Tasmania v AB
[2020] TASSC 43
•27 August 2020
[2020] TASSC 43
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tasmania v AB [2020] TASSC 43 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| AB | |
| FILE NO: | 39/2017 |
| DELIVERED ON: | 27 August 2020 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 17 August 2020 |
| JUDGMENT OF: | Estcourt J |
| CATCHWORDS: |
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevance – For particular purpose – Sexual offences – Alleged tendency to have sexual interest and commit sexual offences –Where the proposed evidence relates to several occasions of unlawful sexual conduct said to comprise the crime of persistent sexual abuse of a child and an uncharged act involving another child said to have occurred after the charge to which the indictment relates – Probative value outweighs unfair prejudice on accused – Evidence admitted.
Evidence Act 2001 (Tas), ss 97(1), 101(2), 137.
Bauer v The Queen [2018] HCA 40, 266 CLR 56, applied.
Neill-Fraser v Tasmania [2012] TASCCA 2, followed.
Aust Dig Criminal Law [2788]
REPRESENTATION:
Counsel:
State: Y Prenc Accused: G Stevens
Solicitors:
State: Director of Public Prosecutions Accused: Liverpool Chambers
| Judgment Number: | [2020] TASSC |
| Number of paragraphs: | 46 |
File No 39/2017
STATE OF TASMANIA v AB
| REASONS FOR RULING | ESTCOURT J |
| 27 August 2020 | |
| The background |
1 The accused, AB, has pleaded not guilty to one count of maintaining a sexual relationship with a young person under the age of 17 years, contrary to s 125A(2) of the Criminal Code, a crime now called persistent sexual abuse of a child.
2 The accused objects to tendency evidence of the complainant, G and, a witness, H, as adumbrated in a notice of tendency filed on 21 December 2017, on the basis that the evidence sought to be adduced does not have significant probative value or alternatively, that the probative value of the evidence is substantially outweighed by its prejudicial effect.
3 I have agreed to deal with the objection, before a jury is sworn, pursuant to s 361A(1)(b) of
the Code.
4 The tendencies alleged include having a sexual interest in prepubescent girls who are daughters of partners of the accused, touching prepubescent girls on their breasts on the inside and outside of their clothing and engaging in sexual touching within the family home.
5 The sole issue on the trial is likely to be whether the alleged acts in fact occurred. In such a "word on word" case the proposed tendency evidence would support the facts as asserted by the complainant.
The Crown case
6 The accused was married to the complainant's mother. The marriage commenced in late 1997, when the complainant was approximately one year old. It was a volatile one, resulting in numerous breakdowns and attracting the attention of child and family services. The couple separated in 2008.
7 The complainant alleges sexual misconduct occurring when she was between 7 and 12 years of age, that is to say, between the years 2003-2008. The Crown relies upon seven unlawful sexual acts, all amounting to indecent assaults, which are set out in a document entitled "Unlawful Sexual Acts relied upon by the State" and are numbered 1 to 7. In summary, the alleged indecent assaults include five occasions of touching and/or rubbing and/or squeezing the complainant's breasts using both of his hands (both over clothing and skin to skin), and two occasions (numbered 4 and 5), of rubbing the complainant's vagina, both over and inside her underpants.
8 The State intends to lead evidence of the accused's tendency to have a sexual interest in prepubescent girls who are daughters of his partner and his tendency to touch those girls on their breasts within the family home, as evidence to prove the count on the indictment.
9 The State contends that the proposed evidence leaves open an inference that the accused had a tendency to act in a particular way towards young prepubescent females (rubbing and squeezing their breasts); a tendency to have a particular state of mind, namely, a sexual interest in female children to whom he had access to by virtue of his relationship with their mothers; and a willingness to act on that interest when the opportunity arose within the family home.
10 The State asserts that the proposed tendency evidence from the complainant and the young girl, H, is probative of the unlawful sexual acts relied upon by the State with respect to the
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complainant, with the exception of unlawful sexual acts numbered 4 and 5, which are the two alleged
instances involving the accused touching the complainant's vagina.11 In relation to the conduct alleged by the complainant, the State relies on an alleged tendency by the accused to have a sexual interest in prepubescent girls who are daughters of his partner; to touch prepubescent girls on their breasts on the inside and outside of their clothing and to engage in sexual touching of prepubescent girls within the family unit's home.
The proposed evidence
12 As already observed, in addition to the evidence proposed to be led from the complainant as to the seven alleged unlawful sexual acts, the State proposes to call evidence from H, who is the daughter of a woman, R, with whom the accused re-partnered in 2008.
