters listed in s 97A(5), but they are relevant to the extent that they assist the Court in making an assessment of what constitutes sufficient grounds. The reason identified must be sufficient to displace a statutory presumption. Having regard to the statutory context, and the mischief addressed by the presumption, it is important that consideration of what may constitute a “sufficient ground” does not morph into a general consideration of whether tendency evidence falling within the presumption has significant probative value. That would defeat the point of introducing the presumption.
I do not accept that the accused’s vulnerability, as described by his legal representative, constitutes a sufficient ground to displace the presumption, either individually or in combination with any other reason. Even accepting challenges faced by the accused in the form of any diagnosis of autism or illiteracy, those matters to do not affect evidence that may rationally affect (a) whether the physical conduct occurred as alleged in respect of Counts 1 and 2; and (b) whether the physical conduct occurred as alleged, and if it did, whether the accused believed on reasonable grounds that the complainant was at least 16 years old.
Further, it is not to the point that the evidence in question lacked features in other cases, such as grooming or a position of responsibility. The question of whether there are sufficient grounds to displace a statutory presumption must be answered by reference to the extent to which the evidence supports the tendency specified in the circumstances of this case. It cannot be said that the evidence does not have significant probative value effectively because the accused does not fit a profile ascribed to archetypal offenders for this kind of offending.
The second ground (that is, the difference in issues to be determined by the Court in respect of each Count,) is also not a sufficient ground to displace the presumption. In respect of whether the uncharged act is admissible, that evidence relates to the same complainant the subject of Count 3 (LT). Of itself, the interest in LT as a female child, the acting on such interest and the manner of the accused acting on such interest are all relevant to establishing an affirmative belief in LT’s age. Moreover, they are also relevant as an alternative explanation for any asserted genuine mistake about LT’s age.
The accused’s argument, relying on doli incapax in respect of the uncharged conduct is misplaced, in that it directs attention away from the real question, which is the purpose for which the evidence is sought to be adduced. I accept the submissions of the Crown, articulated at [35] above, as to the reasons why that argument does not succeed.
For the same reason, although Counts 1 and 2 relate to a different complainant to Count 3, the evidence is nevertheless relevant to the likelihood of the accused believing LT was at least 16 years of age. The timing of the evidence the subject of Counts 1 and 2 is a year earlier than Count 3. Proving that a year earlier, the accused had a sexual interest in female children, that he had a tendency to act on that interest with female children known to him, and that he did so via a method which brought about the female child being in a place where she was alone or isolated, are capable of rationally affecting the likelihood of the accused mistaking the complainant involved in Count 3 as being at least 16 years of age.
Conversely, proving each of the said tendencies with respect to the conduct the subject of Count 3 makes it more likely that the incidents the subjects of Counts 1 and 2 occurred as described by the complainant SL, where the issue there is whether or not the conduct occurred.
Accordingly, while I accept the accused’s point that there are different facts in issue, I do not accept that has any consequence in this case for the probative value of the evidence such that the presumption ought not apply. Having considered the arguments raised by the accused, I am not satisfied that sufficient grounds exist to rebut the presumption and determine that the tendency evidence does not have significant probative value.
Does the evidence meet s 101 or attract discretionary considerations under s 137?
I do not consider there to be any danger of “unfair prejudice” to the accused arising from the admission of the evidence. During oral argument, counsel for the accused pointed to memory deficiencies of one of the complainants involved in the uncharged conduct that is said to have occurred between 2014 and 2016, and to data obtained from the Department of Education which the accused suggested calls into question the accuracy of one of the complainants’ evidence that she was at school with the accused. The Crown submits that what the accused sought to make of the Department of Education evidence was incorrect, but I have passed over that debate as the accused concedes that following IMM at [52]-[54], the submission that these matters affected the probative value could not be taken very far.
Once it is accepted that questions of reliability or other evidence do not affect probative value, they ought not to be indirectly introduced through the evaluative process required under ss 101(2) and 137. For the court to embark upon considerations under ss 101 or 137, the court is proceeding from the point of s 97 having been satisfied; that is, the court has already found that the evidence will have significant probative value. The task for the court is then to consider any unfair prejudice that may arise, and make a value judgment, in essence between two competing public interests – the interest in adducing all relevant evidence of guilt and the interest in the accused receiving a fair trial. That is why Bell P made the point in Taylor at [122] that the task was evaluative and not discretionary.
