R v BI (No 2) [2016] ACTSC 355 (9 December 2016)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2016] ACTSC 355

The evidence of Constable Lief Abraham about the attempted suicide of BI is admissible but only in respect of the offences alleged against OI.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Trial by jury - historical sexual offences - multiple offences - multiple complainants - multiple charges - act of indecency against a person aged 16 years or below - sexual intercourse with a person aged 16 years or below - incest

EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - Admissibility of evidence - circumstantial evidence - advance ruling and findings - agitating an issue that may otherwise cause inconvenience in the trial - 'Edwards lie' - consciousness of guilt - post-offence conduct - unfair prejudice - probative value outweighed by the danger of unfair prejudice - evidence to be taken at its highest - evidence has substantial probative value - circularity of reasoning - evidence admissible only on the basis that the police were seeking to speak to the accused in respect of allegations involving OI - s 137 of the Evidence Act 2011 (ACT) - s 192A of the Evidence Act 2011 (ACT)

Evidence Act 2011 (ACT), ss 137, 192A

Abbosh v The Queen [2011] NSWCCA 265

Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193

Gall v The Queen [2015] NSWCCA 69

IMM v The Queen [2016] HCA 14; 330 ALR 382

Munro v The Queen [2014] ACTCA 11

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297

Pollard v The Queen [2011] VSCA 95; 31 VR 416

Quinlan v The Queen [2006] NSWCCA 284; (2006) 164 A Crim R 106

R v BD (1997) 94 A Crim R 131

R v Ciantar [2006] VSCA 263; 16 VR 26

R v Connors (No 2) [2016] ACTSC 333

R v Cook [2004] NSWCCA 52

R v Heyde (1990) 20 NSWLR 234

R v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501

R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479

R v Power and Power [1996] SASC 5653; (1996) 87 A Crim R 407

R v Smit [2004] NSWCCA 409

R v TR [2004] ACTSC 10; 18 FLR 424

R v Yates [2002] NSWCCA 520

1. The accused, BI, has been charged with 21 offences of a sexual nature against four young people said to have been committed between 1995 and 2012. He has pleaded not guilty to all of the counts on the indictment presented by the Crown.

2. The jury has been empanelled for the trial, but I have not yet given the jurors the general directions that customarily a judge will give to a jury to assist them in their difficult task, including to describe their roles and functions.

3. As a result, of course, neither counsel for the Crown nor the accused have addressed the jury.

4. The Crown has now sought a ruling on the admissibility of certain evidence which it says is relevant. The accused objects to the evidence. Accordingly, the Crown has now sought a ruling on the admissibility of that evidence under s 192A of the Evidence Act 2011 (ACT).

5. That provision is a very valuable addition to criminal procedure, providing an opportunity to agitate an issue that might otherwise cause some inconvenience in the trial. See the advantages explained by Crispin J in R v TR [2004] ACTSC 10; 18 FLR 424 at 425; [6].

6. The provision is open-ended and permits the Court a wide discretion to give a ruling or to make a finding at a convenient time before the evidence in question is actually sought to be adduced. Here, the Crown prosecutor wishes to refer to the evidence in his opening address to the jury. Given the challenge to the admissibility of the evidence, such a mention would be fraught with difficulty were it to turn out that the evidence was inadmissible.

7. The evidence was contained in the statement of Constable Leif Abraham. In it Constable Abraham describes an event involving BI on 16 September 2015. Before turning to that evidence, some context is relevant. It was explained by the Crown Prosecutor from the Bar table, but without objection from Mr M Kukulies-Smith, counsel for BI.

8. As at September 2015, police were aware of the complaints made by OI, one of BI's children, but were not currently investigating the other complaints. There was no evidence that OI had told anyone of the details of her complaints, only that BI had engaged in sexual acts with her.

9. As a result of this complaint, police were looking to speak to BI. It appears that one of his sons may have told BI what it was about that the police wanted to speak to him. Thus, at best, BI was likely to know at the time that police wished to speak to him of allegations of a sexual nature involving his daughter.

10. The evidence of Constable Abraham was that he and Detective Senior Constable David Driessen were tasked on 16 September 2015 to locate BI as an alleged offender in an historical sexual assault. They found BI's work vehicle parked on the side of the Monaro Highway, not far north of Williamsdale, ACT.

11. When approaching the vehicle, they could see BI sitting on the front driver's seat and Constable Abraham attempted to identify himself to BI. He could not open the driver's side door as it appeared to be locked. He saw BI attempt to use a cigarette lighter, but it only sparked and did not establish a flame.

12. As Constable Abraham walked around the vehicle to get to one of the other doors, he noticed a bottle of liquefied petroleum gas in the rear cargo area of the vehicle, with a layer of ice surrounding it. That caused him to believe that the bottle had been turned on.