13 In November 2008, the accused commenced a relationship with R. She had two children, one of whom was H. R ended the relationship with the accused in July 2010, however, it re-commenced following Christmas 2010 and the accused moved in with R and her children in January 2011. The relationship ceased for the second time in April 2011.
14 In September 2011, R's daughter, H, outlined to Victoria Police, an allegation of unlawful sexual conduct towards her by the accused. H was 10 years old at the time of the alleged unlawful sexual conduct which was alleged to have occurred in the family home, on the face of it, about three months prior to 17 September 2011.
15 H told police that she was sitting on the accused's lap, wearing her nightgown and watching television when the accused told her he was going to give her one of his "special rubs". The accused proceeded to touch her breasts, touching her breasts with both of his hands, and moving them around. His hands were inside her nightgown.
The accused's objection
16 Counsel for the accused, Mr Stevens, submits, citing Pattinson v Tasmania [2017] TASSC 13, 30 Tas R 1, [68], that tendency evidence is not evidence that a person acted in a particular way or had a particular state of mind, but rather, evidence tendered to provide the foundation for an inference that, because the person has that tendency, it is more likely that he behaved in a particular way or had a particular state of mind at the relevant time. Thus, he argues, the evidence of H, that on a single occasion, "on the face of it at a time when the accused was no longer living in her house", is not capable of "strongly supporting" proof of a fact that makes up the crime charged.
17 Counsel for the accused argues that in order for evidence of a single, isolated, uncharged act, allegedly committed by the accused at a time at least two and a half years after the end of the period particularised in the indictment, to have the requisite probative value, the jury would need to be satisfied, that the accused had the requisite tendency in 2010 and acted on it in 2003–2004. He submits that the evidence does not, to a significant degree, support the credibility of the complainant's account.
18 In the alternative, counsel for the accused argues that there is a grave danger that a jury will give the tendency evidence disproportionate and undue weight. He submits that the evidence of alleged sexual abuse given by a young female relative is likely to provoke a strong emotional response in the jury, unconnected with the facts in issue in the case, and out of proportion to its probative value. He submits that the evidence has the capacity to engender strong contempt for the accused and greater sympathy for the complainant and may arouse in a jury a desire to punish the accused.
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19 Finally, counsel for the accused submits that a jury might also be tempted to engage in circular reasoning that the accused, based on the evidence of the complainant, had a tendency which he acted upon in unlawfully assaulting H, that he committed that crime, and is therefore more likely to have committed the unlawful acts the subject of the indictment.
The State's submissions
20 Counsel for the State, Ms Prenc, submits that the reliability and credibility of the complainant will be a critical issue on the trial, and the objective improbability of a person in the accused's position having a sexual interest in a younger relative and acting on that interest in both an opportunistic and brazen way, will be a consideration for the jury. In isolation, Ms Prenc submits, the complainant's account could be suggested as, or objectively regarded as, unbelievable.
21 Therefore, counsel for the State submits, evidence that assists in proving an inclination, willingness or tendency to have a sexual interest in prepubescent females in his care and act on that interest, has significant probative value on the trial. The evidence of a young girl of a similar age to the complainant, and who lived in a household with the accused, that she was subjected to unlawful sexual touching by the accused in her own home, is evidence that is capable of rationally affecting the assessment of the probability that the accused touched another young girl in the same circumstances.
22 Counsel for the State submits that the tendency evidence will allow the complainant's evidence to be viewed in context by the jury and will enable jurors to assess the otherwise brazen acts appropriately. She also submits that the probative value of the tendency evidence is strengthened by virtue of the fact that there is some similarity in the conduct alleged, that is, the touching to both breasts of the girls by the accused, using both of his hands.
23 Counsel for the State observes that propensity evidence is potentially influential in the context of fact finding or potentially has importance in establishing one or more of the disputed facts (IMM v The Queen [2016] HCA 14, 257 CLR 300 at [46]; Hughes v The Queen [2017] HCA 20, 263 CLR 338 at [40]), and that taken at its highest, excluding consideration of the reliability or credibility of the evidence (Bauer v The Queen [2018] HCA 40, 266 CLR 56 at [69]), and assessed in the context of all of the other evidence and the nature of the facts in issue, there is a common feature of or about the offending, which may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true (Bauer at [58]).
24 As to the suggested prejudicial effect of the evidence, counsel for the State relies on the apparent approval by the High Court in its judgment in Bauer of the following passage from the trial judge's ruling in that case at trial, set out at [21]:
"Any prejudice is due to the inculpatory nature of the tendency evidence and is not unfair prejudice. The proposed tendency evidence goes to proof of the fact in issue in each charge and will not distract the jury from its task, and clear directions ... will ensure that there is no substitution of the tendency evidence for the charged acts and no impermissible reasoning towards guilt."
