R v Masina
[2020] ACTSC 89
•17 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Masina |
Citation: | [2020] ACTSC 89 |
Hearing Date: | 15 April 2020 |
DecisionDate: | 17 April 2020 |
Before: | Elkaim J |
Decision: | See [22] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – Application to adduce tendency evidence –whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect – commonality between incident and alleged offences – Crown case to be taken at its highest |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54(1), 60(1) |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 263 CLR 338 |
Parties: | The Queen (Applicant) Alofa Masina (Respondent) |
Representation: | Counsel S Jerome (Applicant) S McLaughlin (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Legal Aid ACT (Respondent) | |
File Numbers: | SCC 196 of 2019 |
ELKAIM J:
The accused is charged with the following offences:
(a)Three counts of act of indecency without consent, contrary to s 60(1) of the Crimes Act 1900 (ACT) (the Crimes Act); and
(b)One count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.
On 20 February 2020 the Crown filed an Application in Proceeding requesting leave to adduce tendency evidence in accordance with a Notice of Intention filed on 14 February 2020. The application is supported by the affidavit of Mr Bwalya Chifuntwe affirmed on 14 February 2020.
Sections 97 and 101 of the Evidence Act 2011 (ACT) deal with the ‘tendency rule’. Section 97(1) provides that:
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 [certain conditions are met].
Section 101 operates to impose further restrictions on the use of tendency evidence in criminal proceedings.
Section 97(1) requires that reasonable notice of a party’s intention to present tendency evidence is given to the other party. There is no dispute that reasonable notice was given in this matter.
Section 97(1) also requires that the evidence sought to be adduced has “significant probative value”. The question of whether evidence is sufficiently probative has been the subject of significant judicial authority.
Although there are four counts in the indictment, they all form part of the same incident said to have occurred on, or about, 2 February 2018.
Count 1 alleges an act of indecency in which the accused kissed the complainant on her mouth. The Crown says that the apparent consent of the complainant was negated by her being under the impression that the act was a necessary part of a prayer of deliverance.
Count 2 alleges that the accused performed oral sex on the complainant. Again, it is alleged that her apparent consent was negated for the same reasons.
Count 3 is an act of indecency said to have been constituted by the accused pushing the complainant’s head towards his penis.
Count 4 is essentially the same as Count 3.
The tendency sought to be advanced by the Crown is the following:
The respondent used his position as a religious leader, to offer and/or conduct the ‘prayer of deliverance’ to Samoan women in order to engage in sexual activity with him, for his own sexual gratification.
The Crown wishes to lead evidence of three previous incidents, involving three different women, that are said to support the tendency. The incidents are described in the Notice. There were originally four incidents relied upon, but Incident 2 was abandoned. In brief the remaining incidents, as alleged, are as follows:
(a)Incident 1: The victim was caring for her dying husband. The accused contacted her and offered to perform a prayer of deliverance to assist the husband. While performing the prayer at the victim’s home the accused digitally penetrated the victim’s vagina and told her he wished to perform oral sex upon her. She was told that she should not tell anyone what had occurred. The consequence would be that somebody would die. This incident occurred in late 2012.
(b)Incident 3: The victim was in straitened circumstances. She did not have a job and she did not have a car. In the course of a deliverance prayer to assist the victim the accused asked the victim a number of sexually charged questions. This incident is said to have occurred between January 2018 and September 2019. The victim was told not to divulge the incident.
(c)Incident 4: This victim was also financially struggling. She was given the benefit of a prayer of deliverance at the accused’s home where they were alone. Again, the accused asked the victim a number of highly sexualised questions. He also placed his hand on her breasts, but on the outside of her clothing. He told the victim not to disclose the incident. If she did, she and her family would be cursed. The date for this incident is between March 2019 and April 2019.
In my view, the evidence sought to be led as tendency evidence can be characterised as stated by the High Court in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [41]:
In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The accused relied heavily on the decision of the High Court in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045. He pointed out differences between the incidents and highlighted the time gap between the first incident and the alleged offences. These are all well-made points, but as the High Court emphasised in McPhillamy, at [31] “it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together”.
I think there are such features and I think the above incidents do have a “significant probative value”. The features include the position of the accused relative to the victims, including the complainant, (pastor to congregants) the device of the use of the deliverance prayer, the vulnerability of the victims and the exhortation not to reveal what had occurred.
As to the time gap to the first incident, I think the commonality between this incident and the alleged offences is so marked as to overcome any impediment arising from the passage of time.
The accused submitted that if I reached this conclusion I should nevertheless reject the application because the probative value of the evidence did not substantially outweigh the prejudicial effect it might have on the defendant (s 101(2)).
The accused pointed to some difficulties that affected the Crown case because of an alibi notice that had been given to the Crown. It was also submitted that the victims in Incidents 3 and 4 might not live up to their suggested evidence because they had refused to provide statements to the police. The difficulty with these submissions is that, for current purposes, the Crown case must be taken at its highest.
On this basis I think the probative value of the evidence far outweighs the prejudicial effect on the defendant.
There are some matters upon which I do agree with the accused. Firstly, because the charged acts are all part of the same overall incident, they should not be allowed as tendency evidence against each other. Secondly, the significant connecting link arising from the use of the prayer of deliverance is missing from Incidents 3 and 4. They are straightforward assaults missing the above common features.
I make the following orders:
(a)The Crown is permitted to lead as tendency evidence Incidents 1, 3 and 4 to prove Counts 1 and 2.
(b)The Crown is not permitted to lead Incidents 1, 3 and 4 as tendency evidence in respect of Counts 3 and 4.
(c)The Crown is not permitted to rely on the separate counts in the indictment as evidence of any tendency in respect of the remaining counts.
(d)The tendency that is applicable to these orders is: The respondent used his position as a religious leader, to offer and/or conduct the ‘prayer of deliverance’ to Samoan women in order to engage in sexual activity with him, for his own sexual gratification.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 25 June 2020 |
2
2