In so describing that task, it is appreciated that the court must apply s 94(4) which applies to part 3.6 of the Evidence Act. It provides:
(4) To remove any doubt, any principle or rule of the common law or equity that prevents or restricts the admissibility of evidence about propensity or similar fact evidence in a proceeding is not relevant when applying this part to tendency evidence or coincidence evidence about a defendant.
In light of that provision, it is worth acknowledging that the nature of the task was discussed in Pfennig v The Queen (1995) 182 CLR 461 at 528-529, where McHugh J referred to what the interests of justice require, and that the comparison was between “the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted”. While treading carefully with regard to common law authorities because of s 94(4), McHugh J’s explanation of the task does not trespass on that provision, because it is not a matter which restricts the admissibility of evidence. Further, the NSW Second Reading Speech, to which I have referred above, itself makes reference to:
[striking] …an even and appropriate balance between the competing interests of ensuring that relevant tendency and coincidence evidence with significant probative value is admissible, and in preventing unfair prejudice to defendants in criminal proceedings.
With regard to the appropriate balance here, the probative value of the tendency evidence is such as to weigh in favour of it being presented to a jury. That is primarily because it can be assumed that the jury will receive careful instructions on the use of the evidence and a direction can be made about matters such as the drawing of inferences and potential unreliability (see s 165 of the Evidence Act) if the trial judge considers it appropriate to do so.
Counsel for the accused separately pointed to unfair prejudice that arose from part of the evidence which referred to choking and death threats. The accused submits that such evidence was unfairly emotive (“dangerously distracting”) and that no direction could cure the unfairness as it would be difficult for the jury to put it out of mind. However, the arguments evolved between the parties at the hearing, and the Crown indicated in oral submissions responding to that concern that those parts of the evidence falling into that category (such as the references to choking and death threats) are not relied upon as the tendency evidence – they were not part of the Amended Tendency Notice – and can be redacted. That minimises the danger of any unfair prejudice arising at all.
A further aspect of unfairness said to arise in relation to Count 3 is that the evidence of the incidents that are Counts 1 and 2 suggests that the accused acted on a sexual interest towards a female child of seven years or younger, for which there cannot be a mistake of age. The accused submits that this evidence would invite the jury to impermissibly dismiss any proper enquiry into the facts about the subjective mind of the accused as to the complainant’s age in Count 3.
I do not accept there is a real risk the evidence will be misused by the jury in the form of impermissible reasoning. The evidence will obviously be adverse to the accused, but it is also very probative, to an extent that outweighs any unfairness that might be described by the accused. Again, such a finding anticipates that the use to be made of the evidence will be the subject of direction by the trial judge.
Consequently, I am not satisfied that any unfair prejudice to the accused has been established, but if I am wrong, I consider it is not sufficient to outweigh the probative value of the tendency evidence sought to be adduced.
The severance issue
The accused has sought a pre-trial ruling on whether Counts 1 and 1 (CH2020/857 and CH2020/858) could be the subject of a separate trial to Count 3 (CC2020/3263), because of the separate complainants.
Section 434B(1) of the Crimes Act permits the joinder of the present charges against the accused, concerning conduct between March 2020 and March 2021, because they are contended to form part of a series of offences of the same or similar character.
Counsel for the accused submits that the joint indictment should be severed pursuant to s 264(2) of the Crimes Act, as it embarrasses the accused’s right to silence in defending his matters. That section provides:
(2) If, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for 1 or more offences charged in an indictment, the court may order a separate trial of a count or counts of the indictment.
In this case, counsel for the accused submits that, should the matters be heard together, his ability to raise the mistake of age defence available on one matter (pursuant to s 55 of the Crimes Act) requires him to waive his right to silence on the other.
The test in s 264(2) of the Crimes Act is whether the accused may be prejudiced or embarrassed in his defence because of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to order separate trials.
