District Court New South Wales Medium Neutral Citation: R v STEVENS [2011] NSWDC 81 Hearing dates: 4 July 2011 Decision date: 04 July 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The tendency evidence is rejected as having no significant probative value Catchwords: CRIMINAL LAW - Judgment - Tendency evidence Legislation Cited: Evidence Act Cases Cited: R v O'Keefe [2009] NSWCCA 121 Phillips v The Queen (2006) 225 CLR 303 Stubley v Western Australia [2011] HCA 7 Category: Procedural and other rulings Parties: The Crown John Andrea Stevens Representation: N Williams - Crown A Moen - Accused Director of Public Prosecutions Brenda Duchen - Accused File Number(s): 2010/64211 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant. Judgment 1HIS HONOUR: When this matter was called on for trial, the Crown advised me that a pre-trial issue needed to be determined concerning the admissibility of what the Crown accepts is tendency evidence. It was agreed between the Crown and Ms Moen, who appears for the accused, that the way that I would determine this matter would be to read various documents, including the statement of the complainant in this matter and the statement of a different complainant, and then decide the various issues that need to be determined under the Evidence Act based on that written material. 2The accused faces trial on an indictment containing a number of counts of sexual assault. They are all alleged to have occurred at the one time on the one complainant. Her evidence, the Crown expects to be, will be that she went out to a nightclub one evening with a friend. She and the friend got separated and the next thing the complainant knows is that she is naked in bed with a complete stranger who is performing sexual acts upon her. She will say that she then leaves and goes back to the backpacker's hostel where she was staying. She was a tourist whose first reaction was simply to leave the country but, before doing so, and on reflection, she complained to the police who carried out a number of investigations. 3In particular, they arranged for a medical examination which revealed the presence of semen in the complainant's vagina. Some months after the complainant returned home to Denmark, a match was made between the DNA recovered from the complainant's vagina and DNA relating to an earlier matter involving this accused. He faced trial for this earlier matter and was convicted by a jury on one count which involved the digital penetration of the complainant in that matter. Her evidence was that after a fight with her boyfriend left her alone in the city with no money and no phone - at least not one that worked - she was befriended by the accused who took her back to an office to which he had access, gave her some red wine to drink, she then fell asleep and was woken by sexual activity. 4The Crown wishes to call evidence in this trial from the earlier complainant, arguing that it establishes a tendency on the part of the accused to act in a particular way and, as specified in the tendency notice, that particular way being: "to act in a sexually opportunistic and/or predatory way in relation to young, intoxicated women and removing the young, intoxicated women from a public place to a private place under which he has control and then sexual assaulting the women". 5The Crown says that that evidence has significant probative value. Ms Moen, for the accused, says it does not. In assessing the probative value of the evidence, it is important to identify the relevant fact in issue. In this case, Ms Moen, on behalf of the accused, has made an admission which removes the question of identity from being a relevant matter in dispute. The fact in issue, as particularised by the Crown on this application, is whether the complainant consented to what the accused did and, if she did not consent, whether he was aware that she was not consenting. 6The Crown particularised thirteen separate points of similarity between the circumstances arising in this case and the circumstances arising in the earlier case. When a judge looks at such a list, it is important to exercise care for two particular reasons. 7It is important to be cautious firstly because often what are said to be multiple points of similarity are often really only one point of similarity. The second reason for caution is that sometimes there is a limited number of ways in which an offence can be committed and similarities are often due to that circumstance rather than showing any particular tendency or coincidence. 8Let me illustrate what I mean. Judges are sometimes told by the person seeking to adduce the evidence, possibly in a table they have prepared, that there are many points of similarity between the facts of the alleged offence and the facts in the tendency evidence. Take a case where a person is alleged to have robbed a bank wearing a stocking over his face and the Crown wants to adduce evidence of another occasion where the accused did precisely that - wore a stocking while robbing a bank. It is possible to list the similarities between the two as these: * the robber disguised his appearance * the robber wore a stocking But in truth they are not two points of similarity but one. 9The other problem can be illustrated by a case where the prosecution relies on a similarity which is a common way of committing a crime. For example if the evidence at trial suggested that the person robbing the bank demanded money it is hardly significant that something similar happened in another bank robbery. 