Criminal Law - Evidence - Similar facts - Admissibility - Relevance - Sexual offences - Tendency evidence - Evidence of witness of similar conduct on the part of the accused to that alleged by complainant - Young women of similar age - Whether tendency evidence of significant probative value - Whether reasonable possibility of concoction.

Evidence Act 2001 (Tas), ss97(1), 101(2).

L v Tasmania [2006] TASSC 59; (2005) 15 Tas R 381; Tasmania v S [2004] TASSC 84, applied.

Judgment Number: [2008] TASSC 57

1 The accused is indicted on one count of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A. The particulars of the charge are that at Hobart between on or about 15 May 2005 and 15 May 2006, he maintained a sexual relationship with "AB", a person born on 15 May 1989.

2 In accordance with the Evidence Act 2001 ("the Act"), s97(1)(a), on 18 April 2008 the Crown gave written notice that it would "lead and rely on tendency evidence". Section 97 provides that evidence of the conduct of a person or of a tendency that a person has or had, is not admissible to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind, except in certain circumstances. There is a dispute about the admissibility of the evidence the subject of the Crown's notice.

3 The accused has pleaded not guilty. I agreed to determine the admissibility of the tendency evidence pursuant to the Code, s361A.

4 The relevant parts of the notice, with appropriate modifications made necessary by the need to avoid identification of the young women involved, and omitting references to the Crown papers, are as follows:

"2 The State asserts that the accused had an unlawful sexual relationship with the complainant. That the complainant was an employee of the accused, she was young that he knew she was a virgin he fostered a relationship with her more than an employer/employee relationship - this was indicative of him talking about drugs and sex. Further he had a sexual relationship with her with sex taking place in the flat above the [coffee shop] in his motor vehicle, in the spare room at the [coffee shop] and in the [coffee shop].

3 It is alleged the tendency evidence occurred between the accused and [SO] between May 2005 and January 2006. It is alleged [SO] was a young employee of the accused, employed at the [coffee shop].

4 That the accused developed an interest in [SO] that went more than the employer/employee relationship. Discussed issues about sex, drugs and personal problems that he was having with his wife.

5 The accused knew [SO] was a virgin and had an interest in having sex with a virgin.

6 The accused attempted to have sexual activity with [SO] in his car in the shop and in the flat.

7 He also expresses a desire to have sexual intercourse with [SO] in the upstairs flat or downstairs spare room.

In Summary [SO's] evidence shows the accused has a tendency to foster relationships with young employees of his who he knows are virgins and have sexual activity with them in the car, [the shop], and the flat above the [coffee shop]".

5 By the Act, s97(1)(b), tendency evidence is not admissible if the Court thinks the evidence would not, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value.

6 The Act, s101(2), provides that tendency evidence cannot be used unless the probative value of the evidence substantially outweighs any prejudicial effect it may have.

7 The first question therefore is whether the evidence has significant probative value. If it does not, it is inadmissible, even though it may be relevant. If it does, the next question is whether the probative value of the evidence outweighs its prejudicial effect; see L v Tasmania [2006] TASSC 59; (2006) 15 Tas R 381 at 392 par[33]. Subsumed within the second question is the determination of whether or not there is a reasonable possibility of concoction or collusion, as discussed in Hoch v R [1988] HCA 50; (1988) 165 CLR 292 per Mason CJ, Wilson and Gaudron JJ at 296 - 297 and per Brennan and Dawson JJ at 302.

8 That the Hoch considerations apply to the exercise to be carried out by the court in a determination under the Act, s97 as to tendency evidence is made clear in L v Tasmania (above) at 396 pars[39 - 40], 408 par[87]; R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 per Simpson J at 447 par[77] and Tasmania v Farmer [2004] TASSC 104; (2004) 148 A Crim R 99 at 112 par[24].

9 AB gave evidence at the hearing of this determination. She gave her date of birth as 15 May 1989. There was no direct evidence of the age of the accused, but clearly he is significantly older. In broad terms, AB's evidence establishes that she commenced part time work for the accused at a coffee shop in Hobart in around March 2004, making her nearly 15 years old at the time. She said that she worked there for about a year, finishing a bit after March 2005 or maybe a little later.

