R v Mullins
[2016] ACTSC 230
•18 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mullins |
Citation: | [2016] ACTSC 230 |
Hearing Date: | 18 August 2016 |
DecisionDate: | 18 August 2016 |
Before: | Elkaim J |
Decision: | (i) The Crown’s application to rely on evidence of the respondent’s previous conviction in 2008, pursuant to s 97 of the Evidence Act 2011 (ACT), is rejected. (ii) The evidence supporting each of the first 15 counts, being annexures to the affidavit of the respondent sworn and filed on 19 September 2003, may be used by the Crown as tendency evidence under s 97 of the Evidence Act 2011 (ACT) in support of every other of Counts 1 to 15, besides the count to which the evidence is expressly relevant. (iii) The Crown is granted leave to adduce evidence from a suitably qualified person as to the following: (a) A letter of complaint was lodged by Mr Marina on 18 August 2003. (b) Mr Gaskill was commissioned to prepare a report into the letter of complaint. (c) Mr Gaskill produced a report dated May 2004. (d) The report does not include any mention or reference to the letter relied upon in support of Count 6 nor does it mention the meeting or incident referred to in the letter. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency Evidence – application to adduce – s 97 Evidence Act 2011 (ACT) |
Legislation Cited: | Evidence Act 2011 (ACT), ss 97, 101, 137, 192A |
Cases Cited: | El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 IMM v The Queen [2016] HCA 14; 257 CLR 300 R v Zhang [2005] NSWCCA 437; 227 ALR 311 |
Parties: | The Crown (Applicant) Mark Patrick Mullins (Respondent) |
Representation: | Counsel A Williamson (Applicant) R Rajalingham (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Nyman Gibson Miralis (Respondent) | |
File Number: | SCC 73 of 2016 |
ELKAIM J:
The respondent is due to face a trial in this court in respect of 16 counts in an indictment dated 27 May 2016. 15 of the counts allege the use of a false document with the intention of inducing another person to accept it as genuine thus influencing the exercise of a public duty. The remaining count concerns the use of false evidence to influence a legal proceeding.
On 19 July 2016 the Crown lodged a Notice of intention to adduce tendency evidence. Amended particulars of the alleged tendencies were filed in court today.
Also on 19 July 2016 the Crown filed an Application seeking orders under s 192A of the Evidence Act2011 (ACT) that it be permitted to adduce tendency evidence in accordance with the above tendency notice.
The Application also seeks leave to adduce in evidence a witness statement and a report prepared by a Mr Gaskill. This person is now deceased.
Returning to the tendency evidence, it may be seen to fall into two parts. Firstly, there is the evidence of a conviction of the respondent in 2008. This conviction arose from the use of forged qualifications to obtain employment. The respondent admitted his guilt and was sentenced.
Secondly, the evidence sought to be used as tendency documents are the documents relevant to the first 15 counts which were annexed to an affidavit filed by the respondent in proceedings he brought in the ACT Civil and Administrative Tribunal (ACAT).
The starting point is s 97 of the Evidence Act 2011 (ACT). There have been many decisions on tendency evidence, most recently in the High Court in IMM v The Queen [2016] HCA 14; 257 CLR 300.
For present purposes I refer to the statement by Howie J in R v Harker [2004] NSWCCA 427 at [57]:
[T]endency evidence is placed before the jury as evidence tending to prove the guilt of the accused. The jury are asked to reason that because the accused acted in a particular way on some other occasion or occasions, he or she must have acted in the same way on another occasion.
In R v Zhang [2005] NSWCCA 437; 227 ALR 311 at [139] Simpson J said of the test to be applied:
The judge is required, firstly, to determine whether the evidence is capable of rationally affecting the probability of the existence of a fact in issue; secondly (if that determination is affirmative) to evaluate, in light of any evidence already adduced, and evidence that is anticipated, the likelihood that the jury would assign the evidence significant (in the sense explained by Hunt CJ at CL in R v Lockyer (1996) 89 A Crim R 457) probative value. If the evaluation results in a conclusion that the jury would be likely to assign the evidence significant probative value, the evidence is admissible. If the assessment is otherwise, s 98 mandates that the evidence is not to be admitted.
Once this test has been passed it is necessary to then look at s 101 of the Evidence Act and essentially decide if the probative value of the evidence “substantially outweighs any prejudicial effect it may have on the defendant.”
Beginning with the first category of evidence, namely that relating to the conviction, I am of the view that I can proceed directly to s 101 because, even if otherwise admissible, reliance on the evidence for s 97 purposes could not outweigh its prejudicial effect. This is evidence of guilt in another fraud case. It raises the issue of the respondent’s credit and in a context of a fraudulent action. I think I could describe the evidence as extremely prejudicial.
