Cooper v The King

[2022] NTCCA 16

CITATION:   Cooper v The King [2022] NTCCA 16

PARTIES:  COOPER, Benjamin

v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:No. CA 2 of 2020 (21910113)

DELIVERED:  18 October 2022

HEARING DATE:  19 October 2020

JUDGMENT OF:  Grant CJ, Barr and Hiley JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict

Appellant found guilty of exposing a child to an indecent act – Crown alleged appellant intentionally exposed his penis to eight-year-old female child – Whether verdict unreasonable and not supported by evidence at trial – The purported inconsistencies, discrepancies and other inadequacies identified by the appellant did not lead to a satisfaction that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt – Ground 1 dismissed. 

Criminal Code 1983 (NT), s 411

M v The Queen (1994) 181 CLR 487; Libke v The Queen (2017) 230 CLR 559; McDonough v The Queen [2021] NTCCA 9, MLW v The Queen [2022] NTCCA 2, Pell v The Queen (2020) 268 CLR 123; Lynch v The Queen [2020] NTCCA 6; Foster v The Queen [2021] NTCCA 8, referred to.

CRIME – Appeals – Appeal against conviction – Miscarriage of justice

Whether trial judge misdirected jury by failing to specify act of beckoning complainant an essential component of element of indecency – Act of exposure did not require additional component of beckoning to constitute indecency – Evidence of beckoning relevant to element of intention to expose penis – Ground 2 dismissed. 

CRIME – Appeals – Appeal against conviction – Wrong decision on a question of law

Whether context evidence admitted in error – Evidence potentially relevant and probative because if accepted by the jury could rationally affect the assessment of the probability of the existence of material facts – Evidence not properly excluded on the basis that unfair prejudice outweighed probative value – Prejudice capable of amelioration by directions – Jury correctly directed on use of context evidence – Ground 3 dismissed.

Conway v R (2000) 172 ALR 185, DPP v Martin [2016] VSCA 219, Ellis v R (2010) 30 VR 428, FDP v R [2008] NSWCCA 317, HML v The Queen (2008) 235 CLR 334, KRM v R (2001) 206 CLR 221, R v Anderson (2000) 111 A Crim R 19, R v Basten [2009] VSCA 157, R v Beserick (1993) 66 A Crim R 419, R v Cornwell (2003) 57 NSWLR 82, R v Grant (2016) 262 A Crim R 348, R v Iuliano [1971] VR 412, R v Dolan (1992) 58 SASR 501, R v Leonard (2006) 67 NSWLR 545, R v Lock (1997) 91 A Crim R 356, R v Loguancio (2000) 1 VR 235, R v Lubik [2010] VSC 465, R v Murdoch (2013) 40 VR 451, R v Quach [2002] NSWCCA 519, R v Tsingopoulos [1964] VR 676, R v Vonarx [1999] 3 VR 618, R v VN (2006) 15 VR 113, Rodden v R [2008] NSWCCA 53, Wilson v The Queen (1970) 123 CLR 334, referred to.

REPRESENTATION:

Counsel:

Appellant:M Aust

Respondent:    M Nathan SC with T Grealy

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:    Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  52

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Cooper v The King [2022] NTCCA 16

No. CA 2 of 2020 (21910113)

BETWEEN:

BENJAMIN COOPER

Appellant

AND:

THE KING

Respondent

CORAM:    GRANT CJ, BARR & HILEY JJ

REASONS FOR JUDGMENT

(Delivered 18 October 2022)

GRANT CJ AND HILEYJ:

1. On 12 February 2020, the appellant was found guilty of the offence of exposing a child under the age of 16 years to an indecent act. He was also found guilty of the circumstance of aggravation that the victim was under the age of ten years, namely eight years.  On 13 February 2020, the appellant was sentenced to imprisonment for nine months for that offence.  That sentence was backdated to commence on 3 March 2019.  The appellant had already served the period of imprisonment which was imposed for the indecency offence prior to the hearing of this appeal. 

2. Leave to appeal against conviction was granted on three grounds.  We have had the benefit of reading Barr J’s reasons in draft, and we gratefully adopt his Honour’s statement of the facts, the evidence received at trial and the directions given to the jury.  We also respectfully agree with Barr J’s conclusion that Grounds 1 and 2 of the appeal have not been made out for the reasons given by his Honour. However, for the reasons which follow we consider that Ground 3 of the appeal, which asserts that the evidence of “the shower incident” was erroneously admitted, must also fail and that the appeal should be dismissed.

3. The ruling admitting the shower evidence was made by a judge other than the trial judge at the time the complainant’s evidence was pre-recorded on 8 November 2019. There was no subsequent application to the trial judge to revisit that ruling before or during the trial conducted in February 2020.  The contentions now made on appeal are that the evidence was not relevant;[1] or, in the alternative, that its probative value was minimal and its prejudicial effect was such that it should have been excluded under s 137 of the Evidence (National Uniform Legislation) Act 2011 (NT) (“the ENULA”).[2]

   The evidence concerning the shower incident

4. The detail of the evidence in relation to the shower incident is set out in Barr J’s reasons for decision.  It may be summarised as follows. 

5. In the interview with Senior Constable Tickner, the complainant described an incident earlier on the day in question during which the accused had looked into the upstairs bathroom of the unit while the complainant was showering her little sister.  The complainant described the accused as staring at her and her little sister in the shower while the little sister was naked, and described the accused’s conduct as: “And, and doing a rude stuff on my sister.  He doing a rude stuff at my sister too.  Um, um, he name, he was staring at my sister, was being naked.”

6. During the pre-recording of the complainant’s evidence on 8 November 2019, defence counsel did not seek to cross-examine or challenge the complainant in relation to her description of the shower incident, beyond confirming the location of the bathroom and that the complainant had already had a shower that morning.  During re-examination, the complainant repeated that while she was bathing her little sister in the shower the appellant was standing there “looking at me”, “peeping” and “staring at me”. When asked how long he was staring at her, she replied: “Too long.”[3]

7. In challenging the admissibility of the evidence for context purposes, defence counsel conceded that, taken at its highest, the evidence “would be capable of providing some sort of context as to why a man would expose himself to a young child”,[4] but submitted that the evidence should be excluded because it was very vague and there was a significant danger of it being misused.[5] That submission properly recognised that the evidence might have probative value, depending upon what findings were made by the jury in relation to the nature of the accused’s conduct, but sought its exclusion on the basis that any probative value would be outweighed by the prejudicial effect of receiving the evidence.

   The admissibility of context evidence

8. As the High Court found in HML v The Queen, evidence of other conduct by an accused may, depending upon the circumstances, be admissible for non-tendency purposes, including the following purposes:[6]

   (a)as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence (at [6], [155]-[156]);

   (b)as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct and to explain the offences charged (at [425], [431]);

   (c)to overcome a false impression that the event was an isolated one, that the offence happened “out of the blue”, where the acts are closely and inextricably mixed up with the history of the offence (at [500], [513]);

   (d)to ensure that the jury are not required to decide issues in a vacuum (at [428], [498]); and

   (e)as negativing issues raised such as accident or mistake (at [430]).

9. Although the ENULA does not specifically deal with evidence of this nature, evidence of “context” is admissible provided it meets the test of relevance.  The evidence does not need to satisfy the tendency rule in order to be relevant or admissible,[7] but it cannot be used for a propensity purpose. The admissibility of evidence for non-tendency purposes is governed by the general test of relevance in s 55 of the ENULA, and the discretions and obligations contained in Part 3.11 of the ENULA (particularly ss 135 and 137).[8]  In particular, the evidence must be capable of rationally informing one or other of the considerations set out in the preceding paragraph, and it must not relate to an incident which is too remote in time from the alleged offending for it to have any relevance in relation to a fact or facts in issue.[9]  Counsel for the appellant contended that the evidence was so lacking in probative value that it was not rationally capable of affecting the jury’s assessment of the probability of a fact in issue in the proceeding and, thus, was incapable of categorisation as relevant “context” evidence.[10]

10. In cases involving allegations of sexual offending, context evidence may be admitted to demonstrate the accused’s sexual interest in the complainant.  Evidence demonstrating that an accused had a sexual interest in the complainant may demonstrate motive in the general sense.  However, the evidence cannot be used to demonstrate a specific propensity to act on a sexual interest in the complainant unless it has satisfied the tendency rule.[11]  The evidence of the shower incident was potentially relevant as context evidence in four closely related ways.  First, it might demonstrate some motive for the accused’s alleged conduct on the evening of the same day on which the shower incident took place.  Secondly, it might assist to prevent the jury from forming the false impression that the complainant’s allegation was implausible because it was in relation to conduct appearing otherwise to be a single and isolated event.[12]  Thirdly, it might assist in dispelling any erroneous impression that the conduct occurred “out of the blue”.[13]  Fourthly, it might assist in answering the question whether the accused’s exposure of his penis was intentional or accidental.  Accordingly, the evidence in relation to the shower incident was both relevant and probative in the sense that, if it were accepted by the jury, it could rationally affect the assessment of the probability of the existence of a material fact or facts.