25 Counsel for the State submits that the directions given by a trial judge to the jury must be taken into account when assessing the risk of unfair prejudice, that juries are often required to follow complex legal directions and disregard inadmissible evidence and that it must be assumed that a jury will follow directions from the trial judge: Gilbert v The Queen [2000] HCA 15, 201 CLR 414 at [31]- [32]; R v PWD [2010] NSWCCA 209, 205 A Crim R 75 at [89]-[90].
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The legislation
| 26 | Section 97 of the Evidence Act 2001 provides: "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 – |
(a)
the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(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.
(2) Subsection (1)(a) does not apply if –
(a)
the evidence is adduced in accordance with any directions made by the court under section 100; or
(b)
the evidence is adduced to explain or contradict tendency evidence adduced by another party."
| 27 | Section 98 of the Evidence Act provides: "98 Coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless – |
(a)
the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(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.
(2) Subsection (1)(a) does not apply if –
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party."
28 Section 101 of the Evidence Act provides:
"101 Further restrictions on tendency evidence and coincidence evidence
adduced by the prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(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 substantially outweighs any prejudicial effect it may have on the defendant.
This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.
(3)
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
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(5) The possibility that tendency evidence about a defendant, or coincidence evidence about a defendant, adduced by the prosecution may be the result of collusion, concoction or suggestion is to be disregarded when considering both the probative value of the evidence and the prejudicial effect it may have on the defendant."
| 29 | Section 137 of the Evidence Act provides: "137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." |
| Discussion |
30 In Tasmania v C [2017] TASSC 9, Pearce J, summarised the effect of the legislation as to tendency, as it has been construed by judicial pronouncements. His Honour wrote at [18]:
"What then is the probative value of the evidence? Each of ss 97(1)(b), 101(2) and 137 require assessment of the probative value of the evidence. Under s 97(1)(b) the question is whether the probative value is 'significant'. Tendency evidence has 'significant probative value' if it has more than 'mere relevance', or if it is 'important' or 'of consequence', though it need not have a 'substantial' degree of relevance: Tasmania v W (No 2) (above); R v Lockyer (1996) 89 A Crim R 457 at 459, per Hunt CJ at CL; L v Tasmania [2006] TASSC 59, 15 Tas R 381 at 392 [31]. The significance of the probative value must depend on the nature of the fact in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. In other words, the evidence must be influential in the context of fact finding: IMM v The Queen at 391 [46], per French CJ, Kiefel, Bell and Keane JJ; R v Matonwal [2016] NSWCCA 174 at [77]-[78], per Bathurst CJ, [94], per Rothman J, [95], per McCallum J; applied in this Court in Donohue v Tasmania [2016] TASCCA 17. A significant factor in assessment of the strength of tendency evidence is the degree of similarity between the conduct on the occasions relied on: FB v R; R v FB [2011] NSWCCA 217 at [28]-[30]; BP v The Queen; R v BP [2010] NSWCCA 303 at [108] and R v Fletcher [2005] NSWCCA 338, 156 A Crim R 308 at 321-322 [57]–[60]."
31 That ruling was given before the decision of the High Court in Bauer (above). In that case the Court held at [48]-[49] as follows:
"48 Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
49 As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts." (Endnotes omitted and emphasis added.)
32 As to the complainant's own evidence, generally, but in particular as to occasions 1-3 and 6 and 7, her evidence would be admissible if each of the occasions was charged as a separate indecent assault, or even if only one occasion was charged and the other occasions were elicited as un-charged acts. As the High Court said in Bauer at [50]-[51]:
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"50 Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
51 The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the 'very high probative value' of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. As Hayne J (with whom Gummow and Kirby JJ agreed) concluded in HML:
'Generally speaking ... there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried.'
And the fact of itself that evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant's account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused's guilt of the charged offences." (Endnotes omitted.)
33 The position can be no different simply because seven indecent assaults are charged together as the crime of persistent sexual abuse of a child. Jurors still need to be satisfied beyond reasonable doubt of at least three of the indecent assaults, although not necessarily the same three, before they can arrive at a verdict of guilty.
34 As to H's evidence, it plainly has significant probative value, even without the degree of similarity between the alleged assaults on her by the accused and on the complainant by the accused. The tendency evidence is strengthened by virtue of the proposed evidence of H of the moving around of both of her breasts by the accused, using both of his hands. The same methodology on the accused's part as alleged against him by the complainant.
35 It is of no consequence, in my view, that the impugned evidence is of only one "isolated" relevant occasion, or that it is said to have occurred some years after the alleged indecent assaults on the complainant. Proof of a propensity is not confined to evidence of a tendency of a person to act in a particular way only prior to the occurrence of the charged acts. The fact of subsequent similar uncharged behaviour will not confuse the jury and is amenable to simple explication to the jury by the trial judge.
36 Indeed, to my mind, H's evidence would also be admissible as coincidence evidence pursuant to s 98 of the Evidence Act, in which case it would be admissible to prove that the accused did a particular act or had a particular state of mind, having regard not only to any similarities in the events but also to "the circumstances in which they occurred", or any similarities "in both the events and the circumstances in which they occurred". There are a number of similarities in the present case not only as to the manner of events but also as to the circumstances in which they occurred.
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37 The criticism by counsel for the accused that "on the face of it", the relevant alleged indecent assault on H occurred on a date after the accused had left her family home, is a matter going to credibility and reliability, which, since the decision of the High Court in IMM, is entirely within the province of the jury and not something for my assessment. The same consideration applies to the criticism of counsel for the accused that H was prompted to make the allegations she makes against the accused.
38 As to the suggested unfair prejudice resulting from the impugned evidence, I reject the submissions of counsel for the accused as being wholly without merit.
39 In Neill-Fraser v Tasmania [2012] TASCCA 2, Crawford CJ, with whom Tennent and Porter
JJ agreed, said at [185]:
"When considering the danger of unfair prejudice, care must be taken not to confuse prejudice with unfair prejudice. Too often, defence counsel fail to distinguish between them. All evidence that may tend to convict an accused person is prejudicial, but that does not mean that it is unfairly prejudicial. What is meant by unfair prejudice is that the jury may use the evidence to make a decision on an improper, perhaps emotional basis. If there is a real risk that the evidence may be misused by the jury in some way, then it may be unfairly prejudicial: R v BD (1997) 94 A Crim R 131 at 139, 151."
40 Properly instructed there is no "grave danger" that a jury will give the proposed tendency evidence "disproportionate and undue weight". Every case of alleged sexual abuse of a young female is likely to provoke a strong emotional response in the jury, but jurors are routinely warned that they must put aside any prejudice or emotion and follow the evidence. It does not follow that they will, but if that possibility alone were to prevent evidence of such abuse being led, no trial of a sexual offence involving a child could proceed.
41 The jury will also be directed not to engage in impermissible circular reasoning that the accused, based on the evidence of the complainant, had a tendency which he acted upon in indecently assaulting H, and that because he committed such a crime, he is therefore more likely to have committed the indecent assaults the subject of the indictment. The jury would be told that if, and only if, they were satisfied that the indecent assault by the accused on H occurred, that such tendency evidence cannot replace altogether or be a substitute for the evidence as to the charge on the indictment, but is just another factor that jurors may consider in reaching their verdict in the case against the accused on the count in the indictment.
42 This is not an "extreme" case such as Pearce J described the case in Tasmania v C (above) at [30], where as his Honour said, "[d]espite the Crown submission that the proposed evidence is capable of demonstrating a continuous course of conduct, the evidence of dates is so vague and over such a broad range that its capacity to prove that proposition is limited". (Emphasis added.)
43 To my mind, the present case is an unexceptional one in which, as the trial judge in Bauer said; any prejudice to the accused is due to the inculpatory nature of the proposed tendency evidence and is not unfair prejudice. The proposed tendency evidence goes to proof of facts in issue in the charged crime and will not distract the jury from its task, and clear directions will ensure that there is no substitution of the tendency evidence for the charged crime and no impermissible reasoning towards guilt.
44 Finally, it is now trite that it must be assumed, as a general rule, that juries will follow the directions given to them by a trial judge. Without that assumption the system of trial by jury would be wholly unjustifiable. As was observed in Gilbert v The Queen (above) by Gleeson CJ and Gummow J at [13].
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"The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision- making is unaffected by matters of possible prejudice."
Disposition
45 For the foregoing reasons I am satisfied that the probative value of the proposed evidence outweighs the danger of any unfair prejudice to the accused. Consequently, the admission of the evidence is enabled by s 101(2) of the Evidence Act and s 137 is not engaged.
46 I rule that the impugned evidence of the complainant and H, to the effect of that set out in the notice of tendency dated 18 December 2018 and/or the document "Unlawful Sexual Act relied upon by the State", be admitted.
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