R v Sumpton

ADMISSIBILITY OF TENDENCY EVIDENCE IN NEW SOUTH WALES 6For tendency evidence to be admissible the evidence must have "significant probative value", either by itself or having regard to other evidence adduced or to be adduced by (in this case) the prosecution: s 97(1)(b) Evidence Act. 7Further, because these are criminal proceedings and the evidence is sought to be adduced by the prosecutor, the evidence cannot be used against the accused "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused": s 101 Evidence Act. 8The dictionary to the Evidence Act says that the "probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". 9In New South Wales, an assessment of probative value does not encompass matters going to the reliability of the evidence or the credibility of the witnesses providing it: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [60]-[68]. The Victorian Court of Appeal had described the approach in R v Shamouil and other New South Wales cases as "manifestly wrong" and declined to follow it: Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 at [63]. In R v XY [2013] NSWCCA 121, a majority of the NSW Court of Criminal Appeal determined that R v Shamouil remained the law of New South Wales. Unless the High Court resolves the issue to the contrary, or the Court of Criminal Appeal reverses its decision in a subsequent case, trial Judges in this state are bound to follow the approach in R v Shamouil and R v XY. The conflict in the authorities is subject to a thorough and interesting analysis in Odgers' Uniform Evidence Law (11th Edition, 2014) at [1.3.14760].

THE TENDENCY EVIDENCE IN THIS CASE 10The evidence comes from three sources and is quite different and diverse in its detail. The common feature is the reference to "Asian" women or women of Asian appearance. There is no evidence to suggest any connection between those sources such that the probative value of the evidence (assuming it has any) is diminished by the reasonable possibility that there has been some form of joint concoction or collaboration between the witnesses: see Hoch v the Queen [1988] HCA 50; 165 CLR 292, Pfennig v The Queen [1995] HCA 7; 182 CLR 461, AE v The Queen [2008] NSWCCA 52 at [44]; BSJ v The Queen [2012] VSCA 93. 11The first source of the evidence is the accused's ex-partner Alexandra Beeching-Marshall. The part of her statement identified in the Amended Tendency Notice is as follows: "52. When we were on speed Andrew had an interest in watching Asian porn. Different types of porn but particularly Asian porn. It became habit for him to put Asian DVD porn on the t.v. Andrew owned five Asian DVDs porn video's. We had several other porn DVD's but he always wanted the Asian DVDs. Andrew had a particularly favourite shop selling pornography and adult toys in Brisbane that he would take me to about four or five occasions. That was his favourite shop it was called Kaos I don't recall the suburb name where it was. 53. Andrew had introduced the 'porn' into our relationship he would buy toys and other adult items from the store. I bought some items on line as well. 54. Sometimes watching the Asian porn made me a bit self conscious, because we watched so much Asian porn they were all skinny girls. I'm a bit larger." 12The Crown also relies on other parts of Ms Beeching-Marshall's statement but does not seek to use those parts as evidence of tendency. I understand that there may be a separate objection to other parts of her evidence. 13The second source of the tendency evidence comes from a neighbour of the accused Darius (Dave) Ohlsen. The relevant part of his statement is in paragraph 13: "I don't know if this is relevant but I wanted to add that since I have known Andrew he told me he had gone down to Newcastle and booked into a Motel. He still had his Hyundai at the time. He told me that he got a taxi to where the 'hookers' are. He told me that he picked up one who he said was Asian, he told me that he had a heap of 'speed' and dosed them both up. He made it plain that he 'liked it rough'. After that he ditched her. That is what Andrew told me." 14The third source of the evidence comes from one of the detectives investigating the case. Detective Grahame Burke interrogated a Facebook profile in the name of Andrew Sumpton. That profile includes a photograph of the accused, giving rise to the inference that the profile is owned and operated by the accused. I do not understand that to be subject of any dispute. The accused had 115 Facebook "friends". Of those friends, a vast majority (around 90%) were young women of Asian appearance. There are photographs of those "friends" on the accused's Facebook profile. Relevant pages of the Facebook profile are annexed to Mr Burke's statement in the form of black and white photocopies. 15From this evidence, the prosecution says that a jury might find that the accused has a particular (and sexual) interest in women of an "Asian" appearance. 16The victim of the crime with which the accused is charged was a woman of Asian appearance.

