R v GG [2017] ACTSC 12

Supreme Court of the ACT|2017-02-10|Before: Burns J

The Crown's application to lead the tendency evidence is refused. Counts 1, 2 and 3 on the indictment are to be severed from the indictment and a separate trial will be had on those Counts.

CRIMINAL LAW - Particular Offences - offences against the person - sexual intercourse without consent - sexual intercourse with lineal descendant - act of indecency

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - application to adduce tendency evidence - whether the evidence has significant probative value - whether the probative value of the evidence is outweighed by potential prejudicial effect - application refused.

EVIDENCE - Judicial Discretion to Admit or Exclude Evidence - application to sever the indictment - where complainants are known to each other - permitted to sever indictment.

De Jesus v The Queen [1986] HCA 65; 68 ALJR 1

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

R v Bullen [1998] 4 VR 621

R v Tully (No. 1) [2013] ACTSC 127

SCC 165 of 2015; SCC 166 of 2016; SCC 148 of 2016; SCC 149 of 2016

1. By an application in proceedings, undated but filed on or about 16 November 2016, the Crown seeks to be permitted to adduce evidence that the accused had certain tendencies at his trial for alleged sexual offences against his niece IT, and his daughter UG.

2. The indictment presented by the Crown contains 14 Counts. Counts 1 and 2 allege sexual offences against IT in the period 1 December 2012 to 4 March 2012. Count 3 alleges that the accused assaulted IT occasioning her actual bodily harm. Counts 4 to 7 and 9 to 14 allege sexual offences against UG in the period from September 2012 to December 2015. Count 8 alleged that the accused assaulted UG occasioning her actual bodily harm.

3. The grounds of the application are expressed as follows:

(a) A fact in issue at the trial will be whether the accused engaged in the conduct alleged... The allegation is that the accused committed various sexual acts on each complainant, including having penile vaginal sexual intercourse with each of them, forcing them to perform fellatio on them [sic, semble him] in circumstances where they were frightened of him, subject to threats from him and/or felt they could not resist.

(b) The accused's tendency to act in particular ways and have particular states of mind as set out in the Notice of Intention to Adduce Tendency Evidence is relevant to the facts in issue in the trial and further [the] productive value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

4. The Notice of Intention to Adduce Tendency Evidence (the Notice) sets out the allegation made by the Crown with respect to each of the 14 Counts on the indictment. In addition, it refers to four uncharged acts, as well as an allegation of property damage relevant to a charge of intentionally causing damage to a mobile phone transferred to this Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT).

5. The tendencies that the Crown seeks to prove by the proposed tendency evidence, as expressed in the Notice, are:

(a) A tendency to have a particular state of mind, namely:

6. The accused opposes the Crown's application to lead tendency evidence, and by an application of his own dated 23 November 2016 seeks an order that the tendency evidence not be admitted at his trial, and an order severing Counts 1, 2 and 3 from the indictment and that a separate trial be ordered with regard to those Counts.

7. The relevant statutory provisions are s 97 and s 101 of the Evidence Act 2011 (ACT) (the Evidence Act):

(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.

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.

8. In my opinion, the Crown application should be refused, and the orders sought by the accused should be made.

9. With regard to the first two uncharged acts and the transfer matter of damaging property, the only evidence of the occurrence of these events to be adduced by the Crown comes from the complainant IT. I am not satisfied that the evidence will therefore possess significant probative value, as required by s 97 of the Evidence Act: see IMM v The Queen [2016] HCA 14; 330 ALR 382 (IMM v The Queen) at 394.

10. Turning to the charged acts against the accused, involving alleged offending against two separate complainants, the Crown seeks to lead the evidence with regard to each Count as evidence with regard to the other Counts, and to lead evidence from each complainant as relevant to the Counts concerning the other complainant.

11. The tendencies alleged by the Crown relating to the accused's state of mind, to be sexually attracted to each of the complainants, on their face raise what has long been referred to as "guilty passion" i.e. that the evidence establishes that the accused was sexually attracted to, in the present case, his niece and daughter. If that were as far as the matter went, it is difficult to see how a proven tendency on the part of the accused to be sexually attracted to IT could have significant probative value in establishing that the accused had committed the charged offences against UG, and vice versa. The written submissions filed by the Crown, however, make it clear that the Crown case is that there were similarities between the alleged offences with respect to each of the complaints that give the proposed tendency evidence significant probative value. The similarities identified by the Crown, as distilled by me, appear to be:

(a) each had been subject to physical assault by the accused other than in the alleged offences;

(d) the accused exhibited jealous or controlling behaviour towards each of the complainants.

12. In support of its application the Crown referred to a number of reported decisions. In R v Ford [2009] NSWCCA 306; 273 ALR 286 (R v Ford), Campbell JA said, in addressing the meaning of "significant probative value", at 316:

In my view there is no need for there to be a "striking pattern of similarity between the incidents". All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged.

13. The Crown relied on R v Ford not only to establish that a striking pattern of similarity between events was not required to give proposed tendency evidence significant probative value, but also as an example of a case where evidence was admitted to establish that the accused had a tendency to sexually assault young women who were guests in his home although the sexual acts alleged were not the same in each case. It is important to note in that regard that the tendency alleged by the Crown in R v Ford was expressed with a high degree of particularity, being a tendency to sexually molest young women who had stayed at his house after attending a party, who had consumed significant amounts of alcohol, who were asleep, and where there was a risk of being discovered by others in the house.

14. The Crown also referred to R v Smith [2008] NSWCCA 247; 190 A Crim R 8 (R v Smith), as a case where evidence of the accused's prior conviction for sexual assault committal on two other children was admitted as tendency and coincidence evidence notwithstanding that the acts alleged were not the same. I observe that each of the complainants/victims in R v Smith were apparently pre-pubescent female children.

15. In truth, R v Ford is an example of a case where the evidence revealed a modus operandi of offending, which was considered to have significant probative value. The case of R v Smith was one where the significant probative value of the evidence was found in the nature of the victims, being pre-pubescent female children. As I said in R v Tully (No. 1) [2013] ACTSC 127 at [43]:

Both the tendency to be sexually attracted to female children and the tendency to act on that attraction, are sufficiently extraordinary to possess significant probative value in assessing whether an accused has committed an alleged sexual offence on a female child: R v Johnston (2012) 6 ACTLR 297.

16. In the present case, the complainant UG was between 13 and 16 years old at the time of the alleged offences concerning her, and the complainant IT was 18 years of age at the time of the alleged offences against her. While both may be described as young females, there is nothing particularly probative in establishing that an offender has a tendency to be sexually attracted to sexually mature females, such as IT (leaving aside other considerations for the present). Whether a tendency on the part of a male to be sexually attracted to a physically sexually mature female who is under the legal age of consent has significant probative value in establishing that an accused has committed a sexual offence against another female of a similar description is a difficult question, and one which does not need to be resolved in these proceedings. It is sufficient to note that the physical characteristics of the two complainants do not justify a finding that the proposed tendency evidence has significant probative value.

17. I accept that the four circumstances of similarity referred to at [11] above give the proposed tendency evidence significant probative value. The question, therefore, is whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

18. Cases of alleged sexual offending "are peculiarly likely to arouse prejudice": De Jesus v The Queen [1986] HCA 65; 68 ALJR 1 at 4. As I said in R v CX [2016] ACTSC 106 (R v CX) at [41]:

There is always a danger of unfair prejudice to an accused where separate complainants give evidence of alleged sexual offending against the accused in the course of a single trial. The predominant danger is that the jury will misuse the evidence by reasoning that the accused must be guilty if multiple complaints by multiple complainants are tried together.

19. In the present case there are features of the allegations that are particularly likely to elicit prejudice or an emotional response from a jury. The charges involving UG effectively allege offences of an incestuous nature, and the charges involving IT also involve allegations of sexual offending against a close relative. The community rightly considers such conduct to be abhorrent, and such allegations will frequently invoke a desire to punish.

20. In assessing whether the probative value of the proposed tendency evidence substantially outweighs its potential prejudicial effect, the accused submitted that I should take into account the possibility that the complainants have concocted the allegations between them, or that, in the alternative, IT's evidence is unreliable due to potential contamination by discussions with UG. Based upon the decision of the High Court in IMM v The Queen I determined in R v CX that allegations of concoction or contamination are not relevant to determining the probative value of evidence for the purposes of s 97 of the Evidence Act. I noted, however, that the decision in IMM v The Queen left open the question whether possible concoction or contamination of evidence, making the evidence unreliable, may be a factor taken into account in determining the prejudicial effect of evidence. The accused submitted that the possibility of concoction or contamination of the complainants' allegations should be taken into account when determining the potential prejudicial effect of proposed tendency evidence.

21. I make two observations with regard to this submission. First, at the present time all that can be said is that there is a possibility of concoction or contamination by reason of the relationship of the complainants and their contact with each other. This, of course, may change when the complainants are cross-examined when they give their pre-trial evidence, but at the present time there is no real evidence of concoction or contamination. Secondly, cases such as IMM v The Queen and R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 emphasise the proposition that ordinarily questions of the reliability of evidence and the credibility of witnesses are for the jury to determine. In making this second observation, I do not mean to suggest that such issues may never be taken into account in determining the potential prejudicial effect of evidence for the purposes of s 101 of the Evidence Act. There may be cases where concoction or contamination is admitted, or must inevitably be inferred from the evidence, but the present case is not such a case at this time.

22. It is in the nature of applications such as the present that they fall to be determined prior to the trial itself and the adducing of the relevant evidence. A jury, having heard all of the evidence, may conclude that the evidence is unreliable or the witnesses not credible, but in such a case the jury is not likely to convict.

23. The balancing exercise required by s 101 is difficult because the two comparators are incommensurables. The essence of the process is, I believe, that the probative value of the evidence is so significant, that it justifies the admission of the evidence no matter what potential prejudice may flow to the accused.

24. In the present case the proposed admission of the evidence concerning each complainant with regard to those charges concerning the other complainant will inevitably be highly prejudicial, for the reasons I have identified. I am not satisfied that the probative value of the tendency evidence substantially outweighs its potential prejudicial effect on the accused.

25. I am not satisfied that the potential prejudice to the accused by admitting the proposed tendency evidence can be eliminated or sufficiently ameliorated by jury directions. I respectfully adopt what was said by Callaway JA in R v Bullen [1998] 4 VR 621:

At least some sexual offences, and particularly those of an unnatural or repellent character like offences against young children, are peculiarly likely to arouse prejudice. The law cannot shut its eyes to the facts of life. Moreover, although criminal trials are generally conducted on the assumption that a jury will comply with the judge's directions, it is acknowledged in the authorities that warnings about propensity evidence are not always effective. A blind and unquestioning faith in the efficacy of judicial warnings would lead to the conclusion that severance should never be ordered on account of prejudice, because any prejudice at all could be overcome by judicial instruction. No one supposes that that is so.

26. I am satisfied that the Crown's application to lead the evidence of each complainant as tendency evidence with regard to the charges concerning the other complainant should be refused. Counts 1, 2 and 3 on the indictment are to be severed from the indictment and a separate trial will be had on those Counts.

27. I have not been required to rule upon whether the evidence of each complainant regarding each offence in which they are the alleged victim will be admissible as tendency or relationship evidence with regard to all Counts concerning that complainant in the separate trials. Nor have I been required to determine whether evidence of the uncharged acts relating to each separate complainant referred to in the Notice should be admitted as relationship evidence in the separate trials.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

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