R v Fitzpatrick [2012] ACTSC 107

3. On 14 March 2012 the accused lodged an application seeking orders that the tendency evidence that the Crown proposed to adduce was not admissible as tendency evidence, and that the Count on the Indictment alleging an offence against LB be severed from the Indictment and a separate trial be ordered in respect of that Count.

4. On 19 March 2012 I heard both applications, and I reserved my decision. Pre-trial evidence of the young complainants was due to be taken on 18 April 2012. On 17 April 2012 I made orders that the application by the Crown to adduce tendency evidence be refused, and that the Count on the Indictment alleging an offence against LB be severed and a separate trial be had for that Count. I indicated that I would give my reasons at a later time. These are those reasons.

The Notice of Intention to Adduce Tendency Evidence

5. The tendency notice stated that the Crown intended to adduce evidence of the accused to prove that he had a tendency to act in a particular way and have a particular state of mind. The substance of the evidence that the Crown intended to adduce was:

1. In 2005 and 2006 the accused had a tendency to have a sexual attraction towards and sexual interest in young girls, particularly his step daughters.
2. In 2005 and 2006 the accused had a tendency to act upon that sexual attraction towards and sexual interest in young girls, particularly his step daughters.
3. In 2005 and 2006 the accused had a tendency to act upon his sexual interest in his step daughters by girls (sic), in particular, when he was alone with the girls he had a tendency to engage in sexualised conduct with them, such as:

a. exposing his penis to them

b. touching their genitals

c. by requesting that they touch his penis

d. by requesting that they suck his penis.

6. The tendency notice alleged that the accused engaged in the following conduct with NB:

(a) On one occasion the accused was sitting with [NB] on a couch. He pulled his pants down exposing his penis and pulling her hand toward his penis so that she would touch it.

(b) On another occasion the accused was again sitting with [NB] on the couch they were sitting with a blanket over them. The accused touched [NB] on her genital area.

(c) On another occasion the accused was in the lounge room with [NB]. She was wearing pyjamas. The accused pulled her pyjamas (sic) pants and underpants down and touched her on her genital area.

7. The tendency notice alleged that the accused engaged in the following conduct with LB:

(a) On one occasion the accused was in the lounge room with [LB]. He asked her to sit with him on the couch. She refused, the accused then took her to his bedroom and began talking to her about sex and trying to kiss her. He asked [LB] to suck his penis.

8. The tendency notice alleged that the accused engaged in the following conduct with both LB and NB:

(a) On one occasion when the two girls were outside in the back yard of the accused's premises, the accused exposed his penis to both girls.

9. The conduct alleged against the accused in exposing his penis to both LB and NB was not the subject of a charge, and the Crown proposed to lead it as evidence of an uncharged act.

10. Whilst the tendency notice was expressed as a notice under s 97 (1) of the EA 1995, by the time the two applications came on for hearing the Evidence Act 2011 (ACT) (the EA 2011) had commenced operation. The accused did not submit that anything turned upon the fact that the EA 2011 came into force prior to the hearing of the applications. The tendency notice requirements under the EA 2011 are the same as those under the EA 1995. The EA 2011 is intended to be uniform with the EA 1995, and the two acts are drafted in identical terms, except for some minor differences in drafting style.

11. The touchstone for the admissibility of evidence under the EA 2011 is relevance. Section 56 provides that, except as otherwise provided in the Act, evidence that is relevant in a proceeding is admissible in the proceeding. Section 55 provides that evidence is relevant if, if it were to be accepted, it could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.

12. The tendency rule is set out in s 97 of the EA 2011:

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 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.

(2) Subsection (1) (a) does not apply if -

(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.

Note The tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.

13. Further restrictions on the admissibility of tendency evidence adduced by the prosecution are found in s 101 of the EA 2011:

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.

14. Whilst no evidence in the trial had been taken when I ruled that the Crown could not adduce tendency evidence, it was fairly clear that the accused simply denied that each of the alleged events ever took place. Since the ruling, the accused has been tried with respect to the one charge concerning LB. The accused gave evidence denying that the incident as alleged by the Crown had occurred. What the Crown sought to prove by adducing the proposed tendency evidence was that the events which form the basis of the allegations occurred. In other words, the Crown alleged that the admission of the tendency evidence would enable a jury to reason that it was more likely that the offences had occurred.

15. Proof that the accused did the acts alleged is a crucial element in the Crown case. Both of the complainants were under the age of 10 years at the time of the offences and were living in a relationship with the accused in which he was effectively their step-father. Proof that the accused had a tendency to be sexually attracted to young girls, and in particular his step-daughters, and that he had a tendency to act upon that sexual interest by engaging in sexualised touching of his step-daughters would clearly be relevant to establishing the facts in issue.

16. As I recently noted in R v Johnston [2012] ACTSC 89 (Johnston), in order to establish a tendency to act in a particular way, or to have a particular state of mind, it is not necessary that the Crown demonstrate repetition of particular acts or types of behaviour. Campbell JA in R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 said in that regard at [45]:

It is possible for a person to have a tendency to act in a particular way even if that tendency has not shown to be manifested on very many occasions.

17. As I observed in Johnston, the more ordinary the conduct the more difficult it will be, absent evidence of significant repetition, to establish that an individual has a tendency to engage in that conduct. However, as I also observed in that case, there are certain states of mind that may be proved without proof of repetition of associated acts, and proof of which may lead to an inference that the individual has a tendency to have that state of mind. In my opinion, sexual attraction is one such state of mind. As I noted in Johnston, if evidence establishes that an individual is, at a particular date, sexually attracted to children, that, in my opinion, would allow an inference that the individual has a tendency to have that state of mind, that is, to be sexually attracted to children. However, it must be acknowledged that people do not always act on their tendencies.

18. Section 97 (1) (b) provides that I must be satisfied that the evidence of tendency, either by itself or in combination with other evidence to be adduced, will have significant probative value. The phrase "probative value" is defined in the Dictionary to the EA 2011 as meaning, with regard to evidence, "the extent to which the evidence could rationally effect the assessment of the probability of the existence of a fact in issue". As such, this definition invites attention to what is open for the tribunal of fact to conclude, not what they are likely to conclude: see R v Shamouil [2006] NSWCCA 112. For evidence to have significant probative value the evidence must be capable of rationally effecting the assessment of the probability of the existence of a fact in issue to a high degree. I accept, for present purposes, that a person who has a sexual attraction to children is more likely to act upon that tendency by engaging in sexual conduct with children than a person who does not have that tendency. As such the evidence the Crown proposed to adduce could have significant probative value.

19. Once the requirements of s 97 of the EA 2011 are met, tendency evidence is still not to be admitted unless the probative value of the evidence substantially outweighs the prejudicial effect it may have on the accused: s 101 of the EA 2011. In my opinion the evidence that the Crown sought to lead as tendency evidence was highly prejudicial. The probative value of that evidence did not substantially outweigh the prejudicial effect it would have had upon the accused. For that reason I declined to allow the Crown to lead the proposed tendency evidence.

20. The conduct alleged by the Crown with respect to each of the two complainants is different. The Crown case against the accused concerning the charge relating to LB is that the accused attempted to kiss LB and asked her to suck his penis. It is the Crown case that the accused led the complainant into a separate room in the family home in order to commit these acts. Different allegations are made with respect to the charges concerning LB. Count 1 on the original Indictment alleged the accused exposed his penis to NB and requested that she touch it. Counts 3 and 4 allege that the accused touched NB on the vagina. Whilst it is not necessary for the Crown to establish a striking similarity between acts of the accused in order to lead those acts as tendency evidence, the lack of such similarity is a fact to be taken into account in determining the probative value of the evidence to be adduced.

21. Having determined that the evidence concerning the charges regarding each complainant would not be cross admissible, I ordered that the Count relating to LB be severed and heard as a separate trial on the basis that there was an unacceptable risk of prejudice to the accused if he was tried on the one Indictment alleging offences against both complainants. I determined that no direction to the jury would be adequate to address this risk. As Gibbs CJ said in De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1 at p 3: "sexual cases ... are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard."

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the appellant: ACT Director of Public Prosecutions

Solicitor for the respondent: Ben Aulich & Associates