R v Ralston
[2019] ACTSC 120
•10 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ralston |
Citation: | [2019] ACTSC 120 |
Hearing Date: | 15 April 2019 |
DecisionDate: | 10 May 2019 |
Before: | Burns J |
Decision: | See [26] - [27] |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – Tendency evidence – application to adduce evidence to prove that the accused has a tendency to act in a particular way and to have a particular state of mind – tendency evidence sought to prove the identity of the offender – effectively two complainants – consideration of probative value of the evidence PRE-TRIAL APPLICATION – Orders sought to admit video recordings of police interviews as evidence in chief of witnesses at trial – consideration of s 15YM of Crimes Act 1914 (Cth) |
Legislation Cited: | Crimes Act 1914 (Cth) ss 15Y, 15YM Criminal Code 1995 (Cth) div 474 Evidence Act 2011 (ACT) ss 97, 101 |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 92 ALJR 52 The Queen v Bauer [2018] HCA 40; 92 ALJR 846 |
Parties: | The Queen (Crown/Applicant) Andrew Ralston (Accused/Respondent) |
Representation: | Counsel Ms C Hollingsworth (Crown/Applicant) Mr S McLaughlin (Accused/Respondent) |
| Solicitors Commonwealth DPP (Crown/Applicant) Legal Aid ACT (Accused/Respondent) | |
File Number: | SCC 250 of 2018 |
BURNS J
The accused is currently awaiting trial on an indictment dated 31 October 2018 containing the following single count:
…Andrew James Ralston, being at least 18 years of age, used a carriage service to transmit a communication to the recipient, [TR], being someone who was under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with him, contrary to section 474.27(1) of the Criminal Code (Cth).
By an application in proceeding dated 18 March 2019 the Crown seeks orders permitting it to adduce tendency evidence at the accused’s trial, together with orders that video recordings of police interviews with the complainant, TR, and the tendency witness, JL, be admitted as the evidence in chief of each of those witnesses at the accused’s trial.
The tendency application
The Crown application is to adduce evidence from JL to prove that the accused has a tendency to act in a particular way and to have a particular state of mind, namely:
(a)a tendency to have a particular state of mind, namely, to have a sexual interest in adolescent female children; and
(b)a tendency to act in a particular way, namely, in circumstances where he is in a relationship with the mother of an adolescent female child and thereby has access to the child, to act upon the above-mentioned sexual interest –
(i)by means including communications transmitted by use of a carriage service; and
(ii)by requesting to see the child naked.
A Notice of Intention to Adduce Tendency Evidence dated 24 January 2019 (the Notice) has been served on the accused. It is convenient to address the background to the present application by reference to the contents of the Notice. The evidence of the conduct of the accused which the Crown proposes to adduce in order to establish the proposed tendencies is:
(a)With regard to TR:
(i)the accused and TU (being TR’s mother) met through an online dating application in July 2017, and met in person a few weeks later. The accused first met TU’s children in about November 2017, when TR was age 11 years;
(ii)around the beginning of 2018, TR told her mother that she had “friended” the accused on Instagram;
(iii)between 25 March 2018 and 13 April 2018 the accused and TR exchanged messages on Instagram, including those set out at [5] below;
(iv)in an interview with police on 16 April 2018, TR described an occasion when she, her sister, her mother and the accused were having dinner at Dumpling Inn, when the accused put his hand under the table and placed it on her knee. This lasted for about one minute.
(b)With regard to JL:
(i)the accused met CL (JL’s mother) in 2003, and they were married in 2005. JL was CL’s child from an earlier relationship, and was born in 2001;
(ii)after JL entered high school, the accused began to hug or touch her on the bottom. The accused would become angry when CL confronted him about this;
(iii)in about 2014, when CL was interstate for work, the accused sent JL 50 or 60 text messages over a period of two days. In the messages, the accused held himself out to be a boy from JL’s school. The messages included statements such as “I love you”. JL became convinced the person sending the messages was not the person he purported to be, and she deleted the number and the record of the online conversations. The accused subsequently told JL that he had sent the messages as a lesson about dealing with people on social media;
(iv)in February 2014, the accused and JL were at home alone on Moderation Day (a pupil free day). The accused made her stand in front of a mirror in his bedroom and told her to take off her clothes and tell him where she felt self-conscious about her body. JL refused, and the accused then grabbed her and ran his hand from her thigh up to her breast;
(v)JL told her mother in October 2014 about the incident on Moderation Day. When confronted by CL about this, the accused stated that he was trying to show JL exercises;
(vi)between October 2014 and January 2015, JL began to tell her mother that the accused was touching her and that she felt uncomfortable;
(vii)in January 2015, CL left the accused;
(viii)on 30 April 2018, JL, then 16 years old, participated in an interview with police. In addition to describing the above events, she said that shortly after the accused sent her the messages referred to at (iii) above, he said to her “I’d love to see you naked”, and when she tried to run away, he grabbed her, hugged her, and told her not to tell her mother. She also said that the accused would make comments or touch her through her clothes, and would regularly make her pull her shirt tight against her body and he would stare at her.
