Tendency evidence - proof and cross-proof: DPP v Roder (A Pseudonym) [2024] HCA 15

When a trial involves multiple charges against one defendant, and they are of a similar nature, an issue may arise over when evidence relating to one or more of those charges can be used as contributing to proof of one or more other of the charges.

If evidence about one offence is relevant to proof of another charge, that can be because it shows that the defendant has a propensity or a tendency to act in the way charged.

I use the synonym [23] propensity out of habit: I have a tendency to say propensity when I could equally say tendency.

Do the facts that allegedly show a propensity have to be proved beyond reasonable doubt before they can be used towards proof of another charge?

Further, what is the correct way to use propensity evidence in reasoning towards a verdict on a charge in respect of which the propensity evidence is admissible? Do charges have to be worked through sequentially and then re-worked as verdicts are reached and propensity evidence is accumulated?

In DPP v Roder (A Pseudonym) [2024] HCA 15 a bench of 7 justices delivered a unanimous judgment addressing issues that I have summarized in these questions, except here there was agreement between counsel on the cross-admissibility of the propensity evidence (the issue mentioned in my first paragraph, above). [6] The context is evidence legislation in the State of Victoria, but this judgment also has wider relevance.

Of interest to criminal procedure buffs and law reformers is the interlocutory nature of this appeal: the trial judge had issued a ruling about how the jury would be directed about the use of propensity evidence, and this ruling was the subject of the appeals. Plainly, this is a sensible method of preventing errors that could require orders for retrials.

What was decided here? No standard of proof applies to the issue of whether the evidence shows that the defendant has a propensity to act in the way charged. [31] There is one exception to this: where the existence of the propensity is an essential link in a chain of proof leading to the verdict. In such a case, the propensity would have to be proved beyond reasonable doubt unless legislation provides to the contrary. [24]

Here, the legislation does provide to the contrary, so the facts alleged to show a propensity never have to be proved beyond reasonable doubt. A different legislated position exists in New South Wales, as described at [29].[1]

Roder settles the question, whether a standard of proof applies to propensity evidence, that had been unclear at common law in Australia: see HML v The Queen [2008] HCA 16 (noted here on 26 April 2008) and Grooby v R [2018] NZSC 114. Now, the starting point for deciding issues concerning propensity evidence is always the relevant legislation.

But the more general relevance of this decision is on the use of propensity evidence where it arises from multiple charges. This is addressed at [26] where the Court endorsed the reasoning in JS v The Queen [2022] NSWCCA 145 at [43]:

“It is the tendency that is relied on as circumstantial evidence in proof of the charge on the indictment. The proper approach is to have regard to all the evidence ... relied on in proof of the tendency as evidence of the tendency alleged. To the extent that the jury is satisfied of the existence of the tendency, the tendency may be relied on in proof of the charge. …”(emphasis added by the HCA)

Points made here are mentioned at [27] and [28]. These are the demonstration of the lack of circularity and the confining of the use of the standard of proof to the verdict.

So, from the summary at [37], if the fact-finder is satisfied on the basis of all the evidence of the relevant propensity (gleaned from the evidence admissible on each charge) that the propensity exists then it can be used in deciding whether the likelihood is increased that the defendant committed the offence the fact-finder is considering. The complexity arising from a gradual emergence of propensity evidence as charges are worked through sequentially is thus avoided.

___________________________

[1] If, like me, you came to law after a degree in science, you will, at least at first impression, be horrified that standards of proof are not more widely used and are not specified precisely in terms of probabilities. After all, and on reflection, a trial at law is all about conditional probabilities and the comparison of two hypotheses. That is, given this item of evidence what is the probability of each hypothesis (guilt or innocence), and given all these items of evidence, what is the overall probability of each? And when are the probabilities sufficient to support a verdict of guilty? When is the probability of something high enough for me to be satisfied of it? Being satisfied of something in law usually means having decided to accept the existence of that thing. And usually, for example in relation to items of evidence as opposed to the ultimate verdict, acceptance means acceptance on the balance of probabilities. But courts can differ over whether the balance of probabilities is a fixed standard or whether it changes according to the seriousness of the consequences of being satisfied of the existence of the thing.

