The Queen v Page (No 1)

[2021] NTSC 2

CITATION:The Queen v Page (No 1) [2021] NTSC 2

PARTIES:THE QUEEN

v

PAGE, Michael John

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:22010565

DELIVERED:  19 January 2021

HEARING DATE:  13 October 2020

JUDGMENT OF:  Kelly J

CATCHWORDS:

EVIDENCE – Admissibility and relevance – Evidence (National Uniform Legislation) Act 2011 (NT) s 97 and s 101 - Tendency evidence – Whether tendency evidence has significant probative value – whether probative value of the evidence substantially outweighs any potential prejudicial effect on the accused - Evidence admissible

Evidence (National Uniform Legislation) Act 2011 (NT) s 97, s 97(1), s 101

HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; McPhillamy v The Queen (2018) 361 ALR 13; R v Bauer (2018) 266 CLR 56; R v Lisoff [1999] NSWCCA 364; The Queen v AW [2018] NTSC 29, applied

REPRESENTATION:

Counsel:

Crown:T McNamee

Accused:L Nguyen

Solicitors:

Crown:Director of Public Prosecutions

Accused:Robert Welfare & Associates

Judgment category classification:    B

Judgment ID Number:  Kel2101

Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Page (No 1) [2021] NTSC 2

No 22010565

BETWEEN:

THE QUEEN

AND:

MICHAEL JOHN PAGE

CORAM:    KELLY J

REASONS FOR JUDGMENT

(Delivered 19 January 2021)

1. The accused is charged with having sexual intercourse with RE without her consent.

2. The Crown has given notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) of its intention to adduce tendency evidence.

3. The notice advises that the tendencies sought to be proved are the tendency of the accused:

   (a)to act in a particular way, namely:

   (i)barter intoxicating substances or other advantages in exchange for sexual intercourse with the complainant; and

   (ii)to create opportunities to act on his sexual interest in the complainant by providing her with intoxicating substances, and subsequently engaging in sexual conduct with her;

   (iii)to effect his sexual interest in the complainant by:

   a.    providing the complainant with intoxicating substances, be it alcohol or drugs;

   b.   taking the complainant to isolated places;

   c.    sexually assaulting her there by way of penile/vaginal intercourse; and

   d.   performing cunnilingus on the complainant after penile/vaginal intercourse; and

   (b)to have a particular state of mind, namely a sexual interest in the complainant, and a willingness to act on that interest.

4. The conduct about which evidence is sought to be adduced is the conduct the subject of the current charges as well as the following:

Conduct	Date & Time	Place	Circumstances	Witness(es)
Uncharged act – sexual intercourse (penile/vaginal, cunnilingus)	2000 When the (sic) [RE] was in year 9 and she was 14 years – at night time 11 pm and early hours of the morning	Hot Springs in Katherine	The complainant and her friend met up with the accused and his friend they followed the accused to the Hot Springs. He provided her with alcohol. When she was drunk he put his penis in her vagina and then he performed cunnilingus on her.	[RE] TP 3-16 Recorded statement 25/9/20
Uncharged act – sexual intercourse (penile/vaginal, anal, cunnilingus and fellatio)	2001 when the complainant was 15 years	Horseshoe flats in Katherine	The complainant was homeless and went to the accused residence. The accused provided her with alcohol and drugs and had sexual intercourse with the complainant.	[RE] TP 17-25, 27-28 Recorded statement 25/9/20 And TP 3, 10 & 37 Recorded statement 14/1/20
Uncharged act – sexual intercourse (penile/anal intercourse)	Between 2017-2018	Room at the Noonamah Tavern	The accused asked the complainant to go with him to Noonamah Tavern to shout her a meal. She went with him gave her food and alcohol and penetrated her anus with his penis and made it bleed.	[RE] TP 25-26, 28 Recorded statement 25/9/20
Uncharged act – sexual intercourse (penile/vaginal, anal, cunnilingus)	Between 2017-2018	A donga at Grove Hill	The accused offered the complainant and her friend a lift to Katherine. He offered them drugs. He took them to Grove Hill and asked them for sex. Ellis complied because he threatened to leave them there if she did not.	[RE] TP 29-31 Recorded statement 25/9/20
Count 1 Sexual intercourse without consent (fellatio)	13 January 2020	Elizabeth River Bridge Palmerston	The accused provided her with drugs and alcohol and when she asked for a lift home he took Elizabeth River Bridge and forced her to perform fellatio upon him.	[RE] Recorded statement 14/01/20 – whole document
Count 2 Sexual intercourse without consent (cunnilingus)	13 January 2020	Elizabeth River Bridge Palmerston	The accused provided her with drugs and alcohol and when she asked for a lift home he took her out to Elizabeth River Bridge and performed cunnilingus upon her.	[RE] Recorded statement 14/1/20 – whole document
Count 3 Sexual intercourse without consent (penile /vaginal)	13 January 2020	Elizabeth River Bridge Palmerston	The accused provided her with drugs and alcohol and when she asked for a lift home he took her out to Elizabeth River Bridge and had penile /vaginal sexual intercourse with her and (sic)	[RE] Recorded statement 14/1/20 – whole document

1. The tendency evidence is said to be relevant to whether the accused had sexual intercourse with the complainant without her consent and in the circumstances as described by the complainant; and to rebut or negative any suggestion that it was the complainant who was offering sexual activity in exchange for drugs.

2. The defence objects to the evidence being adduced as tendency evidence.  Defence counsel complained about the adequacy of the notice which was served only days before the trial was due to start.  The reason for the lateness of the notice was that the prosecutor had only just become aware of the fresh allegations made by the complainant which are the subject of the notice as a result of a further statement made by the complainant to police shortly before the service of the notice.  The trial has since been relisted to commence on 19 April 2021.

3. Under UEA s 97 evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value.

4. On the hearing of the voir dire, I asked defence counsel what she would have done if notice had been given earlier.  She advised that the defence would have liked to take statements from a number of witnesses – all of whom, it turned out, were related to the accused.  It was not made clear what purpose was to be served by interviewing those witnesses since it is not alleged by anyone that they were present at any of the times and places when the complainant alleges the accused sexually assaulted her.  However, I will assume that the witnesses may be able to give relevant evidence about opportunity.  I ascertained that all of these witnesses are readily available to be spoken to by defence counsel.  Further, the prosecutor agreed to request the officer in charge of the investigation to obtain statements from such of the witnesses as she can, while not conceding their relevance or undertaking to necessarily call any of them as witnesses.

5. In the circumstances I consider the notice given to be adequate.

6. The second question under s 97 is whether the evidence has significant probative value in relation to the issues set out above. Significance means something in between mere relevance, and a substantial degree of relevance.

7. The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[1]

   The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. (citations omitted)

8. Assessing the probative value of proposed tendency evidence is therefore a two stage process.  As the plurality said in Hughes:[2]

   The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

9. The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to act in the way asserted in the notice.  The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence.  This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[3]

10. This includes assessing the significance of the possibility of collusion or concoction which “should be left to an occasion when it is raised in a concrete factual setting”.[4]

11. In my view, on the assumption that the jury accepts the evidence, the evidence set out in the tendency notice is capable of supporting proof of a tendency in the accused to have a sexual interest in the complainant on which he is prepared to act and also to sexually abuse the complainant in the ways specified after providing her with intoxicating substances and taking her to isolated places.

12. Ms Nguyen for the defence argued that, because the complainant had previously made four complaints of sexual assault of various kinds that had not been proceeded with, this is one of those exceptional cases in which the Court should find that complainant’s evidence relied on for the purpose of the tendency notice is so lacking in credibility or reliability that its probative value is nil.  The plurality in IMM v The Queen[5] held:[6]

    The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.

13. Counsel relied on the following passage in R v Bauer(a pseudonym).[7]

    In this context, reference to competing inferences is unhelpful, and likely to lead to error. Relevantly, the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. As was established in IMM, that is a determination to be undertaken taking the evidence at its highest. Accordingly, unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury. To the extent that GM or BM suggests otherwise, it should not be followed.

