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[2020] ACTSC 317
procedural. The prosecution was permitted to adduce Incidents 1 and 2 as tendency evidence for Tendency 1 and to rely on cross-admissibility of Counts 1–19. Tendency 2 and Incident 3 were no longer pursued....
The Court allowed the prosecution to use two alleged earlier incidents involving the same complainant as evidence of a tendency to act on a sexual interest in that complainant. It concluded that the incidents were relevant, significantly probative, and that their probative value substantially outweighed their prejudicial effect. It also allowed the evidence relating to Counts 1–19 to be cross-admissible as tendency evidence. This was a pre-trial admissibility ruling, not a finding that the alleged conduct occurred or that the accused was guilty.
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R v Garay [2020] ACTSC 317 was a pre-trial ruling about whether the prosecution could use alleged earlier conduct as tendency evidence in a prosecution for historical sexual offences. Loukas-Karlsson J gave the decision on 18 August 2020 and issued reasons dated 30 November 2020.
No linked legislation citations have been extracted yet.
The accused faced 19 counts concerning one complainant. The alleged offences were committed between 28 January 1986 and 5 December 1988, when the complainant was aged between 12 and 14. They comprised one count of maintaining a sexual relationship with a young person, two counts of sexual intercourse with a young person, and 16 counts of acts of indecency with a young person ([2]). The accused had also pleaded guilty to a separate possession of child exploitation material charge, but that matter was committed for sentence and was expressly outside the application ([3]).
The prosecution originally proposed two tendencies and relied on three incidents. At the hearing, it withdrew its reliance on Tendency 2 and Incident 3 ([6], [12]). The remaining proposed tendency, Tendency 1, was an alleged tendency to have a sexual interest in the complainant and act on it by masturbating his penis while lying together, for the accused's sexual gratification (4, [19]).
The two remaining incidents were alleged to have occurred before the charged period. In the Flowerdale Road incident, the complainant said he fell asleep between the accused's legs while they watched television and woke to find the accused's hands down his pants, touching his erect penis for a few minutes ([10]). In the Webster Road incident, the complainant said that, after they had been lying together watching a film, he woke to find the accused masturbating his penis until ejaculation, although no sperm came out because of the complainant's age ([11]). The judgment records these as allegations for the purpose of the application, not findings that they occurred.
The accused did not oppose reliance on Incidents 1 and 2 if the Court found the statutory threshold was met ([13]). The prosecution also sought an order that evidence concerning each count be cross-admissible as tendency evidence concerning the other counts ([7]). The Court granted the application as to Incidents 1 and 2, Tendency 1, and cross-admissibility of Counts 1–19 ([32]). The ruling addressed admissibility, not guilt or whether a jury would ultimately accept the evidence.
The Court set out a three-part admissibility framework: relevance under s 55 of the Evidence Act 2011 (ACT), significant probative value under s 97, and the prosecution-specific balancing test in s 101(2) ([14]). It said it would adopt the approach in Vojneski v The Queen ([15]).
For relevance, the Court first identified the purpose for which the evidence was tendered, referring to IMM v The Queen ([16]). It then asked whether the prosecution had identified a tendency, whether the incidents were capable of establishing it, what facts were in issue, and whether the tendency could inform one of those facts ([18]–[23]). The identified tendency was not framed merely as a general disposition. It was specific to the complainant and to the alleged conduct of masturbating his penis while the accused and complainant were lying together ([19]). The Court found that the tendency had been identified and that Incidents 1 and 2 were capable of establishing it ([20]–[21]). Whether the accused engaged in sexual acts with the complainant was a fact in issue, and the Court considered the asserted tendency capable of informing that question ([22]–[23]).
On significant probative value, the Court referred to IMM's explanation that significance concerns whether evidence is important or influential in fact-finding, in light of the facts in issue. It also relied on the explanation that assessment involves both the evidence's capacity to establish the tendency and the extent to which the tendency makes elements of the charged offence more likely ([24]). Hughes v The Queen described this as a two-step assessment, addressing support for the tendency and support for a fact that makes up the offence ([25]). The judgment also quoted Hughes on the context of child sexual offence trials, and referred to The Queen v Bauer (a pseudonym) regarding uncharged acts involving the same complainant ([26]–[27]). Applying those authorities, the judge stated that the proposed evidence had significant probative value ([28]).
