R v WR
[2014] ACTSC 339
•19 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v WR |
Citation: | [2014] ACTSC 339 |
Hearing Date: | 20 October 2014 |
DecisionDate: | 19 December 2014 |
Before: | Burns J |
Decision: | The Crown’s application to adduce tendency evidence is refused. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – sexual intercourse with a person under 16 years – act of indecency upon a person under 16 years EVIDENCE – Judicial Discretion to admit or exclude Evidence – application to adduce tendency evidence – multiple complainants – whether subsequent sexual activity is of a lower probative value than previous sexual activity – temporal gap between alleged offences – application refused |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 97, 101 Evidence Act 1995 (NSW) ss 97, 98 |
Cases Cited: | R v Beserick (1993) 30 NSWLR 150 R v Dann [2000] NSWCCA 185 |
Parties: | Regina (Crown) WR (Defendant) |
Representation: | Counsel Mr Hickey (Crown) Mr Hopkins (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Numbers: | SCC 179 of 2013 SCC 120 of 2014 |
Burns J:
The charges
The accused was arraigned on 29 November 2013 on an indictment dated 21 November 2013 in proceedings SCC 179 of 2013 in the following terms:
...THAT between 15 March 2001 and 15 April 2001 at Canberra in the Australian Capital Territory [WR] engaged in sexual intercourse with [E], being a person under the age of 16 years.
SECOND COUNT IN THE ALTERNATIVE TO COUNT ONE THAT between 15 March and 15 April 2001 at Canberra aforesaid [WR] committed an act of indecency upon [E], being a person under the age of 16 years.
THIRD COUNT AND FURTHER THAT between 15 March 2001 and 15 April 2001 at COUNT Canberra aforesaid [WR] committed an act of indecency upon [A], being a person under the age of 10 years.
To these charges he has pleaded not guilty and he is listed to take his trial on this indictment on 10 March 2015.
On 10 July 2014 the Crown filed an indictment in proceedings SCC 120 of 2014 in the following terms:
...THAT between 1 September 1990 and 31 December 1990 at Canberra in the Australian Capital Territory [WR] committed an act of indecency upon [EH], being a person under the age of 16 years.
SECOND COUNT AND FURTHER THAT between 1 September 1990 and 31 December 1990 at Canberra aforesaid [WR] committed an act of indecency upon [EH], being a person under the age of 16 years.
THIRD COUNT AND FURTHER THAT between 1 December 1991 and 31 March 1992 at Canberra aforesaid [WR] committed an act of indecency upon [EH], being a person under the age of 16 years.
FOURTH COUNT AND FURTHER THAT between 1 December 1997 and 31 March 1992 at Canberra aforesaid [WR] committed an act of indecency upon [EH], being a person under the age of 16 years.
FIFTH COUNT AND FURTHER THAT between 1 December 1991 and 31 March 1992 at Canberra aforesaid [WR] committed an act of indecency upon [EH], being a person under the age of 16 years.
SIXTH COUNT AND FURTHER THAT between 1 January 1992 and 1 June 1992 at Canberra aforesaid [WR] committed an act of indecency upon [EH], being a person under the age of 16 years.
SEVENTH COUNT AND FURTHER THAT between 1 January 1992 and 1 June 1992 at Canberra aforesaid [WR] committed an act of indecency upon [EH], being a person under the age of 16 years.
The application to adduce tendency evidence
By an application dated 4 September 2014, the Crown asks this Court to make the following orders:
1. That the prosecution be permitted to adduce evidence outlined as Incidents 1 to 9 in the ‘Notice of Intention to Adduce Tendency Evidence’ dated 1 September 2014 as tendency evidence pursuant to s 97 of the Evidence Act 2011, in particular to prove that the accused acted in particular ways and had particular states of mind described in that notice:
(a) To have a sexual attraction to young girls;
(b) To act on his sexual attraction to young girls;
(c) To place young girls (sic) hands on his penis;
(d) To place his hand inside the pants of young girls;
(e) To rub his groin against the bottom and genital area of young girls;
(f) To get into young girls’ beds whilst they are asleep.