A key consideration is whether the charges are related by time or other factors, or if there is a public interest in administrative efficiency and avoiding the repeated trial of the same issues, or subjecting the same witnesses to repeated cross-examination in successive trials: R v Demirok [1976] VR 244 at 254 (Demirok), a case that was cited by Mossop J in R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 (Featherstone). In Featherstone, Mossop J considered the principles applicable in an application to sever certain counts from an indictment as between two co-accused. His Honour said at [16]-[17]:
[16] The starting point is that where offences are related by time or other circumstances then the interests of justice are best served by having them tried together. A convenient starting point is the decision in R v Assim [1966] 2 QB 249 (quoted with approval by the New South Wales Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 at [199]). There, Sachs LJ delivering the judgment of the Court of Criminal Appeal said:
As a general rule, it is of course, no more proper to have tried by the same jury several offenders on charges of committing individual offences that have nothing to do with each other than it is to try before the same jury offences committed by the same person that have nothing to do with each other. Where, however, the matters which constitute the individual offences of the several offenders are, upon the available evidence, so related whether in time or other factors, that the interests of justice are best served by their being tried together, then they can properly be the subject of counts in one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several offenders acted in concert but is not limited to such cases.
[17] The reasons for this are articulated in the decision of R v Demirok [1976] VR 244 at 254:
The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be a very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.
The above passage has been cited in R v Jabal; R v Poulakis [2019] ACTSC 319 at [12], and the decision of Demirok has earlier been applied in R v AI, AD and JR [2013] ACTCA 16at [22]. The parties did not dispute the applicable principles.
Counsel for the accused properly accepts that the question of severance turns largely on the outcome of the tendency application, as the counts in each matter are based on the same statutory provision and would most efficiently be dealt with in a single trial. In light of my findings as to the cross-admissibility of the tendency evidence, the three counts on the indictment should be heard together.
However, I should also briefly record that I am not presently satisfied that there is any potential prejudice or embarrassment to the accused’s defence. The argument about forensic decisions forced to be made by the accused is one faced for every trial where there is more than one count on an indictment. It is also an issue faced where there is only one count – the accused may wish to propound a positive defence and give evidence in support of that, but in doing so, may be exposed to a line of cross-examination on a point on which the accused may otherwise have wished to maintain a right to silence. The fact that the accused is put in a position of making a forensic decision which concerns what is unarguably a fundamental right does not, in my view, amount to embarrassment. Not only does the tendency evidence provide a nexus between the two matters, but there is a strong public interest in joinder to avoid subjecting the same young witnesses to repeated cross-examination in successive trials. Added to this is the public interest in the efficient allocation of judicial resources, consistency of verdicts and finality of litigation. These factors all lead me to conclude that the accused should face a joint trial on the present indictment.
The admission issue
The prosecution and the accused in this matter seek a pre-trial ruling on the admissibility of an alleged admission by the accused in the Crown case, pursuant to Part 3.4 of the Evidence Act.
The nature of the admission
On Wednesday 28 October 2020, DLSC Madders and Senior Constable Vesna Johnson attended an address in Charnwood, being the address associated with the accused’s father. There, the police officers identified and had a conversation with the accused’s father, which resulted in the father phoning the accused to attend the location. The accused approached the location shortly after, at which point Senior Constable Johnson told the accused he was “under arrest for sexual assault”, to which the accused responded “I fucked up good. I know what I did was wrong”. Senior Constable Johnson instructed the accused to stop speaking and informed him she was not going to ask him any questions at that time.
The Crown submits, and it was not disputed, that the words “I fucked up good. I know what I did was wrong” amount to an admission, defined in the Dictionary of the Evidence Act as a previous representation made by a party to the proceeding that is adverse to his interest in the outcome of the proceeding. The admission is relevant to Counts 1 and 2, recalling that the conduct the subject of Count 3 was in March 2021, after the alleged admission was made.
The competing arguments on whether the admission should be excluded
The accused argues that there are four grounds to exclude the admission:
(a)The accused’s circumstances of vulnerability make the truth of the admission unreliable: see s 85 of the Evidence Act.
(b)The admission was not recorded: see s 23V of the Crimes Act 1914 (Cth) (Crimes Act (Cth)).
(c)Including the admission as evidence would cause unfairness in the trial: see s 90 of the Evidence Act.
(d)The balance of public policy favours its exclusion: see s 138 of the Evidence Act.
Developing the first of those grounds, counsel for the accused submits that evidence of the alleged admission should be excluded because it was made in circumstances of vulnerability, such that it cannot be established by the Crown that it is likely the admission was reliable.
