[2015] ACTSC 29

CRIMINAL LAW - Particular Offences - offences against children - indecent assault on a person under the age of 16 years

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - tendency evidence - whether the Evidence Act 2011 (ACT) applies to an application to lead tendency evidence in relation to offences allegedly committed prior to the commencement of that Act

Crimes Act 1900 (ACT) s 76

Evidence Act 2011 (ACT) ss 97, 101, 137

Evidence Act 1995 (Cth)

Human Rights Act 2004 (ACT) s 25 (1)

Legislation Act 2001 (ACT) ss 75B, 84

BJS v The Queen (2013) 231 A Crim R 537

Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507

Hoch v R [1988] HCA 50; (1988) 165 CLR 292

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261

R v Cook [2004] NSWCCA 52

R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228

R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363

Rodway v R [1990] HCA 19; (1990) 169 CLR 515

1. The accused is awaiting trial on four charges of indecently assaulting a person under the age of 16 years contrary to the provisions of s 76 of the Crimes Act 1900 (ACT), as that provision stood between 1 January 1982 and 18 June 1984 when the offences are alleged to have occurred (CC14/135; CC14/134; XO14/30129; CC14/137). At some time after 18 June 1984, the offence created by s 76 was abolished and a differently formulated offence was substituted. Three of the charges allege offences against a complainant JM, and the remaining charge alleges an offence against a different complainant, TR. The two complainants are sisters, with JM being aged between 8 and 11 years at the time of the alleged offences, and TR being aged between 10 and 11 years. All charges are contained within the one indictment dated 1 August 2014. The accused is scheduled to be tried on 10 March 2015.

2. On 25 September 2014, the accused was served with a Notice of Intention to Adduce Tendency Evidence in which the Crown gives notice of an intention to lead evidence of eight incidents with a view to establishing that the accused, at the relevant times, had a tendency to be sexually attracted to young girls and had a tendency to act in particular sexual ways. Three of these incidents correlate with the four charges on the indictment, but the remaining five incidents pertain to acts alleged to have been committed by the accused but which do not form the basis of any charge. By an application dated 25 September 2014, the Crown sought orders that it be permitted to lead the proposed tendency evidence at the accused's trial. That application came before me on 21 October 2014, at which time counsel for the accused raised two preliminary issues. The first issue was whether, in light of the fact that these offences were said to have occurred prior to the commencement of the Evidence Act 2011 (ACT) (the ACT Evidence Act), the provisions of that Act applied to any application by the Crown to lead tendency evidence. The second issue was, if the ACT Evidence Act did apply, whether the accused should be permitted to cross-examine the complainants on the voir dire for the purposes of the tendency application. It was agreed that these issues would be addressed in written submissions, with the accused to provide submissions by 11 November 2014, the Crown to provide submissions by 25 November 2014 and any submissions in reply by the accused to be provided by 2 December 2014. This schedule was later varied at the request of the parties such that written submissions from the Crown were not received until 4 December 2014, and the accused's submissions in reply were not received until 19 January 2015.

The first issue: Do the provisions of the ACT Evidence Act apply?

The relevant law and the parties' submissions

3. The provisions of the ACT Evidence Act governing the reception of tendency evidence commenced on 1 March 2012. Before that date, the reception of tendency evidence in proceedings in the ACT was governed by the provisions of the Evidence Act 1995 (Cth), which was in the same terms as the corresponding provisions of the ACT Evidence Act. The provisions of the ACT Evidence Act relevant to the present application are:

(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 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.

(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or

(b) the evidence is presented to explain or contradict tendency evidence presented by another party.

1. Further restrictions on tendency evidence and coincidence evidence presented by prosecution

(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented 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 presents to explain or contradict tendency evidence presented by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.

1. Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

4. The accused submitted that s 97 and s 101 did not apply to the Crown's application to lead tendency evidence and that if the Crown wanted to lead evidence of propensity at his trial, it could only do so if the evidence satisfied the common law tests governing the reception of similar fact evidence as it applied at the time of the alleged offences.

