Director of Public Prosecutions v Leifer (Ruling No. 2)
[2022] VCC 1476
•2 September 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02066
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MALKA LEIFER |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 26 and 27 July and 1, 2, 3, 4, 15, and 16 August 2022 | |
DATE OF RULING: | Electronically delivered 2 September 2022 First Revision 12 September 2022 | |
CASE MAY BE CITED AS: | DPP v Leifer (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1476 | |
REASONS FOR RULING – TENDENCY EVIDENCE
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Subject:Criminal Law – Evidential ruling.
Catchwords: Evidence – Tendency evidence – Multi-complainant sexual offending – Whether evidence is of significant probative value – Whether probative value substantially outweighs any prejudicial effect.
Legislation Cited: Evidence Act 2008, ss 97 and 101; Jury Directions Act 2015.
Cases Cited:McPhillamy v The Queen (2018) 361 ALR 13; IMM v The Queen (2016) 257 CLR 300; Hughes v The Queen (2017) 263 CLR 338; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v PWD (2010) 205 A Crim R 75; Bauer (a pseudonym) v The Queen [2015] VSCA 55; R v Glennon (No 2) (2001) 7 VR 631; Doyle v R [2014] NSWCCA 4.
Ruling: Prosecution application to admit tendency evidence granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Lewis and Ms S. Clancy | Office of Public Prosecutions |
| For the Accused | Mr I. Hill KC with Ms L. Thies | Tony Hargreaves & Partners |
HIS HONOUR:
Introduction
1The accused, Malka Leifer, is due to stand trial on a twenty nine charge indictment and intends to plead not guilty when arraigned.[1] The offending in which she is alleged to have engaged is of a historical and sexual nature. There are three complainants, who are sisters. The period of offending alleged in the indictment spans a five year period between January 2003 and December 2007.
[1] Indictment M10182348.1.
2The indictment contains ten charges of indecent assault,[2] five charges of indecent act with a 16 or 17 year old child under care, supervision or authority,[3] ten charges of rape,[4] three charges of sexual penetration of a 16 or 17 year old child,[5] and a single charge of rape (compelled sexual penetration).[6]
[2] Charges 1, 6, 9-10, 12-14, 17-18 and 25.
[3] Charges 20-24.
[4] Charges 2-5, 15-16, 19, 26-27, and 29.
[5] Charges 7-8 and 11.
[6] Charge 28.
3Of those charges, five[7] relate to the first complainant, Lucy Parker,[8] fourteen[9] relate to the second complainant, Laura Watson,[10] and ten[11] relate to the third complainant, Rachel Harris.[12]
[7] Charge 1 alleging indecent assault and charges 2-5 alleging rape.
[8] To ensure that there is no possibility of identification of this complainant, this ruling has been anonymised by the adoption of a pseudonym in place of this complainant’s name.
[9] Charges 6, 9-10, 12-14 and 17-18 alleging indecent assault, charges 7-8 and 11 alleging sexual penetration of a 16 or 17 year old child, and charges 15-16, and 19 alleging rape.
[10] To ensure that there is no possibility of identification of this complainant, this ruling has been anonymised by the adoption of a pseudonym in place of this complainant’s name.
[11] Charges 20-24 alleging indecent act with a 16 or 17 year old child under care, supervision or authority, charge 25 alleging indecent assault, charges 26-27 and 29 alleging rape and charge 28 alleging rape (compelled sexual penetration).
[12] To ensure that there is no possibility of identification of this complainant, this ruling has been anonymised by the adoption of a pseudonym in place of this complainant’s name.
4Lucy is the oldest of the sisters, followed by Laura and then Rachel.[13] They are now aged 37, 35 and 33 years, respectively.
[13] Their respective dates of birth are early August 1985, late June 1987, and mid-March 1989.
5The prosecution seek to have admitted the evidence of all three complainants relating to both charged and uncharged acts, as tendency evidence, pursuant to s 97(1) of the Evidence Act 2008 (‘the Act’).
6The defence oppose the prosecution application to admit this evidence as tendency evidence.
7This ruling is concerned with whether the prosecution application to admit such evidence as tendency evidence should be granted.
8I note that the prosecution have filed a summary of prosecution opening in which they outline the relevant allegations in respect of the charged and uncharged acts relating to each complainant. The tendency notice refers to all of the charged acts referred to in that opening but not all of the uncharged acts.
9Before outlining the relevant statutory framework and legal principles, it is best to provide a summary of the evidence followed by an outline of the defence case, including the issues that are likely to be raised in the trial.
The allegations
General Overview
10The three complainants are sisters who grew up in the same family and were raised as part of the same Ultra-Orthodox Hasidic Community. They undertook the entirety of their schooling at the girls only campus of the Adass Israel School in Elsternwick. The senior school was for girls aged 16-18. A small number of students were employed to teach at the school immediately after they graduated Year 12.
11The accused taught at the school from 2001 until 2008. She was the Head of Religious Studies as well as the Senior School Principal. One of her responsibilities was to select which of the Year 12 graduates would be given a teaching position at the end of each year. Only a small number of Year 12 graduates were selected each year to undertake teaching duties the following year. In turn, each of the three complainants were selected by the accused for a teaching position when they finished Year 12: Lucy in 2003, Laura in 2005 and Rachel in 2006. For each, the teaching role was their first job and they required supervision and support. It was one of the accused’s responsibilities to provide that assistance.
12In respect of Lucy Parker, the charged offending is alleged to have occurred in 2003 when she was in Year 12[14] and in 2006 when she was a third year student teacher.[15] Uncharged acts are alleged to have occurred throughout the period from 2002 until shortly before she got married in August 2006. During that four year period from 2002 until 2006, the complainant was aged between 16 and 20 and went from being a Year 11 student to a third year student teacher.[16] She married in mid-August 2006.
[14] Charge 1.
[15] Charges 2-5.
[16] Her date of birth is early August 1985.
13In respect of Laura Watson, the charged offending is alleged to have occurred in 2004 when she was in Year 11,[17] in 2005 when she was in Year 12,[18] and in 2006 when she was a first year student teacher.[19] Uncharged acts are alleged to have occurred over the summer school break in December 2003 and January 2004, and in mid-2004 when she was in Year 11. The total period encompassed by the charged and uncharged acts is just under three years, from late 2003 until about mid-2006. During that period, the complainant was aged between 16 and 19 or 20,[20] and went from being on the cusp of starting Year 11 to being a first year student teacher.[21] She married in mid-September 2006.
[17] Charges 6 and 7. Possibly charge 8 also, given the between dates period alleged in the indictment.
[18] Charges 9-14. Possibly charge 8 also, given the between dates period alleged in the indictment.
[19] Charges 15-19.
[20] 19 or 20, depending on the exact date that the offence in charge 19 is alleged to have occurred.
[21] Her date of birth is late June 1987.
14In respect of Rachel Harris, the charged offending is alleged to have occurred in December 2006 when she was in Year 12,[22] and in 2007 when she was a first year student teacher.[23] Uncharged acts are alleged to have occurred on approximately 12 occasions in 2007 when the complainant was a first year student teacher. The total period encompassed by the charged and uncharged acts is therefore about 12 months, from late 2006 until late 2007. During that period, the complainant was aged between 17 and 18 and went from being a Year 12 student to a first year student teacher. She became engaged at the end of 2007 and married in mid-June 2008.
[22] Charges 19-23.
[23] Charges 24-29.
15I will now summarise the relevant evidence of each complainant in respect of both charged and uncharged acts, commencing with Lucy Parker.
Lucy Parker: charged acts
Charge 1
16Charge 1 alleges that the accused indecently assaulted the complainant by touching her breasts on an occasion in 2003, when the complainant was in Year 12 and staying overnight at the accused’s home.[24] After the complainant went to bed in one of the children’s bedrooms, the accused came in and lay on top of her and started touching her body over and under her clothing, including on her breasts and pubic area.[25]
Charges 2-5
[24] Item 3 in Table A of the amended Tendency Notice dated 27 July 2022.
[25] Statement of Lucy Parker dated 6 September 2021, [5] (depositions, page 600).
17The acts of digital penetration of the complainant’s vagina alleged in charges 2-5 are all said to have taken place in 2006 when she was in her third year as a student teacher at the school.
Charge 2
18Charge 2 alleges that the accused used her fingers to digitally penetrate the complainant’s vagina while they were at a four day school camp which commenced on 18 June 2006.[26] The accused arranged to share a room with the complainant who she knew was due to get married in August of that year. On the first night of the camp, the accused lay on top of the complainant in the double bed that they were sharing. After hugging, kissing and touching the complainant, the accused then proceeded to digitally penetrate her vagina for the first time. As she did so, she told the complainant “This will help you for your wedding night”. The accused’s face was red and her breathing was heavy. The complainant felt ‘completely frozen’ during this incident.[27]
Charge 3
[26] Item 7 in Table A of the amended Tendency Notice dated 27 July 2022.
[27] Statement of Lucy Parker dated 16 March 2021, [3]-[4] (depositions, page 602).
19Charge 3 alleges that the accused digitally penetrated the complainant’s vagina on another occasion while at the same school camp.[28] It was in the same room but during the daytime. Again, the penetration occurred in the context of other alleged sexual activity, which included the accused kissing and touching the complainant. The complainant believes that this act of digital penetration caused her menstrual cycle to commence early.[29]
Charge 4
[28] Item 8 in Table A of the amended Tendency Notice dated 27 July 2022.
[29] Statement of Lucy Parker dated 16 March 2021, [6]-[7] (depositions, page 603).
20Charge 4 alleges that the accused digitally penetrated the complainant’s vagina on a later occasion, on a date that was after the school camp but before she got married in mid-August 2006.[30] It occurred about a week after the complainant had finished her period and was the first time the accused digitally penetrated her after the school camp had finished. The complainant was at the school after hours, preparing for the lessons she had to teach. It was sometime between 4pm and 6pm. The accused was sitting next to her in the accused’s office. After first kissing, hugging and touching the complainant, the accused then put her hand down the front of the complainant’s underwear and digitally penetrated her.[31]
Charge 5
[30] Item 9 in Table A of the amended Tendency Notice dated 27 July 2022.
[31] Statement of Lucy Parker dated 16 March 2021, [10] (depositions, page 603).
21Charge 5 alleges an additional act of digital penetration of the complainant’s vagina in the same timeframe as is alleged for charge 4.[32] On this occasion, it occurred during school hours and in a different upstairs office at the school. That office had previously belonged to a teacher who had since left the school, a woman named Ms Rosenbaum. The accused penetrated the complainant’s vagina from the front, just as she had done during the incident the subject of charge 4.[33]
Lucy Parker: uncharged acts
[32] Item 10 in Table A of the amended Tendency Notice dated 27 July 2022.