11. It was not incumbent on the court at first instance to consider the reliability of the evidence in the assessment of probative value.  The court was required to proceed on the assumption that the evidence would be accepted as true and the prosecution case in relation to that evidence may be accepted by the jury.  It was also unnecessary for the court at first instance to be satisfied that the evidence bore no reasonable explanation other than the inculpation of the accused in the offence charged or, to put it the other way, that an innocent explanation for the conduct was objectively improbable.  These were ultimately matters for the jury to determine in the event that the evidence was otherwise admissible.  In any event, it is relevant in these respects that the shower incident was first raised by the complainant without prompting from any relative or investigating official, and that the evidence was not challenged during the course of the cross-examination of the complainant.

12. The gravamen of the appellant’s contention in relation to probative value was that:

    [A]t its highest [the evidence] showed that at some point on the same day, the applicant had walked past a bathroom in which the complainant, who was fully clothed, was bathing her sister and looked through the door, which was, it seems, already open. The only estimate of time (“too long”) had no point of reference and was inherently ambiguous. The applicant said nothing. He made no attempt to enter. He left of his own motion and did not need to be told to leave.[14]

13. Counsel for the appellant contended that the evidence was “so equivocal as to be incapable of establishing that the applicant had an interest in the complainant, or that he had improperly ‘paid’ her attention, as the Crown contended.”  It was said that the only evidence in the case that contextualised the evidence of the shower incident was the evidence about the offending itself, and it would be impermissible for the jury to use that evidence in order to decide that the conduct concerning the shower incident was inappropriate and therefore contextually relevant to the offending itself.

14. Those submissions understate the nature and content of the context evidence.  The evidence does not suggest that the appellant was simply looking through the door as he was walking past the bathroom.  The evidence was to the effect that after walking up the stairs, the accused stood looking at the complainant as she was bathing her naked sister in the shower in the upstairs bathroom.  The nature of the accused’s gaze was described variously as “peeping”, “staring” and “looking” at the complainant and her sister for a period which was said to be “[t]oo long”.  It is clear that in the complainant’s mind, at least, the accused’s interest appeared sexual in nature because she described it as “doing a rude stuff at my sister too”. 

15. As stated, those descriptions and perceptions were not challenged in cross-examination.  Even if the complainant had been asked to quantify the length of time for which the accused stood there in terms of seconds or minutes, it is unlikely that her answers to such questions would have been determinative of whether or not she was correct when she used the words “too long” and whether or not she properly considered his conduct to suggest an inappropriate sexual interest.  These were matters for the jury to determine having regard to, amongst other things, its assessment of the complainant’s reliability generally and any submission which the defence might have wished to put in relation to what was said to be the vague and ambiguous nature of the evidence, possible alternative explanations and what finding was properly open having regard to that evidence.

16. Counsel for the appellant contended on appeal that the accused could well have been looking for a toilet when he went upstairs and looked into the bathroom.  As part of that submission, counsel for the appellant was critical of the prosecutor for inviting the jury in her closing address to consider whether there might have been a toilet available downstairs.  That criticism was based on the assertion that the Crown had not called any evidence about where the toilet or toilets were situated in the two-story apartment, and that the jury was in effect invited to speculate that there was a toilet downstairs that the appellant could and should have used instead of going upstairs. 

17. A number of observations may be made in relation to that submission.  First, the context evidence was directed to the accused’s conduct in “staring” at the girls in the bathroom, rather than to the question of why he had gone upstairs in the first place.  The existence of a possible innocent explanation for why the accused went upstairs was of little assistance in determining the character of his conduct once there.  Secondly, there was evidence received during the course of the trial in the form of diagrams of the unit that showed that there was in fact a bathroom downstairs.[15]  Thirdly, nothing said by the Crown during the course of its closing address precluded the defence from making its own submissions in relation to possible alternative explanations of the accused’s conduct and what finding was properly open having regard to the content of the context evidence.

    Exclusion of prejudicial evidence

18. Even if it is accepted that the evidence in relation to the shower incident was both relevant and probative in the relevant sense, the appellant contends that the court at first instance was obliged by s 137 of the ENULA to refuse to admit the evidence because its probative value was outweighed by the danger of unfair prejudice to the accused. 

19. The dominant consideration in balancing probative value against prejudicial effect remains ensuring that an accused is not deprived by prejudice of a fair trial.  The notion of prejudice in this context “means the danger of improper use of the evidence.  It does not mean its legitimate tendency to inculpate”.  In other words, evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.  Prejudice will be unfair if there is a real risk that the evidence will be misused by the jury in some unfair way.  The test of a danger of unfair prejudice is not satisfied by the mere possibility of such prejudice.  There must be a real risk of unfair prejudice by reason of the admission of the evidence.[16]

20. The first potential risk which presented in this case was that the evidence of the accused’s conduct in the shower incident might provoke some irrational, emotional or illogical response in the jury and divert its attention from the question whether the Crown has established the elements of the offence in question beyond reasonable doubt.  The second potential risk was that the jury might give the evidence more weight than it deserved and simply assume the accused's guilt or deploy the evidence in propensity reasoning. 

21. Both of those potential risks are capable of accommodation and amelioration by suitable directions.  Counsel for the appellant conceded that the jury were adequately directed on the permissible uses of the evidence, and that in most cases it can be assumed that juries will understand and follow judges’ directions.  Counsel for the appellant contended that notwithstanding this well-accepted principle, the jury’s “emotional response” to the shower evidence might nevertheless cause it to give the shower evidence undue weight, thus causing prejudice to the applicant.  In our assessment, this was not the sort of evidence likely to provoke such an extreme reaction in the jury that appropriate directions could not eliminate, or substantially reduce, the risk of prejudice. 

22. So far as the content of the directions were concerned, the jury was directed on how to use the evidence, including not to use it for tendency purposes or to engage in propensity reasoning.  In the course of those directions the trial judge drew attention to the fact that it was a matter for the jury to determine whether there might be an innocent explanation for the accused’s conduct during the course of the shower incident.  The trial judge repeated defence counsel’s submissions to the effect that the jury could not be satisfied to the requisite standard that the incident had happened at all, and that if the jury was satisfied that something did happen, it was at least reasonably possible that there was an innocent explanation – including that he had gone upstairs to use the toilet and looked into the bathroom to see if it was occupied.  The trial judge also repeated the defence submission to the effect that the parents of the complainant had no recollection of the children showering earlier that day, that they ordinarily showered in the morning, and that the accused had arrived at the residence at some time after 2 o’clock in the afternoon.  The trial judge concluded that survey of the defence submissions by directing the jury that if they were to use the evidence of the shower incident for context purposes, they would need to be satisfied both that the incident had taken place and that there was something inappropriate about the accused’s conduct at that time.  They were directed to simply set the evidence aside if they were not satisfied of those two matters.

1. Those directions were proper and adequate for the purpose, and did full justice to the defence submissions and the jury’s task in its assessment and treatment of the context evidence.  Had the trial judge’s directions not been clear and comprehensible on this issue, one would have expected defence counsel to raise this with the trial judge and seek further explanation or directions.  That did not occur.

