R v No
[2017] ACTSC 421
•4 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NO |
Citation: | [2017] ACTSC 421 |
Hearing Date: | 2 August 2017 |
DecisionDate: | 4 August 2017 |
Before: | Mossop J |
Decision: | The Application in Proceedings dated 15 June 2017 is dismissed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – sexual offences – single tendency incident alleged – evidence not of significant probative value – application dismissed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 52(1), 54(1) Evidence Act 2011 (ACT), ss 55, 97, 97(1)(b), 101, 192A |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 92 ALJR 92 IMM v The Queen [2016] HCA 14; 257 CLR 300 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 |
Parties: | The Queen (Crown) NO (Accused) |
Representation: | Counsel J Hiscox (Crown) G Brady SC (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Numbers: | SCC 31 of 2017 SCC 34 of 2017 |
MOSSOP J:
Introduction
This is an application under s 192A of the Evidence Act 2011 (ACT) for a pre-trial ruling on the admissibility of tendency evidence.
The accused is charged with a number of offences including sexual assault in the second degree (s 52(1) of the Crimes Act 1900 (ACT)) and sexual intercourse without consent (s 54(1) of the Crimes Act). These two offences are alleged to have occurred on the same day some time in the first half of 2011.
What is alleged in this case
The Crown case is that in 2010, the accused met the complainant and the two started a relationship. They initially kept their relationship private from family and friends. One day in early 2011, the accused called the complainant to his house. When the complainant arrived the accused met her at the door. He was only wearing underpants and was intoxicated. The accused grabbed the complainant and began kissing her aggressively. He directed the complainant to his bedroom by pushing her with his body. The complainant said, “[NO], I don’t want to do this while you’re like this. I am going to leave now.” She said “no” three or four times. The accused said, “you’re a dirty slut. Who’s my bitch, your my dirty bitch.” The accused’s hands were all over the complainant’s body and he was forcefully groping her, causing her pain. The accused grabbed the complainant’s throat and pushed her up against a wall. He used such force that she was unable to move away. This is alleged to be Count 1, sexual assault in the second degree. The accused moved the complainant to his bed and removed her clothes. The accused said, “you’re not going anywhere.” He then had sexual intercourse with her on the bed, with his penis penetrating her vagina. He ejaculated inside her. This is alleged to be Count 2, sexual intercourse without consent.
What is the tendency incident
The tendency incident is alleged to have occurred in 2010 prior to the charged incident. It involved another person, who I will refer to as TE as it is not necessary for the purposes of these reasons that she be named. The accused is alleged to have had sexual intercourse with her without her consent. The evidence in relation to this incident is described in more detail below.
Approach to the application
The statutory provisions and relevant authorities governing an application in relation to tendency evidence were largely uncontroversial. They were helpfully summarised in the written submissions of the Crown and the accused which are on file. I will not repeat them.
In order to succeed, the Crown must establish that:
(a)the evidence is relevant: Evidence Act, s 55;
(b)the evidence has significant probative value: Evidence Act, s 97; and
(c)the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the defendant: Evidence Act, s 101.
In Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370, the Court of Appeal addressed a tendency issue by reference to the requirements of ss 55, 97 and 101 by identifying, for itself, a series of issues and addressing those issues by posing a series of questions. I will adopt the same methodology. As will become apparent, I have adopted the approach of the majority in Hughes v The Queen [2017] HCA 20; 92 ALJR 92 at [41] when addressing the issue of whether or not the evidence would have significant probative value.
Is there evidence that is relevant under s 55 of the Evidence Act?
Has the tendering party identified a s 97 tendency (a tendency to act or think in a “particular” way)?
The Crown has identified the relevant tendency as:
1.To apply force to and physically restrain females to whom the accused is intimate with, by taking hold of and squeezing their throat, when all of these circumstances were present:
a.when he is intoxicated;
b.when he wished to perform sexual intercourse; and
c.the intimate female has declined sexual intercourse.
The Crown has therefore identified a s 97 tendency.
Is the incident capable of establishing the asserted tendency?
Counsel for the accused submitted that the evidence of the tendency incident did not establish the asserted tendency. That submission was made recognising that a tendency may be established by a single incident, but that where there is only a single incident the establishment of the tendency may be more difficult. The accused made two submissions:
(a)that the evidence did not establish that the tendency incident involved taking hold of and squeezing the victim’s throat;
(b)that the tendency incident did not involve a female with whom he was “intimate”.