10 She said that an ongoing sexual relationship with the accused commenced just after her sixteenth birthday; ie, 15 May 2005. Her evidence is strongly suggestive of the fact that the relationship continued for a not inconsiderable period of time.

11 There was no further evidence as to the time at which the relationship concluded, other than the complainant said that she ended the sexual relationship and her employment at the same time. It would seem then that the complainant may have been mistaken when she said her employment finished in March 2005, but nothing turns on that in the context of this determination.

12 As to the relevant detail, AB said that she worked a Sunday shift which was approximately about eight hours, and she did a few small shifts during the week. She worked with the accused at times which varied from week to week, but quite often on a Sunday. After a time they became friendly and he talked to her about personal matters in his life, such as drugs, alcohol and his sexual activities. The accused asked about the complainant's sex life. She told him that she was a virgin.

13 This platonic friendship continued for a while, with the accused taking her to various cafes and to his friends' homes. He would take her on his motor cycle, picking her up from various places and taking her home.

14 A few days after AB's sixteenth birthday, she went to the birthday party of a friend and drank alcohol whilst she was there. The accused picked her up and took her to what was described as a flat above the coffee shop. This was shown in photographs which were tendered. The upstairs had a lounge room and separate bedroom. There was also a room at the back of the coffee shop on the ground floor level which was an office/storage area, but which had in it a fold-out type of double bed.

15 Returning to the evidence of the particular event, AB said that she and the accused went to the upstairs apartment where the accused offered her alcohol, which she refused. After finishing his own drink, the accused kissed her and she kissed him back.

"And was there some conversation about doing something?.........Yes. There was a conversation about having sex.

And did he say - what did you say about that?.........That it wasn't going to happen because I had my period.

And what did he say in response to that?.............He reassured me that would be okay and that it's better for that to happen on your first time.

And did he say why that was better?.............Because it was more lubrication.

And so happened then?.............Then I went to the toilet and I removed my tampon and we went to the bedroom.

...

Right, and did you then have sexual intercourse on the bed in the flat upstairs?.............Yes, we did."

17 AB went on to say that she had sexual intercourse with the accused on numerous occasions, not all of which she could remember. She gave evidence about specific instances in the car at Blackmans Bay beach, in the back room at the coffee shop on the fold-out bed, and in the coffee shop area itself.

18 She described one occasion on which they had sex in the downstairs room which occurred during working hours. The accused called her out to the back and said that he wanted to have sex. She protested that she was working, but the accused said that as the boss, it would be alright.

19 It appears that it was after that occasion that she became angry and did not return to work. However, although the sexual relationship did not resume, she remained friendly with the accused for a little time after.

20 In her evidence-in-chief, AB said that she told a girl who was working at the shop at the time, T, about what was happening with the accused. She also told her best friend, K, but this was after the relationship had ended. She said that K had not worked at the coffee shop and only became acquainted with people who did work there after she, AB, had finished. She said that she thought K had heard from "some girls" that she and the accused had been having sex, but that this only became clear to her during the conversation with K.

21 In cross-examination, AB said that she could not clearly recall what was said to T, but it was basically that she and the accused had had sex. T did not ask any questions or make any comment. AB confirmed that the next person she told about events with the accused was after the relationship had ended, but before police involvement. She also said that she had heard of SO as an employee at the coffee shop, but had never met her, nor spoken to her.

22 AB agreed that knowledge about her involvement with the accused had spread at the coffee shop but said that she did not know how it had been passed on into her circle of acquaintances. She did not know this had occurred at the time, although she now knows that it did.

23 AB was cross-examined about a meeting which took place between her and the accused's sister-in-law (JB). This meeting was arranged at JB's instigation in order to challenge AB about the relationship with the accused. AB initially denied what had occurred, but being told that the fact of the relationship had been discovered by someone hired to investigate the situation, prompted an admission.

24 JB's initial information seems to have come from T. The connection between JB and T was not explored.

25 SO gave her date of birth as 27 January 1988. She started working for the accused at the coffee shop in April/May 2005 and finished in December 2005 or January 2006. In that time she worked two or three nights a week from about 4pm until 10pm. For most of the time she was working with the accused.

26 She said that after a short time of working there, the accused started to talk to her about his personal issues, including his marital disharmony. The accused said that he did not believe in monogamy; "... If he went out and cheated on [his wife] and then went back to her and he was happy, then that was fine". She said that on one occasion it came up in the conversation that she was a virgin, but that she could not remember why that topic came up.

