Director of Public Prosecutions v Hojlund

[2024] ACTSC 88

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Hojlund

Citation: 

[2024] ACTSC 88

Hearing Date: 

3 April 2024

Decision Date: 

8 April 2024

Before:

McCallum CJ

Decision: 

(1)    The evidence specified in the prosecution’s notice to adduce tendency evidence dated 1 March 2024 concerning each complainant is admissible as tendency evidence concerning the other complainant.

(2) Pursuant to s 4AJ of the Evidence (Miscellaneous Provisions) Act (1991) (ACT), I appoint an intermediary for the female complainant.

(3)    List the matter before the Registrar on Wednesday 17 April 2024 at 9am for the purpose of obtaining a date for a ground rules hearing. 

(4)    I direct that the ACT Intermediary Program prepare a written report about the communication needs of the witness and provide it to the Court in advance of the ground rules hearing.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to adduce tendency evidence – where application not opposed – appropriateness of leaving directions to the jury for the determination of the trial judge

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to appoint witness intermediary – whether the complainant has a communication difficulty – young age of the complainant – circumstances of the offending – purpose of an intermediary – ameliorative effect of the legislation – requirement for the court to be comfortably satisfied of the existence of a communication difficulty

Legislation Cited: 

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 4AH, 4AI, 4AJ, 4AK

Cases Cited: 

[Decision Restricted] [2024] ACTSC 30

R v Incandela (No 2) [2021] ACTSC 264

R v QX (No 2) [2021] ACTSC 244

Texts Cited:

Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017)

Presentation Speech, Evidence (Miscellaneous Provisions) Amendment Bill 2019 (ACT) (Hansard, 24 September 2019, pp 3747-3748)

Parties: 

Director of Public Prosecutions

Damian Arne Hojlund ( Accused)

Representation: 

Counsel

D Swan and G Cuthel ( DPP)

S Robinson ( Accused)

Solicitors

ACT Director of Public Prosecutions

Fortify Legal ( Accused)

File Number:

SCC 202 of 2023

SCC 203 of 2023

McCALLUM CJ:
           

1․Damian Arne Hojlund is due to face trial on 24 June 2024 for various sexual offences committed against two separate complainants (one female, one male) between January and June of 2021 and in September 2022.

2․The prosecution has brought two pre-trial applications.  The first is an application for a ruling that evidence concerning the acts alleged to have been committed against each complainant be admissible in the trial concerning the other complainant.  The offences currently sit on the same indictment.  The tendency application was not opposed by the accused.

3․The second is an application to have a witness intermediary appointed for the female complainant.  The prosecution case concerning the female complainant is that she and the accused were in a brief romantic relationship in the second half of 2022.  They were living in a tent.  Both were using prohibited drugs extensively.  One evening in September 2022, they went to stay in a hotel.  There, it is alleged that the accused injected the complainant with an illicit substance, gamma-hydroxybutyrate (known as GHB) and raped her while she was unconscious or unresponsive.  It is alleged that he filmed those acts using his mobile phone.  The videos were later discovered by the female complainant at a time when she was checking his phone motivated by a suspicion that he was cheating on her.

4․The male complainant came forward after reading about the charges concerning the female complainant.  He was in a sexual relationship with the accused between January and June of 2021.  The prosecution case is that, on two separate occasions during their relationship, the accused engaged in sexual intercourse with him while he was unconscious or unresponsive.  After the first occasion, the accused told him that he had engaged in sexual intercourse with him while he was asleep.  The accused is alleged to have filmed the second occasion on his mobile phone and shown the video to the male complainant.  The male complainant asked, “who is that?” to which the accused replied, “it’s you”. 

Application to adduce tendency evidence

5․The order sought by the prosecution is “that the prosecution be permitted to lead the tendency evidence as outlined in the prosecution tendency notice dated 1 March 2024”.

6․As already noted, the accused does not oppose the ruling sought.  It is nonetheless appropriate, even where an application is not opposed, for the court to give independent consideration to the evidence in question to determine whether it should be permitted to be relied upon for a tendency purpose.

