Tasmania v C
[2017] TASSC 9
•13 October 2016
[2017] TASSC 9
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v C [2017] TASSC 9
PARTIES: STATE OF TASMANIA
v
C
FILE NO: 135/2015
DELIVERED ON: 13 October 2016
DELIVERED AT: Launceston
HEARING DATE: 20 September 2016
RULING OF: Pearce J
CATCHWORDS:
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – For particular purpose – Sexual offences – Evidence alleging tendency to have sexual interest and commit sexual offences not admitted.
Evidence Act 2001 (Tas), ss 97(1), 101(2), 137.
IMM v The Queen [2016] HCA 14, 98 ALJR 529; R v Matonwal [2016] NSWCCA 174; DPP v Martin (a pseudonym) [2016] VSCA 219, referred to.
Aust Dig Criminal Law [2782]
REPRESENTATION:
Counsel:
State: P Sherriff
Accused: J Oxley
Solicitors:
State: Director of Public Prosecutions
Accused: Legal Aid Commission of Tasmania
Judgment Number: [2017] TASSC 9
Number of paragraphs: 32
Serial No 9/2017
File No 135/2015
STATE OF TASMANIA v C
REASONS FOR RULING PEARCE J
13 October 2016
The accused is arraigned on one count of indecent assault and one count of sexual intercourse with a young person. It is alleged that both crimes were committed between 1 April 1997 and 30 June 1997 against the son of the woman with whom the accused was then in a relationship. At that time the complainant was aged 12. The Crown has given written notice pursuant to the Evidence Act 2001, s 97(1)(a), that it intends to adduce evidence of other sexual conduct between the accused and the complainant as tendency evidence. The Crown also contends that the evidence which is the subject of the notice is admissible as what is commonly referred to as context evidence. The accused objects to the proposed evidence and submits that it is inadmissible on either basis. I agreed, pursuant to the Criminal Code, s 361A, to determine the question of the admissibility of the evidence before a jury is sworn. It was agreed that I resolve the question of the admissibility of the evidence without evidence and by reference to the contents of the Crown papers as if proved.
The complainant's circumstances
At the time of the alleged crimes the complainant lived with his mother and elder sister on a small rural property near a town on the outskirts of Launceston. In early 1997 the complainant's mother met the accused at university where they were both students. The accused was then about 43. In about April or May of that year they commenced a relationship after which the accused frequently visited her home and often stayed. He spent time alone with the complainant at the property, both in the house and outdoors. The relationship between the complainant's mother and the accused ended in 2000. Later that year she commenced a relationship with another man. In either 2004 or 2005, the complainant moved with his mother into a house in Launceston. The evidence does not establish with certainty when the move occurred. The complainant and his mother have lived together in Launceston since then, at three different addresses. There is evidence that, after the accused's relationship with the complainant's mother ended in 2000, he continued to visit her home. The visits occurred at the rural address, and after the move into Launceston at each of the subsequent Launceston addresses. On at least some of these visits the accused spent time alone with the complainant at the home or when taking him for walks and outings. The evidence of the visits includes statements made by the accused to the police during his interview.
The complainant is autistic. The evidence in the material available to me about the nature, severity and effect of his condition is very limited. There is no recent medical evidence about it and little other medical evidence. In 2013 his mother told the police:
"[The complainant] is autistic. As a child [he] underwent a lot of tests in relation to his behaviour and he was initially diagnosed with ADHD by Dr Bailey. [He] was prescribed medication for ADHD, however, instead of seeing an improvement his behaviour continued to get worse. I ended up taking [him] to see Dr Alistair Campbell who diagnosed him with Asperger's Syndrome.
[The complainant's] Asperger's has affected his life in many ways. He finds it difficult to deal with social situations and he becomes quite fixated on particular things. [He] requires a lot of assistance from me in regards to normal day to day tasks such as banking and attending appointments. [The complainant's] reasoning, judgment and decision making skills are all affected by Asperger's Syndrome."
In 1991, when the complainant was 6, he saw a paediatrician, Dr Christopher Bailey. Dr Bailey then treated the complainant over a number of years. A series of reports from Dr Bailey to the complainant's general practitioner is in the Crown papers. The reports mostly concern matters not relevant to the charges against the accused, but some relevant comments are made. A report dated 27 August 1996 reads in part:
"I first met [the complainant] in 1991 and then again more recently in 1993/1994 with the problems of behaviour, learning difficulties and overactivity. A trial of Ritalin was attempted in 1994 however this was ceased as it seemed to make him dopey and pale … He nonetheless still gets very hyped up, cannot play with other children and remains very distractible. At school he cannot read nor write, partly as a result of concentration difficulties and indeed in the classroom is rarely functioning adequately. He has been recognised as having a borderline IQ on the last psychometric assessment - on the basis of the scores he did not warrant special school attendance; this was nonetheless offered to [the complainant] however it was declined."
A report from Dr Bailey dated 20 December 1998 refers to prescription of the medication fluoxetine as treatment for depression and "OCD symptomatology". A report dated 24 January 2000 refers to obsessive behaviour and the complainant being placed in a class with "other behaviourally disturbed children". A report dated 6 November 2001 follows a review at age 17½ years "with particular concern about [the complainant's] increased episodes of depression, anguish and behavioural outbursts".
The allegations
The allegations against the accused were first made by the complainant to his mother on 29 September 2013. By that time the complainant was aged 29. The Crown case, as pleaded in the indictment and detailed in the Crown papers is that between 1 April 1997 and 30 June 1997:
(a)The accused indecently assaulted the complainant by touching and stroking his penis. It is alleged that the accused masturbated the complainant while the complainant was in the bath at home. That allegation is the subject of count 1 on the indictment.
(b)The accused had unlawful sexual intercourse with the complainant. It is alleged that in the lounge room at the complainant's home, after the incident referred to in count 1, the accused penetrated the complainant's mouth with his penis by having the complainant perform oral sex on him. That allegation is the subject of count 2 on the indictment.
On 30 September 2013 the complainant made a statement to the police in an interview. The interview was recorded and transcribed. The transcript is in the Crown papers. On 21 November 2013 the accused was interviewed by police officers. He denied any sexual conduct of any nature with the complainant.
The proposed evidence
The tendency notice is lengthy. It is unnecessary to set it out in full but it is summarised below. The notice describes other sexual conduct alleged to have been engaged in by the accused with the complainant between 1997 and 2013. The Crown seeks to adduce the evidence to show that the accused had a tendency to have a sexual interest in the complainant and a tendency to have sexual intercourse with the complainant. Although the notice includes reference to evidence proposed to be adduced from four witnesses, there is no direct evidence of either the charged conduct or the other sexual conduct alleged between the accused and the complainant, apart from the evidence proposed to be adduced from the complainant himself. The evidence of the witnesses other than the complainant is relevant to the assessment of whether the accused had opportunity to commit the crimes and perform the other sexual acts. Counsel for the Crown agrees that the admissibility of the evidence of any of the other witnesses depends on the admissibility of the evidence of sexual conduct proposed to be adduced from the complainant. The Crown case against the accused depends entirely, with one possible minor exception, on the jury being satisfied beyond reasonable doubt of the truth and reliability of the complainant's account.
All the evidence the Crown seeks to adduce is of events which occurred after the conduct which is the subject of the indictment. The indictment alleges conduct between April and June 1997. The evidence under objection alleges sexual acts between July 1997 and September 2013, when he complained to his mother and spoke to the police. The particulars and dates of the acts alleged are general and imprecise. In some cases the notice refers to multiple (without specifying how many) incidents of sexual conduct. In other cases it refers to single incidents. In almost every case incidents are said to have occurred on an unspecified occasion within a time range. The time range is mostly many years, up to 16 years. Thus, in the most general cases, a single incident is said to have occurred at some unspecified time during a 16 year period. The notice commonly resorts to the generic term "sexual activity" but, by reference to what the complainant told the police, is intended to refer to instances of mutual anal intercourse and mutual oral intercourse and perhaps mutual masturbation. I also infer from the contents of the interview conducted by the police with the complainant that the reason for the inability to give more specific particulars about when, where and how the alleged sexual conduct occurred arises from the complainant's inability to give those details, and the absence of corroborative evidence. That inability may arise from the age of the complainant at the time of some of the alleged events, but also from his autism. The complainant's 17th birthday was in 2001. The Crown concedes that it cannot prove that any incident of sexual conduct which occurred after that date was unlawful, because it cannot prove that the acts, if they occurred, were without the complainant's consent. The evidence referred to in the notice can be summarised in the following way:
· sexual activity on "multiple occasions" between July 1997 and December 2003 in the bushland near the complainant's home, including one instance of penetration of the complainant's anus by the accused's penis;
· sexual activity on "more than one occasion" at the complainant's home between July 1997 and December 2003;
· an instance of anal intercourse by penetration of the complainant's anus on an unknown date between July 1997 and July 2000 at the home of the accused;
· an instance of "sexual activity" at Hollybank between July 1997 and September 2013;
· multiple instances between July 1997 and September 2013 of the accused having the complainant perform oral sex on him;
· an instance of "sexual activity" in the bush near the accused's home between July 1997 and September 2013;
· multiple instances of "sexual activity" at picnic areas at Trevallyn between January 2004 and September 2013;
· an instance of penetration of the complainant's mouth and anus by the accused's penis at the complainant's home between March 2008 and September 2013;
· an instance of oral sex at the Duck Reach power station between March 2008 and September 2013;
· an instance of "sexual activity" in the bush near the Cataract Gorge between March 2008 and September 2013;
· four instances of "sexual activity" in 2012, one in a tent in the front yard of a female acquaintance of the accused after a trip to the Tasmania Zoo, one at the home of the same female acquaintance after the accused photographed the complainant, one in the accused's van at the Punch Bowl reserve and one in a tent in the bush at Trevallyn in 2012;
· attempted "sexual activity" at the complainant's home in September 2013.
One other piece of evidence described in the notice is of a different character. The notice describes evidence of the complainant's account of a trip to the Launceston Show in October 2012, when the complainant was 27 or 28. He says that the accused instructed him to photograph girls aged about 12, and when the complainant asked the accused, "What age would you have sex if you get away with it?" and the accused responded, "Twelve wouldn't be bad".
The Crown relies on one limited exception to the proposition that the case depends entirely on the evidence of the complainant. That is evidence from the complainant's mother that, on one occasion at the rural house, I infer prior to 2000, she saw the accused come out of the bathroom at a time when the complainant was in the bath. He told her that he had gone in to the bathroom to wash his hands and did not realise the complainant was in there.
Tendency evidence
Tendency evidence is evidence of the character, reputation or conduct of a person, or a tendency of a person: Evidence Act, s 97(1). Tendency evidence is admissible only if the court thinks that the evidence, either by itself or having regard to other evidence, will have "significant probative value", s 97(1)(b), and cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused: s 101(2).
Context evidence
Evidence may be relevant on the basis that it assists in the evaluation of other evidence: Tasmania v Finnegan (No 2) [2012] TASSC 1; HML v The Queen [2008] HCA 16, 235 CLR 334, at 352 [6], per Gleeson CJ; Roach v The Queen [2011] HCA 12, (2011) 242 CLR 610 at 616 [12]. Evidence of other acts of sexual conduct is often referred to as "relationship", "context" or "background" evidence. It is a type of circumstantial evidence. It forms part of the background against which the complainant's evidence is to be assessed, and in cases involving allegations of sexual crimes may be relevant for a number of different reasons. It may serve to explain and render intelligible the complainant's account of the charged acts, explain why the complainant complied with the sexual demands of the accused, explain why the complainant did not complain until much later, and explain the accused's confidence in committing the sexual acts or his control over the complainant. It may also be relevant to overcome the appearance of implausibility which may be attributed to the account of the complainant if the incidents of sexual conduct which are the subject of the indictment were thought to be isolated incidents.
It is s 137 of the Evidence Act that is relevant to exclusion of the evidence if admitted on the alternative basis. That provision mandates exclusion of the evidence if its probative value is outweighed by the danger of unfair prejudice to the accused. As with ss 97(1) and 101(2), the balancing of probative value and the danger of unfair prejudice involves "an evaluative judgment mandating exclusion": IMM v The Queen [2016] HCA 14, 90 ALJR 529 at 534 [16].
Probative value
"Probative value" is defined in the Evidence Act, s 3(1), to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted: Tasmania v Finnegan (No 2) (above); Tasmania v W (No 2) [2012] TASSC 48; R v Shamouil [2006] NSWCCA 112, 66 NSWLR 228; KMJ v Tasmania [2011] TASCCA 7, 20 Tas R 425; R v Sood [2007] NSWCCA 214. The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, that is to say, how it might be used by a jury, must be taken at its highest: IMM v The Queen (above) at 538 [44], per French CJ, Kiefel, Bell and Keane JJ. In IMM, the majority jointly held that, when assessing the probative value of evidence for the purposes of s 137 (and several other provisions of the Evidence Act including s 97(1)(b)), a trial judge must proceed on the assumption that the jury will accept the evidence. No question can arise at that stage as to matters of credibility or reliability. Their Honours observed at 539 [52]:
"Once it is understood that an assumption as to the jury's acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two — reliability and credibility — as Dupas v The Queen may imply. They are both subsumed in the jury's acceptance of the evidence."
At 539 [45], the majority also stated:
"The use of the term 'probative value' and the word 'extent' in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge."
The passage just quoted suggests that assessment of the probative value of circumstantial evidence does not require a court to ignore competing inferences, and that it is not the case that all inferences most favourable to the Crown are to be drawn. It follows that despite the general and imprecise nature of the complainant's account that other sexual conduct occurred, and issues which may arise concerning credibility and reliability of the complainant's evidence, its probative value must be considered on the assumption that it is accepted by the jury as truthful and reliable. A jury will be taken to "accept [the evidence] completely in proof of the facts stated": IMM at 539 [52]. However, I may take into account competing inferences which may be drawn from the evidence.
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].
Importantly, in IMM the majority said at 539 [50]:
"It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence." [Footnote omitted.]
Their Honours went on to say at 541 [62]:
"[i]n a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value."
Counsel for the accused submits that the remarks of the High Court in the passages just quoted have direct relevance to this case. He submits that the probative value of the evidence is affected by a number of factors. He refers to the extremely wide range of dates during which the uncharged conduct is alleged to have occurred, all of which post-date the alleged crimes. It can safely be inferred that the imprecision in the dates arises from the inability of the complainant to better describe when the events occurred. There is ample basis for the submission made by counsel for the accused that the dates specified in the notice have been pieced together from various pieces of evidence, not just from the complainant, concerning the location of events and when the complainant and his mother moved to Launceston. The evidence of the date of that move suggests that it may have been either in 2004 or 2005. By the second half of 2005 the complainant was aged 21. It follows, according to the accused's contention, that it could not be said that there is a sufficient temporal connection with the charged conduct. Further, whilst it is possible that the notice may describe a continuous course of sexual acts commencing shortly after the charged conduct, the notice is also consistent with the scenario that there may have been no other sexual conduct until years later, by which time the complainant may have been a consenting adult. Consequently, whilst the uncharged conduct may demonstrate a sexual interest in the complainant, the accused submits that it is also consistent with the absence of any tendency for the accused to have sexual interest in, or to have sexual intercourse with the complainant as a 12 year old boy. To extrapolate from the language used in IMM the evidence is unconvincing. Moreover, given that the evidence is uncorroborated and the absence of any special feature of the complainant's account of an uncharged incident, it does not have the requisite degree of probative value.
In my view, as it relates to tendency evidence, the submission should be accepted. Despite 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. I think that, to the extent it may demonstrate a tendency to have a sexual interest in, or have sexual intercourse with the complainant when he was 12 or a similar age, the evidence is unconvincing. It also falls squarely within the category of uncorroborated evidence of a complainant dealt with in IMM, which I am bound to follow, which the majority concluded would not have the requisite degree of probative value. Despite that the High Court in IMM was dealing with evidence of only one other uncharged incident, and in this case many other incidents are alleged, and each is to be considered in combination with the other, the character of the evidence is the same. It is uncorroborated evidence of the complainant. The single instance of corroboration relied on by the Crown, the hand washing incident, is of so little probative value that it can safely be ignored. I find that the evidence does not have significant probative value and is not admissible to prove tendency.
Consideration of the probative value of the evidence as context evidence involves different issues. The requisite probative value for s 137 is not spelled out: IMM at 538 [47]. It is to be weighed against the danger of unfair prejudice.
Courts have long regarded context evidence as admissible, subject to the exclusionary provisions in ss 135 and 137, for the range of reasons stated by the author of Odgers, Uniform Evidence Law, 12th ed (2016) at par 101.150. The apparent conundrum arising from the decision in IMM, when considered in light of the earlier decision of the High Court in HML v The Queen (above), was referred to in a recent joint judgment of the Victorian Court of Appeal in DPP v Martin (a pseudonym) [2016] VSCA 219. At [105], the plurality expressed concern that, on a literal interpretation of what the majority said in IMM, evidence of other sexual misconduct involving the same complainant, led as to context, would rarely be admissible. The Court in Martin, after considering the judgments of the High Court in HML, confined the reasoning of the majority in IMM, in the passage just quoted, to tendency evidence and stated at [106]:
"[T]he better view is that their Honours were in this passage directing attention to the tendency aspect of the judgment. That is consistent with the heading before the relevant paragraphs of the reasons. It is also consistent with the use of the term 'significant probative value' in the passage, that being the language of the tendency rule in s 97(1)(b) of the Evidence Act, and the concluding phrase 'the requisite degree of probative value'. Any other reading of that passage would constitute a radical departure from well-established principles governing the admissibility of other acts of misconduct not led as tendency, but rather as having explanatory force, by way of context."
I think I should follow that approach. Even so, I consider the probative value of the evidence to be limited. The first point to be made is that all of the evidence is alleged to have occurred after, rather than before, the alleged crimes. It is difficult to see how, in those circumstances, the evidence could be relevant other than by tendency reasoning. It is possible that it may be relevant to explain why the complainant did not complain until much later. It may also serve to overcome the appearance of implausibility which may be attributed to the account of the complainant if the incidents of sexual conduct which are the subject of the indictment were thought to be isolated incidents. Nevertheless, the probative value of the evidence remains subject to the same qualifications I have already referred to in the context of tendency evidence.
Prejudicial effect
The evidence is not to be admitted if its probative value is outweighed by the danger of unfair prejudice to the accused. What amounts to "unfair prejudice" under s 137 was considered by the Court of Criminal Appeal in KMJ (above); see Evans J at 442-443 [36]–[38]:
"I turn to unfair prejudice. Evidence is not unfairly prejudicial to an accused for the purposes of s137 merely because it makes it more likely that the accused will be convicted. In this context, the prejudice referred to is unfair where there is a real risk that the evidence will be misused by the jury in some unfair way: Papakosmas v R (supra), McHugh J, par[91], Festa v R (2001) 208 CLR 593, Gleeson CJ, par[20], and McHugh J, par[51]."
In W v The Queen [2006] TASSC 52, 16 Tas R 1, Blow J (as he then was) at 43 [124] referred to and applied the comments in Report No 26 of the Australian Law Reform Commission, Vol 1 at [644]:
"By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required."
The same principles have been applied in many subsequent cases: State of Tasmania v Howlett [2008] TASSC 38; Tasmania v Martin(No 2) [2011] TASSC 36, (2011) 20 Tas R 445 at 468 [63] and most recently Donohue v Tasmania at [24].
Thus, the possibility of prejudicial effect with which s 137 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, for example by giving effect to some irrational, emotional or illogical response, or giving the evidence more weight than it truly deserves: Tasmania v W (No 2) (above) at [11]; Tasmania v Martin (No 2) (above). 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."
I think that there is considerable danger of unfair prejudice to the accused were the evidence to be admitted. The danger of unfairness arises in a number of ways:
· In accordance with s 95, even if the evidence is relevant as context evidence, it may not be used for the purpose of proving tendency. Counsel for the Crown concedes, correctly in my respectful view, that there is a risk that a jury will resort to tendency reasoning despite careful directions about how the jury may properly use the evidence. Juries can generally be relied on to comply with such directions: Donohue v Tasmania at [25]. However, my assessment of this case is that there is unacceptable risk that the jury would not be able to do so.
· The nature of the proposed evidence is such that it is likely to give rise to a strong emotional reaction in the jury, logically unconnected with the issues in the case and the relevance of the evidence, and out of proportion to its probative value.
· The inability to give details of when incidents of sexual conduct occurred other than within a time range of many years greatly limits the ability of the accused to provide a response beyond a mere denial of the conduct. Juries are commonly given directions aimed at this issue, but this is an extreme case. Unfairness may also arise because of the difficulty of challenging such allegations by cross-examination: KMJ at 442 [36].
· There is a danger that the jury will give the evidence undue weight, in light of its limitations and the use which may permissibly be made of it.
· There is a real risk that most, if not all of the sexual conduct relied on by the Crown, even if proved, cannot be shown to be unlawful or wrongful. The Crown cannot prove any act was without consent. The criminality in the charged conduct, and the criminality of any uncharged conduct, arises by operation of the provisions of the Code excluding consent as a defence, such as s 127(3) for indecent assault, and s 124(3) for sexual intercourse with a young person. The operation of the provisions depends on the age of the complainant. Having properly exercised the prosecutorial judgment not to charge the accused with crimes for conduct described in the notice, which may have occurred either before or after the complainant's 17th birthday, there is a danger of considerable unfairness if the evidence is now adduced only as evidence of "context" on the basis that it forms a continuous course of conduct.
For those reasons I am not satisfied that the probative value of the evidence outweighs the danger of unfair prejudice to the accused. Consequently, s 137 requires its exclusion.
Conclusion and orders
For the foregoing reasons, the evidence stated in the Crown notice of tendency evidence is not admissible either as evidence of tendency or as context evidence. There being no other basis on which the evidence is said to be admissible, the evidence will not be admitted.
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