RELEVANT ISSUES IN THE TRIAL 17To assess the probative value of the proposed tendency evidence and the extent to which it might rationally affect the existence of a fact in issue, it is necessary to identify the issues between the parties and the other evidence that the Crown has adduced and intends to adduce. 18It is the Crown case that the murder had a sexual motive or connotation of some kind. The evidence of this is strong. It includes the fact that when the victim's charred remains were found she was naked except for a pair of underpants which were down around her knees. Further, of the 24 stab wounds inflicted to the victim, six were in the upper thigh and peri-vulval region. There is also evidence that the deceased visited a neighbour's house wearing lace lingerie a reasonably short time before she was murdered. 19The evidence establishes that the accused and the victim were together in the hours leading up to the victim's death. The evidence of the precise timing is somewhat vague and, according to the opening statement on behalf of accused, of some significance. The accused denies having any sexual contact with the victim. In the lengthy ERISP the accused denied any physical contact with the victim apart from the possibility of incidental contact when they brushed past one another in the course of their time together. He says that when he left her she was alive and well. He returned some time later and found that her house was on fire. 20The accused said in the ERISP that he had a sexual dysfunction resulting in him being unable to achieve an erection without therapeutic drugs (Q 813-819). He told the police that Viagra did not help (Q 1670) but that a company (AMI) had prescribed a drug that was taken by injection. This allowed him to achieve an erection (QQ 1671-1680). His account to the police included that the last time he had intercourse was with his ex-partner Ms Beeching-Marshall and that this "would be getting close to" twelve months earlier. When asked (at Q 1698-9) whether he had attempted to have "sexual interludes" since then he said: "No, I'm not interested mate." 21Asked (at Q 829) whether he "still [got] the urge?" he said: "Mate, why would I get the urge? If it won't work it won't work." 22Asked (at Q 1642) whether his intention was to get her drunk he said: "Mate, look, she could've walked past me stark bollocky naked and I [wouldn't] have been able to do a thing anyway so what's the flippin' point?" 23Another relevant piece of evidence from the ERISP is at Q 1630: "Q All right. What did you tell Mr Johnson or Steve as you referred him to about the lady that you were going to see? A. What did I say to him? I met a lady, I think she's an Asian lady and then he said he, yeah, have some fun, he said, you might even get your end in. Q. He said that or you said that? A. I don't remember. I can't get me end in, mate, I told you it's just pointless." 24One of the investigating detectives (Mr Sippel) was cross-examined to establish that inquiries have confirmed that the accused had contact with AMI in relation to "that matter" (ie sexual dysfunction) (T 472). There is also a statement of a Dr Berry who is a consultant at AMI confirming that she spoke to accused on 23/8/2010 about his difficulty in gaining and maintaining an erection and diagnosed "severe erectile dysfunction". Ms Beeching-Marshall will also give evidence confirming the accused's "sexual problems maintaining an erection" and the medication he used to deal with that problem. 25In opening to the jury, Mr Dennis said that the issue in the case was not whether the deceased was murdered but whether the accused was responsible for the murder. He also said: "Another issue will be Mr Shane Martin, the boyfriend of the deceased. Now, there are a number of stab wounds, 24 stab wounds, the Crown says that there's a sexual flavour or connotation of what has happened particularly as it's not disputed, the deceased's underpants were found drawn part way down her legs. Mr Martin is an interesting witness who will be cross-examined vigorously. An assessment of his credibility, his believability, will, I anticipate feature significantly in your evaluation of the evidence." 26Mr Dennis has asked a number of the firefighters who were in attendance whether the accused asked them "was the boyfriend in there". He also asked another witness about a conversation in which the deceased made complaint about somebody who might readily be inferred to be her boyfriend. Yarnah Cook, T 565-565: Q. At some stage during the day do you recall [the deceased] using your mother's phone? A. It was my phone that she used. Q. She was complaining about a male person wasn't she? A. Yes. Q. She was saying that this male had stayed at her house the night before? A. Yes. Q. That he'd gotten there at 11pm and left at about five in the morning? A. Yes. Q. She complained that this man hadn't said goodbye? A. Yes. Q. She said words along the lines of "He always bloody uses me" is that right? A. Yes. Q. Do you know which man she was talking about? A. No sorry. Q. Do you know if Mandy had a boyfriend at the time? A. No. Q. Did you form any view about who she was talking about? A. No. 27It appears that one of the hypotheses to be advanced on behalf of the accused is that Mr Martin may be responsible for the killing. 28In the light of the issues between the parties, and in particular the fact that the sole issue in the trial is the identity of the murderer, the fact (if it can be established) that the accused had a sexual interest in Asian women is a matter of considerable significance.

