R v Tahana
[2019] ACTSC 54
•5 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Tahana |
Citation: | [2019] ACTSC 54 |
Hearing Date: | 7 November 2018 |
DecisionDate: | 5 March 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [47]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – admissibility of coincidence evidence |
Legislation Cited: | Criminal Code 2002 (ACT) ss 326, 350, Evidence Act 2011 (ACT) ss 55, 97, 98, 101 |
Cases Cited: | Festa v The Queen (2001) 208 CLR 594 IMM v The Queen [2016] HCA 14; 247 CLR 300 Vojneski v The Queen [2016] ACTCA 57; A Crim R 370 |
Parties: | The Queen (Crown) Tania Rosella Tahana (Accused) |
Representation: | Counsel Mr D Swan (Crown) Self-represented (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Self-represented (Defendant) | |
File Numbers: | SCC 77 of 2018; SCC 79 of 2018. |
Loukas-Karlsson J
Introduction
The prosecution in this matter seeks a pre-trial ruling on the admissibility of tendency and coincidence evidence pursuant to ss 97 and 98 of the Evidence Act 2011 (ACT) (the Evidence Act).
Tania Rosella Tahana (the accused) has been charged and has entered pleas of not guilty to 34 counts of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) (the Criminal Code). Additionally, the accused has entered pleas of guilty to a further 30 charges of obtaining property by deception. The accused has also pleaded guilty to two charges of false accounting contrary to s 350(2)(a)(i) of the Criminal Code.
The prosecution seeks to adduce evidence of the charged events as coincidence and tendency evidence supporting each other charged incident. Events 1 – 64 comprise the charges of obtaining property by deception. All of the events involve funds being withdrawn from the Yellow Edge Pty Ltd business account, and then being deposited into the ANZ account controlled by the accused.
Event 65 relates to broader false entries made by the accused into the MYOB accounting software. Event 66 relates to evidence that the accused prepared misleading accounting documents between 1 August 2011 and 13 November 2011, purporting to reflect the taxation debits and credits of Yellow Edge Pty Ltd.
The prosecution seeks to adduce evidence of events 1 – 65 to prove that the accused had the following tendencies:
(a)To falsify MYOB accounting records to record an entity as a payee for funds which were then transferred into an account controlled by the accused; and
(b)To conduct unauthorised electronic funds transfers from the Yellow Edgy Pty Ltd Westpac account into an ANZ account controlled by the accused.
The prosecution seeks to adduce evidence of events 1 – 66 to prove:
(a)That the accused conducted each of the relevant transfers;
(b)That the accused entered the relevant incorrect entries into the MYOB accounting software utilised by Yellow Edge Pty Ltd;
(c)That the accused utilised the same method to conceal the payment of funds via the MYOB software utilised by Yellow Edge Pty Ltd;
(d)That the accused utilised the same method for all relevant transfers; specifically that funds from the Yellow Edge Pty Ltd Westpac account to the ANZ account controlled by the accused.
The accused was self-represented and made no submissions on the application.
Tendency Application
In order to succeed, the prosecution must establish the following:
(a)That the evidence is relevant under s 55 of the Evidence Act;
(b)That the tendency evidence has significant probative value pursuant to s 97 of the Evidence Act; and
(c)That the probative value of the tendency evidence substantially outweighs any prejudicial effect.
In dealing with the application, I adopt the same approach as outlined in Vojneski v The Queen [2016] ACTCA 57; A Crim R 370.
Relevance: s 55 of the Evidence Act
10. The first question is whether the tendering party has identified a s 97 tendency.
11. The prosecution seeks to adduce the evidence to prove that the accused had a tendency to act in a particular way, namely:
(a)To falsify MYOB accounting records to record an entity as a ‘payee’ for funds which were then transferred into an account controlled by the accused; and
(b)To conduct unauthorised electronic funds transfers from the Yellow Edge Pty Ltd Westpac account into an account controlled by the accused.
12. The prosecution sought that all events noted in the application be adduced as tendency evidence in the proceedings. Each count on the indictment is included as a distinct event, and accordingly the applicant sought that all counts on the indictment be cross-admissible on a tendency basis. The prosecution has identified a s 97 tendency.
13. The next question is whether the events are capable of establishing the asserted tendency.
14. The prosecution submitted that on the face of it, there was no “particular rhyme or reason” as to why some of the events were contested, and why others weren’t, as the “method is the exact same in each instance”, and the “recipient is the exact same in each instance”. The prosecution submitted that the evidence would clearly indicate a pattern of behaviour whereby MYOB accounting records were doctored and funds were transferred into the ANZ account controlled by the accused. The prosecution submitted that the events demonstrate both a “pattern of conduct” and an “underlying unity”, to prove the existence of the asserted tendency.
15. In my view, events 1-64 are capable of establishing the asserted tendency. However, I am not satisfied that event 65 is in the same category.
16. The third question is: what are the relevant “facts in issue” in the proceedings?
17. The prosecution submitted that their application has proceeded on the basis that all facts required to be proved remain in issue in these proceedings. Where the facts in issue have not been identified, it is appropriate to approach the issue of admission of tendency evidence on the basis that the perpetration of the acts alleged is in issue: see R v King [2012] ACTSC 176 at [6] (Burns J).
18. As such, the prosecution submitted that the tendencies sought to be relied upon have direct relevance to critical facts in issue, specifically, whether it was the accused who made the electronic transfers into the nominated ANZ account and the circumstances in which those transfers were made.
19. The prosecution further submitted that evidence that the accused has a tendency to act in the way articulated in the prosecution notice makes it inherently more likely that the accused engaged in conduct comprising of each of the 34 counts on the indictment and that she possessed the requisite state of mind when engaging in the conduct.
20. The final question on relevance is, if the fact finder accepted that the tendency incident occurred and showed the asserted tendency, could the tendency inform the fact in issue?
21. I accept that the tendency could inform the fact in issue in this case. In my view, this is self-evidently clear on the facts of this case.
Significant Probative Value of the Tendency Evidence: s 97 of the Evidence Act
22. The prosecution submitted that the High Court explained “significant probative value” in the context of tendency evidence in IMM v The Queen [2016] HCA 14; 247 CLR 300 at [46], [64] (French CJ, Kiefel, Bell and Keane JJ) as follows:
[46]Cross on Evidence suggests that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.
…
[64]The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue…
23. The prosecution submitted that the High Court stated in Hughes v The Queen [2017] HCA 20; 92 ALJR 52 (Hughes) at [41] (Kiefel CJ, Bell, Keane and Edelman JJ) that assessing probative value involves a two-step process:
In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself and together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
24. The prosecution submitted that in Hughes, the High Court considered whether the evidence is required to display features of similarity with the facts in issue in order to have “significant probative value”. The prosecution referred to the majority judgment 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.
25. The prosecution submitted that it was clear that in this instance that the probative value of the evidence is “extraordinarily high”. It was submitted that the evidence indicates a clear pattern of behaviour in which the MYOB accounting records were doctored and funds were then transferred into the ANZ account controlled by the accused. The prosecution referred to the fact that with respect to all 64 transfers comprising events 1 – 64 of the notice, in each instance the funds were withdrawn from the Yellow Edge Pty Ltd business account and deposited into the ANZ account controlled by the accused.
26. The prosecution referred to Hughes at [41] and noted that the prosecution is not required to demonstrate a “pattern of conduct” or “underlying unity” in the evidence to prove the existence of a tendency, however it was submitted that the evidence in this case does demonstrate such a pattern.
27. The prosecution further submitted that event 65 relates to the broader false entries made by the accused into the MYOB accounting software, for between dates which encompass the period in which the 34 counts on the indictment are alleged to have occurred.
Whether the probative value of the evidence substantially outweighs any prejudicial effect: s 101 of the Evidence Act
28. The prosecution submitted that the “weighing exercise” required under s 101(2) of the Evidence Act requires that the evidence be taken at its highest. It was further submitted that in a criminal trial, tendency evidence may cause prejudice because the evidence may be given “disproportionate weight”, the evidence may cause the jury’s assessment of the case to be clouded by an “emotional response”, or “by requiring the accused to answer a raft of uncharged conduct stretching back, perhaps, many years”: see Hughes at [17], see also Festa v The Queen (2001) 208 CLR 594 at [22] (Gleeson CJ), [51] (McHugh J); Papakosmas v The Queen (1999) 196 CLR 297 at [91]-[92] (McHugh J). The prosecution submitted that evidence does not cause prejudice only because it tends to prove the prosecution case.
29. The prosecution submitted that the evidence of tendency is not of such a nature that it would occasion any unfair prejudice to the accused.
Decision
30. In my view, the probative value of the evidence is significant and outweighs any prejudicial effect.
31. I find therefore that events 1-64 are admissible as tendency evidence, but that incident 65 is not admissible as tendency evidence.
McPhillamy
32. I note that at the time of hearing the application, the High Court’s Reasons for Judgment in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 (McPhillamy) were not yet available. In McPhillamy, the majority stated the following at [26]:
As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence.
Coincidence Application
33. In R v Kandola [2016] ACTSC 395 (Kandola), Chief Justice Murrell outlined at [14] the relevant questions for the court on an application to adduce coincidence evidence. They are:
(a) Has the tendering party identified a particular act or particular state of mind that is in issue?
(b) What are the two or more events that are said to be similar?
(c) Assuming that the factfinder accepted that the events in question occurred, are the similarities in the events or the circumstances in which they occurred such that the factfinder could consider that it was improbable that the events were merely coincidental?
(d) If the factfinder accepted that coincidence was improbable, would this have significant probative value, that is, would it be significant, important or influential to proving that the accused did the particular act or had the particular state of mind that is in issue?
(e) Does the probative value of the coincidence evidence substantially outweigh any prejudicial effect? See R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 at [31]; R v Donnelly [2016] ACTSC 80 at [9] and R v Klobucar [2016] ACTSC 23; 305 FLR 445 at [49].
Has the tendering party identified a particular act or particular state of mind that is in issue?
34. The prosecution submitted that the evidence is sought to be led to prove the following acts:
(a)That the accused conducted each of the relevant transfers;
(b)That the accused entered the relevant incorrect entries into the MYOB accounting software utilised by Yellow Edge Pty Ltd;
(c)That the accused utilised the same method to conceal the payment of funds via the MYOB software utilised by Yellow Edge Pty Ltd; and
(d)That the accused utilised the same method for all relevant transfers, specifically, that funds from Yellow Edge Pty Ltd Westpac account were transferred to the ANZ account controlled by the accused.
What are the two or more events that are said to be similar?
35. The prosecution referred to 66 events to support the proposition that it was the accused who committed the particular act, being the 34 counts on the indictment.
Assuming that the factfinder accepted that the events in question occurred, are the similarities in the events or the circumstances in which they occurred such that the factfinder could consider that it was improbable that the events were merely coincidental?
36. The prosecution submitted that events 1 – 64 are “strikingly similar” which supports the proposition that it would be improbable that the events occurred coincidentally. Those similarities were identified as follows:
· On every occasion funds were drawn from the Yellow Edge business account…and transferred into the account held by the accused and her partner…;
· On every occasion, the MYOB records relating to those transactions falsely listed a separate entity as a ‘payee’ as opposed to showing the account associated with the accused as the beneficiary of the transfer. Again, the accused has pleaded guilty to a charge of manipulating the MYOB records for between dates and to facts which cover the 34 counts on the indictment;
· The limited access to the MYOB and banking accounts used by Yellow Edge within the organisation;
· Consistency in amounts transferred – for example, the figure $9,900 was transferred 21 times out of the total of 64. The accused has pleaded guilty to having conducted a number of those transfers;
· The deliberate mechanism that would need to be utilised to have the MYOB software record an account as a ‘payee’ and to then manually change a supplier’s account on a payment file prior to the transfer being conducted;
· That the accused also manipulated the taxation records of Yellow Edge, which were provided to STW Group prior to the acquisition, which concealed the financial obligations of the company and the effect that unauthorised transfers had had on the company’s abilities to meet those obligations.