10Both these points can be illustrated in R v O'Keefe [2009] NSWCCA 121 where the Crown alleged that a particular accused committed a number of sexual assaults on different women who were out jogging. It relied on the circumstance that the assaults all took place in a secluded place, and that they took place in bushland. That is in effect saying the same thing twice (the first reason for caution) and it is not all surprising that a person would commit an offence of that nature in a location where there were unlikely to be witnesses (the second reason). 11With that preliminary matter out of the way, let me list the matters relied on by the Crown and make some comments about them. 12First, the Crown relies on the age of the complainants. The complainant in the first matter was eighteen and in the second matter nineteen. That is a point of similarity but the question is ultimately whether it, together with the other points of similarity is significantly probative. 13The second aspect relied on by the Crown is that reasonably shortly before sexual activity took place with a stranger, both complainants were alone in the city, the first complainant, after fighting with her boyfriend and the second complainant after separating from the one person she knew at the nightclub she was attending. 14The third point of similarity relied on by the Crown is that both of the young women were affected by alcohol. Given the age of the complainants and given the time of day when the events were alleged to have occurred, the fact that both complainants had been drinking I do not find terribly significant. 15The fourth aspect is that both the young women were unfamiliar with the city area. I am not sure why that is a relevant point of similarity. It seems to be more like a point of coincidence, (and I do not mean coincidence under the Evidence Act but pure coincidence). 16The fifth aspect relied on by the Crown is that the events took place late at night. Given that both the young women were intoxicated at the time, this might be thought to be related to that earlier aspect but, in any case, is not terribly unusual when we are talking about sexual activity occurring after going out and drinking. 17The sixth similarity concerns the place of the offence. I do not find it all surprising or unusual that sexual activity took place in a private place to which the accused had access. In any case, there are some dissimilarities. In relation to the first complainant, the assault occurred at work premises and in the second the alleged assault occurred in a room that the accused was renting. 18The seventh point of similarity concerns the place of the meeting. The complainant in the first matter met the accused at Town Hall. The complainant in the second matter became separated from her friend near Central Station. I have got two things to say about that. Firstly, they seem to be relatively dissimilar places of meeting and, in any case, there is no evidence as to where, in fact, the accused met the complainant in this present trial. There is no evidence, to be precise, that they met at the nightclub the complainant was attending. 19The eighth point of suggested similarity is that the accused invited each complainant to his place. That is certainly the case in relation to the first complainant, but in relation to the second complainant the most the Crown can rely on is something the complainant says the accused told her. He said, according to her, "I found you on the street. You had been puking". I repeat, the complainant herself had no memory of this and so the Crown can only point to what the accused said to the complainant about the circumstances in which they met. But the point raised by Ms Moen which I accept is that that says nothing about whether it was the accused who invited the complainant back to his place or the complainant made the suggestion herself. 20The ninth aspect is the one that has troubled me most. In both cases, there is evidence that the complainant was awoken by sexual activity with a stranger. However, Ms Moen makes a very good point about this aspect of the similarities relied on by the Crown. It is only a point of similarity if the jury accept that the complainant in the present trial was, indeed, asleep and then awoken by sexual activity. But if they do that - if the jury accept it - then it is impossible to conclude other than that the accused was performing sexual activity on a woman who was in no position to consent to that sexual activity. So if the jury accept that the complainant in this trial was asleep when sexual activity was performed upon her by the accused which caused her to wake, then a conviction is almost inevitable. The experience of the other complainant is thus of very little probative value. If, on the other hand, the jury do not accept that the complainant in the present trial was asleep and then awoken by sexual activity with the accused, then there is no point of similarity that the Crown can rely on. 21The tenth aspect concerns the nature of one of the sexual acts. Both acts involved digital penetration of the respective complainant's vagina. In the context of sexual activity, I find this is relatively commonplace. It adds nothing to the probative value of the tendency evidence. 