R v Martin

IN THE COURT OF CRIMINAL APPEAL CCA 60681/98 FITZGERALD JA SMART AJ IRELAND AJ Friday, 25 August 2000 REGINA v SHAYNE WALTER MARTIN JUDGMENT 1 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Ireland AJ. 2 The only matter which I find it necessary to discuss concerns the evidence of Ms M which was, as the prosecution no doubt intended, highly prejudicial to the appellant. It helped to present him to the jury, correctly if Ms M and the complainant told the truth, as a menace to women. The sentence which he received for the offences of which he was convicted was extraordinarily lenient. 3 Each of the 3 offences with which the appellant was charged involved 2 elements, namely (a) penetration of the complainant's genitalia (b) without her consent to the appellant doing so. The prosecution accepted that, in the circumstances, it was required to prove not only that the complainant did not consent but that the appellant did not believe that she was consenting. It was sufficient for the prosecution to prove that the appellant did not care whether the complainant consented, or knew that she might not be consenting, to him penetrating her genitalia in the ways which he did. 4 The complainant's evidence was that, after earlier staring at her and her boyfriend as they lay on her bed, subsequently approaching the complainant at a social function and then an hotel, and later approaching her from behind and hugging her, the appellant entered her bed while she was asleep. She awoke to find the appellant (who she thought was her boyfriend) in the middle of her bed rubbing her upper thigh. Increased sexual activity followed, including acts of penetration with the appellant's finger, then tongue, then penis. The complainant then became aware that the person engaging in such activity was not her boyfriend and ordered the appellant to leave. When he did not do so immediately, she left and, when he tried to follow her, slammed a door on his hand. 5 It was material to whether there was a rational possibility that the appellant might have believed that the complainant was consenting to him penetrating her genitalia that she appeared to be a willing participant in the sexual activity in which he engaged. Other circumstances which were relevant were the appellant's knowledge that the complainant had a boyfriend with whom she had earlier had some sexual contact, her earlier rejections of the appellant and the fact that she was asleep when he entered her bed. 6 Ms M's evidence was that, shortly before the appellant's alleged sexual offences against the complainant, he made sexual advances towards Ms M and, later, after she was asleep, touched her inside her underwear between her legs in the area of her vagina. Subsequently, he exposed himself to her and, later still, returned to her room once, and perhaps twice, and endeavoured to persuade her to permit him to enter her bed but was rebuffed. 7 The trial judge admitted Ms M's evidence because of his view that it had ".. substantial probative value on the question of the state of mind of the [appellant] with regard to his belief in [the complainant's] consent." The basis for that view was his Honour's opinion that it was ".. highly probable that the [appellant's] state of mind when he did the first act [to Ms M] was his state of mind when he did the second act [to the complainant]". 8 The appellant has not complained about the trial judge's directions to the jury if Ms M's evidence was admissible but argued that her evidence should not have been admitted. As I understand the prosecution case, it accepted that Ms M's evidence was inadmissible unless it was made admissible by either s 97 of s 98 of the Evidence Act 1995 Cf R v Player 2000 NSWCCA 123. on the basis that it had "significant probative value" which substantially outweighed its prejudicial effect, as required by s 101(2) of the Evidence Act. Whether or not Ms M's evidence had significant probative value depended on "the extent to which the evidence could rationally affect the existence of a fact in issue". Evidence Act, 1995, s 3, Dictionary, Part 1 Definitions, "probative value". 9 While I agree with the trial judge's decision to admit Ms M's evidence, his Honour's reasons were too broadly stated. It is appropriate to insist on precision in this area because of the risk which evidence of other offences for which an accused person is not being tried presents to a fair trial. Ms M's evidence had significant probative value because of the extent to which it could rationally affect a specific issue, namely, whether the appellant cared whether the complainant consented to him penetrating her genitalia. That probative value was sufficient in the circumstances to justify the admission of Ms M's evidence despite its prejudicial effect. 10 Subject to the foregoing, I agree with the reasons for judgment of Ireland AJ. 11 I agree that the appeal should be dismissed. 12 SMART AJ: I agree with Ireland AJ that the appeal should be dismissed. I also agree with his reasons in respect of grounds 1, 2 and 7. I appreciate the force of the observations of Fitzgerald JA. I agree that the evidence of Ms M was admissible. It had significant probative value as it could rationally affect to an appreciable extent the existence of a fact in issue, namely, whether the appellant knew (or perhaps more accurately, did not care) that the complainant was not consenting to intercourse with him. 13 There is one further comment which I wish to make. With Ms M the appellant never reached the stage of digital, oral or penile penetration as he did with the complainant. The similarity of the conduct lay in getting into or onto her bed in a state of undress and touching her in the area of the vagina when she was sleeping or "semi-sleeping". Ms M stopped the appellant before he went further. With the appellant being naked in Ms M's bed and having an erect penis it was well open to the jury to conclude that the appellant was well on the way to having intercourse with Ms M and intent on doing so without troubling about whether she consented. That conclusion being open, the evidence in question was admissible. 14 If that evidence had only supported the conclusion of an indecent assault I would probably not have regarded the evidence as admissible. 15 IRELAND AJ: Shane Walter Martin, the appellant, was indicted before his Honour Judge Ducker in the District Court at Lismore on 15 June 1998 on three charges of sexual intercourse without consent of the complainant knowing that she was not consenting in contravention of s 61I of the Crimes Act, 1900. 16 The three offences allegedly occurred in the same confrontation between the appellant and the complainant on 15 May 1997 in a dormitory of a backpacker lodge at Byron Bay. 17 The maximum penalty for an offence under s 61I is imprisonment for fourteen years. 18 The appellant pleaded not guilty and was tried by his Honour Judge Ducker and a jury of twelve. The appellant was represented at trial by learned senior counsel of many years experience. He appeared without legal representation on his appeal. 19 On 22 June 1998, the jury returned a verdict of guilty to each count. The appellant was sentenced on the first count to a fixed term of three months imprisonment, on the second count to a fixed term of five months imprisonment and on the third count to a minimum term of six months imprisonment commencing on 22 June 1998 and expiring on 21 December 1998 with an additional term of two years and three months commencing on 22 December 1998 and expiring on 21 March 2001. As part of the sentence, conditions were imposed upon release on parole requiring the appellant to submit to and undergo such psychiatric, psychological and counselling or treatment as required by his parole officer, that upon release he reside with his mother and notify the District Court Registry of any change of address during the period of parole and that he not enter any backpacker's lodge or other place where male and female persons may be permitted to sleep in the same dormitory. 20 Not surprisingly, no complaint is made by the appellant as to the severity of the concurrent sentences which were imposed or the conditions of parole. 21 The facts relied upon by the Crown as establishing the charges and which the jury, by its verdict, found to be established include the following. 22 The complainant was a backpacker from Canada who booked into the Cape Byron Lodge at Byron Bay on Friday, 9 May 1997. The appellant booked in on the following Tuesday. He occupied the upper double bunk above that occupied by the complainant in dormitory No. 2. The complainant's boyfriend, a Mr Bedlow, had occupied a bunk in the staff dormitory which was No. 3. On the evening of Wednesday, 14 May, the complainant was lying on her bunk with her boyfriend when the appellant entered the room and, after some brief conversation, climbed onto his bunk saying that he was going to sleep. The appellant later got up and left the room but returned on a number of occasions putting his head around the door and then crouching down to look at the complainant and her boyfriend on the bed. At about 7.30pm, the complainant and her boyfriend got up, the complainant changed her clothes and they attended a social function at the Lodge. 23 At the function, the appellant approached the complainant on a number of occasions. The complainant said that she would walk away when this occurred. The appellant made several comments to the complainant during the evening and later the group moved to the Railway Hotel at Byron Bay. On one occasion, the appellant approached the complainant from behind and gave her a hug. She said that she gave him a look that showed him that she did not want him to be hugging her and she moved slightly away. 24 The complainant and her boyfriend went to a nightclub before returning to the Lodge where they went first to the boyfriend's room and laid down on his bunk. They later moved to the complainant's dormitory where she said they started kissing and "fooling around a little bit" but she said she felt awkward because there were other people in the room and so her boyfriend left so she could go to sleep. 25 The complainant changed into her leggings and a tank top, pulled her sleeping bag over her and fell asleep. She awoke to find someone (the appellant) sitting in the middle of her bed rubbing her upper thigh. The complainant said that she believed this to be her boyfriend but she did not look and nothing was said. The appellant then started rubbing her vagina on the outside of her underwear. The appellant then kissed her on the side of her mouth and put his hand inside her pants and put his fingers into her vagina. This is the offence alleged in count 1. 26 The complainant said the appellant then lifted up her tank top and started to kiss her breasts and her stomach. The appellant removed her leggings and underpants and then commenced to kiss the complainant's vagina. The complainant said that she could feel the appellant's tongue inside her vagina. This is the conduct alleged in count 2. The complainant said that she was beginning to wake up but was not yet fully awake. The complainant then said that the appellant moved and placed his penis in her vagina. This is the conduct alleged in count 3. 27 The complainant gave evidence that the appellant pushed himself inside her a few times but did not ejaculate. She then placed her hands on his bottom and became aware that the appellant was wearing briefs and not boxer shorts as worn by her boyfriend. She realised then that it was not her boyfriend, opened her eyes for the first time and saw that it was the appellant. The complainant ordered the appellant to get out of her bed and gave him a push. The appellant rolled over next to her. She told him once more to get out of her bed. The complainant gave evidence that she then panicked, grabbed her leggings and put them on as quickly as she could and ran out of the room. The appellant tried to follow her out of the room but she slammed the door on his hand. 28 The complainant went into the staff bedroom and sat on her boyfriend's bed and started to cry. Some minutes later, Ms Nathasha Cartwright and Sven Berggren came into the room and attempted to speak to the complainant who said that she could not answer as she was still crying and feeling very panicked. She went into the bathroom where the complainant eventually told Ms Cartwright that the appellant had come into her bed and kissed her. Shortly after that, the complainant told Ms Cartwright that the appellant "came into my bed and I thought he was Simon and he kissed me and then he kissed me down further and he kissed the outside of my vagina and then he put himself in me". The police were called and the complainant stayed in the bathroom until Senior Constable Murphy came to speak to her. 29 In her evidence, Ms Cartwright described events confirmatory of the complainant's evidence and identified the appellant as being the person involved. 30 Ms Cartwright also gave evidence of seeing the appellant come out of the complainant's bedroom at about 1.45am that morning wearing only his underpants. She went to the staff room to prepare for bed and it was then that she heard the complainant sobbing. 31 The appellant was confronted by Mr Berggren and at that time was asked by Ms Cartwright whether he knew what he had done was wrong to which he replied, "yeah, yeah" (T 109). The appellant, when asked what had happened, at first refused to answer but finally said to Mr Berggren, "I want to have sex with a girl and she said no and I don't care I couldn't be bothered" (T 123). 32 They were joined in the courtyard where this conversation had taken place by Mr Nathan Crosse who also said to the appellant that he was trying to find out what had happened in view of the fact that the complainant was very upset. The appellant responded to his enquiry, "Oh nothing happened man, nothing happened" (T 134). When told by Mr Crosse that the police would have to be called the appellant became angry and looked nervous and extremely uncomfortable. 33 Following his arrest and due warning, the appellant made a number of statements to police and also entered into an ERISP (Exhibit "B"). These statements and the ERISP give conflicting versions of events as to whether or not sexual intercourse had taken place between the appellant and the complainant. 34 The appellant permitted a blood sample to be taken. The analyst's report tendered by the Crown established that the appellant's DNA profile was not detected on any of the swabs taken from the complainant. 35 The appellant relied upon a twenty-six page written submission in which he identifies several grounds of appeal. At the hearing of the appeal he also made oral submissions.

Ground 1 - The evidence of Ms Beilby 36 The appellant contends that the evidence of the forensic scientist, Vivien Beilby, was withheld from the jury in that her statement was tendered and, it is said, "thus preventing the defence from rebutting the allegation that in fact there was no digital or penile penetration between the defendant and the complainant as alleged by the complainant" (sic). 37 The transcript discloses that the statement of Ms Beilby was tendered with the consent of experienced senior counsel who appeared for the appellant at the trial. The thrust of Ms Beilby's evidence was that the forensic samples forwarded to her, which included the blood sample of the appellant and the vaginal swabs from the complainant, disclosed that the DNA profile of the appellant did not match the analysis of the swabs. Accordingly, the evidence was favourable to the appellant. 38 It is clear that there was no further advantage to be gained by cross-examining Ms Beilby who could do no more than express her opinion based upon the material provided to her. 39 The further suggestion is made by the appellant that additional samplings from the appellant's fingernails and penis may have been able to shed some light on the question of whether or not there was digital and penile penetration by him of the complainant. Such testing was not the subject of evidence at the trial and the possible efficacy of such samplings is, as has been submitted by the Crown, not common knowledge. No such procedures were contemplated by any witness at the trial and, had the matter been raised, it could only have led to impermissible speculation on the part of the jury. 40 The further complaint made under this ground is that the evidence of Senior Constable Murphy and Ms Matilda Alton was also "withheld". This evidence was also not of a contentious nature but, in any event, the statements were read to the jury by consent. This ground is not made out.

Ground 2 - Counsel's alleged incompetence 41 The appellant alleges that his counsel was grossly incompetent in failing to cross-examine the witnesses, Richard Stephen Laszlo and Cathrine Bugge Aaroe, on an important issue. 42 It is clear from a reading of the statement of Mr Laszlo that the passage relied upon by the appellant as indicating a disagreement between the complainant and her boyfriend, Mr Bedlow, is not borne out when the words "I believed" are reintroduced into the sentence. 43 It is plain enough that the evidence of Mr Laszlo was not critical to the Crown case and does no more than explain why he took no active interest in the events which he heard due to his mistaken belief that the conversation he overheard was taking place between the complainant and her boyfriend. 44 Ms Aaroe made a statement and also gave evidence in the trial. She was cross-examined by senior counsel for the appellant. It is not clear how any additional mileage could have been made out of the evidence of Ms Aaroe in favour of the appellant when the contents of her statement are considered. This ground is also not made out.

Ground 7 - Judge's frequent interjections 45 This ground was not developed in submissions or in oral argument. 46 A reading of the transcript makes plain that, during the giving of evidence, the extent to which his Honour participated was restrained and entirely appropriate. Legal argument in the absence of the jury was conducted in the usual way. There is no warrant for criticism of the conduct of the trial judge in any way whatsoever. 47 This ground is rejected. 48 During the course of the oral submissions on appeal, the appellant raised a further ground alleging that the evidence of the witness, Ms M, was highly prejudicial and should have been excluded from the trial. 49 Ms M gave evidence that she was a tourist from Holland who had arrived in Australia in about April/May 1997 with the intention of backpacking in this country for about a year. She was, at that time, aged 23 years. She checked into the Cape Byron Lodge on Wednesday, 14 May and was allocated a bunk in dormitory No. 6 which was also occupied by some five other girls. 50 On the evening of 14 May, Ms M said that she met and spoke to the appellant for about an hour and a half and that he was one of the group with whom she walked back to the hostel at about 1.00am. During the walk, the appellant tried to hold Ms M's hand and previously had touched her in a manner to which she objected. 51 The appellant made further advances to Ms M upon arriving back at the hostel, however, she again rebuffed him, retired to bed and went to sleep. Some time later, she awoke to an awareness that a male person was in bed with her touching her "between the legs". She described this touching as being in the area of her vagina. This male person was naked and had an erect penis. The touching she described was inside her underwear. 52 Ms M said that she got out of her bed and went to the toilet. She recognised the male person as the appellant, who followed her to the toilet. He was still naked and his penis was erect. He followed the witness back to her dormitory and sat on her bed. She told him to, "Put your clothes on and go away". He responded, "I only want to lay in your bed". The appellant put on some of his clothing and left the room, but returned on one or two occasions when Ms M was still awake. She said "…he wanted to go - come in bed with me again". He was wearing "dark", "short", "close" underpants. 53 The appellant was told by the witness to, "Go on I don't want you here and just leave". When another resident (who also gave evidence) came into the room, she also told the appellant to leave and when he did so she locked the door. 54 The admissibility of this evidence was considered and ruled upon by the trial judge prior to the commencement of the trial. In his reasons for judgment delivered on 15 June 1998, Judge Ducker said, at pp 1-2:- "The evidence which is sought to be adduced here is evidence relating to an earlier incident involving another girl in the hostel in which the accused and the complainant were both at the time staying. The incident in question occurred some approximately fifteen minutes to half an hour before the incidents which have given rise to the present charges, and consisted of the accused, whilst naked, getting into bed with a girl whom he had only met that night, and touching her between the legs. The particular proximity in terms of time and place I believe create a great deal of relevant similarity, and show a relevant tendency. It is highly probable that the accused's state of mind when he did the first act was his state of mind when he did the second act, in my view, based upon the evidence relied upon by the prosecution.

I am, of course, mindful that there will be a sharp issue of fact between the evidence of the complainant, as foreshadowed by the learned Crown Prosecutor and the defence, to be raised by the accused, as foreshadowed by his learned counsel. But it seems to me that this evidence does fall within s 98 of the Evidence Act of 1995. Insofar as the notice given does not comply with the provisions of reg 6(3), pursuant to subs 100(i) and (ii) (sic) of the Evidence Act I hold that the tendency rule and the coincidence rule are not to apply to evidence of the events involving the witness whom I have described, that is the other person who was touched by the accused shortly before. It seems to me that those events occurred in what I find to be substantially and relevantly similar circumstances at the same premises within a very short space of time. I am of the view that this evidence has substantial probative value on the question of the state of mind of the accused with regard to his belief in consent, an issue in which an onus rests upon the Crown to prove beyond reasonable doubt that the accused did not have a belief in consent by the complainant. It seems to me that this is highly probative evidence on that important issue, which seems likely to be the most, if not the most, then certainly one of the two, principal issues in the case. The other of course being whether in fact the girl did consent." 55 His Honour went on to find that there was no relevant prejudice to the accused, expressing his view that:-

"Looking at the situation realistically, it does, because of the proximity of place and time between the events in question seem to be able to be properly regarded as part and parcel of the same course of conduct on the part of the accused." 56 His Honour concluded by saying:- "Pursuant to subs (101)(ii) (sic) I find that the aforesaid tendency evidence and coincidence evidence substantially outweighs any prejudicial effect that it may have upon the accused." 57 Section 97 of the Evidence Act, 1995 relevantly 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, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or

(b) the court thinks that the evidence would not, 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) ... 58 Section 98 relevantly provides:- 98 The coincidence rule (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence, or (b) the court thinks that the evidence would not, 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) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and

(b) the circumstances in which they occurred are substantially similar. (3) ... 59 The tendency and coincidence provisions of the Evidence Act are intended to cover the field previously occupied by the common law relating to propensity and similar fact evidence. However, it is permissible to turn for guidance to the pre-existing case law when applying the relevant provisions of the Evidence Act: see Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171. 60 Effectively, s 97 ("the tendency rule") and s 98 ("the coincidence rule") followed the common law approach in that each section has a general exclusion of evidence of the kind mentioned but permits such evidence to be adduced if the specified conditions are fulfilled. There is necessarily an overlapping between the evidence covered by the two rules. 61 The tendency rule applies to evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, in order to prove that a person has or had a tendency (whether because of his or her character or otherwise) to act in a particular way, or to have a particular state of mind. 62 The coincidence rule, however, applies to evidence that two or more related events occurred in order to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind. Subsection (2) of s 98 requires that events are related events only if they are substantially and relevantly similar and the circumstances in which they occur are substantially similar: see Perry v The Queen (1982) 150 CLR 580. 63 Under both rules, reasonable notice must be given of the intention to adduce such evidence. In the present case, notice was given and no point was taken by learned senior counsel for the appellant at the trial that the notice given was inadequate. 64 What may be said to be the acid test for the admission of evidence under each of the rules is that the Court must be satisfied that the proposed evidence would, 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 (s 97(1)(b); s 98(1)(b)). 65 In Pfennig v The Queen (1995) 182 CLR 461, the High Court, at pp 482-483, said this:- "Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused ... Here 'rational' must be taken to mean 'reasonable' … and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle."

See also Hoch v The Queen (1988) 165 CLR 292. 66 Probative value of evidence is defined in the dictionary to the Evidence Act as meaning, "… the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". 67 In R v Lockyer (1996) 89 ACrimR 457 at 459, it was held that "'significant' probative value must mean something more than mere relevance but something less than a 'substantial' degree of relevance". The use of the word "significant" in the sections mandates that the evidence must be of importance or of consequence. 68 Learned counsel for the Crown submitted that the evidence in question had added relevance in that it could be relied upon to meet the contention of the appellant in his video taped record of interview that he did not intend that night to have sexual intercourse with anyone, in particular the complainant, but merely sought some company. Hence the evidence of Ms M went directly to his state of mind in adopting, within a very short space of time, the identical modus operandi of getting into bed with a sleeping young woman, who had earlier rebuffed his advances, intent upon sexual gratification to the extent experienced by the complainant, albeit in her state of mistaken belief as to his identity, his state of mind being at least recklessly indifferent as to whether she was consenting, these considerations having precise application to both the complainant and the witness Ms M. I accept the force of this submission. 69 The trial judge in his reasons for judgment makes it sufficiently plain that he took into account the relevant principles of law and applied the appropriate tests. His decision to admit the evidence of the witness, Ms M, was correct. 70 This ground of appeal also fails. 71 I would propose that the appeal be dismissed. **********

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