Conspiracy and the scope of the agreement: DPP(Cth) v Kola [2024] HCA 14

Identifying the scope of an agreement is essential when considering the law of conspiracy. This is illustrated in DPP(Cth) v Kola [2024] HCA 14. The statutory context is important, particularly if it provides that where an offence has an element of absolute liability the conspiracy to commit that offence retains absolute liability as to that circumstance. [1]

In Kola the charge was conspiracy to import a commercial quantity of cocaine. For the full offence, importation of a commercial quantity of cocaine, absolute liability applied to the amount of the drug. That is, it was not necessary to prove that the defendant knew of the amount of drug that was imported. One of the issues in this appeal was whether liability for the corresponding conspiracy required an intention to import that quantity of the drug.

Consistently with R v LK, [2] the Court held that under the relevant legislation proof of the agreement to commit the offence did not include proof that the parties to the agreement intended to import a commercial quantity of cocaine. [25]

The illustration given at [29] is helpful in that it shows the importance of identifying the scope of what was agreed. The facts might be such that by using the agreed method of importation it would not be possible to import a commercial quantity of the drug. Further, if the agreed method of importation was departed from by other co-conspirators so that a commercial quantity of the drug could be imported, the defendant would not then be a party to the new agreement to import a commercial quantity of the drug. But if the defendant had agreed to a method of importation that allowed for a commercial quantity of cocaine to be imported, the defendant would be liable for the conspiracy to import a commercial quantity of the drug because of the absolute liability provision.

And this is where the second aspect of this appeal comes into play. The charge was conspiracy because, as is usually the case with conspiracy charges, the full offence was not committed. [3] It was still necessary to prove the scope of the agreement. Here, from the proven facts, it was obvious that there was reasonable proof that a commercial quantity of the drug was intended to be imported [45], and consequently that evidence of the acts of co-conspirators was admissible to prove that the intended course of conduct would, had it been carried out, have resulted in the importation of a commercial quantity of the drug. Again, whether the defendant knew or intended this was irrelevant because of the absolute liability provision, but it was relevant that he knew how the importation was to occur.

A puzzling point occurs in Kola at [25]:

“… to establish the offence of conspiring to import a commercial quantity of a border controlled drug, the prosecution must prove, inter alia: that the accused participated in or was a party to an agreement to import a commercial quantity of a border controlled drug; that the accused intended to participate in or be a party to such an agreement; and that the accused and another person intended that a border controlled drug would be imported pursuant to the agreement, that is, they knew or believed that a border controlled drug would be imported pursuant to the agreement.” [emphasis added]

As a result of the agreement having to be to import a commercial quantity of the drug (this was the way the Court stated the first element), the Court identifies “an obvious tension” [27]. The resolution given in that paragraph is somewhat obscure, particularly as the Court approved the trial judge’s direction which had omitted reference to commercial quantity when describing the first element [39]-[40]. The real issue was whether the scope of the agreement was such that, if executed, a commercial quantity of the drug would have been imported [41]. This would be a correct way of putting the first element.

Here, there was no suggestion that the co-conspirators had gone beyond what Mr Kola had agreed to [46], and the circumstances indicating the scope of his agreement are mentioned at [13].

In considering the law of conspiracy and the relevance of this decision in other jurisdictions, differences in legislation must be assessed, as must the particular circumstances bearing on the scope of the alleged agreement.

______________________________________

[1] Here the Court was considering s 11.5 and 307.1 of the Criminal Code (Cth). For s 11.5, see [20], and for a description of s 307.1 see [24].

[2] R v LK [2010] HCA 17. See my note dated 26 May 2010. LK is remarkable for its use of the word epexegetical at [133]. Don’t play Scrabble against those guys. LK holds that if an offence can be committed recklessly, a conspiracy to commit that offence requires intention or knowledge [141]. The relevant element there was the fact that money was the proceeds of crime. Another element, not relevant to that decision, was that the amount of the money was $1m or more and this was an element to which absolute liability applied: Kola at [23].

[3] Often, defendants are charged as conspirators even though the full offence has been committed, for example where supplies of a drug have occurred.

The meaning of "and": Pulsifer v United States USSC 22-340

When a statutory exception is followed by a list of conditions, a court may have to decide whether the list is conjunctive or disjunctive. That is, must all the conditions be satisfied before the exception applies, or need only an individual condition be satisfied for the exception to apply?