14. Defence counsel submitted that the evidence of the four other complaints of sexual assault made by the complainant that were not proceeded with meant that the risk of concoction of the tendency evidence was so great that it would not be open to a jury to rationally accept it.  I disagree.  The evidence is not inherently implausible; nor is there anything to suggest a high probability of concoction.  Ms Nguyen relied on subpoenaed material which shows that the complainant has made a number of complaints of sexual assault in the past, none of which proceeded to a conviction.  The evidence of those complaints is the subject of a tendency notice served by the defence.  It seems to me that that material raises different issues and I will deal with those when ruling on the defence tendency notice.  For one thing, as the prosecutor, Ms McNamee pointed out, there is nothing in the subpoenaed documents which is proof that any of the prior complaints was false.

15. The decision whether to admit the tendency evidence under UEA s 97 must be made on the assumption that the evidence will be accepted. The evidence of the complainant that the accused has sexually abused her on other occasions in the past, if accepted, would establish that the accused had a tendency to indecently deal with her and to have a sexual interest in her. The Full Court of the High Court in Bauer said:[8]

    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.

    …

    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.[9]

16. The Court in Bauer went on to approve the following statement from the judgment of Hayne J in HML v The Queen:[10]

    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.

17. Their Honours concluded:

    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.

18. The High Court has said that there need not be any striking similarities or a distinct modus operandi for tendency evidence to be significantly probative of a fact in issue,[11] but where the tendency evidence sought to be adduced relates to sexual misconduct with a person other than the complainant, it will usually be necessary to identify some feature which serves to link the other sexual misconduct with the alleged offending conduct.[12]  As the High Court said in Bauer:[13]

    If … there is some common feature of or about the offending, it 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.

19. That is not the case here.

20. Further, those tendencies, if established, significantly increase the likelihood that the accused had that state of mind and acted on it at the times relevant to the charges on the indictment – ie that he committed the offences with which he is charged.

21. I am therefore satisfied that the threshold test in s 97 has been met. The evidence sought to be adduced as tendency evidence has significant probative value.

22. The next step is to consider whether the evidence satisfies the requirements of UEA s 101. In a criminal trial such as this, tendency evidence is not admissible unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.  This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused.

23. When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[14]  The notion of prejudice in this general context “… means the danger of improper use of the evidence.  It does not mean its legitimate tendency to inculpate.”[15]  Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.

24. The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial such as this:[16]

    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.

1. The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice.  There must be a real risk of prejudice by reason of the admission of the evidence.[17]

2. In this case, the defence asserted that there was a risk of the following kinds of prejudice:

   (a)that the jury might give the evidence more weight than it deserves;

   (b)that the jury might engage in propensity reasoning; and

   (c)that the jury might be influenced by an irrational or emotional response to the evidence.

3. However, no explanation was provided as to why or how the jury might misuse the evidence in such a fashion.

4. I do not agree that there is a real risk of misuse of the tendency evidence by the jury.

5. So far as the risk of propensity reasoning is concerned, the use of this kind of tendency evidence involves a kind of permissible propensity reasoning.  As the plurality said in Hughes:[18]

   The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.

6. I do not think the risk that the jury may engage in rank propensity reasoning is very great and, in my view, it can be adequately guarded against by the usual warnings.

7. Nor do I think that there is any real risk that hearing evidence from the complainant about previous alleged sexual abuse by the accused is likely to have much greater emotional impact (if any) than hearing from her about the allegations of sexual abuse the subject of the charges on the indictment.

8. Balanced against this, I consider the probative value of the evidence, if it is accepted, to be high.  I consider that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.  The tendency evidence specified in the notice will be admitted.

   ----------

[1][2017] HCA 20 (“Hughes”) at [16] per Kiefel CJ, Bell, Keane and Edelman JJ

[2]ibid at [41]

[3]      IMM v The Queen (2016) 257 CLR 300 at [38], [39] and [41]

[4] ibid at [59]

[5] (2016) 257 CLR 300

[6] ibid at [39]

[7] (2018) 266 CLR 56 (“Bauer”) at [69]

[8] ibid at [48]

[9] ibid at [50]

[10]HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [51]

[11]Hughes at [34], [39] to [41]

[12]    McPhillamy v The Queen (2018) 361 ALR 13 at [31]

[13]    Hughes at [58]

[14]The Queen v AW [2018] NTSC 29 at [30]

[15]    HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ

[16]    Hughes at [17]

[17]R v Lisoff [1999] NSWCCA 364 at [60]

[18]    Hughes at [16]