27 Some time later, she and the accused had closed up the shop on one night and were sitting in the shop waiting for her to be picked up. She said that the accused told her that he had a crush on her, and then tried to kiss her. She resisted and told him "that it was silly, that nothing was going to happen".

28 It would appear that some time later again, in a similar setting whilst she was waiting to be picked up, the accused commented that it would easy for her to have sex with him the first time, and that he had a "perfect set up" for her as a virgin; "He had experience. He knew how to handle a virgin. He had a flat downstairs that would be easy to use".

29 SO described how on occasions the accused would take her home in his car. On one occasion he took her for a ride on his motor cycle through the Huon area. One night after work, rather than taking her home, the accused took her to the Rosny Lookout and parked the car for some time whilst the two drank some alcohol. SO was sitting in the back with the accused in the front. The accused said he wanted to get in the back seat as well, and did so despite some protest. As they were talking, the accused went to kiss her. She stopped him and told him to take her home.

30 On another occasion after work, the accused took SO and another young female employee to the upstairs flat and gave them alcohol. They were sitting side by side, with the accused in the middle. He tried to touch SO on the thigh, but she pushed him away.

31 Lastly, SO gave evidence of an incident which commenced with the accused, another different young female employee of the coffee shop and her, going to the upstairs flat after work had finished. It was probably 10.00 or 10.30pm. The accused again provided all girls with alcohol. The other girl left, at which time SO was feeling sick. She decided to lie down, fully clothed, on the bed. She described the ensuing events as follows:

"... I'm not sure if he removed any clothing but he laid down next to me and put his hand inside my clothing.

Whereabouts inside your clothing?.........Inside my underwear.

Right. And what happened then?.........Then I pushed him away and told him he had to take me home.

Okay. Now when he put his hand inside your underwear, did he put it on your vagina?.........Yes.

Do you know whether he put his fingers inside your vagina or not?.........I can't remember if he actually inserted or just was around the area but yeah, I pushed him away."

32 As to speaking with others about her experiences, SO said that she had not met AB, but knew who she was; that is, a person who worked at the coffee shop. SO said that she had got the job through a friend, B, who had said to her "... that Gary was a different kind of boss, ... that he was very friendly with all of the staff". B also worked at the coffee shop. When the accused said that he had a crush on her, SO said that she probably mentioned it to her closest friends, but she was not quite sure. None of those friends were working at the coffee shop. She told B a few months later.

33 SO was cross-examined about discussions that may have followed AB's departure. She said there were some suspicions passed on to her by B as to why AB had left, but no confirmation or exact knowledge.

34 She went on to say that her understanding of the cause for suspicion was that the accused spent a lot of time with the girls; "... that he would have spent that same kind of time with [AB] and therefore there was suspicion at why she left because they seemed close and there wasn't anything that [AB] had done specifically or told anyone why she was leaving ...".

35 SO also gave evidence about a conversation with B after she, SO, had finished working there. She said that B knew of a relationship between the accused with someone, and that this was going on after she, SO, had left. The suggestion was that the accused was in "some kind of relationship with a staff member". This staff member does not appear to have been identified in this conversation. SO said that before she left work, she had not spoken to anybody other than B "about these issues".

36 Another conversation which was dealt with in SO's cross-examination was the one she had with a police officer. She said that she had raised with the police officer, the subject of the accused's apparent interest in her virginity, rather than it being raised with her. She went on to say that apart from speaking to the police officer and the conversation with B after she had left the coffee shop, SO said that she had spoken to close friends and her parents, "about the things that had been raised ... in connection with this case", but said that to her knowledge none of the people involved were acquaintances of any of the people who worked at the coffee shop.

37 The word "significant" in s97(1) has been held to mean "important" and "of consequence"; R v Lockyer (1996) 89 A Crim R 457 at 459; L v Tasmania [2006] TASSC 59; (2005) 15 Tas R 381 at 392 - 393 pars[31 - 32].

38 "Probative value" is defined by the Act, s3, to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". As to what is a "fact in issue" in this context, Simpson J in R v Fetcher [2005] NSWCCA 338; (2005) 156 A Crim R 308 at 319 par[49], said "[a]ny fact upon which the prosecution relies to establish the offence charged is, of course, a fact in issue, even where it is not disputed by the accused".