THE EVIDENCE OF MS BEECHING-MARSHALL 29In providing some helpful preliminary submissions on Friday, Mr Dennis submitted that the evidence of Ms Beeching-Marshall lacked significant probative value for the following reasons: (i)It lacks contemporaneity with events surrounding the murder. (ii)The use of pornography featuring Asian women as a sexual stimulant does not lead to an inference that the accused had a sexual interest in Asian women upon which he would necessarily act. Mr Dennis said "there is not a relevant similarity inasmuch as we're talking about pornography as opposed to sexual activity itself". (iii)The tendency evidence is not sufficiently similar to the events alleged in the murder and, in particular, there is no suggestion that the victim and the accused were using "speed" or similar type drugs in the time leading up to the killing. 30When the argument resumed on Monday, Mr Dennis relied on written submission in which it was contended that the evidence lacked significant probative value because (i) the alleged activity was "only a limited part of a broader range of sexual behaviour" and (ii) the witness herself is not a person of Asian background and had been in a relationship with the accused for a period of around 10 years. 31There is authority to support the proposition that a substantial effluxion of time between the events subject of the tendency (or coincidence) evidence and the subject offence may diminish the probative value of the evidence: see R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 at [42] (Barr J). However, two things can be observed in the present case. First, the effluxion of time is not great. In R v Watkins there was an effluxion of time of around 14 or 15 years. Here, the effluxion of time is not completely clear but it is nothing of that magnitude. The accused said that his last sexual encounter with his ex-partner was around twelve months before the murder. Second, the evidence of Ms Beeching-Marshall concerns events that occurred after the accused began to suffer from sexual dysfunction. In the context of the issues between the parties and the accused's assertion that he did not have sexual urges, that fact is more significant than the precise length of time between the events relied on as tendency evidence and the alleged offence. 32As to the submission that the use of pornography depicting Asian women is a different thing to actually engaging in sexual activity with Asian women, I note the observations of James J (with whom McClellan AJA and Grove J agreed) in R v MM [2004] NSWCCA 364: "60 ... It would appear to me that his Honour held that evidence that the respondent collected and viewed child pornography and fantasised about sexual acts with children, regarded as evidence of a tendency the respondent had, was simply irrelevant, that is to say it was not evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of whether the respondent had committed any of the offences alleged by the Crown or, differently expressed, was not evidence that, if it were accepted, could establish any relevant tendency to act in a particular way. 61. I do not accept that the evidence, regarded as evidence of a tendency the respondent had, was irrelevant. Evidence that the respondent, as a person charged with offences of child sexual assault, had collected and viewed child pornography and had fantasised about sexual acts with children satisfies the criterion of relevance under s 55 of the Evidence Act, in that the evidence is capable of rendering more probable that the respondent acted in the ways in which he is alleged by the Crown to have acted. In my opinion, no expert evidence was required in order to make such evidence admissible. It is in accordance with common human experience that a person who has had thoughts, particularly persistent thoughts, about some type of act is, at least to some extent, more likely to perform an act of that type than a person who has never had such thoughts. It is not to the point that many persons who fantasise about some act never actually do it." 33In PGM v The Queen [2006] NSWCCA 310, the trial Judge excluded evidence of child pornography because the multitude of images that the Crown sought to adduce, and the nature of those images, would be "so prejudicial" that the trial would miscarry. It was not excluded because it lacked probative value. 34Further, in R v PWD [2010] NSWCCA 209 Beazley JA (with whom Buddin J and Barr AJ agreed) said at [79]: "The authorities are clear that for evidence to be admissible under s 97 there does not have to be a striking similarities or even closely similar behaviour." 35Plainly, as was held in R v Harker [2004] NSWCCA 427, the evidence must "transcend the mere fact" that the respondent was having inappropriate sexual conduct with another person. See also R v Milton [2004] NSWCCA 195 at [31]. 