R v Pretorius
[2016] ACTSC 181
•27 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pretorius |
Citation: | [2016] ACTSC 181 |
Hearing Date: | 27 June 2016 |
DecisionDate: | 27 June 2016 |
Reasons Date: | 1 August 2016 |
Before: | Penfold J |
Decision: | The evidence sought to be led by the Crown is not admitted for tendency purposes. |
Catchwords: | CRIMINAL LAW – Evidence – similar facts – tendency application – whether complainant’s uncorroborated evidence of uncharged acts has significant probative value in relation to assessment of complainant’s credibility – whether complainant’s evidence of uncharged acts may be used via tendency reasoning in assessment of whether accused mistook complainant’s identity – evidence inadmissible for tendency purposes. |
Legislation Cited: | Evidence Act 2011 (ACT), s 97 Evidence Act 1995 (Cth) Evidence (National Uniform Legislation) Act (NT) |
Cases Cited: | IMM v The Queen [2016] HCA 14 |
Texts Cited: | Judicial Commission of New South Wales, Criminal Trials Courts Bench Book (Judicial Commission of New South Wales, Update 51, May 2016) Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12th ed, 2016) |
Parties: | The Queen (Crown) Herman Pretorius (Accused) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Accused) | |
File Number: | SCC 203 of 2015 |
Introduction
Herman Pretorius has pleaded not guilty to three counts of committing an act of indecency on a person under 16, said to have been committed in a single incident that took place one evening at the complainant’s home. The complainant described the accused kissing her using his tongue, touching both breasts under her clothing, and touching her genital area through her clothing, while the two of them were on a mattress in a spare bedroom.
Evidence of sexual acts prior to acts charged
At the trial, the Crown will lead evidence from the complainant of earlier conduct by the accused said to have sexual connotations. That evidence, in summary, is to the following effect:
(a)that sometimes on family occasions, when the complainant was lying in the accused’s lap or beside him when she was sleepy, the accused would stroke her stomach, back and breasts;
(b)that on one occasion before the incident in the spare bedroom, the accused kissed the complainant and put his tongue in her mouth; and
(c)that on several occasions before the incident in the spare bedroom, when the complainant was alone with the accused, he would give her what she called “sucky” kisses on her mouth.
The defence does not dispute the admissibility of this evidence as what is variously described as “context” evidence (for instance in the New South Wales Criminal Trials Bench Book at [4-210]) or “relationship” evidence (Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12th ed, 2016) at [101.150]). There was no application for it to be excluded as unfairly prejudicial.
Tendency application
The Crown, however, also seeks to rely on that evidence for tendency purposes, submitting that it evidences a tendency on the part of the accused to have a sexual interest in the complainant and to act on that interest.
The Evidence Act 2011 (ACT) is in substantially the same terms as the Evidence Act 1995 (Cth) and evidence legislation in NSW, Victoria, Tasmania and the Northern Territory.
Section 97 of the Evidence Act 2011 is relevantly as follows:
97The tendency rule
(1)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—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)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.
...
NoteThe tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
The defence accepts that the notice requirement (s 97(1)(a)) was satisfied.
However, the defence objects to the Crown’s proposal, and relies on comments made by the High Court in relation to the Northern Territory Evidence (National Uniform Legislation) Act in IMM v The Queen [2016] HCA 14 (IMM) to explain the objection.
IMM v The Queen
In that case, the High Court considered the admissibility as tendency evidence of uncorroborated evidence by the complainant. The evidence identified as tendency evidence in IMM was relatively vague and insubstantial, consisting of the claim that some time after the sexual assaults charged, the accused, who was having his back massaged by the complainant and another person, ran his hand up the complainant’s leg on the outside of her shorts.
Nevertheless, at [61], the majority (French CJ, Keifel, Bell and Keane JJ) accepted, for the purposes of the appeal, “that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant”. However, the majority concluded that the evidence did not have “significant” probative value as required by s 97(1)(b), saying:
62.In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
63.Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.
(emphasis added)
Gageler J said at [107]:
The difficulty of concluding that the complainant’s testimony about the massage incident was capable of having significant probative value was not just that the testimony was uncorroborated. Her testimony about the massage incident was uncorroborated within a context in which the credibility of the whole of her testimony was in issue. There was nothing to make her uncorroborated testimony about that incident more credible than her uncorroborated testimony about the occasions of the offence charged. There was no rational basis for the jury to accept one part of the complainant’s testimony but to reject the other. The increased probability of the appellant having committed the offences which would follow from the jury accepting that part of the complainant's testimony which constituted tendency evidence could in those circumstances add nothing of consequence to the jury's assessment of that probability based on its consideration of that part of the complainant's testimony which constituted direct testimony about what the appellant in fact did on the occasions of the offences. The probative value of the tendency evidence could not be regarded as significant.
