Director of Public Prosecutions v Duckworth

[2022] VCC 1733

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00406

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON DUCKWORTH

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July and 10 October 2022
DATE OF RULING:	11 October 2022
CASE MAY BE CITED AS:	DPP v Duckworth
MEDIUM NEUTRAL CITATION:	[2022] VCC 1733

RULING
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APPEARANCES:	Counsel	Solicitors
For the DPP	S Coombes (20 July) V Jones (10 October)	Office of Public Prosecutions
For the Accused	G Chipkin	Victorian Aboriginal Legal Service

HER HONOUR:

Introduction

1This is a ruling in respect of applications brought by the defence to adduce tendency evidence in respect of the complainant pursuant to s 97(1) of the Evidence Act 2008 (Vic) and to cross-examine the complainant as to prior sexual activities pursuant to s 342 of the Criminal Procedure Act 2009 (Vic).

2The defence has filed a tendency notice that states that the complainant, Amira Pearce,[1] has a tendency to ‘approach, initiate and pursue sexually explicit activity with adult men considerably older than her (generally 20–40 years older) and not previously known to her’ and to have a sexual interest and a willingness to act on such interest with adult men. It sets out evidence obtained from police reports and from the statement of the complainant’s mother of online communications between the complainant and eight older men in August and September 2019.

[1] A pseudonym.

3The s 342 application concerns the same evidence.

4The prosecution case is that on 6 October 2020, the complainant, who was then aged 13 years old, was left in the care of the accused, then aged 39 years old. It is alleged that the accused sexually assaulted the complainant by rubbing her upper leg near her vagina and then got her to suck his penis, which is a charge of sexual penetration of a child under 16. The complainant’s evidence is that the accused unzipped his pants and said to her, ‘do you want to suck it?’. The complainant says she said ‘yes’ because she was scared. She says the accused then forced his penis into her mouth for about one minute. She says the accused told her they would do more stuff later and told her not to tell her father.

5The complainant was in a distressed state when her father arrived at the address shortly after the alleged offending. The complainant told her father she did not feel safe because the accused had tried to touch her.

6The complainant made a video statement (‘VARE’) with police on 7 October 2020 in which she said the accused rubbed and touched her near the vagina.

7As is apparent in her complaint to her father and in her VARE of 7 October 2020, the complainant did not disclose that the accused man made her suck his penis.

8The accused was interviewed by police on 13 October 2020 in relation to the alleged sexual assault. He told police that he was having a drink with the complainant’s father and the complainant was acting like a ‘slut kind of thing’. He told police that when he and the complainant were alone, she jumped onto his lap and said, ‘I’d like to suck your dick’, and that she grabbed a pen and started simulating masturbation. He told police he said, ‘What the fuck?’ and ‘Where the fuck did you learn that from?’. He denied the offending.

9On 15 December 2020, the complainant asked her mother if she would get in trouble for saying ‘yes’ to something if she was scared. She then told her mother, ‘That guy put his dick in my mouth and made me suck it’.

10The complainant made a second VARE on 2 March 2021, telling police that the accused had made her suck his penis. She told police she did not tell them about this in her first VARE because she was scared that she would get in trouble. She told police that she had had to do an interview before about another case which involved her sending nudes on the internet.

11The accused was interviewed for a second time on 2 July 2021 and again denied the offending, which now included the allegation of making the complainant suck his penis.

12The issue at trial will be whether the offending occurred, and critical in the determination of this issue will be an assessment of the differing accounts of the complainant and the accused, and whether the jury can exclude as a reasonable possibility what the accused man says in his records of interview and accept beyond reasonable doubt the evidence of the complainant.

13There was a committal hearing conducted in the Magistrates’ Court. The complainant’s mother gave evidence and was cross-examined about the earlier case which had involved the complainant sending nudes on the internet. From this cross-examination, defence learned that in September 2019, the complainant’s mother had gone to police after she discovered sexual content on her daughter’s phone.