39 The summary section in the notice of tendency in this case, speaks of the relevant evidence as establishing a tendency to act in a particular way in relation to young female employees. In the context of s97 and of this case, it is perhaps more accurate to say that the evidence would establish conduct which, in turn, may prove that the accused had a tendency to act in the way in which it is alleged he acted towards the complainant.

40 Either way, to qualify as evidence having significant probative value, the evidence of SO must be sufficiently cogent to be capable of proving a tendency, the existence of which by inference, increases the likelihood that the accused's alleged conduct in relation to AB, in fact occurred.

41 The strength of the evidence to be tendered by the prosecution as tendency evidence rests in the capacity to establish the objective probability of the truth of the complainant's account of the accused's conduct; R v Fletcher (above) at 322 par[60]. The determination in this case requires an examination of the nature and circumstances of the sexual offence charged, and the degree to which there are similarities with the tendency evidence sought to be led.

42 Consistent with the notice of tendency, counsel for the Crown, in closing, listed a number of features which were common to the evidence of both witnesses. Those features were that:

•

the girls were of similar age;

•

they were both employees of the accused;

•

they both told of conversations concerning intimate details of the accused's personal life, in particular his marital situation;

•

there was discussion about the girls' virginity; in particular, there was similarity in the manner in which the accused spoke to AB immediately before the first act of sexual intercourse, and the way in which he spoke to SO about her losing her virginity to him;

•

the accused took both girls home after work and for rides on his motor cycle;

•

the acts of sexual intercourse with AB in the flat above the coffee shop, in the accused's car, and in the room behind the shop;

•

the accused attempting to initiate sexual contact with SO in his car, putting his hand on her leg in the shop, telling SO that there was the room at the back of the shop where they could have sexual intercourse, and initiating sexual activity with SO on the bed upstairs.

43 I accept that as an appropriate summary. To be added to list is the fact that the accused took both girls to the upstairs flat and supplied them with alcohol, albeit that in the case of SO she was in the company of another girl for a time. Counsel for the accused, in effect, submitted that the similarities between the complainant's evidence and that of SO were not of a significant degree.

44 However, I think that there is a substantial degree of similarity between the accused's conduct in relation to the two girls and as to the circumstances in which the conduct took place. It is clear that the accused's activities in relation to the two girls were carried on, if not concurrently, then within a relatively short period of time one after the other. The evidence of SO is direct and cogent evidence, and is evidence of conduct from which an inference can be readily drawn that the accused had a tendency to act in a quite particular way. This is highly probative of facts in issue.

45 In my judgment, SO's evidence has significant probative value within the meaning of s97.

46 In Tasmania v S [2004] TASSC 84, in a passage approved by the Full Court in L v Tasmania (2005) 16 Tas R 381, Underwood J (as he then was) said:

"12 Concoction includes not only cases where the complainants have possibly got together to concoct an account, but also those cases where one complainant has possibly concocted her evidence after becoming aware of the account of another complainant. See BRS v R [1997] HCA 47; (1997) 191 CLR 275 at 301; P v R [2002] TASSC 61. In Hickey v R (2002) 136 A Crim R 151, the Full Court of the Supreme Court of Western Australia, at 155, approved an earlier statement of the Court that the possibility of concoction must be understood '... as a reasonable possibility, based upon some factual foundation and not merely a fanciful possibility'. A little further on at 155, Templeman J referred to the earlier case (Hamilton) and said:

'The decision in Hamilton demonstrates that the mere fact that complainants know each other and have discussed the alleged offences, does not of itself render their evidence inadmissible if there is no other factual foundation upon which a reasonable possibility of concoction may be based.'

13 In R v Robertson (1997) 91 A Crim R 388, Ambrose J said at 409:

'In the majority judgment in Hoch at p297 it is observed that in some cases a judge who must rule upon admissibility of similar fact evidence might require an examination on voire dire to ascertain:

"the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction."