In support of the accused’s vulnerability, the accused relies upon a report of registered psychologist, Ms Vanessa Edwige, who diagnosed the accused as having suffered developmental disadvantage and complex developmental trauma. According to that report, the accused has been a victim of long-term exposure to domestic violence and childhood neglect. His behaviour and symptoms met the diagnostic criteria in DSM 5 for Post Traumatic Stress Disorder and Autism Spectrum Disorder. Ms Edwige’s view was that the accused did not understand the abstract notion of his right to be silent.
In addition to vulnerability, the accused relies upon the combination of a lack of a caution, the vagueness of the admission, the time elapsed between the admission and the conduct the subject of Counts 1 and 2, and the risk of “gratuitous concurrence”. By that it was meant a cultural tendency by a vulnerable Aboriginal person, such as the accused, making any statement he perceives necessary (however inculpatory) to appease an authority figure: see Bowles v Western Australia [2011] WASCA 191 at [53], [68]. See also R v Anunga (1976) 11 ALR 412 at 414, approved in R v Clevens (1981) 55 FLR 453 at 458, 460-1 and cited in R v Taylor [1999] ACTSC 47 [20]. As a result of his social disadvantage, the accused may have had learned behaviours in terms of how an Aboriginal person might react to the presence of a law enforcement officer, which is a relevant characteristic for consideration.
In addition, the accused’s youth, limited education, and intellectual disabilities are said to have a bearing on whether the alleged admission was reliable. In light of these characteristics, counsel for the accused argues that the circumstances of the alleged admission are likely to have adversely affected its reliability.
The remaining grounds relate to the lack of a caution. The accused submits that this was a situation where s 23V of the Crimes Act (Cth) applies because there is a prescribed procedure for recording which applied to any person who was being questioned, and that procedure was not complied with here.
Alternatively, the accused relies on s 90 of the Evidence Act to submit that the Court should exercise its discretion pursuant to s 90 to exclude the admission. Three reasons were given:
(1) the vulnerability argument, which meant the admission was unreliable;
(2) the accused’s right to silence was impugned at the time the alleged admission was made; and
(3) the accused would suffer forensic disadvantage because he would have to give evidence to explain the meaning of the admission at trial (relying on R v Leung [2012] NSWSC 1451 at [24]).
Lastly, counsel for the accused submits that the lack of a caution is said to found a discretionary exclusion of the admission pursuant to s 138 of the Evidence Act. That submission relies upon the application of s 23F of the Crimes Act (Cth), which relevantly requires that a person who is under arrest must receive a caution to the effect that the person does not have to say or do anything, but that anything the person does say or do may be used in evidence, before an investigating official starts to question the person.
Counsel for the accused argues that the admission was obtained after the accused had been arrested. Although the accused was not being formally questioned, the conduct of police officers was said to fall within the scope of questioning because of the breadth of the definition of “question”, which includes carrying out an investigation: s 23B(6) of the Crimes Act (Cth).
The Crown argues that there were no circumstances that adversely affected the truth of the admission. In relation to the accused’s vulnerability, the Crown submits the opinion of Ms Edwige is not specifically about the admission the subject of the present application. Her evidence appears to be directed more to the Record of Search warrant in March 2021, which related to Count 3.
Matters related to vulnerability, such as a high probability that the accused did not understand the abstract notion of his right to be silent, have little bearing on the truth of the admission. As to the risk of gratuitous concurrence, the accused was not asked any questions by the police officer. What occurred was a voluntary, positive statement suggesting that the accused had knowledge of the conduct the officer was referring to when she placed him under arrest and an awareness of wrongfulness on his part. In short, the Crown accepts that, as a concept, gratuitous concurrence may exist insofar as it relates to the way Aboriginal people may answer questions from authority figures. But it is not an appropriate label here as that was not the situation faced by the accused. All that the police officer did was place the accused under arrest and name the allegation; her conduct sought no answer from the accused at all.
The Crown further argues that it may be that the vagueness of the admission or the time elapsed are matters that can be explored in cross examination, or that the accused seeks to argue that he was speaking about something other than the allegations of Counts 1 and 2. Such matters and arguments are for the jury to determine; they are not the issue addressed by s 85 of the Evidence Act.
Otherwise, the Crown argues that the arguments based on s 23V of the Crimes Act (Cth), and ss 90 and 138 of the Evidence Act all hinge on an asserted failure by the police officer to caution the accused before he made the admission.