13. The two police officers then used their police operational batons to break the two front windows and Constable Abraham smelt a strong odour of gas. He then opened the driver's side door and dragged BI from the vehicle. BI was then arrested.

14. An ambulance arrived soon after and he was transported to The Canberra Hospital. Constable Abraham accompanied him in the ambulance and, in his statement said:

... During the trip to the hospital I heard the defendant [i.e. BI] say multiple times, 'Let us help you put him in jail,' 'That's my daughter why is this happening,' and 'End my life.'

...

While at [the hospital] I heard one of the hospital staff ask the defendant what had happened. The defendant answered, 'My daughter accused me.'

15. The Crown sought to adduce this evidence as consciousness by BI of his guilt of the offences, at least those he is alleged to have committed against OI.

16. It was submitted that it could also be inferred that BI was distressed because he knew of the conduct he had also committed with the other complainants, TM, BB and EI.

17. The law has long, if not always, recognised that some conduct of an accused person after the offences with which he or she has been charged may legitimately be adduced by the Crown and relied on by the jury (or other judge of the facts) to support the prosecution case.

18. Most commonly, the Crown relies on lies told by the accused and the High Court has set out in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, a detailed consideration of that issue and the appropriate approach that the courts should take. Other such conduct includes an accused's silence in response to an allegation that he or she may be expected to deny (R v MMJ [2006] VSCA 226; (2006) 166 A Crim R 501), the destruction of evidence (R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479), attempts to influence the evidence of witnesses (R v Smit [2004] NSWCCA 409), flight (Quinlan v The Queen [2006] NSWCCA 284; (2006) 164 A Crim R 106), and the hiding of evidence (Pollard v The Queen [2011] VSCA 95; 31 VR 416). No doubt there are other examples and many more will be addressed over time in the future.

19. Such evidence is, of course, circumstantial evidence and so must be addressed by the Court in the same way as other circumstantial evidence. See R v Connors (No 2) [2016] ACTSC 333 at [346]. That, however, is relevant to the way in which the judge must direct the jury and is not directed to the question of admissibility which is what concerns me in this application.

20. The first matter that is required before post-offence conduct is admissible is that it must be precisely identified together with the circumstances and events that are said to indicate that, by engaging in the conduct, the accused demonstrated a consciousness of having committed the offence with which he is charged: R v Nguyen at 489-90; [20]-[21], R v Ciantar [2006] VSCA 263; 16 VR 26 at 48; [70]. This matter is satisfied in this case by the evidence that I have identified above (at [10]-[16]) and the facts and circumstances as also set out above (at [8]-[9]).

21. As to the evidence itself, Simpson J with whom Ipp JA and Adams J agreed, held in R v Cook [2004] NSWCCA 52 at [24] that, before it can be admissible, it must be shown to be capable of meeting five conditions.

22. Her Honour had considered the principles in relation to lies that had been established by Gleeson CJ in R v Heyde (1990) 20 NSWLR 234 at 236, which set out some conditions which had to be fulfilled before the jury could rely on the evidence. Her Honour continued at [22]-[23]:

1. The conditions to which his Honour referred were stated in R v Lucas (Ruth) [1981] 1 QB 720 and adopted in the judgment of Clarke JA in Heyde. It is apposite to note that the conditions are directed to the determination of whether or not the lies upon which the Crown sought to rely are capable of amounting to corroboration. The four conditions laid down in Lucas are:

(i) that the lie is deliberate;

(ii) that it relates to a material issue;

(iii) that the motive for the lie is a realisation of guilt and a fear of the truth;

(iv) (where relevant) that it is shown to be a lie by evidence other than that of an accomplice who is to be corroborated, that is, by admission or by evidence from an independent witness.

1. To these I would add that the lie must be capable of being seen as indicating consciousness of the guilt of the specific offence with which the accused is charged.

23. This approach was followed more recently in Gall v The Queen [2015] NSWCCA 69 at [83]- [86]. Although dealing with lies, these conditions can be applied to different situations where the Crown relies on post-offence conduct as consciousness of guilt.

24. In this case, it seems to me that these conditions are met here and that there was no real challenge to that. That is to say:

(ii) it was clear from BI's statements in the ambulance and at the hospital that it went to a material issue, namely the complaint of sexual activity with BI's daughter;

(iii) the motive for the suicide was capable of being inferred to be that BI realised that he had committed the offence against OI and feared the truth, leading to likely incarceration;

(iv) the need for independent evidence was met and the need for corroboration was not relevant as there is no accomplice;

(v) the conduct was capable of being seen as indicating a consciousness by BI of guilt of the offences against OI with which he has actually been charged.