To my mind this language implies that the trial judge may use the same sort of commonsense and experience in determining that question as used in the practice reflected in Ananthanarayanan and Ryder. Stated shortly it is necessary for the trial judge to determine whether there is a real chance of concoction or contamination rather than a merely speculative chance. Similar facts could not be reasonably explained on the basis of concoction unless there was a real chance of it. To determine whether there is a real chance the trial judge must look at the facts of the case before him and determine what were the circumstances of the witnesses sought to be called to give similar fact evidence. Undoubtedly where such witnesses are in close relationship and there is both an opportunity and motivation to concoct and they give evidence of the same sorts of sexual behaviour on the part of an accused person, the determination of admissibility on the facts in Hoch and Youngson will perhaps be a compelling indication of the determination required'."

47 I proceed on the basis of those statements. The question is whether the Crown has excluded the reasonable possibility of concoction. In the context of the case, the issue is whether there is a reasonable possibility that SO has concocted her evidence after having become aware of AB's account of her sexual relationship with the accused.

•

AB and SO did not, and do not, know each other; they have not met and have not discussed these matters.

•

During the currency of the relationship, AB told a workmate briefly about having sex with the accused, but the information was, at most, confined to the fact of the relationship. The knowledge imparted apparently spread to other employees and from there to AB's circle of acquaintances.

•

AB told her best friend, K, of the relationship after it had ended. K seems to have already known from "some girls".

•

SO probably mentioned to her friends the accused's declaration of having a crush on her. None of those friends work at the coffee shop.

•

SO heard from a friend, B, about a suspicion surrounding AB's departure. This suspicion arose from the fact that the accused spent a lot of time with the girls in the shop and there was no apparent reason for AB's leaving.

•

After SO left, she spoke to B and was told that the accused had been in some kind of relationship with an unidentified staff member.

•

SO spoke to nobody else about these matters.

49 There has been no discussion between the two witnesses as to either the fact or detail of AB's relationship with the accused. It can also be seen that the dissemination of information all seems to have related to the simple issue of the fact of a sexual relationship, and not to any of the detail of it. Further, there is nothing to suggest that there is any commonality in the respective circles of friends. Indeed, the contrary inference can be fairly drawn.

50 Additionally, it should be noted that no motive was put to SO for her to concoct her evidence, and none emerged during the hearing. Counsel for the accused made no submissions as to this issue of concoction. On the basis of all the evidence, I conclude that it is not a reasonable possibility that SO's evidence is a product of concoction through a process of contamination.

51 It is implicit in the authorities dealing with the Act, ss97, 98 and 101 (in this State and elsewhere) that the notion of "prejudicial effect" in the Act, s101(2), should be given the same meaning as the common law concept in this context. This is explained for instance, in Pfennig v R [1995] HCA 7; (1994) 182 CLR 461; viz, "... the undue impact, adverse to an accused, that the evidence may have on the mind of the jury over and above the impact that it might be expected to have if consideration were confined to its probative force", (per Mason CJ, Deanne and Dawson JJ at 487). In short, the relevant effect must be an undue or unfair one.

52 In general terms, the prejudicial effect arises because the jury may think that a person who has an established tendency has followed that tendency in the circumstances of a particular case; see Pfennig at 488.

53 One of the particular aspects of this is that a jury might be distracted by the commission of criminal conduct with which the accused has not been charged. (I note that the terms "uncharged acts", and "uncharged conduct" are terms of which the High Court has now disapproved; HML v R [2008] HCA 16; (2008) 82 ALJR 723).

54 In this case it may well be that the conduct of the accused towards SO by touching her on the vagina whilst she was laying unwell on the bed upstairs, could constitute an indecent assault. That aspect of things should not be overlooked, although assuming the jury is alert to the possibility of this act amounting to criminal conduct, the impact of that is, I think, mitigated somewhat by the nature and extent of the conduct with which the accused is actually charged.

55 Putting that incident to one side, the remainder of SO's evidence is relatively benign in the sense that it does not contain allegations of criminal conduct, nor of violence or similar inflammatory matters. The evidence does, as I have said, show a tendency to act in a quite particular way to young female employees. This includes an interest in initiating sexual contact in very particular personal and physical circumstances. All of that is highly probative of the conduct charged and the circumstances alleged.

56 Again, counsel for the accused made no submissions as to this issue. In my judgment, the evidence of SO substantially outweighs any prejudicial effect it may have on the accused. I rule that the evidence, the subject of the notice of tendency, is admissible.