State of Tasmania v GD
[2024] TASSC 55
•28 October 2024
[2024] TASSC 55
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | State of Tasmania v GD [2024] TASSC 55 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| GD | |
| FILE NO: | 674/2023 |
| PUBLISHED: | 19 June 2025 |
| DELIVERED ON: | 28 October 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 17 October 2024 |
| JUDGMENT OF: | Wood J |
| CATCHWORDS: |
Evidence – Admissibility – Tendency, co-incidence and propensity – Generally – Pre-trial ruling – Four counts of sexual assault against two child complainants properly joined on indictment – Evidence of each count is cross-admissible as tendency evidence.
Aust Dig Evidence [1150]
Legislation:
Criminal Code Act 1924 (Tas) ss 125B, 127, 127A, 311(2), 326(3), 326A, 361A
Evidence Act 2001 (Tas) ss 97(1), 97A, 101
Cases cited:
DPP v Roder [2024] HCA 15
Hughes v The Queen [2017] HCA 20, 265 CLR 338
IMM v The Queen [2016] HCA 14, 257 CLR 300
R v Bauer [2018] HCA 40, 266 CLR 56
State of Tasmania v KLS [2022] TASSC 71
REPRESENTATION:
Counsel:
Appellant: L Pennington Respondent: J Munro
Solicitors:
Appellant: Director of Public Prosecutions Respondent: Munro and Associates
| Judgment Number: | [2024] TASSC 55 |
| Number of paragraphs: | 39 |
Serial No 55/2024 File No 674/2023
STATE OF TASMANIA v GD
| REASONS FOR JUDGMENT | WOOD J 28 October 2024 |
1 This is a preliminary ruling given before trial under s 361A of the Criminal Code. The accused is charged on an indictment with four counts involving sexual crimes against two young girls. It is argued for the accused that the counts are not properly joined on the indictment and should not be tried together, and an order is sought for a separate trial, isolating the alleged conduct that concerns each complainant. It is argued that the accused will be prejudiced if the jury on his trial hear about the alleged conduct concerning both complainants.
2 The State argues that the charges are properly joined, and that the evidence in respect of each count is cross-admissible as tendency evidence. It is common ground that the prejudice relied upon by the defence will only arise if the evidence of one complainant is not admissible in respect of the other.
3 Count one on the indictment is a charge of indecent assault contrary to s 127 of the Criminal Code alleged to have occurred between on or about 1st day of November 2006 and on or about 31st day of December 2008. It is alleged that the accused indecently assaulted his biological daughter, I D, when she was aged between 4 and 6 years by licking her vagina.
4 The remaining counts 2 – 4 concern the complainant, M L, when she was aged between 6 and 7 years. Counts 2 and 4 involve charges of aggravated sexual assault contrary to s 127A of the Criminal Code by penetrating her vagina with his fingers. Count 2 is alleged to have occurred on 31 October 2015, and count 4 between on or about the 1st day of January 2015 and 31st day of March 2016. Count 3 is a charge of indecent act with or directed at a child contrary to s 125B of the Criminal Code by lifting the child and smelling her vagina. It is alleged that this indecent act occurred on or about the 1st day of November 2015. The conduct alleged in the four counts is said to have occurred within a period of 15 months from 1st January 2015 to 31st March 2016.
5 Section 311(2) of the Criminal Code Act 1924 provides:
"(2) Except as provided in section 125A(6), charges of more than one crime may be joined in the same indictment, if those charges arise substantially out of the same facts or closely related facts, or are, or form part of, a series of crimes of the same or a similar character. In any other case an indictment shall charge one crime only."
6 It is contended on behalf of the accused that the counts on indictment "allege a crime of sufficient difference as to negate the 'same or similar character'." It is noted that in relation to one complainant, it is conduct involving licking the vagina of a four-year-old, and the other is inserting fingers into the vagina of a seven-year-old. There are, however, features of the conduct which give it the same or similar "character", namely the charges involve crimes of sexually assaulting young female children. I conclude that each count on the indictment alleges a crime of the same or similar character and the four counts are properly joined on the indictment.
7 Notwithstanding that the counts are properly joined, a separate trial may be ordered in certain circumstances provided by s 326(3) of the Code:
"(3)
Where, before trial or at any stage of the trial, it appears to a judge that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for
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any other reason it is desirable to direct that he should be tried separately for any one or more crimes charged in the indictment, the judge may order a separate trial of any count or counts in such indictment."
8 Section 326A applies to the consideration of whether a separate trial should be ordered:
"326A Order for separate trial for sexual offences …
(2) Despite section 326 and any rule of law to the contrary, if in accordance with this Act 2 or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together. (3) The presumption created by subsection (2) is not rebutted merely
because evidence on one charge is inadmissible on another charge."
9 This presumption may be rebutted but not merely because evidence on one charge is inadmissible on another charge. Something more is required, and this invites a case-by-case consideration of factors such as whether, and to what extent, the accused would be prejudiced.
10 As noted, if the evidence on one charge is admissible on another, the prejudice relied upon by the defence in this case will not arise as the jury would be hearing the evidence from both complainants regardless. In such circumstances, it could not be said to be "desirable" that the accused be charged separately. The central issue in this case is whether the evidence given by each of the complainants is cross-admissible as tendency evidence in relation to the count or counts that concern the other.
Cross-admissibility: tendency
11 Section 97(1)(a) of the Evidence Act 2001 provides that evidence of a tendency to act in a particular way, or to have a particular state of mind, is not admissible unless the party seeking to adduce the evidence gives reasonable notice in writing to each other party of the party's intention to adduce the evidence. A tendency notice has been filed in compliance with s 97(1)(a), indicating the State's intention to adduce and rely on tendency evidence in proving the charges.
12 Section 97(1)(b) provides that tendency evidence is not admissible unless the court thinks that the evidence will have "significant probative value":
"97 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 –
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
13 A raft of amendments was introduced by the Justice Miscellaneous (Royal Commission Amendments) Act 2023 which commenced on 20 April 2023 and which included amendments to the Evidence Act. In response to the Royal Commission into Institutional Responses to Child Sexual
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Abuse, the Standing Council of Attorneys-General formulated model provisions for the uniform evidence law jurisdictions to address barriers to the admissibility of tendency evidence. One of these reforms is a presumption that tendency evidence in child sexual offences will have "significant probative value" and is implemented by s 97A of the Evidence Act:
"97A Admissibility of tendency evidence in proceedings involving child sexual
offences
(1)
This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2)
It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2):
(a)
tendency evidence about the sexual interest that the defendant has or had in children (even if the defendant has not acted on the interest);
(b)
tendency evidence about the defendant acting on a sexual interest that the defendant has or had in children.
(3)
Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.
(4)
Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5)
The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:
(a)
the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act);
(b)
the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;
(c)
the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject's age, sex or gender) are different to those of the subject of the alleged sexual interest or act;
(d)
the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;
(e)
the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;
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(f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features; (g) the level of generality of the tendency to which the tendency evidence relates.
14 For the purpose of this section, "child sexual offences" are defined in sub-section (6) and include "an offence against, or arising under, a law of this State involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence. A "child" is defined in the same sub-section as a person under 18 years of age.
15 The presumption applies unless the court is satisfied that there are sufficient grounds for determining that the tendency evidence does not have significant probative value. In considering whether there are sufficient grounds, the matters in subsection (5) must not be taken into account unless there are exceptional circumstances.
16 The presumption that the evidence will have "significant probative value" applies to s 97(1)(b) and also s 101(2). Section 101(2) provides:
"101 …
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant."
17 If the presumption applies and the evidence has "significant probative value" for the purpose of s 101(2), this does not resolve the task required by s 101(2). Tendency evidence cannot be used against an accused unless the probative value of the evidence outweighs any prejudicial effect. This is an exercise of evaluating the probative value of the evidence, the prejudicial effect of the evidence, and whether the probative value outweighs the prejudicial effect.
18 The legal principles which apply to an assessment of the probative value of the evidence are well-settled. Tendency evidence will have significant probative value if it has more than "mere relevance" and if it can be characterised as "important" and "of consequence" in establishing one or more of the disputed facts. The significance of the evidence must be assessed in the context of the nature of the facts in issue: IMM v the Queen [2016] HCA 14; (2016) 257 CLR 300 at [46], R v Bauer [2018] HCA 40; (2018) 266 CLR 56 at [58]-[60].
19 Generally speaking, and in this instance, the State does not need to prove the tendency beyond reasonable doubt: Bauer at [86] and DPP v Roder [2024] HCA 15 at [31].
20 Any risk of concoction, contamination, or collusion is not relevant for the purpose of considering the probative value of the evidence, which is to be taken at its highest. The suggestion of such risk goes to the "credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury" (Bauer at [69]).
21 The issue in this case is whether the accused committed acts of a sexual nature upon each of the complainants. The accused, by his plea of not guilty, has denied that he committed the acts of sexual assault described by the complainants. The reality and/or credibility of the complainants is likely to be a critical issue on the trial.
22 The State's allegations in relation to the four counts on indictment are as follows:
"13
The State alleges, in relation to Count 1 on Indictment 18/2024, that the accused unlawfully and indecently assaulted [I D] on one occasion when she
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was aged between 4 and 6 years. The accused is the complainant's biological father. During this period the complainant resided with her mother but spent every second weekend with the accused under his care and supervision. On the particularised occasion, the accused is alleged to have asked the complainant to lie on the bed, and licked her to her external genitalia.
14 The State alleges, in relation to Counts 2, 3 and 4 on Indictment, that on three occasions, the accused unlawfully and indecently assaulted, or committed an indecent act directed at, [M L], who was aged between 6 and 7 in the relevant period. The accused was a friend of the complainant's parents. The complainant stayed at the accused's house on occasion. On two occasions, the accused is alleged to have penetrated the complainant's vagina with his fingers; on an additional occasion, the accused is alleged to have lifted the complainant up and smelled her vagina. These occasions were in circumstances when the complainant was spending time with the accused and his family members, as family friends, including on a boat and at a party, when the accused's own children were present."
23 The tendency notice identifies the tendency evidence sought to be relied upon, namely evidence that the accused had a tendency to have a sexual interest in pre-pubescent female children aged between 4 and 7 years; to have a sexual interest in children under his care and supervision; and to act upon that sexual interest by engaging in sexual touching with pre-pubescent female children under his care and supervision, whilst in his home, and by touching the children to the area of their vaginas.
24 The defence submission did not rely upon any of the matters set out in s 97A(5) and so no argument arises about whether there are exceptional circumstances enabling those matters to be taken into account. The defence submission regarding the evaluation of the probative value of the evidence is that notwithstanding the presumption, the evidence of tendency in this case is not sufficiently high enough to meet the threshold of "significant probative value" and is not "important" to the respective cases. The defence argument was that the evidence did not have significant probative value because of the existence of other evidence "over and above" the complainants, and that it was not a case where there was a paucity of evidence. It was submitted that if there was a paucity of evidence, that would improve the probative value of the tendency evidence. While it was not explicitly said, this consideration is advanced as a "sufficient ground" for determining that the evidence does not have significant probative value.
25 This contention and the narrow focus on the strength of the prosecution case, absent the tendency evidence, and whether the evidence is "needed" to establish guilt is not the correct approach. Evidence may be "important" to the prosecution case and may be "of consequence in establishing one or more of the disputed facts", and yet the State's case may be strong without such evidence. The State are entitled to make a strong case stronger. It may be noted the approach presupposes that evidence will lose its probative value if there is an excess of evidence required to establish guilt and it assumes the jury will accept all the other supporting evidence, which, of course, they may not. Also, it cannot be assumed that a particular piece of probative evidence might not prove to be decisive in the jury’s final assessment just because the State's case is strong.
26 Section 97A allows for the presumption of significant probative value to be rebutted. Sub- section (4) provides that the court may determine the tendency evidence does not have significant probative value if it is satisfied there are sufficient grounds to do so. The court needs to be alive to the probative value of the tendency evidence in the particular case and reasons why it may lack significant probative value. If the presumption is not rebutted, s 101(2) requires the court to then take into account the probative value of the tendency evidence in the evaluative exercise required.
27 Broadly speaking, the fundamental issue in this trial will be whether the accused sexually assaulted the complainants as charged. The reliability and credibility of the complainants will be a
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critical issue. Evidence that goes to establishing the accused has a tendency to have a sexual attraction towards pre-pubescent female children and a willingness to act on it in a particular way is probative of the fundamental issue, and the credibility and reliability of the complainants' evidence.
28 In addressing the probative value of the evidence, Ms Pennington for the State submitted as
follows:
"32 It is submitted that there are common features to the offending which imbue the evidence with significant probative value. It is not only that the accused has a sexual interest in a particular class of persons (which might, for the purpose of s 97A of the Act, still be sufficiently probative as to justify admission of the evidence), it is the manner and circumstances in which he is alleged to have acted upon that sexual interest that gives the evidence its probative force. It is submitted that the circumstances and nature of the offending are similar across all counts on the indictment, and are highly probative of a tendency held by the accused. The similarities include:
• The conduct occurred in circumstances where the children were under the accused's care and supervision, but where there was a risk of detection by others or a risk that the children would inform their primary caregivers of the accused's acts. • Both children were of a similar age, and are of the same gender. The acts were directed towards the complainants' genitalia/vagina (rather than, in contrast, involving sexual touching to the accused's body or other body parts of the complainants). 33 The probative value of the evidence is that if the jury finds that the accused possessed the alleged tendency, in considering the evidence of each complainant, a jury may conclude it is inherently more likely her account is true when directly in line with the very tendency the accused possesses."
29 I agree with those submissions.
30 An inclination on the part of an adult to engage in sexual conduct with children is a matter outside ordinary human experience. In Hughes v The Queen [2017] HCA 20, 263 CLR 338 at [40] it was said:
"Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded."
31 As previously observed by me in a ruling, State of Tasmania v KLS [2022] TASSC 71 at [18], it is useful in assessing the probative value of this evidence as tendency evidence to consider where the jury would be without it. I noted in reasons apposite to this case that there would be a vacuum so that notions and expectations the jury, naturally, would have about behaviour and propositions that the defence might advance would be unassailed. These would include notions such as that the conduct said to have occurred in relation to one of the complainants was unusual, or that it was implausible that people generally would act in that way because of matters such as the family relationships and setting, or because of the risk of detection: Hughes at [57] and [59]-[60].
32 In an argument for the defence that went to the probative value of the evidence, it was highlighted that there are only two complainants and, in the case of one of the complainants, there is only one incident of sexual assault. It was argued it was a stretch to say that is evidence of a tendency. While evidence of merely one occasion would not demonstrate a pattern of behaviour, it is capable of establishing the asserted tendency to have a sexual interest in a child and to act upon that
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interest. The evidence makes more likely the facts which make up the elements of the offence
charged under consideration. As stated in Hughes at [60], in terms apposite here:"The force of the tendency evidence as significantly probative of the appellant' s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience."
33 Having regard to the tendency evidence and the above considerations, I conclude as follows. The presumption that the evidence has "significant probative value" stands. There are no grounds for displacing that presumption. The evidence of tendency is, in this case, not only of significant probative value but highly probative of the facts in issue. This conclusion is taken into account for the purpose of the evaluative exercise required by s 101(2).
34 The main argument for the defence maintained that in the evaluation required by s 101(2), the prejudicial effect of the tendency evidence outweighs its probative value. It is contended that the jury is likely to harbour a bias and an emotional response against the accused. It is submitted that this is because sexual offences committed on young children strike an emotional chord in the general public. The concern is that the jury will give the tendency evidence too much weight because of natural disgust the public has in relation to such offences, and that the jury's emotional response to the tendency evidence will cloud their assessment of whether the prosecution has discharged its onus. It is submitted that the risk of misuse of the evidence cannot be adequately addressed by directions to the jury, and that there remains a risk that the jury would be unable to put aside their emotional responses and likely give the evidence "unfair weight" against the accused. It is contended for the accused that the prejudicial effect of the evidence is not outweighed by its probative value.
35 The risk of unfair prejudice to an accused is acknowledged. There are risks associated with tendency reasoning such that the jury may give the evidence disproportionate weight. There is also the risk that the jury's assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence: Hughes at [17]. The jury's emotional response is likely to be marked in the case of the evidence relating to count 1 involving an allegation that the accused indecently assaulted his biological daughter.
36 These risks, however, are addressed by directions that are routinely given by trial judges in relation to tendency evidence. These directions explain the reasoning that is permissible in relation to tendency evidence and impermissible reasoning. They also guard against the jury giving the evidence disproportionate weight. The recent High Court case of DPP v Roder provides guidance about the formulation of the tendency direction and sequencing of the direction in the context of the trial judge's summing up to avoid the risk of the jury engaging in circular reasoning: Roder at [37], see also [26]- [27]. There are other general directions invariably given by trial judges which complement the tendency directions. These reinforce the importance of objective and unemotional consideration of evidence and guard against prejudice and bias. Careful directions should be given to the jury as to the requisite onus and standard of proof, as well as the contents of the elements of the offence and the need for separate consideration of each charge: Roder at [37]. The directions relating to tendency evidence in the context of the usual general directions ameliorate to a significant degree the risk of unfair prejudice.
37 I conclude that the probative value of the tendency evidence outweighs the danger of unfair prejudice to the accused.
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38 Accordingly, the evidence of each count is cross-admissible upon the other. The accused, therefore, would not be prejudiced or embarrassed should all counts on the indictment be tried together. There should not be a separate trial of any of the counts.
39 The trial is to proceed on all counts and the evidence on each is cross-admissible.
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