The Crown case with regard to the charged offence is that the following messages were sent by the accused to TR between 25 March 2018 and 13 April 2018 with the intention of grooming TR to engage in sexual activity with him:
(a)“[...]Do you like being with me”;
(b)“I miss you. Can we chat without you telling your mum. I know you feel for me what I feel for you.”;
(c)“I get the hint. If you don’t hug me when i next walk in i delete you and leave you in peace.”;
(d)“I may come over. Do you want me to”;
(e)“Do you like me the same way as I like you”;
(f)“I want to see your nude body”.
In a recorded conversation between the accused and police on 7 May 2018, the accused told police that he had not sent the impugned messages, and that someone must have hacked his Instagram account. The significant issue at trial is therefore likely to be whether the Crown can prove that the accused sent the messages.
The tendency rule is set out in s 97 of the Evidence Act 2011 (ACT) (‘Evidence Act’), which provides:
97 The 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.
(2) Subsection (1) (a) does not apply if —
(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b) the evidence is presented to explain or contradict tendency evidence presented by another party.
Note The 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 other provision directly relevant to this application is s 101 of the Evidence Act, which provides:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2) Tendency evidence about a defendant, or coincidence 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.
(3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
Consideration
By adducing the evidence of JL, the Crown seeks to prove that it was the accused who sent the relevant messages to TR using his Instagram account, rather than some other person using his account without his permission. If accepted, the evidence of JL is capable of establishing that the accused was sexually attracted to JL, a young adolescent girl. It is also capable of establishing that the accused acted on that attraction by sending electronic messages to JL telling her that he loved her. The explanation given by the accused for this conduct may or may not be accepted by the jury. The evidence would also be capable of establishing that the accused told JL that he would like to see her naked.
This is a case where the Crown seeks to adduce the tendency evidence of JL to prove the identity of the offender. It is also a case where there are effectively two complainants: TR and JL. In Hughes v The Queen [2017] HCA 20; 92 ALJR 52 (Hughes), the majority of the High Court (Kiefel CJ, Bell, Keane and Edelman JJ) said regarding the use of tendency evidence to prove the identity of an offender, at [39]:
Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
Similarly, with regard to multiple complainant cases, the High Court in The Queen v Bauer [2018] HCA 40; 92 ALJR 846 said at [58]:
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
(References omitted)
The identifiable common features between the alleged offence and the evidence of the events to be given by JL are:
(a)in each case the accused was in a sexual relationship with the child’s mother;
(b)both the children were female;
(c)both children were young adolescents: TR was 11 years old and JL was 13 or 14 years old;
(d)both involved the use of forms of electronic messaging to communicate with the child;
(e)both involved allegations of limited touching of the child by the accused in a manner that could be construed as evidencing sexual interest in the child; and
(f)both involve the person communicating with the child stating that they would like to see the child naked.
The Crown does not allege that the accused entered into the relationship with either the mother of JL or the mother of TR for the purpose of gaining access to the child. It is not alleged that entering into those relationships was part of a modus operandi by the accused with the aim of giving him access to young adolescent females for sexual purposes. The fact that the accused was in a relationship with each of the children’s mothers can be no more than a background circumstance providing the accused with an opportunity to commit the alleged acts.
The circumstances that JL was female and around 13 or 14 years of age at the time of the events described by her are capable of being similarities with the charged events which may bear significant probative value. In Hughes the majority said, as [57]:
An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience…
It is the unusualness of the inclination and the willingness to act upon the inclination that gives proof of these matters significant probative value in establishing whether such an adult has committed sexual offences against an underage girl. Proof of such a tendency will, by itself, usually have much greater probative value in establishing that an accused, as a person able to be directly identified by the complainant as the offender, actually performed the acts alleged by the complainant. By itself, proof that an accused has a sexual interest in young adolescent females will not generally possess significant probative value in establishing that it was the accused, and not some other person, who committed an offence.
The fact that the accused used a form of electronic communication to communicate with TR, and the offender also used a form of electronic communication to communicate to JL the messages that form the basis of the charge, cannot carry significant probative value towards proving that the accused is the offender. The use of such methods of communication is commonplace.
The fact that the accused allegedly engaged in limited touching of both TR and JL does not mean that the evidence of JL would possess significant probative value in establishing that it was the accused who forwarded the subject messages to TR, except to the extent that it may go to proving a tendency on the part of the accused to be sexually interested in young adolescent females. The evidence of touching may assist in establishing a tendency to act upon that sexual interest, but not in a manner which is relevant to the present charge.
The fact that the accused told JL, if her evidence was accepted by the jury, that “I’d love to see you naked” bears some similarity to the communication by the offender which forms the basis of the charge. That person sent a message to TR stating “I want to see your nude body”. Such a desire, to see TR’s “nude body”, is likely to be commonplace in regard to any person sexually attracted to TR, whether it be the accused or some other person. The similarity in the desire expressed by the accused with regard to JL, and that of the offender directed towards TR, is not capable of bearing significant productive value in establishing that it was the accused who sent the subject messages to TR.
The jury would be entitled to infer that whoever sent the subject messages to TR was sexually interested in her. TR was a young adolescent female at the time. It follows that proof that the accused had a sexual interest in young adolescent females would pass the threshold test of relevance with regard to proving that it was the accused who sent the subject messages. In my opinion, however, a tendency expressed at the high level of generality of a sexual interest in adolescent females does not possess significant probative value in establishing that it was the accused who sent the subject messages to TR. The evidence of the accused’s alleged conduct regarding JL bears no close similarity to the conduct alleged against TR. Whilst the evidence of JL may possess significant probative value in establishing that the accused has a tendency to be sexually attracted to young adolescent females, that tendency, and the evidence of JL, does not to any significant degree make it more likely that the accused committed the charged offence.
The focus of the Crown application is the admissibility of the evidence of JL. For the reasons I have given, the evidence of JL should not be admitted.
No submissions were made regarding the admissibility as tendency evidence of uncharged acts of the accused towards TR, with regard to an alleged tendency on the part of the accused to have a sexual interest in TR. If the Crown seeks to lead evidence of alleged acts on the part of the accused, such as placing his hand on the knee of TR at the Dumpling Inn, as evidence of sexual interest in TR on the part of the accused, it may be that this would constitute tendency evidence. If so, it is beyond the ambit of the present application, which only concerns an alleged tendency to have a sexual interest in adolescent females in general.
Admission of the video recording of TR as her evidence in chief
The complainant TR participated in a recorded interview with police on 16 April 2018. The Crown seeks an order that the recording of this interview be admitted as her evidence in chief of the accused’s trial. The Crown also sought a similar order with regard to a recording of an interview between JL and the police, but in the light of my ruling on the admissibility of the evidence of JL it is unnecessary to further consider that application.
The application is based upon s 15YM of the Crimes Act 1914 (Cth) (the Crimes Act), which provides:
15YM Use of video recordings
(1) A video recording of an interview of a person to whom subsection (1A) applies in a proceeding may be admitted as evidence in chief if:
(a) a constable, or a person of a kind specified in the regulations, conducted the interview; and
(b) the court gives leave.
(1A) This subsection applies to the following persons:
(a) for a child proceeding—a child witness;
(b) for a vulnerable adult proceeding—a vulnerable adult complainant;
(c) for a special witness proceeding—a special witness for whom an order under subsection 15YAB(3) is in force for this section.
(2) The court must not give leave under subsection (1) if satisfied that it is not in the interest of justice for the person’s evidence in chief to be given by a video recording.
(3) An application for leave under this section:
(a) must be in writing; and
(b) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.
(4) The person must be available for cross‑examination and re‑examination if he or she gives evidence in chief by a video recording.
Note: Division 4 provides for this evidence to be given using closed‑circuit television or other arrangements.
It was not disputed that a constable conducted the interview with TR, so that the requirement of s 15YM(1)(a) is satisfied. The current proceeding against the accused is a “child” proceeding as it is a proceeding for an offence under Subdivision F of Division 474 of the Criminal Code 1995 (Cth): see s 15Y(1)(cba) and s 15YM(1A)(a) of the Crimes Act. There is no dispute that TR is presently a child witness for the purposes of s 15YM(1A)(a). The requirements of s 15YM(1A)(a) are therefore satisfied. No submission to the contrary having been made by the accused, I am not satisfied that it is not in the interests of justice for TR’s evidence in chief to be given by video recording. The requirement of s 15YM(2) is also satisfied.
On the basis that TR will be available for cross-examination and re-examination, I am satisfied that the statutory requirements for the admissibility of the recording of the police interview with TR as her evidence in chief at the accused’s trial have been satisfied. To the extent that it is necessary to make the order sought by the Crown, I do so.
Decision
In conclusion:
(i)the Crown is not permitted to adduced evidence from JL to prove that the accused has a tendency to have a particular state of mind, namely, to have a sexual interest in adolescent female children, and a tendency to act in a particular way, namely, to act upon that aforementioned sexual interest;
(ii)the video recording of the police interview with TR on 16 April 2018 may be admitted in the proceedings as her evidence in chief.
This decision is not to be published, other than to parties, until the accused’s trial is completed.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 10 May 2019 |
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