36As to the fact that there is no evidence that the victim and the accused were using "speed" on this occasion, that is not a matter upon which the Crown relies in pressing the admissibility of the tendency evidence. It is the suggestion of a sexual interest in Asian women that is at the core of the Crown's notice, not the use of drugs. It might also be observed that the accused and the complainant were using large quantities of alcohol, and possibly prescription drugs in the time leading up to the killing -although there is a qualitative difference between those drugs and amphetamine. The lack of striking similarity between the tendency evidence and the behaviour in the hours before the murder does not deprive the evidence of its probative value as evidence of the tendency that the prosecution seeks to prove: R v PWD (supra). 37I have reached the conclusion that the evidence of Ms Beeching-Marshall has significant probative value. The accused's sexual interest in Asian women (if accepted) has a significant capacity rationally to affect an assessment of the probability that the accused attempted to, or did, have some sexual contact with the deceased. That in turn, would affect an assessment of the likelihood that the accused (not somebody else) murdered her. The probative value of the evidence is considered by reference to the things that the accused puts in issue including whether it is reasonably possible that a person other than the accused (and specifically Mr Martin) committed the crime and his assertion that he has little or no interest in sex as a result of his sexual dysfunction. 38I do not understand how the fact that the activity is a limited part of the accused's sexual behaviour diminishes the probative value of the relevant aspect of his sexual interests. Nor do I accept that the fact that the accused was involved in a relationship with a non-Asian person means, as a matter of logic or common experience, that the accused does not have a sexual interest in women of Asian appearance. 39Turning to s 101, and whether the probative value of the evidence substantially outweighs any prejudicial affect that it may have on the accused, I accept that the evidence has some capacity to cause prejudice to the accused. This is because of the reference to taking of illegal drugs. However, that reference is not part of the tendency that the Crown seeks to establish. In the absence of the reference to illegal drug use, I am unable to discern any relevant prejudice in the evidence. If the evidence of drug use is not led, there is little or no prospect that the jury will misuse the evidence. The jury will be directed as to the proper use it can make of the evidence, namely as part of the circumstantial case that the Crown will rely upon to establish that it the accused, and not some other person, who killed the victim. 40When I raised the question of omitting the reference to the drug use from the evidence, Mr Dennis submitted that he did not think that the evidence could be severed. I am unable to agree with this submission. Plainly, if the accused seeks to introduce the evidence of speed use or if he would prefer the Crown to lead the evidence of speed use, that is a forensic choice open to him. However, I do not accept that the use of speed is so intrinsically connected to the central features of the tendency evidence of Ms Beeching-Marshall that it is, in effect, either all or nothing. I indicate that if it were "all or nothing" I would allow all of the evidence and provide the jury with directions in relation to the limited use that could be made of the use of amphetamines and caution them against using it to draw adverse inferences against the accused. 41The accused submits that "the use of pornography may lead to an assessment of bad character and/or moral condemnation in the minds of some jurors". I very much doubt that this is so. I do not think that the use of adult pornography is generally regarded in the community as a matter that would lead to a conclusion that a person is one of bad character. There is no suggestion that the use of pornography was other than consensual and it is certainly not pornography that might lead to criminal sanction. In any event, that is a matter that can be overcome by direction. 