The Queen v Pamkal - [2019] NTSC 95

CITATION:The Queen v Pamkal [2019] NTSC 95
PARTIES:THE QUEEN
v

PAMKAL, Quinten

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21844336
DELIVERED ex temp:  18 June 2019
HEARING DATE:  18 June 2019
JUDGMENT OF:  Kelly J

CATCHWORDS:
EVIDENCE – Admissibility and relevance – Evidence (National Uniform Legislation) Act 2011 (NT) s 97, s 101 and s 137 - 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 101, s 137

HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; McPhillamy v The Queen (2018) 361 ALR 13; The Queen v AW [2018] NTSC 29, applied
REPRESENTATION:
Counsel:
Crown:D Dalrymple
Accused:J Stuchbery
Solicitors:
Crown:Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Kel1917
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Pamkal [2019] NTSC 95

No 21844336

BETWEEN:

THE QUEEN

AND:

QUINTEN PAMKAL

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered ex tempore 18 June 2019)

In this case, one of the facts in issue is whether the complainant in fact consented to sexual intercourse with the accused. The complainant told police that he demanded that she have sex with him; she told him she didn’t want to; he threatened her; and then she complied by removing her shorts and underwear and lying on the cement. Then he began to have sex with her.
The Crown has indicated that it intends to lead evidence of past violent conduct by the accused against the complainant.
The jury may well think this scenario strange indeed unless they are made aware of the nature of the relationship between the two of them in which he resorted to violence against her whenever she displeased him – or in the words of the tendency notice he had a state of mind in which he believed he was permitted to discipline her for any perceived failing – and that he was prepared to and did act on that state of mind.
Defence counsel has conceded that the evidence of past assaults is relevant for this “relationship” or “context” purpose but contends that it should be excluded under Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) s 137 because its probative value is outweighed by the danger of unfair prejudice to the defendant. The unfair prejudice identified is that the jury may be emotionally repelled by the horrific details of the violence the accused committed against the complainant in the past and so be diverted from a rational consideration of the issues in the case. At the very least, counsel submitted, if evidence of past violent conduct by the accused against the complainant is let in, it should be by way of agreed facts that simply refer to past assaults and do not reveal the details. I disagree with that. That would not be to explain the nature of the relationship but to conceal it. He did what he did. It was the things he did to her that caused her to fear the consequences of displeasing him by refusing his demand for sex.
Nor do I agree that the evidence should be excluded under UEA s 137. Its probative value – in conjunction with other evidence in the case (ie her evidence that he demanded sex and threatened her if she did not comply and her evidence in the interview with police that ever since she met him he threatened her, “Oh you gotta do this, do that … otherwise I’ll get bashed”) is high. It explains something that may otherwise be inexplicable – namely why she would physically comply with his demands even though she told him she didn’t want to have sex.
In my view it is also high on the issue of whether he knew she was not consenting or was reckless about that fact. Given his history of controlling violence towards her he would have been aware that she would be likely to give in to his threats to avoid being bashed.
The jury will be warned against rank propensity reasoning and I consider the risk that they will engage in it is not high. As to the risk that they will be emotionally repelled by the accused and diverted from their task of rationally considering the facts, I agree that there is such a risk. The jury will also be warned against that sort of approach both in the opening (before they hear this evidence) and in the summing up (after they have heard it) and in my experience jurors tend to take such warnings seriously. I agree that there is no guarantee that such a warning will be 100% effective with all jurors. However, I do not think that the risk that the jurors may misuse the evidence in this way outweighs the probative value of the evidence which I consider to be high.
The evidence of prior assaults (and the assault the subject of count 2) will be admitted as relationship evidence.
The next question is whether that evidence should be admitted for tendency purposes.
The conduct about which evidence is sought to be adduced is the conduct the subject of the current charges as well as the conduct the subject of his previous convictions, summarised above.
The substance of the evidence by which this tendency is sought to be established is set out in the agreed sentencing facts in transcripts of plea hearings and in relation to the present count 2, the evidence of the complainant.
The tendency evidence is said to be relevant to the following facts in issue in the proceeding:
(a)whether the accused threatened the complainant with violence before engaging in sexual intercourse with her on 24 October 2018;
(b)whether the sexual intercourse took place without her consent; and
(c)whether the accused knew about or was reckless as to the lack of consent.
(d)to rebut any defence proposition that those injuries were self-inflicted; and
(e)to rebut any defence proposition that the injuries suffered by the complainant on the relevant dates were accidental or the result of some event other than the application of violent force by the accused.
The tendencies sought to be proved are:
(a)the tendency of the accused to act in a particular way, namely:
(i)   to engage in violent conduct towards the complainant, especially after consuming alcohol,
(b)the tendency of the accused to have a particular state of mind, namely:
(i)   a violent and controlling disposition towards his domestic partner, upon which the accused is prepared to act, especially after having consumed alcohol;
(ii)    a view that he is permitted to discipline his domestic partner for any perceived failing of hers.
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.
There is no dispute about the adequacy of the notice. The question, therefore, is whether the evidence has significant probative value in relation to the issues set out above.
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)
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.
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. In my view the evidence does support proof of a tendency in the accused to engage in violent behaviour towards his domestic partner, especially after consuming alcohol, for the purpose of controlling her behaviour and/or punishing her for perceived failings – in fact for displeasing him.
The next question for consideration is whether, if the jury accepts that the accused had this tendency (or tendencies) that “strongly supports proof of a fact that makes up the offence charged”. In my view it does, for the same reason that its probative value as relationship evidence is high. It explains what might otherwise be inexplicable and strongly supports proof of a fact in issue – namely whether the complainant consented to have sex with the accused and also, to perhaps a slightly lesser extent, proof that he knew of or was reckless as to her lack of consent.
I am therefore satisfied that the threshold test in UEA s 97 has been met. The evidence sought to be adduced as tendency evidence does in conjunction with other evidence which will be adduced have significant probative value.
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 defendant. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the defendant.
When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[3] 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.”[4] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.
The plurality in Hughes[5] explained the kinds of potential prejudice that can arise in a criminal trial such as this:
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.
In this case, the potential prejudice identified by the defence is a possibility that the jury may engage in rank propensity reasoning and the possibility that the jury may be so emotionally repelled by the accused’s conduct that they are diverted from their function of rationally considering the evidence against him and become motivated by a desire to punish him for his past conduct.
While I concede that there is a potential for the jury to be misled in both of these respects, I consider that this can largely be mitigated by appropriate warnings. Further, I consider the probative value of the evidence to be high and that its probative value does substantially outweigh the risk of prejudice. The use of this kind of tendency evidence of course involves a kind of permissible propensity reasoning. As the plurality said in Hughes:[6]
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.
Defence counsel submitted, relying on McPhillamy v The Queen,[7] that the tendency sought to be proved is not specific and that the more general the tendency, the greater should be the caution with which it is approached. The more general the alleged tendency, the more its probative value is decreased and its potential prejudice increased. When the tendency is nothing more than a tendency to engage in violence, the only use that could be made of the evidence is to all intents and purposes rank tendency reasoning.
While there is force on that submission in general terms, it is necessary in each case to look at the precise tendency alleged to be established by the evidence and to assess what probative value that has on the particular issues in the case. For the reasons outlined above, in my view, this particular evidence strongly supports proof of the alleged tendency and the existence of the alleged tendency is highly probative of the issue of whether the complainant consented to sexual intercourse and whether the accused knew of or was reckless as to that lack of consent.
The evidence specified in the notice will be admitted, both as relationship or context evidence and as tendency evidence and will not be excluded under UEA s 137.
----------

[1] [2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ

[2]Ibid at [41]

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

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

[5]at [17]

[6]at [16]

[7] (2018) 361 ALR 13 at [33]