[33] Statement of Lucy Parker dated 16 March 2021, [11] (depositions, page 604).
22The uncharged acts that the prosecution seek to rely on for tendency purposes are as follows.
23From approximately February until October 2002,[34] when the complainant was in Year 11, the accused is alleged to have arranged for the complainant to attend her office on multiple occasions and then touched her inappropriately.[35] The accused’s conduct included kissing the complainant’s neck and face, touching her inner thighs over her tights but under her uniform, rubbing her back, undoing her bra and touching her breasts. She also took the complainant’s hand and placed it on the accused’s skin underneath and to the side of her bra. The accused kept telling the complainant that she was more special to her than anyone else and not to tell anyone.[36]
[34] The complainant travelled overseas in October of that year: Statement of Lucy Parker dated 6 September 2021, [3] (depositions, page 600).
[35] Item 1 in Table A of the amended Tendency Notice dated 27 July 2022.
[36] Statement of Lucy Parker dated 6 September 2021, [1]-[3] (depositions, pages 599-600).
24The complainant alleges that the accused continued to do the same things to her during 2003, when she was in Year 12. By that time, however, the accused had a different office to the one that she had used when the complainant was in Year 11.[37]
[37] Item 2 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Lucy Parker dated 15 November 2011, [13]-[14] (depositions, pages 611-612); Statement of Lucy Parker dated 6 September 2021, [2] (depositions, page 599); and Committal transcript (depositions, pages 883-884).
25From the time when the complainant commenced as a student teacher at the school in February 2004 until just before she got married in August 2006, the accused arranged for the complainant to receive extra lessons on Sundays in her school office. Although the complainant says that she cannot say exactly how many times that occurred, she estimates that there were more than 10 such occasions and could well have been over twenty.[38]
[38] Item 4 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Lucy Parker dated 15 November 2011, [20]-[21] (depositions, pages 614-615); Statement of Lucy Parker dated 16 March 2021, [20] (depositions, page 605).
26While the accused was teaching the complainant on those occasions, she is alleged to have sat next to her, rubbed her shoulders and thighs, kissed her face and neck, undone her bra, got her to lean back onto the accused’s lap and then rubbed and sucked her exposed breasts. The accused would say things like “your skin is so smooth/soft, it’s untouched”. She would tell the complainant that she loved her and not to tell anyone what they were doing.[39]
[39] Statement of Lucy Parker dated 15 November 2011, [20]-[21] (depositions, pages 614-615).
27During the same period between February 2004 and shortly before August of 2006, the complainant was teaching approximately three times per week during the school terms. In that context, it is alleged that accused would contact her when the complainant had either finished her teaching duties for the day or when she had a free period and tell her to meet the accused in an office at the school.[40] The office used for that purpose varied, but would sometimes be that of the Primary School Principal because she finished work at 2pm. The accused followed a similar routine with the complainant once they were both in the office; she would rub her thighs, unclip her bra and then rub and suck her breasts.[41]
[40] Item 5 in Table A of the amended Tendency Notice dated 27 July 2022.
[41] Statement of Lucy Parker dated 15 November 2011, [22] (depositions, page 615); Statement of Lucy Parker dated 16 March 2021, [20] (depositions, page 605).
28In the period 2004-2005, when the complainant was in her first two years as a student teacher, the accused also arranged for her to come to her house at night to discuss teaching matters.[42] The same thing would allegedly occur each time; while seated together on the dining room couch, the accused would touch the complainant, rub her thighs, unclip her bra and then rub and suck her breasts.[43]
[42] Item 6 in Table A of the amended Tendency Notice dated 27 July 2022.
[43] Statement of Lucy Parker dated 15 November 2011, [24] (depositions, pages 615-616); Statement of Lucy Parker dated 16 March 2021, [20] (depositions, page 605).
29On the school camp held in June 2006, there was an occasion when the complainant and her sister, Laura Watson, were both staying in the accused’s bedroom.[44] The accused shared the double bed with the complainant while Laura, who had a cold, slept in a single bed. During the night, when it appeared that Laura was asleep, the accused is alleged to have got on top of the complainant, rubbed her body under her nightgown and then put her hand down the complainant’s underwear and touched her over her pubic area whilst saying something like “I’ll leave that for your husband”.[45]
[44] Item 11 in Table A of the amended Tendency Notice dated 27 July 2022.
[45] Statement of Lucy Parker dated 15 November 2011, [26]-[29] (depositions, pages 616-617); Statement of Lucy Parker dated 1 December 2011, [4] (depositions, page 607); Statement of Laura Watson dated 5 September 2011, [37]-[40] (depositions, pages 664-665).
30On another occasion at the same 2006 camp, the complainant felt unwell and so went to lay down on the bed.[46] The accused came into the room and is alleged to have massaged the complainant’s stomach, and rubbed her breasts and pubic area, both over and under her clothing. As she was touching her pubic area, she is alleged to have said “I’ll leave that to your husband”.[47]
[46] Item 12 in Table A of the amended Tendency Notice dated 27 July 2022.
[47] Statement of Lucy Parker dated 15 November 2011, [18]-[19] (depositions, pages 613-614).
31And, the prosecution also rely on any uncharged acts that are alleged to have occurred during the incidents which are the subject of charges 2, 3 and 4. In this context, I note the following. For the charge 2 incident, the accused is alleged to have hugged, touched and kissed the complainant before then engaging in the charged act of digital penetration.[48] For the charge 3 incident, the accused is alleged to have kissed and touched the complainant and sucked her breasts in addition to engaging in the charged act of digital penetration.[49] And, for the charge 4 incident, the accused is alleged to have touched the complainant all over her body, embraced and kissed her and undone her bra before then engaging in the charged act of digital penetration.[50]
Laura Watson: charged acts
[48] Item 7 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Lucy Parker dated 16 March 2021, [3] (depositions, page 602).
[49] Item 8 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Lucy Parker dated 16 March 2021, [6] (depositions, page 603).
[50] Item 9 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Lucy Parker dated 16 March 2021, [10] (depositions, page 603).
32I now turn to consider the evidence of the second complainant, Laura Watson, commencing with the charged acts.
Charge 6
33Charge 6 relates to one of the occasions that the complainant says the accused arranged for her to attend the accused’s home for private lessons on Sundays. The lessons commenced in the summer school break of 2003-2004 and continued at her home, as well as in her office, in the first half of the 2004 school year when the complainant was in Year 11.[51]
[51] Whilst some of the occasions on which such lessons were arranged give rise to specific charges, other occasions give rise to uncharged acts. In each case, the prosecution rely on such evidence in their application to admit the evidence for tendency purposes.
34The particular act on which this charge of indecent assault is based is the accused sucking the complainant’s breasts on an unspecified date in the first half of 2004, when the complainant was in Year 11.[52]
[52] Item 15 in Table A of the amended Tendency Notice dated 27 July 2022.
35On this occasion, the accused and the complainant were at the accused’s home, seated at the dining room table. The accused had sent her daughter to her bedroom. When the complainant was having trouble reading Hebrew, the accused put her arm around her and started rubbing her back and thighs, before unclipping her bra. The accused then directed the complainant to the couch. Once there, the accused picked the complainant up and put her on the accused’s lap ‘like a baby’. The accused then lifted the complainant’s top and rubbed her breasts and sucked her nipples. She also placed the complainant’s hand onto the accused’s breasts and showed her what to do.[53]
Charge 7
[53] Statement of Laura Watson dated 5 September 2011, [34]-[36] (depositions, pages 663-664); Statement of Laura Watson dated 18 October 2011, [3] (depositions, page 651).
36Charge 7 alleges that the accused digitally penetrated the complainant’s vagina on the last night of the winter school camp which was held between 20 and 25 June 2004.[54] According to the complainant, the accused pulled her away from a group student activity and took her to the bedroom that the accused was staying in. Once there, the accused undressed the complainant until she was almost completely naked. Whilst the complainant was standing, the accused touched her breasts and then hugged her while using her fingers to penetrate the complainant’s vagina.[55]
Charge 8
[54] Item 17 in Table A of the amended Tendency Notice dated 27 July 2022.
[55] Statement of Laura Watson dated 4 December 2011, [2]-[3] (depositions, pages 645-646); Statement of Laura Watson dated 7 March 2012, [2]-[3] (depositions, page 642).
37Charge 8 involves a further act of digital penetration of the complainant’s vagina which is said to have occurred during a two-day school trip to Emerald for Year 11 and 12 students. It was on a date sometime between 2 August 2004 and 8 June 2005, when the complainant was 16 or 17 and in either Year 11 or 12.[56]
[56] Item 18 in Table A of the amended Tendency Notice dated 27 July 2022.
38As the complainant was making her way to the swimming pool dressed in a bathing suit, the accused approached her and said that she needed to inspect the friction burn the complainant had sustained to her leg from a tobogganing incident some weeks earlier. The accused then took the complainant to one of the bedrooms in the house, sat her on a bed and looked at her injured leg. The accused then completely undressed the complainant and dragged her onto her lap and held her as if she was a child. While doing so, the accused told the complainant how much she loved her and how beautiful she was. She then lay the complainant down on the bed and got partially undressed herself, removing her top and lifting her skirt. She then proceeded to touch the complainant’s breasts and anal area and kiss her breasts and stomach. Ultimately, she penetrated the complainant’s vagina using her fingers. At one point, she also showed the complainant how to rub the accused’s breasts.[57]
Charges 9 and 10
[57] Statement of Laura Watson dated 5 September 2011, [21]-[26] (depositions, pages 659-661).
39Charges 9 and 10 relate to an occasion on which the accused is alleged to have indecently assaulted the complainant while tutoring her at the accused’s home on a date between 1 January and 1 June 2005, when the complainant was in Year 12. Charge 9 alleges that the accused sucked the complainant’s breasts while charge 10 asserts that the accused used her fingers to rub up and down the complainant’s vagina.[58]
[58] Item 19 in Table A of the amended Tendency Notice dated 27 July 2022.
40It was on a Sunday evening and one of the occasions on which the complainant attended the home of the accused to receive tutoring. Whilst they were seated together at the dining room table, the accused drew a diagram and started asking the complainant questions. She then started touching her. After removing the complainant’s top and bra, she sucked her breasts. After doing that, the accused put her hand inside the complainant’s underwear and used her fingers to rub up and down the middle part of the complainant’s vagina but without penetrating her. While doing so, the accused told the complainant how much she loved her and how much she was doing for her to show how much she loved her.[59]
Charge 11
[59] Statement of Laura Watson dated 5 September 2011, [29]-[30] (depositions, pages 661-662).
41Charge 11 involves a further act of alleged digital penetration of the complainant’s vagina by the accused, this time in the accused’s office at the school.[60]
[60] Item 20 in Table A of the amended Tendency Notice dated 27 July 2022.
42It was on 26 May 2005, the day of the Jewish holiday of Lag B’ Omer. The accused asked the complainant to stay behind at the school instead of accompanying her classmates on the planned school excursion. After the complainant assisted at the community creche, the accused took her back to her office where she pulled her onto her lap and removed her jumper. After touching the complainant’s body and sucking her nipples, the accused moved her onto the floor where she proceeded to rub her body, including her vagina, which she ultimately penetrated using her fingers. She also made an unsuccessful attempt to get the complainant to touch the accused’s breasts.[61]
Charge 12
[61] Statement of Laura Watson dated 5 September 2011, [41]-[44] (depositions, pages 665-666).
43Charge 12 alleges that the accused indecently assaulted the complainant by kissing her on the mouth on an unspecified date between 2 and 18 November 2005, when they were in a house at Frankston for an overnight school excursion held for Year 12 students.[62]
[62] Item 21 in Table A of the amended Tendency Notice dated 27 July 2022.
44The accused attended in a supervisory capacity and brought her baby with her. During the evening, the accused took the complainant away from a group of students to speak to her while she put her baby to bed. As the accused sat next to the complainant and rocked her baby, she tried to explain what kissing on the mouth meant, how nice it felt and how it was something special between two people. The act of kissing was a new concept for the complainant as she had never heard of it before. After explaining it, the accused proceeded to demonstrate by kissing the complainant on her mouth.[63]
Charge 13
[63] Statement of Laura Watson dated 5 September 2011, [31]-[33] (depositions, pages 662-663); Statement of Laura Watson dated 4 December 2011, [13] (depositions, pages 649).
45Charge 13 alleges that the accused again indecently assaulted the complainant when she was in Year 12, this time by sucking her breasts while they were in the school library on an unspecified date between 24 June and 31 December 2005.[64]
[64] Item 22 in Table A of the amended Tendency Notice dated 27 July 2022.
46It was on a school day towards the end of the school year. At around lunchtime, either just before or just after, the accused asked the complainant to sit on the floor next to her near a desk at the back of the library. She then proceeded to touch and suck the complainant’s breasts. A friend of the complainant walked into the library as the accused was leaning on the complainant and sucking her breasts. The accused quickly pulled back and covered the complainant up.[65]
Charge 14
[65] Statement of Laura Watson dated 5 September 2011, [45]-[46] (depositions, pages 666-667).
47Charge 14 alleges a similar act of indecent assault to that alleged in charge 13, but this time occurring at the accused’s home on an unspecified date between 26 August and 31 December 2005. The complainant was in Year 12.[66]
[66] Item 23 in Table A of the amended Tendency Notice dated 27 July 2022.
48It was a school day. The accused called the complainant out of class and arranged for a driver to collect them. After the accused’s baby was dropped off at the babysitter’s house, the accused got the driver to drop her and the complainant off at the accused’s home. Once there, the accused made the complainant some soup, which she ate. The accused then led her to the couch where she proceeded to hug her. She told the complainant how much she loved her and that she was like a daughter to her. After that, she is alleged to have pulled up the complainant’s top, undone her bra and sucked her breasts.[67]
Charges 15-19
[67] Statement of Laura Watson dated 4 December 2011, [4]-[6] (depositions, pages 646-647).
49Each of charges 15-19 allege sexual offending by the accused against the complainant in 2006, when the complainant was in her first year as a student teacher.
Charge 15
50Charge 15 alleges that the accused digitally penetrated the complainant’s vagina at the accused’s home on an unspecified date between 26 January and 29 August 2006. It was after the complainant had commenced as a student teacher but before she got married in mid-September 2006.[68]
[68] Item 24 in Table A of the amended Tendency Notice dated 27 July 2022.
51On this occasion, the accused arranged for the complainant to sleep over at her house. The accused got her teenage daughter to sleep in the accused’s bedroom, thereby freeing up the daughter’s bedroom for the complainant. At one point, the accused came into the room and pushed two single beds together. After laying her baby down, the accused lay next to the complainant, pulled her bra down and touched and sucked the complainant’s breasts. She then proceeded to touch the complainant over her tights and underwear before pulling those items of clothing down and using her fingers to penetrate the complainant’s vagina.[69]
[69] Statement of Laura Watson dated 5 September 2011, [47]-[50] (depositions, pages 667-668).
Charge 16
52Charge 16 alleges that the accused digitally penetrated the complainant’s vagina while they were at the winter school camp in Blampied, which was held between 19 and 22 June 2006.[70]
[70] Item 25 in Table A of the amended Tendency Notice dated 27 July 2022.
53The complainant was only at the camp for one night. The accused arranged for her to sleep in the bedroom that the accused was already sharing with the complainant’s sister, Lucy. The accused got the complainant out of some activity so she could help her with something. After taking her back to the bedroom, and while they were alone, the accused removed the complainant’s top and skirt, put her hand underneath her tights and underwear and then proceeded to penetrate the complainant’s vagina using her fingers.[71]
Charges 17 and 18
[71] Statement of Laura Watson dated 5 September 2011, [37] (depositions, pages 664); Statement of Laura Watson dated 4 December 2011, [14] (depositions, pages 649); Committal transcript (depositions, page 1035).
54Charges 17 and 18 each allege an act of indecent assault, the former by way of the accused sucking the complainant’s breasts and the latter by way of getting the complainant to touch the accused’s breast, while they were in a school reading room on an unspecified date between 26 January and 29 August 2006.[72]
[72] Item 26 in Table A of the amended Tendency Notice dated 27 July 2022.
55On this occasion, the complainant was attempting to hide from the accused in one of the cubicles in a room known as the Kriah room. When the accused came into the room and saw the complainant, she first complimented her on the top she was wearing and then pulled her onto her lap. She then took the complainant’s breasts out of her bra and touched and sucked them. The accused held the complainant to her chest and caressed her hair. The accused also took the complainant’s hand and placed it over the accused’s bra and got her to touch and play with her breasts. At about this point, the complainant’s younger sister, Rachel, who had been looking for her sister so they could go home, walked into the room. She noticed that the accused was leaning over the complainant and had her hand on her back underneath her clothing and her arm around the complainant’s neck and pulling her head down towards the accused’s breasts. The accused then sat back in her chair while the complainant covered herself up. The complainant’s sister, who says that she did not understand what was happening at the time, pretended not to have noticed anything and quickly left.[73]
Charge 19
[73] Statement of Laura Watson dated 5 September 2011, [51]-[54] (depositions, pages 668-689); Statement of Rachel Harris dated 4 December 2011, [5]-[7] (depositions, pages 684-685).
56Charge 19 alleges that the accused digitally penetrated the complainant’s vagina in the same general timeframe as the incident the subject of charges 17 and 18, approximately 2-3 months before the complainant got married in September 2006.[74]
[74] Item 27 in Table A of the amended Tendency Notice dated 27 July 2022.
57The accused had arranged with the complainant’s mother for the complainant to stay overnight at the accused’s home so she could give the complainant “Kallah” lessons, which are lessons given to new brides to be in the ultra-Orthodox community to prepare them for marriage. This was the first time that the complainant stayed overnight at the accused’s home. The accused’s daughter slept in the accused’s bedroom while the complainant stayed in that daughter’s bedroom. The complainant went to bed fully clothed. The accused came into the room very late that night and got on top of the complainant. After pulling up the complainant’s top and removing her bra, the accused kissed her on the chest and sucked her breasts. After that, the accused pulled down the complainant’s tights and underwear and proceeded to spread her legs and then penetrate the complainant’s vagina with her fingers.[75]
Laura Watson: uncharged acts
[75] Statement of Laura Watson dated 4 December 2011, [7]-[10] (depositions, pages 647-648); Statement of Laura Watson dated 25 February 2021, [5] (depositions, page 639).
58The uncharged acts that the prosecution seek to rely on for tendency purposes are as follows.
59In the summer school break over December 2003 and January 2004, when the complainant was aged 16 and about to commence Year 11, the accused arranged for the complainant to receive private lessons on Sundays.[76]
[76] Item 13 in Table A of the amended Tendency Notice dated 27 July 2022.
60It was meant to be every Sunday but did not always happen that way because sometimes the accused couldn’t do it and sometimes the complainant’s mother wouldn’t let her go. The complainant estimates that she attended about 10 such Sunday lessons. The accused chose who to give such lessons to and told the complainant not to tell other students of what was occurring. The lessons were about Jewish morals and how a Jewish girl was supposed to act. They were conducted in the accused’s office at the school and also at her home. When the lessons first started, the accused would rub her hand on the complainant’s thigh and put her hand under the complainant’s skirt and rub the inside of her thighs. As she was doing this, the accused would ask the complainant what was happening in her life and repeatedly told the complainant that she could trust her and that she was there for her. On some occasions, the accused pulled the complainant into her lap and hugged her.[77]
[77] Statement of Laura Watson dated 5 September 2011, [9]-[11] (depositions, pages 656-657); Committal (depositions, page 950).
61It is further alleged that there was an occasion in early 2004 when the complainant was in Year 11 and still 16, whereby the accused arranged for a driver to take the two of them from the school to the accused’s home.[78]
[78] Item 14 in Table A of the amended Tendency Notice dated 27 July 2022.
62While seated together on a couch in the dining room, the accused put her arms around the complainant and got her to lie down. The accused was seated on the floor next to the couch. She rubbed the complainant’s back over and under her clothing and bra strap. This was the first time that the accused had touched the complainant on her skin under her clothing. After getting the complainant to roll over, the accused started touching her stomach. The accused was cradling the complainant’s upper body in her arms ‘like a baby’. She told the complainant that she could call her “mother” and that this was her way of showing her how much she loved her. She kept telling the complainant that she loved her. The accused also briefly touched the complainant’s breasts over her bra. Ultimately, the accused arranged for the driver to take them back to the school.[79]
[79] Statement of Laura Watson dated 5 September 2011, [15]-[20] (depositions, pages 657-659); Statement of Laura Watson dated 18 October 2011, [2] (depositions, page 651).
63The school had a winter camp in June of 2004 which was to be led by the Year 11 students, of which the complainant was one. In the period leading up to that camp, it is alleged that the accused often pulled the complainant away from class, or utilised the unstructured time outside of formal lessons that was set aside for the students to prepare for the camp, so as to spend time with her alone.[80]
[80] Item 16 in Table A of the amended Tendency Notice dated 27 July 2022.
64During this period, the accused arranged for the complainant to attend her office to talk to her. After talking for a little while, the accused would commence to touch the complainant. She rubbed and comforted her and told her that she was there for her. Although there were some occasions when the accused only touched and sucked the complainant’s breasts, on most occasions she also touched and digitally penetrated the complainant’s vagina and touched her anus. The accused also tried to get the complainant to touch the accused’s breasts.[81]
[81] Statement of Laura Watson dated 4 December 2011, [2] (depositions, page 645).
65And, the prosecution also rely on any uncharged acts that are alleged to have occurred during incidents the subject of charges 6, 7, 8, 11, 13, 15, 17-18, and 19. In this context, I note the following.
66For the charge 6 incident, the accused is alleged to have rubbed the complainant’s breasts and placed the complainant’s hand on the accused’s breast and moved it around so as to show her what to do. This is conduct in addition to the charged act of the accused sucking the complainant’s breasts/nipples.[82]
[82] Item 15 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Laura Watson dated 5 September 2011, [35] (depositions, page 663); Statement of Laura Watson dated 18 October 2011, [3] (depositions, page 651).
67For the charge 7 incident, the accused is alleged to have undressed the complainant, rubbed her breasts and hugged her before engaging in the charged act of digitally penetrating the complainant’s vagina.[83]
[83] Item 17 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Laura Watson dated 4 December 2011, [3] (depositions, page 645-646).
68For the charge 8 incident, the accused is alleged to have touched the complainant’s breasts and anal area, kissed her breasts and stomach and shown her how to touch the accused’s breasts before ultimately engaging in the charged act of penetrating the complainant’s vagina with her fingers.[84]
[84] Item 18 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Laura Watson dated 5 September 2011, [25] (depositions, page 660).
69For the charge 11 incident, the accused is alleged to have touched the complainant all over her body, sucked her breasts and unsuccessfully tried to get the complainant to touch the accused’s breasts over her bra in addition to the accused committing the charged act of using her fingers to penetrate the complainant’s vagina.[85]
[85] Item 20 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Laura Watson dated 5 September 2011, [43] (depositions, page 666).
70For the charge 13 incident, the accused is alleged to have touched and played with the complainant’s breasts in addition to engaging in the charged act of sucking the complainant’s breasts.[86]
[86] Item 22 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Laura Watson dated 5 September 2011, [46] (depositions, page 667).
71For the charge 15 incident, the accused is alleged to have touched and sucked the complainant’s breasts before engaging in the charged act of penetrating the complainant’s vagina using her fingers.[87]
[87] Item 24 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Laura Watson dated 5 September 2011, [49]-[50] (depositions, pages 667-668).
72For the incident the subject of charges 17 and 18, the accused is alleged to have touched and played with the complainant’s breasts in addition to engaging in the charged acts of sucking the complainant’s breasts and placing the complainant’s hands on the accused’s breasts, respectively.[88]
[88] Item 26 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Laura Watson dated 5 September 2011, [52]-[53] (depositions, pages 668-669).
73For the charge 19 incident, the accused is alleged to have kissed the complainant’s chest and sucked her breasts in addition to engaging in the charged act of penetrating the complainant’s vagina with her fingers.[89]
Rachel Harris: charged acts
[89] Item 27 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Laura Watson dated 4 December 2011, [9] (depositions, pages 647-648).
74I now turn to consider the evidence of the third and youngest of the complainants, Rachel Harris, commencing with the charged acts.
Charges 20-24
75Charges 20 to 24 allege that the accused committed a number of indecent acts with the complainant when she was in Year 12, aged 16 or 17 and under the care, supervision or authority of the accused.
Charges 20 and 21
76The acts the subject of charges 20 and 21 are alleged to have occurred during a single episode of offending on an unspecified date between 1 and 11 December 2006, when the complainant was in Year 12 and undertaking a period of rehearsals for the 2006 end of year school play, in which she had one of the major roles. Charge 20 alleges that the accused got the complainant to touch the accused’s breast while charge 21 alleges that the accused touched the complainant’s breast.[90]
[90] Item 28 in Table A of the amended Tendency Notice dated 27 July 2022.
77One morning during the period of rehearsals, the accused approached the complainant at school and told her that she needed to speak with her later in the day. At lunchtime, the accused approached the complainant again and told her to meet her upstairs in the office of the Primary School Principal, Ms Rosenbaum. After the complainant had been waiting in the office for about 5-10 minutes, the accused arrived and sat next to her. She asked the complainant how she was feeling and started to touch her thighs over clothing, including her inner thighs, and kissed her. The accused also placed the complainant’s hand on the accused’s breast and asked her if it felt good. The accused then put her hand under the complainant’s clothing and touched her on the breast. By the end of this incident, the accused was ‘really flushed’ and said “We will continue this later”. The complainant states that this incident was the first occasion on which the accused touched her.[91]
Charges 22 and 23
[91] Statement of Rachel Harris dated 26 June 2011, [11]-[15] (depositions, pages 694-695).
78The two indecent acts of touching the complainant’s breast alleged in charges 22 and 23, while not occurring in a single episode of offending, are said to have taken place on the same night, one just before and the other just after the school play was performed at the Phoenix Theatre in Elwood on the evening of 11 December 2006.[92]
[92] Item 29 in Table A of the amended Tendency Notice dated 27 July 2022.
79About 30 minutes before the play commenced, the complainant was alone in the dressing room. The accused came to see her and used her body to block the door so that no one else could enter. She then touched the complainant’s breast over her clothing and kissed her on the neck. As she was doing so, she asked the complainant how she was feeling and wished her good luck. When someone called out the complainant’s name, the accused stopped touching her and said “We will continue this later”.[93]
[93] Statement of Rachel Harris dated 26 June 2011, [16] (depositions, page 695).
80After the play finished, the complainant’s mother made a scene in front of other people and screamed at the complainant because she wasn’t ready to go home. This was witnessed by the accused who later came to see the complainant in the dressing room. While they were alone in that room, the accused started to speak to the complainant about what her mother had just done. She attempted to calm the complainant down and asked her how she was feeling. She asked the complainant if she wanted to come back to the accused’s house for a while to avoid any risk of getting beaten up if she returned home. The accused then touched the complainant in the same way that she had done before the play, running her hands over her breast and kissing her on the neck.[94]
Charges 24-29
[94] Statement of Rachel Harris dated 26 June 2011, [18] (depositions, page 696).
81The acts alleged in the remaining charges are alleged to have been committed in 2007 when the complainant was a first year student teacher.
Charge 24
82The indecent act alleged in charge 24 involved the accused getting the complainant to touch the accused’s breast. It is the first of the charged acts which occurred when the complainant was in her first year as a student teacher at the school. The complainant was 17. It was within two or three days of her starting her new teaching role in early 2007.[95]
[95] Item 30 in Table A of the amended Tendency Notice dated 27 July 2022.
83On this occasion, the accused came to the door of the complainant’s classroom and asked her to come back to the accused’s home after school so that she could help the complainant with one of the subjects she was teaching. When they were at the accused’s home later that day, the accused touched the complainant on her legs and back over her clothing and kissed her on the neck and face while they were on the couch. She then made the complainant touch her by putting the complainant’s hand on the accused’s breast and directing it. The accused also got the complainant to touch the inside of the accused’s legs over clothing. The complainant was picked up by her father a short time later.[96]
Charges 25-28
[96] Statement of Rachel Harris dated 26 June 2011, [22]-[25] (depositions, pages 697-698).
84Charge 25 alleges that the accused indecently assaulted the complainant by kissing her vagina. The rapes alleged in charges 26 and 27 assert that the accused penetrated the complainant’s vagina with a sex toy and the accused’s finger, respectively. The charge of rape by compelled sexual penetration alleged in charge 28 is based on the accused having compelled the complainant to penetrate the accused’s vagina with her finger. All of these alleged acts are said to have occurred during the course of a single episode of offending at the home of the accused on an unspecified date between 10 September and 19 December 2007.[97]
[97] Item 32 in Table A of the amended Tendency Notice dated 27 July 2022.
85It was at about 9pm on an evening in around October or November 2007. The complainant believes that she was either going to stay late or overnight at the accused’s home. The accused took her to the accused’s bedroom and touched her over clothing. After getting undressed herself, the accused then touched and undressed the complainant. She then got on top of the complainant and tongue kissed her. After that, the accused kissed the complainant all over her body, including on her vagina. The accused then produced a sex toy, which the complainant later realised must have been a dildo, and made the complainant put it between the accused’s breasts. The accused then used the same object to penetrate the complainant’s vagina, kissing the complainant on the mouth and breasts as she did so. The accused also used her index finger to penetrate the complainant’s vagina in a way that caused the complainant to feel pain. The accused also made the complainant kiss the accused’s breasts and tried to get her to kiss the accused’s vagina. After that, the accused placed the complainant’s hand on the accused’s vagina and instructed her to do what the accused had just done to her, in response to which the complainant used one of her fingers to penetrate the accused’s vagina.[98]
Charge 29
[98] Statement of Rachel Harris dated 26 June 2011, [29]-[30] (depositions, pages 699-700); Statement of Rachel Harris dated 8 September 2011, [7]-[13] (depositions, pages 687-688).
86Charge 29 is the last of the charges and alleges that the accused raped the complainant by using a finger to penetrate her vagina while they were at the accused’s home. This incident is said to have occurred in the same timeframe as the separate incident on which charges 25-28 are based, namely on an unspecified date between 10 September and 19 December 2007.[99]
[99] Item 33 in Table A of the amended Tendency Notice dated 27 July 2022.
87On this occasion, the accused asked the complainant to come over and tidy her house. When the complainant arrived at about 5.30pm, the accused immediately started to touch the complainant on the breasts over clothing and kiss her on the neck, cheek and breasts. She then used her fingers to penetrate the complainant’s vagina.[100]
Rachel Harris: uncharged acts
[100] Statement of Rachel Harris dated 26 June 2011, [31]-[32] (depositions, page 700); Statement of Rachel Harris dated 8 September 2011, [14] (depositions, page 688).
88The uncharged acts that the prosecution seek to rely on for tendency purposes are as follows.
89The complainant alleges that throughout 2007, the accused continued to arrange to be alone with her. The accused arranged for the complainant to come to her house. In addition, the accused arranged for her to attend at her office at the school on some Sundays.[101]
[101] Item 31 in Table A of the amended Tendency Notice dated 27 July 2022.
90On the occasions at the house, the complainant alleges that the accused touched her in the same way as she had done during the incident the subject of charge 24. That is, she rubbed her back, touched her all over and kissed her neck and face. The complainant states that sometimes this happened once a week or more but there were other times when nothing happened for 3 or 4 weeks before it resumed. The complainant estimates that there were approximately 25 occasions when this happened at the accused’s house in 2007.[102]
[102] Statement of Rachel Harris dated 26 June 2011, [25]-[26] (depositions, page 698).
91In relation to the attendances at the school office in 2007, the complainant states that the accused arranged for her to attend there on Sunday mornings so that she could teach her. No one else was at the school except the cleaners. The accused would start teaching the complainant but then come and sit next to her and start touching her leg. After locking the door and closing the blinds, and depending on how much time she had, the accused would then either touch her over clothing or partially undress and then penetrate her vagina with her fingers while saying “This is good for you”.[103]
[103] Statement of Rachel Harris dated 26 June 2011, [33]-[34] (depositions, page 701); Statement of Rachel Harris dated 8 September 2011, [17] (depositions, page 689).
92The complainant states that the attendances at the school office on Sundays did not happen every week. She estimates that there were about 12 such occasions in 2007.[104] In this context, it is relevant to note that the cleaner responsible for cleaning the school buildings since 1991, including on Sundays, recollects seeing the youngest sister of the teacher Lucy Parker with the accused at the school on about 10 Sundays. To his memory, the accused would put a sign on her office door telling him not to come in and kept the door closed.[105]
[104] Statement of Rachel Harris dated 26 June 2011, [34] (depositions, page 701); Statement of Rachel Harris dated 8 September 2011, [17] (depositions, page 689).
[105] Statement of Mario Toledo dated 7 November 2011, (depositions, page 701); Statement of Mario Toledo dated 26 February 2021, [2] (depositions, page 680).
93And, the prosecution also rely on any uncharged acts that are alleged to have occurred during the incidents the subject of charges 20-21, 22, 23, 24, 25-28, and 29. In this context, I note the following.
94For the incident the subject of charges 20 and 21, the accused is alleged to have touched the complainant’s inner thighs over clothing before engaging in the charged acts of placing the complainant’s hand on the accused’s breast (charge 20) and touching the complainant on the breast under clothing (charge 21).[106]
[106] Item 28 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Rachel Harris dated 26 June 2011, [13] (depositions, page 694).
95For the charge 22 incident, the accused is alleged to have kissed the complainant’s neck in addition to engaging in the charged act of touching the complainant’s breast over clothing.[107]
[107] Item 29 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Rachel Harris dated 26 June 2011, [16] (depositions, page 695).
96For the charge 23 incident, the accused is similarly alleged to have kissed the complainant’s neck in addition to engaging in the charged act of touching the complainant’s breast over clothing.[108]
[108] Item 29 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Rachel Harris dated 26 June 2011, [18] (depositions, page 696).
97For the charge 24 incident, the accused is alleged to have kissed the complainant’s neck and face and touched her on her legs and back over clothes in addition to engaging in the charged act of making the complainant touch the accused’s breast with her hand over clothing.[109]
[109] Item 30 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Rachel Harris dated 26 June 2011, [25] (depositions, page 698).
98For the incident the subject of charges 25-28, the accused is alleged to have kissed the complainant on the mouth and breasts, made her kiss and touch the accused’s breasts with a sex toy and tried to make her lick the accused’s vagina in addition to engaging in the charged acts of kissing the complainant’s vagina (charge 25), penetrating the complainant’s vagina using a sex toy (charge 26) and her finger (charge 27) and compelling the complainant to penetrate the accused’s vagina with her finger (charge 28).[110]
[110] Item 32 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Rachel Harris dated 26 June 2011, [29] (depositions, page 699); Statement of Rachel Harris dated 8 September 2011, [7]-13] (depositions, page 687-688).
99For the charge 29 incident, the accused is alleged to have touched the complainant on the breasts over clothing and kissed her on the cheeks, neck and breasts before engaging in the charged act of penetrating the complainant’s vagina with her fingers.[111]
[111] Item 33 in Table A of the amended Tendency Notice dated 27 July 2022; Statement of Rachel Harris dated 26 June 2011, [25] (depositions, page 698); Statement of Rachel Harris dated 8 September 2011, [14] (depositions, page 688).
Defence case and issues in trial
100The filed defence response makes it clear that the credibility and reliability of each complainant will be in issue in any trial.[112] The accused denies all of the criminal conduct alleged by each of them.[113] The central issue will be whether the prosecution can prove beyond reasonable doubt that what the complainants say happened, did in fact happen.[114]
[112] Dated 15 March 2022. See at [3].
[113] See at [2].
[114] See at [3].
101In the course of their oral submissions opposing this application, the defence indicated they would likely take a more expanded approach at trial by also putting in issue, for the charges for which it is an element because of the complainant’s age, the element relating to the need for the prosecution to prove that the complainant was not consenting.[115] It was indicated that was particularly likely to be the case in relation to the youngest complainant.
[115] Charges 1-5 for Lucy Parker; Charges 6, 9, 10, and 12-19 for Laura Watson; and Charges 25-29 for Rachel Harris.
The Tendency Notice
102The Tendency Notice upon which I am asked to rule is the most recent iteration. It is dated 27 July 2022 and headed ‘Further Amended Notice’. Over the course of the hearing, the nature and scope of the prosecution application to admit tendency evidence became narrower and more confined, as can readily be gleaned from a comparison of the different notices.
103Further, I note that even in respect of the current notice, the prosecution ultimately abandoned one of the two asserted tendencies.[116]
[116] The tendency asserted in paragraph 2(b) of the notice.
104The current Tendency Notice is in the following terms:
1.Pursuant to s 97(1)(a) of the Evidence Act 2008 (Vic) the prosecution gives notice that it intends to adduce evidence which will establish the tendency of the Accused to have a particular state of mind and act in a particular way.
2.The prosecution seek to rely upon the tendency of the Accused:
(a)To have a sexual interest in young female students/student teachers, to engage in sexual activities with them, and to take advantage of their vulnerability, ignorance in sexual matters, and her position of authority in order to do so.
(b)To do the above in the vicinity of others or at risk of being discovered.
3.The evidence relied upon to establish the tendency is set out in Table A, below.
4.The issues in the case to which the tendency reasoning applies are:
(a)Whether each of the charged acts occurred.
5.The tendency set out at paragraph 2 is relied upon in support of the following charges as making more likely the facts founding those charges.
5.1Charges 1 – 29.
105Table A of the Tendency Notice includes 33 items or categories of evidence and the summary that I have already given in respect to the relevant allegations made by each of the complainants cross-references the relevant parts of that document and the depositions.[117]
[117] For the summary, see [1]-[99] above.
106There is one final matter that I wish to refer to and note at this stage. In the course of discussions, I understood senior counsel appearing for the prosecution to ultimately indicate that the essence of the asserted tendency of the accused that the prosecution were seeking to rely on in paragraph 2(a) of the notice was as follows:
To have a sexual interest in girls when they were teenage students at the school and when those same girls were student teachers at the school, to engage in sexual activities with them and to take advantage of their vulnerability, ignorance in sexual matters and her position of authority, in order to do so.
107I will now proceed to consider the application accordingly.[118]
[118] Pre-trial transcript, page 511.
The statutory framework and legal principles
108The relevant sections of the Act control and limit the circumstances in which tendency evidence may be admitted.
109The tendency rule is to be found in s 97 of the Act and is the first of the gateways through which the prosecution must successfully pass to succeed in having evidence admitted for a tendency purpose.[119] The section prohibits the admission of tendency evidence unless certain statutory criteria are established and relevantly states:
[119] The other is s 101 of the Act.
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless –
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
….
110As the High Court has observed, the section conditions the admissibility of such evidence on the court’s assessment that the evidence taken by itself or with other evidence will have ‘significant probative value’.[120]
[120] McPhillamy v The Queen (2018) 361 ALR 13, [16] (Kiefel CJ et al).
111In the event that the court concludes that the relevant test in s 97 is satisfied because the evidence will, either by itself, or with other evidence, have significant probative value, attention must then be directed to the further requirement set out in s 101(2) of the Act, which applies to tendency and coincidence evidence adduced by the prosecution in a criminal proceeding. The section relevantly provides:
101Further restrictions on tendency evidence…adduced by the prosecution
(1)….
(2) Tendency evidence about an accused…that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
….
112In the 2016 case of Imm v The Queen (‘Imm’),[121] the High Court observed that evidence will possess significant probative value if it is capable of rationally affecting the assessment of the probability of a fact in issue to a ‘significant extent’.[122] It must be ‘influential’ in the context of fact-finding. As the court later confirmed in Hughes v The Queen (‘Hughes’),[123] the test posed by s 97(1) is whether the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged.[124]
[121] (2016) 257 CLR 300.
[122] At [138].
[123] (2017) 263 CLR 338.
[124] At [40] (Kiefel CJ, Bell, Keane and Edelman JJ).
113As was explained in McPhillamy v The Queen (‘McPhillamy’),[125] mere proof of an accused’s sexual interest in a number of complainants may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.[126]
[125] (2018) 361 ALR 13.
[126] Ibid, at [26]-[27].
114As Hughes makes clear, where there are multiple charges on an indictment, each charge must be considered separately to assess whether the tendency evidence which is sought to be adduced in relation to that charge is admissible.[127] As the majority explained, there are two interrelated but separate matters. The first is the extent to which the evidence supports the tendency. The second is the extent to which the tendency makes more likely the facts making up the charged offence. Both matters must be considered when the question is whether the offence was committed rather than who committed it. As was also observed, there is likely to be a high degree of probative value where there is strong support for both considerations; that is, when the evidence by itself or together with other evidence strongly supports proof of a tendency and the tendency strongly supports the proof of a fact that makes up the offence charged.[128]
[127] (2017) 263 CLR 338, [40].
[128] At 356-357, [41] (Kiefel CJ, Bell, Keane and Edelman JJ).
115Later, in R v Bauer (a pseudonym) (‘Bauer’),[129] the High Court observed that in a multiple complainant sexual offence case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for the evidence of the offending against one complainant to be significantly probative of the offending against the other, there ‘must ordinarily be some feature of or about the offending which links the two together’.[130] If there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.[131]
[129] (2018) 266 CLR 56.
[130] At [58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[131] Ibid.
116Two further matters are worth noting at this stage.
117First, as was observed in Hughes, it is not necessary that the disputed evidence possesses the necessary effect by itself. It is sufficient if the disputed evidence together with other evidence makes more likely any facts making up the elements of the offence charged.[132]
[132] At [62] (Kiefel CJ, Bell, Keane and Edelman JJ).
118Secondly, when assessing the probative value of each of the complainants as tendency evidence, I must take the evidence at its highest, which requires me to assume both credibility and reliability.[133] In saying that, I do not overlook the cautionary observation of the Court in Imm, that such a requirement should not distort a finding as to the real probative value of the evidence. As there noted, the circumstances surrounding the evidence in a particular case may indicate that its highest level is not very high at all.[134]
[133] Bauer at [69]-[70]; Imm at [42]-[48], [59].
[134] Imm at [50].
Submissions
119The prosecution filed a number of sets of written submissions[135] and other documents[136] to reflect the progressive changes and refinements to the nature and scope of their application and to provide some further detail on particular aspects of the evidence and the asserted tendency.
[135] Outline of Prosecution Submissions regarding Tendency dated 15 July 2022 (Exhibit B); Additional Prosecution Submissions regarding Tendency dated 25 July 2022 (Exhibit C); Outline of Prosecution submissions regarding tendency dated 27 July 2022 (Exhibit D).
[136] Chart of Frequency of Uncharged Acts (Exhibit F); Chart of evidence relating to alleged offending that occurred in the vicinity of others or in circumstances that risked discovery (exhibit E). Note: The prosecution later abandoned any reliance on the type of evidence in Exhibit E as one of the aspects of the asserted tendency in the final amended tendency notice.
120The defence also filed a number of sets of written submissions outlining their opposition to the prosecution application,[137] and a Table of purported similarities and dissimilarities in the evidence relating to each of the component parts or aspects of the asserted tendency cross-referenced to the relevant items in Table A of the Tendency Notice.[138] Not all of those aspects of the asserted tendency were ultimately relied on in the final Tendency Notice (as amended).
[137] Defence Submissions on Tendency dated 19 July 2022 (Exhibit 2); Defence Further Submissions on Tendency dated 31 July 2022 (Exhibit 4).
[138] Exhibit 3.
121Each of the parties also made extensive oral submissions to the court over the course of a number of days.
122I will now summarise the submissions made on behalf of each of the parties, commencing with the prosecution.
Prosecution Submissions
123In support of their application, the prosecution placed particular reliance on the decision of the NSW Court of Criminal Appeal in R v PWD (‘PWD’).[139] In that case, the accused was the Principal as well as a music teacher at the school where the four complainants and two tendency witnesses attended as boarders.
[139] (2010) 205 A Crim R 75.
124In this case, the prosecution submit that the tendency they seek to prove and rely on is similar to that which the prosecution were permitted to rely on in PWD, namely a tendency of the accused to “have a sexual interest in young male students, to engage in sexual activities with young male students, and to use his position of authority to obtain access to young male students so that he could engage in sexual activity with them”.
125In this case, the prosecution relied on the relevant evidence referred to in Table A of the Tendency Notice, to demonstrate that the allegations made by each complainant show that the accused had a sexual interest in each of those girls while they were teenage students and then also while they were student teachers at the same school where she was the Principal.
126The prosecution relies on the same evidence to demonstrate that the accused acted on her sexual interest in those girls when they were teenage students, as well as when they were student teachers, by engaging in sexual activities with them.
127The prosecution also submitted that the evidence established the other aspects of the asserted tendency, namely that each complainant was vulnerable (due to their difficult homelife) and ignorant in sexual matters, and that the accused took advantage of those matters and her position of authority in order to act on her sexual interest by engaging in sexual activities with each complainant.
128The prosecution emphasised that undue focus should not be directed at a search for similarities in the evidence. Rather, there needed to be an assessment of the capacity of the evidence to establish the asserted tendency itself.
129The prosecution pointed out that there is no real dispute that each complainant was a student at the Adass Israel School and went on to commence as a student teacher at the same school immediately after finishing Year 12. Nor is there any contest about the fact that the accused was a teacher and the Principal of that school during the relevant timeframe.
130Equally, say the prosecution, there is clear evidence, which appears not to be the subject of dispute, that all three complainants had a similarly difficult home life due mainly to the fact that their mother subjected them to neglect and physical and emotional abuse. In that context, the prosecution referred to what each complainant told police about the fact that the accused had been aware of the situation at home with their mother at the relevant time.[140]
[140] Statement of Lucy Parker dated 15 November 2011, [15] (depositions, page 612); Statement of Laura Watson dated 5 September 2011, [7]-[8] (depositions, pages 655-656); Statement of Rachel Harris dated 26 June 2011, [7]-[8] (depositions, pages 692-693).
131The prosecution also submitted that the evidence shows that the accused took advantage of her knowledge of each complainant’s common vulnerability by giving them special attention and emotional warmth under the guise of offering them comfort, allowing her to then engage in sexual activities with them.
132As to each complainant’s ignorance in sexual matters, the prosecution highlighted the fact that each of them belonged to an ultra-Orthodox Jewish community; they grew up in an ultra-Orthodox family and attended an ultra-Orthodox girls’ school where the accused was the Principal and Head of Religious Studies. As each complainant attests, they led a very insulated life and were not educated or taught anything about sex until very shortly before getting married, and only then by way of “Kallah” lessons. As such, during the relevant period of offending for each complainant, they had no knowledge about sex and sexual behaviour.
133The prosecution submits that the accused would have been well aware of that fact since she came from the same ultra-Orthodox Jewish community. Accordingly, armed with that knowledge, she was in a position to and did in fact take advantage of each complainant’s state of ignorance in order to engage in sexual activities with them. For example, the accused touched each complainant under the guise of comforting them, told Lucy Parker ‘this will help you for your wedding night’ while digitally penetrating her vagina in June 2006,[141] told Laura Watson that what she was doing would ‘help her later when she got married’,[142] and told Rachel Harris that ‘this is good for you’ while digitally penetrating her vagina in 2007.[143]
[141] This is alleged to have been said during the act of digital penetration relied on for Charge 2; See Statement of Lucy Parker dated 16 March 2021, [3] (depositions, page 602).
[142] Statement of Chana Rabinowitz dated 4 May 2021, [5] (depositions, page 706]; Committal evidence of Laura Watson, Committal transcript, (depositions, page 1039 lines 6-30).
[143] This is alleged to have been said on some, but not all of the occasions on which the accused performed uncharged acts of digital penetration in 2007 while in her school office on Sundays; See Statement of Rachel Harris dated 26 June 2011, [33]-[34] (depositions, page 701).
134And, the prosecution relies on the following evidence to show that the accused held a unique position of authority in the Adass Israel School and community:[144]
·In 2001, she was recruited from Israel to teach at the girls’ campus of the school because of her good reputation;
·The complainants were aware of the excitement that this generated at the school and in the community in which they lived;
·The accused was the head of religious studies, a very respected position that held a lot of weight in the school community;
·She was also the principal and, as part of her responsibilities, decided which of the Year 12 graduates who wanted to teach would be given teaching positions at the school for the following year; and
·While employed at the school, the accused did favours for others in the community and frequently asked others for favours, including by way of driving, babysitting and cleaning for her.
[144] The sources of that evidence are referred to in the prosecution opening dated 11 February 2022, at [14]-[22].
135Further, the prosecution argues that the accused took advantage of her position of authority within the school and Adass community in order to engage in sexual activities with the complainants in a number of ways, including the following:
·By requesting them to attend her office or another office within the school to which she had access;
·By offering them individual lessons;
·By requesting them to attend her home;
·By arranging to be alone with them during school excursions and camps; and
·By selecting each of them for a teaching position once they finished Year 12.
136In essence, the prosecution submitted that it was the asserted tendency that provided the necessary link or feature that was common to all of the evidence. Any differences relied on by the defence, such as the differences between some of the sexual activity, where it occurred and whether it involved any pre-planning were not meaningful differences and did not deprive the evidence supporting the tendency of its significant probative value.
137In summary, the prosecution submitted that the relevant evidence in relation to the charged and uncharged acts has significant probative value and therefore passes the threshold test in s 97(1). They say that a proper assessment of that evidence strongly supports proof of the asserted tendency and also strongly supports the proof of the commission of each of the acts the subject of the charged offences. There is, they submit, a common feature of or about the offending that provides the necessary link by demonstrating a tendency by the accused to act in a particular way, proof of which increases the likelihood that the account of each of the offences under consideration is true.
138In relation to s 101(2), the prosecution submit that the probative value of the evidence is not outweighed by any prejudicial effect that it may have on the accused.
139Whilst recognising the potential for a prejudicial effect to the accused in a trial involving sexual allegations by multiple complainants, the prosecution submit that such a risk can be adequately addressed and sufficiently ameliorated by the trial judge giving the jury appropriate directions and warnings.
140As the prosecution put it, trials involving sexual allegations (both charged and uncharged) by multiple complainants are not unusual and usually proceed on the assumption that a fair trial can occur if the jury are appropriately directed and warned. In their submission, the defence have not demonstrated that there is anything about this case which would suggest that the jury empanelled to hear it could not understand or apply such directions and warnings. In contrast to the defence submission, the prosecution argued that the fact that this trial will necessitate the leading of evidence relating to 29 charged acts as well as other acts of sexual misconduct by the accused does not mean that it could not be conducted fairly, providing the jury was appropriately instructed.
Defence submissions
141For their part, the defence submit that at most, the evidence upon which the prosecution seek to rely is only capable of establishing a specific tendency for each complainant. That is, for the accused to have a sexual interest in each of them individually and to act on those individual tendencies by repeatedly sexually assaulting them. Whilst acknowledging that this type of ‘internal’ tendency reasoning was approved by the High Court in Bauer, the defence point out that this is not how the prosecution are seeking to use the evidence in this case.
142The defence submit that what the prosecution are relying on for the purposes of establishing an asserted tendency to enable cross-admissibility between complainants and all charges, is really no more than the factual narrative of the case rather than a tendency. It is simply not capable of being used as a mode of reasoning towards guilt on any of the charges.
143The defence also submit that the prosecution cannot show that the charged and uncharged acts were committed against the complainants in the same or very similar circumstances. And, the prosecution failed to grapple with the issue of how the similarities and dissimilarities impact upon whether there is ‘strong support’ for the asserted tendency.
175Self-evidently, the detailed allegations made by the complainants, which must be accepted for current purposes, is sufficient to establish that part of the asserted tendency which relates to the accused engaging in sexual activities with teenage students at the school and with those same girls when they were student teachers at the school.
The complainants’ vulnerability
176In relation to the aspect of the complainants’ vulnerability, this has a common factual origin for each complainant as they were sisters living in the same family home during the entire period when the accused is alleged to have engaged in sexual activities with them.
177The vulnerability relates specifically to the fact that their mother treated them very badly. The evidence is to the effect that she regularly neglected their basic physical and emotional needs and assaulted them, both physically and verbally. In that context, the evidence that demonstrates that each complainant was deprived of a nurturing adult female in their lives can equally demonstrate that they were likely to gratefully receive any affection, encouragement and assistance that was offered by any other adult female in their lives, particularly if that person was someone as important and respected as the accused. It also shows that they were capable of being taken advantage of if someone was so minded.
Ignorance in sexual matters
178In their respective police statements, each of the complainants describes in some detail the very insulated life that they led as part of an ultra-Orthodox Jewish family, school and community. In none of those parts of their lives, did they receive any appropriate sex education, even of a rudimentary nature. Those things were not discussed or taught and the complainants were deprived of any access to the internet, TV, books and other material. Interactions between male and female children outside of the family unit was very limited.
179As such, according to the complainants, they did not understand or appreciate the sexual nature of what the accused was doing to them at the time it was occurring.[156] That state of ignorance continued for each complainant until, as was customary for new brides to be in the ultra-Orthodox community, they received “Kallah” lessons shortly before their wedding date.[157] Those lessons were provided by a respected adult woman from that same community and included basic information about the male anatomy, the wedding night and interactions between husband and wife.[158]
[156] For example, Laura Watson alleges that the accused had to explain and then demonstrate what ‘kissing’ was and meant (charge 12) and each of Laura Watson and Rachel Harris describe the accused ‘showing’ them how to touch the accused’s breasts.
[157] Lucy Parker was married in mid-August 2006; Laura Watson was married in mid-September 2006; Rachel Harris was married in mid-June 2008.
[158] In the case of Laura Watson, the accused is alleged to have sought her mother’s permission to provide Kallah lessons to that complainant. The offence the subject of charge 19 is alleged to have occurred on the night that the accused arranged for Laura Watson to attend the accused’s home in order to receive such lessons.
180Such evidence, if accepted, is clearly capable of establishing that each complainant had the asserted ‘ignorance in sexual matters’, even at an age when many of their age peers from outside of the ultra-Orthodox community would not have.
181I do not accept the defence submission that the description ‘ignorance in sexual matters’ is vague and lacking any discernible meaning. As the prosecution explained, what it means is that each complainant did not understand the sexual nature and quality of the accused’s conduct towards them. In that respect they were ignorant; that is lacking in knowledge.
Her position of authority
182It does not seem to be in dispute that during the period relating to these allegations, the accused held positions of authority as Principal and the Head of Religious Studies at the school nor that she commanded great respect within the Adass Israel School and in the Adass community.
183Her positions of authority gave the accused a legitimate basis to educate, control and supervise female students in the senior school. Those students were expected to respect and abide by any exercise of her authority.
184Furthermore, particularly in her role as school principal, she had a similar capacity and responsibility to educate, control and supervise student teachers at the school. Again, student teachers were expected to respect and abide by any exercise of her authority. It is also notable that it was the accused who decided which Year 12 graduates would be appointed to commence teaching duties at the start of the following year, and that she appointed each complainant to that position as they became eligible.
185To my mind, the distinction that the defence sought to draw in the principal-student relationship versus the principal-student teacher relationship is not of any real significance for the purposes of this application. In each case, the relationship is one in which the accused has the power and the authority over the complainants as students and as student teachers. And, in each case, it leaves the relationship open to exploitation by the person in authority.
186I am satisfied, therefore, that for the purposes of considering whether the tendency is established, the evidence shows that the accused possessed authority in the relevant sense and for the duration of the period relating to these allegations.
The accused took advantage of…
187The next part of the consideration of the asserted tendency, and an important one, is the prosecution claim that the accused took advantage of the complainants’ vulnerability and ignorance of sexual matters, as well as of her own authority, in order to engage in sexual activities with them.
188So, it is not enough to establish the asserted tendency to show that the complainants had the relevant vulnerability and state of ignorance and the accused enjoyed a position of authority. What must also be shown is that the accused knew of those matters and took advantage of them in order to engage in sexual activities with the complainants.
The complainants’ vulnerability
189In my view, the evidence is well capable of demonstrating that the accused was aware of the relevant vulnerability of the complainants.
190Lucy Parker states that on a few occasions she had discussions with the accused about what her mother was like.
191Laura Watson states that the accused was very aware of what was happening at home. The accused told her that she knew and that she would support her and her sisters who could come and talk to her anytime. On a few occasions, the accused implied that if she told anyone about what the accused was doing, she would tell everyone about the complainant’s family and what her mother does.[159] That complainant says that she was scared of the accused and believed that she would suffer from a huge stigma if that fact became known in the community.
[159] Statement of Laura Watson dated 5 September 2011, [57] (depositions, page 670); Statement of Laura Watson dated 18 October 2011, [4] (depositions, page 651).
192Rachel Harris states that the accused already knew about her mother because Lucy and Laura had previously told her. Ms Harris also states that she confided in the accused and told her personal things about herself.
193The evidence is capable of demonstrating that not only did the accused know of the complainants’ vulnerability, but that she took advantage of it in order to engage in sexual activities with them.
194For example, each complainant describes being comforted by the accused in the context of her offending against them. She rubbed each complainant’s back and thigh.[160] She hugged the two older complainants. She kissed the oldest and youngest of the complainant’s on their face and neck. She told Lucy Parker that she loved her and that she was ‘more special’ to the accused than anyone. She told Laura Watson how beautiful she was, how much she loved her and how much she was doing for her to show her how much she loved her. She befriended Rachel Harris and allowed her to talk openly about personal matters. That complainant describes viewing he accused as her mum.
[160] Lucy Parker was also rubbed on the shoulders and Laura Watson on the stomach.
195Even more significant was the fact that she told Laura Watson that she was ‘like a daughter’ to her and that she could call the accused ‘mother’. Laura Watson also describes the accused positioning her on the accused’s lap and holding or cradling her in a way that made her feel like a baby or a child. Lucy Parker describes the accused laying her back so that her head and shoulders were on the accused’s lap.
The complainants’ ignorance of sexual matters
196In my view, the evidence is capable of establishing that the accused was aware of the complainants’ ignorance of sexual matters. Such an inference is well open given the fact that the accused came from an ultra-Orthodox background as well and would have been well versed in the culture in which the complainants would have been raised and treated at the school.
197There are also other indicia, including the fact that the accused’s offending occurred in the same context as offering seemingly innocuous support and her telling them, in one way or another, that what the accused was doing would ‘help them’. Furthermore, the accused felt she had to explain to Laura Watson what kissing was and what it meant before demonstrating how to kiss, and she also felt the need to ‘show’ Laura Watson and Rachel Harris how to touch her breasts. And, at one point, the accused referred to Lucy Parker’s skin as ‘so smooth’ and as ‘untouched’.
Her position of authority
198In my view, the accused would have clearly known and understood the fact that she was in a position of authority and the power and respect that came with it. And, that was no doubt the case for the entirety of the period which relates to these allegations.
199Furthermore, the evidence is capable of demonstrating that she took advantage of her position of authority in order to engage in sexual activities with the complainants. It was her position of authority that enabled her to do the following:
·Tell each of the complainant’s to come to her office, including on Sundays for all three;
·Tell each of Lucy Parker and Rachel Harris to meet her in Ms Rosenbaum’s office;[161]
·Obtain the key to gain access to Ms Rosenbaum’s office when she was not there;
·Invite each of the complainant’s to her home and for varying reasons;
·Attend the relevant overnight school camps and excursions attended by Lucy Parker and Laura Watson;
·Decide that Lucy Parker and Laura Watson could stay in her bedroom at the 2006 winter school camp;
·Pull Lucy Parker and Laura Watson away from other activities at such camps to be alone with them in her bedroom;
·Offer favourable treatment to the complainants as compared to others through additional access to her and via special or additional student lessons, tutoring and/or teaching lessons and discussions;
·Offer each complainant a student teacher position when they graduated from Year 12; and
·Seek Laura Watson’s mothers permission to provide her daughter Laura with “Kallah” lessons while she stayed overnight at the accused’s home.
[161] This woman was described either by name or by her title as the Principal of the Junior School. One of the complaint’s also described the accused going and retrieving the key to this office.
200It was through her position of authority that the accused was able to ensure that she could continue to have access to each complainant over the relevant timeframes and to facilitate opportunities to be alone with them at some or all of those locations and in the circumstances and for the reasons that they describe. If their evidence is accepted, the accused could only have used her position of authority in those ways in order to be able to engage in sexual activities with the complainants. That is, it would be open to conclude that she ‘took advantage’ of her position of authority in the sense asserted in the Tendency Notice.
Other considerations
201Although I will consider these matters shortly when considering the probative value of any established tendency, I should note the following additional matters at this stage.
202The nature of the tendency asserted by the prosecution does not, in my view suffer from the vices suggested by the defence. I consider it to be quite specific in nature rather than generalised and vague. And, it is in large part cumulative rather than made up of multiple alternatives. In this context, the case of PWD, which the defence sought to distinguish, is instructive, albeit not identical in nature to the present case.
203In essence, the tendency case upon which the prosecution relied in PWD, was for the accused to use his position of authority to a category of student who was vulnerable.[162] The Court concluded that all of the boys had been vulnerable, albeit in different ways, and that a feature of the evidence that was sought to be relied on as tendency evidence was an element of selection and encouragement of the boys to whom the accused directed his sexual attention; only boarders and all vulnerable in one way or another. As the Court noted, it was a combination of the students’ vulnerability and the accused’s authority which enabled the accused to act on his tendency to be sexually attracted to young male students.[163] The Court accepted that the institutional setting facilitated the accused’s tendency in that it was a place where, under the guise of offering solace to vulnerable boys, he was able to engage his sexual tendency.[164]
[162] At 91, [78] (Beazley JA with whom Buddin J and Barr AJ agreed).
[163] At [83].
[164] At [81].
204The Court in PWD ultimately concluded that the trial judge had erred in refusing the prosecution application to admit the evidence. It considered that such evidence had significant probative value in the determination of the question whether the individual allegations should be accepted.[165]
[165] At [88].
205I consider that it was open to the prosecution to place reliance on this NSW decision which I regard as of assistance in determining this matter. There are of course differences between PWD and this case although I do not consider them to be as significant as suggested by the defence. In this case, the asserted vulnerability is exactly the same and common to all three complainants whereas in PWD they were different, albeit variations of a theme. And here, there is the unusual and additional aspect of the asserted tendency relating to the complainant’s ignorance in sexual matters despite their ages.
206The allegations emanate from three complainants.
207The relationship as between the accused and those complainants was essentially the same.
208Viewed globally, the allegations encompass a period of approximately 5 years and repeated sexual acts by the accused.
209The relevant periods for Lucy Parker and Laura Watson overlap whilst the period for Rachel Harris commences very shortly after the periods that the prosecution rely on for the other two complainants finishes. So, there appears to have been no respite, hiatus or delay in the accused’s alleged offending from the time it started until when it came to light soon after the last of the occasions involving Rachel Harris.
210The defence sought to highlight the starker differences in some of the alleged conduct engaged in by the accused as between complainants, for example kissing Laura Watson when she was a Year 12 student (charge 12) at one end of the spectrum and engaging in the extensive and much more serious conduct with Rachel Harris in the incident the subject of charges 25-28 when she was an adult, including by means of a dildo.
211Whilst of course it is accurate to note that there is a difference in some of the offending, and in particular when it comes to Rachel Harris, that exercise is somewhat selective and ignores the fact that there are also some similarities in the alleged conduct engaged in by the accused. For example, in respect of each complainant, the accused digitally penetrated their vagina, sucked their breasts and either got them or tried to get them to touch her breasts. For each of Lucy Parker and Laura Watson, she also touched their vagina and breasts.
212It is also relevant to note that the tendency asserted in PWD was considered to have been established and to possess significant probative value notwithstanding that there was a marked difference in the conduct being alleged as between complainants, ranging from rubbing against the thighs of one complainant to acts of mutual fellatio in respect to one of the other complainants. In this case, there is at least a degree of similarity in the acts allegedly engaged in with all three complainants, albeit a marked difference in some of the additional acts involving Rachel Harris.
213It is also of note that the circumstances in which some of the alleged offending occurred possessed a notable and somewhat striking feature. In respect to each complainant, the accused indicated in effect that what she was doing was helping them.
214Bearing in mind all relevant matters, I have concluded that the evidence does establish the asserted tendency.
Does the evidence have significant probative value?
215I will now deal with the question of whether the evidence has significant probative value.
216The central issue in this trial for each charge on the indictment is whether the act occurred.
217The probative value of this evidence must therefore be considered in light of that central issue which, of course, relates to an element of each offence charged.
218The probative value of the evidence being relied on for tendency must be considered in the context of its capacity to demonstrate, through an inferential reasoning process, that because the accused acted in a particular way on one or more occasions, she is more likely to have acted in a similar way on the charged occasion then under consideration. And, that of course is the relevant enquiry in respect of each of the charges.
219The evidence clearly possesses relevance in the statutory sense and so much was not disputed by the defence.
220And, as I have found, the evidence is capable of establishing the asserted tendency which was engaged in on multiple occasions by the accused and in respect of all three complainants.
221There are also some similarities in the sexual activities engaged in by the accused in an intra-complainant sense as well as between complainants.
222The similarities also extend to some of the other circumstances in which the conduct was engaged in by the accused, being facilitated as it was by the use of her position of authority to gain access to each complainant and to locations that enabled her to gratify her sexual interest. In essence, the accused targeted each complainant because they were vulnerable and sexually naïve and she attempted to foster a special relationship with them conducive to sexual contact. There was an element of selection and encouragement on her part; she encouraged them by word and deed to trust her.
223In my view, the evidence is capable of demonstrating that it was a combination of the vulnerability and sexual naivety of the teenage students who became student teachers and the accused’s authority that enabled her to act on her tendency to be sexually attracted to those girls. There is, in my view, a sufficient similarity in the way that the accused conducted herself and took advantage of the situation to gain access to and enable offending against the complainants.
224The evidence which the prosecution seek to rely on, if accepted by a jury, would demonstrate that the accused was a person who was sexually attracted to girls when they were teenage students and when those same girls were student teachers at the school and acted upon such interest in various ways and at different times but always in a context where those to whom she directed her sexual attentions were vulnerable and ignorant as to sexual matters and she was able to take advantage of those things and her position of authority for the purpose of engaging in sexual activities with them.
225I also consider that the tendency evidence would have significant probative value in relation to all charges as there is a sufficient connection between the various episodes the subject of the allegations concerning both charged and uncharged acts. In that context, I do not regard the various differences in the acts, times locations and level of planning identified by the defence as materially undermining that connection or the probative value of the evidence.
226In my view, the evidence of the three complainants is capable of rationally affecting the assessment of the probability of the central fact in issue as to whether the accused engaged in the conduct charged in the indictment, to a significant extent. That evidence will have significant probative value in the determination of the question whether the individual allegations the subject of each charge should be accepted.
227In coming to those conclusions, I have considered the extent to which the evidence supports the tendency as well as the extent to which the tendency makes more likely the facts making up the charged offences. In my view, there is strong support for both considerations in that the evidence by itself or together with other evidence strongly supports proof of the tendency and the tendency strongly supports the proof of a fact that makes up each of the offences charged.
228Accordingly, I find that the test in s 97(1) of the Act is satisfied.
Section 101(2)
229As previously noted, it is not enough for tendency evidence merely to have significant probative value That is because, as s 101(2) makes clear, such evidence cannot be used against an accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have.
230The test of ‘prejudicial effect’ is whether it involves a risk of an unfair trial. That is, whether it may prejudice the fair trial of the criminal charge(s) before the court.
231In this respect, the interests of justice require the court to make a value judgement not a mathematical calculation. It is a balancing exercise of the same nature as must be undertaken under s 137 of the Act.
232The defence submit that the prejudicial effect in this case arises for a number of reasons, which need to be considered collectively. For present purposes, those reasons can be distilled to the following:
·The nature of the allegations themselves is inherently prejudicial and may cause a jury to decide the case on emotion rather than on an intellectual and logical basis;
·The difficult home life of each of the complainants is likely to arouse strong feelings of sympathy in the minds of the jury which may improperly influence their reasoning process;
·There is a risk that a jury may use evidence for an improper purpose, for example:
ØTo use tendency evidence to ‘gap fill’ deficiencies in the prosecution case;
ØTo engage in ‘substitution reasoning’ by using the mere conclusion that the accused offended against one complainant to find that she must also have done so in respect of the other complainants;
ØTo engage in rank propensity reasoning whether in an intra-complainant or an inter-complainant context;
ØTo give the tendency evidence undue weight; and
ØTo use the evidence of uncharged acts to punish the accused.
·The combination of tendency and context evidence in a trial involving sexual allegations made by multiple complainants creates a degree of complexity and a corresponding need for numerous directions. A jury would be ‘swamped’ and simply not capable of understanding and/or applying the instructions they received; and
·The sheer volume of the evidence relating to charged and uncharged acts represents an incurable ‘overloading’ of the indictment.
233I note, as the prosecution did, that the defence did not go on to explain exactly what directions and warnings they were referring to in this context.
234In Victoria, one must of course have regard to the relevant provisions of the Jury Directions Act 2015 when considering what directions may or may not be required.[166] And, as is the clear intention of that Act, the parties have an important obligation and role to play in that context.[167]
[166] For example, in relation to ‘other misconduct evidence’ adduced by the prosecution, see s 27 of the Jury Directions Act 2015.
[167] See Part 3 of the Jury Directions Act 2015, and in particular, ss 9, and 11-16.
235It must be acknowledged at the outset that there are cases that come before the courts which are, by their very nature, likely to arouse strong emotions and feelings of sympathy and prejudice in a jury. That is a reality that courts face on a regular basis, particularly in sex offence cases. To some extent, courts confront that reality head-on at the outset during the empanelment process as members of the panel are permitted, indeed encouraged to seek to be excused in appropriate circumstances. For the post-empanelment stage, parliament and appellate courts have, through a combination of legislation and the common law, developed various means by which a trial judge can try and address such matters to ensure a fair trial.
236There are a number of warnings and directions (both general and specific), that can be given to a jury to deal with the concerns that the defence have expressed in this case. Indeed, I did not understand the defence to suggest that such warnings and directions could not be given but rather that the court could have no confidence in the jury’s ability to understand and/or apply the instructions they received.
237Modern juries bring intelligence and a focus to their deliberations. It is generally to be assumed that juries will faithfully apply any warnings and directions they are given. However, that is not to say that such an assumption can be made in all cases. It would be naïve to think that there cannot come a tipping point where too much is being asked of a jury.
238As always, it is a matter of fact and degree and each case must be assessed by reference to its own circumstances and the issues raised.
239But, having carefully considered the submissions made by each of the parties, I find myself unable to agree with the defence view. The tipping point has not, in my view, been reached in this case. Any risk of prejudice, including any ‘emotional impact’ on a jury, is curable by directions or at least able to be ameliorated to an acceptable level.
240There are of course a significant number of charged acts alleged in this indictment and an additional body of other misconduct evidence in the form of multiple uncharged acts. And, those allegations are being made by three complainants, not one. Whilst there are appellate cases in which the prosecution at trial of a large number of charges alleging sexual offending against multiple complainants has been criticised or countenanced,[168] they must be considered in light of the particular circumstances that applied to them. Again, each case must ultimately be considered on its own terms.
[168] The defence referred to Bauer (a pseudonym) v The Queen [2015] VSCA 55. See also R v Glennon (No 2) (2001) 7 VR 631, in particular what was referred to as ‘The First Trial’; Doyle v R [2014] NSWCCA 4.
241In this case, it will be necessary for a jury to understand what incident and what alleged act relates to each charge and to understand what other misconduct is being relied on and for what purpose. But I am satisfied that this can be achieved. Both the trial judge and prosecuting counsel will need to ensure that the jury receives the necessary assistance in that regard; the trial judge through detailed and focused directions and prosecuting counsel by means of well prepared and focussed addresses to the jury.
242Whilst the need to direct a jury in relation to the use of both the charged acts and other misconduct evidence (uncharged acts) as tendency and then only the other misconduct evidence (uncharged acts) for context purposes, adds a layer of complexity to this case, I do not believe that it presents as an insuperable hurdle to a fair trial. In my view, a jury will be able to understand the rationale for and logic of those two different concepts and also be able to take into account the evidence relevant to each use, separately.
243This case stands in contrast to some other cases that have an additional layer of complexity because the prosecution seek to use only some instances of a certain type of evidence for one purpose and other instances for a different purpose. The previously referred to case of Bauer was just such a case as the prosecution were seeking to use some of the uncharged acts as evidence of context and others as evidence of tendency.[169]
[169] [2015] VSCA 55, [9].
244In the end, I have come to the final view that there is nothing about this accused, or the position that she held as the principal of an ultra-Orthodox school, or the number and scope of the charges and evidence in this case, including the uncharged act evidence, which leads me to believe that notwithstanding appropriate measures being taken by the court, the accused is at risk of receiving an unfair trial.
245Given the significant probative value that the evidence is capable of having in proof of all charges, and the type of warnings and directions that the jury can be given to address and ameliorate any prejudicial effect to the accused, I have concluded that the probative value of the evidence clearly outweighs any prejudicial effect it may have. Indeed, I am satisfied that the probative value substantially outweighs any prejudicial effect.
246Accordingly, as the prosecution have satisfied the test posited in s 101(2), that section is no bar to the admission of this evidence .
Conclusion and Orders
247In light of the abovementioned findings in relation to ss 97(1) and 101(2), I consider that there is no basis to refuse to admit the evidence under either s 137 or s 135 of the Act. I did not understand the defence to have suggested that the court should take any different view in relation to those two sections in the event that the respective tests for admissibility in s 97(1) and s 101(2) were satisfied.
248Accordingly, I grant the prosecution application to adduce the relevant evidence as tendency in accordance with the terms of their final amended tendency notice and these reasons.
249And I so rule.
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