• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

1. The prosecution has applied for an advance ruling pursuant to s 192A of the Evidence Act 2011 (ACT).

Application

2. The application concerns evidence of five incidents or courses of conduct which are said to establish that the accused had a tendency to act and have particular states of mind. The amended tendency notice dated 8 August 2023 identifies the tendency as follows: To ignore communication of lack of consent (or to ignore protestation) of women he was in an intimate relationship with and to physically restrict (including moving on top of) them to engage in sexual intercourse, for his own sexual gratification.

3. At the hearing on 24 August 2023 the prosecution sought to add the words “use force or” between “to” and “physically restrict” so that the relevant part of the asserted tendency was “and to use force or physically restrict (including moving on top of)”.

4. Three of the tendency incidents are uncharged acts involving the accused’s ex-wife. One of the tendency incidents involves the acts which underpin the charges. The other tendency incident involves an incident said to have taken place in 2016, with someone who appears to be a previous partner of the accused.

Incident 1

5. The first incident is said to have occurred in about January or February of 2013. The accused and his then wife, Ms E, were in their bedroom in Texas. They were having an argument about Ms E not having sex with him. He pushed her on the bed. He shouted at her and pulled off her pants and underwear. He commenced penile-vaginal sexual intercourse. Ms E was crying and unable to move. She did not consent.

Incident 2

6. Approximately one month after Incident 1, the accused and Ms E were involved in a further argument. The accused approached her from behind and pushed her down onto the bed, stomach down. He took both of her wrists and tied them behind her back with duct tape. She said “No, please stop”. He then placed duct tape over her mouth. She became hysterical because she could not breathe properly. He then took off her underwear and commenced penile-anal intercourse with Ms E. After some time, he rolled her over onto her back and commenced having penile-vaginal intercourse with her. Incident 3

7. Incident 3 is an unparticularised set of occasions when the accused had sexual intercourse with Ms E when she was not consenting, on various dates between February 2013 and May 2014. These are also alleged to have occurred in Texas in the United States.

Incident 4

8. Incident 4 concerns an event on 19 July 2016 occurring in the accused’s room at the postgraduate residence known as Toad Hall at the Australian National University. The accused and Ms R had slept together a handful of times but had decided not to do that anymore. They were in bed at the accused’s residence. At his instigation, Ms R briefly performed oral sex upon him but said that she did not want to do this and it was not a good idea. The accused said that he did not want to sleep together anymore and said “it would be a big mistake”. Ms R joked “I’ve never made a mistake in my life”. Then the accused moved on top of her and put his penis in her vagina and said “there’s a first time for everything”. Ms R froze and did not consent to what happened to her. After a while the accused ejaculated on her stomach.

Incident 5

9. These are the acts involving anal intercourse being counts 1 and 2 on the indictment.

Legislation

10. Section 97 of the Evidence Act provides: (1) Evidence of … a tendency that a person has or had, 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— (a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and (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.

11. There is no issue that reasonable notice has been given.

12. Section 101(2) provides, in addition to the requirements of s 97 that: (2) Tendency evidence about a defendant … that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

13. As a consequence, in the circumstances of the present case, two questions that must be answered are: (a) Does the evidence have significant probative value? (b) Does the probative value outweigh the danger of unfair prejudice to the accused?

Prosecution case

14. The prosecution alleges that the accused sexually assaulted the complainant in the back of her car on 17 April 2020. This occurred at the Cotter Campground where the couple had gone to have a picnic. They kissed and undressed and while she was lying down the accused asked her if she trusted him before tying up her hands. He then inserted his fingers into her anus and she said “wait, I’m really scared” but he ignored her and continued to digitally penetrate her anus. She said “no” before the accused inserted his penis in her anus and had sexual intercourse with her. After the incident she was shaking, got dressed and drove home crying.

15. At one point after the incident and in the context of disciplinary proceedings brought within the Australian National University, the accused denied having seen the complainant since several days prior to the incident. However, the court was informed that at the trial the contest would be over consent rather than whether or not the sexual intercourse occurred.

16. Other evidence in the case will be text message communications between the complainant and the accused and complaint evidence.

Tendency incidents not pressed

17. The prosecution did not press its claim for admission of two of the incidents identified on the tendency notice. They are as follows: (a) Tendency Incident 3 relating to Ms E was not pressed having regard to the lack of particularisation of the incidents; (b) Tendency Incident 5, which involves the incident the subject of the two charges on the indictment. Those are the incidents which must be proved beyond reasonable doubt in order to find the accused guilty. For tendency purposes, having regard to the fact that they are also charged incidents, it would be unfair to the accused to allow them to be proved other than beyond reasonable doubt for tendency purposes even though, as the decision in R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at [80] makes clear, it is not generally necessary to prove tendency incidents beyond reasonable doubt. If the matters the subject of Incident 5 are proven beyond reasonable doubt then there is no need to rely upon any other tendency incidents. If they are not proven beyond reasonable doubt then the prosecution would necessary fail. It is therefore not logical to include Incident 5 is a tendency incident.

18. For these reasons it is unnecessary to further discuss these two incidents.

Prosecution submissions

19. The prosecution submissions were formulated by reference to an earlier tendency notice dated 28 June 2023 which formulated the tendency as a tendency: [t]o recklessly have … sexual intercourse with women who he was in an intimate relationship with, where they had indicated they did not consent to sexual intercourse with him, for his own sexual gratification.

20. The submissions were to the effect that the evidence supported that generally worded tendency and that if the tendency was established, then the tendency to act in that manner with multiple intimate partners in the context of a romantic relationship every three or four years would be significantly probative in relation to the present allegations. The submissions emphasised that “an inclination on the part of a man to force unwanted sexual contact with his intimate or romantic partners is unusual as a matter of ordinary experience in what would otherwise appear, to the outside world, a loving, caring or otherwise consensual relationship”.

21. So far as prejudice was concerned, the submissions emphasised the low probability of a jury making improper use of the evidence and the capacity of the court to make appropriate directions.

22. Counsel for the prosecution explained that the amended tendency notice had been drawn in an attempt to make the tendency relied upon more specific.

Submissions of accused

23. The accused points to authorities which refer to there being common features or similarities between the tendency incident and the charged incident: R v Bauer (a pseudonym) at [58]; McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [31]. Further he pointed to the conclusion in McPhillamy that the evidence lacked significant probative value which relied in part upon the passage of time between the tendency incident and the charged incident.

24. Counsel for the accused then identified differences said to exist between the tendency incidents and the charged incident. So far as the incidents involving Ms E (Incidents 1 and 2) are concerned he emphasised the following differences: (a) they occurred in a foreign country; (b) they involved somebody to whom the accused was married as opposed to in a “casual relationship”; (c) they occurred in the context of an argument rather than a planned sexual interaction; (d) they are characterised by allegations of violence and aggression; and (e) they occurred on a bed in a bedroom as opposed to a motor vehicle.

25. The incidents are said not to involve the features identified in the tendency notice namely: (a) the ignoring of a communication of a lack of consent; (b) the ignoring of a protestation; and (c) any physical restriction.

26. So far as the incident involving Ms R (Incident 4) is concerned the differences are that: (a) it occurred on a bed not a car; (b) it occurred with a person that the accused “was no longer in a casual relationship with”; (c) it did not involve any form of physical restraint; and (d) it did not involve any real indication of a lack of consent.

27. It is said not to involve the features identified in the tendency notice: (a) the ignoring of a communication of a lack of consent; (b) the element of an intimate relationship; and (c) any physical restriction.

28. While the accused accepts that the evidence must be taken at its highest, the accused submitted that in circumstances where the complainant in relation to Incident 4 had given multiple versions of what occurred, no authority required the court to only have regard to the version most favourable to the Crown case. He submitted that it cannot be known what version will go before the jury.

29. So far as prejudicial value is concerned, the accused pointed to the statement of the majority in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [17] summarising the ways in which evidence have a prejudicial effect.

30. He asserted four different categories of prejudicial effect: (a) bad character; (b) procedural prejudice; (c) delay; and (d) matters concerning the private investigator.

31. The submission in relation to bad character was that the jury would, notwithstanding any directions to the contrary, misuse any evidence relating to a history of sexual misconduct. This is said to arise “[p]articularly in the current climate (both in terms of the sensitivity of the community to sexual allegations generally, but also in the wake of several recent high profile trials in the Territory)”.

32. The procedural prejudice relates to Incidents 1 and 2 which are alleged to have occurred in the United States some 10 years ago in circumstances where there has not been a thorough investigation of those incidents. The accused points to the lack of investigation by the prosecution of any complaint evidence, medical records, contemporaneous statements or other witness statements. He points to the practical impossibility of obtaining that material by compulsory process himself.

33. The complaint of delay relates to the investigation of the allegations of Ms R (Incident 4). This is because there has not been a full investigation of those allegations and the material arising from such an investigation has not yet been disclosed to the accused. The complaint appears to be that the accused does not have the full range of material relating to Incident 4 that he would have if the investigation was now complete.

34. The fourth matter is that the material initially obtained from Ms E was obtained with the assistance of a private investigator who, it is said, has either failed or refused to give a statement to police. The accused submitted that unless the private investigator was called it would not be possible for the accused to explore whether or not the original audio interview and affidavit “were taken in an ethical and legal fashion”. Does the evidence have significant probative value?

Methodology

35. The assessment of the probative value of the evidence takes place in accordance with the following principles (which were summarised by the High Court in TL v The King [2022] HCA 35; 405 ALR 578 at [28]-[29]): (a) The possible use to which the evidence might be put must be taken at its highest. (b) This requires that the court assume that the evidence is reliable and credible except in circumstances where the evidence could not be accepted by a rational jury. (c) The assessment of the probative value must involve an assessment of the evidence by itself and having regard to other evidence to be adduced in the case. (d) To have significant probative value the evidence should make more likely, to a significant extent, the facts that make up the elements of the charged offence. (e) The evidence must be “important” or “of consequence” to the assessment of the probability of the existence of a fact in issue. (f) There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence, although the similarity will be relevant to the determination of probative value. (g) Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of significant probative value. Although a greater range of evidence may support the existence of such a generally expressed tendency, the specificity of the tendency will have a direct impact on the strength of the inferential mode of reasoning arising from the evidence.

36. The court must assess the extent to which the evidence supports the asserted tendency and then assess the extent to which the asserted tendency makes more likely the fact or facts sought to be proved by the evidence: Hughes v The Queen [2017] HCA 20 at [41].

Formulation of the tendency

37. The asserted tendency has been narrowed from that which was in the original tendency notice. The original tendency notice involved a tendency to recklessly have sexual intercourse with women who he was in an intimate relationship when they indicated that they did not consent to that sexual intercourse. The amended tendency notice narrows the tendency from recklessly having sexual intercourse to ignoring a communication of lack of consent or protestation from the woman and to use force or to physically restrict her.

38. The attempt to narrow the asserted tendency has required the inclusion of bracketed qualifications in order to encompass the tendency incidents supporting it. However, the tendency sought to be established in the present case has neither the benefit of being closely tied to the circumstances of the tendency incidents nor the benefit of being closely targeted at the offending conduct alleged to have occurred.

39. The difficulty for the prosecution with a narrowly focused tendency is that the tendency incidents are significantly different. The two incidents with Ms E involve what appear to be violent confrontations in the context of an argument in which non-consensual intercourse is used as a weapon. The incident with Ms R is not in such a hostile context and involves continuation of sexual activity after it was clear that the complainant wished to cease. Physical restraint was incidental to the sexual intercourse rather than being necessary in order to allow it to occur. That a more specific tendency can only be constructed by aggregating multiple components indicates that any relevant tendency is actually a more general one which can encompass those components. It is therefore a case in which the more narrowly formulated tendency adds nothing to the probative value of the evidence and has the additional vice of being considerably more difficult to explain to a jury.