5. The accused referred to the common law presumption against giving retrospective effect to legislation affecting rights and liabilities, as reflected in the judgement of Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.

6. The accused submitted that neither the ACT Evidence Act nor the Evidence Act 1995 (Cth) was in force at the time of the alleged offences, and that neither act had retrospective effect. Accordingly, the accused submitted that the application to admit tendency evidence pursuant to the provisions of the ACT Evidence Act must be dismissed, as to admit such evidence would infringe rights, or interests, or privileges of the accused which had vested prior to the ACT Evidence Act coming into force and which could not be retrospectively compromised. The accused pointed to s 75B of the Legislation Act 2001 (ACT) (the Legislation Act), which provides that a law must not be taken to provide for the law to commence retrospectively unless the law clearly indicates that it is so to commence. The accused also relied upon the provisions of s 84 of the Legislation Act, which is in the following terms:

1. Saving of operation of repealed and amended laws

(a) revive anything not in force or existing when the repeal or amendment takes effect; or

(b) affect the previous operation of the law or anything done, begun or suffered under the law; or

(c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.

(2) An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened.

(3) Without limiting subsections (1) and (2), the repeal or amendment of a law does not affect -

(b) any right, privilege or liability saved by the law.

(4) This section does not limit any other provision of this chapter and is in addition to any provision of the law by which the repeal or amendment is made.

liability includes liability to penalty for an offence against the law.

right includes capacity, interest, status and title.

7. The accused submitted that the effect of these provisions was that the repeal or amendment of a law does not "affect the proof" of anything which has occurred unless the repeal or amendment is clearly expressed to have that effect. Thus, he said, the manner and methodology of proof that existed prior to the amendment, or repeal, is to continue to apply to events prior to the amendment or repeal entering into force, thus limiting the retrospective reach of changes even to procedural laws by recognising, statutorily, that rules providing for the proof of matters are substantive provisions which confer rights, interests, immunities and privileges upon parties such that they cannot be retrospectively altered except by express language. The accused submitted that the provisions of s 75B and s 84 of the Legislation Act extend the operation of s 25 (1) of the Human Rights Act 2004 (ACT) (the HRA) which provides that a person cannot be found guilty of a criminal offence because of conduct that was not a criminal offence under Territory law when it was engaged in, and also extend the operation of the common law principle stated in Maxwell v Murphy.

8. The accused submitted that it was not intended by the legislature that the ACT Evidence Act affect an "existing right, privilege, or liability, acquired, accrued or incurred under legislative or common law laws of evidence that applied in the Territory" prior to the Act commencing. Accordingly, he said, the ACT Evidence Act does not affect the proof of anything that happened prior to it coming into force. He referred to the decision of the Victorian Court of Appeal in Dupas v The Queen [2012] VSCA 328; (2012) 218 A Crim R 507 where the court observed at [164]:

It is presumed that a statute is not intended (in the absence of express words) to alter common law doctrines. A strict reading and careful scrutiny of the language of the Act is therefore necessary, in order to determine whether it was the will of the legislator to remove or encroach upon those doctrines.

9. Although it will not be necessary for me to resolve the issue, I note that the above passage was criticised by Basten JA in R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 at [58]:

Four authorities were cited to support that proposition, namely FCT v Citibank Ltd (1989) 20 FCR 403, 433 (French CJ); Bropho v State of WA [1990] HCA 24; (1990) 171 CLR 1, 18; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437 and Ballog v ICAC [1990] HCA 28; (1990) 169 CLR 625, 635. However, those cases do not demand that a strict reading and careful scrutiny of statutory language is required in order to determine whether the legislator has sought to alter "common law doctrines". The cases establish a far more limited proposition, namely that express language is required to abrogate or curtail "a fundamental right, freedom or immunity", on the basis that the courts "should not impute to the legislator an intention to interfere with fundamental rights": Coco at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). As explained by McHugh J in Malika Holdings Pty Ltd v Stretton [2001] HCA 14; 204 CLR 290, at [28], no such assumption can operate uniformly in respect of common law principles more generally.

10. The ultimate submission made by the accused was that the provisions of the ACT Evidence Act did not apply, and that any proposal by the Crown to lead evidence directed towards establishing a tendency on the part of the accused must satisfy the stricter requirements for admission as similar fact evidence under the common law, which applied prior to the commencement of the Evidence Act 1995 (Cth).

11. The Crown submitted that this issue was squarely dealt with by the High Court in Rodway v R [1990] HCA 19; (1990) 169 CLR 515. In that case, the appellant was convicted of indecent assault on a female. At the time of the offence, there was a provision in the Criminal Code (Tas) which required evidence of a complainant to be corroborated before an accused person could be convicted of the offence. However, by the time of the appellant's trial that provision was repealed and a new provision, which did not require corroboration to be shown, replaced it. The trial judge proceeded under the new provision. On appeal, the appellant argued that the trial judge, in effect, gave retrospective effect to the new provision contrary to his "rights" under s 16 of the Acts Interpretation Act 1931 (Tas), which was in similar terms to s 84 of the Legislation Act. In a unanimous decision, the High Court (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) held that the trial judge was correct to apply the law as at the date of the trial:

The rule at common law is that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural - statutes of limitation, for example, - may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.

12. In finding that the amendment to the Criminal Code (Tas) did not affect existing rights or obligations, the High Court said at [12]:

... the statutory amendments were clearly intended to alter the existing law with respect to corroboration. Both amendments were procedural in character. They did not operate to affect existing rights or obligations. Rather, they operated to affect the way in which rights fell to be determined at trial and, for that reason, they did not fall within the presumption against retrospective operation.

13. The Crown further argued that, to the extent that the provisions of s 84 (6) of the Legislation Act gave an extended definition to the word "right" for the purposes of the operation of that provision as including an "interest", it was clear from the context in which the word "interest" appears in s 84 (6) and from the definition of "interest" in the Dictionary to the Act, that it is used as pertaining to a legal interest in property. I do not accept that submission. The definition of "interest" in the Dictionary to the Legislation Act is not intended to be an exhaustive definition, and is only intended to apply to the term where it is used in the context of property. Alternatively, the Crown submitted that there needed to be a "substantive interest" affected and not merely an interest in procedure or to be tried in a particular way. The Crown further argued that the provisions of s 25 of the HRA have no role to play because the relevant provisions of the ACT Evidence Act do not purport to criminalise past conduct, but simply govern procedure at trial.

14. In reply, the accused reiterated the proposition that s 84 of the Legislation Act applies and precludes the ACT Evidence Act from having retrospective effect in relation to any right, privilege or liability acquired, accrued or incurred. The accused further submitted that this statutory provision is significantly wider than the legislative provision considered by the High Court in Rodway v R, and as such that decision was distinguishable. The accused went on to say,

The questions (sic) is whether the provisions of the Evidence Act 2011 which permit the court to allow the prosecution to adduce tendency evidence abrogate, amend, repeal, change or affect an accused's "rights", "capacity", "interests", "privileges", "liabilities" or "immunities".

The accused also submitted that the provisions of the ACT Evidence Act governing the reception of tendency evidence repealed the common law rules regulating the basis upon which similar fact evidence may be admitted. The accused's ultimate submission was that changing the nature of material that may be adduced in order to prove an offence and changing the rules which control the admission of evidence operate to change the rights of an accused person. They affect, he says, an accused's capacity to defend charges and change the nature of the accused's interest in the trial. Such changes, he argued, are not merely procedural, but by virtue of the legislative provisions applicable in the Territory they affect, retrospectively, an accused's substantive rights.

15. The accused's submissions are based on a fundamental misunderstanding of the scope of operation of s 84 of the Legislation Act. That provision only operates where there has been "a repeal or amendment of a law": s 84 (1). For the purposes of Chapter 9 of the Legislation Act, in which s 84 is found, "law" is defined as meaning "an Act or statutory instrument": s 82. For this reason, even if the accused's submission that the provisions of the ACT Evidence Act governing the admission of tendency evidence "repealed" the common law rules governing the reception of propensity evidence was correct, the provisions of s 84 have no operation.

16. It was not suggested by the accused that the amendment of the Crimes Act 1900 (ACT), which effectively abolished the offences with which he is now charged and substituted those offences with differently formulated offences, is the amendment by virtue of which he says that the provisions of s 84 are engaged, but I make it clear nonetheless that this cannot be the case. The offences with which the accused is charged are offences contrary to s 76 of the Crimes Act 1900 (ACT) as it stood at that time. That provision merely created an offence, and it cannot be suggested that the accused acquired, accrued or incurred any right, privilege or liability under that provision.

17. It follows from the above that the accused's statutory interpretation argument based upon the provisions of s 84 of the Legislation Act fails.

18. The question which remains is whether, in applying the common law tests found in Maxwell v Murphy and Rodway v R, it may be concluded that the provisions of the ACT Evidence Act governing the reception of tendency evidence were not intended to apply where the subject matter of the proceedings predated the commencement of the ACT Evidence Act. The answer to this question must turn upon whether the provisions of the ACT Evidence Act governing the reception of tendency evidence are merely procedural, or whether they affect some existing right which was vested in the accused prior to the commencement of the ACT Evidence Act. The accused submitted that the introduction of the relevant provisions of the ACT Evidence Act, namely s 97 and s 101, did affect substantive rights and were not merely procedural reforms. The accused referred me to the decision of King CJ in Taylor v Guttilla (1992) 59 SASR 361, where his Honour said at 366 - 367:

I apprehend that a rule of court which is ex facie procedural, may nevertheless amount to such a direct and radical intrusion into the field of substantive law as to lead to the conclusion that, although apparently procedural, it does not in reality possess that character. For that reason the absence of any effect upon substantive rights is a relevant consideration in relation to the validity of a rule (see Karasaridis v Kastoria Fur Products (1984) 37 SASR 345, per King CJ at 350 - 351, (sic) but the existence of such an effect is not necessarily determinative of validity (see per Zelling J at 358): Rigney v Rigney (1987) 48 SASR 291; Commonwealth Bank of Australia v Forshaw (1990) 55 SASR 247, per Cox J at 256. The difficulty in any particular case is to determine whether the rule has passed so far into the field of substantive law as to have lost its procedural character.

A rule of court, ex facie procedural, may nevertheless be properly characterised as non-procedural if it could not reasonably have been adopted for the purpose of regulating pleading practice or procedure: Williams v City of Melbourne [1933] HCA 56; (1933) 49 CLR 142, per Dixon J at 155. That is a useful test of validity in some circumstances. The criterion for judging whether intrusion into substantive law or effect on substantive rights has deprived a rule of its ex facie procedural character, which will be found most useful in the generality of cases, is that of proportionality.

19. The accused acknowledged that this statement by King CJ was made in the context of determining the validity of a regulation, but nevertheless submitted that it has direct application to determining whether a legislative enactment is to be classified as procedural, or whether it affects substantive rights and liabilities. He further submitted that the test of proportionality referred to by King CJ, when applied to the provisions of the ACT Evidence Act governing the reception of tendency evidence, leads to a conclusion that those provisions constitute a "radical intrusion into substantive law" in that they radically change the nature of admissible evidence and the rights of the accused to challenge the admissibility of evidence at his trial. As such, he said, the provisions were not simply procedural.

20. I am satisfied that the principles enunciated by King CJ are of no assistance in determining whether the legislature intended the provisions of s 97 and s 101 of the ACT Evidence Act to apply to proof of events which preceded the commencement of that Act. The principle of proportionality referred to by King CJ only has application in determining whether subordinate legislation is made within power, and has nothing to say concerning the determination of the intention of the legislature in passing provisions such as s 97 and s 101. The principle is also of no assistance in determining, for present purposes, whether legislation affects existing rights or liabilities.

21. Before the commencement of the ACT Evidence Act (or the Evidence Act 1995 (Cth)), the accused did not have a right to have the charges against him tried in a particular manner, other than in a manner prescribed by law. In one sense, it may be said that if these charges had been tried prior to the commencement of the Evidence Act 1995 (Cth), the accused would have had a right to have the charges tried by application of the rules of evidence that applied at that time, but that was simply a right to have the trial conducted according to the procedures prescribed by law at the time of his trial. To paraphrase the High Court in Rodway v R, the changes concerning the admissibility of tendency evidence wrought by the Evidence Act 1995 (Cth) and the ACT Evidence Act only operate to affect the way in which rights fall to be determined at trial.

22. For these reasons, I am satisfied that the application by the Crown to lead tendency evidence at the trial of the accused is governed by the provisions of the ACT Evidence Act rather than the common law test of similar fact evidence

The second issue: The application to cross examine the complainants on the voir dire

23. The accused submitted that, if he is precluded from contesting the admissibility of the proposed tendency evidence by cross-examination on a voir dire, then the provisions of s 101 (2) of the ACT Evidence Act become meaningless as a court would simply be "rubber stamping" the leave application. In addition, s 137 of the ACT Evidence Act requires the court to assess the probative value of the evidence. Each of these provisions, the accused submitted, requires the court to make a determination as to the probative value of the tendency evidence and any potential prejudice it may have upon the accused if adduced. He further submitted that the possibility of collusion between witnesses or contamination of a witness are relevant matters to the assessment of whether proposed tendency evidence has "significant probative value", citing the decision of the High Court in Hoch v R [1988] HCA 50; (1988) 165 CLR 292.

24. The Crown opposed the application to cross examine the complainants on the ground that, in assessing the probative value of evidence, credibility and reliability are not taken into account save in limited circumstances: R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228. This approach, the Crown submitted, was approved by the NSW Court of Criminal Appeal in R v XY, and to the extent that the Court of Appeal of Victoria suggested otherwise in Dupas v The Queen, it should not be followed. The Crown's ultimate submission was that the question of the credibility and reliability of the witnesses was a matter for the jury.

25. In order to determine the present application, it is not necessary to enter into the debate concerning the extent to which a court is to routinely assess the credibility or reliability of proposed tendency evidence before it may be admitted at trial. It is clear from the judgments in R v Shamouil and R v XY that, even in New South Wales, there will be occasions where it is appropriate and permissible for a trial judge to consider the credibility and reliability of evidence for the purpose of determining the probative value of particular evidence. Clear evidence of collusion or contamination may well weaken the probative value of complaint evidence such that no reasonable jury could accept it: R v Cook [2004] NSWCCA 52, per Simpson J at [43], cited in R v Shamouil by Spigelman CJ at [56].

26. In BJS v The Queen (2013) 231 A Crim R 537, the decision of the trial judge to allow cross-examination of complainants with respect to the prospects of collusion or contamination in the context of a trial for sexual offences was not the subject of criticism or even comment by the NSW Court of Criminal Appeal.

27. In the present case, the evidence to be relied upon by the Crown establishes potential for collusion or contamination, as the complainants are sisters. In this way, the present case may be said to be somewhat unusual, although by no means unique. I am satisfied that the accused should be allowed to cross-examine the complainants on the voir dire for the purposes of the Crown's application to lead tendency evidence. Such cross-examination will be strictly limited to addressing whether there has been collusion between the complainants, or contamination of their evidence.

28. The Crown's application to lead tendency evidence is to be determined by reference to the provisions of the Evidence Act 2011 (ACT)

29. The accused will be permitted to cross-examine the complainants JM and TR on the voir dire, limited to the issues of collusion between the witnesses and contamination of their evidence.

30. I order that this judgment not be published other than to the parties until the conclusion of the accused's trial(s).

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.