2. Counsel for the appellant also contended that evidence of the uncharged act gave rise to a forensic disadvantage by requiring the accused to answer them.[17]  The disadvantage is said to arise from the need for the accused to give evidence in order to deny the alleged conduct in circumstances where he might otherwise remain silent on the substantive charge; and the forensic difficulties inherent in highlighting the weakness of the evidence during the defence’s closing address while at the same time not affording the evidence more attention than it might otherwise deserve.  These issues arise in relation to any matter in which tendency, coincidence or context evidence relating to uncharged acts is admitted.  Something particular about the matter is required in order for those issues to constitute unfair prejudice in the relevant sense.  Counsel for the appellant did not identify any such matter operating in the present case.

3. Ultimately, the appellant’s argument in relation to exclusion on the ground of unfair prejudice boils down to the assertion that the evidence of the shower incident had no or minimal probative value, but palpably suggested bad character on the part of the appellant by reason of a sexual interest in young girls.  On that characterisation, the evidence was nothing more than “rank bad character or tendency” evidence and unfairly prejudicial.[18]  For the reasons which we have attempted to describe above, the evidence did not have no or minimal probative value.  Depending on the findings made by the jury, it had considerable probative value in relation to a number of facts in issue.  Ranged against that, the conduct described in that evidence, even if the jury made findings adverse to the accused, was not criminal in nature and not otherwise so serious or heinous as to provoke an unnatural or unreasonable response.  In fact, the accused’s conduct was less likely to elicit that sort of response than the type of evidence generally admitted for context, relationship or tendency purposes.  In addition, the jury were carefully and correctly directed by the trial judge in relation to the uses to which the context evidence could be put, and the limitations on that use.

4. Accordingly, we are of the opinion that the evidence was relevant as context evidence and not rendered inadmissible by s 137 of the ENULA.

   Disposition

5. The appellant has not made out any of the grounds of appeal and we order that the appeal is dismissed.

   BARR J

6. On 12 February 2020 the appellant was found guilty, by majority verdict, of an offence charged on indictment that on 30 January 2019, at Katherine, he had exposed a child under the age of 16 years to an indecent act. He was also found guilty of the circumstance of aggravation that the victim was under the age of ten years, namely eight years. Leave to appeal was granted on the following three grounds:

   1.    The verdict is unreasonable or cannot be supported having regard to the evidence.

   2.    The integrated directions on the first and second elements of the offence, contained in the jury aide provided to the jury by the trial Judge on 12 February 2020 left open to the jury a path of reasoning which was not lawfully open to it.

   3.    The pre-trial Judge erred in admitting evidence of “the shower incident”.

7. The Crown case at trial was as follows. The complainant was a young girl, just eight years old, from a community approximately 100 kilometres from Katherine. At the time of the offending she was staying with her parents and three sisters at a home unit in Katherine South. The appellant was a member of the complainant’s extended family on her mother’s side. She called the appellant ‘Uncle’.

8. In the morning of Wednesday, 30 January 2019, the complainant was at the home unit with her family when the appellant arrived with some friends and brought a quantity of beer. He consumed the beer in the kitchen. At some point during the day, possibly still in the morning, he went upstairs to the first floor of the unit where the complainant was washing her baby sister in the shower. The complainant was wearing “short trousers and a shirt”. Her little sister was not wearing clothes. The appellant stood in a bedroom from where he could see the complainant and her younger sister. The complainant said that the appellant was “peeping” and that he stared at her for “too long”. There were no other adults present at the time. The appellant’s alleged conduct in looking at the girls in the way described was “the shower incident”, the subject of ground 3 of the appeal.

9. The appellant continued drinking beer into the early evening.

10. At about 7 pm, the appellant went for a drive with the main occupant of the home unit referred to. The complainant went with them. When they returned to the unit in Katherine South, the complainant went back inside the unit. The appellant did not go inside at that time.

11. At about 9 pm, the appellant returned to the unit, at which stage the complainant and her parents and siblings were in the ground floor lounge room of the unit on a mattress together. The appellant went into the adjacent kitchen area and lay down on a bed there. The kitchen and lounge room were connected by a short corridor.

12. From where the complainant was sitting on the mattress in the lounge room she could see the bed in the kitchen where the appellant was lying.

13. The prosecution alleged that the appellant began to remove his pants and his belt, moved his pants down his leg and exposed his penis to the complainant, while looking at her. The prosecution further alleged that the appellant waved at the complainant in a beckoning motion while still exposing his penis.

14. The complainant became upset and started to cry. She called out to her mother and father, who were on the mattress beside her, and told them what she had seen. The complainant’s father got up and switched on the kitchen light. Both parents spoke to the appellant and he then left the unit.

15. The police were called and attended at the unit. One of the police officers, Constable First Class Thomas Morris (“Constable Morris”), spoke to the complainant about what had happened and the conversation was recorded on the officer’s body worn camera.

16. On 11 February 2019, the complainant was interviewed in relation to the incident at the Katherine Police station by another police officer, Senior Constable John Tickner. An audio-visual recording was made of that interview.

17. On 8 November 2019 the complainant gave pre-recorded evidence about the incident, at which time she was cross-examined by defence counsel.

18. The complainant’s response to the alleged conduct of the appellant was immediate. The evidence given by her father was as follows: [19]

    Can you just describe what that was? What did you see her do?
    --- We was sitting and having a yarn, talking stories. A few – a few seconds later she had tears rolling down from her eyes and she told us what happened.

    Yes. What did she say to you? --- She told her Mum that Benjamin was calling out to her.

    Can you remember exactly what she said? --- I only know she said that Benjamin was showing his private part.

    What word did she use to say private part? --- A word in Kriol.

    And what’s that word? --- That boonga word, boonga. It’s the meaning of a penis.

    At the time she started crying was she sitting up or laying down? --- Sitting up.

    And what direction was she facing? --- Straight line with Benjamin, in a straight direction. Benjamin was on the bunk bed and she was here. …

    Did she get up when she started crying or did she stay seated? --- She stayed seated and started crying.

    And when she was telling you what happened did you stay seated or did you get up? --- I got up.

    Did you get up before or after she finished telling you what happened? --- After she finished.

    And what about your wife. Did she get up? --- Yeah, we both got up, go up and went over to the kitchen.

    …

    --- Benjamin wasn’t calling her name with any sound. He was just waving at him – waving at her.

    And she told you that? --- Yeah, she told me and [the child’s mother] about that.

    And did she show you what he was doing? --- Yeah.

    And what was that? --- Waving signs and for to come over and all that.

19. The evidence given by the complainant’s mother was very similar:[20]

    You said that you were sitting down on the mattress. What were you doing? --- Sitting down just talking story to the girls.

    Was [the complainant] awake? --- Yes.

    What direction was she facing? --- Me and [the complainant] was both facing through the kitchen, the direction facing to the direction [sic].

    In the kitchen direction? --- Yep.

    From where you were located could you see into the kitchen?
    --- No.

    Did [the complainant] do something that caused you some concern? --- She cried.

    Tell us about that. What happened? --- [She] cried to me and said, “Uncle waving his hand, pulling his pants down”. And then I got up ---

    Her Honour: I’m sorry, I didn’t hear what [the complainant] said? --- [She] said that Uncle waving his hand, pulling his pants down, showing his penis.

    The Prosecutor: I’m not sure I heard the first part of that? --- Uncle waving his hand, calling out to me.

    Her Honour: Waving his hand, calling out to me. And then something about showing his penis, is it? --- Yes.

    The Prosecutor: And did you say “pull pants down”? --- Sorry.

    Did you say “pulling pants down”? --- Yes. …

    So, at the time that she told you these things she was crying? --- I got up and told Benjamin to get out and [the complainant’s father] as well told him, Benjamin, to get out.

    All right? --- Pushed him out.[21]

20. The evidence of early complaint to both parents has significance because the complainant in Police interviews, and in giving evidence, did not give a necessarily consistent or as complete an account of the relevant events.

    Interview with Constable Morris

21. When the complainant spoke with Constable Morris in the evening of 30 January 2019, the conversation was recorded on police body worn camera.[22] Relevant extracts of the conversation (after introductory parts) are set out below:

    Morris: … Alright, listen, the reason we’re here is because we need to have a, just a little chat about that man who was on the bed, okay, yeah, could you tell me what happened?