The Crown contends that each of the accused’s arguments must fail because the admission was made immediately upon the accused being arrested, and before the police officer started to question the accused. There was no point earlier when the caution could have been given. A spontaneous utterance on arrest is not a circumstance to which s 23V of the Crimes Act applies, nor is it a circumstance which would merit discretionary exclusion pursuant to s 90 or 138 of the Evidence Act.
Consideration of s 85 of the Evidence Act – whether unreliability as to the truth of the admission has been established
It is important first to properly understand what s 85 of the Evidence Act means, and how it applies. The section is concerned with whether the circumstances of an investigation were such as to produce unreliable evidence: R v Helmout [2000] NSWSC 185 at [41] (Helmout), applying the Court of Criminal Appeal decision R v Rooke (NSWCCA, Barr J, 2 September 1997) (Rooke).
Section 85 is in the following terms:
85 Criminal proceedings—reliability of admissions by defendants
(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—
(a) to, or in the presence of, an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b) as a result of an act of someone else who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
Note Subsection (1) was inserted as a response to the decision of the High Court of in Kelly v The Queen (2004) 218 CLR 216.
(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.
(3) Without limiting the matters that the court may take into account for subsection (2), it must take into account—
(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b) if the admission was made in response to questioning—
(i) the nature of the questions and the way in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
It is not contentious that the alleged admission was made in the presence of Senior Constable Vesna Johnson as an investigating official and is thus conduct to which s 85(1)(a) applies.
The concern on the present application is really the application of s 85(2) of the Evidence Act. In that regard, the Crown bears the onus of establishing admissibility of the admission, on the balance of probabilities: see R v McLaughlan (2008) 218 FLR 158; 185 A Crim R 97 (McLaughlan) at [57] and the authorities there-cited.
The court’s focus is not on whether the admission was true or untrue. It is upon the impact of the circumstances in which the admission was made on the actual reliability of the admission: McLaughlan at [58].
The assessment of whether the truth of the alleged admission has been adversely affected must take into account the mandatory considerations listed in s 85(3). In McLaughlan, Refshauge J held at [67] that “[t]he weight of authority, accordingly, seems to be that the personal and psychological vulnerabilities of the accused”, even when not known or apparent to the investigating official, “are relevant to the issue of whether it is unlikely that the truth of the admission was adversely affected”.
His Honour was there referring to an earlier iteration of the section, which were to an admission made “in the course of official questioning” which was subsequently replaced with the words “to, or in the presence of, an investigation official”. However, what his Honour said applies equally to the provision in its current form.
In R v Lou [2017] ACTSC 127 (Lou), Burns J had cause to deal with admissions said to have been made by the accused when the accused was in a drug-induced psychosis, the effect of which was that he felt compelled to make certain disclosures to police.
His Honour in Lou conducted a careful and comprehensive analysis of the legislative history of s 85. In the course of doing so, his Honour referred to decisions such as McLaughlan and R v Munce [2001] NSWSC 1072 (which expressly adopted what was said in Rooke) before stating at [81]-[82]:
…The focus of the section is on the mechanism by which the State obtains admissions from a person during official questioning…; the inclusion of s 85(3)(a) made it clear that in considering the likely effect of the mechanism used by the State to obtain the admission, the personal characteristics of the confessionalist are to be considered.
The question to be asked, therefore, is not whether the Crown has proven that the truth of the applicant’s confession was not likely to have been adversely affected by his mental illness, but, rather, whether the circumstances of the interviewing process adopted were such … that the admissions made by the applicant, as a person suffering a particular mental illness, were unlikely to have been adversely affected. This would leave the wider question of whether the admissions made were in fact true, as opposed to a figment of the applicant’s psychosis, to be determined by the jury. …
Applying that interpretation of s 85(2) to the situation here, there are personal characteristics that the accused has, which must be taken into account. Again, it may be accepted the accused is a vulnerable Aboriginal person. It may also be accepted that the accused had certain mental health conditions, albeit not known to the police officer. But there was nothing about the circumstances in which the admission was made that adversely affected the reliability of what was said.
