The Queen v Page (No 2) - [2021] NTSC 3

CITATION:The Queen v Page (No 2) [2021] NTSC 3
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 - Tendency evidence – Tendency notice served by accused - Whether tendency evidence has significant probative value - Evidence admissible

Evidence (National Uniform Legislation) Act 2011 (NT) s 3(1) (in the Dictionary); s 97, s 101, s 102, s 103(1), s 106
Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(1)

Hughes v The Queen [2017] HCA 20; R v Lockyer (1996) 89 A Crim R 457; The Queen v Smiler (No 2) [2017] NTSC 31, 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:  Kel2102
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Page (No 2) [2021] NTSC 3

No 22010565

BETWEEN:

THE QUEEN

AND:

MICHAEL JOHN PAGE

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 19 January 2021)

The accused is charged with having sexual intercourse with RE without her consent.
The tendency notice
The accused has served a notice of intention to adduce tendency evidence in relation to the complainant.
The tendency which the defence seeks to prove is:
·     “a tendency on the part of the complainant to act in a particular way, namely:
(a)     complain to police about being raped or sexually assaulted by one or more men in a context of alleging to have been given alcohol, drugs, accommodation or other items or amenities;
(b)     complain about rape or sexual assault allegations which are not true, or could not have occurred;
(c)     upon making a complaint, requesting police to give her lifts, accommodation or other services or amenities;
(d)     after initially reporting being raped or sexually assaulted, to withhold further information from police about the particulars of the complaint, to refuse to give further information in an investigation, or to withdraw a complaint;
·     have a particular state of mind during the making of a complaint, namely:
(a)     a drug or alcohol affected mindset;
(b)     an inability to concentrate;
(c)     an inability to recount information with precision; and/or
(d)     to be mentally unwell; and
·     act in a further particular way, namely;
(a)     asking to be taken to a mental health facility;
(b)     otherwise being delivered to a mental health facility; and/or
(c)     having herself recorded as a mentally ill person following a police complaint.
The evidence by which the accused seeks to prove this tendency is contained in police documents obtained by subpoena setting out summaries of complaints made to police by RE. In summary the complaints said to have been made by her are as follows.
(a)On 8 November 2007, RE complained to police that she had been raped by an aboriginal man at Casuarina. Police took her to RDH for a psychiatric assessment at her request. She withdrew the complaint on 19 November 2007.
(b)On 9 January 2009, RE reported that she had been raped by four men in the Pearce Street area at Katherine. She later changed this to two and then to three. She described being dragged from the boxing club on Pearce Street and raped under a large tree. The police could find no boxing club on Pearce Street. They located a large tree but the ground under it was littered with rubbish and broken glass. There was no sign of a struggle and RE did not have any cuts or other injuries. She was given medication at the hospital for a mental disorder. On the same day RE told police she did not want to proceed further with the complaint.
(c)On 1 August 2008, RE reported that she had been raped by her cousin. She said she did not want to make a statement, she just wanted police to take her to a shelter.
(d)On 13 January 2020, she reported that the accused had raped her. (That is the report which has led to the current charge.) She requested to go to Cowdy Ward to have a rest.
In the second part of the defence tendency notice the defence seeks to prove certain tendencies by the complainant to act in particular ways and have particular states of mind in relation to the accused in particular, namely:
(a)to report to police and others about being raped or sexually assaulted by the accused, in circumstances involving an allegation that he provided intoxicating substances and took her to isolated places before performing sexual activities with her;
(b)being preoccupied with the thought or belief that the accused has a sexual interest in her and a willingness to act on that interest in the lead up to a complaint being made;
(c)having a dislike, malice, hostility and/or a vendetta against the accused;
(d)a willingness to act upon her dislike by and mistakenly, recklessly or knowingly fabricating allegations of rape and sexual assault to the authorities about the accused;
(e)a willingness to exaggerate, embellish and/or dramatise allegations put forth against the accused to different people.
The evidence sought to be relied upon to establish these tendencies is evidence of complaints made to various people and statements made by RE to police at different times, all of which will form part of the Crown case in the trial.
Is the evidence capable of proving the alleged tendencies?
The first question is whether the evidence which the accused seeks to adduce is capable of proving the tendencies alleged.
I do not have to decide whether the evidence sought to be led does prove the alleged tendency, merely whether it is capable of doing so. If the evidence is capable of proving that the complainant had the tendencies alleged, it should be allowed in (subject to satisfaction of the conditions in s 97). It will be a matter for the jury whether they accept the evidence and whether they are satisfied that it proves that the complainant had the tendencies alleged by the defence.
Starting with the first part of the defence tendency notice, I conclude that it would be open to the jury to infer, on the basis of the evidence of the matters set out in the subpoenaed documents that the complainant had a tendency to make false complaints of sexual assault. Ms McNamee, for the prosecution, points out, correctly, that the documents do not contain any objective proof that the complaints were false. Nevertheless, I think it would be open to the jury to infer from this material that some or all of the complaints were false and, therefore, that the complainant had the alleged tendency. They may well reason that it strains credulity that one person could have been subjected to so many random sexual assaults, let alone so many sexual assaults that were subsequently withdrawn or otherwise not proceeded with if the allegations were true.