    Complainant: Um, he was laying down [on] the bed and he was staring at me and taking his trousers off.

    Morris: Mm, and what did he do then?

    Complainant: And tell me for go at him.

    Morris: He told you to go out?

    Complainant: No, told me to go at him.

    Morris: To go to him? Did he?

    Complainant: Yeah.

    Morris: What did he say, what was the words he used?

    Complainant: He like that.

    Morris: He went like that did he?

    Complainant: Yeah.

22. When the complainant said “He like that”, she demonstrated a hand movement with her left hand. Although the visual recording was not very clear at that point, she shortly afterwards demonstrated a clear extension and then downward motion of her left hand, palm down, which is appropriately described as an upside down beckoning motion.[23] Counsel for the respondent has described it as “non-verbal communication between two indigenous people – an arm going away from the body and scooping back”.[24] Although defence counsel submitted to the jury that the demonstrated hand movement may not have been a beckoning motion,[25] the complainant was not cross-examined to suggest any degree of ambiguity in the accused’s hand gesture.[26]

23. The conversation with Constable Morris continued as follows:

    Morris: … Did he, he took his trousers off, did he have anything on here?

    Complainant: No.

24. The reference to “here” is most probably to officer’s waist or below the waist, but the precise location is not apparent from the audiovisual recording.[27]

25. The conversation then continued:

    Morris: No. Did he have any underwear or, did he have underwear still on? So he took his, did he take his pants off did he?

    Complainant: No, the belt.

    Morris: He just took his belt off? Yeah, so were the trousers, the pants still on, or did he take them off?

    Complainant: The pants still on.

    Morris: Still on, yeah, and what was he doing when he took his belt off?

    Complainant: He was doing like that to me.[28]

    Morris: Yeah, okay. Just like that?

    Complainant: Yeah.

    Morris: Did he say anything to you? No? [Apparently acknowledging a negative response]. What about his private parts, were they there or, did he have pants on?

    Complainant: Nothing.

    Morris: Nothing, you didn’t see that? [Complainant appears to shake head] No. He had pants on, did he? [Complainant appears to nod affirmatively, without speaking] Are you sure you didn’t see his little, you know?

    [Complainant shakes head, indicating negative response.[29]]

    Morris: No, alright.

    Complainant’s father: (inaudible)

    Morris (to complainant’s father): What do you call it in your family?

    Complainant’s father: We call it, in Kriol, we call it ‘boonga’.

    Morris: Does she know that word?

    Complainant’s father: ‘Penis’, yeah, she knows it.

    Morris: Would that be the word she would use for that one?

    Complainant’s father: Yeah, yeah.

    Morris (to complainant): Did you see that boonga? [Complainant appears to nod affirmatively] You seen it? [Complainant continues nodding] Did you?[30]

    Morris: Did he have his, did he have it out?

    Complainant’s father: (inaudible) Take his belt out and show … [Complainant appears to nod affirmatively][31]

    Morris: You’re alright, you’re not in trouble you’re doing really well, doing really good okay. I just need to make sure we get the right stuff, okay. So he took his belt off, did his pants stay on or come off?

    Complainant: Stay on.

    Morris: Stay on. Did he have his boonga out? [Complainant appears to nod affirmatively] He did. What did he do with his boonga?

    Complainant: Um, showing at me.

    Morris: He showed it at you, and he knew you were there, did he? [Complainant nods affirmatively] He went like that? Was he going like that? Or come here, was he going, go away or come here?

    [While asking questions at this stage, Constable Morris demonstrated several alternative gestures, but those gestures were largely out of range of his body worn camera]

    Complainant: Like that. [The complainant’s gesture was not clear]

    Morris: Get her to say it, okay. So he was going like that. [Clear beckoning gesture by Constable Morris, with complainant nodding affirmatively][32] And what did you do?

    Complainant: Um, I didn’t listen to him.

26. Questions then asked and answered were as to the complainant having made an immediate complaint to her mother, and the respective positions of the complainant and the complainant’s mother vis-à-vis the appellant.

27. The appellant contends that the exchange between the complainant, Morris and the complainant’s father was “incredibly dangerous”.[33] It is said that, although the complainant had apparently denied that she had seen the appellant’s “private parts”, Morris pressed the issue, introducing the words “penis” and “boonga” into the conversation. In relation to the apparent denial that the complainant had seen the appellant’s private parts, I consider that it is unlikely that she knew the meaning of that euphemistic phrase, well-known as it may be to speakers of standard English.[34] The complainant’s father knew the term but, as appears from the father’s evidence extracted above, the complainant did not use those words, but rather used the Kriol word “boonga”. Morris introduced a word which he had reason to believe the complainant might have understood.

28. The appellant also contends that the complainant “would have been keenly aware” that Constable Morris wanted her to say something about the appellant’s penis or boonga, and that she was also aware that the preferable answer to the question was that the appellant had shown her his penis. In other words, the appellant contends that the complainant was gratuitously concurring with her father and Morris.

29. The high point of the appellant’s submission in relation to ‘incredible danger’ was as follows:[35]

    It was in this context that Constable Morris again asked the complainant:

    MORRIS: … Did he have his boonga out? He did. What did he do with his boonga?

    Not only did this question again suggest to the complainant a correct or preferable answer (that the appellant had his boonga out and that he did something with it), when the complainant at last gave an affirmative answer (“showing me”), she adopted the verb used only moments before by her father when he answered the question, in her presence, on her behalf. 

30. The submission extracted in the previous paragraph was based on the transcript of the recorded statement constituting exhibit P3, but does not take into account the primary (audiovisual) evidence which showed the complainant apparently nodding affirmatively after Morris’s question. A few lines down from the top of page 10 of that transcript (which is included in the portion extracted above), Morris only said the words “He did” after the complainant had nodded affirmatively to the question, “Did he have his boonga out?” True it may be that the question, “What did he do with his boonga?” was a leading question to the extent that it assumed that the appellant had done something with his boonga after it was “out”, but that would be a concern of a most technical kind, particularly when the question could have been converted to a non-leading question by inserting the words “if anything” as follows: “What, if anything, did he do with his boonga?”

31. As appears from those parts of the recorded statement extracted above, the complainant initially told Constable Morris that the appellant “was taking” his trousers off and then beckoned her to go to him. She then appeared to say that the appellant had not taken his pants or trousers off, but had only taken his belt off, while still beckoning to her. Further, although she initially said that she did not see the appellant’s penis (“his little, you know”), she then responded in the affirmative to the officer’s leading question (“Did he have his boonga out?”). When asked what the appellant did, the complainant said that he was showing his penis (boonga) to her.  My understanding of the complainant’s evidence in that respect is that the appellant had taken off his belt, but that, without removing or completely removing his pants, he had shown his penis to the complainant, with an accompanying beckoning motion.

32. As noted above, the complainant was interviewed by Senior Constable Tickner on 11 February 2019, 12 days after the alleged offending.  I set out below relevant extracts from the transcript of that interview:[36]

    TICKNER:     … Alright, so … like we’ve said okay, you’ve come to tell a story today, yeah. Tell me what you’ve come to talk to me about.

    COMPL:         Um, Benjamin.

    TICKNER:     Benjamin.

    COMPL:         Yeah.

    TICKNER:     Yeah.

    COMPL:         He taking his trousers off at me when I just sitting at the bed. Mm that bed like that and my, me right here, my Mum there and my Dad.

    TICKNER:     Yep.

    COMPL:         And I was putting my hair down at him. He’s take, tell me for go at him and I didn’t, don’t want to listen to her.

    TICKNER:     Ah hum, yep.

    COMPL:         And was taking it belt - belt off and…

    TICKNER:     Hmm.

    COMPL:         And telling me to go at him and didn’t, don’t want to listen to her.

    TICKNER:     Ah huh. Yeah.

    COMPL:         And my mum goes shout at her and tell her, he said ‘I don’t do that’ he see’d she do that.

    TICKNER:     Ah hum.

    COMPL:         And my Dad getting up too and he growl at him too.