This problem split the Supreme Court of the United States 6-3 in Pulsifer v United States USSC 22-340 (15 March 2024).

At issue was an exception to protection against imposition of a statutory minimum sentence. It was an issue that mattered “profoundly”, affecting the lives and liberty of thousands of individuals (per Gorsich J, joined by Sotomayor and Jackson JJ for the minority).

For lawyers, the point of construction at issue has an entertainment value that belies its seriousness. It is worth reading the provision first (set out in the Appendix to the judgment of the Court), to see what you think is its ordinary and natural meaning.

The majority, in a judgment delivered by Kagan J, did not consider that the provision was genuinely ambiguous, notwithstanding that, viewed in the abstract, two readings were grammatically permissible. Therefore the rule of lenity (which would favour the construction that was most favourable to a defendant) had no role here. The interpretation argued for on behalf of Mr Pulsifer, said the majority, created “glaring superfluity”. Considered in its legal context, the text must be construed to avoid superfluity, and further, the exception to protection against liability for a minimum sentence must as a matter of policy reflect the (relative lack of [1]) seriousness of defendants’ criminal records.

In the majority’s opinion, Mr Pulsifer”s argument was that to be included in the exception from protection against imposition of the minimum penalty a defendant would have to meet all three conditions, but this would mean that if conditions 2 and 3 were met, condition 1 would be superfluous.

The minority disagreed with this claim of superfluity as it depended on how prior offenses were counted, and held that the policy justification could not overcome the plain meaning of the text.

Anyway, students of statutory construction should read this case, if only for entertainment (but remembering the minority’s observation that statutes aren’t games or puzzles).

Fifty-nine and a half pages on the meaning of “and”. Who could resist?

_______________________________

[1] I parenthesize "relative lack of" seriousness, because ironically the majority insist that only one of the disqualifying conditions needs to be met, whereas the minority would have required all the conditions - meaning a very serious record of offending - to be met before a defendant was disqualified from protection against imposition of the minimum sentence.

Dealing with jury misconduct: Campbell v R (No 2) (Jamaica) [2024] UKPC 6

Dealing with the risk that a jury was “poisoned” (so to speak) [1]) by misbehaviour was the topic considered in Campbell v R (No 2) (Jamaica) [2024] UKPC 6.

The difficulty for the trial judge in this case was that at the closing stage of a lengthy and complex (and necessarily expensive) trial a concern was raised that attempts had been made by one juror to bribe others - the number was not clear - to acquit the defendants. Could this risk be avoided by judicial management?

The Board held that the measures taken here had not been sufficient [44]-[45]. The defendants’ fundamental right to a fair trial by an independent and impartial court had been infringed. The judge’s duty was 

“to ensure a fair trial. In order to maintain public confidence in the administration of justice it is necessary to do justice to both prosecution and defence so that the guilty may be convicted and the innocent acquitted.” [47]

So the party that may have been prejudiced (the prosecution) could not waive the misconduct.

The judge should have considered whether there was “a real risk” that jurors may have been consciously or unconsciously prejudiced for or against one or more of the defendants [48]-[53].

Here the verdicts were returned by a jury that was not a fair and impartial tribunal of fact, so there was no room for application of the proviso. [55]

It was for the local courts to decide whether a retrial should be ordered [63]-[64].

________________________________

[1] Borrowing at [48]-[51] the language of Bingham LJ in R v Putnam (1991) 93 Cr App R 281, 286-287.

The Australian common law of duress: The King v Anna Rowan (A Pseudonym) [2024] HCA 9

Is it right in principle to require, for the defence of duress, that the threat be accompanied by a demand that a particular offence be committed?

And can the threat be implied from the circumstances, or must it be an express threat?

The Australian common law was considered in The King v Anna Rowan (A Pseudonym) [2024] HCA 9.

In a joint judgment Gageler CJ, Gordon, Jagot and Beech-Jones JJ held that Australian common law of duress does indeed require that the threat included a requirement or demand that the defendant commit the acts that constitute the offence charged [53]. Also, the threat and the demand can be unstated but implied from the circumstances [55], [57]. Here, the Court of Appeal had not made the mistake of moving away from the established common law of duress, which was the Crown’s concern, and, as there had been sufficient evidence at voir dire to raise duress as a live issue, this appeal against the Court of Appeal’s reversal of the judge’s decision was dismissed.