25. Mr Kukulies-Smith submitted that there was another explanation, namely that were he to protest his innocence, BI was simply very ashamed of the allegation being made at all. The mere fact, however, that there is a credible explanation consistent with innocence is not sufficient to render inadmissible post-offence conduct tendered as consciousness of guilt. See R v Power and Power [1996] SASC 5653; (1996) 87 A Crim R 407 at 409.

26. It is, of course, a matter for the jury, properly directed, to consider whether the explanation, if any, given by the accused is sufficient to prevent it from relying on the conduct as consciousness of guilt. As Simpson J said in R v Cook at [43]:

I am satisfied that it is not the role of a trial judge in NSW, under the Evidence Act, to make a finding of fact about the actual reasons for flight where such evidence is given on behalf of the Crown. That remains the province of the jury.

27. That is true in other jurisdictions as well. See R v Melrose [1989] 1 Qd R 572 at 579. It seems to me it also applies in the ACT.

28. Nevertheless, there are some limits on this, for the Court is required to make some limited assessment of the competing explanations. This was explained in R v Ciantar at 48-9; [72], as follows:

[I]f an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.

(footnotes omitted)

29. In my view, the explanation proffered by Mr Kukulies-Smith does not fall into the category that it is so inherently likely that the jury, properly instructed, could not properly regard the conduct as evidence of guilt. Nor do I consider that the evidence is "inherently intractable".

30. Accordingly, the evidence seems to me to be admissible.

31. That, however, is not the end of the inquiry. Mr Kukulies-Smith also raised the question of whether I was required to refuse to admit the evidence under s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to BI.

32. This requires me to balance the probative value of the evidence with any danger of unfair prejudice. If the latter outweighs the former, then I am required to refuse to admit the evidence; it is not a matter of discretion, but rather of judgement: R v Cook at [38]. If the judgement shows that the unfair prejudice outweighs the probative value, then the evidence must be excluded; there is no discretion about that outcome.

33. That balancing exercise must, of course, take into account the explanation given (or to be given) by the accused.

34. Mr A Williamson, who appeared with Mr S McLaughlin for the Crown, submitted that the evidence had significant probative value. The meaning of "probative value" was most recently considered in IMM v The Queen [2016] HCA 14; 330 ALR 382. The following relevant matters were identified. First, the evidence must be relevant, namely, able rationally to affect (directly or indirectly) the assessment of the existence of a fact in issue.

35. That test is met here because the fact that the conduct could show a consciousness of guilt means that it is, in that sense, relevant.

36. Secondly, the Crown submitted that the probative value of the evidence was high. That is to say it was strongly probative of BI's guilt of the offences against OI.

37. In IMM v The Queen at 391; [47], it was decided that the evidence is required to be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.

38. To this test, the Crown prosecutor submitted that the assessment would result in a high probative value.

39. He submitted that if BI had not committed the offences involving OI, then the attempt he made to take his own life on a bare allegation was an extreme reaction and there were no suggested circumstances that would make that likely.

40. On the other hand, if he had committed the offences, he would appreciate the seriousness of them and that they would have significant and grave consequences.

41. While not expressly mentioned by the Crown prosecutor, the mention by BI of gaol in the ambulance is supportive of that.

42. While this assessment was not directly challenged by Mr Kukulies-Smith, he did emphasise that there was an alternative explanation of the conduct, the attempted suicide, on the basis that BI had not committed the offences, namely, that he had been so distraught about the accusation by his daughter that he wished to end his life.

43. While the existence of an alternative explanation may reduce the probative value in very limited circumstances, this seems to me not to be in accordance with a statement of the High Court in IMM v The Queen that the evidence should be taken at its highest.

44. Thus, it seems to me that the evidence has substantial probative value.

45. Unfair prejudice is not merely to be found in the fact that it makes the conviction of the accused more likely: Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 325; [91]. The typical example, pointed out in R v Yates [2002] NSWCCA 520 at [252] is that if there is a risk that the jury might adopt an illegitimate form of reasoning or give the evidence more weight than it deserves. See also R v BD (1997) 94 A Crim R 131 at 139, 151.

46. Examples of such unfair prejudice may be where the accused, in explaining the reason for the conduct, has to disclose conduct which would risk the jury reasoning in a prejudicial or punitive way as in R v Cook at [48]. This is akin to the caution that has been expressed about the need to be careful where the evidence could lead a jury to use tendency reasoning which is not appropriate. Nevertheless, appropriate directions may reduce the risk: Munro v The Queen [2014] ACTCA 11. If the evidence has a significant impact, beyond its probative value, this may require its rejection. Thus, for example, gruesome photographs in a murder trial which do no more than excite the emotions of the jury, but really do not advance the evidence in the case, may require rejection if they do no more than repeatedly show the deceased with the inflicted mortal wounds.