    TICKNER:     Yep.

    COMPL:         My Dad.

    TICKNER:     Ah hum.

    COMPL:         And my Dad was laying down and playing game at phone and my Mum’s sitting down and, and me sitting down and my sister sitting down.

    TICKNER:     Ah hum.

    COMPL:         And he was tell me to go at him and taking his trousers off and see that little leg for him.

    TICKNER:     Ah hum.

    COMPL:         He taking his little, that little thing off for him. Taking it off.

    TICKNER:     Ah hum.

    COMPL:         Yeah he was taking it off for him. That little bit for him.

    TICKNER:     Okay. Yep.

    COMPL:         And um, and, and he talk ‘I didn’t do that’ but she do that.

    TICKNER:     Ah huh.

    COMPL:         That’s on, that’s all.

    TICKNER:     That’s all?

    COMPL:         Yeah.

    ……..

    TICKNER:     Ah hum, okay. So tell me more about that part where Benjamin was taking his trousers off.

    COMPL:         Um, he was taking his trousers off and …

    TICKNER:     Yep

    COMPL:         Taking the rude bit out.

    ……...

    TICKNER:     Ah hum, okay. What happened when he got his rude bit out?

    COMPL:         She take his rude bit out and tell me to come at him and I don’t, didn’t want to listen to her.

    TICKNER:      Ah hum.

    COMPL:         And he’s taking the belt out and taking his whole pants out.

    TICKNER:     Ah hum

    COMPL:         And tell me to go at him when he’s drunk.

1. It is clear from the description given by the complainant to Senior Constable Tickner that the accused had intentionally exposed himself to her, rather than having innocently taken off his pants ready for bed.

2. It is apparent that the complainant had a clear memory of what had taken place less than two weeks previously. Her evidence to Senior Constable Tickner was very much the same as her evidence to Constable Morris on the night of the incident. Her narrative was consistent.

3. In pre-recorded evidence, the complainant confirmed that, the previous day, she had watched the videos of her conversations with Constable Morris and Senior Constable Tickner. She confirmed that everything that she had said to police officers was the way she still remembered things.[37] When asked in cross examination what she was doing on the mattress just before seeing the appellant’s ‘boonga’, she replied:[38]

   I was sitting up, looked straight to the kitchen and Ben was staring at me. ....

   He was laying on his back and looking at me. ...

4. There were some apparent inconsistencies in the complainant’s evidence. When asked in cross examination if the appellant pulled his pants down after taking his belt off, she agreed that the appellant’s pants stayed up the whole time.[39] The questioning continued as follows: 

   Now you talked about when you saw Ben’s boonga, what was Ben doing when you saw his boonga?---He was looking at me.

   Okay. Was he doing anything with his hands?---No ......

   Did you see his boonga for a long time or a short time?---Short time.

5. There were two issues raised by the cross-examination referred to: that the appellant’s pants were not lowered to reveal his penis, and that he was not gesturing to the complainant while exposing himself. As to the first, the complainant was re-examined as to how, if the appellant’s pants stayed up the whole time, she had seen the appellant’s penis:  

   All right. And you told us that his pants were up the whole time. Is that right?---Yes. 

   How did you see his boonga?---When he took his trousers down, that’s when I seen the boonga.

   Alright. Can you tell me about when he took his trousers down, what happened?--- And he was asking me to go to him.

   And how was he doing that?--- Calling me.

   How is he calling you?--- Like this.

   [Your honour, for the record, it’s an arm going away]

   With his pants, how far down his leg did it go?--- Halfway.

   All right. You know where your knee is?---Yes.

   Was it as far as his knee?---Yes.

   Was past his knee?---No.  

   Okay. And did he take his pants off the whole way?--- No.

   HIS HONOUR: What about underpants?

   You told us that he was wearing short pants. Is that right?---Yes.

   Did he have any underwear on?---Yes.

   Did the underwear come down?--- Yes.

   All right. And what did the underwear look like?---A little bit long one.

6. The evidence in re-examination thus arguably resolved the second identified issue as well as the first.   

7. A further issue raised in cross examination was the level of lighting and the suggested consequences for the complainant’s ability to see properly. The relevant passage of cross examination is set out below:[40]

   Okay, I have just a couple more questions for you. It was very dark in the kitchen where Ben was. Is that true?---Yes.

   Okay. And I just want you to think very carefully about this question. Could you really see Ben’s boonga, or was it too dark to see properly?---Too dark.   

8. Whatever the complainant may have apparently conceded in response to the dual question, her evidence in re-examination was very clear:[41]

   All right. My friend asked about how dark it was. Do you remember that?--- Yes.

   And you said it was very dark?---Yeah.

   Could you see Ben’s boonga?---Yes.

   Could you see Ben’s face?---Yes.

9. Moreover, any doubt arising from the complainant’s answer “too dark” must be assessed against the complainant’s evidence taken as a whole, including her immediate complaints to mother and father, her complaint to Constable Morris and then to Senior Constable Tickner, and her confirmatory evidence throughout as to what she had seen.

   Ground 1 – verdict unreasonable or unable to be supported by the evidence

10. The appellant contends that, on the whole of the evidence, it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt.

11. The suggested doubt is as to whether the complainant saw the appellant’s exposed penis at all; and, if she did, whether the exposure was intentional and/or indecent. As to the latter, the appellant contends that it was a real possibility on the evidence that, lying on his bed, in the dark, the appellant had exposed his penis before seeing the complainant looking at him, whereupon he waved her away before quickly covering himself up. The appellant contends that the jury’s advantage was not such to be capable of explaining or excluding the very significant doubts to which the complainant’s evidence gave rise, and which appear upon the record itself.[42]

12. Section 411(1) of the Criminal Code provides that the Court of Criminal Appeal must allow an appeal if it is of the opinion that the verdict of the jury should be set aside “on the ground that it is unreasonable or cannot be supported having regard to the evidence”. As is apparent from the authorities discussed further below, the contention or conclusion that a verdict is unreasonable or cannot be supported having regard to the evidence is often expressed in terms that the verdict is “unsafe and unsatisfactory”.

13. The principles governing appeals on this ground have recently been reviewed by this Court in a series of decisions.[43] I repeat those reviews for ease of reference.

14. In M v The Queen, the High Court stated:[44]

    Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as ‘unjust or unsafe’ or ‘dangerous or unsafe’. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.

    Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regards to those considerations.

15. The test in M v The Queen has been affirmed in subsequent decisions of the High Court.[45] An appeal of this kind requires an appellate court to make its own independent assessment of the whole of the evidence, and to determine whether, having regard to any advantages the jury had, it holds a reasonable doubt about the guilt of the appellant. The task of conducting an independent assessment of the evidence requires an appellate court to weigh any competing evidence that might tend against the verdicts reached by the jury.[46]

16. In considering convictions for sexual offences, where it may be assumed that the jury assessed the complainant’s evidence as credible and reliable, there may be countervailing evidence which nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to guilt. The High Court has explained the process in the following terms:

    The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.[47]

17. By way of example, in Pell v The Queen,[48] the unchallenged evidence of the opportunity witnesses was inconsistent with the complainant’s account.  The evidence of those other witnesses was that, at the time the conduct was alleged to have taken place, the accused would have been greeting congregants near the Cathedral steps and at all times accompanied by an acolyte, and the place in which the conduct was alleged to have taken place would have been subject to the continuous traffic of people in and out. Having regard to that evidence and direct inconsistency, there must have remained a reasonable possibility that the offending had not taken place and there ought to have been a reasonable doubt as to guilt.