Edelman J concurred in the result but suggested a principled development of the Australian common law. He argued that there is no basis for a distinction between threats made by a human person and threats from other sources [84]. This is so, notwithstanding that duress and necessity are separate, and neither party here sought their unification [86]-[87]. Also, although neither party submitted that a demand directed at the commission of a particular offence was unnecessary, such a demand is not needed [98].

The requirement for a demand that a particular offence (the offence charged) be committed to avoid the threatened acts is contrary to principle [106]. Here, the point being made appears to be that if the defence of duress was only available for the demanded offence, a defendant who found a way to avoid the threatened action by committing a lesser offence would not have the defence of duress for that lesser offence. Indeed, continued Edelman J, there need not be any demand for an offence to be committed, as where the defendant drove dangerously to avoid threats of violence from a dangerous mob [107].

Common sense in assessments of the credibility and reliability of witnesses in judge-alone trials: R v Kruk, 2024 SCC 7

In judge-alone trials, the judge must give reasons for the verdict. This obligation creates difficulties for the judge, especially around adequately explaining reasons for assessments of the credibility and reliability of witnesses. There can be a tendency for judges to refer to their common sense and their experience of the ways of the world. This might lead to a departure from the evidence in the case. How should an appellate court determine whether the judge has reasoned lawfully?

This was the central question in R v Kruk, 2024 SCC 7.

The Court unanimously rejected a rule-based approach called “the rule against ungrounded common-sense assumptions” [1].

There were numerous reasons for that rejection, but of more general interest is the articulation(s) of the correct appellate approach to judicial assumptions not supported (or controverted) by evidence.

Two judgments were delivered, with Rowe J agreeing in the results of these appeals (in two unrelated cases) but setting out the analysis he prefers. How different is this from that of the other judges - Wagner CJ, Coté, Martin, Kasirer Jamal and O’Bonsawin JJ - in their joint judgment?

The joint judgment sets out “the existing and well-established law on assessing a trial judge’s credibility or reliability assessments” at [93]-[99]. As their summary is given “for the utmost clarity” [93], it seems pointless to summarize their summary.

But in asking whether Rowe J’s approach is different, comparison of [93]-[99] with [129]-[132] is necessary. He describes the issue in these terms: “These two appeals ask how appellate courts should review trial judges’ reliance on generalized expectations based on common sense and human experience in the fact-finding process” [128]. Broadly, appellate courts need to be sure that what the judge relied on was indeed a generalized expectation and not an assessment of evidence in the case ([130] - this is what the joint judgment says at [94]), then, if reliance had been placed on a generalized expectation, ask whether that expectation was reasonable ([131] - here the joint judgment at [95] diverts to address unreasonable assumptions and to consider how these should be reviewed on appeal [96]-[97]), and if it was reasonable, ask whether it was used to replace evidence instead of being a benchmark for assessing the evidence ([132] and here the joint judgment follows an identification of error by asking whether it was “palpable” in the sense that it affected the result or went to the very core of the outcome of the case [98]).

One kind of error is an error of law, and the standard for review is simply whether the judge got the law right [96]. Examples of this open-ended category are given at [96]. If the error was not one of law, the standard for review is whether the error was palpable and overriding, and examples are given at [97].

A case that was overruled in Kruk provides a quite amusing (at least, I think so) illustration of how absurd it is to require generalizations that are advanced to support credibility and reliability findings to be grounded in evidence: R v JC, 2018 ONSC 5547. See Kruk per Rowe J at [211]-[213], and the joint judgment at [21]-[23]. Absurd, because “The Crown cannot be expected to elicit evidence on how sexual encounters ordinarily unfold in every sexual assault trial before a trial judge can rely on their common sense or human experience with respect to human sexual behaviour” [211].

New offence or improved old offence? Xerri v The King [2024] HCA 5

It is not unusual for legislation defining an offence to be changed, and a question may arise as to whether the change creates a new offence, or whether the original offence (the predecessor offence) was merely reformulated, refined or improved.