42The final matter said to give rise to possible prejudice to the accused concerns the use of the term "Asian". It is said that this is a "broad" term and Mr Dennis observes that Asia includes many developing and under-developed nations. It is submitted the accused's use of pornography depicting women from that region "might be considered [by the jury] to be particularly exploitative behaviour". While I appreciate the ingenuity of this submission, I am not sure that the fact that the pornography in question is described as "Asian" porn distinguishes it from most pornography in this respect. There is nothing in the bare descriptions of the material that gives rise to an inference that the participants were exploited or came from under-developed economies. 43In assessing the possible prejudicial effect of the material, it is important to observe that there is no attempt by the prosecution to have the pornographic videos played to the jury or even to provide graphic descriptions of what is depicted in them. 44For those reasons my ruling is that the evidence of Ms Beeching-Marshall is admissible. I would have made this ruling provisional upon the reference to illegal drug use being omitted. To be clear, I would have ruled that the reference to the accused and his ex-partner using "speed" is inadmissible. It is not relevant to the tendency that the prosecution seeks to establish. However, I accept that counsel for the accused may make, or may already have made, a forensic decision that there is some advantage in having the use of amphetamine adduced. 45Of course, the record should be clear that this forensic choice has been forced upon him by my ruling, over his objection, that the evidence is admissible: cf Stanoevski v The Queen [2001] HCA 4; 202 CLR 115 at [48] (Gaudron, Kirby and Callinan JJ).

THE EVIDENCE OF MR OHLSEN 46The evidence that the accused admitted that he visited Asian prostitutes is capable of supporting the prosecution case that the accused had a sexual interest in Asian women. For the same reasons I have provided in relation to the evidence of his use of pornography depicting Asian women, in light of the issues at the trial, I find that it has significant probative value. 47The accused submitted that "the alleged utterances of the accused relate to one event only". That fact (assuming it to be) does not undermine the probative value of the evidence. It is not the frequency of visits but the fact that Mr Ohlsen alleges that the accused specifically told him that he visited "Asian" prostitutes that provides the evidence with its probative value. In making the assessment, it is important to consider that allegation along with the other evidence including the assertion by Ms Beeching-Marshall that the accused always wanted to look at the "Asian porn" even though there was other pornography available to him. 48The accused also asserts that the fact that the visits to prostitutes involved the use of "speed" (amphetamines) distinguishes the evidence from the events giving rise to the current proceedings. As I have said in relation to that aspect of Ms Beeching-Marshall's evidence, and contrary to the accused's submissions, I am of the opinion that this aspect of the evidence is severable. As I have also said, there is evidence in the present case that the accused and the deceased were well affected by intoxicants, albeit of a very different kind. 49In spite of Mr Dennis' careful submissions, I have concluded that the evidence that the accused visited an Asian prostitute has significant probative value in the light of the other evidence and the issues in the trial. 50Mr Dennis submits that the evidence of Mr Ohlsen may cause prejudice to the accused for a variety of reasons. He raises the fact that the use of prostitutes may lead to a conclusion of bad character or moral condemnation. This is a legitimate concern but is a matter that can be dealt with by directions. 51Two other aspects of the evidence are capable of causing prejudice to the accused. First, there is again reference to the use of "speed". I make the same ruling in relation to that matter as I made with respect to the evidence of Ms Beeching-Marshall. 52The second aspect of Mr Ohlsen's statement that has a capacity to cause prejudice to the accused is the statement that the accused allegedly made to Mr Ohlsen that he "liked it rough". The tendency notice does not suggest that the prosecution is seeking to prove that the accused had a tendency to engage in "rough" or violent sex. Even if that was its intention, the potential prejudice is too great to permit such evidence to be led. The expression is vague and it is far from clear what is meant by it. In the course of argument, the learned Crown Prosecutor accepted that this part of the evidence should not be led. I would reject it. 53However, provided the reference to "rough" sex is omitted, my ruling is that the prosecution may adduce the evidence that the accused told Mr Ohlseen that he used to visit Asian prostitutes. Once again, I record that I would have excluded the evidence of drug use but for the stance taken by the accused.