18. In terms of resolving any doubt held by an appellate court, the majority in M v The Queen said: ^[49]

    In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

19. In Libke v The Queen, Hayne J expressed the process of reasoning as follows (citations omitted):

    But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt.[50]

20. This formulation does not impose a stricter test than was laid down in M v The Queen. In Pell v The Queen, the High Court confirmed that the statement from Libke extracted above was consistent with what was said by the majority in M v The Queen.[51]

21. The matters which an appeal court may take into account in determining whether it was open on the evidence to be satisfied of guilt beyond reasonable doubt cannot be exhaustively stated. Matters which might give rise to a reasonable doubt include whether a lengthy delay in making complaint requires particular caution; whether there are material inconsistencies between the initial complaint and the evidence given at trial; whether the surrounding circumstances suggest some ulterior purpose for a complainant’s account; whether a complainant’s testimony should be considered unreliable due to intoxication or some impairment of memory or suggestibility; whether there is a real possibility that the complainant’s account was a reconstruction; whether collusion between a complainant and some other interested party cannot be excluded beyond reasonable doubt; or whether there are internal inconsistencies in the complainant’s evidence, or inconsistencies with other evidence (as in the Pell case), which necessarily give rise to a reasonable doubt.

22. Where it is asserted on appeal that a complainant’s evidence contained discrepancies, displayed inaccuracies, and otherwise lacked probative force that should lead to the conclusion, after making full allowance for the advantages enjoyed by the jury, that a jury, acting rationally, must have entertained a reasonable doubt as to guilt, the determination involves a two stage process.[52]

23. The first stage involves determining whether each of the discrepancies and inaccuracies asserted by the appellant were in fact present in the evidence. The second stage involves determining whether such discrepancies and inaccuracies as there were, when taken either individually or in combination, go to the essential features of the complainant’s account of the offences;[53] and, if so, whether they necessarily give rise to reasonable doubt or whether they “were explicable in a manner that did not provide a basis for them to reflect on [the complainant’s] credit”.[54]

24. Whether it was open to a jury to be satisfied of the appellant’s guilt beyond reasonable doubt requires consideration of whether the jury must, as distinct from might, have entertained a doubt about his guilt.[55]

25. I am satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused. I would dismiss this ground of appeal.

    Ground 2 – Erroneous jury directions

26. The Jury Aide provided by the trial judge read, relevantly, as follows:[56]

    For you to find the accused guilty, the Crown must prove each of the following four elements beyond reasonable doubt.

    1.    On 30 January 2019, at Katherine, Mr Cooper exposed his penis where [the complainant] could see it.

    2.    Exposing his penis in those circumstances was indecent.

    “Indecent” does not have any fixed or defined legal meaning. It has its ordinary English meaning. It may be defined as unbecoming or unseemly, offending against recognised standards of propriety or good taste. The conduct complained of must have a sexual connotation.

    3.    Mr Cooper intended to expose his penis where [the complainant] could see it.

    4.    At the time [the complainant] was under the age of 16. (This is an admitted fact)

27. The specific objection on appeal is in relation to par 1 of the Jury Aide. It is submitted that the trial judge directed the jury, in relation to that first element, that the only act about which they needed to be satisfied was that the applicant “exposed his penis where the complainant could see it”. The submission went that her Honour should have directed the jury that they would have to be satisfied beyond reasonable doubt as to a second act, namely that the appellant beckoned to the complainant. The additional direction was said to be necessary to properly reflect the Crown case. As her Honour explained to the jury,[57] the Crown case was that the appellant stared at the child, pulled his trousers down, exposing his penis, and beckoned to the child to come over towards him.

28. I do not consider that the trial judge misdirected the jury by failing to specify that the act of beckoning was an essential component of that first element. It is correct that the beckoning action(s) attributed to the appellant were part of the Crown case, but the beckoning could not constitute indecency per se, and nor did an act of exposure require the additional component of beckoning in order to constitute indecency. Rather, evidence of beckoning was relevant to par 3 of the Jury Aide, namely whether the appellant intended to expose his penis where the complainant could see it. If the complainant’s evidence were accepted, the beckoning she described was a clear invitation to the complainant to look at the appellant and his exposed penis, and a clear indication of the relevant intention. The jury was properly directed in that respect. 

29. I would dismiss this ground of appeal.

    Ground 3 – Evidence of the shower incident

30. The “shower incident” was the subject of evidence given by the complainant which I have summarised in [30] above. Evidence of the incident first emerged in the course of the complainant’s interview with senior Constable Tickner on 11 February 2019.  The relevant part of that interview is as follows:[58]

    TICKNER:     Okay, aright. So you said before that he got his rude bit out, yeah? What’s his rude bit?  

    COMPL:         Him doing at he rude stuff.

    TICKNER:     For what?

    COMPL:         And he doing at rude stuff on my sister. He doing a rude stuff at my sister too. Um, um … he was staring at my sister, was being naked. My sister is [name redacted], little tiny one.

    …………..

    TICKNER:     Yep. Yep.

    COMPL:         And he was staring when that one, he go in the shower and looking at that too.

    TICKNER:     Alright, how do you know that?

    COMPL:         I was in the shower too.

    TICKNER:     You were in the shower too. Alright. Tell me about that part when you were in the shower.

    COMPL:         Um, he was staring at me and, and my little sister.

31. The prosecution case was that the evidence was relevant because it demonstrated the appellant’s interest in the complainant on the day of the alleged offending.[59] Prior to the pre-record of the complainant’s evidence, defence counsel acknowledged that, taken at its highest, the evidence “would be capable of providing some sort of context as to why a man would expose himself to a young child”, but submitted that the evidence should be excluded because it was very vague and there was a significant danger of it being misused.[60]  The judge presiding over the pre-recording of the evidence was not persuaded that the evidence should be excluded, but left it open to defence counsel to make a further application after the complainant had been cross examined.

32. During cross examination the complainant agreed that the shower was on the top storey of the house. She was not otherwise cross examined about the shower incident. During re-examination she said that the adults were downstairs when she began to bathe her little sister in the shower. She said the appellant opened the door to Sally’s room,[61] and “he came in and looking at me”. He did not enter the bathroom or say anything. She said the appellant was “peeping” and “staring at me”. When asked how long he was staring at her she replied: “Too long.”[62]

33. After the pre-record had been completed, defence counsel made a further application to exclude the evidence of the shower incident. He submitted that the only use of that evidence would be that the appellant “is a person who has been staring at [the complainant’s] younger sister in the shower naked”, and was not a relevant prior interaction with the complainant herself, as the Crown had contended.[63] That submission did not take into account all of the evidence. Defence counsel submitted that the evidence was not relevant. In the alternative, he submitted that its probative value was outweighed by the danger of unfair prejudice. In response, the prosecutor argued that the evidence was relevant because it disclosed “clearly an interest in the children in the context of them being in the shower and in a bathroom”, which made it “more likely, far more probable, that he would show an interest later in the evening towards the complainant who is available and in a spot on the mattress that she can see him.”[64]

34. The earlier decision to admit the evidence was confirmed by the presiding judge, over the objection of defence counsel, as context evidence: “purely as context evidence and nothing else”. His Honour observed:[65]

    I have no idea what the accused was doing up in the bedroom, peeking through the door, according to the witness, and staring at the children while she is washing the younger child. I think it provides a context to what happens later and I am not prepared to exclude it.

35. Context evidence is not confined to particular offences, but it is very often admitted in child sexual assault cases, where a complainant is permitted to give evidence of other acts of a sexual nature allegedly committed against him or her by an accused, even though those acts are not charged in the indictment (and may not be criminal acts). The evidence is irrelevant and hence inadmissible unless it is capable of providing context to the complainant’s allegations. The purpose of context evidence is to answer hypothetical questions which may be raised by the jury about the allegations giving rise to the specific charges in the indictment. For example, it may overcome the impression that a charged incident was an isolated incident or that it “came out of the blue”.

36. In my judgment, evidence of the shower incident should not have been admitted. The probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant. The evidence should have been excluded pursuant to s 137 of the Evidence (National Uniform Legislation) Act 2011.[66]  

1. There was an unknown lapse of time between the shower incident and the alleged offending. In cross examination, the complainant said that she had had a shower in the morning of 30 January 2019, after she had had breakfast. That was a reference to her showering herself, before the appellant came to the house.[67] The offending was in the evening, after it was dark.[68] The evidence is unclear as to the time of day the shower incident is said to have occurred.  