40. In TL at [33], the High Court commented adversely upon any reformulation by a judge of the asserted tendency in the absence of a separate tendency notice. Accepting those comments, it is not appropriate for the court to reformulate the notice in a manner that might be more advantageous to the prosecution submissions or more understandable by a jury.

Differences

41. Many of the differences identified on behalf of the accused between the tendency incidents and the charged incidents are not significant. That is because the existence of such differences must be assessed in light of the facts in issue in a particular case and the chain of tendency reasoning asserted. This is not a case in which identification of the accused as the offender is a live issue. As a consequence, it is not a case in which the features of the tendency incidents in common with the charged incident are as significant as they would be if what was sought to be established was a modus operandi that linked the accused to the offending. Further, it is not a case in which a distinction may be drawn between a tendency to have a state of mind and a tendency to act upon that state of mind as was the case in McPhillamy.

42. So far as the incidents involving Ms E are concerned, there is clearly a significant difference between the nature of the interaction alleged in the tendency incidents and the charged incident. The tendency incidents are alleged to have occurred in the context of a long-term marital relationship and involved overt aggression and violence. However, those differences would not detract from the extent to which the tendency identified was supported by the evidence of the incidents.

43. In relation to the incident involving Ms R, the lack of overt physical restraint and any overt protestations immediately associated with the intercourse are both matters which affect the extent to which the incident can be said to support the identified tendency.

Multiple versions

44. I do not accept the submission that Ms R had allegedly given multiple versions of events and that this significantly affects the assessment of the probative value of the evidence. The authorities are clear that the evidence must be assessed on the basis that it is accepted by the jury. The submissions referred to what was said to be a different version of events recorded in a diary note which was put into evidence and suggested that it was therefore unclear what the evidence at trial would be.

45. However, as the prosecution pointed out, if the tendency evidence is admissible, the effect of item 2 of Table 43.4 and s 52(1)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is that the evidence in the police interview would be the evidence-in-chief of the witness. Hence the evidence to be given may readily be identified and it is not a case of uncertainty as to the evidence to be given.

Conclusion on probative value

46. The probative value of the evidence must be assessed having regard to: (a) the capacity of the evidence to support existence of the tendency; and, (b) the capacity of the tendency to prove the offending.

47. Although the tendency incidents are very different, they each support a willingness to have sexual intercourse with an intimate partner in circumstances where that person has indicated a lack of willingness to have sexual intercourse and where consent has previously been forthcoming in relation to past acts of sexual intercourse. The incidents involving Ms E involve obvious physical restriction. The incident involving Ms R only weakly supports physical restriction but is within the bracketed clarification “(including moving on top of)”.

48. The asserted tendency has significant probative value. Its probative value is not derived from the proposition that the offender has offended on past occasions and therefore is more likely than not to offend again. Rather, it serves to meet a possible reasonable doubt that the jury may hold in relation to the credibility of the complainant’s account, given the circumstances of the offending. The offending is said to have occurred in the context of an intimate relationship, where consent has previously been given to sexual intercourse and where the complainant’s sexual boundaries have been respected by the offender. The jury may have a doubt about the complainant’s account where ordinary human experience would suggest that such features would make the offending unlikely. The probative value of the tendency, if proved, is that it denies to the jury that chain of reasoning: see Hughes v The Queen at [60].

The danger of unfair prejudice

49. The danger of unfair prejudice most commonly refers to the danger that the jury may misuse the evidence in some way. However, it extends to procedural prejudice of the kind asserted by the accused.

