The Director of Public Prosecutions v DL
[2018] ACTCA 61
•6 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Director of Public Prosecutions v DL |
Citation: | [2018] ACTCA 61 |
Hearing Date: | 12 November 2018 |
DecisionDate: | 6 December 2018 |
Before: | Mossop, Loukas-Karlsson JJ and Robinson AJ |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – REFERENCE APPEAL – statutory interpretation – interpretation of s 101(2) of the Evidence Act 2011 (ACT) – meaning of “prejudicial effect” – whether it is permissible to consider the effect that the use of the tendency evidence against the defendant in a proceeding may have on the defendant in other proceedings when determining whether the probative value of the tendency evidence “substantially outweighs any prejudicial effect it may have on the defendant” – it is not permissible to consider the effect that the use of the tendency evidence against the defendant in a proceeding may have on the defendant in other proceedings |
Legislation Cited: | Evidence Act 2011 (ACT), ss 97(1)(b), 101(2), 192A |
Cases Cited: | Hughes v Queen [2017] HCA 20; 92 ALJR 52 R v Bauer [2018] HCA 40; 92 ALJR 846 |
Parties: | ACT Director of Public Prosecutions (Appellant) DL (Interested Party) |
Representation: | Counsel J White SC with J Walker (Appellant) M Hassall with G Urbas (Interested Party) |
| Solicitors ACT Director of Public Prosecutions (Appellant) ACT Director of Public Prosecutions (Interested Party) | |
File Number: | ACTCA 27 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 23 February 2018 Case Title: R v DL Citation: [2018] ACTSC 28 |
THE COURT:
Background
The Applicant, the Australian Capital Territory (ACT) Director of Public Prosecutions (the Director) has applied to the Court of Appeal to hear and decide a question of law arising at or in relation to a proceeding. That proceeding was the trial on indictment of the interested party (given the pseudonym DL in the trial below) where he faced four counts of incest and four counts of committing an indecent act on a person under the age of 10 years. In short, the allegation was that he sexually abused his two granddaughters between 2005 and 2010.
That trial has now been completed. The interested party was convicted of those offences before a jury presided over by a different judge and sentenced to imprisonment. For clarity, we will refer to this trial as the ‘ACT trial’.
Neither party contended that the further statutory preconditions to the exercise of the jurisdiction of the Court of Appeal had not been satisfied. However, it will be necessary to consider the formulation of the question of law sought to be answered.
Unless otherwise specified, references to the “Act” are references to the Evidence Act 2011 (ACT).
The Proceeding
The Director submits that a question of law worthy of the Court’s attention arose in a ruling (R v DL [2018] ACTSC 28), given pursuant to s 192A of the Act, prior to the commencement of the ACT trial.
Justice Elkaim relevantly ruled that the Crown could not lead tendency evidence at the ACT trial of events in three incidents occurring in Queensland concerning the accused. Significantly, those three incidents were themselves the subject of charges preferred against the accused by Queensland prosecuting authorities and which were still awaiting trial in that state at the time of the ACT trial.
It was accepted by both parties that the Crown could rely on the cross-admissibility of the six incidents occurring in the ACT. Those incidents formed the basis of the eight counts in the indictment in the ACT trial.
However, the Crown sought, additionally, leave to adduce the evidence of the three Queensland incidents as further tendency evidence in the trial of those eight counts in the ACT trial. These three Queensland incidents were given the description “incidents 7, 8 and 9”.
It was argued by the accused before Elkaim J that the three Queensland incidents could not be used against the accused because the probative value of that evidence did not substantially outweigh any prejudicial effect it may have on the accused. This submission involved and developed what was encompassed by “any prejudicial effect” as that expression is used in s 101(2) of the Act.
10. No other provision of the Act, other statutory provision or discretion at common law was argued before Elkaim J as the basis for excluding the evidence sought to be led by the Crown.
11. No question arose, at least directly, as to whether the ACT trial would or would not constitute a fair trial as a result of the receipt in that trial of the proposed evidence.
The Question of Law
It is important to remember that the jurisdiction given to the Court of Appeal is to hear and decide a question of law. The Court is not concerned with evaluative decisions or mixed questions of fact and law. It is necessary to consider the decision made by Elkaim J with this in mind.
In the Application, the Director framed the questions of law as:
a)What constitutes “prejudicial effect” for the purpose of s 101(2) of the Evidence Act 2011 (ACT) (“Evidence Act”)?
b)Does the “prejudicial effect” of tendency evidence in s 101(2) of the Evidence Act include prejudice beyond potential misuse by the tribunal of fact, being a use by the tribunal of fact of the tendency evidence other than by way of considering its potential rationally to affect the assessment of the probability of the existence of a fact in issue in the proceeding.
c)In particular:
i.Does “prejudicial effect” relate only to the prejudicial effect that the tendency evidence itself has on the tribunal of fact (as distinct from prejudicial effect arising from the admission of the evidence); or
ii.Does the “prejudicial effect” extend to a possible prejudicial effect within the trial itself, that is a prejudicial effect the admission of the evidence may have on an accused in the trial, such as procedural disadvantages resulting from the admission of the evidence; or
iii.Does the “prejudicial effect” related to any possible prejudice to an accused person whether within or outside the trial.
The question or questions are taken from an interlocutory judgment. Assumptions and concessions are critical to the result. It is a judgment where evidence is disallowed to the benefit of the accused. Comparatively brief reasons are given by the judge for that ruling. The reasons do not canvass the competing considerations any more than is directly necessary to explain the conclusion reached.
At the hearing of the appeal, the Court raised the above difficulty with the parties. As a consequence, the Director was invited to reformulate the question he sought to be answered. The Director proposed two further formulations expressed in the alternative.
One of those formulations was as follows-
When determining in a criminal proceeding whether the probative value of tendency evidence “substantially outweighs any prejudicial effect it may have on the defendant” under s 101(2) of the Evidence Act 2011 (ACT), is it permissible to consider the effect that the use of the tendency evidence against the defendant in that proceeding may have on the defendant in other proceedings?
There is no direct authority on this question and the matter must be approached as a matter of statutory construction and principle.
The Ruling on Evidence
For present purposes, the relevant portions of the judgment can be set out so as to give context to his Honour’s conclusions.
His Honour set out the substance of incidents 7, 8 and 9, the precise detail of which is not necessary to record here and then drew attention to the provisions of s 101(2) of the Act.
At [9], Elkaim J recorded the accused’s submission that:
…if incidents 7, 8 and 9 were put before the jury, his capacity to meet the allegations in the Queensland proceedings would be significantly prejudiced. He might be compelled to reveal his defence, would lose his right to silence, and his capacity to make forensic decisions in the proceedings in the Australian Capital Territory could be dictated by the effect they would have on the Queensland proceedings.
At [10], his Honour stated that:
The evidence forming Incidents 7, 8 and 9 is obviously probative and prejudicial to the respondent. That is normal in cases of this type. The question that arises here, however, is whether the additional prejudice engendered by the Queensland proceedings [substantially] outweighs the probative value of the evidence.
His Honour continued at [11]:
As I understand the applicant’s position, it did not suggest that the respondent’s capacity to defend the Queensland proceedings would not be significantly prejudiced by the admission of the tendency evidence arising from Incidents 7, 8 and 9. The applicant did, however, submit that this prejudice could not be taken into account in assessing the application. This was because any prejudice was restricted to the effect on the jury hearing the case in the Australian Capital Territory. It did not extend to any other proceedings.
After considering case law, his Honour came to a conclusion at [19]:
In my view, “any prejudicial effect” cannot be restricted in the manner suggested by the applicant. Had the intention of the Legislature been to impose such a restriction, the wording of the section could easily have been amended to achieve that purpose. Once it is accepted that there will be substantial prejudice to an accused person, and assuming that the prejudice outweighs the probative value of the evidence, I do not see why the prejudicial effect should be limited to the matter in which the probative evidence is being relied upon.
His Honour excluded the evidence at [20]:
It is perhaps not surprising that there are no authorities specifically on point. This may reflect a general recognition of the breadth of any prejudicial effect on a defendant. Whatever the case, I think that Incidents 7, 8 and 9 must be excluded from the evidence which can be adduced as tendency evidence.
The Reformulated Question
It is clear beyond doubt that his Honour’s reasoning involved giving weight to the “prejudice” arising from having to deal with the Queensland incidents as part of the ACT trial. As a matter of logic this prejudice could arise in two ways. It could arise in the Queensland proceedings because the complainants and witnesses would be forewarned of the areas of cross-examination in advance of the accused’s defence case commencing, as well as alerting the prosecuting authorities to those matters and gaps where steps could be taken to shore up the Crown case. It could arise from forensic decisions taken by the accused in the ACT trial itself to limit or minimize the information flowing from that trial to those complainants, witnesses and authorities. The decision as to whether to give sworn evidence in the ACT trial might be said, in that context, to have heightened significance. Such decisions could be said to be a rational choice in circumstances where, for example, the Queensland proceedings would likely bring a greater period of incarceration if the accused was found guilty than the counts in the ACT trial.
His Honour observed this in saying (at [20] above) “his capacity to make forensic decisions in the proceedings in the Australian Capital Territory could be dictated by the effect they would have on the Queensland proceedings”.
Statutory Framework
The Court is concerned with the questions arising in the framework of the relationship of s 97(1)(b) and s 101(2) of the Act. It is necessary to start with the relevant text.
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
…
101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution
…
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented 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.
A number of matters can be noticed. First, the scheme is to give permission to use evidence if the precondition of substantial probative value is obtained. In the case of a criminal trial only, and in a case where the prosecution only is seeking to adduce the evidence, the further hurdle in s 101(2) applies to the proposed evidence.
Second, the expression “any prejudicial effect”, at least as a matter of language with its use of “any”, is capable of applying to the prejudice flowing from the inclusion of the Queensland incidents in the ACT trial. “Prejudicial effect” is not defined under the Act unlike “probative value”.
Third, the fuller expression “any prejudicial effect it may have on the defendant” draws attention to the fact that the meaning appears wider than the potential effect of the misuse of the evidence to be admitted by the jury/tribunal of fact. The expression is apt to encompass some aspects of a fair trial.
Fourth, it is to be remembered that in Hughes v Queen [2017] HCA 20; 92 ALJR 52, in a discussion of what constitutes prejudice, the majority of the High Court set out prejudice arising from risks associated with the jury at that trial. However, the majority arguably pointed to a forensic or procedural disadvantage as constituting prejudice in the last sentence in the passage as set out below. At [17] the majority said:
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
Fifth, recently in R v Bauer [2018] HCA 40; 92 ALJR 846, the High Court resolved a long standing controversy as to the possible different meanings to be given to like expressions in the same Act. The majority of the Court said at [73]:
Despite textual differences between the expressions “prejudicial effect” in s 101, “unfairly prejudicial” in s 135 and “unfair prejudice” in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.
Answer to the reformulated question
As recorded above, so far as the parties and the Court are aware there is no direct authority on this question. The question has some importance for the ACT, as the Director asserted, in referring to its geography and high student and public servant transitory populations.
We do not agree with the Director’s submission that “unfair prejudice [is restricted to] the real risk that the jury will misuse evidence in some unfair way in the trial”. True it is that the relevant prejudicial effect must arise out of the evidence sought to be adduced in the proceedings and that that evidence is necessarily tendency evidence, it is nevertheless the prejudicial effect it may have on the defendant which is critical. That is a wider criterion. The limits of that criterion were not explored either before Elkaim J nor this Court. It may include procedural disadvantage flowing from the admission of that evidence in a given case.
However, by focussing on the factual material in this case it is possible to give a limited answer to the question posed. His Honour found, or at least the application was conducted upon the footing, that the evidence sought to be tendered was to the requisite probative value and that, were it not for the fact that incidents 7, 8 and 9 were the subject of undetermined criminal charges in Queensland, those incidents would have been allowed as tendency evidence in the ACT trial.
A precise analysis of that evidence in terms of prejudice was not undertaken. The Crown’s submission recorded by Elkaim J above was that it was conceded that the accused’s ability to defend the Queensland proceedings would be significantly prejudiced by the admission of the tendency evidence in the ACT trial. The content of this prejudice was discussed both in the ACT proceedings and also in the Queensland proceedings at a high level of generality.
The proper analysis to be undertaken, in sharper focus, is whether the prejudice to be suffered was, in fact, unfair prejudice as explained in Bauer at [73] above as opposed to the Crown tendering evidence which strengthened its case and met both criteria in s 97(1)(b) and s 101(2), and which would have the inevitable consequence of causing the accused to make unavoidable forensic choices in the conduct of the ACT trial.
It was not submitted that incidents 7, 8 and 9 contained an additional forensic disadvantage. Such a disadvantage might be in the accused’s capacity to meet the actual evidence for an extraneous reason, and where such a disadvantage could not have been addressed by the Court. Examples could include critical witnesses having died and evidence having been destroyed.
For the purposes of answering the question, we leave aside the separate position of incident 9 which raises another issue collateral to the question under consideration. Incidents 7 and 8 concern the same complainants and the accused, occur at about the same period in time and in similar circumstances. No submission was made that the evidence sought to be tendered could not be met at trial in an orthodox manner making necessary and unavoidable forensic decisions. The submission on prejudice was that, facing the prospect of two trials, with overlapping evidence, the accused would suffer a procedural disadvantage in making his defence in one or both trials which he characterised as “any prejudicial effect to the defendant” within the meaning of s 101. We do not agree that having to make such forensic choices in the circumstances of the admission of that evidence constitutes relevant prejudice for the purposes of s 101(2) of the Act.
The question posed is:
When determining in a criminal proceeding whether the probative value of tendency evidence “substantially outweighs any prejudicial effect it may have on the defendant” under s 101(2) of the Evidence Act 2011 (ACT), is it permissible to consider the effect that the use of the tendency evidence against the defendant in that proceeding may have on the defendant in other proceedings?
We answer the question as follows:
No. Provided the evidence substantially outweighs any prejudicial effect it may have on the defendant, as explained in [34] above, it is admissible. The judge should not consider the effect that the use of the tendency evidence against the defendant in that proceeding may have on the defendant in other proceedings.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 2 September 2019 |
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Amendments
2 September 2019 Delete the word “on” and insert “in” Paragraph: [8]
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