2. The complainant’s evidence was more than mere observation of the appellant’s conduct; it involved a subjective assessment of such conduct. It consisted of a young girl’s impression that the appellant had stared at her for an unduly long period, and had also stared in a “rude” way at her little sister. Apart from the alleged staring, the appellant did nothing, said nothing, and left of his own accord. Evidence that the appellant watched the complainant, who was fully clothed, as she washed her little sister in the shower, was of low probative value as context evidence demonstrating the appellant’s sexual interest in the complainant.[69] It was inherently imprecise or ambiguous. At the same time, the evidence of the shower incident suggested that the appellant had an equivalent sexual interest in the complainant’s much younger “little tiny one” sister, who was naked at the time. The evidence was significantly prejudicial and likely to have elicited a strong emotional response from the jury. It had the potential to “inflame the jury or divert the jurors from their task”.[70] It was evidence which might have led the jury “to adopt an illegitimate form of reasoning, or to give the evidence undue weight”.[71]

3. Defence counsel did not ask the trial judge to revisit the pre-trial ruling made by the judge who presided over the pre-recording of the complainant’s evidence.[72] However, after indicating that the accused did not intend to give evidence, defence counsel sought clarification of the basis on which the evidence of the shower incident was before the jury. He submitted that the evidence could only assist in putting the alleged events referred to in [30] in context if it were accepted that the accused had some untoward purpose in looking at the complainant and her little sister in the shower.[73] The trial judge referred to “an obvious alternative explanation”, namely that the accused had gone upstairs to go to the toilet and had to wait until the children were out of the shower.[74] After hearing submissions from the prosecutor and defence counsel, the trial judge indicated that she would direct the jury that if there were some reasonably possible innocent explanation, the jury should put the evidence of the shower incident to one side.

4. At the start of her address to the jury, the prosecutor identified the main issue of fact in the trial as whether, while the appellant was lying on the bed, he looked at the complainant, pulled his shorts down, exposed his penis to her and beckoned her over. She continued as follows:[75]

   If you are satisfied that those things did occur then you will need to determine whether that conduct was indecent. Her Honour will give you guidance on the meaning of the word ‘indecent’ but I suggest that if you accept what [the complainant] says you could easily find that was indecent conduct. It is unbecoming. It is contrary to what you would expect of the accused.

   The context is important. We are talking about an interaction between an eight-year-old girl and a man that she refers to as “Uncle”. There is a clear sexual connotation to the behaviour you might think.

   You have also heard from [the complainant] both in the CFI,[76] and in court, about an incident earlier in the day, being in the shower bathing her sister when the accused came in stared at both of them. We know from the complainant’s evidence that she was clothed at the time and that her two-year-old sister was naked. That conduct, the conduct around the shower incident, does not form part of the charge but if you accept that that occurred you might find that that is inappropriate conduct and it is useful to you when you are trying to assess what happened later in the day. You will assess that in the context of what you know.

5. Four things may be noted in relation to the above extract from the prosecutor’s address. First, the reference to evidence of the shower incident was at the beginning of her address.[77] Second, the prosecutor drew a direct link between the shower incident and “what happened later in the day”. Third, the prosecutor referred to the accused staring at both the complainant and her little sister. Fourth, the prosecutor reminded the jury that the little sister was naked at the time. The prosecutor’s address thus had the potential to trigger or revive the prejudicial effect of the evidence.

6. The prosecutor referred to the shower incident again, at the very end of her address, once more drawing a direct link between the shower incident and what happened later that day:

   The last potential difficulty I want to talk to you about relates to the evidence about the shower earlier in the day.

   As I say, it does not form part of the charge, it is merely context that you can use.

   It might be suggested to you that there is an innocent explanation for his being up there outside of the shower. It is a matter for you to determine, but you might find that there really is nothing innocent about standing in a room opposite the bathroom, … looking into the bathroom where an eight-year-old child is bathing her younger sister.

   We do not know exactly how long he was there but [the complainant] describes it as “peeping” and says he was there for too long. No words are exchanged.

   It might be suggested that Mr Cooper needed to use the bathroom. Have a look at the diagram annexed to [exhibit P9].[78] Consider whether there are other toilets that might have been available. It is a matter for you, ladies and gentlemen, but if you accept what [the complainant] says about that incident you might find it was inappropriate behaviour that gives context to what happened later that day.

7. It can be seen from the fact that evidence of the shower incident was referred to both at the beginning and at the end of the prosecutor’s address that this evidence, which in my opinion had only slight probative value, was given some strategic prominence in the Crown’s case against the accused.  I make no criticism of the prosecutor for that; she was fully entitled to rely on the evidence of the shower incident once a ruling had been made that it not be excluded.

8. Her Honour duly gave the direction foreshadowed by her, at a point very shortly after a direction in relation to intention, in which her Honour reminded the jury of the prosecutor’s submission that if they accepted the complainant’s evidence that the appellant beckoned her to come to him, that would be strong evidence to suggest that he intentionally exposed his penis to the child. The direction then given by the trial judge in relation to the shower incident was as follows:[79]

   I should say something about the shower. Ms Grealy [the prosecutor] relied to some extent on evidence about the shower incident. [The complainant] is saying that Mr Cooper had come upstairs, stood in the bedroom and he stared or looked at them in the shower for too long.

   And Ms Grealy relied on that as context evidence which she said might throw some light on Mr Cooper’s actions later in the night and she submitted there could not really be an innocent explanation for him standing in an adjacent room and staring at a naked kid and another kid in the shower for too long and that this was clearly inappropriate.

   Mr Stuchbery [defence counsel] just dismissed this evidence as unimportant. He submitted that you could not be satisfied that it happened at all.  And that if it did, it was at least reasonably possible that it had an innocent explanation. He pointed out that the mother and father had no recollection of any shower that day, but that the kids usually showered in the morning before school and there was evidence that Mr Cooper arrived with beer and it must have been after 2 o’clock when the Bottle-O opened.

   And he pointed out that, even if it did occur, Mr Cooper might have looked into the bathroom to see if it was occupied, because he wanted to go to the toilet. Or perhaps to check on the children.

   This is what counsel have submitted to you about that and I need to give you a direction about this evidence. Before you can use it as context evidence in the way suggested by the prosecution, you would have to be satisfied of two things: (1) that it happened and (2) that there was something inappropriate about Mr Cooper’s conduct in relation to the shower.

   If you are satisfied of those two things, you can use it as context evidence to throw light on what happened or is said to have happened later on in the day. Otherwise, if you are not satisfied of those two things you should just set that aside.

9. Her Honour’s direction was as fair as could have been expected, given the pre-trial ruling which had not been the subject of a fresh challenge at the trial, and the fact that the evidence of the shower incident had been led before the jury. The difficulty in fashioning an appropriate direction was the result of the evidence having being wrongly admitted. However, the mere fact that the direction had to be given increased the likelihood of the direction being counter-productive, “paradoxically drawing attention to a prejudicial matter whilst seeking to marginalise or exclude its significance for the jury’s particular task.”[80]

10. Moreover, “acceptance of the proposition that juries generally follow directions given to them by trial judges, and that that obedience will often solve problems of prejudice against an accused person, has its limits”.[81]

11. In the present case, if the jury were satisfied that the shower incident had occurred, they had to consider whether there was something inappropriate about the appellant’s conduct, something which indicated that he had a sexual interest in the complainant. The judge’s directions set out the conditions for the jury to use the shower incident as context evidence, but the jury were not directed to consider and determine the shower incident as a threshold issue, isolated from the other evidence. As a result, the directions did not preclude the jury from taking into account evidence of what occurred later in the evening in order to decide whether there was something inappropriate about the appellant’s conduct in the shower incident. The directions given by her Honour thus did not preclude the jury from reasoning in a circular manner: to take into account later events in order to draw inferences adverse to the appellant in relation to the shower incident, and to then take into account the shower incident as context evidence indicating the appellant’s inappropriate sexual interest in the complainant, continuing to the time of the alleged offending.

12. In my opinion, the directions given by the trial judge were insufficient to overcome the risk of prejudice occasioned by the introduction into evidence of the shower incident. Ground 3 of appeal has been made out.  I also do not consider that the proviso has application in these circumstances because that error gave rise to a substantial miscarriage of justice.  I would allow the appeal and direct a retrial.

_____________________________

[1]Affidavit of Patrick Coleridge affirmed 9 March 2020 (AB 193-211) ("Coleridge Affidavit") at [44-48] (Appeal Book ("AB") 208-210), and Appellant’s Summary of Submissions signed 5 October 2020 ("Appellant's Summary") at [14-15]. In reply see Affidavit of Tamara Grealy sworn 27 March 2020 (AB 253 et seq) ("Grealy Affidavit") at AB 266-267) and Respondent’s Summary of Submissions dated 12 October 2020 ("Respondent’s Summary") at [55-57].

[2] Coleridge Affidavit [49-53] (AB 210-211) and Appellant’s Summary [16]. Cf Grealy affidavit at AB 267-269 and Respondent’s Summary at [58-61].

[3]AB 25-26

[4]      AB 13.9

[5]AB 14.5. 

[6]      HML v The Queen (2008) 235 CLR 334. As cited and summarised in R v Grant (2016) 262 A Crim R 348, [75].

[7]      DPP v Martin [2016] VSCA 219, [105]-[106]; R v Murdoch (2013) 40 VR 451.

[8]R v Quach [2002] NSWCCA 519; Conway v R (2000) 172 ALR 185; FDP v R [2008] NSWCCA 317; R v Cornwell (2003) 57 NSWLR 82; R v Lock (1997) 91 A Crim R 356.

[9]      R v Iuliano [1971] VR 412; R v Lubik [2010] VSC 465; R v Tsingopoulos [1964] VR 676; Ellis v R (2010) 30 VR 428; R v Basten [2009] VSCA 157.

[10]See, for example, Coleridge Affidavit, [44].

[11]HML v The Queen (2008) 235 CLR 334. See also Wilson v The Queen (1970) 123 CLR 334, 344; R v Beserick (1993) 66 A Crim R 419; R v Anderson (2000) 111 A Crim R 19, [30].

[12]    R v Leonard (2006) 67 NSWLR 545, [48]-[52]; R v Loguancio (2000) 1 VR 235; KRM v R (2001) 206 CLR 221; B v R (1992) 175 CLR 599.

[13]    R v VN (2006) 15 VR 113; R v Vonarx [1999] 3 VR 618; R v Loguancio (2000) 1 VR 235; R v Dolan (1992) 58 SASR 501; Rodden v R [2008] NSWCCA 53.

[14]    Coleridge Affidavit, [45].

[15]    Exhibit P9.

[16]    See R v Grant (2016) 262 A Crim R 348, [61]-[66] and the cases cited there.

[17]    Citing Hughes v The Queen (2017) 344 ALR 187, [17].

[18]    Appellant's Summary, [16]. 

[19]Trial transcript – 11/02/2020, AB 64 – 65.

[20]Trial transcript 11/02/2020, AB 88 – 89.

[21]Trial transcript 11/02/2020, AB page 89.

[22]    The audiovisual record of the conversation was exh P3. Transcript AB 273-277.

[23]    Exhibit P3, 1 minute 46 seconds from start; 2 minutes 30 seconds from start.

[24]    Affidavit of Tamara Grealy sworn 27 March 2020, par 37.

[25]    AB 127.5.

[26]    AB 300-303.

[27]Exhibit P3, approximately 2 minutes from start.

[28]At this point, 2 minutes and 30 seconds from the start, the complainant demonstrated the downward beckoning motion described in [17]. Constable Morris replicated the motion and the complainant affirmed the accuracy of the officer’s demonstration.

[29]At 2 minutes 54 seconds from the start.

[30]    At 3 minutes 35 seconds to 3 minutes 38 seconds from the start.

[31]    At 3 minutes 43 seconds from the start.

[32]    At 4 minutes 36 seconds from the start.

[33]    Affidavit of Patrick Declan Coleridge sworn 9 March 2020, par 22, AB 199.

[34]    The complainant was asked in her evidence in chief (AB 299) whether she knew what the words “private parts” meant, to which she replied ‘No’.

[35]    Affidavit of Patrick Declan Coleridge sworn 9 March 2020, pars 24 & 25, AB 199.

[36]AB 283.9 – 285.6; AB 286.5. Confusion in relation to gender of pronouns which is typical in some speakers of Aboriginal English may be noted. 

[37]AB 297.9.

[38]AB 302.5.

[39]    AB 303.2.

[40]AB 303.9.

[41]    AB 306.3.

[42]    Affidavit Patrick Declan Coleridge sworn 9 March 2020, par 16.

[43]MLW v The Queen [2022] NTCCA 2 at [59]-[67]; McDonough v The Queen [2021] NTCCA 9 at [7]-[14]; Foster v The Queen [2021] NTCCA 8 at [2]-[4]; Willcocks v The Queen [2021] NTCCA 6 at [18]-[24]; FN v The Queen [2021] NTCCA 5 at [15]-[21]; Lynch v The Queen [2020] NTCCA 6 at [16]-[22].

[44]    M v The Queen (1994) 181 CLR 487 at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ.

[45]    SKA v The Queen (2011) 243 CLR 400 at [11]-[14]; GAX v The Queen (2017) 344 ALR 489 at [25]; Pell v The Queen (2020) 268 CLR 123.

[46]    SKA v The Queen (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ.

[47]    Pell v The Queen (2020) 268 CLR 123 at [39].

[48]Pell v The Queen (2020) 268 CLR 123.

[49]    M v The Queen (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.

[50]    Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113].

[51]Pell v The Queen (2020) 268 CLR 123 at [44]-[45]; see also Tyrell v The Queen [2019] VSCA 52 at [70].

[52]Foster v The Queen [2021] NTCCA 8 at [4] per Grant CJ, Kelly and Brownhill JJ.

[53]See Lynch v The Queen [2020] NTCCA 6 at [38], citing BCM v The Queen [2013] HCA 48; 303 ALR 387.

[54]    See Lynch v The Queen [2020] NTCCA 6 at [38], citing R v M, WJ [2004] SASC 345.

[55]    M v The Queen (1994) 181 CLR 487, per Mason CJ, Deane, Dawson and Toohey JJ at 494-495; Libke v The Queen (2007) 230 CLR 559 at 596, per Heydon J.

[56]    AB 239-240.

[57]See “Explanation” document, AB 241; relevant transcript, AB 150.6.

[58]    AB 288.5 – 289.2.

[59]AB 11.9.

[60]AB 14.5. 

[61]Sally was the main occupant of the house.

[62]AB 25.6.

[63]    AB 29.5.

[64]    AB 29.9.

[65]    AB 30.

[66] In the alternative, the Court should have exercised the discretion under s 135 Evidence (National Uniform Legislation) Act 2011 to refuse to admit the evidence on the basis that its probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant.

[67]    AB 301.2. The matter was not clarified in subsequent cross examination or in re-examination.

[68]    AB 301.4.

[69]    The trial judge even observed, at AB 97.5: “I don’t really see that there is much of a link”.

[70]    Festa v The Queen [2001] HCA 72; 208 CLR 593 at [51], per McHugh J.

[71]    R v Yates, Parry, Hyland and Powick [2002] NSWCCA 520 at [252].

[72]This did not prevent the appellant advancing ground 3 as a ground of appeal because objection was taken at trial, twice, to the admission of evidence of the shower incident. Therefore, SCR 86.08 does not apply to disallow ground 3 as a ground of appeal. Moreover, a single judge allowed leave to appeal on ground 3 (AB 333). 

[73]    AB 97.9.

[74]    AB 98.3.

[75]    AB 105.7.

[76]    The reference to the ‘CFI’ (Child Forensic Interview) is to the audiovisual recording of the complainant’s interview with Tickner on 11 February 2019, referred to in [27] above.

[77]    The transcript of the Crown address to the jury comprises 11 pages, from AB 105 to AB 115 inclusive. The reference to the shower incident is at AB 105.

[78]    The transcript reads “… to agreed fact Exhibit P15”, but the Agreed Facts document (to which the internal plan of the unit was attached) was exhibit P9 (AB 187-189).

[79]    AB 154-155.

[80]See Allen v The Queen [2020] NSWCCA 173, per Bell P at [112].

[81]    Allen v The Queen [2020] NSWCCA 173, per Button J at [152].