R v Malone

[2022] ACTSC 23

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Malone
Citation:	[2022] ACTSC 23
Hearing Date:	11 February 2022
Decision Date:	15 February 2022
Before:	Elkaim ACJ
Decision:	See [37]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – application to adduce tendency evidence – probative value – prejudice to the
defendant
Legislation Cited:	Evidence Act 2011 (ACT) ss 55, 97, 101, 137
Cases Cited:	IMM v The Queen [2016] HCA 14; 257 CLR 300 Hughes v The Queen [2017] HCA 20; 263 CLR 338 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370
Parties:	The Queen (Crown) Kevin Malone (Accused)
Representation:	Counsel
S Jerome (Crown)
M Jones SC (Accused)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Accused)
File Numbers:	SCC 211 of 2021
SCC 212 of 2021
ELKAIM ACJ:
1․	The accused is facing trial on an indictment dated 22 December 2021. There are three
counts. Counts 1 and 2 allege sexual intercourse against a female child under the age
of 10 years. I will refer to this complainant as AA. The third count alleges an act of
indecency upon a teenage female, who I will refer to as BB.
2․	On 4 February 2022 the Crown filed an application in proceeding seeking permission to
adduce tendency evidence as described in a Notice filed on 23 December 2021. This
application is supported by an affidavit of Mr Danyon O’Rourke affirmed on 22 December
2021 and an affidavit of Mr Colin Balog affirmed on 28 January 2022.
3․	No issue was taken as to the provision of reasonable notice of the application.
4․	On 7 February 2022 the accused filed an application in proceeding to sever the counts
involving AA from the count concerning BB. This application is supported by an affidavit
of Ms Georgia Le Couteur sworn on 7 February 2022.
5․	Two matters were agreed by the parties:

(a)	The Crown wishes to rely on two separate tendencies. The respondent did not oppose the orders sought in respect of Tendency One as described in the Notice.
(b)	The tendency application should be heard first because its result would dictate the result of the severance application. If the tendency application succeeded, the severance application would be dismissed. If the tendency application failed, the severance application would not be opposed.

6․ Tendency Two was stated as follows:

To stupefy an unaccompanied, young female and engage in sexual activity with the young female, at his house, for his own sexual gratification.

7․	The tendency allegation relates to incidents 3 and 4 as described in the Notice. Incident
3 alleges that AA, then aged about six or seven years, was being minded at the
accused’s home. The accused is alleged to have given AA a glass of lemonade which
she drank and then, within about 20 minutes, fell asleep on the accused’s bed. She
alleges that the accused ‘spooned’ her and inserted his penis into her anus.
8․	Incident 4 says that BB, aged 17 or 18 years, went to the accused’s house after a fight
with her mother. She had already consumed some marijuana. At the accused’s house
she requested more marijuana which he provided, together with a soft drink. Within about
an hour BB says she began to feel tired and she fell asleep. When she awoke the
accused was in a ‘spooning’ stance and she found that her jeans had been undone and lowered. The accused had his “hands down my pants”. The accused apologised both
immediately and apparently at a later time at BB’s house.
9․	The application was opposed on four different cascading points. I will deal with each in
turn.
10․	Firstly it was said that the evidence in respect of both complainant’s was simply not
relevant. The evidence was not sufficiently probative to meet the relevance test in s 55
of the Evidence Act 2011 (ACT). I was referred to IMM v The Queen [2016] HCA 14; 257
CLR 300 at [43]:

The enquiry for the purposes of s 55 is whether the evidence is capable of the effect described at all. The enquiry for the purposes of determining the probative value of evidence is as to the extent of that possible effect.

11․	The accused submitted that the evidence both in relation to AA and BB was so vague as
to not be probative. The Crown reminded me that I must take the evidence at its highest.
But for this assumption the evidence may have faced difficulties in being seen a
probative. This is more so in respect of BB.
12․	I think the accounts given by AA in her record of interview, while perhaps open to attack
for inconsistency (in particular with the complaint evidence) are nevertheless
straightforward. As to the spiking she says in plain terms:

I had a drink of lemonade and within 20 minutes I was on the ground just falling in and out of, um, consciousness, you could say. (Q106)

13․	BB told the police that she had been smoking marijuana at home but after an argument
with her mother felt the need to leave the home. She rode her bicycle to the accused’s
house. She said that:

… I had been smoking marijuana, so I went there just to have a couple of drinks, and some

cones, and just sleep somewhere, so get out of the house with mum and that. (Record of

Interview Q14).