22The next two matters concern behaviour after the sexual activity ceased. The eleventh matter relied on by the Crown is that the accused escorted the complainants off the premises and the twelfth is that he then paid for a taxi to take them home. Such behaviour may or not be unusual but, in any case, what does it say about the fact in issue? The behaviour of the man escorting a woman with whom he has just had sex off the premises and paying for a taxi to go home says nothing about whether that sex was consensual or not. 23The thirteenth aspect the Crown relied on only faintly. To the earlier complainant he gave his job as a comedian. He appears to have said something similar to one of the police investigating the present matter. That may have become a similarity of significance if identity was an issue, but it has been made clear that it is not. 24The Crown accepts two important matters. Firstly, that it is bound by the tendency notice of 17 June 2011 and, secondly, that two High Court decisions - one of Phillips v The Queen (2006) 225 CLR 303 and a more recent one of Stubley v Western Australia [2011] HCA 7 - are authorities that I should consider, despite the fact that they both concern States which do not have the uniform Evidence Act . The Crown, with respect, quite accurately summarised the decision of the High Court in Phillips by saying that evidence that one complainant did not consent to sexual activity with Mr Phillips is not significantly probative on the question as to whether a different complainant consented to sexual activity with the same man. 25No doubt conscious of that decision, the prosecution in Stubley attempted to suggest that the admission of propensity evidence in that case had significant probative value which went beyond the question as to whether any one complainant consented to sexual activity which took place with Dr Stubley. As I read the High Court decision in Stubley , their Honours found that the prosecution attempt had failed because the real issue ultimately was one of consent, (as in this case the accused in Stubley made admissions which left consent as the central issue). 26And so it really is in this case. Upon analysis, the thirteen factors which the Crown says provide the significant probative value of the first complainant's evidence as regards the issues in this trial suffer from a number of problems, in particular, the lacuna in the evidence as to what occurred between when the complainant separated from her friend at the nightclub and when she woke up naked in bed with a stranger - the accused. 27When I look at the tendency notice relied on by the Crown, it speaks of a person "removing" young intoxicated women from a public place to a private place under which he has control. But because of the lacuna that I have just mentioned, there is no direct evidence to establish that that is the way the accused behaved in relation to the complainant in this trial, removing her from a public place, and the fact that the Crown is forced to rely on inference says something about the probative value of what the Crown said is similar behaviour by the accused. 28It is a matter of pure speculation as to how the complainant in the present trial ended up in the private place under the control of the accused, as I have said before, the only evidence being what the accused said to the complainant about him finding her on the street after she had vomited. 29The Crown particularises the tendency as a tendency to act in a sexual opportunistic way. I interpret that as the Crown suggesting that it is unusual for a person to accept an opportunity to have sex. I do not accept the Crown submission. 30The suggestion that the accused has acted in a "predatory" way is perhaps imprecise but, if it does mean anything, it presumably means actions by an accused designed to allow himself to have sexual activity with a woman who is not consenting. And if that is the proper way of understanding what the word predatory means, then it runs up against the problems identified by the High Court in Phillips and Stubley . 31I am satisfied the proposed evidence does not have significant probative value. That means that I do not need to discuss two other matters: namely, whether the Crown would have been entitled to lead evidence that a jury convicted the accused on the earlier occasion; or examine the risk of unfair prejudice. Even though I do not need to, I will say a couple of things about those issues. 32Firstly, even if the evidence was admissible as tendency evidence, I would not have allowed the Crown to adduce evidence that a jury had found the accused guilty. The fact that twelve people have come to a view about the earlier complainant's evidence is not at all relevant to the issue as to whether a different jury should accept what the earlier complainant said on a later occasion. 33The only thing I want to say about the risk of unfair prejudice is this. There would be a real risk that the jury used the evidence as coincidence evidence rather than tendency evidence, and I note the Crown refers only to the evidence as being admissible as tendency evidence and has only served notice of "tendency" evidence. The risk is, of course, that the jury would say, "What a remarkable coincidence. Here is a man who is either very unlucky at having young women make allegations of sexual assault against him or else and this is much more likely those women have made those allegations against him because he has done exactly what they suggest he did". 34Whether that would have been enough to outweigh the probative value of the evidence if I had found that it was significant, is something I need not determine beyond saying that in the circumstance where the Crown relies only on tendency evidence and not coincidence evidence, the fact that the jury might rely on coincidence evidence would be a significantly prejudicial factor. 35Before making my final order, I wish to emphasise this. All rulings on evidence are made on the basis of the particular application put before me and the state of the evidence in the trial as it is at the time of the ruling. This is not to be taken as an invitation for the Crown to revisit my ruling, but if circumstances in the trial suggest that the evidence is substantially different from that on which I have made my ruling, then it may well be that the tendency evidence is admissible after all. 36The order I make is that the tendency evidence is rejected as having no significant probative value. ********** 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: 20 May 2020