14Defence obtained the complainant’s mother’s statement to police dated 4 September 2019 and also obtained police records and notes in relation to this investigation. As set out in the defence tendency notice, this material disclosed that the complainant between 31 August and 4 September 2019 had been on an adult dating site, had falsely stated that she was 18 years old, and was in contact with eight adult men with whom she had sexually explicit online communications. These communications involved the complainant sending photographs of her breasts and vagina, requesting explicit pictures in return, and making plans to meet and have sex with at least one of the men with whom she was in communication. The complainant initiated these explicit conversations and contacted some of the men on multiple occasions.

15A police memorandum entitled ‘Request for no further action’ dated 17 August 2020 outlined the investigation that ensued and recommended that there be no further action in respect of a prosecution against the complainant for offences of distributing child abuse material.

16This matter first came before me for argument on 20 July 2022. The matter was adjourned on the application of the prosecution, an application which was not opposed by defence, to give the prosecution time to obtain the complainant’s phone records. It was agreed that the actual content of the messages between the complainant and the men with whom she communicated on the adult dating site would be the best evidence of what had allegedly occurred.

17This material was obtained by the prosecution. It is a 69-page document. It is consistent with the statement of the complainant’s mother and with the descriptions of the online communications contained in the police records and substantiates that the complainant did initiate and participate in highly sexually explicit communications with adult men.

Submissions of the Parties

Defence

18The defence submits that the tendency evidence satisfies the ‘significant probative value’ threshold pursuant to s 97(1) of the Evidence Act 2008 (Vic), in that the evidence supports the tendency alleged, which in turn supports the reasonable possibility that the exculpatory account given by the accused is true.

19The defence submits that the evidence strongly supports the assertion that the complainant has a tendency to have a sexual interest in considerably older adult men and a willingness to act on such interest, and to approach, initiate and pursue sexually explicit activity with adult men. The evidence involves eight separate interactions between the complainant and adult men aged 27–57 previously unknown to her. The defence submits that in each interaction, the complainant initiated contact and then initiated sexually explicit activity, including sexually explicit conversations, sexually explicit video calls, sending nude images of herself on at least two occasions, requesting nude images of the adult men, offering to meet in person to have sex (including making a plan to do so with at least one man), and asking if the men would ‘fuck her’ on at least two occasions. The defence submits that the tendencies are expressed with a high degree of specificity and contain unusual features that are contrary to the behaviour ordinarily expected of 12-year-old girls, which enhances the probative value of the evidence.

20In the defence’s submission, the evidence provides strong support for the reasonable possibility that the accused’s exculpatory account is true, in that it rebuts the argument that the accused’s account of a 13-year-old girl sitting on his lap and offering to suck his penis is fanciful, implausible, and contrary to ordinary human experience. Rather, the evidence supports that this behaviour is reasonably possible given the complainant’s previous sexually explicit interactions with adult male strangers. The defence submits that a refusal to admit this tendency evidence would deprive the accused of a fair chance of acquittal that is open and available upon the evidence.

21Regarding the defence application to cross-examine the complainant as to prior sexual activity, the defence submits that the complainant’s credibility is of central importance in this trial, and the defence seeks to explore the complainant’s conflicting explanations for her inconsistent evidence between her first and second VAREs, including her fear she would get ‘into trouble for sending nudes like last time’, which she provided as an explanation for omitting to mention certain serious allegations in her first VARE.

Prosecution

22The prosecution opposes the defence applications. The prosecution submits that the evidence does not support the tendency as alleged in the notice filed by the defence, in that the defence notice overstates the extent and nature of the complainant’s conversations with the adult men.

23The prosecution concedes that the complainant exchanged online messages and then mobile phone messages with no less than six adults and that the messages she exchanged were of a sexual nature but given that the content of the online messages exchanged prior to the phone messages is unknown, it cannot be said that the complainant ‘approached’ or ‘initiated’ contact with the adult men as stated in the tendency notice. The prosecution also submits that given the complainant’s immaturity and vulnerabilities, the Court should not find that the complainant’s conduct amounts to ‘initiating’ sexual activity with adult men. The prosecution submits that there is also no evidence that the complainant knew the ages of the men with whom she was communicating, other than one man whom she was aware was 27. The prosecution submits that, at most, the complainant’s conduct represents a misguided sexual interest in adult men.

24The prosecution further submits that the tendency evidence does not have significant probative value, as the behaviour occurred over a year before the alleged offending and was over a brief, finite period of only five days, after which the complainant was spoken to by police and educated as to the inappropriateness of sexual contact with adult men. Further, the online behaviour is markedly different from the conduct alleged by the accused in his exculpatory account.

25Regarding the defence application to cross-examine the complainant as to this prior sexual activity online, the prosecution submits that the evidence is not of substantial relevance to a fact in issue. The prosecution submits that the defence would be inviting the jury to find that the complainant is ‘the type of person to solicit sexual activity’, making the evidence inadmissible pursuant to s 343 of the Criminal Procedure Act 2009 (Vic). Further, the prosecution submits that the sexual history evidence is not a proper matter for cross-examination as to credit because ‘special circumstances … likely [to] materially … impair confidence in the reliability of the evidence of the complainant’ do not exist pursuant to s 352 in circumstances where the delay in complaint is already apparent from the chronology of the matter.

26The prosecution further submits that it would not be in the interests of justice to allow cross-examination on this topic. Given the complainant’s age and vulnerabilities, the probative value is outweighed by the ‘distress, humiliation and embarrassment that the complainant may experience’, there is a risk of arousing in the jury prejudice against the complainant, and there is a ‘need to respect the complainant’s personal dignity and privacy’.[2]

[2] See Criminal Procedure Act 2009 (Vic) s 349.

The Law

Tendency

27Section 97(1)(b) of the Evidence Act 2008 (Vic) requires that the tendency evidence must have ‘significant probative value’. Section 55(1) provides that the evidence is relevant in a proceeding if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

28In Hughes v The Queen, the majority of the High Court explained that the assessment of significant probative value ‘involves consideration of two interrelated but separate matters’.[3] First ‘is the extent to which the evidence supports the tendency’.[4] Secondly, ‘the extent to which the tendency makes more likely the facts making up the charged offence’. The majority further explained that

there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[5]

[3] (2017) 263 CLR 338, 356 [41] (Kiefel CJ, Bell, Keane and Edelman JJ).

[4] Ibid.

[5] Ibid 356–7 [41].

29The approach to the question of the admissibility of tendency evidence sought to be adduced on the part of the accused was set out by Kaye J in Director of Public Prosecutions (Vic) v Campbell [Ruling No 1].[6] His Honour said,

The approach to the question of admissibility of tendency evidence, sought to be adduced on behalf of the accused, must, of necessity, be different to the approach taken by the court to tendency evidence which is sought to be adduced on behalf of the prosecution. In a criminal trial, the accused does not bear any legal onus of proof. Rather, on particular issues, the accused may bear an evidentiary onus of adducing evidence, from which an inference arises that a reasonable possibility, consistent with innocence, exists. Thus, in determining whether tendency evidence, sought to be adduced by an accused, is admissible under s 97(1), it must be borne in mind that that evidence must have significant probative value to the establishment of a particular reasonable possibility of a state of facts consistent with the innocence of the accused person.[7]

[6] [2013] VSC 665.

[7] Ibid [41]

Section 342

30Section 349 of the Criminal Procedure Act 2009 (Vic) sets out the matters I must consider in determining the application:

In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to—

(a)whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and

(b)the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and

(c)the need to respect the complainant’s personal dignity and privacy; and

(d)the right of the accused to fully answer and defend the charge.

31Section 352 states,

Sexual history evidence is not to be regarded—

(a)as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or

(b)as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.

Analysis and Conclusions

32Turning now to my analysis and conclusions and beginning with the admission of the evidence as tendency evidence, first, does the evidence support the tendency on the part of the complainant alleged by the accused? In my view, it does. The evidence clearly demonstrates that over a five-day period when the complainant was only 12 years old, she participated in highly sexualised communications with no less than eight different men. I am satisfied the material demonstrates that on occasion she initiated the conduct and on occasion she suggested the kind of sexual conduct that should take place, including on at least one occasion an offer to suck an unknown male’s penis, and on at least one occasion pursuing an unknown male to meet with her for sexual contact. Taken as a whole, the evidence is evidence of extensive, forthright, and highly sexualised behaviour on the part of the complainant with adult males.

33It is not uncommon for the courts to deal with cases in which children look for sexual experience on adult dating websites. But here, in my view, the conduct of the complainant is quite out of the ordinary and goes well beyond a case where a child has misrepresented his or her age on an adult site.

34I accept, sadly, that a likely explanation for the complainant’s conduct is her intellectual and behavioural difficulties, but this explanation does not diminish the significant probative force of the evidence.

35I reject the prosecution submission that the complainant is not properly characterised as the instigator of the sexualised conduct, given that there must have been some initial contact which at least involved the exchange of telephone numbers and which predates the text messages, and given that on occasion it is the males who initiate the sexual discussion. Notwithstanding this, it remains the complainant who on occasion initiates the contact and sexual discussion, and even if on occasion she is better characterised as a participant in, rather than the initiator of, sexual discussions, my conclusion remains that the evidence discloses an extraordinary level of sexual disinhibition and assertiveness in a child of only 12.

36I reject the submission the complainant’s online communications with the eight males was qualitatively different from her alleged conduct with the accused man.

37I reject the submission that given it was only on one or two occasions that the complainant actually knew the age of the male with whom she was interacting, the evidence does not support the alleged tendency to ‘approach, initiate or pursue sexually explicit activity with adult men considerably older than her’. She was 12, 13 at the time of the alleged offending; adult men, whether they be 27 or 39 or their age is uncertain, remain considerably older men to a child of her age.

38I also reject the submission that her online behaviour which occurred around a year before the alleged conduct subject of the charges is markedly different from the conduct alleged by the accused in his exculpatory account.

39In my view, a critical aspect of a jury accepting as a reasonable possibility the accused’s denials of the offending in his records of interview is that his denials are inextricably linked with an acceptance of his evidence of his shock and disgust at the complainant’s disturbing and overtly sexual behaviour.

40I accept the defence submission that the evidence provides strong support for the reasonable possibility that the accused’s exculpatory account is true, and that the evidence is capable of rebutting the argument that the accused’s account of the behaviour of the complainant is fanciful, implausible and even offensive.

41I find that the evidence is of significant probative value in accordance with the submission of the defence. I find that the passage of time between the August–September 2019 online behaviour of the complainant and the alleged offending in October 2020 — a period of just over a year — is of no real significance and does not diminish the probative value of the evidence.

42I rule that the tendency evidence set out in the notice in conjunction with the related evidence contained in the phone records is admissible as tendency evidence.

43Having so ruled in respect of tendency, I am also satisfied that the evidence has substantial relevance to a fact in issue pursuant to s 342 of the Criminal Procedure Act 2009 (Vic) and that it is in the interests of justice to admit the evidence, having regard to the various matters set out at s 349.

44In respect of s 352, sexual history evidence, the evidence having been admitted as tendency evidence and therefore directly bearing on a fact in issue — that is, the circumstances surrounding the alleged offending and the accused’s denial of the offending — the evidence transcends the characterisation of being evidence of a general disposition of sexual behaviour and, further, is evidence which does not merely go to credit. Given this finding, I do not need to find what the section calls ‘special circumstances’ bearing on the assessment of the reliability of the complainant’s evidence.

45I rule the evidence is admissible pursuant to s 342 of the Criminal Procedure Act 2009 (Vic).

46I order that before the commencement of the special hearing, the defence submits in writing a complete outline of the questioning in respect of the tendency evidence.