Section 97 – “significant probative value”
I turn to consider the question whether the evidence has significant probative value to an issue in the proceeding. Under UEA s 97, evidence 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 court thinks that the evidence will, either by itself or having regard to other evidence to be adduced by that party, have significant probative value. (There is also a requirement for reasonable notice. Although this tendency notice was served at the very last minute before the trial was due to begin, the Crown has not taken issue with the sufficiency of the notice.)
The first step is to consider whether the evidence is relevant to an issue in the proceeding. In my view it is. It is evidence which could substantially affect the complainant’s credibility.
The next question is whether the evidence has “significant” probative value. The Crown contended that, even if relevance could be established, the probative value of the evidence is so slight that it cannot be regarded as “significant”. The probative value of evidence is defined as the extent to which the evidence could rationally affect the assessment of the probability of the existence of a particular fact in issue.[1] “Significant” probative value must mean something more than bare relevance, but it does not need to rise as high as “substantial” probative value. It has been said to mean evidence that is “important” or “of consequence”.[2]
It needs to be borne in mind that the Crown bears the legal onus of proof on all issues. The accused need only submit that the Crown has not eliminated a reasonable possibility that the complainant’s evidence is not truthful and reliable. Very little may be required for evidence to be “significant” or “of consequence” in pointing only to a reasonable possibility that the complainant may not be telling the truth about the alleged sexual assaults.[3]
In my view, this evidence has significant probative value. If the jury draws the inference from the number of complaints of sexual assaults made by the complainant, the circumstances in which they were made, and the fact that none of them ever proceeded to prosecution, that the complaints are likely to have been false, they may legitimately conclude that the complainant has a tendency to make false complaints of sexual assault in circumstances where she wants something (eg a lift to the Cowdy Ward) from the police. If they form that conclusion, that may well cause them to have a reasonable doubt about the truth and reliability of the complainant’s evidence that she was sexually assaulted by the accused in the manner alleged by the Crown in relation to the charge on the indictment. As the plurality said in Hughes:[4]
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 prosecution relies on s 4(1) of the Sexual Offences (Evidence and Procedure) Act which provides:
Rules of evidence in relation to sexual offences
(1)In an examination of witnesses or a trial, whether or not it relates also to a charge of an offence other than a sexual offence against the same or another defendant, except with the leave of the court, evidence shall not be elicited or led, whether by examination in chief, cross-examination or re-examination, relating to:
(a)the complainant’s general reputation as to chastity; or
(b)the complainant’s sexual activities with any other person,
and the leave of the court shall not be granted unless the court is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue.
For the reasons already outlined, I consider that the evidence does have, not only significant, but substantial relevance to the issue of whether the Crown has proved beyond reasonable doubt that the evidence of the complainant is truthful and reliable and I consider that leave ought to be given to adduce the evidence.
The defence still has to establish that the evidence is admissible, notwithstanding UEA s 102 which provides that credibility evidence about a witness is not admissible.
Section 103(1) provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. In my view this evidence could do so, and the defence should be permitted to put these previous complaints to the complainant in cross-examination.
If the complainant denies making the complaints in question, evidence that the complaints were made would be admissible under UEA s 106 which provides:
(1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if:
(a)in cross-examination of the witness:
(i)the substance of the evidence was put to the witness; and
(ii)the witness denied, or did not admit or agree to, the substance of the evidence; and
(b)the court gives leave to adduce the evidence.
(2) Leave under subsection (1)(b) is not required if the evidence tends to prove that the witness:
(a)is biased or has a motive for being untruthful; or
(b)has been convicted of an offence, including an offence against the law of a foreign country; or
(c)has made a prior inconsistent statement; or
(d)is, or was, unable to be aware of matters to which his or her evidence relates; or
(e)has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.
I consider that the evidence referred to in the first part of the defence tendency notice has significant probative value. It will be admitted as tendency evidence – subject to its being available in otherwise admissible form.
The evidence in the second part of the tendency notice, asserting tendencies in the complainant to act in certain ways and have particular states of mind in relation to the accused, all of that evidence will be led anyway in the Crown case and, it seems to me that the tendencies set out in the notice are not necessarily tendencies. They are submissions about the complainant’s truthfulness, reliability and motivation that defence counsel would be entitled to make in any event. However, if leave is necessary for the defence to cast those submissions in the form of tendencies, then I consider the requirements of s 97 have been met and leave should be given.
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[1]UEA s 3(1) (in the Dictionary)

[2] The Queen v Smiler (No 2) [2017] NTSC 31 at [15]; R v Lockyer (1996) 89 A Crim R 457 at 459

[3] The Queen v Smiler (No 2) at [16]; R v Lockyer at 459-460

[4] Hughes v The Queen [2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