The Crown’s response to this point is that the prejudicial effect of the evidence will be substantially lessened because the evidence is, in any event, otherwise admissible. The difficulty with this submission is firstly that, on general principles, the evidence will not be admissible, and secondly because there has been no application on behalf of the Crown for this evidence to be admissible on any basis other than under s 97.
It may be that leave will be sought of the trial judge to admit the evidence on an alternative basis. If that application is successful then the use of the evidence under
s 97 can be revived. As matters presently stand however, I reject the Crown’s application to rely on evidence of the previous conviction pursuant to s 97.
Turning now to the evidence referred to in support of each of the first 15 counts, the respondent, without making any concession, relied more on s 101 than the gateway in s 97.
The first point is that all of this evidence will be otherwise admissible in the trial. This is significant, as stated by Leeming J in El-Haddad v R [2015] NSWCCA 10; 88 NSWLR 93 at [82]:
Section 101 will apply with much greater force when the only way in which evidence is said to be relevant is because of tendency or coincidence reasoning (for example, a sexual assault case where evidence is called of another complainant in respect of whom no charges have been laid). Where, as here, the evidence which was sought to be used for coincidence and tendency reasoning was (a) relevant to other charges which were able to be determined fairly at the same trial and (b) not said to be inherently unfairly prejudicial in its own right, then it is apt to be difficult for s 101 to apply so as to preclude tendency or coincidence reasoning based on it.
Going back to s 97 and to the test that I have quoted above from Harker, I am of the view that the test has been passed. In my view the evidence is such that because the respondent, if it be the case, forged documents on other occasions that evidence could enable a jury to conclude that the respondent did so when looking at each of the respective accounts in the indictment.
I also note that my use of the word “forged” extends not just to the fabrication of a signature but to the creation of an entirely false document. I further note that in respect of some of the documents, where there is an allegedly forged signature, the use of that forgery in one document would fall within s 97 as tendency evidence in respect of the other documents where the same signature is apparently used.
I am therefore of the view that the s 97 test has been passed and that the admissibility of the evidence as tendency evidence is not defeated by s 101 primarily because the evidence is already admissible.
Accordingly, in respect of the evidence supporting each of the first 15 counts, being annexures to the affidavit of the respondent sworn and filed on 19 September 2013, that evidence may be used by the Crown as tendency evidence under s 97 in support of every other of counts 1 to 15, besides the count to which the evidence is expressly relevant.
Turning now to the second issue, namely the documents prepared by Mr Gaskill, it seems to me that the tender of the report, even if otherwise admissible, could be excluded under s 137 of the Evidence Act. However it is important to understand the purpose of the Crown’s application. It does not wish to rely on the truth of the specific content of the report, but rather to be in a position to draw an inference from what the report does not say.
The alleged relevance arises from the document at the core of Count 6. This allegedly false letter purports to be a correspondence between Mr Gaskill and “Dr Mark Mullins”. The Crown wishes to rely on what the report does not say to assist it to establish that the letter is false because it is, in effect, inconceivable that the incident described in the letter would not have formed part of the report.
On one approach the dates of the respective documents render the report to not to be relevant. This is because the report was only commissioned in respect of a letter of complaint dated in August 2003 and therefore would not have addressed any event in May 2003. The Crown would view this observation differently, suggesting that the ‘illogical’ dates support its allegation of the production of a false document.
Following discussion with the parties I came to the view that I should not grant leave for the letter and report to be tendered in evidence but that I should grant leave to the Crown to adduce evidence from a suitable witness to the following effect:
(i)A letter of complaint was lodged by Mr Marina on 18 August 2003.
(ii)Mr Gaskill was commissioned to prepare a report into the letter of complaint.
(iii)Mr Gaskill produced a report dated May 2004.
(iv)The report does not include any mention or reference to the letter relied upon in support of Count 6 nor does it mention the meeting or incident referred to in the letter.
Finally I note that an issue relating to subpoenas to the Chief Minister and Economic Development Directorate of the ACT was stood over to the next callover of this matter because the parties informed me that they thought any dispute could be resolved.
I make the following orders:
(i)The Crown’s Application to rely on evidence of the respondent’s previous conviction in 2008, pursuant to s 97 of the Evidence Act 2011 (ACT), is rejected.
(ii)The evidence supporting each of the first 15 counts, being annexures to the affidavit of the respondent sworn and filed on 19 September 2003, may be used by the Crown as tendency evidence under s 97 of the Evidence Act 2011 (ACT) in support of every other of Counts 1 to 15, besides the count to which the evidence is expressly relevant.
(iii)The Crown is granted leave to adduce evidence from a suitably qualified person as to the following:
(a)A letter of complaint was lodged by Mr Marina on 18 August 2003.
(b)Mr Gaskill was commissioned to prepare a report into the letter of complaint.
(c)Mr Gaskill produced a report dated May 2004.
(d)The report does not include any mention or reference to the letter relied upon in support of Count 6 nor does it mention the meeting or incident referred to in the letter.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: 18 August 2016 |
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