If accepted, the submissions would mean that the tendency incident was not capable of establishing the asserted tendency.
Because of these submissions it is necessary to examine the evidence concerning the tendency incident.
The evidence in relation to the tendency incident comes from two sources. First, there is an evidence-in-chief interview conducted with the victim, TE, in relation to the tendency incident. Second, there is a business record which the prosecution would tender at the trial, namely an “Australian Federal Police Medical Examination Record” prepared following the attendance of TE at The Canberra Hospital Emergency Department later in the day of the tendency incident. It is necessary to refer to this evidence in some detail in order to understand what, taken at its highest, the evidence would establish.
The significant matters raised by the evidence-in-chief interview, as recorded in a transcript of that interview, are as follows:
(a)TE had first met the accused when she was working as a sex worker at a brothel. The accused and two other men had visited a brothel and had sexual relations of some sort with three women in a single room.
(b)She may also have had sex with him on another occasion when he attended on his own.
(c)He invited her to go out to dinner with a number of people for a birthday celebration.
(d)He picked her up and they went to dinner with a number of friends. About half of the people then went to some clubs.
(e)She said that she didn’t think she drank excessively, “a drink an hour or something like that”.
(f)She said they had heaps of fun dancing and having a good time and that “nobody sleazed onto me or made me feel uncomfortable”.
(g)At some time later she thought they went to a strip club and the accused was “wasted”.
(h)After a taxi ride she ended up at the accused’s house along with the accused’s flatmate and the uncle of one of the accused’s friends who she described as having been “gross”.
(i)The housemate of the accused was saying some “weird stuff”, the accused directed her to a bed in a room where she could go to sleep. She got into bed.
(j)At some point the accused got into the bed as well. Everything was “kind of fine”. They had not danced intimately together and had not kissed. It wasn’t “like a date”. However, they had had sex previously at work.
The transcript then continues:
… Anyways, um, yeah, so [NO] was in the bed with me and at some point he started trying to have sex with me. And, um, I didn’t, you know, fight him, like, violently or scream and shout, but I was definitely, like, “Dude, I’m not in the mood. I don’t feel like it, you know I can’t find my phone.” Yeah, I definitely was, like, quite – I remember – I’m sure I said, ah, explicitly, “I’m not in the mood to have sex with you right now.” Like, “I don’t want to have sex. Come on, man, knock it off.” Um, but it wasn’t, like, “No. Stop. You’re raping me.” Yeah. Um, so that’s – yeah, that’s that. Um, he must have got a condom, but I don’t remember it. Um, he continued to have sex with me, even though I was, like, “Dude, I’m not in the mood.” Um, I recall – and, um, I don’t know the details – but I recall being, ah, physically restrained across the top of my body. Um, yeah, should I act this out or something? Or no? Yes? No?
Q 95. However you want.
A Yeah. So what I think may have happened, um, is that I’m pretty sure that he – I don’t know if he’s left or right-handed. Um, I’m pretty sure that he was on top of me and used this part of his body across this part of my body to kind of restrain me while he had his hand to put his penis inside my body. Um, he must have gotten a condom out at some point, because – ah, because, yeah, there was a condom that broke. But yeah, so, I mean, you know, he had sex with me, um, when I wasn’t in the mood, and made that clear, and kind of restrained me by holding me down with this part of his body across the top of my body. Um, and it wasn’t super rough and violent, but, ah, you know, obviously, like, I didn’t want to be doing it. Um, yeah, it was probably, like, average sort of roughness, if that makes sense. But because, you know, being – I don’t know how I was held down, but just being held down across the top. Also he was, like, drunken and kind of half asleep-ish sort of, just in his own sort of – like, does that make sense?
She then described the condom breaking and the response of the accused which suggested to her that having had unprotected sex once, they might have unprotected sex in the future. She thought that was interesting because it implied that they would continue having a sexual sort of relationship when the response to such a suggestion was, “What planet are you on? This isn’t okay.” She described herself as “passive‑aggressive. Quiet and angry”.
For the purposes of the application, the video of the evidence‑in‑chief interview was not tendered so that it was not possible to see what, if anything, more could be made of the evidence about her restraint by the accused based on the demonstration or indications that she gave during the course of saying what is recorded on the transcript.
Later in the interview, she was asked to say more about being physically restrained:
Q 200 All right. So the next thing you told me that you remembered was being physically restrained. Can you tell me about that?
A Um, I think that [NO] got on top – do you want me to repeat what I said before?
Q 201. Yeah. Just have a little bit of a think about it. Just sort of let it run through your mind.
A I’ve got – I don’t know, to be honest. I can’t---
Q 202. Okay.
A Ah, because I’ve got, like, just a few little ideas, and I’m not sure how accurate they are.
Q 203. That’s all right. Just tell me what the ideas are and we’ll---
A The ideas that I was, like, held around the shoulders, held across the top of – like, around here. Not like this, with a hand. Like, what I think happened was that, um, yeah, he kind of got on top of me. And I’m, like, “Ah, dude, no. Like, come on, go to bed.” Um, and I don’t know whether he was kissing me or not. I can’t remember. Um, but yeah, I do remember – well, I think that, um, he had, yeah, his forearm across the top of my body, is what I think, across my clavicle, around here, yeah, which I think – um, I think he did that with one hand in order to use his other hand. But, I mean, I don’t know, he must have some point gotten out a condom and put one on, because there was a broken one at the end of it so, and I can’t – I can’t remember him getting a condom and putting it on, but it must have happened. Um, but yeah, I do remember, um, being just kind of, like, pinned down across the top, um, yeah. I’ll take a moment to think about it.
Q 204. That’s all right. If it comes up, just, yeah, let us---
A Yeah, and I just remember, like, you know, either holding me by the shoulders or across like this, you know, or maybe by the head or something with his – I don’t know. But I was, like, in a missionary sort of position, um.
Later in the interview at Q 278, she said:
But it wasn’t an aggressive assault. It wasn’t a matter of him trying to hurt me, you know. Um, it was him trying to get off being drunk and having no regard for my consent.
Later at Q 317, she said:
… I really feel like he kind of – I reckon in his mind it would have been, like, he rolled on, had a quick root, rolled off. But I think the details – and I really don’t think that it was deliberate. I don’t think that, you know, he was, like, “I’m going to go fucking rape this lady right now.” Like, no. I just reckon he’d be, like, “Oh, she’s hot. I’m going [to] want to have sex with her and I’m horny and I’m just going to do it.” Like, I didn’t really get that impression, that, um, you know, his kind of – the physical stuff---
Q318. Mm
A ---the physical restraining stuff, I didn’t see that as being, like, a deliberate, um, effort to – I don’t know what I’m saying, to be honest. Who knows what the fuck he was thinking, to be honest. Maybe I’m making excuses because it’s easier for me to see him as somebody who – you know, maybe it’s easier for me to see it as being less malicious than it was. So I’m kind of projecting, you know. Um, but yeah, it just didn’t seem like a really evil sort of thing. It just seemed like a kind of selfish sort of – and drunk---
Q319. Mm
A ---drunken level selfish, yeah. “I want to have sex with this person. I’m going to. Okay, I’m having sex with this person.” And it’s done.
The Australian Federal Police Medical Examination Record is a document created later that day at the Emergency Department of The Canberra Hospital where TE attended with a representative of the Canberra Rape Crisis Centre. There are a number of sections of the documents which contain material relevant to the tendency question. Under the heading “Details of Assault (in patient’s own words where possible)” appears the following entry:
I was on my back, I’m pretty sure
He had my wrists
My jaw is sore
Battles
I can’t entirely remember.
Under the heading “current symptoms” is:
Jaw is sore, (right side), vaginal pain
Under the heading “summary of assault” are a series of questions relating to different aspects of an assault. The relevant questions and answers are as follows
Did the assailant grab or hold you? Yes/no/attempt/unsure Yes If yes, specify sites of contact Legs, ankles, wrists Did the assailant choke/strangle you? Yes/no/attempt/unsure Yes If yes, specify with what, where. Hand to throat
In answer to a question about what attempts were made by way of defence, the document records “kicking, kneeing, pushing”. In relation to other details of the assault the document records “hair pulled lots”. In relation to how she felt at the time the document records “felt very drunk”. As to the amount of alcohol consumed prior to the assault, the document recorded “a lot, 10 standard drinks”. The document also indicated that she had ingested heroin nasally on the night of the offending conduct.