This was the issue in Xerri v The King [2024] HCA 5, as stated by Gageler CJ and Jagot J at [14], and by Gordon, Steward and Gleeson JJ at [41]. If the change did not create a new offence but, inter alia, increased the maximum penalty, an offender would have the benefit of the lesser penalty if the offending occurred before the change (this rule is embodied in the legislation referred to at [7] and [41]).

Whether a change is so radical as to create a new offence can be a difficult question, the answer only seeming simple once it has been decided in a court of final appeal. Here, it seems that after the hearing of the appeal in the High Court the Crown (the ultimate winner) was not confident of victory, and it was given leave to file supplementary submissions [37], [68]. These did not need to be addressed.

In comparing the old with the new versions it is necessary to focus on the substance, rather than the form, of the provisions [15]. Here, Gageler CJ and Jagot J listed six substantial differences between the provisions ([16]-[21]), and Gordon, Steward and Gleeson JJ listed eight ([60]). The Court was unanimous in deciding that a new offence had been created, that the increased maximum penalty applied, and the appeal was dismissed.

The reasons for the change in legislation assisted in explaining why this was a new offence. References to a report by a Royal Commission, and to explanations in the Second Reading debate provided useful context.

Several problems were addressed by the new provisions. For example - and all this was about sexual offending by adults against children - it could be difficult for complainants to say precisely when alleged offending occurred, juries might not agree that all of several allegations were proved, historical sentencing patterns might now seem inappropriately lenient, and defendants should not benefit from their own delaying tactics in progressing cases to trial. Accordingly, the new law requires proof of an unlawful sexual relationship, and a jury need not be unanimous about which alleged incidents occurred when deciding whether there had been such a relationship. The new maximum penalty applies, whether the relationship occurred before, during or after the commencement of the new legislation.

How private is an IP address? R v Bykovets, 2024 SCC 6

How private is an IP address?

Is it like a fingerprint at the scene of a crime? Of itself it says nothing until matched with other information. No one has privacy rights in respect of fingerprints they may leave on things.

Or is an IP address as private as the information to which it is linked?

Whether there is privacy in an IP address is a difficult question. The strong dissent of four justices in R v Bykovets, 2024 SCC 6 demonstrates how vexed this is.

Wagner CJ, with Coté J (who delivered the joint dissenting judgment), Rowe and O’Bonsawin JJ made the fingerprint point at [154]. Their judgment focuses on the circumstances of the present case and recognises that on different facts a person might have a reasonable expectation of privacy [159]. Further, the Court’s jurisdiction is confined to questions of law arising from the facts as they are, not as they might be [161]-[162]. Consistent with this is the circumscribed role that interveners can have [163]. In essence, held the minority, the majority answer a question that was not asked [164]. Of most significance to the difference between the judges is the majority’s inclusion in the subject matter of the privacy question every step leading to the ultimate identification of the suspect notwithstanding that the IP address alone does not go that far [138].

Karakatsanis J delivered the majority judgment of herself and Martin, Kasirer, Jamal and Moreau JJ. For what an IP address does, see [4]. One asks, what were the police really after? An holistic approach must be taken in answering this [34]. The privacy interests are intense [60]-[70]. These outweigh the burden on the police of having to obtain search warrants [86].

Both judgments accepted that the approach is normative (see [120] for what this means). So the question is not determined by whether an individual has a low expectation of privacy (for example because of having a suspicious nature). Instead, the determination is about what expectation of privacy a person should have. The difference is in over what the judges considered was a reasonable expectation of privacy (for the dissenters, in the circumstances of this case [141]-[158], for the majority, generally [44]-[70]).

This was a case about credit card fraud. The minority saw no reasonable expectation of privacy as to IP address in that context. In what context might the minority have held that there was a reasonable expectation of privacy? The significant point here is that here the IP address did not reveal core biographical information [148], while on other facts it might. The important thing about the context seems to be, not the offence being investigated but the extent to which core biographical information is revealed.

The majority's teleological approach to the issue - addressing the purpose of the search - is consistent with the development of the common law in the interests of the community, whereas the minority's narrower perspective is a case law application of legislation to the facts of the instant case. The distinction between common law and case law (not a universally recognised distinction, but useful nevertheless) is illustrated here.