R v Wolter
[2015] ACTSC 269
•31 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wolter |
Citation: | [2015] ACTSC 269 |
Hearing Date: | 28 August 2015 |
DecisionDate: | 31 August 2015 |
Before: | Refshauge J |
Decision: | 1. Leave be given to admit the evidence of Brewster Ashley and Melinda Johnston as tendency evidence. 2. The evidence of the suspension of Mr Wolter's driver licence should be rejected and the interview should be appropriately edited. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Evidence – tendency and coincidence evidence – culpable driving causing death – pre-trial application – tendency of persons other than the accused – balancing probative value and prejudicial effect – application not opposed CRIMINAL LAW – Evidence – tendency and coincidence evidence – tendency of the accused – tendency to engage in risky behaviour – low probative value – potential prejudice |
Legislation Cited: | Evidence Act 2011 (ACT), ss 97(1), 97(1)(a), 97(1)(b), 101(2), 137; Dictionary Road Transport General Act 1999 (ACT), s 44; Pt 3 Australian Road Rules (ACT), r 300 Road Transport (Offences) Regulation 2005 (ACT), Schedule 1 Pt 1.2 (Item 300) |
Cases Cited: | BP v the Queen [2010] NSWCCA 303 BRS v R [1997] 191 CLR 275 R v Teys (2001) 161 FLR 44 |
Parties: | The Queen (Crown) Dylan Wolter (Accused) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 177 of 2014; SCC 178 of 2014 |
Refshauge J
On 16 August 2013 there was a collision on Mawson Drive, Mawson, in the Australian Capital Territory, between a black Mazda sedan and an elderly pedestrian, Natalie Ashley, who died at the scene of the collision.
As a result, the accused, Dylan Wolter, was charged with culpable driving causing death. He was committed for trial which is listed to commence on 31 August 2015.
The Crown has applied for leave under s 97(1) of the Evidence Act 2011 (ACT) to adduce certain evidence as tendency evidence. I granted the application and said I would give my reasons later. These are those reasons.
Tendency evidence
Tendency evidence is evidence of a person's conduct, character or reputation which shows that the person has a tendency to act in a particular way or to have a particular state of mind.
In the common law, there was a view that tendency evidence, often called propensity evidence, was confined to "criminal or reprehensible conduct". See BRS v R [1997] 191 CLR 275 at 299, 305 and R v Teys (2001) 161 FLR 44 at 55; [63]. The Evidence Act does not limit it in this way and, indeed, such evidence can be given not just about the accused, but of other people. This was suggested by Mason P in R v Colby [1999] NSWCCA 261 at [106], although his Honour made no final finding. Even at common law there were occasions where the propensity of a complainant became admissible (see, for example, R v Howe [1958] SASR 95; R v Bashir [1969] 3 All ER 692).
I have no doubt that, under the Evidence Act, tendency evidence can be admitted, subject to meeting the relevant pre-conditions, concerning persons other than the accused, including the complainant or, in appropriate circumstances, other third parties, as long as the basic requirements of relevance are met.
In addition to the basic requirement of relevance, there are three pre-conditions to the admissibility of such evidence which otherwise is inadmissible. They are:
(a)the party seeking to adduce it has given reasonable notice (s 97(1)(a) of the Evidence Act);
(b)the evidence has, by itself or with other evidence, significant probative value (s 97(1)(b) of the Evidence Act); and
(c)the probative value of the evidence substantially outweighs its prejudicial effect (s 101(2) of the Evidence Act).
The probative value of evidence is defined in the dictionary of the Evidence Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
Prejudicial effect is not defined in the Evidence Act but it has been considered many times by the courts. As Hodgson JA, with whom Price and Fullerton JJ agreed, observed succinctly in BP v the Queen [2010] NSWCCA 303 at [109]:
The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue
The court must then undertake a balancing exercise, though it is not the real effect of the task for the two interests, probative value and prejudicial effect, are incommensurables, though the legislation directs that task as deciding whether the prejudicial effect outweighs the probative value.
There has been much consideration of this issue; tendency evidence (and coincidence evidence, for which many of the same issues arise) is now a regular feature of trials in this jurisdiction, especially the trials of sexual offences, but, as this application shows, also in the trial of other offences.