The final statutory question was whether that probative value substantially outweighed any prejudicial effect. The Court referred to Hughes on possible prejudice from tendency evidence: a jury may give the evidence disproportionate weight, respond emotionally, or be burdened by having to assess uncharged conduct ([29]). The prosecution's submissions included that there was no solid basis to identify a real risk of misuse ([30]) and that the evidence should be assessed in the context of the case ([31]). The judge concluded that the significant probative value substantially outweighed any prejudicial effect ([32]). The reasons do not set out a detailed, incident-by-incident balancing analysis, so the conclusion should be stated as the Court's result rather than supplemented with reasoning not recorded in the judgment.
This decision applies statutory admissibility rules to a particular pre-trial application. Section 97 required reasonable written notice, unless an exception applied, and that the evidence have significant probative value ([8]). The judgment records no dispute about the notice requirement. Its analysis focused on relevance, significant probative value and the additional prosecution restriction in s 101 ([14]–[32]).
The authorities discussed in the reasons supplied the framework used by the Court. IMM informed the relevance inquiry and the meaning of significant probative value ([16], [24]). Hughes informed the two-stage assessment of probative value and the risks of prejudice ([25]–[26], [29]). Bauer was cited for the proposition set out in that case about uncharged acts concerning the same complainant ([27]). The ACT Court of Appeal's Vojneski was the approach the judge expressly adopted ([15]). The judgment does not state that it changed or replaced those authorities; it applies them to the evidence in this application.
A temporal qualification matters. The judgment reproduces s 101(2) as it stood on 18 August 2020: prosecution tendency evidence could not be used against a defendant unless its probative value “substantially outweigh[ed] any prejudicial effect” ([9]). A footnote records that s 101 was amended with effect from 1 September 2020, so that s 101(2) referred to probative value outweighing the danger of unfair prejudice ([9] n 1). The decision was made before that commencement date, although the written reasons were issued later. The judgment does not analyse the operation of the amended provision or decide how it applies to other proceedings. Its stated balancing conclusion is expressly tied to the version identified as applying on 18 August 2020.
Accordingly, the case's useful contribution in the text supplied is its application of the then-applicable statutory test to a proposed tendency based on two alleged acts against the same complainant. It should not be read as deciding every issue that might arise under the amended provision, nor as a finding that the incidents occurred.
At [14], the Court says the prosecution had to establish relevance, significant probative value, and that probative value substantially outweighed prejudice. In plain English, satisfying the tendency rule alone was not enough: the prosecution also had to meet the additional criminal-proceeding restriction in s 101(2), as the judge understood it to apply.
At [19], the proposed tendency is stated with specific features: a sexual interest in the complainant and acting on it by masturbating his penis while lying together for the accused's gratification. This matters because the Court assessed the evidence against that particular formulation rather than an abstract tendency to commit sexual offences.
At [21], the judge says the two incidents were “capable of establishing” the asserted tendency. That is an admissibility assessment about their evidentiary capacity. It is not a finding that the complainant's account was true.
At [23], the judge says the tendency could inform a fact in issue, namely whether the accused engaged in sexual acts with the complainant. This connects the proposed tendency to a live question in the criminal proceeding.
At [28], the Court finds significant probative value. The supporting legal discussion at [24]–[27] explains the approach the Court used, drawing on IMM, Hughes and Bauer. The operative finding is brief and does not separately quantify the probative value of each incident.
At [32], the Court concludes that significant probative value substantially outweighed prejudicial effect and makes the orders. The practical result was permission to lead Incidents 1 and 2 as tendency evidence for Tendency 1, together with cross-admissibility of Counts 1–19. That result concerned what evidence could be adduced at trial; it did not determine the verdict.
The judgment is most directly relevant to a pre-trial application involving alleged sexual offences against one complainant, where the prosecution seeks to rely on alleged uncharged acts against that same complainant to support a specifically formulated tendency. The Court's reasoning addressed alleged earlier conduct that was said to show a sexual interest in the complainant and action on that interest in a particular setting ([10]–[11], [19]).
The fit is closer where the proposed tendency is linked to a fact in issue in the charged proceeding, as it was here: whether the accused engaged in sexual acts with the complainant ([22]–[23]). The ruling also concerns an application where the prosecution sought cross-admissibility across multiple counts ([7], [32]).
The judgment is not a general ruling that earlier allegations are always admissible, that similar evidence always has significant probative value, or that prejudice will always be outweighed. Its findings followed the particular tendency formulation, the two alleged incidents, the charged counts and the applicable statutory wording. The outcome may not transfer directly to cases with different evidence, different issues in dispute, different proposed tendencies, or a different statutory version. The judgment itself records the prosecution's withdrawal of a second tendency and a third incident, so its final orders do not determine the admissibility of those withdrawn matters ([6], [12]).
The supplied judgment does not identify any later cases that considered or applied R v Garay. On the material provided, it is not possible to describe how later courts have treated it, or to say whether they have followed, distinguished or questioned its reasoning.
The authorities that Garay itself cited are not later treatment of Garay. They are earlier cases used by Loukas-Karlsson J: Vojneski, IMM, Hughes and Bauer ([15]–[29]). Their role in this judgment was to inform the approach to relevance, probative value, tendency reasoning and prejudice. No subsequent judicial history or later citations are included in the supplied text. Any account of later treatment would therefore require sources beyond this judgment, and cannot be supplied on the source material here.
Several matters are left unresolved by the reasons. First, the decision concerns whether the evidence could be admitted, not whether the alleged incidents occurred. The judgment does not decide the credibility of the complainant or the weight a fact-finder should ultimately give the evidence.
Second, although the Court states that the evidence's probative value substantially outweighed prejudice, the reasons do not provide a detailed explanation of how each potential prejudice was weighed against each incident's probative value ([29]–[32]). The judgment records the prosecution's submissions, but does not set out a full evaluation of every submission or identify a separate finding on each risk.
Third, the judgment does not analyse the amended s 101(2) wording that took effect on 1 September 2020. It identifies the version applying on the hearing date and notes the later amendment ([9] n 1). The effect of that change in other proceedings is not decided here.
Fourth, the judgment's order concerns the cross-admissibility of Counts 1–19 in the terms stated at [32]. It does not set out a separate count-by-count analysis, or explain how the ruling might apply to evidentiary questions that emerge during the trial. Nor does it decide the use of Tendency 2 or Incident 3, because the prosecution withdrew them.
Finally, the written reasons state that they were not to be published, other than to the parties, until the trial was complete ([33]). The supplied text does not state the trial outcome or provide any later ruling about how the evidence was used.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: R v Garay
Citation: [2020] ACTSC 317
Hearing Date: 18 August 2020
Decision Date: 18 August 2020
Reasons Date: 30 November 2020
Before: Loukas-Karlsson J
Decision: See [32]
Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – admissibility of tendency evidence – child sexual offences
Legislation Cited: Crimes Act 1900 (ACT) ss 56, 65, 92E and 92K Evidence Act 2011 (ACT) ss 55, 97, 98, 100 and 101
Cases Cited: Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 247 CLR 300 The Queen v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 Vojneski v The Queen [2016] ACTCA 57; A Crim R 370
Parties: The Queen (Crown) John Paul Garay (Accused)
Representation: Counsel S Jerome (Crown) J Campbell (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers: SCC 117 and 118 of 2020
LOUKAS-KARLSSON J:
Introduction
The prosecution in this matter sought a pre-trial ruling on the admissibility of tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT) (Evidence Act).
The accused is charged with the following offences allegedly committed between 28 January 1986 and 5 December 1988 against a single complainant aged between 12 and 14 years old: (a) One count of maintaining a sexual relationship with a young person, contrary to s 56 of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 25 years’ imprisonment.
(b) Two counts of sexual intercourse with a young person, contrary to s 92E of the Crimes Act. The maximum penalty for this offence is 14 years’ imprisonment.
(c) 16 counts of acts of indecency with a young person, contrary to s 92K(2) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment.
In addition to the above charges, the accused has pleaded guilty to one count of possession of child exploitation material, contrary to s 65 of the Crimes Act. This charge has been committed to the Supreme Court for sentence and is not the subject of the current application.
The prosecution sought to adduce evidence to demonstrate the following tendencies:
(a) Tendency 1: A tendency to have a sexual interest in the complainant and to act on that sexual interest by masturbating the complainant’s penis when laying down together for his own sexual gratification.
(b) Tendency 2: A tendency to have a sexual interest in teenage boys and act on that sexual interest by lying in his bed with the teenage boy and engaging in sexual activity with them for his own sexual gratification.
(a) Incident 1: The Flowerdale Road Incident;
(b) Incident 2: The Webster Road Incident; and
(c) Incident 3: The Wanniassa House Incident.
At the hearing on 18 August 2020, the prosecution indicated that Tendency 2 was no longer relied upon, and the application in that respect was withdrawn. It was further indicated that Incident 3 was no longer relied upon and the application in that respect was similarly withdrawn.
The prosecution additionally sought an Order that the evidence in relation to each count on the indictment and the incidents referred to in the prosecution’s tendency notice is cross-admissible as tendency evidence, so that the evidence relating to each charge is admissible as proof of each other charge on the indictment.
Relevant Legislation
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 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. 1
101 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.
Tendency Incidents
Incident 1: The Flowerdale Road incident
Incident 2: The Webster Road incident
1 Section 101 has since been amended, with effect from 1 September 2020. Section 101(2) now reads: “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 outweighs the danger of unfair prejudice to the defendant”. out). The complainant and accused did not speak about the incident. They finished watching the movie and the accused drove the complainant home.
Tendency Application
As stated above, at the hearing, the prosecution withdrew the application in respect of Tendency 2, which related to Incident 3.
Following the amendment of the application, counsel for the accused did not oppose the application by the prosecution to rely on Incidents 1 and 2 to demonstrate Tendency 1, if the Court determined that the evidence meets the legislative threshold (T 2.33-41).
In order to succeed in the application, the prosecution must establish the following:
(a) That the evidence is relevant under s 55 of the Evidence Act;
(b) That the tendency evidence has significant probative value pursuant to s 97 of the Evidence Act; and
(c) That the probative value of the tendency evidence substantially outweighs any prejudicial effect.
Relevance: s 55 of the Evidence Act
In order to determine the relevance of the evidence the subject of the tendency notice, the court must first consider the threshold issue of relevance. At this stage of the enquiry, “it Is necessary to identify the purpose or purposes for which the evidence is tendered”: IMM v The Queen [2016] HCA 14; 247 CLR 300 at [37] (IMM).
The evidence the subject of the tendency notice is sought to be adduced to show that the accused has the tendency to think and act in relatively distinctive or particular ways. As summarised by Gageler J in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [70] (Hughes), the purpose of the prosecution seeking to adduce the evidence contained in the tendency notice is to draw upon the inferential reasoning of tendency evidence:
Tendency evidence is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.
The first question on relevance is whether the prosecution has identified a s 97 tendency.
The prosecution sought to adduce evidence that the accused had a tendency to have a particular state of mind and to act in a particular way, namely a tendency to have a sexual interest in the complainant and to act on that sexual interest by masturbating the complainant’s penis when laying down together for his own sexual gratification.
The prosecution has identified a s 97 tendency.
The next question is whether the events are capable of establishing the asserted tendency. In my view, Incidents 1 and 2 are capable of establishing the asserted tendency.
The third question is: what are the relevant “facts in issue” in the proceedings? In this case, whether or not the accused engaged in sexual acts with the complainant is a fact in issue.
The final question on relevance is, if the fact finder accepted that the tendency incident occurred and demonstrated the asserted tendency, could the tendency inform a fact in issue? I accept that the tendency could inform a fact in issue in this case. In my view, this is self-evidently clear.
Significant Probative Value of the Tendency Evidence: s 97 of the Evidence Act
[46] Cross on Evidence suggests that a “significant” probative value is a probative value which is “important” or “of consequence”. The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding. … [64] The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue…
In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself and 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.
In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.
Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
Whether the probative value of the evidence substantially outweighs any prejudicial effect: s 101 of the Evidence Act
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.
The prosecution submitted that the evidence sought to be adduced is not of a quality or nature that would present a real risk that a jury might act improperly, such as being aroused to horror or an instinct to punish. Secondly, the prosecution submitted that there is no “solid basis” to suggest that there is a real risk that the jury would misuse the tendency evidence sought to be adduced.
In relation to the balancing exercise required by s 101, the prosecution submitted that “tendency evidence is not viewed in a vacuum”. It was therefore submitted that, in circumstances where the accused has maintained his right to silence and the critical issue in the trial is whether the conduct occurred, the tendency conduct of the accused takes on great significance.
Conclusion & Orders
(a) The prosecution is permitted to adduce tendency evidence in relation to the cross-admissibility of Counts 1-19 in the Indictment.
(b) The prosecution is permitted to lead as tendency evidence Incidents 1 and 2 as outlined in the Notice of Intention to Adduce Tendency Evidence dated 10 August 2020.
(c) The tendency is outlined as Tendency 1 in the Notice to Adduce Tendency Evidence dated 10 August 2020. 33. I note that these reasons are not to be published, other than to parties, until the accused’s trial is complete.
I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.
Associate: L Skinner
Date: 30 November 2020
R
Garay [2020] ACTSC 317
The prosecution was permitted to adduce Incidents 1 and 2 as tendency evidence for Tendency 1 and to rely on cross-admissibility of Counts 1–19. Tendency 2 and Incident 3 were no longer pursued. The Court found the remaining evidence relevant, of significant probative value, and with probative value substantially outweighing prejudicial effect ([6], [12], [32]).