Criminal Law - Evidence - Propensity, tendency and co-incidence - Admissibility and relevancy - Tendency and co-incidence evidence under uniform evidence law - Generally - Possibility of concoction - Contamination in sexual cases - Whether relevant to probative value or risk of unfair prejudice.

Evidence Act 2001 (Tas), s101(2).

KMJ v Tasmania [2011] TASCCA 7; FB v R [2011] NSWCCA 217, followed.

Judgment Number: [2012] TASSC 47

1 The accused has been indicted on two charges of maintaining a sexual relationship with a young person under the age of 17 years. Each charge relates to a different complainant. The accused has not yet pleaded to the indictment, but it is clear that he denies the allegations, and that both charges will be proceeding to trial. The Crown proposes to rely on tendency evidence, and has given notice accordingly. The Crown contends that the evidence of each complainant is admissible as tendency evidence in relation to the charge concerning the other complainant. The accused contends that the evidence of the complainants is not cross-admissible. Counsel for the accused has applied for the severance of the indictment, so that each count would be tried separately from the other. That application is opposed. I have commenced a voir dire for the purpose of evaluating the evidence as to matters relevant to the severance application, particularly evidence as to the similarities and dissimilarities between the evidence of the two complainants as to what the accused did, and as to the surrounding circumstances, and also evidence as to the likelihood or otherwise of the complainants' allegations, or some of them, being the product of concoction or contamination.

2 During the cross-examination of the first witness on the voir dire - the complainant to whom count 1 relates - defence counsel commenced to ask questions about her state of mind. The Crown alleges that the accused touched her breasts and her pubic area on a number of occasions during a game that she and other children used to play with him. Defence counsel asked questions about why she continued to play the game; whether or not she thought that she should stop playing the game; and whether she had concluded that she was not being touched accidentally. The Crown prosecutor objected to the question as to whether she had concluded that she was not being touched accidentally. His objection raises serious questions as to the law concerning the significance of the possibility of concoction in such cases.

3 The Crown contends that, in the light of R v Shamouil (2006) 66 NSWLR 229 and KMJ v Tasmania [2011] TASCCA 7, I am required to evaluate the chances of the complainants' allegations, or some of them, being the product of concoction or contamination without making any findings as to the credibility or reliability of the complainants' evidence. The Crown prosecutor submitted that questions as to the first complainant's state of mind went to her credibility, and therefore should not be permitted on the voir dire. Defence counsel submitted that Shamouil and KMJ were wrongly decided; that I am required to evaluate the probative value of the complainants' evidence by taking into account the likelihood of a jury disbelieving them; and that their credibility and reliability are therefore relevant to the determination that I have to make.

4 Under the Evidence Act 2001, s101(2), tendency evidence about a defendant, when adduced 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".

5 It was held by the New South Wales Court of Criminal Appeal in Shamouil that, for the purposes of the Evidence Act 1995 (NSW), the probative value of evidence must be determined on the basis of an assumption that the evidence will be accepted as true. That case was followed by Tasmania's Court of Criminal Appeal in KMJ. I am bound by those decisions. It follows that, for present purposes, I must assume, when determining the probative value of the complainants' evidence, that their evidence will be accepted. However there is a body of case law that leads me to the conclusion that, when there is a reasonable possibility of concoction or contamination in a case of this nature, the strength of that possibility is relevant to the evaluation of the risk of unfair prejudice to the accused.

6 In HML v R [2008] HCA 16; (2008) 235 CLR 334, which concerned the common law rules as to the admission of similar fact evidence, Gleeson CJ said at par[12]:

"Whatever the purpose for which similar fact evidence is adduced, it has an effect which the law regards as capable of providing a good reason for excluding it: if accepted, it shows a disposition or tendency to engage in crime or other discreditable conduct. If that is all it shows, and the prosecution adduces the evidence for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried, then the law excludes such evidence as a matter of fundamental principle. The purpose just described is often referred to as propensity, although that itself is ambiguous. The reason for the exclusion is not the irrelevance of propensity, but its prejudicial effect. In this context, prejudice means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate. If it did, probative value would be part of prejudicial effect. It is the risk that evidence of propensity will be taken by a jury to prove too much that the law seeks to guard against." [Footnote omitted.]

7 It is interesting to see how the New South Wales Court of Criminal Appeal has dealt with concoction issues in cases of this nature since Shamouil. Obviously it would be inconsistent with Shamouil for a possibility of concoction or contamination to be treated as relevant to the probative value of evidence. In FB v R [2011] NSWCCA 217, that court proceeded on the basis that concoction and contamination were relevant not to the probative value of evidence, but to the risk of unfair prejudice. The principal judgment in that case was delivered by Whealy JA, with whom Buddin and Harrison JJ agreed. At pars[32] - [45], his Honour referred to what Gleeson CJ said in HML, referred to a number of other authorities, proceeded to evaluate the evidence relevant to concoction and contamination, and reached a conclusion that it did not give rise to "the prejudice of which the section speaks". In my view I am obliged to follow that case.

8 There have been a number of cases in which appellate courts have taken the view that the possibility of concoction or contamination is relevant to the assessment of the probative value of evidence. See, for example, AE v R [2008] NSWCCA 52 at par[44]; BP v R [2010] NSWCCA 303 at par[110]; and PNJ v Director of Public Prosecutions [2010] VSCA 88 at pars[27] - [28]. In my view that proposition is inconsistent with KMJ, and I must follow KMJ.

9 In order to determine the admissibility of the evidence that the Crown wishes to rely upon as tendency evidence, it is appropriate for me to make an assessment as to the degree of likelihood of concoction or contamination. The question of whether or not there was concoction or contamination is a matter for the jury. For the purpose of assessing the degree of likelihood of concoction or contamination, it may be necessary for a trial judge to make findings of fact. There is no reason in principle why an assessment of the credibility or reliability of a complainant should not be made for the purpose of such a finding of fact.

10 In an extreme case, if a piece of evidence lacked all credibility, and could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, that piece of evidence would not be admissible because it would not meet the test of relevance in the Evidence Act, s55(1). However I see no reason why there should not be other situations in which the credibility or reliability of a complainant would not be relevant to the balancing process required by s101(2). Some support for this view may be found in R v Cook [2004] NSWCCA 52 at par[43]. The Victorian Court of Appeal took the opposite view in BSJ v R [2011] VSCA 93 at par[21], but did so on the basis that the possibility of concoction related to the probative value of evidence, and that proposition is inconsistent with KMJ.

11 For these reasons, I take the view that the credibility or reliability of each complainant is potentially relevant to the question of the cross-admissibility of their evidence, and thus to the severance application. I will permit cross-examination as to matters relevant to their credibility and reliability.