R v Mynott
[2019] ACTSC 395
•14 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mynott |
Citation: | [2019] ACTSC 395 |
Hearing Date: | 14 November 2019 |
DecisionDate: | 14 November 2019 |
Before: | Burns J |
Decision: | Application allowed. See [13]–[14] |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – application to adduce tendency evidence – four counts sexual intercourse without consent – whether tendency evidence has significant probative value – whether probative value substantially outweighs any prejudicial effect to the accused |
Legislation Cited: | Evidence Act 2011 (ACT) ss 97, 101 |
Parties: | The Queen (Crown) Kristian James Mynott (Accused) |
Representation: | Counsel T Hickey (Crown) J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 20 of 2019; SCC 263 of 2019 |
BURNS J:
I have before me an application dated 9 October 2019 in which the Crown seeks to be permitted to adduce evidence in relation to Incidents 1 to 4 in the Amended Notice of Intention to Adduce Tendency Evidence (the Notice) to prove that the accused had a particular state of mind and or acted in particular ways.
The Notice has been amended without objection. The tendency which the Crown now seeks to prove, by adducing evidence of the Incidents referred to in the Notice, is a tendency to falsely represent to interstate male escorts by SMS or in conversation that he would pay them if they engaged in sexual activity with him, intending to entice or deceive them into engaging in the sexual activity, knowing that he was not going to pay them.
The present indictment is dated 12 March 2019 and contains four counts. Each alleges an offence of engaging in sexual intercourse with a particular complainant named as KS without the consent of that person and being reckless as to whether that person was consenting.
Incident 4 in the Notice relates to the events that underlie Counts 1 to 4 on that indictment.
Incident 2 relates to a different complainant, and I am told that the accused is presently in the process of being committed for trial with respect to a charge alleging a similar offence relating to that complainant in the ACT Magistrates Court. If the present application is successful, the Crown intends to file a fresh indictment, including a count relating to those events.
Incidents 1 and 3 are currently uncharged acts. They relate to, again, an entirely separate complainant, CD. No charges, at this time, have been laid with respect to those events, because, I am informed, CD has not consented or has not, at the present time, been contacted to consent to the laying of the charges. It is, of course, entirely possible that, in due course, CD may consent to the laying of charges relating to those events at which time I would understand that the Crown would propose, again, filing a fresh indictment including counts relating to those events.
The events which are set out in Incidents 1, 2 and 3 in the Notice, are very similar to the events alleged in Counts 1 to 4 in the present indictment.
Consideration
One of the issues at trial will undoubtedly be the question of whether any sexual activity between the complainant and the accused was consensual and secondly, whether any such ostensible consent is negatived by fraud.
The events which the Crown proposes to lead as tendency evidence are, if accepted by the jury, evidence of the accused acting in a way which the jury could accept as constituting a fraud upon the complainants with regard to a promise to pay for sexual services. It may be said that that evidence would establish a particular modus operandi by the accused.
The tendency rule is set out in s 97 of the Evidence Act 2011 (ACT) (the Evidence Act) which provides that evidence of 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 to act in a particular way, or to have a particular state of mind unless, relevant for present purposes, the Court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
Mr Sabharwal, on behalf of the accused, has conceded that he cannot raise any objection to the application. However, that does not relieve me of the obligation to satisfy myself that the proposed evidence will have significant probative value. For the reasons which I have already given, I am satisfied that it does, indeed, have significant probative value.
The second test that the Crown must overcome in order to adduce the proposed evidence is found in s 101 of the Evidence Act. That provides, at s 101(2), that tendency evidence about a defendant that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
The probative value of the evidence is clearly very high. As I have said, if it is accepted by the jury, then it is capable of establishing a modus operandi on the part of the accused of enticing male escorts to travel to the Australian Capital Territory to engage in sexual activity with the accused on the promise of payment by the accused and of the accused then reneging on any offer of payment. That is a matter which could have a very significant effect upon the jury's estimation of the state of mind of the accused at the time of the offences which are alleged in the indictment.
I am satisfied that the evidence, as I have said, has very significant probative value. Evidence of this nature, of course, will inevitably have some prejudicial effect upon the accused. To a great extent, I am satisfied that that prejudicial effect can be ameliorated by appropriate directions to the jury as to how they may and may not use that evidence. I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. For that reason, I will allow the application by the Crown.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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