Sex Offender Appeals Admission of Tendency Evidence

By Paul Gregoire and Ugur Nedim

Pierre Mol was a Sydney-based artist, who’d made quite a name for himself. Mol painted the largest mural in the southern hemisphere on the request of the Sultan of Brunei. He also painted the well-known mural in the Rocks of a 1901 photograph of Brown Bear Lane.

Today, Mr Mol is serving at least ten years behind bars in a NSW correctional facility, after being convicted of multiple sexual assault offences.

Mol searched for his prey on the popular online classifieds site Gumtree. He answered advertisements placed by women in their late teens, who were backpacking and seeking casual work. He invited them to his “professional art studio” to model semi-naked.

The offences

The court found that the artist’s first victim was a 19-year-old referred to in court at ‘HS,’ who was looking for babysitting work. On 4 May 2013, Mr Mol requested that she remove her bra as she sat for him. He then touched and licked her breasts. The court concluded that despite the young woman’s protests, Mol forcibly removed her pants and digitally penetrated her.

After Mol finished drawing HS, he paid her a fee and the woman left the room distraught. Although she notified a friend, she didn’t report the incident to police until August the following year, when she posted another babysitting advert online, and Mol answered that one as well.

Mol also replied to a casual work advertisement placed by two teenage Canadian tourists, KC and AY. The artist had both women over to model for him on 12 May. The court found that he touched both women’s breasts without warning, then pulled at the outside of KC’s vagina.

On 14 May, AY returned to Mol’s apartment to model for him again. This time, Mol began taking off his own clothes. The court found that he then forcibly removed the woman’s underwear, before performing digital and penile penetration upon her, despite her being distressed and crying.

A long stint inside

Mr Mol appeared before the NSW District Court in August 2015. He pleaded not guilty to 17 sexual assault charges. His defence lawyer agreed that some sexual activity took place, but argued it was consensual. Mol testified that HS didn’t cry, and AY only did so after the sexual activity took place.

A jury ultimately found Mol guilty of six counts of indecent assault, in contravention of section 61L of the Crimes Act 1900. The offence carries a maximum penalty of 5 years imprisonment.

Mr Mol was also convicted on five counts of sexual intercourse without consent, under section 61I of the Crimes Act. The maximum penalty for that offence is 14 years behind bars. It also carries a standard non-parole period (SNPP) of 7 years.

An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

The jury found Mr Mol not guilty of a further six sexual offences. The 50-year-old was refused bail ahead of sentencing.

On 9 October 2015, District Court Judge Julia Baly sentenced Mol to an aggregate period of 14 years in prison, with a non-parole period of 10 years. He will be eligible for parole in August 2025.

Tendency evidence

Mr Mol appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA) on 8 February last year. He did so on four grounds. The initial ground was that the judge had made an error in permitting the use of ‘tendency evidence’.

Tendency evidence is material which established that person either acted in a particular way on another occasion, or has had a particular state of mind at another time, that infers he or she could well have acted in that manner, or had that state of mind, on the occasion in question before the court.

Section 97(1) of the Evidence Act 1995 sets out the tendency rules as follows:

“(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

The Crown’s case

The Crown submitted tendency notices ahead of Mr Mol’s trial outlining that he had a tendency to act in a particular way, which was to engage in sexual activity with women in their late teens who he’d engaged to work as artistic models.

The notices further argued he had a tendency to have a particular state of mind, “namely to be reckless as to whether or not the young women who he engaged to model for him were consenting to sexual contact with him.”

This tendency of mind evidence relied upon the allegation he had initially touched the women’s breasts without warning. And in the case with HS and AY, he’d allegedly persisted in sexual contact, despite the obvious distress shown by the young women.

The bone of contention

Judge Baly accepted the tendency evidence both in regard to proving Mol acted in a particular way, and that he had a propensity towards a particular state of mind.

Mr Mol’s criminal defence barrister in the NSWCCA, Mr Tim Gartelmann SC (now a District Court judge) conceded that both forms of the tendency evidence had significant probative value, as required by the legislation.

However, the lawyer argued that the trial judge had made an error in finding that the probative value of the evidence pertaining to his client’s state of mind substantially outweighed its prejudicial effect.

Tendency evidence must pass a statutory test in order for it to be admitted in criminal proceedings. This is outlined in section 101(2) of the Evidence Act, which states that:

“(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is 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.”

The prejudice identified by Mr Mol’s lawyer was that the jury might be confused when applying this tendency evidence to the two differing charges of sexual intercourse without consent and indecent assault, as the mental elements for each offence are different.

The mental element required to establish sexual assault requires knowledge that the complainant does not consent. This is outlined in section 61HA (now superseded by section 61HE) of the Crimes Act. This provision does not apply to the offence of indecent assault.

The trial judge’s reasoning

Judge Baly accepted that the evidence did carry some prejudice, but found that this was diminished because the defendant admitted “most of the acts of misconduct.”

Her Honour made clear to the jury that the tendency evidence could not be used to establish whether Mr Mol had knowledge that the women in question did not consent, but it could only be used on the alternative basis that the defendant had shown recklessness as to their consent.

The judge explained that recklessness regarding consent is common to both offences.

According to Her Honour, the evidence that Mol had a tendency to have this reckless state of mind could only be applied after the prosecution had proven beyond a reasonable doubt that he had acted recklessly as to consent in relation to one or more of the alleged acts.

“If, and only if, you are satisfied beyond reasonable doubt that one or more of the counts has been proven by the Crown on the basis that the accused was reckless as to lack of consent on the part of the complainant,” her Honour directed, “then you must go on to consider” the tendency evidence.

The ruling of the appeals court

Justice Payne of the NSWCCA that explained the crux of the matter was whether the sentencing judge correctly weighed up that “the probative value of the evidence substantially outweighed the prejudice identified.”

The panel of appeals justices found that the two relevant matters were that Mr Mol had commenced sexual contact in each case by touching the victim’s breasts without warning, and that he had continued sexual contact with HS and AY despite the young women crying.

Given this pattern of occurrences, his Honour found the tendency evidence was “highly probative” and outweighed the prejudice caused. The justice further found that the jury was entitled to find that Mol had acted reckless as to consent in both matters.

Justice Payne assessed the risk of unfair prejudice as “relatively slight”, especially as the trial judge had given clear and accurate directions to the jury regarding how the evidence could be used.

The appeals court therefore dismissed this ground of appeal.

The remaining grounds

The second ground of appeal was that the sentencing judge had made an error by not allowing separate trials for each of the incidents.

However, Justice Payne explained that this ground relied on whether the tendency evidence was wrongly permitted, and since it was not, the ground was dismissed.

The final ground was that a miscarriage of justice had occurred when the sentencing judge withdrew a direction to the jury, and failed to adequately direct the jury in response to a question.

But the appeals court noted that an objection was not raised to these alleged errors during the trial, as required by rule 4 of the Criminal Appeal Rules.

Those grounds were therefore also dismissed.