R v CP

Doli Incapax

1. An issue arises as to the age of the accused at the time of the alleged tendency act. If doli incapax is not to apply (and the Crown concedes that it cannot prove the rebuttable presumption beyond reasonable doubt), the Crown must prove that the accused was 14 years of age at the date of the alleged tendency act on the balance of probabilities.
2. In RP v The Queen (2016) 259 CLR 461; [2016] HCA 53 the High Court held at [9]: "Under s 5 of the Children (Criminal Proceedings) Act 1987 (NSW), there is a conclusive presumption that no child under the age of 10 years can be guilty of an offence… From the age of 10 years until attaining the age of 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical element or elements of the offence. Knowledge of the moral wrongness of an act or omission is to be distinguished from the child's awareness that his or her conduct is merely naughty or mischievous."
3. Mr Grippi tendered a bundle of documents, which are Exhibit 2 on the application.
4. It is accepted by the parties that that the complainant was born in December 2004 and the accused was born in February 1998. It is not contested that the complainant started Kindergarten in 2010 when she was 5 years old. She was enrolled at a State School from 12 July 2011 until 22 April 2013 and she turned 7 on 30 December 2011. She was about 8 years and 4 months old when her enrolment at the State School ceased.
5. The Crown submits that the JIRT interview contains the following details: the complainant was in year 2 and was about 6 or 7 when the uncharged act occurred, she was living in Queensland, she was going to a State School, and that she cannot remember the address she lived at but she can describe the house. The Crown submits that the uncharged act occurred when the complainant was aged 7 and in year 2 at the State School. This would mean the accused was 14 years of age, having turned 14 in February 2012. The Crown submits that CP was 14 years of age at the time of the incident and therefore doli incapax does not apply.
6. Mr Grippi submits that the dates alleged by the Crown have been drawn from a document served by police in which Queensland Police record MP (the father of the accused and complainant) living in XXXX, Queensland from 8 October 2012. However, the document does not demonstrate how that information came to be entered and does not prove that this was the earliest date the complainant was in Queensland. Evidence from a witness, LL, provides that the family (comprising of MP, CP, KP and her brother) lived in Queensland on two occasions, in May 2010 and then in 2011-2012. This means that the uncharged act could have occurred any time in the period from September 2011 until late 2012. The accused person was under the age of 14 up to February 2012. Mr Grippi submits that the evidence, taken at its highest, discloses a single instance which occurred during a long period and the court cannot clearly determine the time the alleged tendency act occurred.
7. In my opinion, whist it remains a possibility, the Crown has not proven, on the balance of probabilities pursuant to section 142 of the Evidence Act, that the accused was at least 14 years of age at the time of the uncharged act, and therefore I find that at that time he was doli incapax.

What is the Significance of the Doli Incapax Tendency Evidence?