It is, however, important to ensure that the evidence is, in truth, tendency evidence and not merely part of the acts surrounding the alleged offence itself or, as in one case, the acts of the offence itself.
I have set out in some detail in R v Lam [2014] ACTSC 49 at [40] the principles applicable to a consideration of an application by a party for leave to adduce tendency evidence. I shall apply those principles.
The application
The Application in Proceedings sought leave to adduce evidence of the conduct of Mrs Ashley, who, it was said, crossed Mawson Drive on an almost daily basis in a safe and assured manner. She had, it was further said, a lot of experience with the road. She was conscious of the flow of traffic and would not attempt to cross unless the road was clear in both directions.
This appeared to have been the evidence of a witness, Melinda Johnston, a neighbour of Mrs Ashley, and whose statement was tendered on the application. In a curious way suggestive of a document prepared from a template into which the application was being forced to conform – this evidence was said in the Tendency Notice to be "Incident 1". Of course, unlike, for example, where specific occurrences such as a prior act of drug supply or a prior act of sexual indecency, this was not so much "an incident" as a description by a particular witness of regular behaviour that the witness was said to have observed on many occasions over time.
Thus, what was next set out, in almost identical terms, was the evidence of Mrs Ashley's husband, Brewster Ashley, for which leave was also sought. This was described, equally as curiously, as "Incident 2". There were some minor differences in the words used and the emphasis placed on certain aspects of Mrs Ashley's conduct.
It seems to me that what was really being sought was leave to adduce the evidence of Ms Johnston and of Dr Brewster of their observations of Mrs Ashley's behaviour in regularly crossing Mawson Drive. I shall treat it in that way.
As is required, the tendency said to be proved by the evidence was carefully defined as:
That the accused had a tendency to have a particular state of mind, namely:
(a) To be conscious of pedestrian safety and road safety near Mawson Drive.
That the accused had a tendency to act in particular ways, namely:
(b) To walk safely across Mawson Drive between house number 42 and house number 25.
The evidence
I had regard to the case statement, a helpful document described in R v Goodwin (2009) 233 FLR 473 at 479; [31]. I was also provided with the statements of Ms Johnston and Dr Ashley.
I note, in passing, that, with the proper respect for privacy, the address of Ms Johnston was excised from the body of her statement except that, as a neighbour, in the very next sentence it is then revealed.
Sometimes the probative value of the tendency evidence cannot properly be understood unless it is put into the context of the other evidence, or even the rest of the evidence, to be given in the proceedings.
I was, accordingly, also provided with a transcript of the interview given by Mr Wolter to the police and statements by two motorists who were driving along Mawson Drive at the time of the collision and who stopped to render assistance for Mrs Ashley, as well as the police officer who attended the scene and who was an experienced crash investigator and another police officer, also an experienced crash investigator, who examined Mr Wolter's motor vehicle later.
The latter evidence, in particular, was helpful for it showed that the Event Data Recorder, which retains certain crash and pre-crash data, was able to be assessed. Sergeant Richard Dauth accessed the data and it showed:
(a)at 5 seconds before the collision, the vehicle was travelling at 78 kph with 73% of the throttle opening, a significant throttle opening, which allowed the vehicle to increase its speed despite a slight incline in the road;
(b)at 3.5 seconds before the collision, the vehicle had reached a speed of 87 kph, but the driver then took his foot off the accelerator pedal and the car decelerated slowly;
(c)at 1.5 seconds before the collision, the vehicle was travelling at 83 kph and the driver applied the brakes but slightly as deceleration was slight to 82 kph at one second before the collision and 81 kph at 0.5 seconds before the collision; and
(d)at 0.5 seconds before the collision, the brake was applied more forcefully to bring the speed down to 76 kph at the time of the collision.
The evidence of Ms Johnston was that she lived on Mawson Drive and knew that it was a busy road. She knew Mrs Ashley, as a next-door neighbour and knew that she owned a house on the opposite side of the road which she visited almost daily. She said that Mrs Ashley "was very active and mentally able and had a lot of experience in the road in the area". She and Mrs Ashley, who had owned cats, some of which had been killed when hit by cars on Mawson Drive, talked on occasion about the danger of traffic on the road and how careful pedestrians had to be when crossing the road. She saw her use the road regularly. She was agile and walked at a good pace, she did not rush over the road. Ms Johnston never saw her cross the road unless the traffic was clear on both directions.
The evidence of Dr Ashley was similar. His evidence was that Mrs Ashley was a painter who used their house opposite as a studio. She would go to the house nearly every morning and return home at lunchtime and then go back to the house studio, returning later in the afternoon. She would never return in the dark. Dr Ashley joined her in going to the house on occasion. Mrs Ashley would cross directly from their house. She would always wait until the traffic on the road was clear both ways. On one occasion, Dr Ashley was caught in the middle of the road when he had been walking across the road from his house and a car was travelling very fast, which caused him to have to stop and wait in the middle of the road until it had passed. Dr Ashley had many discussions with his wife about crossing the road and spoke often about safe crossing. Mrs Ashley was very active and, while she had some discomfort from some pain in her foot, she walked well and without a limp.
Consideration
At the stage of a pre-trial application, the precise issues in a criminal trial are not always clear. The court does not have, for example, an opening address by the accused's counsel to define the issues. There are no pleadings required of defence counsel as has sometimes been advocated, for instance, by the Honourable Dr Ken Crispin QC, a former judge of this Court.
That does not mean that some likely issues cannot be identified. For example, the prosecution must prove that there was a dangerous situation and that it was caused by the accused. See McBride v the Queen (1966) 115 CLR 44 at 49; Parker v the Queen (1957) 41 Cr App R 134 at 135; R v Bacic (1994) 20 MVR 93 at 102-3. If, for example, the dangerous situation was caused by the behaviour of Mrs Ashley, then the offence would not be made out. Accordingly, the conduct of Mrs Ashley is reasonably likely to be a potential issue in the proceedings.
Mr J Sabharwal, counsel for Mr Wolter, did not oppose the application. That, in itself, is no indication of what the issues in the trial will be. It is also not the case that such consent can, of itself, justify the admission of the evidence, as the court must make a decision that the evidence is of significant probative value: s 97(1) of the Evidence Act. Nevertheless, such consent, especially by an experienced and competent counsel, is of great assistance to the court in making that determination.
I am satisfied that the evidence of both witnesses has significant probative value given their long and direct knowledge of Mrs Ashley's behaviour when regularly crossing the road. That evidence could readily rationally affect the probability of the existence of the fact that the dangerous situation was caused by the driving of Mr Wolter. It is, being the only other likely cause, other than Mr Wolter's driving, of importance or consequence and thus of significant probative value.
I note that no issue has been taken about the notice given in the application and I accept that proper notice was given as required.
Finally, the question of prejudice, as I have earlier described it, must be considered. None was suggested. I do not have to speculate. The only possibility is that a jury will reason that because Mrs Ashley was, on the evidence, careful and competent in the way she used the road, it necessarily follows that she must have been so on this occasion if the evidence, none of which has been suggested today, shows that she was not. It also avoids a question of her age being suggestive of some disability. That, it seems to me, can be readily dealt with by direction of a kind that the jury is likely both to understand and to accept and obey.
Accordingly, I order that leave be given to admit the evidence.
Related application
A related matter arose, however, on which I was also asked to rule.
In his interview with police, Mr Wolter was asked about whether he was the holder of a driver licence. He said that he was and he produced a licence, the details of which were recorded by police.
Police later discovered that Mr Wolter's licence had been suspended because he had not paid a traffic infringement notice (see Part 3 of the Road Transport (General) Act 1999 (ACT) and especially s 44 of that Act).
There was no evidence before me, but I was informed, that the offence for which the infringement notice had been issued was that Mr Wolter was said to have been, while driving in a motor vehicle or one that was stationary but not parked, using a mobile phone (r 300 of the Australian Road Rules (ACT) and Item 300(1) of Pt 1.2 of Schedule 1 of the Road Transport (Offences) Regulation 2005 (ACT)).
The Crown did not wish to adduce evidence of the use of the mobile phone but of the suspension of his licence.
Mr T Hickey, counsel for the Crown, submitted that the fact that Mr Wolter drove the vehicle while his licence was suspended was an example of risky behaviour that was relevant for the jury to know.
The common law always excluded evidence which had no other purpose than to show that an accused is a person of bad character, as held in R v Rowton (1865) Le & Ca 520; 169 ER 1497. That rule has been abrogated by the Evidence Act and there are various means by which such evidence is now admissible. On the other hand, s 137 of that Act requires evidence in criminal proceedings, such as this trial, to be excluded if its probative value is outweighed by the danger of unfair prejudice. Clearly the reasons for that were explained in R v Rowton.
Evidence of other offences, such as driving whilst suspended from holding or obtaining a driver licence, has the capacity for the jury to reason improperly that Mr Wolter is guilty not because of the strength of the other evidence alone, but because of the commission of the other offence.
Hence I was asked to exclude those passages in the police interview with Mr Wolter that related to his receipt and non-payment of the traffic infringement notice and then the suspension of his driver licence.
Mr Hickey's submission really amounted to an extension of the application for leave to adduce tendency evidence for he submitted that the evidence was evidence of a tendency of Mr Wolter to engage in risky behaviour while driving, in this case, the risk of driving while his driver licence was suspended. This, he submitted, was a further case of the risky behaviour constituted by the other evidence to be adduced, which was also risky behaviour, namely that Mr Wolter was speeding, was driving having taken a drug, namely ice, being methamphetamine, driving at speed despite having the sun in his eyes and driving very close to the gutter.
In my view, there are two reasons why the admission of the evidence should be rejected as such tendency evidence.
In the first place, I do not consider that, as evidence of a tendency, it has significant probative value. There are two reasons for this.
In the interview, Mr Wolter makes it quite clear that he believed that he was still licenced and that he had applied for an extension of time within which to pay the penalty in the traffic infringement notice, an application that he understood was still under consideration and on which no decision had yet been made.
He admitted that he did not generally open his mail, which appears, in any event, to have been sent to his mother's address, where he lived from time to time. He denied having received advice about the suspension of his licence.
If this evidence is to be accepted, and there are, of course, grounds on which his claimed ignorance could be challenged on cross-examination, then there is no basis for the submission that he engaged in the risky behaviour of knowingly driving whilst his driver licence was suspended.
This is the threshold question, but even were Mr Wolter's denial, that he did not know of the suspension of his driver licence, to be successfully challenged on cross-examination, it seems to me that the evidence that he got into the car and drove knowing that his driver licence had been suspended, is not of significant probative value.
In dealing with tendency evidence it is always easy to describe a tendency at a level of generality that casts a very wide net over the evidence that then becomes admissible. Thus, it was suggested that Mr Wolter's willingness to engage in risky behaviour is able, rationally, to affect the likelihood that he engaged in risky driving of the kind already suggested above (at [42]).
The obvious inference from a person deliberately driving whilst his or her driver licence has been suspended, however, is that they would drive very carefully so as not to draw attention to themselves and to expose their status as without a valid licence to drive to discovery.
Even without that problem, it is not clear that a willingness to drive whilst suspended is particularly likely to show that the person will drive in a particular manner. A person who engages in shoplifting or in lodging an incomplete tax return engages in risky behaviour but that is, without more, a weak basis on which to infer that they will engage in burglary or fraud.
There must be some clear and relevantly related connection between the behaviour that is more than using a generic description of "risky behaviour". In this case, it may have been appropriate to describe a relevant tendency as "driving in a risky manner". To so articulate it shows how driving whilst his driver licence was suspended would not rationally assist the jury in deciding whether he drove culpably on this occasion, and certainly not to a significant degree.
Given the low probative value, the second reason for rejecting the evidence is that it is outweighed by the prejudice that the jury may improperly reason that because he drove whilst his licence was suspended, he should be punished and a conviction for the charged offence would achieve that.
While a direction would be given to the jury not to reason in that way, the complexity of a direction that would prohibit such reasoning and yet to permit tendency reasoning would be sufficiently complicated that it would amount to further prejudice and likely confusing the jury.
The evidence of the suspension of Mr Wolter's driver licence should be rejected and the interview should be appropriately edited.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Leila Tai Date: 9 September 2015 |