37. The prosecution submitted that these events speak to a deliberate course of conduct extending over a number of years where, with respect to the 64 events, the accused utilised the exact same method to conceal the ANZ account she controlled was a beneficiary of unauthorised funds from Yellow Edge Pty Ltd. The prosecution referred to the fact that on every occasion the accused withdrew and then deposited the funds into the exact same account.
38. The prosecution further submitted that given that the accused was a direct beneficiary, the limited access within the organisation to the accounts which allowed an individual to conduct the relevant transfers, and the evidence which indicates that the process would have likely required deliberate and manual manipulation of payment files, the prosecution submitted that it is highly improbable that the events occurred coincidentally.
39. I accept the prosecution submission as it accords with my view in respect of events 1-64. In my view, events 65 and 66 are in a different category.
If the factfinder accepted that coincidence was improbable, would this have significant probative value, that is, would it be significant, important or influential to proving that the accused did the particular act or had the particular state of mind that is in issue?
40. The prosecution submitted that it is clear that if this evidence were to be admitted on a coincidence basis, it would have significant probative value.
41. In my view, the evidence if admitted on a coincidence basis would have significant probative value.
Does the probative value of the coincidence evidence substantially outweigh any prejudicial effect?
42. In my view, the probative value of the coincidence evidence substantially outweighs any prejudicial effect.
Decision
43. I find that events 1-64 are admissible as coincidence evidence, but that events 65-66 are not admissible as coincidence evidence.
Jury directions for both tendency evidence and coincidence evidence
44. In Kandola, it was underlined that where evidence is being tendered on the basis of both tendency and coincidence, there is a legitimate concern about the complexity of directions to a jury where evidence is put forward as both tendency evidence and as coincidence evidence. If the evidence is put to a jury on both bases, there may be a challenge in articulating the two different ways in which the evidence could be used in a summing up that is accessible for a jury.
45. The relevant passages in Kandola at [21] – [22] are as follows:
21.In relation to each charged incident, the other two incidents are both, in my view, individually and in combination capable of establishing the asserted tendency. It is true that there was a time gap between the various incidents. However, they all occurred within the space of about 12 months and the distinctiveness of the conduct is such that it is my view that a jury could conclude that if a tendency was possessed at one or other of the relevant dates, then it was probably possessed at the time of the relevant charged act. The fact in issue to which the tendency evidence might go is as I have identified in respect of the coincidence evidence, whether the accused did a relevant charged act and whether he did it intentionally. I am satisfied that if the jury accepted that one or both tendency incidents occurred, then that could well establish in the jury’s mind the asserted tendency which would be a very influential circumstance when the jury was considering the relevant charged act. Again, the defence has not identified any relevant unfair prejudice.
22.Having said that, the defence has raised the concern which in my view is a legitimate concern about the complication—that the task of a judge who is trying to explain to a jury the relevance of evidence both as tendency evidence and as coincidence evidence would have a difficult task and if the evidence was put to the jury on both bases, then the judge would face a challenge in articulating the two different ways in which the evidence could be used. That is not to say that it is an insurmountable task and because it is not necessarily an insurmountable task, that may not even amount to a prejudice. To the extent that it is a prejudice, then it is a matter for the trial judge to consider at the time of the trial. It is not a prejudice that falls within s 101 and influences a finding as to whether the evidence is admissible as tendency or coincidence evidence.
46. Finally, I make the point that this may be a matter to be considered at trial, although it is not a matter to be considered under s 101 of the Evidence Act. It is, however, a practical matter for the trial as to whether to proceed on both a tendency and a coincidence basis.
Order
47. I make the following orders
(a)Events 1-64 are admissible as tendency evidence.
(b)Event 65 is not admissible as tendency evidence.
(c)Events 1-64 are admissible as coincidence evidence.
(d)Events 65-66 are not admissible as coincidence evidence.
(e)I direct that these reasons not be published, other than to parties, until the accused’s trial is completed.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 5 March 2019 |