Diagrams that were completed showing the result of examination indicated a tenderness and possible light area of bruising on the right jaw. It indicated that there were no abnormalities detected on the throat. It identified a 1cm circular bruise and tenderness at the right clavicle.
The difficulty that arises is that there are very significant differences between what is described in the evidence‑in‑chief interview and that which is recorded in the Medical Examination Record. That is not only as to what physical acts were involved, but also the overall characterisation of the interaction as involving more or less violence. The Medical Examination Record is more consistent with a more violent assault involving a greater degree of physical restraint and resistance than the evidence‑in‑chief interview. The contents of the Medical Examination Record were not explored during the course of the evidence‑in‑chief interview, and hence, nor were the differences between that document and what was said during the interview.
It is clear that the task of the Court is not to make an assessment of credibility or reliability of the evidence, but to assess the evidence taken at its highest: IMM v The Queen [2016] HCA 14; 257 CLR 300 at [44], [48]. However, in a case like this where the evidence of the tendency incident from different sources differs substantially, in assessing the evidence at its highest, it is necessary to reconstruct from the different pieces of the evidence what a jury might accept at its highest so far as the Crown case is concerned.
So far as the first point made by the accused is concerned, taken at its highest it would indicate that at some stage during the sexual assault the accused put his hands on the victim’s throat. There is no reference to squeezing in the document. Some similar act might be inferred from the nature of the questions asked.
So far as the second point made by the accused is concerned, the evidence does not establish that there was any significant relationship between the accused and TE. It would establish that she had been a sex worker and interacted with him as a client, that he had invited her to dinner along with people in circumstances where there was no particular intimacy between them. It will also establish that at his house he offered that she sleep in a bed and that he had climbed into bed with her and had non‑consensual sexual intercourse with her. One of the difficulties is that it is not clear what the reference to “intimate” in the asserted tendency actually means. It is included as an element of the asserted tendency so as to make the tendency asserted more specific, and hence, make it more likely to establish a tendency than a more general similarity between the incidents.
Because of the absence of evidence of any actual squeezing and the uncertainty as to what is meant in the formulation of the tendency of “intimate”, if the formulation of the tendency is approached strictly, then it would be possible to reach the conclusion that the incident was not capable of supporting the asserted tendency. However, I do not consider that it is appropriate to approach the question in that manner at this stage in the process. I consider that it is more appropriate to allow some leeway in the formulation of the tendency at this stage for the purposes of the threshold question of relevance. The issue of the extent to which the evidence of the tendency incident would support the existence of the tendency is a matter which will need to be considered under s 97 when considering whether the evidence has significant probative value.
What is the relevant “fact in issue” in the proceedings?
No admissions have been made by the accused. Therefore, significant facts in issue at this stage are:
(a)Whether the acts alleged by the Crown occurred.
(b)Whether the complainant consented to the sexual intercourse.
(c)Whether the accused was aware that the complainant did not consent to sexual intercourse.
If the fact finder accepted that the tendency incident occurred and showed the asserted tendency, could the tendency inform the fact in issue?
If the tendency incident occurred and showed the asserted tendency, the tendency could inform a fact in issue. That is because a jury would be entitled to reason that if the accused had a tendency to take hold of and squeeze the throat of females with whom he is intimate when he was drunk, wished to perform sexual intercourse and the female had declined consent to sexual intercourse, then that would make it more likely that he acted as alleged on the charged occasion. That is because what is alleged has each of the features asserted as a tendency and hence the existence of the tendency would make it more likely that the incident occurred as alleged.
Section 97: Does the tendency evidence have significant probative value?
The critical issue is whether, for the purposes of s 97(1)(b), the evidence will either by itself or having regard to other evidence to be presented have a significant probative value.
Consideration of whether evidence has significant probative value involves consideration of two aspects of the evidence. First, the extent to which the evidence would support the existence of the asserted tendency and second, the extent to which the asserted tendency would make more likely the facts making up the charged offence: Hughes v The Queen at [41]. These two aspects interact with each other in the assessment of significant probative value because, while the more general the asserted tendency the easier it will be to establish that the evidence supports that tendency, because of that generality it will often be more difficult to find that it makes more likely the facts making up the charged offence.