1. The Crown submits that if the court is of the view that the accused was under the age of 14 at the time of the uncharged, it is still able to be used as tendency evidence. The issue of doli incapax and its relation to tendency evidence has been considered in DS v R (2018) 274 A Crim R; [2018] NSWCCA 195 (DS) and BC v R [2019] NSWCCA 111 (BC). The tendency evidence in this case is not to be put before the jury on the basis that it tends to suggest that what the accused CP did was known by him to be wrong. The tendency evidence is put before the jury to prove, inter alia, that CP had a particular state of mind, that is to be sexually attracted to the complainant and to act on that sexual attraction by engaging in sexual activity with the complainant. A person can have a sexual interest in another person without knowing that acting upon that interest in a sexual way is seriously wrong: see DS at [86].
2. Mr Grippi on behalf of the accused, submits that the uncharged act occurred when a rebuttable doli incapax would apply, and because tendency evidence is used to demonstrate a tendency to 'think' and then 'act' in a particular way, there is a risk that the evidence could be unfairly used by the jury, where in normal circumstances (i.e a trial in relation to the uncharged act) the Crown would be required to rebut doli incapax. He submits that the admission of evidence of a single uncharged act, where the Crown has no evidence which would rebut the presumption of doli incapax, would have a prejudicial effect on the defendant. He says that regard should be had to the way in which the rebuttable presumption applies, that is, that the Crown must prove beyond reasonable doubt that the young person knew it was morally wrong to engage in the acts which constitute the offence.
3. In oral submissions, Mr Grippi stated that the Crown's attempt to portray the uncharged as a sexual interest, but not criminal conduct because of doli incapax was not feasible, as there could be no other interpretation by a jury other than that it constituted criminal conduct.
4. There is no doubt that doli incapax tendency evidence can be used in certain instances, even when the presumption has not been rebutted. However, there are limitations in the types of tendency evidence that are permissible. That is, evidence may be used to show a sexual attraction and a tendency to act on that attraction, but not a tendency to commit a sexual assault.
5. In DS, Wilson J said at [87]: "It is possible for a person to have a sexual interest in a child, and to act on that interest, without understanding the wrongfulness of the conduct. Evidence of that nature would, as the trial judge concluded, have significant probative value concerning the principal fact in issue in the trial, being whether the appellant engaged with his young nephew sexually, as charged. Its probative value was sufficiently high as to outweigh the potential prejudicial effect upon the appellant."
6. Her Honour found at [99] that it was important to be careful about the language used to describe the tendency. While it would not be permissible to use the evidence as a tendency to sexually assault young relatives, it was permissible use of the evidence to demonstrate a tendency to have a sexual interest in the young children of his siblings, and a tendency to act upon that sexual interest.
7. In BC the Court of Criminal Appeal spoke with one voice in support of the decision of Wilson J in DS at [103]: "We do not consider that the fact that the Crown failed to prove that the applicant understood the moral gravity of his actions for counts 1 to 3 substantially lowers the probative value of the evidence of those counts when considered by reference to the continuum of behaviour of which they form a part, considered in the light of all of the evidence as they must be in accordance with Hughes at [62]."
8. Thus, subject to the relevant provisions of the Evidence Act, I am satisfied that tendency evidence adduced about an accused person who was doli incapax at the time of the uncharged act may be admissible.

The Evidence Act

1. Several provisions of the Evidence Act have application to the present matter. Sections 55 and 56 of the Evidence Act state: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.
2. Section 97 of the Evidence Act provides: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
3. Section 101 of the Evidence Act states: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant.
4. Section 137 of the Evidence At 1995 states: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Principles to be Applied on Admissibility Issues

1. The tendering party bears the onus of establishing, on the balance of probabilities, any facts necessary for deciding that the evidence should be admitted: s 142 of the Evidence Act.

Relevance

1. Consideration of relevance requires identification of the fact or facts in issue in the trial, set out above. Counsel did not submit that I had mischaracterised the facts in issue. The fact in issue is whether or not the accused sexually assaulted the complainant as set out in the indictment.
2. The test of relevance is undemanding. The enquiry for the purpose of s 55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (IMM) at [43]-[44]. No assessment of the credibility or reliability of the evidence is required: IMM at [39]. Neither counsel suggested otherwise.
3. Evidence which is relevant pursuant to s 55 and admissible under s 56 is, by definition, probative. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM at [40].
4. The Crown submits that this evidence is relevant as it goes directly to the fact in issue, namely the charge on the indictment. The proposed tendency evidence is said to demonstrate that the accused had a sexual attraction for his sister and that he acted upon that attraction by engaging in sexual activity. The Crown cites Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [37]: "It has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts."
5. The Crown submits that there is no need for any special feature in order to render the evidence of the other acts admissible in proof of the charged acts: R v Bauer (A Pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (Bauer) at [61]. The relevance is based on the logic that when a person is sexually attracted to another and has acted on that attraction by engaging in sexual activity with her, the person is more likely to seek to give effect to that attraction by engaging in further acts of a sexual nature with the other person as the occasion presents: Bauer at [60].
6. The relevance of the alleged tendency is not disputed by the accused. Rather, he submits that its probative value does not significantly outweigh its prejudicial effect.
7. In the present case, in my opinion, the tendency evidence sought to be adduced is clearly relevant.