No questioning had begun. All that the police officer had said was that the accused was under arrest for sexual assault. There may be reasons why the accused said the words that comprise the alleged admission that are unrelated to any consciousness of guilt of the offences with which the accused has been charged. The argument about gratuitous concurrence is an example. However, to respectfully adopt the language of Mossop J in R v Vickerstaff [2019] ACTSC 205 at [30]:
… Nothing in the circumstances surrounding the making of the statement would cast doubt on the truthfulness of any admission. There is likely to be considerable scope for debate as to what the implied admission is an admission of, but that is not the issue to which the protection in s 85 is addressed.
Does s 23V of the Crimes Act apply?
Section 23V of the Crimes Act does not apply to the admission here. While s 23B defines “question” to include the carrying out of an investigation, that still does not encompass the situation applying to the accused. Contrary to the accused’s submissions, at the point the alleged admission was made, there was no investigation being carried out. The accused submitting to arrest was not conduct that could properly characterised as participation in any investigation. He had only just been arrested and told in general terms what he was being arrested for. I accept that what occurred was as the Crown submitted – a spontaneous utterance given before the officer had any opportunity to issue the caution.
Discretionary considerations – s 90 and 138 of the Evidence Act
Section 90 provides a discretion to the court to exclude evidence of an admission if the evidence is presented by the prosecution and:
…having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
The Crown drew attention to cases such as Foster v The Queen (1993) 66 A Crim R 112, R v Swaffield; Pavic v the Queen (1998) 192 CLR 159 and Em v The Queen [2007] HCA 46; 232 CLR 67 (Em) in stating that the operation of the provision is concerned with nefarious and deceptive conduct by police.
However, I note that the concept of unfairness is to be construed in the widest possible form: Em at [50], [177]. I do have a concern about the accused speaking before being appropriately cautioned. Given that he had been arrested at the point he spoke – without being asked any questions and before being made aware of a right to silence – the statement in question cannot be described as unguarded; rather, the circumstances were such as to be voluntary, but perhaps ignorant. Had he been cautioned, he may well not have said what he said, noting that once cautioned, the accused did later exercise his right to silence.
On the other hand, as the learned authors in Odgers, Uniform Evidence Law point out, in Em, Gleeson CJ and Heydon J saw “no unfairness in the police knowingly taking advantage of the defendant’s mistaken belief that anything he said could not be used in evidence against him”: Odgers, Uniform Evidence Law at 696 [EA.90.60]. The passage being referred to in Em at [77] is as follows:
… The difficulty is that every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute, and a mistake of the kind the appellant was operating under was simply a species of ignorance or stupidity.
That is not to suggest that there is any impropriety on the part of the police officer involved here – she could not have anticipated that the accused would start speaking and say what he did. The statement made by the accused was voluntary and in circumstances where the police conduct was reasonable. The police officer’s response to the alleged admission was plainly designed to ensure that the accused said nothing further before the proper procedure could be followed.
Ultimately, I am of the view that the evidence should not be excluded under s 90. The nature of the alleged admission and the circumstances in which it was made are such that the jury will readily be able to assess and evaluate the reliability of the accused’s words, the meaning of the statement and what significance they give it. They will undoubtedly receive directions, particularly in light of this application and these reasons, such as to ameliorate any unfairness concerns about an accused who speaks before any caution is given and without being informed of the particulars of the charge that was ultimately brought.
As will be apparent from the discussion above, I do not consider s 138 of the Evidence Act applies. However, if I am wrong, I would find that having regard to the seriousness of the charges and the matters raised in the preceding paragraph, the desirability of admitting the evidence outweighs the undesirability of admitting it taking into account the way in which the admission was brought about.
Conclusion
For the above reasons, both the tendency evidence and the admission may be admitted, and the trial ought to proceed on the indictment in its present form.
The Orders of the Court are as follows:
1. In respect of the application in proceeding filed by the Crown on 10 September 2021, the applicant is permitted to adduce tendency evidence as notified in the Amended Notice of Intention to Adduce Tendency Evidence dated 14 December 2021.
2. The applications filed by the accused on 7 September and 16 September 2021 are refused.
3. The statement made by the accused to Senior Constable Vesna Johnston on 28 October 2020 is admissible at the accused’s trial.
4. This judgment is not to be published until the conclusion of the trial.
| I certify that the preceding one hundred and four [104] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice McWilliam. Associate: Date: 4 April 2022 |
3
20
5