So far as the first consideration, the extent to which the evidence would support the existence of the asserted tendency, this is a case where the tendency alleged has been formulated so that it picks up significant features of the charged offence:
(a)taking hold of and squeezing the throat;
(b)of a woman with whom he is intimate;
(c)when intoxicated;
(d)when he wished to have sexual intercourse;
(e)when sexual intercourse had been refused.
The evidence of the tendency incident only supports to a very limited extent the existence of the asserted tendency. In short that is because there was only a single incident and that the incident differed in significant respects, most obviously the relationship between the accused and the alleged victim.
I accept that the fact that there was only a single incident is not a bar to finding that the evidence has significant probative value, but it is certainly a matter to be considered. It will usually be the case that multiple incidents have greater probative value because they can more reliably demonstrate the existence of a tendency: see, for example, Hughes v The Queen.
So far as the similarity between the incidents is concerned, the most significant difference is the different relationship between accused and alleged victim. In the tendency incident, the victim was someone with whom the accused had had sexual intercourse on at least one and probably two occasions on a commercial basis. He had invited her to go out with a group of people in circumstances which were not “a date” but simply a group of people going out. It was therefore not a case in which the parties had been intimate in the sense of there being any ongoing emotional relationship. That contrasts with the charged incident which, so far as the case statement discloses, involved the earlier part of an ongoing relationship which lasted from 2010 to 2015 and produced two children.
So far as the element of the asserted tendency involving taking hold of and squeezing of the throat, the evidence of this comes only from the Medical Examination Report. The evidence‑in‑chief interview, so far as it is recorded in the transcript which was in evidence, only goes so far as to suggest some restraint of the upper body and clavicle during the act of sexual intercourse. There is no reference to taking hold of and squeezing the throat. While it is necessary to take the evidence at its highest, namely that there was a “hand to throat” as recorded in the Medical Examination Record, there is no evidence of the squeezing asserted as part of the tendency. Therefore, even taking the evidence at its highest, it does not support the specific tendency asserted.
So far as the second aspects is concerned – the extent to which the asserted tendency would make more likely the facts making up the charged offence – the specificity of the asserted tendency, the similarity between the asserted tendency and the facts alleged and the temporal proximity of the tendency incident, would favour a finding of significant probative value. However, the absence of specificity in the asserted tendency concerning the manner or purpose for which the neck is taken hold of detracts from the probative value of the asserted tendency. The asserted tendency does not extend to anything about the purpose or the timing of the taking hold of and squeezing. Therefore, it cannot be said that the evidence of the tendency incident would establish that any squeezing of (or hand upon) the throat involved the violence asserted in the charged incident or was intended to be coercive so as to procure submission to sexual intercourse. This tends to lessen the significance of the tendency in establishing the charged incident which is clearly alleged to involve a degree of aggression and violence and where the squeezing of the throat is a precursor to the sexual intercourse without consent. The tendency incident does not demonstrate either a similarity of acts or purpose so as to make a tendency having some involvement of contact with the throat significantly probative in relation to the charged act.
In summary, the reasons that I have reached the conclusion that the evidence would not have significant probative value are that:
(a)There is only a single incident asserted to establish the tendency making it harder to reach the conclusion that it is evidence that it establishes the tendency (Hughes v The Queen, first element).
(b)The evidence does not establish in relation to the tendency incident that, prior to the alleged sexual assault, the accused and the victim were “intimate” in any meaningful way, making it harder to establish the tendency (Hughes v The Queen first element). If they were “intimate”, then the difference in the nature of the intimacy (and hence the circumstances of the conduct in the two incidents) makes it harder to establish the probative value of the tendency in relation to the offence charged (Hughes v The Queen, second element).
(c)The evidence in relation to the contact with the throat did not support in any clear manner the asserted tendency (Hughes v The Queen, first element) and, to the extent that it did, the differences in the nature of the contact with the neck were such that the tendency would not be significantly probative of facts in issue in relation to the offence (Hughes v The Queen, second element).
Recognising that “reasonable minds might reach different conclusions” (Hughes v The Queen at [42]), I do not think that the evidence of the tendency incident, either by itself or with other evidence to be presented, is of significant probative value for the purposes of s 97(1)(b). It is therefore not admissible.
Section 101: Does the probative value of the tendency evidence substantially outweigh any prejudicial effect?
In light of my conclusion above, it is not necessary to address this issue.
Order
The order of the Court is: The Application in Proceedings dated 15 June 2017 is dismissed.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 20 August 2018 |
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