(emphasis added)
The two remaining members of the High Court, Nettle and Gordon JJ, dissented from those conclusions about the low probative value of further evidence from the same complaint, concluding that the evidence ought to have been admitted as having “significant probative value”. In order to reach that conclusion, their Honours noted the proposition that the probative value of such evidence relied on “bootstrap reasoning”, saying at [175]:
Counsel for the appellant invoked the observation of Howie J in Qualtieri v The Queen that, in order to meet the test of admissibility under s 97, evidence of sexual interest in the complainant will "usually be found outside of the complainant's evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally". In counsel's submission, reliance on the complainant's own evidence of uncharged sexual acts to establish a sexual interest in the complainant which supposedly added to the probability of the truth of the complainant's testimony regarding the charged acts involved "bootstrap reasoning" and so the evidence should have been excluded.
Their Honours rejected those submissions made on behalf of the appellant.
Credibility of complainant’s account
The point made by the majority, and by Gageler J, in IMM was that the credibility of the complainant’s account of a particular incident is not generally enhanced by the addition of evidence also from the complainant (and also not corroborated) of other similar incidents. The majority identified as a possible exception to this proposition a case in which “there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value” (at [62]).
The Crown did not seek in this case to identify any special features of the complainant’s account of the uncharged incidents that gave her evidence of them any special or additional probative value.
Thus, in this case, there is no identified basis on which the jury may be likely to accept one part of the complainant’s evidence (evidence of the uncharged incidents) while being inclined to reject another part (evidence of the matters charged), such that the acceptance beyond reasonable doubt of the evidence of the uncharged incidents should be permitted to lead the jury in the direction of accepting beyond reasonable doubt the complainant’s evidence of the acts with which the accused is charged.
For that reason, I was satisfied that the evidence was not admissible for tendency purposes to establish whether the incident in the spare bedroom happened at all.
Possible claim of mistaken identity
However, the Crown said that the evidence could be relevant for tendency purposes in relation to another issue that might arise in the trial.
Circumstances of the acts charged
The circumstances of the incident are described in the Crown case statement as follows:
The complainant and the accused walked upstairs and the complainant laid out the mattress in the spare bedroom. She left to get the accused a glass of water. When she returned to the room she switched off the light but was still able to see the accused lying on the mattress. She placed the glass of water on the floor and got down onto her hands and knees and leant over the accused with her hands on the mattress to say good night. As she leant in to kiss the accused's cheek, the accused put both his arms around her and cuddled her. He began to stroke her left side, around her ribcage and hip area and the complainant lay down beside him.
Those circumstances were described by the complainant in her police statement as follows:
54.I went downstairs and offered to set up the bed for Herman. Herman and I went up to the spare bedroom and I laid out the spare mattress.
55.I left the bedroom to fetch Herman a glass of water. When he had been drinking I would sometimes bring him a glass of water.
56.I returned to the spare bedroom, turning off the light before I entered the room. The room was slightly illuminated by light that was coming from the light fixture in the corridor. The room was dark but was not pitch black and I could make out that Herman was lying on the mattress.
57.I entered the room and placed the glass of water down on the floor.
58.I approached the mattress to give Herman a kiss goodnight. As the mattress was on the floor I went down onto my hands and knees to get close to the level of the mattress. I leant over Herman, with my hands on the mattress.
During the hearing of the tendency application, I was given to understand that in the trial the accused was likely to deny that the incident happened, but also to say that if such an incident did happen, he must have believed at the time that the person he was with was the mother of the complainant, with whom he was then engaged in a sexual relationship.
Crown submissions
Thus, the Crown said, if the jury accepted the complainant’s evidence, in particular the evidence of the incident in the spare bedroom that has given rise to these charges, it appeared possible that there would be a further question that jurors would need to answer, being whether they were satisfied that the accused knew that the person in the spare bedroom with him was the complainant (the exact impact of such a mistake was not pursued at the tendency application stage).
The Crown said that the complainant’s evidence at [2] above should also be available for tendency purposes in relation to the question of the accused’s knowledge because it would respond to the foreshadowed defence claim that if the incident did happen, the accused mistakenly believed he was involved with an adult woman who was capable of, and was, consenting to the activity.
Consideration
The fact in issue in that context would be the accused’s asserted belief that the person who was with him in the spare bedroom was his adult lover rather than her young teenage daughter.
The use of the evidence identified by the Crown for a tendency purpose could indicate that the accused would have been interested in committing acts of indecency on the complainant. However, I could not see that, even if the jury accepted that the accused would have had such an interest, that evidence could have rationally affected, directly or indirectly, the assessment of the probability of the existence of the fact in issue, being whether on the occasion concerned the accused knew who was with him in the spare bedroom.
Although it was conceivable that the evidence, once admitted, might have been relevant to the foreshadowed defence evidence in other ways, such as in relation to the credibility of the accused’s evidence, no kind of relevance that I could imagine would have involved or required any kind of tendency reasoning. Nor did the Crown expand on the proposition referred to at [23] above that use of the evidence for tendency purposes would “respond” to a claim of mistaken identity.
Conclusions about tendency application
For the reasons set out above, I was satisfied that the evidence to be called by the Crown should not be admitted for tendency purposes, and that the jury should be directed not to use it for such purposes.
No evidence of mistake
In fact, as the evidence emerged in the trial, the foreshadowed suggestion of mistake on the part of the accused was not relied on. It is mentioned in these reasons only because it was at the time relevant to my consideration of the tendency application.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 26 July 2016 |
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