14․	At Q109 BB said that, on occasion, she used marijuana to help her sleep. The difference
this time, she said, was that she “just got tired straight away…” (Q111).
15․	The accused submitted the strength of the marijuana was unknown so that any assertion
from BB that she had an abnormal reaction to the marijuana could not be substantiated.
Further any suggestion that whatever she may have had to drink could have been
‘spiked’ was simply speculation without a trace of substance.
16․	It is important to distinguish, in respect of BB, the act of indecency from the alleged act
of stupefying the victim. Whether or not BB was given any substance causing her to
become drowsy will not dictate the success or otherwise of the prosecution. If she woke up, having fallen asleep for any reason, to find that the accused had undone her jeans
and placed his hands on her hips, then the elements of the offence will still be present.
17․	As I have already noted the accused is said to have apologised for his actions.
18․	At this stage it is important for me to note that the Crown case is not that the spiking was
necessarily caused through the drink consumed by BB. That is certainly the assertion in
respect of AA.
19․	However the Crown said that the provision of marijuana by the accused could equally
amount to the act of stupefying BB. It did not matter, submitted the Crown, that BB had
requested the marijuana. The fact that he gave it to her and then took advantage of her
was sufficient.
20․	I think it is appalling that the accused gave marijuana to BB. Nevertheless the real issue
is whether, notwithstanding the request, the accused gave the marijuana to BB with the
intent that it caused her to fall asleep so that he could take advantage of her.
21․	With considerable hesitation I think the provision of the marijuana, notwithstanding BB’s
request, is probative. Even if she requested the drug, his provision of it to her could have
been with the contemplation that it would enable him to commit the alleged act of
indecency.
22․	The next point taken was that s 97 of the Evidence Act required the probative value to
be significant. It was submitted that the probative value of the evidence was so weak as
to not meet this threshold. I was again referred to IMM, this time at [46]:

The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.

23․ In Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [153] and [154], Nettle J said:

The “probative value” of evidence means the extent to which the evidence can rationally

affect the assessment of the probability of the existence of a fact in issue or, put differently,

the degree of its relevance….

Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence. Without more, it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence, or that the complainant is telling the truth as to the commission of the offence.

24․	If it is accepted that the provision of the drink to AA and the provision of marijuana and/or
a drink to BB was probative then I think it must follow that the probative value was
significant. The ‘something more’ referred to by Nettle J is the provision, whether by way
of a drink or marijuana, to a female in order to facilitate a sexual assault.
25․	The third point of objection taken by the accused arises from s 101 of the Evidence Act
which requires that the “probative value of the evidence outweighs the danger of unfair
prejudice to the defendant”.
26․	The accused submitted, and this was not challenged by the Crown, that the allegation
against BB was at the “low end” of objective seriousness within the broad scope of an
indecent assault.
27․	A jury considering this charge would be immediately prejudiced against BB having heard
the evidence relating to AA, in particular considering the tender age of AA when the
offences were allegedly committed and the nature of the offences, including penetration
of her anus.
28․	I was referred to Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 at [63]:

The reference to prejudicial effect is a reference to unfair prejudice; the risk that the fact- finder will misuse the evidence in an unfair way giving it more weight than it logically deserves or by responding emotionally to the inflammatory content of the evidence, where the risk cannot be cured by direction.

29․	In my view this objection has been validly established. A jury hearing the evidence
concerning AA, with all of its emotive content involving the rape of a child is I think highly
and unfairly prejudicial. I do not think directions from a judge to exclude any prejudicial
bias would necessarily succeed.
30․	The evidence is to be compared with the difference in the severity of the respective
offending against each complainant, the age difference of the complainants and the
weakness (although having achieved a probative value when seen at its highest) of the
evidence in respect of the stupefying of BB. It is also relevant that the act of stupefying
may have occurred by different means. This impacts upon the allegation of a similar
method being adopted by the accused.
31․	It follows that the tendency application in respect of Tendency Two must fail. I should
add that I have reached this conclusion notwithstanding the amendments to s 101 which
favour the Crown.
32․	Although not necessary to consider, the fourth point of objection was that the evidence
should be excluded under s 137 of the Evidence Act. It was submitted that the discretion
to exclude the evidence under this section is broader than that contemplated by s 101.
33․	In IMM this was said at [171]:

In truth, however, the special dangers which warrant the exclusion of tendency evidence under s 97 unless it is judged to be of significant probative value are a corollary of the more general statutory precept that warrants the exclusion under s 137 of evidence of which the probative value is judged to be outweighed by the danger of unfair prejudice. In each case, the concern is to ensure that evidence which might induce a jury to reason impermissibly to a conclusion of guilt is excluded unless the evidence is conceived to be of such probative value that, despite its prejudicial effect, it is just to admit it. In each case the assessment of the probative value that it would be open to the jury to attribute to the evidence is the essence of the admissibility or exclusion of the evidence. And thus, in each case, because both credibility and reliability are logically critical to the assessment of the probative value open

to be attributed to evidence, logic and fairness dictate a construction of the legislation –

consistent with the plain and ordinary meaning of the provisions and the extrinsic materials

– which permits of the consideration of both credibility and reliability in the assessment of

probative value.

34․	I am not convinced that s 137 permits evidence to be excluded that would not have been
excluded under s 97. However I do think that evidence excluded under s 97, as I have
done, will necessarily be excluded under s 137.
35․	Therefore I also refuse the tendency application on the basis of s 137.
36․	Having reached the above conclusions, it follows that the application for severance, in
accordance with the agreement reached between the parties, is successful.
37․	I make the following orders:

(1)	The Crown is permitted to adduce tendency evidence as set out in Tendency
One in the Notice of Intention to Adduce Tendency Evidence filed on 23
December 2021.
(2)	The Crown is not permitted to adduce tendency evidence as set out in
Tendency Two of the above Notice.
(3)	Count 3 of the indictment filed on 22 December 2021 is severed from Counts
1 and 2.

I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim

Associate: Lydia Corcoran

Date: 7 November 2023