R v Watson

[2019] ACTSC 63

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Watson

Citation:

[2019] ACTSC 63

Hearing Date:

15 March 2019

Decision Date:

15 March 2019

Before:

Elkaim J

Decision:

See [24]

Catchwords:

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – application to present evidence in summary form

Legislation Cited:

Criminal Code 2002 (ACT) ss 332, 347

Evidence Act 2011 (ACT) ss 50, 97, 101

Cases Cited:

IMM v The Queen [2016] HCA 14; 257 CLR 300

Parties:

The Queen (Applicant)

Andrew Watson (Respondent)

Representation:

Counsel

K McCann (Applicant)

J Masters (Respondent)

Solicitors

ACT Director of Public Prosecutions (Applicant)

Marjason & Marjason Solicitors (Respondent)

File Number:

SCC 161 of 2018

ELKAIM J:

1.              This is an application by the Crown for two sets of pre-trial orders under the Evidence Act 2011 (ACT). Both applications were filed on 25 February 2019.

2. The first is an application to adduce tendency evidence pursuant to s 97 of the Evidence Act. It is supported by two affidavits of Ms Maree Skalistis affirmed on 25 February 2018 and 14 March 2019 respectively. The tendencies that the Crown seeks to reply upon are as follows:

(a)  A tendency to knowingly supply false HOWI certificates to ACT Metropolitan Building Certifiers with the intention of obtaining Commencement Notices (Tendency 1); and

(b)  A tendency to represent, and hold himself out to be legally permitted to perform residential construction work in the ACT, with the intention of obtaining payments for that residential construction work (Tendency 2).

3. The second application is to present evidence in summary form pursuant to s 50 of the Evidence Act. It is supported by an affidavit of Ms Sofia Janackovic affirmed on 25 February 2019. The Crown in this application seeks to lead a summary of the relevant financial payments which are the subject of the charges. This application was not opposed provided it was accepted that the consent did not extend to an acknowledgment of the accuracy of the relevant documents.

Background

4.              The respondent is charged with the following offences:

(a) Four counts of using a false document with the intention of dishonestly inducing someone else to accept it as genuine, contrary to s 347 of the Criminal Code 2002 (ACT) (Criminal Code); and

(b) Four counts of obtaining a financial advantage by deception, contrary to s 332 of the Criminal Code.

5.              The respondent is set to stand trial for these matters on 1 April 2019.

Tendency application

6.              The Crown wishes to use the evidence in each count in support of its case on the balance of the counts.

7.              A HOWI certificate is evidence of a builder holding Home Owners Warranty Insurance. If a builder does not have such a certificate he or she cannot enter a contract for the building or renovation of a residential property.

8.              The Crown case is that the respondent did not have a HOWI certificate. Nevertheless he entered into contracts with four different homeowners which entitled him to receive monies from those owners. He had only been able to enter the contracts, and obtain a commencement notice, because he relied on forged HOWI certificates.

9. Section 97 of the Evidence Act is as follows:

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.

10. Section 101(2) states:

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.

11. There is no issue in this case about the notice required by s 97(1)(a).

12.           I will deal with the two tendencies in turn.

13.           The real argument put forward by the respondent, and which I initially thought had merit, is that once the Crown establishes that the relevant certificate for each count of using a false document (Counts 1, 3, 5 and 7) was in fact false the offences would essentially have been proved. This was because the Crown’s allegation was that the certificates had been created by the respondent and there could be no issue, for example, that there had been a mistake in the use of an otherwise valid certificate.

14.           This point was made forcibly on behalf of the respondent. Mr Masters submitted that if the creation of the false documents was established, Crown would have no more work to do and therefore any tendency evidence would not be probative, let alone significantly probative. In other words the respondent seemed to be saying that proof of the falsity of the certificates of itself proved the offence.

15.           Mr Masters’ submissions accorded with my initial impression of the Crown’s application. The Crown’s response however was that it was not in a position to prove that the false certificates had been created by the respondent. It would therefore be necessary for the Crown to establish his knowledge of their falsity and in addition, in order to succeed on Counts 1, 3, 5 and 7 that the necessary intention to induce another person to accept the documents as genuine and to dishonestly obtain a gain from those other persons remained a task facing the Crown.

16.           The respondent accepted that the evidence supported the alleged tendency but, for the reasons stated above, said that the tendency did not support proof of a fact in issue. Both parties relied on the decision of the High Court in IMM v The Queen [2016] HCA 14; 257 CLR 300 and both parties took me to [104] in the judgement of Gageler J:

The nature of tendency evidence adduced by the prosecution in a criminal trial is that it is evidence of another occasion or occasions on which the accused acted in a particular way. The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of the fact in issue of the accused’s action or state of mind at the time or in the circumstances of the alleged offence.

17.           In my view the admitted tendency is of significant probative value in establishing the mental elements of Counts 1, 3, 5 and 7. I asked Mr Masters if, by his submissions, he was effectively admitting that proof of these counts would be established by only showing the certificates were false. He said, and I do not suggest it was inappropriate to do so, that he was not making any admission in the Crown’s favour.

18.           However what emerges is that there is more to establishing the offences than simply showing the certificates were false. It is to this aspect, that I think the tendency evidence has significant probative value.

19. In relation to s 101 of the Evidence Act Mr Masters submitted that there would be substantial prejudice to the respondent. The submission is to some extent inconsistent with the submission that little more need be established than proof of the falsity of the documents. I do not accept that the probative value does not substantially outweigh any prejudicial effect on the respondent.

20.           In respect of Counts 2, 4, 6 and 8 the Crown relies on the tendency evidence in a similar fashion, namely to establish the dishonesty elements of the offences. I think the arguments here are the same and my conclusion is the same, namely that the tendency evidence should be permitted but only in respect of the proof of those elements of the offences involving dishonesty. In respect of these counts this will apply to the element that the respondent was dishonest.

21.           Turning now to the second tendency. I think the arguments here are essentially the same. The Crown will need to establish that the respondent was dishonest. This is a step further than simply establishing that he used a false document. There is a significant mental element attached to his use of the certificates. In my view the second tendency will be significantly probative in establishing the guilt of the respondent, or more particularly the issue that he acted dishonestly. Once again, mostly because of the way the respondent framed his argument, I do not see how the significant probative value of the tendency could be outweighed by prejudice to the respondent.

22.           The respondent also submitted that the tendency argument could be left to the trial judge in case the evidence in the trial did not give rise to a proper use of tendency evidence. Such an order would defeat the purpose of pre-trial applications and the preparation, by both parties, of their cases for the hearing. While there are occasions where such an approach may be justified this is not one of them.

Summary form application

23.           As already noted the respondent, with a reservation that will be reflected in the order, consented to this application.

Orders

24.           Accordingly, I make the following orders: 

(a) The application to adduce tendency evidence, pursuant to s 97 of the Evidence Act 2011 (ACT), as described in the Notice to Adduce Tendency Evidence dated 22 February 2019 is permitted.

(b)  The permission referred to in Order (a) above is restricted to proof of the following elements in the offences:

(i)     In respect of Counts 1, 3, 5 and 7 the elements are that the respondent knew the documents were false, that the respondent intended to induce someone else to accept the documents as genuine and the respondent intended to dishonestly obtain a gain.

(ii)    In respect of Counts 2, 4, 6 and 8 the element is that the respondent was dishonest.

(c) The application to present evidence in summary form, pursuant to s 50 of the Evidence Act 2011 (ACT), as described in the application in proceeding dated 25 February 2019 is permitted, but noting that the permission does not involve any concession by the respondent that the summarised documents are accurate.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 9 January 2020