47. Another area of concern is where the evidence sought to be adduced is of such a character that the jury might be inclined to wish to punish the accused.

48. It does not seem to me that these matters play a prominent part in this case. I do not accept that, while clearly a serious event and of some trauma, the circumstances, as described by Constable Abraham, are particularly dramatic nor gruesome. Further, the days are long gone where members of our community are likely to regard those who may feel such that they wish to end their life should be punished.

49. Mr Kukulies-Smith submitted that suicide was an extreme event and that the jury may be diverted by that. He submitted that there was a risk that the jury may reason that there cannot be any other explanation for that other than that BI is guilty. That, however, is the very matter that will be the subject of directions. There will also be an opportunity for BI to place such evidence or argument before the Court to show that there is another explanation. That seems to me to be the very way in which this issue will usually be addressed. He also submitted that attempting to commit suicide was not usually the outcome of cool, calm, rational thought. I am not so sure that this is so. At one level, it is difficult to conceive of it in this way, that it is rather the outcome of a depression whether in an illness or an episode, yet there are people in our community who feel that there are valid reasons for suicide; for example, advocates of the euthanasia movement are convinced that rational decisions can be made about such matters.

50. I am not satisfied that this means that the jury cannot consider and accept, if put to them, that there may be reasons other than guilt that would, if they are satisfied of such evidence, explain the conduct.

51. Both guilt and shame are strong emotions. A strong response to either is a matter which can be considered rationally. I do not consider the event is so sensational that the jury cannot dispassionately evaluate any competing submissions. I am not satisfied that the extreme nature of suicide as an action is such that a jury, properly instructed, will not be able to evaluate both possibilities fairly and dispassionately. That the jury will need to be satisfied to the requisite degree that the conduct is only consistent with guilt is not a matter of unfair prejudice. I do not consider that the jury will be unable to address this issue.

52. The directions that will be required to be given in the trial will address much of this. There will also be an opportunity for BI to place such evidence or arguments before the Court to show that there is another explanation - and, if so, the directions will require the jury to evaluate both before they can be satisfied beyond reasonable doubt that the explanation relied upon by the Crown is the one that they can use, and only use, if so satisfied beyond reasonable doubt, in order to support the inference that the offences were committed. That seems to me to be the very way in which this issue will usually be addressed.

53. Mr Kukulies-Smith also submitted that there was a circularity of reasoning involved in the Crown submissions. That is to say, the reason for the suicide justifies the link back from it to the offences without any intervening evidence.

54. Insofar as I quite understand the submission, it seemed to me that it did not really constitute unfair prejudice. This is, indeed, the very purpose of adducing evidence that is designed to show a consciousness of guilt. The allegation is the offence. It is not proved. The consciousness of guilt is a fear, by the accused, of the disclosure of its commission. That is, if satisfied that it is only consistent with that, the jury may consider the evidence as a matter that is relevant to proof of the guilt.

55. Of course, the reasoning depends on the jury finding that it can reason from the

post-offence conduct to a finding that it is only consistent, beyond reasonable doubt, with guilt, but that is its purpose. Proper directions, as I have mentioned, will be required to ensure that it is the only way in which the jury should approach that evidence.

56. To assist them, no doubt, any alternative explanations will be promoted. Indeed, in this case, I understand that there will also be some expert evidence about this very issue.

57. It is then for the jury to find whether this conduct is explained only as a consciousness of guilt which can then be used by them to assist in determining whether the offences are found proved beyond reasonable doubt or not.

58. The Crown also wished to suggest that the knowledge of BI as to the other offences involving TM, BB and EI did likely aggravate his mind, exacerbating his likely wish to end his life.

59. That did trouble me. There was nothing to suggest that the police were currently aware at this time of any other complainants. BI did not make any mention of anyone else in his statements in the ambulance or the hospital. The circularity argument of Mr Kukulies-Smith does seem to me to have some resonance here.

60. It seems to me that, in those circumstances, it would be unfair for the Crown to refer to the fact that BI was motivated, or might have been motivated, by these other possibilities - that he knew he had committed the other offences, that there was a real risk that they would come to light, and that this motivated him to take his, or attempt to take, his life.

61. There was nothing in the evidence to suggest any of this. The explanation, that it was submitted might be given by BI, does not address these matters and it would be unfair to admit it on the basis of such speculation. I am fortified in my view by the approach of the New South Wales Court of Criminal Appeal in Abbosh v The Queen [2011] NSWCCA 265, where the Court held that a more limited version of the evidence than that sought to be led by the Crown could be permitted.

62. Accordingly, I rule that the evidence proposed to be given by Constable Leif Abraham is admissible, but only on the basis that BI knew that the police were seeking to speak to him about complaints made by his daughter OI about his sexual contact with her and as consciousness of guilt of those offences only.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.