2. The counts on SCC 120 of 2014 and SCC 179 of 2013 be tried together.
The Notice of Intention to Adduce Tendency Evidence (the Notice) referred to in this application sets out details of 13 alleged incidents involving the three complainants in SCC 179 of 2013 and SCC 120 of 2014. While the application seeks an order restricted to incidents 1 to 9 only, I assume this is an error and that the Crown intended to refer to incidents 1 to 13. This assumption is supported by the fact that the Crown seeks an order that the counts on both indictments be heard together, and incidents 12 and 13 refer to the events that form the basis of the three counts on the indictment in SCC 179 of 2013. The only basis proffered by the Crown for an order that all counts on both indictments be heard together is that the Crown proposes to adduce tendency evidence by way of the evidence relevant to each count on the two indictments, as well as evidence of uncharged acts said to have been performed by the accused.
The 13 incidents set out in the Notice are:
Incident 1 (Count 1 on SCC 2014/120)
(a) Substance of the evidence:
Between 1 September 1990 and 31 December 1990, the accused took the hand of [EH] (aged 10 years old) and put it on his erect penis.
(a)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On a morning between 1 September 1990 and 31 December 1990 in the accused’s bedroom at [xxxx].
(a)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 2 (Count 2 on SCC 2014/120)
(b) Substance of the evidence:
Between 1 September 1990 and 31 December 1990, the accused made [EH] (aged 10 years old) sit on his lap and thrust his genital area against her bottom.
(b)(i)Particulars of the date, time place and circumstances at or in which the conduct occurred:
On another day between 1 September 1990 and 31 December 1990 in the lounge room at [xxxx].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 3 (Count 3 on SCC 2014/120)
(c) Substance of the evidence:
On a date between December 1991 and April 1992, the accused pulled [EH] (aged 11 years old) onto his lap and thrust his groin against her genital area.
(c)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On a date between December 1991 and April 1992 whilst swimming in the water during a picnic at Point Hut Crossing, near Gordon.
(c)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 4 (Count 4 on SCC 2014/120)
(d) Substance of the evidence:
On a date between December 1991 and April 1992, the accused placed his hand inside the pants of [EH] (aged 11 years old) and rubbed both sides of her buttocks.
(d)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On another date between December 1991 and April 1992 in the accused’s bed at [yyyy].
(d)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 5 (Count 5 on SCC 2014/120)
(e) Substance of the evidence:
On a date between December 1991 and April 1992, the accused placed his hand inside the pants of [EH] (aged 11 years old) and rubbed her vagina area.
(e)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On another date between December 1991 and April 1992 in the accused’s bed at [yyyy].
(e)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 6 (Count 6 on SCC 2014/120)
(f) Substance of the evidence:
On a date between 1 January 1992 and 1 June 1992, the accused placed his hand inside the pants of [EH] (aged 11 years old) and rubbed her vagina area and buttocks.
(f)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On another date between 1 January 1992 and 1 June 1992 in the complainant’s bed at [yyyy].
(f)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 7 (Count 7 on SCC 2014/120)
(g) Substance of the evidence:
On a date between 1 January 1992 and 1 June 1992, the accused made [EH] (aged 11 years old) masturbate him.
(g)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On another date between 1 January 1992 and 1 June 1992 in the complainant’s bed at [yyyy].
(g)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 8 (Uncharged acts)
(h) Substance of the evidence:
Several times between 1 February 1991 and 1 June 1992, the accused made [EH] (aged 10 or 11) sit on his lap whilst driving and move his groin against her bottom.
(h)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 February 1991 and 1 June 1992 whilst driving along [zzzz].
(h)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 9 (Uncharged acts)
(i) Substance of the evidence:
Several times between 1 February 1991 and 1 June 1992, the accused cuddled [EH] (aged 10 or 11) with an erect penis.
(i)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 February 1991 and 1 June 1992
(i)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 10 (Uncharged acts)
(j) Substance of the evidence:
On two or three occasions between 1 February 1991 and 1 June 1992, the accused pulled his shorts up, exposing his penis, to [EH] (aged 10 or 11) when she walked past him.
(j)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 February 1991 and 1 June 1992 when seated on the couch in the family room at [yyyy].
(j)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 11 (Uncharged acts)
(k) Substance of the evidence:
Several times between 1 February 1991 and 1 June 1992, the accused would lie down behind and cuddle [EH] (aged 10 or 11) whilst she was asleep in her bed.
(k)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 February 1991 and 1 June 1992 in the complainant’s bed at [yyyy].
(k)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[EH].
Incident 12 (Counts 1 and 2 on SCC 2013/179)
(l) Substance of the evidence:
On a date between 15 March 2001 and 15 April 2001, the accused rubbed [E’s] (10 years old) vagina over the top of her pants and later moved his hand inside her underpants and put his finders in her vagina stroking her on the inside.
(l)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On a date between 15 March 2001 and 15 April 2001 in a sofa bed at [aaaa].
(l)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[E].
Incident 13 (Count 3 on SCC 2013/179)
(m) Substance of the evidence:
On a date between 15 March 2001 and 15 April 2001, the accused took [A’s] (9 years old) hand and made her masturbate him whilst kissing her on the lips.
(m)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On a date between 15 March 2001 and 15 April 2001 in a sofa bed at [aaaa].
(m)(ii)The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[A].
At this point I will digress briefly to set out the circumstances of the accused’s association with the complainants and of the alleged offences, as revealed by the Crown’s Case Statements. With respect to proceedings SCC 120 of 2014, the accused was the stepfather of EH, who was 10 or 11 years old in the period 1990 to 1992 when the offences are said to have occurred. On several dates during that period it is alleged that he engaged in sexual activity with EH as set out in incidents 1 to 11 of the Notice. The first complainant in proceedings SC 179 of 2013, E, is the daughter of close friends of the accused. At the time of the alleged offences she was 10 years old. The second complainant, A, is a friend of E, and was 9 years old at the time of this alleged offence. The Crown alleges that the accused slept over at the home of his friends, E’s parents, while E and A were sleeping in a sofa bed in the lounge room. During the night it is alleged he got into bed with E and A and sexually assaulted them as set out in incidents 12 and 13 of the Notice.
Relevant legislation and case law
To be admissible, evidence must be relevant to a fact in issue in the proceedings: s 55 Evidence Act2011 (ACT). There can be no doubt that the tendency evidence the Crown proposes leading is relevant, as tending to establish that the accused had a tendency at the time of these events to be sexually attracted to young (in the sense of prepubescent) females and had a tendency to act upon that sexual attraction. This is capable of rationally affecting the assessment of the probability of a fact in issue in the proceedings, being whether the accused did those acts alleged by the Crown to constitute the offences. The evidence is also relevant to establishing, with regard to the offences alleging that the accused committed acts of indecency, that his purpose in committing those acts was sexual. The proposed evidence satisfies s 55 of the Evidence Act.
The tendency rule is set out in s 97 of the Evidence Act. In summary, evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not admissible unless reasonable notice is given of the intention to adduce such evidence, and the court is satisfied that the evidence will, by itself or having regard to other evidence to be adduced by the Crown, have significant probative value. In criminal cases, such as the present, there is an additional requirement provided by s 101 of the Evidence Act that tendency evidence about an accused to be adduced by the Crown is not to be admitted unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The result of s 97 and s 101 of the Evidence Act is that the Crown must prove, in order to adduce the proposed tendency evidence, that:
(a)the accused has been given reasonable notice of the intention to adduce tendency evidence;
(b)the evidence, either by itself or in combination with other evidence to be adduced by the Crown, has significant probative value; and
(c)the probative value of the evidence substantially outweighs the potential prejudicial effect of the evidence on the accused.
There is no complaint by the accused that reasonable notice of the Crown’s intention to adduce tendency evidence, as required by s 97 of the Evidence Act, has not been given. I am satisfied reasonable notice in writing has been provided.
The term “probative value” is defined in the Dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally effect the assessment of the probability of a fact in issue”. The Evidence Act provides no guidance as to the meaning to be given to the adjective “significant” in s 97 (1) (b). A number of different formulations have been applied, including that it requires more than mere relevance but less than a substantial degree of relevance, or that it must be “important” or “of consequence”: R v Lockyer (1996) 89 A Crim R 457; R v Martin [2000] NSWCCA 332. In practice, there is probably little difference between these formulations.
Evidence will not possess significant probative value as tendency evidence if all it does is establish that the accused has committed a similar type of offence in the past. The sequence of offending, and the time which has elapsed between events, may also be important in determining whether tendency evidence has significant probative value. In R v Watkins (2005) 153 A Crim R 434 the appellant appealed from convictions on 30 counts charging that he, between 1999 and 2002, being an officer of a body corporate, deposited its cheque to the credit of his own bank account with intent to cheat or defraud the body corporate. At his trial the Crown was permitted to lead evidence that the accused had been convicted in 1985 of 37 counts of larceny as a clerk as tendency and coincidence evidence pursuant to s 97 and s 98 of the Evidence Act1995 (NSW);. On appeal he argued that the evidence of the 1985 convictions should not have been admitted. Watkins did not dispute paying 30 cheques from his employer into his personal bank account, but said he did so with the agreement of the chairman of directors of his employer company, Mr Robert Frost. The Crown allegation was that it was done without the knowledge or permission of his employer, and for a dishonest purpose. The issue in Watkins’ trial was therefore whether his actions were dishonest. Barr J (with whom Grove and Howie JJ agreed), after noting similarities and dissimilarities between the subject offences and the earlier offences, said at [33]:
The tendency of the appellant contended for was to cheat and defraud. No doubt if a person is proved to have stolen money from one employer thirty-seven times over a period of a year, misleading other employees by his lies, he may be understood to have a tendency to cheat and defraud his employer. No doubt, also, the person in whom such a tendency is established may be expected to retain that tendency for some time, especially if he continues to occupy a similar position... But people do reform, and the fact that the Crown asserted no dishonest act between 1984 and 1999 coupled with the fact that in 1985 the appellant pleaded guilty and returned all of the money he had stolen...might have thrown doubt on the continuation of his tendency for a period as long as fifteen years.
To have significant probative value the evidence had to be more than merely relevant but have a substantial degree of relevance, and that was to be judged by the issue raised at trial, namely whether the appellant deposited the cheques intending to cheat and defraud [his employer] or whether he was innocently giving effect to an arrangement proposed by Mr Robert Frost...
There was no logical connected between the events of 1983 and 1984 and 1999 to 2002, and the only way in which the jury could have used tendency evidence was to reason that the appellant was a cheat and a fraud, and was therefore more likely to have cheated and defrauded [his employer], which is another way of saying he was therefore more likely to be lying in his assertion about the arrangement he said was proposed by Mr Robert Frost.
Barr J considered that the probative value of the evidence was “heavily qualified” such that its probative value did not substantially outweigh its prejudicial effect, and as such it should not have been admitted.
In effect, the evidence of the 1985 convictions did not reveal any relevant pattern or system of offending, such that it would assist the jury in determining whether Watkins committed the later offences. All it revealed, as Barr J noted, was that Watkins was “a cheat and a fraud”, which encouraged the jury to reason in an impermissible manner, that Watkins was a dishonest person who was not to be believed.
In the present case, there is a nine or ten year gap between the charges in SCC 120 of 2014 (September 1990 and June 1992) and those in SCC 197 of 2013 (March and April 2001). The present case differs from Watkins in that the accused has not pleaded guilty to the earlier charges, and the Crown proposes cross-admissibility of all charges. As the accused observed in his written submissions, for this to be permitted “the evidence must reach both back and forward. In essence, it is submitted that the prosecution position is ‘once a paedophile, always a paedophile’.”
The Crown referred me to the decision of the NSW Court of Criminal Appeal in RH v R [2014] NSWCCA 71, which was an appeal from conviction in a number of child sexual assault offences. The offences were committed against two children that the appellant and his wife had first fostered and then adopted. 6 of the 7 counts related to conduct over the period from September 1989 to 1993 against one foster daughter (J), when she was aged between 9 and 12 years. The seventh count related to conduct in 2003 against another foster daughter (K), when she was 12-13 years old. Evidence was adduced by the Crown at trial that the appellant had pleaded guilty in 2010 to 5 counts of aggravated indecent assault involving a third foster daughter (L) which were committed between December 2005 and November 2006, when L was 11 years old. On appeal, the appellant complained that the evidence of each of the complainants, and evidence of L, was improperly admitted as tendency evidence, the alleged tendencies including that the appellant had a tendency to have a sexual interest in girls aged between 8 and 13.
Ward JA, with whom Harrison and RA Hulme JJ agreed, noted at [94] that “the Crown’s case at trial was that the sequential nature of the assaults supported the conclusion that the appellant had a tendency sexually to exploit his relationship with young girls of a particular age range whose family circumstances were such that each was unsupported and vulnerable, and who had been placed in foster care; that tendency being to use each in a sexual way at a particular stage of the girl’s development”. It was therefore contended by the Crown that the temporal gap between the offending did not weaken the probative value of the tendency evidence.
The appellant in RH relied upon R v Dann [2000] NSWCCA 185 and Watkins as support for the proposition that conduct of an accused at a later time could not be relied upon to reason that a tendency revealed by that conduct existed much earlier.
Ward JA considered the decisions referred to by the appellant, and the decision in R v Beserick (1993) 30 NSWLR 150 cited in Dann.
In Dann, the NSW Court of Criminal Appeal, referred to Beserick where Hunt CJ and CL said (at 523):
In general, the weight to be afforded to subsequent sexual activity will be less than that afforded to previous sexual activity, hence the proper exercise of discretion will more readily favour the admission of evidence of the previous rather than the subsequent kind.
The Court in Dann concluded that the evidence of later acts by the appellant adduced at trial was of slight probative value by reason of the vagueness of the evidence, the bizarre nature of some of the evidence, and the temporal sequence of events.
Ward JA also considered the decision in Watkins, but distinguished it on the facts:
116. It was not the case, as adverted to in Watkins, that there had been a 15 year period with no asserted misconduct. Rather, it was a case where the gap in time between asserted acts of misconduct was explicable having regard to the relative ages of the complainants and their sequential placement in the appellant’s care.
117. Thus the lack of misconduct in the intervening periods does not (as it did in Watkins) assist the appellant, given the absence of another foster daughter in the relevant age range during much of that 14 year period between the conduct against [J] and that against [K].
Ward JA also referred to the decision of R v SK, SK v R [2011] NSWCCA 292 as demonstrating that a temporal gap between offending does not deprive evidence of significant probative value. In that case the offences comprised sexual assaults by the complainant’s uncle occurring between 1980 and 2003. The offences occurred in the appellant’s home during regular family gatherings. It was alleged that the appellant commenced assaulting each complainant at or about the age of 6 or 7 and ceased assaulting them about the age of 13, once they reached an age when the appellant could no longer exercise influence over them. Latham J, with whom Giles JA and Rothman J agreed, concluded at [26] that “[f]ar from depriving the evidence of its capacity for probative value, the temporal gaps are an integral part of the appellant’s underlying pattern of behaviour”.
In RH, in upholding the decision to admit the tendency evidence, Ward JA said:
124. The Crown case was, in effect, that the tendency evidence demonstrated a pattern of behaviour on the part of the appellant in relation to young girls in his care, whereby he abused them sequentially while they were in a particular age range and then either lost interest in them or events occurred that caused him to cease his abuse of them.
Consideration
The present case is very different. Nothing connects the alleged offences in the period 1990 to 1992 with those in 2001 except for the fact that they are allegations of sexual offending against girls aged between 9 and 11 years. There is nothing particularly distinctive about the types of sexual activities the appellant is alleged to have engaged in, and in contrast to RH, the accused has not admitted his guilt with respect to any alleged offences against the complainants.
In my opinion, evidence of the accused’s alleged conduct in 2001 should not be admitted on his trial with respect to the offences alleged in the period 1990 to 1992, as that evidence does not possess significant probative value. The fact that there is a temporal gap of some 9 to 11 years between the events, and that the 2001 offences are alleged subsequent offending, deprives the evidence of significant probative value. Certainly, whatever slight probative value it possesses is outweighed by its potential prejudicial effect.
Decision
The Crown’s application of 4 September 2014 is refused.
I order that these reasons not be published other than to the parties until the conclusion of the accused’s trials on these charges.
| I certify that the preceding twenty nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns Associate: Date: 7 August 2015 |
4
2