THE FACEBOOK FRIENDS 54The evidence of pictures of the accused's Facebook friends raises different considerations. 55The first question is whether the evidence is capable of giving rise to the inference that the accused had a sexual interest in Asian women (relevance, s 55). The second question is the extent to which it has that capacity (probative value, s 97). The third question is whether the evidence may cause prejudice to the accused and, if so, does the probative value substantially outweigh that prejudicial effect (s 101). 56I would answer the first question in the affirmative. If accepted, the evidence "could" affect "directly or indirectly" the existence of a fact in issue, namely whether the accused had a sexual interest in Asian women. 57However, that is as far as it goes. The extent to which the evidence has that capacity (its probative value) is slight. There is no evidence led to rebut the possibility that the accused had legitimate reasons for the number of his Facebook friends who are Asian women. There is no evidence as to whether the accused knew the "friends" in real life. There is no evidence as to when the Facebook friends were invited or accepted. There is no evidence as to whether it was the accused or the friend who made the initial contact or "friend request". There is no evidence as to what, if any, contact there was between the accused and the friends. None of the photographs have any particular sexual content - they are predominantly headshots although some of the photographs might be considered to be somewhat alluring or seductive. There is no commentary that gives the photographs any sexual content. There is no evidence of sexualised "messaging" or "chat" between the accused and the friends. The photographs depict women much younger than the victim; the detective describes them as "young teenage Asian women". 58Even allowing for the fact that the evidence must be considered in the light of the other tendency evidence (and in particular the accused's use of pornography featuring women of Asian appearance and his visit to an Asian prostitute), the evidence does not have "significant probative value". Accordingly, it is inadmissible pursuant to s. 97. 59If I am wrong about that conclusion, I would exclude the evidence under s 101. The number of images may distract the jury from its true task. The fact that the accused befriends "young teenage Asian women" may cause the jury to make moral or ethical judgments against the accused that have no relevance to the issues between the parties in view of the age of the victim in this case. I am unable to contemplate any direction that is capable of curing that potential prejudice. Such directions are more likely to highlight the issue than to alleviate the possibility that the jury might misuse the evidence. The probative value of the evidence does not substantially outweigh "any prejudicial effect that the evidence may have on the accused". 60I should note that if I am erroneous in my assessment of the probative value of the evidence, that error is likely to have infected my conclusion as to the application of s 101. That is, if the evidence has greater probative value than I have concluded, it may be that the probative value does substantially outweigh the possible prejudicial effect of the evidence. However, in making the assessment under s 101 I have been influenced by the number of images that the Crown seeks to tender and the possible misuse of the evidence. In other words, I have focussed largely on my assessment of the prejudicial effect of the evidence in making the determination under s 101.

CONCLUSION AND RULINGS 61For those reasons, I make the following rulings: (1)I allow the evidence of Ms Beeching-Marshall that the accused watched pornography depicting women of Asian appearance. (2)I allow the evidence that the accused told Mr Ohlsen that he visited an Asian prostitute. (3)I reject the evidence of the accused's use of illegal drugs unless the accused consents to, or insists upon, its introduction. (4)I reject the evidence of the accused saying that he "liked it rough". (5)I reject the evidence derived from the accused's Facebook profile.

Amendments 10 November 2014 - Renumbering Amended paragraphs: 61 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2014