Section 97 and significant probative value

1. In Hughes at [16], Kiefel CJ, Bell, Keane and Edelman JJ held that: "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."
2. The Crown submits that the evidence has significant probative value as the evidence, by itself or together with other evidence, strongly supports proof of the tendency, namely a sexual interest in the complainant, and acting on that interest by engaging in sexual acts with complainant. The Crown further submits that the tendency strongly supports the proof of a fact that makes up the offence charged.
3. It is submitted on behalf of the accused that the probative value is not significant as the uncharged and charged acts are significantly different. One is sexual touching, and the other is intercourse. The only commonalities are the complainant and location of the family home. While Hughes makes it clear that similarities are not required, they strengthen the probative value of the tendency.
4. The Crown submits that if this court is of the view that there is a need for a 'special or common feature' it relies upon the following: 1. each incident occurred in the place where the family were living; 2. the incidents took place in a bedroom used by children of the family whilst, both CP and KP where alone in the room and other family members being in other areas of the house or at other locations; and, 3. both incidents commenced with CP rubbing a part of the body of KP, namely either her thigh or her back.
5. It is not necessary that tendency evidence bear a 'striking similarity' or 'underlying unity' with facts in issue in order to have significant probative value. The requisite degree of similarity between the tendency and charged conduct will depend upon the circumstances of the case: Hughes at [39]-[40].
6. Tendency evidence is a species of circumstantial evidence: Elomar v R (2014) 316 ALR 206; [2014] NSWCCA 303 (Elomar) at [356]. In Elomar, the Court comprising Bathurst CJ, Hoeben CJ at CL and Simpson J (as her Honour then was) said at [359] that "[t]endency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning."
7. Further, their Honours said at [253]: "Tendency evidence is evidence tendered to establish that a person has or had a tendency to act in a particular way or to have a particular state of mind. It is evidence that is tendered in order to provide the foundation for an inference that, because the person has or had that tendency, it is more likely that he or she behaved in a particular way, or had a particular state of mind at a time or in circumstances relevant to the issues in the dispute: see Gardiner v The Queen [2006] NSWCCA 190; 162 A Crim R 233 at [124]."
8. Of the process of reasoning, the court said at [360]: "The process of reasoning is: • on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way; • it can therefore be concluded or inferred that the person had a tendency to act in that way; • by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency. Alternatively: • on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind; • it can therefore be concluded or inferred that the person had a tendency to have that state of mind; • by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency."
9. Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.
10. 'Significant probative value' means the capacity rationally to affect the assessment of the probability of the existence of a fact in issue to a significant extent: Hughes at [16]. The evidence must be influential in the context of fact finding: IMM at [46]. In Hughes the majority pointed out that the test posed by s 97(1)(b) of 'significant probative value' requires that the evidence together with other evidence, should 'make more likely, to a significant extent the facts that make up the elements of the offence charged' (quoting R v Ford (2009) 273 ALR 286; [2009] NSWCCA 306).
11. The majority in Hughes said at [41]: "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 to the extent to which the tendency makes more likely the facts making up the charged offence . . . 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."
12. An assessment of whether the evidence has 'significant probative value' is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC at [82]-[83], ie what role would the evidence, if accepted, play in the resolution of the disputed fact.
13. In IMM, the High Court said at [45]: "The use of the term 'probative value' and the word 'extent' in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence."
14. Application of the 'significant probative value' test calls for a focus on the fact in issue, the probability of the existence of which the evidence is said to cast light.
15. Further, there is no requirement under the Evidence Act that an accused person's tendency must be proved beyond reasonable doubt: Bauer at [86].
16. In my opinion, the proposed tendency evidence has significant probative value because it has the capacity to affect the assessment of the major fact in issue in the proceedings.

Section 101

1. The s 101(2) assessment calls for a weighing up of the probative value and prejudicial effect to determine whether the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the accused.
2. In DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 (DAO) at [150], Simpson J (as her Honour then was) observed that the term 'prejudicial effect' in s 101(2) is a reference to evidence being used against an accused person for a purpose other than that for which it is admitted.
3. In relation to the test in s 101(2) of the Evidence Act, Kiefel CJ, Bell, Keane and Edelman JJ said in Hughes at [17]: "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."
4. Although there are textual differences between the expressions 'prejudicial effect' in s 101, 'unfairly prejudicial' in s 135 and 'unfair prejudice' in s 137 of the Evidence Act, each conveys a similar idea of harm to the interests of an accused person by reason of a risk that the jury will use the evidence improperly in some unfair way: Bauer at [73].
5. When considering s 101(2), it is appropriate to take into account the 'ameliorating effect' of any directions: DAO at [172].
6. In McPhillamy v R (2018) 461 ALR 13; [2018] HCA 52, a majority of the High Court of five said at [26] and [27]: "[26] As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of B and C was capable of establishing that the appellant had such an interest in this court. It was not disputed that it is an interest of a kind that is likely to be enduring. [27] Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to B's and C's evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against A."
7. I accept that whilst it is possible that a tendency might be established from one prior incident, as Beazley P, Hall and Wilson JJ said in Aravena v The Queen (2015) 91 NSWLR 258; [2015] NSWCCA 288 (Aravena) at [89]: "…A single incident some years before may provide a weaker foundation than might have been the case for a tendency sought to be proved by evidence of multiple instances of relevant conduct or conduct that had occurred in the more recent past to the event in issue…"
8. In Aravena, a tendency was said to be established by the fact of a single prior incident which led to a conviction for indecent assault. In that case, where the accused had admitted to assaulting the complainant in a similar manner to that described in the tendency notice but denied that it was a sexual assault, the court held that there was no error in admitting the evidence as tendency evidence.
9. Here the alleged uncharged act took place about a year to a year and a half before the charged act.
10. Mr Grippi submitted that there is a significant risk of danger of unfair prejudice to the accused should the evidence be admitted. Even though the proposed tendency evidence is not a charged act, and the Crown do not need to prove the evidence (or rebut doli incapax) to the criminal standard of proof, he says that the prejudice is severe because the jury might overlook, or be unable to understand the complexities of a rebuttable defence available to the accused. It was submitted that an accused in these circumstances; i.e. when the uncharged act took place at the time when he was doli incapx, it is inherently prejudicial.
11. I reject that submission. I note that in BC the court said at [101]: "The fact that the applicant has made out a doli incapax defence does not otherwise impact upon the analysis of probative value and prejudicial effect for the purposes of ss 97 and 101."
12. Mr Grippi submitted that the prejudice here is that that the jury might misuse the uncharged act and which would detract from the offence on the indictment. He submits that the jury would treat the uncharged act as an indispensable link in the chain. Mr Grippi stated that there is a risk, no matter how the evidence is presented by the Crown, that the will jury interpret it as criminal offending - a sexual assault of a minor.
13. The Crown submits that tendency evidence carries with it, by its very nature, a risk of prejudice to an accused person. Because of that risk it is important to be careful about the language used to describe the tendency argued for, and the way in which the evidence is to be used: DS at [99]. The Crown submits that the probative value of such evidence is so high as to outweigh the potential prejudicial effect upon the accused.
14. The Crown further submits that appropriate directions can be given by the court to lessen or ameliorate any potential prejudice: BC at [92].
15. It was submitted on behalf of the accused that there are no directions which could cure the fact that they jury could misuse the evidence, or place undue weight on it, where the possible doli incapax 'issue' exists.
16. As to s 101(2), I acknowledge that the prejudicial effect is substantially the same as that to be considered under ss 137 and 135(a): see Bauer at [73]. In my opinion, the prejudicial effect of the evidence sought to be admitted is not over and above that which usually attends the admission of any tendency evidence. In this case, the prejudice that might arise is first that there is a risk that the jury might have an emotional response to the uncharged act, and second that there is a risk that the jury might substitute the uncharged act for the charged act or be unable to distinguish between them. A jury will be directed carefully about the use they can make of the evidence. In my opinion the probative value of the evidence is substantially outweighed by any prejudicial effect it may have on the defendant.

Section 137 of the Evidence Act

1. Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM at [15]. Section 137 requires the 'probative value' of the evidence to be weighed against the danger of unfair prejudice to an accused. This requires that the evidence be taken at its highest when assessing the probability of the existence of the facts in issue: IMM at [47]. Also in considering the probative value of evidence under s 97(1)(b), an assumption of the jury's acceptance of the evidence must be made, and no question of the credibility or reliability of the evidence can arise: IMM at [52]; Bauer at [69].
2. The danger of 'unfair prejudice' in s 137 means the risk that evidence may be misused in some unfair way by a jury, so that the jury will not comply with judicial directions as to its use: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; Bauer at [73], or that the evidence might damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R (2013) 231 A Crim R; [2013] NSWCCA 123 at [51].

Conclusion

1. In summary, for reasons contained in this judgment, I allow the Crown's application to rely on the evidence of the complainant with respect to the earlier uncharged incident the subject of its Tendency Notice, subject to my finding that the Crown could not satisfy me on the balance of probabilities that it took place at an age when the accused was not doli incapax.

Amendments 23 June 2023 - amendments for form and anonymisation of complainant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2023