7․That is an easy determination in the present case and the accused’s consent to the application was appropriate.  The similarities between the two allegations are stark and the two relationships were relatively close in time.  I am satisfied that the evidence concerning each complainant as specified in the tendency notice is admissible as tendency evidence in the trial of the charges concerning the other complainant.

8․I should however make one observation as to the scope of this ruling.  The tendency notice specifies the following tendencies:

That the accused had a tendency to have a particular state of mind, namely:

·To have an interest in engaging in sexual intercourse with people who are unconscious and/or non-responsive.  (Incident 1,2,3,4)

·To have an interest in filming sexual activity in which the accused is a participant with people who are unconscious and/or non-responsive.  (Incident 1,2,4)

That the accused had a tendency to act in particular ways, namely:

·To engage in sexual intercourse with people who are unconscious and/or non-responsive.  (Incident 1,3,4)

·To film himself engaging in sexual intercourse with people who are unconscious and/or non-responsive.  (Incident 1,4)

·That in response to allegations of engaging in filmed non-consensual intercourse with partners who were unconscious and/or unresponsive, to falsely claim that prior consent had been obtained.  (Incident 4,5)

9․At the hearing of the application, I indicated that I did not consider it appropriate to permit the evidence to be relied upon to prove that the accused had a tendency to act in the way specified in the last of those bullet points.  The prosecution, as I understood the position, accepted that indication.  The reason is that, as it is framed, the last tendency might undermine the accused’s defence and so prejudice his right to a fair trial.

10․Since hearing the application, I have become aware of the decision of Baker J in [Decision Restricted] [2024] ACTSC 30 in which her Honour took the view that the precise directions to be given to the jury concerning any tendency evidence should more properly be left to the trial judge. I respectfully agree. Her Honour said at [105]:

Careful directions will need to be formulated which direct the jury as to which incidents may be the subject of tendency reasoning, and which incidents are admitted solely for the purpose of providing context to the allegations. On a pre-trial application of this nature, it is not the function of this Court to draft the specific directions that will be given to the jury: Restricted judgment [2023] ACTSC 25 at [7]. It is sufficient to record that I am satisfied that comprehensible directions can be given, which explain that evidence relating to the uncharged acts of physical violence is admitted as relationship or context evidence and cannot be used for tendency purposes, whereas evidence relating to the occasions of sexual intercourse without consent may be used as tendency evidence.

11․The circumstances of that case were different.  In particular, there is no issue here about differentiation between context or relationship evidence and tendency evidence.  I am nonetheless of the view that the course proposed by Baker J in [Decision Restricted] [2024] ACTSC 30 should be followed in this case. The precise directions to be given to the jury as to the tendencies established by the evidence may depend on the way in which the evidence unfolds during the trial.

12․It is appropriate in the circumstances not to stay the hand of the trial judge or, indeed, fetter the opportunity of either party to seek particular directions to the jury based on that evidence. 

13․For those reasons, the ruling I propose to make is that the evidence specified in the tendency notice concerning each complainant is admissible as tendency evidence concerning the other complainant.  The way in which the case is to be left to the jury will be a matter for the trial judge.  That said, I see no difficulty with the tendency notice as drawn, save for the last tendency specified.

Application to appoint a witness intermediary for the female complainant

14․The prosecution’s second application invoked the Court’s power under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to appoint an intermediary in a criminal proceeding for “a witness with a communication difficulty”. The application raises a narrow but important question as to the threshold of proof to enliven that power.

15․It is helpful to begin by considering the context in which the provisions concerning intermediaries were introduced.  That issue is addressed helpfully and comprehensively in the judgment of Loukas-Karlsson J in R v QX (No 2) [2021] ACTSC 244 from [37].

16․It is also helpful to consider s 4AJ in its statutory context. The provisions concerning the appointment of intermediaries are addressed in chapter 1B of the Evidence (Miscellaneous Provisions) Act. Section 4AH in that chapter provides that:

4AH Panel of witness intermediaries

The intermediaries administrator must establish and maintain a panel of people (the intermediaries panel) who have—

(a) either—

(i)   a tertiary qualification in psychology, social work, speech pathology or occupational therapy; or

(ii)     other qualifications, training, experience or skills prescribed by regulation; or

(b)qualifications, training, experience or skills suitable to exercise the functions mentioned in section 4AI.

17․Section 4AI specifies the functions of witness intermediaries:

4AI Functions of witness intermediaries

(1)The functions of an intermediary appointed for a witness are to—

(a) prepare and provide reports about the witness’s communication needs as required; and

(b) at a hearing—

(i)   communicate to the witness questions put to the witness, to the extent necessary for the witness to understand the questions; and

(ii)     communicate to the person putting questions to the witness, the witness’s answers to the questions, to the extent necessary for the person to understand the answers; and

(iii)    otherwise assist the court, and any lawyer appearing in the proceeding, to communicate with the witness.

(2)An intermediary appointed for a witness is an officer of the court and must act impartially when assisting communication with the witness.

18․It may be seen from those provisions that an intermediary, being an officer of the court, owes the same duties to the court as any lawyer appearing before the court. That includes a duty to act honestly and impartially. Witness intermediaries are not only for the benefit of the witness. As the provisions of s 4AI indicate, they also provide assistance to cross examiners in assisting them to frame questions appropriately and to understand answers to the questions.

19․It is also helpful to consider the juxtaposition of s 4AJ and s 4AK. The latter section provides that, for the categories of witnesses prescribed in the regulations, the court must appoint an intermediary. The categories include a person under the age of 18 years. By contrast, under s 4AJ, the court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty. The juxtaposition of the words “must” in s 4AK and “may” in s 4AJ suggests that s 4AJ confers a discretion. However, having regard to the beneficial purposes of the legislation, and assuming a timely application and the availability of an appropriate intermediary, it is difficult to think of a good reason why an intermediary would not be appointed for a witness who satisfies the description of having a communication difficulty.

20․The fact that the application was opposed in the present case tends to suggest that the accused perceived some prejudice or disadvantage in having an intermediary appointed for the complainant in this case. With respect, if that is the case, it reflects a misconception of the intermediary’s functions which I have described, specified in s 4AI.

21․It is also inconsistent with my experience of the intermediary service.  It is the frequent experience of this court that intermediaries are of considerable assistance, not only to the witness but to cross-examiners during the course of cross-examination, sometimes assisting them to frame questions in a way that the witness will better understand and, as already indicated, sometimes assisting them to clarify any answers. 

22․It may nonetheless be accepted, as submitted by Mr Robinson, who appears for the accused, that the court must not approach such applications on the basis that all sexual assault trials are stressful for complainants and accordingly that every complainant should have an intermediary. Plainly, in the language of s 4AJ, there is an additional requirement, namely that the witness be a person with a communication difficulty.

23․What, then, is the threshold that must be met to warrant the exercise of the power?        

24․This question was considered by Loukas-Karlsson J in DPP v QX (No 2) [2021] ACTSC 244 where her Honour said at [77]:

In relation to the meaning of a “communication difficulty”, the Human Rights Commissioner correctly submitted that “difficulty” should not be read down to only being a medically diagnosed difficulty or a difficulty of a particular severity. It was emphasised that the legislature has deliberately omitted to use the words “disability” or “impairment” within the relevant threshold for the Court to apply its discretion in s 4AJ.

25․I respectfully agree with and adopt those remarks.

26․The evidence relied upon by the prosecution in the present case was:

(a)A letter from the complainant’s general practitioner (GP) stating that the complainant is likely to become distressed and dissociate while giving evidence;

(b)The complainant’s age, being 18 years and 3 months at the time of the alleged offending and so just barely over the age when the appointment of an intermediary would have been mandatory in accordance with s 4AK; and

(c)The circumstances of the offending and the likely effect of giving evidence, particularly under cross-examination. 

27․The letter from the GP states:

In December 2023, I wrote to you requesting that [complainant] be able to pre-record her evidence rather than appear in court.  I understand that request has been denied and that instead the court may appoint an intermediary who is a court officer to assist with communication between a court and a witness with a communication difficulty.

I can confirm that [complainant] will most certainly be emotionally distressed and overwhelmed and is also very likely to dissociate giving evidence within the court proceedings.  I believe this will impact her capacity to give evidence during a jury trial concerning allegations of serious sexual offending against her.  [The complainant] meets the criteria for having a communication difficulty in this regard.

28․On the basis of that evidence, the prosecution submitted that the complainant is likely to be intimidated and distressed and is very likely to dissociate while giving evidence.  The prosecution noted the possibility that the complainant will be required during cross-examination to view the videos the accused is alleged to have taken of himself engaging in sexual acts her while she was unconscious or unresponsive.  It was submitted that her distress is likely to be heightened if that occurs. 

29․Mr Robinson submitted that it would be a bold counsel who would take the course of playing parts of the video to the complainant during cross-examination.  However, he, of course, is not in a position to give an undertaking that that will not occur.  It cannot be known at this point what issues will arise in the trial and, in particular, whether any issue may arise which might require that course to be taken as a matter of fairness to the complainant in giving her an opportunity to respond to any particular aspect of the accused's defence. 

30․Further, the complainant is entitled to give her evidence from the remote witness room and has indeed indicated that is her choice. It will be difficult for those in the courtroom to monitor her conduct or reaction to any video material shown to her or indeed to any other aspect of the cross-examination.  That is a factor which militates in favour of the appointment of a person with the expertise required of intermediaries under the legislation.

31․The prosecution noted that, had the offending occurred three months earlier, the complainant would have automatically been entitled to an intermediary without a requirement to demonstrate any communication difficulty as she would have been considered a child within the meaning of the Act: see s 4AK of the Act.

32․Counsel for the accused argued that the evidence before the Court was insufficient for the Court to be satisfied that the complainant has a communication difficulty within the meaning of the Act.  Mr Robinson submitted that the letter relied upon by the prosecution, being from a general practitioner and not in the nature of an expert report, was an insufficient basis for the Court to make the required finding.  I did not understand the submission to go so far as to contend that a general practitioner could not express an opinion on the issues addressed in the letter.  Rather, the submission was that the letter should be given limited weight owing to the inadequate information available to the Court about the process by which it was formed.

33․The submission tended to suggest that, in order to prove that a person has a communication difficulty within the meaning of s 4AJ, the prosecution is required to qualify an expert and produce a full expert report of the kind one might see in other contexts. If that was the submission, I reject it. For the purposes of an application of this kind, the court is not bound by the rules of evidence and may inform itself as it considers appropriate: s 4AJ(3). In my view, the letter from the general practitioner provided an adequate and proper basis for the court to infer that this complainant in particular is likely to be distressed and very likely to disassociate during the course of her evidence.

34․Separately, Mr Robinson submitted that the mere fact of the complainant's age cannot be determinative, as parliament has chosen the age of 18 as the cut-off point in respect of a mandatory appointment.  However, as is trite, applications of this kind must have regard to all of the relevant circumstances.  The relative youth of the complainant is plainly a relevant factor. 

35․Finally, Mr Robinson submitted that it is not enough to contend that the complainant would suffer from a high level of stress during her evidence. As already noted, he submitted that the prosecution's case came close to asserting that all complainants in sexual offence proceedings should be entitled to a witness intermediary.  He submitted that, if the legislature had intended the amendments to have that effect, that would have been made explicit.

36․So much may be accepted.  I do not approach the present application on the basis that any complainant in a sexual assault trial, or indeed any relatively young complainant in a sexual assault trial, is automatically entitled to a witness intermediary.  As already indicated, each case much be determined according to its own circumstances.  The combination of factors here indicates, in my view, that the complainant is likely to have difficulty communicating her evidence during the course of the proceedings and particularly when under cross-examination.  Perhaps the most persuasive factor is the likelihood recorded by the general practitioner in her letter that the complainant will disassociate.

37․Dissociation is well understood as a symptom of trauma.  As the name suggests, it is a condition in which the witness is disassociating from what is present around her.  It seems unlikely that a witness in a state of disassociation would be in a position to give her “best evidence”: see Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, August 2017) Parts VII to X and Appendix, 2. It would require someone with appropriate training, such as an intermediary, to recognise a state of disassociation and to bring that information to the attention of the judicial officer presiding over the trial.

38․The purpose of the legislation is to have a broad, ameliorative effect to support not only witnesses but the criminal justice process more broadly, including the interests of the accused.  In the presentation speech of the Evidence (Miscellaneous Provisions) Amendment Bill 2019 (ACT) on 24 September 2019 to the Legislative Assembly for the Attorney-General noted the following at pp 3747-3748:

…

In addition, high quality communication with witnesses and obtaining accurate and complete testimony can ensure that not only the complainant but also the accused experiences a fair trial. 

For the justice system, obtaining clear, accurate testimony improves the court’s ability to deliver justice more effectively.  This has been shown to be the case in other jurisdictions where similar legislation has been implemented, such as in New South Wales, Victoria and elsewhere.

39․Having regard to the combination of factors to which I have referred and considering the broad ameliorative purpose of the legislation, I am satisfied that the complainant does have a communication difficulty.  However, in deference to the submissions put by Mr Robinson on behalf of the accused, it is necessary to consider whether that fact has been established to the requisite standard. 

40․The accused submitted that the mere possibility of a communication difficulty is not enough to satisfy the requirements of the section.  I agree.

41․However, it does not follow that the fact of a communication difficulty must be proved on the balance of probabilities by reference to evidence of the kind that would be admissible or inadmissible in a trial: see s 4AJ(3) of the Act. As a matter of discharging his duty of candour to the court, Mr Robinson drew my attention to the decision of Elkaim J in R v Incandela (No 2) [2021] ACTSC 264 in which his Honour stated that, to appoint an intermediary under s 4AJ, the court must be satisfied that there is a “real possibility” (at [20]) or “clear evidence” (at [11]).

42․With great respect to Elkaim J, I do not share the view that the establishment of a real possibility is enough.  In that case, the first witness suffered from a major depressive disorder and the second witness had a learning disability.  An intermediary was appointed in respect of each of those witnesses.  The present case plainly raises different issues.

43․I am of the view that the appropriate approach is for the court to consider whether it is comfortably satisfied that the witness is a person with a communication difficulty.

44․As already explained, that does not require the establishment of any disability or speech impediment but rather a factor or combination of factors contributing to the witness' capacity to communicate their evidence. 

45․The combination of circumstances in the present case leaves me comfortably satisfied that the female complainant meets that description.  In my assessment, that is an appropriate basis on which to proceed in accordance with the statute. 

46․Before making orders, I pause to note that, as set out in the letter of the GP, the complainant in this matter sought to give her evidence in a pre-recorded interview. Regrettably, that application was unable to be acceded to, not because it was opposed to or for want of any other support but due to the limited availability of court time.  That is one aspect of this legislation which complicates the prosecution of sexual assault cases, namely, that the requirement for pre-recorded evidence frequently requires the court to find sometimes up to three to five days before trial and to that extent doubles the estimate for trial. 

47․In any event, that application not having been able to be determined in accordance with the witness’s request, I am satisfied that it is appropriate to appoint an intermediary for her.

Orders

48․For those reasons, I make the following orders:

(1)The evidence specified in the prosecution’s notice to adduce tendency evidence dated 1 March 2024 concerning each complainant is admissible as tendency evidence concerning the other complainant.

(2)Pursuant to s 4AJ of the Evidence (Miscellaneous Provisions) Act (1991) (ACT), I appoint an intermediary for the female complainant.

(3)List the matter before the Registrar on Wednesday 17 April 2024 at 9am for the purpose of obtaining a date for a ground rules hearing. 

(4)I direct that the ACT Intermediary Program prepare a written report about the communication needs of the witness and provide it to the Court in advance of the ground rules hearing.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: