R v Stott
[2019] ACTSC 272
•9 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Stott |
Citation: | [2019] ACTSC 272 |
Hearing Date: | 12 September 2019 |
DecisionDate: | 9 October 2019 |
Before: | Mossop J |
Decision: | See [40] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency evidence – where tendency incidents involve co-accused’s involvement in related proceedings – where tendencies alleged are unusual or specific – whether tendency incident the subject of the conduct charged in the trial can be led – it cannot |
Legislation Cited: | Evidence Act 2011 (ACT), ss 97, 101, 101(2), 135, 137 |
Cases Cited: | DPP (ACT) v DL [2018] ACTCA 61; 14 ACTLR 62 DPP v Hills & Ors (No 6) [2010] VSC 486 R v Chase [2018] NSWCCA 71 |
Parties: | The Queen (Crown) Sharon Stott (Accused) |
Representation: | Counsel R Khazma (Crown) S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 90 of 2019 |
MOSSOP J:
Introduction
The accused, Sharon Stott, faces four counts on an indictment dated 23 July 2019. Each offence relates to a complainant who I will refer to as DT. Count 1 is that the accused and her co-accused, David Evans, unlawfully confined DT. Count 2 is that the accused and Mr Evans, intentionally inflicted actual bodily harm on him. Count 3 is that the accused and Mr Evans made a demand of DT with a threat to endanger his health, safety or physical well-being. Count 4 is that the accused attempted to detain DT with the intent of holding him for advantage.
The Crown case is that on 18 January 2019 the accused and the co-accused attended an address in Kambah. DT also arrived to visit the resident of those premises. The accused and Mr Evans are alleged to have followed DT into the house and detained him over a period of approximately one hour, demanding a payment of $20,000 from him. Mr Evans was armed with a baseball bat which he raised several times causing the complainant to believe that he was about to be struck. The accused eventually told DT to stand up. Mr Evans is then alleged to have struck DT with a baseball bat multiple times upon various parts of his body including his head before DT was able to arm himself with a knife and chase the accused and Mr Evans out the front of the residence.
The accused has elected for a trial by judge alone. The co-accused, Mr Evans, has also filed an election for trial by judge alone. The matter is listed for hearing by a judge sitting alone commencing on 18 November 2019.
The tendency application
The Crown has given notice that it intends to adduce tendency evidence. It has also filed an Application in Proceedings dated 20 August 2019 seeking a pre-trial ruling upon the admissibility of that tendency evidence.
The tendencies that the Crown seeks to prove are:
That the accused had a tendency to act in particular ways, and to have a particular state of mind namely:
1.A tendency to make up a debt or inflate a debt;
2.A tendency to participate with one or more male accomplices in holding or confining a person against their will to recover the debt or the purported debt;
3.A tendency to make up a debt or inflate a debt owed to her to demand payment; and
4.A tendency to use violence or direct her accomplices to use violence against the person in trying to recover the debt.
The tendency evidence proposed to be led relates to three incidents identified as incident 1, incident 2 and incident 3.
Incident 1 is an incident occurring on 12 and 13 May 2009. The accused along with several male co-offenders is alleged to have met a person, who I will refer to as TF, at a location in Wanniassa to discuss a debt said to be owed by him. The accused and co‑offenders are alleged to have parked next to TF’s vehicle, exited the vehicle and the accused is alleged to have attempted to strike TF with an iron bar. TF ran away and, a short time later when walking through a nearby street, it is alleged that TF was run over by the accused and her co-offenders in their vehicle. TF was then dragged into the accused’s vehicle and taken to her residence. He was detained over the next two hours and asked to come up with ideas for getting money to pay back the alleged debt. He was at times punched or allowed to be attacked by the dog of the accused. He was prevented from leaving or escaping. He was threatened with having a pillowcase put on his head secured by gaffer tape. He managed to leave when police had surrounded the premises.
Incident 2 is alleged to have occurred on 10 January 2019. Two men including the co‑accused Mr Evans are alleged to have approached the front door of the residence of a person who I will refer to as NH. They indicated that they wished to speak to him in private and so NH allowed them into the premises. When they entered the premises two other male persons appeared from the stairwell and also enter the premises. When they entered the premises they began searching and ransacking the premises. Five minutes after they had entered, the accused is alleged to have entered the premises. She told her alleged co-offenders that she wanted to get the cars and the keys to the cars and told her alleged co-offenders to “Fuck him up”. The males hit NH with a guitar. His head was “stomped on”. One of the males threatened to cut his throat with a knife. NH eventually disclosed the location of his car keys. He continued to be assaulted by the males until they left the premises. The accused is alleged to be the driver of the vehicle which left the premises.
Incident 3 is the incident involving the charged offences, the details of which have been summarised above at [2].
The contentions of the parties
The matters in dispute between the parties for the purposes of the present application were largely determined by the matters put in issue on behalf of the accused. Counsel for the accused made some concessions as to admissibility and identified the grounds of opposition to parts of the tendency evidence.
Incident 1
Counsel for the accused conceded that evidence relating to incident 1 is admissible to prove that the accused had the following tendencies based upon tendencies 2 and 4:
(a)a tendency to participate with one or more male accomplices in holding or confining a person against their will to recover a real or purported debt; and
(b)a tendency to threaten and use violence and to direct accomplices to use violence against a person to recover a real or purported debt.
These tendencies have been slightly reformulated from those in the Crown tendency notice so as to make them not dependent upon tendencies 1 and 3.
The accused conceded:
(a)that the material filed in relation to incident 1 would tend to establish that the accused had those two tendencies;
(b)those two tendencies are relevant to facts in issue in the trial; and
(c)the tendency evidence would have significant probative value in the trial of the accused on the charges that she faces.
Counsel for the accused submitted that tendencies 1 and 3 are not relevant. He contended that it is irrelevant to any fact in issue in the trial whether or not the asserted debt was real, inflated or manufactured. He contended that it is not a case where any claim of right might provide a defence to the conduct alleged. He submitted that allowing evidence of the asserted tendencies had the potential to sidetrack the trial into evidence about the reasons for, or nature of, the various alleged debts. He submitted that that line of enquiry will unfairly prejudice the accused and may involve the Crown seeking to lead evidence in relation to alleged drug dealing by the accused.
Notwithstanding that last submission, counsel for the accused accepted that, in relation to DT, it will be open to the Crown to lead evidence from him about dealings with the accused giving rise to any alleged debts as part of the relationship between the two in the context of the allegations made by DT.
So far as the significance of tendencies 1 and 3 were concerned, counsel for the Crown submitted that these were features which made the tendency a more unusual and specific one, and hence, a tendency which provided greater support for the Crown case because the incident is alleged to have involved those features.
Incident 2
In relation to incident 2, counsel for the accused submitted that it would be unfairly prejudicial to the accused to have to respond to the allegations and evidence that would be led to prove incident 2. That is because she is yet to face trial on those charges and is to be tried jointly with four other persons including Mr Evans. The unfair prejudice is said to arise because the accused cannot properly address or respond to any evidence led to establish incident 2 without having to disclose and raise her defence to those charges which are to be tried later.
Counsel for the accused also submitted that the material relating to incident 2 would be likely to add three or four days to the hearing time itself.
He also submitted that as the matter involves four other co-accused including Mr Evans, leading such evidence would be clearly prejudicial to his interests in this trial.
Counsel referred to the decision in R v Chase [2018] NSWCCA 71 (Chase) as well as the decision of the Court of Appeal in DPP (ACT) v DL [2018] ACTCA 61; 14 ACTLR 62 (DL). Counsel’s submissions did not explain whether those two decisions could be reconciled or how his submissions fit within the framework provided by DL. He also referred to the ruling by a trial judge in DPP v Hills & Ors (No 6) [2010] VSC 486. That involved an application to cross-examine a co-accused about separate allegations of violence. The trial judge found that the cross‑examination would be prejudicial and any relevance was “entirely tenuous”. The submissions on behalf of the accused did not articulate how this authority was of significance other than illustrating a refusal to permit a “trial within a trial”.
So far as prejudicial effect arising out of incident 2 was concerned, counsel for the Crown submitted relying on the decision of McHugh J in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 at [91] that the evidence would be unfairly prejudicial only if it would be misused by the jury in some unfair way. She submitted that if there was prejudice arising from the use of incident 2 for tendency purposes in the current trial, then the court might deal with that possible prejudice by reversing the order of the trials which are presently scheduled to take place one after the other.
She also referred to the decision of the Court of Appeal in DL and the answer to the question identified in that reference appeal, which included “the judge should not consider the effect that the use of the tendency evidence against the defendant in the proceeding may have on the defendant in other proceedings”.
Incident 3
In relation to incident 3, counsel for the accused submitted that there is an illogicality in identifying incident 3 as a tendency incident when it is that incident which gives rise to the charges that are the subject of the trial. The case is distinct from a situation where there are multiple charged incidents which are sought to be made cross‑admissible. He therefore submitted that the inclusion of incident 3 was simply redundant.
As to the extent of any prejudice in relation to incident 2, counsel for the Crown pointed out that the accused had already provided her version of events during a conversation with police which could be put into evidence.
Consideration
The admissibility of the evidence must be assessed in accordance with ss 97 and 101 of the Evidence Act 2011 (ACT) (the Act). Regard must also be had to the potential for exclusion under ss 135 and 137 of the Act.
It is significant, in relation to addressing the issue of unfair prejudice under s 101, that the accused (and her co-accused) has filed an election for trial by judge alone. The risk of unfair prejudice must therefore be assessed in light of the fact that a judge rather than a jury will be the relevant finder of fact.
Incident 1
Counsel for the accused correctly conceded the admissibility of the evidence of incident 1 in relation to tendencies 2 and 4. The issue between the parties in relation to incident 1 is whether or not evidence that will be led in support of tendencies 1 and 3 are of significant probative value and, if so, whether they are unfairly prejudicial to the accused.
In my view such evidence would have significant probative value. The effect of tendencies 1 and 3 is, in combination with tendencies 2 and 4, to make more specific the overall combination of tendencies sought to be proved. It is not clear why tendencies 1 and 3 have been articulated in the largely overlapping way that they have. However, because they make the combined tendencies significantly more specific and more unusual, they increase the extent to which the establishment of the tendencies would support the likelihood of the commission of the offence in the present case. One of the unusual features of the alleged offending is the allegation that the debt was not owed. The establishment of tendencies 1 and 3 would make such an allegation more believable than if the evidence of the alleged incident stood alone.
The vice of the evidence that would be led in support of the tendency is the potential to sidetrack the trial into extensive evidence about the reasons or nature of the various alleged debts. This is said to increase both the length of the trial and the prejudice to the accused because it will involve a great deal of evidence relating to alleged drug dealing.
On the material before me I consider that these vices are unlikely to arise. The Crown will seek to prove the tendency to make up or inflate debts by reference to the evidence of TF that his debt was a much smaller one than alleged by the accused and it was a debt owed to a different person. The material before me does not establish that the Crown would seek to lead evidence that would substantially extend the trial. Nor does the material before me indicate that the accused would lead evidence on this issue that would substantially extend the trial.
As indicated above, I do not accept that there will be a relevant prejudicial effect upon the accused. I consider that the probative value of the evidence substantially outweighs any prejudicial effect that it has on the accused.
Incident 2
The decision in DL recognised that unfair prejudice for the purposes of s 101 was not limited to the risk that a jury will misuse evidence in some unfair way in the trial. Rather it was a wider criterion. That was consistent with the rejection in Chase of a similarly narrow contention: see Chase at [32]. The decision in DL was to the effect that the existence of a subsequent trial on charges involving the tendency incidents might require the accused “to make unavoidable forensic choices” in the conduct of the first trial but that did not constitute relevant prejudice for the purposes of s 101(2) of the Act: see DL at [37]-[39].
Insofar as the accused would be required to make forensic choices about how to respond to the tendency evidence comprised by incident 2, that is not a relevant prejudice for the purposes of s 101(2). The specific factual matters relied upon in order to establish unfair prejudice were the increase in the length of the trial and the fact that the co‑accused, Mr Evans is also subject to that trial. It is not presently possible to identify the extent to which leading of the tendency evidence will extend the trial. Clearly it will be extended to some extent by the necessity to lead evidence from NH. While I accept that in a jury trial leading large amounts of evidence directed only to the establishment of the tendency may carry with it the risk that the jury’s attention is unfairly diverted away from the charges faced by the accused, it is not apparent that the evidence to be led will be of such a volume as to carry with it such a risk and, in any event, the trial is being conducted by a judge alone.
Insofar as the evidence is led against the accused only, there would clearly be a risk to her co-accused of it being admitted in the case against him. He has not been heard in the present application. The difficulties that might exist with partitioning the use to which evidence may be put will be dramatically lessened by the fact that the trial is to be conducted by judge alone.
The accused gave a version of incident 2 to police. This involves her saying that she was only there to retrieve a gun, not involved in any violence, confinement or detention and not concerned with the stealing of NH’s vehicle. The submissions of the accused did not descend to any detailed aspects of the evidence that she may wish to lead in response to the allegations (beyond that in her interview with police), that would give rise to unfair prejudice in circumstances where her trial along with a number of co-accused had not yet occurred. Therefore, as the argument was presented, it did not extend beyond the necessity to make forensic choices that were found in DL to be outside the scope of prejudice relevant for the purposes of s 101.
Insofar as the submissions of the accused involve an analysis of the evidence of NH and, more importantly, the accused, it is necessary to bear in mind that the tendency evidence must be assessed on the basis that it is accepted and thus regarded as both credible and reliable: IMM v The Queen [2016] HCA 14; 257 CLR 300 at [48]. The evidence of NH, if accepted, would support the existence of the tendencies asserted, even though there is not a strict identity of modus operandi between that tendency incident, incident 1 and the conduct alleged in the present proceedings. Further, insofar as the accused sought to analyse the evidence of NH so as to suggest a limited role for the accused in any violence or confinement, that goes to the extent to which the evidence would support the evidence of the asserted tendency. If NH’s evidence was accepted as reliable, the events would provide significant support for the existence of the tendencies asserted by the Crown.
Incident 3
In relation to incident 3, the difference between the parties is as to whether or not incident 3 may be put into the pool of evidence to be considered by the finder of fact in determining whether or not the Crown has established the identified tendencies. In circumstances where the fact in issue is whether or not incident 3 occurred there is an element of circularity in suggesting that evidence in support of incident 3 could be put into the pool of evidence to determine whether or not the accused had a tendency and then use that tendency to support the occurrence of incident 3. The only possible rationale that would support this conclusion arises because tendency evidence is not required to be proved beyond reasonable doubt: R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846 at [80]. Because of that, the evidence of incident 3 could go into the undifferentiated pool of evidence supporting the tendency. If the tendency existed then it might be used to determine the ultimate question, namely whether incident 3 was proved beyond reasonable doubt.
In my view it is not permissible to adopt such an approach. It is too difficult to avoid circular reasoning. Instead tendency evidence must be evidence other than evidence of the commission of the relevant charged acts. The tendency is therefore a tendency outside the relevant charged acts that supports the occurrence of the charged acts. That does not prevent the use of charged acts other than that being considered as tendency evidence. What it avoids is the circularity involved in using evidence of a particular charged act to support beyond reasonable doubt the occurrence of that charged act.
Summary
My conclusions are that incidents 1 and 2 have significant probative value and the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the accused (ss 97 and 101). I do not consider that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused (s 135). Further, I am not satisfied that the probative value is outweighed by the danger of unfair prejudice to the accused (s 137).
Orders
The orders of the Court are:
1. The evidence of incident 1 identified in the Notice of Intention to Adduce Tendency Evidence dated 20 August 2019 (Tendency Notice) is admissible at the trial in order to establish the tendencies outlined in the Tendency Notice.
2. The evidence of incident 2 identified in the Tendency Notice is admissible at the trial in order to establish the tendencies outlined in the Tendency Notice.
3. The evidence of incident 3 identified in the Tendency Notice is not admissible for tendency purposes.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 9 October 2019 |
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