Tasmania v Harris
[2016] TASSC 47
•7 September 2016
[2016] TASSC 47
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Harris [2016] TASSC 47
PARTIES: STATE OF TASMANIA
v
HARRIS, Christopher James
FILE NO: 212/2015
DELIVERED ON: 7 September 2016
DELIVERED AT: Burnie
HEARING DATE: 6 September 2016
RULING OF: Estcourt J
CATCHWORDS:
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under the uniform evidence law – Generally – Significant probative value – Unfair prejudice – Approach to be followed – Mere possibility of concoction or contamination – Point at which considered – Relevance to unfair prejudice where no similarity of allegations – Reliance on jurors to comply with directions – Coincidence not unfairly prejudicial.
Evidence Act 2001 (Tas), ss 101(2), 135(a), 137.
R v Gale; R v Duckworth [2012] NSWCCA 174; IMM v The Queen [2016] HCA 14, 90 ALJR 529; R v Matonwal [2016] NSWCCA 174, applied.
Neill-Fraser v Tasmania [2012] TASCCA 2; Tasmania v L [2013] TASSC 47; Gilbert v The Queen [2000] HCA 15, 201 CLR 414; FB v The Queen [2011] NSWCCA 217, referred to.
Aust Dig Criminal Law [2780]
Criminal Law – Procedure – Information, indictment or presentment – Joinder of counts – By statute – Same facts or series of offences of same or similar character – Cross admissibility – Application to sever refused.
Criminal Code 1924 (Tas), ss 311(2), 326(3).
Ludlow v Metropolitan Police Commissioner [1971] AC 29; De Jesus v The Queen (1986) 68 ALR 1; Andrews v The Queen (1986) 22 A Crim R 201; R v Iongi (1993) 69 A Crim R 441; R v Cogley [1999] VSCA 123; Tasmania v Martin (No 2) [2011] TASSC 36, 20 Tas R 445, referred to.
Aust Dig Criminal Law [3075]
REPRESENTATION:
Counsel:
State: J Ransom
Accused: K Edwards
Solicitors:
State: Director of Public Prosecutions
Accused: Legal Aid Commission of Tasmania
Judgment Number: [2016] TASSC 47
Number of paragraphs: 53
Serial No 47/2016
File No 212/2015
STATE OF TASMANIA v CHRISTOPHER JAMES HARRIS
EDITED REASONS FOR RULING ESTCOURT J
7 September 2016
The application
The accused, Christopher James Harris, stands charged on indictment of seven counts of assault.
He has applied pursuant to the Criminal Code (the Code), s 326(3), for the severance of that indictment on the ground that the Court should exercise its discretion to do so because, in the words of the section, the accused "may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime on the same indictment".
The accused's counsel, Ms Edwards, also argues that the inclusion of seven counts on the indictment contravenes the Code, s 311(2), as they are not "a series of crimes of the same or a similar character".
The law as to severance
Section 311(2) of the Code states there can only be one count in an indictment unless "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".
There will always be a sufficient nexus between the offences if the evidence of one crime is admissible on the trial of the other crime; Ludlow v Metropolitan Police Commissioner [1971] AC 29 per Lord Pearson at 39; De Jesus v The Queen (1986) 68 ALR 1, per Gibbs CJ at 3 and Dawson J at 16; Tasmania v Martin(No 2) [2011] TASSC 36, 20 Tas R 445 at [26]; Andrews v The Queen (1986) 22 A Crim R 201; R vIongi (1993) 69 A Crim R 441.
However joinder is not limited to cases where there is cross-admissibility. It is also permissible where the cases can be said to be a "series". A series will occur where there are similar crimes in a similar factual setting such as time and location or participation of the accused, or some other feature that establishes a prima facie case that they can properly and conveniently be tried together: Ludlow (above); De Jesus (above) at 15; Andrews (above) and R v Cogley [1999] VSCA 123
Sufficient correlation
In the present case counsel for the State, Mr Ransom, asserts (leaving aside for the moment count 7) that the crimes alleged to have been committed by the accused were all committed against the same child, who I will refer to as X; were all committed at the same house where X was living with his mother, his siblings (a brother Y and a sister Z) and the accused; all occurred most probably between 29 December 2014 and 9 January 2015; all occurred during a period when X was, in the main, in the sole or joint care of the accused; and all involved significant bruising to different parts of X's body.
Counsel for the accused submitted, in the words of Dawson J in De Jesus (above) at 15, that there was not a "sufficient correlation" between the crimes to enable them to be described as a "series without straining beyond the meaning which it is reasonably capable of bearing".
I am unable to accept that submission. In my view there is a sufficient correlation between the crimes in terms of the identity of the victim; the nature of the injuries he sustained; the home in which he was living at the time those injuries were sustained; the timeframe in which they were sustained, and the fact that they all occurred during a period when X was, in the main, in the sole or joint care of the accused.
It follows that I am satisfied that the counts are properly joined and the indictment does not offend s 311(2) of the Code. For the purpose of making that finding I do not need to consider whether there is a sufficient nexus between the alleged crimes on the basis that the evidence of one crime is admissible on the trial of the other crime.
Cross-admissibility
However, even if the counts are properly joined the Court can nonetheless order a separate trial pursuant to s 326(3) of the Code if it appears that an accused may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one crime in the same indictment.
In order to determine that issue it does become necessary to assess the extent to which the evidence on each count is cross-admissible, as the State accepts in relation to counts 1 to 6 that if the evidence is not cross-admissible then the indictment should be severed on the basis that the accused would be prejudiced or embarrassed in his defence.
On the basis of the evidence sought to be led in support of the allegations set out at [7] of these reasons, the State asserts that proof beyond reasonable doubt that the accused was the perpetrator on any one count in the indictment is admissible on the issue of whether he was the perpetrator on any or all of the other counts, as "coincidence evidence" pursuant to s 98 of the Evidence Act 2001 (the Act).
Relevantly that section provides as follows:
"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."
Section 101 of the Act places further restrictions on the adducing of coincidence evidence.
Relevantly that section provides as follows:
"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."
The principles
It is necessary to give consideration to evidence sought to be tendered as coincidence evidence as a whole, rather than giving separate consideration to each particular circumstance relied upon; R v Matonwal [2016] NSWCCA 174 (17 August 2016), per Bathurst CJ [73], Rothman J [94] and McCallum J [95].
The task in determining whether to admit evidence as coincidence evidence is to be performed having regard to all of the evidence sought to be adduced by the party seeking to tender the evidence; Matonwal per Bathurst CJ [71], Rothman J [9] and McCallum J [95].
"Significant probative value" in s 98(1) of the Act means probative value which is "important" or "of consequence". 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 [2016] HCA 14, 90 ALJR 529 per French CJ, Kiefel, Bell and Keane JJ [46] and Matonwal (above) per Bathurst CJ at [77]-[78], Rothman J [94] and McCallum J [95].
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), per French CJ, Kiefel, Bell and Keane JJ [44].
The requisite probative value of the evidence is not spelled out in s 137 of the Act. It requires the "probative value" of the evidence to be weighed against the danger of unfair prejudice to the defendant. This also requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue; IMM v The Queen (above), per French CJ, Kiefel, Bell and Keane JJ [47].
Probative value
Counsel for the accused submitted that the evidence sought to be relied upon by the State as coincidence evidence did not have significant probative value, and that if it did, any such value was outweighed by its prejudicial effect on the accused, and that therefore by virtue of ss 101(2), 135 and 137 of the Act it should not be allowed to be adduced as part of the State's case. The corollary of that argument is that in the event I so find, s 326(3) of the Act requires the indictment to be severed because the accused would be embarrassed or prejudiced in his defence by reason of there being seven crimes on the same indictment.
As to the lack of significant probative value, counsel for the accused submitted that the evidence going to the allegations outlined by the State as establishing that the only acceptable explanation was that the accused committed each of the crimes charged, spoke to the question of where and when, and during what period, bruising was discovered on X's body at a time when he was, for the most part, in the sole or joint care of the accused, but said nothing as to how the injuries were sustained by X.
Counsel for the accused submitted that the evidence would show that there were times during the relevant period when X was in other people's care or in other people's company, and that the injuries suffered by X, if deliberately inflicted, could have been inflicted by somebody else, or alternatively they could have been sustained as a result of a series of accidents.
Counsel for the State submitted that the evidence proposed to be called by the State was cross-admissible on the first six counts on the indictment as coincidence evidence because it made it more likely that a jury would accept that X was telling the truth in his recorded interviews with police.
Counsel referred to the photographs taken of X when he was taken to the local hospital on 9 January 2015, and foreshadowed that the expert medical evidence would establish that the bruising to X's forehead and eyes and to his left ear, his left arm, his right thigh, his neck, and his penis and testicles, were all separately inflicted and were not the sort of injuries which were normally seen on a 4 year old presenting to hospital. The State contends that the medical evidence will also demonstrate that significant force would have been required for the infliction of each of the injuries observed.
The State argues that the probative value of the coincidence evidence is more than significant because it would enable the jury to make an assessment of the high improbability of a 4 year old suffering six separate injuries, each of which was out of the ordinary, each of which was suffered separately, and each of which required significant force, all within a period of some 11 days. Counsel contended that the period can be confined to that number of days by virtue of the evidence of a general practitioner who saw X on 29 December 2014 for an unrelated matter and who apparently did not observe any of the six injuries that were catalogued only 11 days later when X was taken to another general practitioner in respect of all of the subject injuries and was immediately sent to hospital by ambulance.
It was also submitted on behalf of the State that the coincidence evidence has particular probative value in this case because of the age of X at the time of the alleged assaults. It was submitted that as a 4 year old, X could not be expected to detail each of the six incidents as they related to each separate area of his body, whereas the evidence when viewed as a whole points to it being unlikely that the injuries were suffered by coincidence, thus establishing that the only explanation is that the accused committed each crime.
The approach to coincidence evidence
In R v Gale; R v Duckworth [2012] NSWCCA 174, 217 A Crim R 487, Simpson J, with whom McClellan CJ at CL and Fullerton J agreed, summarised the approach to be adopted in considering the admission of evidence as coincidence evidence at [30]-[31] in the following way:
"[30] The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are:
· that there is evidence capable of establishing the occurrence of two or more events; and
· that there is evidence capable of establishing similarities in the two or more events; or
· that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred;
· that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred.
[31] In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows:
· the first step is to identify the 'particular act of a person' or the 'particular state of mind of a person' that the party tendering the evidence seeks to prove;
· the second step is to identify the 'two or more events' from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the 'particular act' or had the 'particular state of mind';
· the third step is to identify the 'similarities in the events' and/or the 'similarities in the circumstances in which the events occurred' by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events;
· the fourth step is to determine whether 'reasonable notice' has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement);
· the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, 'have significant probative value';
· in a criminal proceeding, if it is determined that the evidence would have 'significant probative value', the sixth step is the determination whether the probative value of the evidence 'substantially outweighs' any prejudicial effect it may have on the defendant (s 101(2)).
· the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two."
Following the first five steps of that analysis I am satisfied that counsel for the State has identified both similarities in the events and similarities in the circumstances in which the events occurred, by reason of which the State asserts the improbability of the coincidental occurrence of the events. For the reasons that follow I am satisfied that the evidence proposed to be adduced has significant probative value.
In my view the arguments advanced by counsel for the accused are insufficient to deprive the evidence sought to be led by the State of its significant probative value. Those arguments merely assert that it is possible for another person to have inflicted the injuries on X, or for each of the injuries to have been accidental.
On the basis of the material with which I have been provided for the purposes of this application, it is true that X was in the care of his father at least until midday on Christmas Day 2014, and it is true that thereafter X was in the company of others, including his mother and her friends and his siblings. To point to those facts however does no more than to identify opportunities for others to have inflicted the injuries on X.
With regard to his father there is nothing in the material before me to suggest that X had any injuries when he was returned to his mother's care on Christmas Day. Given that it seems that the accused and X's mother were in the habit of checking for injuries on X after his return from access visits to his father, and in any event, it is extremely unlikely that any or all of the serious injuries observed on X when he was examined on 9 January 2015 were present on Christmas Day.
With regard to X's siblings and his mother and her friends, there is nothing to suggest that they had any motive to harm X, and there is no complaint by X concerning any of them. To point to opportunity and nothing more is speculation of the highest order and does, not in my view, in any way weaken the strength of the evidence the State seeks to lead.
The submission by counsel for the accused that each of the six injuries sustained by X were accidental merely highlights the very basis for the State joining the relevant six counts in the indictment and giving a coincidence notice under the Act to the accused. The submission really only identifies the justification for coincidence evidence in cases such as this. The protection for accused persons in such cases is found in the restraint on coincidence evidence imposed by ss 101(2), 135 and 137 of the Act, namely exclusion of such evidence in the event that it does not substantially outweigh any unfair prejudicial effect it may cause.
It follows from what I have said that I am satisfied that the evidence sought to be led by the State has significant probative value. The evidence is "important" and "of consequence", and given the nature of the facts in issue to which the evidence is relevant and the circumstantial nature of each of what will be considered by the jury as six separate cases against the accused, the evidence is "influential in the context of fact-finding"; IMM v The Queen (above) per French CJ, Kiefel, Bell and Keane JJ [46], and Matonwal (above) per Bathurst CJ at [77]-[78], Rothman J [94] and McCallum J [95].
Unfair prejudice
The sixth step suggested by Simpson J in R v Gale; R v Duckworth (above), which now must be understood in the light of IMM (above), involves the question of whether the significant probative value of the proposed coincidence evidence "substantially outweighs" any prejudicial effect it might have.
Counsel for the accused argues that the nature of the evidence is such that the jury is highly likely to have an emotional reaction to it and to use it impermissibly in such a way as to form a bias against the accused and to overlook reasonable hypotheses consistent with innocence. Counsel also argues that there is a danger of a prejudicial effect arising from the possible concoction of evidence between X, Y and Z and or their mother and/or contamination of X's evidence as a result of him overhearing conversations between a witness I will call M, and X's father, and between X's grandparents, in both of which conversations it was suggested that the accused had hurt or may have hurt X.
I accept that being confronted by the details of six counts of assault on an infant and not just one and being confronted with photographs of the six injuries, as opposed to being directed to the graphic evidence of only one, the jury is likely to have an emotional reaction to those details and those photographs.
The notion of unfair prejudice was considered by Crawford CJ, with whom Tennent and Porter JJ agreed, in Neill-Fraser v Tasmania [2012] TASCCA 2 at [181]-[185] as follows:
"181 Concerning the danger of unfair prejudice, his Honour acknowledged that the jury might have an emotional reaction upon hearing evidence that the appellant had planned a murder with strikingly similar characteristics 12 or more years previously and might be inclined not to examine the evidence dispassionately. However, his Honour concluded that the probative value of the evidence outweighed the danger of unfair prejudice and he resolved to direct the jury that they should not use the evidence to conclude that the appellant was a person of bad character, and, therefore, a person more likely to have committed the crime charged. That direction was given to the jury in the course of the summing up.
182 In his submission to this Court, counsel for the appellant conceded that the evidence was relevant and limited his reliance on the ground to an argument that its probative value was outweighed by the danger of unfair prejudice.
183 If the jury accepted Mr Triffett's evidence its probative value was substantial and the risk of its misuse was slight. The jury would have been entitled to think that it was more than a coincidence that the circumstances of the deceased's disappearance were the same as those planned by the appellant, albeit many years before.
184 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.
185 The direction given by the judge to the jury not to misuse the evidence was adequate. It served to prevent the probative value of the evidence being outweighed by the danger of unfair prejudice. The jury may safely be assumed to have understood the concepts involved."
In my view the probative value of the coincidence evidence the State seeks to lead in a case with such unusual features as the present case, is very high. However, on the other hand, I regard the risk of misuse of that evidence by the jury as quite low. With appropriate directions I do not believe that the jury would conclude that the accused was a person of bad character, and, therefore, a person more likely to have committed the crimes charged, and with appropriate directions I do not believe, as suggested by counsel for the accused, that the jury would be biased against him and would move from one count to another without giving each proper assessment, or without considering any reasonable hypothesis consistent with the accused’s innocence.
As Pearce J said in Tasmania v L [2013] TASSC 47 at [53], having determined that the evidence sought to be led has significant probative value, a balancing exercise is required balancing the probative value of the evidence against the risk of prejudice to the accused. This requires an exercise of judgment, and in that exercise of judgment there must be factored in that a trial judge may give directions to the jury emphasising the need for separate consideration to be given to each of the counts on the indictment and warning the jury against the danger of improperly using the coincidence evidence.
Pearce J also pointed out in Tasmania v L that such directions are commonly given to juries. Moreover it is trite that our system of criminal justice based as it is on trial by jury, depends for its efficacy on juries accepting and following the directions of trial judges as to the law. It would undermine the jury trial system if it were to be accepted that a jury would not be able to understand and follow a relatively uncomplicated direction emphasising the need to give separate consideration to each count on an indictment, and warning the jury that it would be improper to make a broad assessment of the counts based on emotion, or based on an irrational or illogical view formed from the number of charges, that the accused was a person of bad character or a person more likely than not to have committed all of the offences charged. In Gilbert v The Queen [2000] HCA 15, 201 CLR 414 at [31] Hayne J said that "put bluntly", unless courts proceed on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, "there is no point in having criminal jury trials".
However, as already noted, counsel for the accused also submits that the accused will be prejudiced by the adducing of the coincidence evidence on the basis that the evidence of X may have been contaminated, and/or that the evidence of X, Y and Z and/or their mother may have been concocted, and that such prejudice is magnified by the presence of multiple counts on the indictment.
In Tasmania v L (above) Pearce J succinctly digested the notions of "concoction" and "contamination" at [54] in the following way:
"54 Concoction includes cases where the complainants have possibly got together to concoct an account, and also cases where one complainant has possibly concocted evidence after becoming aware of the account of another complainant. See Tasmania v S [2004] TASSC 84 per Underwood J (as he then was) who referred also to BRS v R [1997] HCA 47; (1997) 191 CLR 275 at 301; P v R (supra). Contamination occurs when the memory of an honest witness is made inaccurate as a result of exposure to information concerning another complainant; Tasmania v L [2004] TASSC 86 at par[17]. The focus of an enquiry as to concoction is on the factual (as distinct from theoretical) possibility of concoction, R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at 447.
55 There has been some consideration of how the issue of the possibility of concoction or contamination is relevant in determining the admissibility of tendency and coincidence evidence. A series of Tasmanian cases considered the prospect of concoction in assessment of the probative value of the evidence. See Tasmania v S (supra), L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381, Tasmania v B [2006] TASSC 110 and Tasmania v Y [2007] TASSC 112."
In their true sense the issues of concoction and contamination do not arise in this case from the coincidence evidence. Usually it is the case that prejudice is said to arise from the likelihood of concoction or contamination where two or more witnesses make similar allegations against an accused person, as is often seen in cases of sexual assault upon children. That is not the case here. The coincidence evidence sought to be led does not involve X or Y or Z making similar allegations against the accused. The coincidence evidence in the present case is not derived from similar statements made by witnesses but from similar features in the case of each of the injuries sustained by X which render it unlikely that anyone other than the accused was responsible for all of them.
It is unnecessary however for me to consider this issue in any detail, as on any view of the matter the evidence of the opportunity for contamination and/or of circumstances of concoction pointed to by counsel for the accused, goes no further than raising the possibility of such prejudice.
As to the opportunity for contamination, counsel points to the opportunity for X to have overheard a conversation between his grandparents on 9 January 2015 prior to him being taken first to a general practitioner and then the local hospital, and to a further opportunity for X to have overheard a telephone conversation between his father and M whilst in the car on that evening on the way to receive medical treatment. In both those conversations the suggestion was made between the parties to them that the accused had hurt or may have hurt X.
As to circumstances of concoction, counsel for the accused points to exchanges between X and Y and subsequent exchanges between Y and her mother which contained allegations by X against the accused. Counsel for the State points out however that after X was taken to the local hospital on 9 January 2015 he was isolated from his parents and his siblings until after he and they had recorded interviews with police. Any conversations between X and his siblings and his mother generally as to relevant events thereafter may be disregarded other than for the purposes of cross-examination in relation to their testimony at trial.
Whilst the High Court in IMM (above) did not determine the question of the significance of joint concoction to the application of the test proposed by s 101(2) of the Act, the majority judgment at [59] did reject the proposition that "the possibility of joint concoction may deprive evidence of probative value".
The opportunities and circumstances pointed to in the present case by counsel for the accused amount to no more than speculation as to the existence of a possibility of contamination or concoction. Such a possibility of itself cannot deprive the evidence sought to be led by the State of probative value. That is to say, in assessing the issue of concoction or contamination at the stage of considering the risk of prejudice to the accused (FB v The Queen [2011] NSWCCA 217 [32]-[45]), a mere possibility of such concoction or contamination does not result in the coincidence evidence ceasing to substantially outweigh any prejudicial effect it may have.
Conclusion
In my view the inclusion of all seven counts in the indictment does not offend s 311(2) of the Code as they amount to a series of crimes of the same or a similar character, and there is sufficient nexus between them even absent the cross admissibility of evidence between them. Further, I am of the view that it is not appropriate for me to exercise my discretion to sever the indictment because I am of the view that any prejudice or embarrassment to the accused in his defence by reason of being charged with more than one crime on the same indictment can be cured by appropriate directions to the jury. Whilst I have dealt in these reasons with counts 1 to 6, having reached the view that I have, my reasoning comfortably extends to include count 7.
The application to sever the indictment is refused.
63
22
1