Bad character

50. The first of the accused’s submissions was that, notwithstanding any direction, the jury would use the evidence as evidence of bad character. While the tendency incidents do indicate the commission of other offences, the jury would be instructed as to the limited use to which the evidence could be put. It is a fundamental assumption of the law that juries comply with directions that they are given. As pointed out by McHugh J in Gilbert v R [2000] HCA 15; 201 CLR 414 at [31]: Put bluntly, unless we act 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.

51. The fact that Incidents 1 and 2 involve violence and aggression creates some danger of misuse by the jury because of the potential for an emotional reaction to the accused being a “wife beater”. However, that danger would be reduced by the jury being given appropriate and firm directions as to the permissible use of the evidence of the tendency incidents. The increased awareness of issues relating to sexual assault including that arising from trials in this court is not a matter sufficient to indicate that juries would not comply with the directions that they are given. Delay

52. The complaint of delay relates to Incident 4. It is true that the complaint was initially made to police in 2016 and not then further investigated. It is also true that the investigation in relation to Ms R’s allegations which is now taking place is not yet complete. It is likely that there will be, at least, complaint evidence disclosed to the accused. However, there is no significant danger of unfair prejudice to the accused as the police investigation will be reasonably shortly concluded and the results disclosed to the accused. When that occurs, unlike the situation in relation to Ms E’s allegations (addressed below), the accused will have available the usual investigatory tools that will allow him to obtain other material relevant to the case.

Procedural prejudice

53. In Director of Public Prosecutions (ACT) v DL [2018] ACTCA 61; 341 FLR 145 the court did not accept that “unfair prejudice” was limited to the potential for the jury to misuse the evidence. It considered that the concept extended to procedural disadvantage flowing from the admission of evidence in a given case. 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.

54. In my view, “unfair prejudice” extends not only to procedural disadvantage arising from the admission of the evidence in a given case but also to a procedural disadvantage that exists in relation to the capacity to address particular evidence given in a case.

55. The assertion of unfair prejudice arising from the lack of investigation of the complaints made by Ms E and the absence of evidence from the private investigator are related. They arise because the tendency incident alleged occurred outside Australia and in a jurisdiction where it will be, at least, difficult for the accused to investigate the claims in circumstances where there is only very limited investigation that has taken place.

56. The danger of unfair prejudice arises because the accused has very limited tools by which to investigate or obtain material that challenges the version of events given in the material disclosed so far. The unavailability of the investigator is simply one aspect of this general form of prejudice. Counsel for the accused pointed to the inability to use tools routinely available in relation to allegations of conduct within Australia such as to subpoena records relating to the time of the alleged offending, most obviously medicalrecords of the complainant but potentially other records that may provide a foundation for challenging the complainant’s evidence. That prejudice was said to be compounded by the fact that it existed in the context of allegations that were 10 years old, making it more difficult for the accused to obtain evidence in relation to the state of his relationship with his then wife at the time.

57. I do accept that a direction to the jury pointing out the forensic disadvantages suffered by the defendant would provide some amelioration of the prejudice suffered by the accused. However, that would be of limited effect in circumstances where the jury would not know what evidence might have been obtained if the procedural tools had been available.

58. In relation to the private investigator, the accused wished to explore the circumstances in which that private investigator obtained the statement from Ms E and what Ms E was told about the present allegations prior to giving a statement. The prosecution pointed to the potential for Ms E to give evidence about those issues and also for the potential for the complainant’s brother, who had some involvement with the retention of the private investigator, to give evidence as to the circumstances surrounding her retention.

59. There was no specific evidence given as to the processes available to an accused person under the Mutual Assistance in Criminal Matters Act 1987 (Cth) or other processes. The submission made on behalf of the prosecution was that the evidence of the potential for prejudice was inadequate because of the failure to adduce that evidence and that further enquiries might be undertaken by the prosecution to address any particular issues.

60. There was no specific evidence of either: (a) the actual investigations that would be undertaken if there was a ready means of enforcing the ACT Supreme Court’s processes within the United States; (b) the potential for, and extent of delay and difficulty that may be associated with, the use by the accused of the procedures under the Mutual Assistance in Criminal Matters Act (Cth) or other arrangements between the Commonwealth and United States government.

61. However, I proceed on the basis that it is unlikely that any assistance would be able to be given to the accused in a timely manner having regard to the pre-trial evidence being taken in October and a trial being listed after that.

62. Having regard to the absence of any more detailed investigation of the allegations by the Australian Federal Police, the absence of any evidence of investigations of the allegations in the United States and the age of the allegations, I consider that the danger of unfair prejudice arising from the lack of practical means of the accused obtaining evidence by compulsory court process relating to those allegations is significant.

Determination

63. As pointed out earlier, the problem with the reformulated tendency is that although it relies upon the various qualifications contained within it to encompass the tendency incidents, given their variety, the tendency established would only support the commission of the offence in a general way. Any increase in probative value arising from the specificity of the tendency is offset by the fact that the charged incident will only include a subset of the components making up the tendency. Despite this, the tendency evidence would have significant probative value because the state of mind and acts involved would be ones which are generally unusual and may be of importance to a jury in determining whether or not the charged incidents occurred without consent as the prosecution alleges. As a consequence, although the reformulation of the tendency lacks utility, it does not destroy the potential for the admission of the evidence. The real vice of the reformulated tendency is that it is conceptually confusing and difficult to explain to a jury.

64. So far as Incident 4 is concerned, that would provide support for the existence of the tendency even if only via the “(including moving on top of)” qualification. As I have indicated, the tendency, if established, would provide significant support for the prosecution case through its potential to make more likely the complainant’s version of events.

65. In relation to Incidents 1 and 2, they involve the use of force and a clear lack of consent. There is clear evidence in relation to the first incident that the accused ejaculated, consistent with him acting for the purposes of sexual gratification as the asserted tendency alleges. Incident 2 also appears to have involved ejaculation either during or immediately after intercourse, once again consistent with sexual gratification. Both of the incidents would indicate a preparedness to have non-consensual sexual intercourse with an intimate partner, conduct which is sufficiently unusual to give the tendency to do so significant probative value.

66. As indicated above there is a significant danger of unfair prejudice. The issue is whether or not “the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”. Prior to 2020, the test had required that the probative value “substantially” outweigh the danger of unfair prejudice but the test has been modified by the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT). This leaves open the possibility that significantly probative tendency evidence may be admitted even in circumstances where there is a significant danger of unfair prejudice, so long as the conclusion is reached that the probative value outweighs that danger.

67. In the case of Incident 4, the probative value of that evidence clearly outweighs the danger of unfair prejudice.

68. In the case of Incidents 1 and 2, the weighing exercise is a difficult one. On the one hand the probative value of the evidence would be significant to establish the tendency and the tendency significant in establishing the offence. On the other hand, the lack of capacity to use the usual tools to obtain evidence relevant to the allegations is of particular significance in circumstances where very little has been done by way of a police investigation of those allegations.

69. Ultimately, the conclusion that I have reached is that the probative value of the evidence does not outweigh the danger of unfair prejudice to the defendant. Had there been some more detailed investigation by the police of the allegations then I would have reached the opposite conclusion. That is because there could be a greater degree of assurance that relevant matters both for and against the reliability of the evidence had been exposed. However, in circumstances where that investigation has not occurred and the capacity of the accused to perform that investigation is extremely limited, the danger of unfair prejudice is so significant that it outweighs what would otherwise be significantly probative prosecution evidence.

70. The orders of the Court are: Pursuant to s 192A of the Evidence Act 2011 (ACT): 1. The evidence of Incident 4 outlined in the amended tendency notice dated 8 August 2023 as amended on 24 August 2023 is admissible as tendency evidence at the trial of the accused. 2. The evidence of Incidents 1, 2, 3 and 5 in that notice is not admissible as tendency evidence at the trial of the accused.

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: