Director of Public Prosecutions v Lodding (No 3)
[2025] ACTSC 46
•1 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Lodding (No 3) |
Citation: | [2025] ACTSC 46 |
Hearing Date: | 1 November 2024 |
Decision Date: | 1 November 2024 |
Reasons Date: | 21 February 2025 |
Before: | Loukas-Karlsson J |
Decision: | See [95] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application - application to edit Evidence in Chief Interview – context evidence |
Legislation Cited: | Crimes Act 1900 (ACT), s 54(1) Evidence Act 2011 (ACT), ss 55, 135, 137 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 51(3)(b), 52(2), 74A |
Cases Cited: | CA v The Queen [2017] NSWCCA 324 DPP v Mastalerz [2024] ACTSC 30 DPP v Murphy [2023] ACTSC 4 DPP v Smith (No 3) [2024] ACTSC 300 Harris (a pseudonym) v the Queen [2015] VSCA 112; 44 VR 652 Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 Hughes v The Queen [2017] HCA 20; 263 CLR 338 KJS v The Queen [2014] NSWCCA 27; 86 NSWLR 603 L'Estrange v R [2011] NSWCCA 89; 214 A Crim R 9 MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 Norman v The Queen [2012] NSWCCA 230 R v ATM [2000] NSWCCA 475 R v Harker [2004] NSWCCA 427 Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 |
Texts cited: | Australian Law Reform Commission, Uniform Evidence Law (Report No 102, 2005) |
Parties: | Director of Public Prosecutions ( Respondent) Christopher Adam Lodding ( Applicant) |
Representation: | Counsel K Raffan ( DPP) R Court ( Applicant) |
| Solicitors ACT Director of Public Prosecutions Paul Edmonds & Associates ( Applicant) | |
File Number: | SCC 37 of 2024 |
LOUKAS-KARLSSON J:
Introduction
1․The accused, Mr Lodding, who is the applicant in this matter, sought orders to edit the Evidence-in-Chief Interviews (EICI) of the complainant in this matter, the complainant’s mother (the mother) and the complainant’s friend, pursuant to ss 51(3)(b) and 52(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA).
2․Mr Lodding is charged on indictment with one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT). The allegation is of digital penetration.
3․I note at the outset by way of background, as outlined in submissions, there are three key areas of disputed evidence in the EICIs: “Razzle Dazzle”; the “chest incident”; and the complainant’s belief, and the basis for such belief, that the accused had caused and threatened to cause physical harm to the complainant’s mother.
4․“Razzle Dazzle” was apparently a game that involved poking another person’s buttock.
5․The “chest incident” was an alleged incident concerning the accused pretending to masturbate in the presence of the complainant’s mother, who, believing him to be masturbating about the complainant, responded angrily including by attempting to throw a wooden chest at the accused, which led to a physical altercation with the accused.
6․On 1 November 2024, I was provided by the parties with a table outlining the objections in relation to each of the three EICIs.[1]
[1] Exhibit 5.
7․On 1 November 2024, I made the following orders in respect of the disputed evidence:
1)Evidence in category 3 (the complainant’s belief, and the basis for such belief, that the accused had caused and threatened to cause physical harm to the complainant’s mother), as referred to in MFI 4 (prosecution Summary of Argument), is not admissible under s 137 of the Evidence Act 2011 (ACT). Reasons are reserved.
2)Evidence in category 1 (“Razzle Dazzle”), as referred to in MFI 4 (prosecution Summary of Argument) is admissible as context evidence. Reasons are reserved.
3)Evidence in category 2 (“the chest incident”), as referred to in MFI 4 (prosecution Summary of Argument), is not admissible as context evidence. Reasons are reserved.
4)Evidence of the third text message that appears on page 6 of Exhibit 4 is not admissible. Reasons are reserved.
5)Evidence of QA998–QA1001 of the Evidence in Chief Interview of the complainant is admitted. Reasons are reserved.
8․The reasons for the above orders made on 1 November 2024 now follow.
The Application
9․As stated above, the accused sought orders to edit the EICIs of the complainant, the complainant’s mother and the complainant’s friend, pursuant to the EMPA.
Relevant legislation and legal principles
Context evidence and s 137 of the Evidence Act
10․Relevantly, in deciding on the admissibility of context evidence, s 137 of the Evidence Act 2011 (ACT) (Evidence Act) provides that a Court must refuse to admit evidence where the probative value of prosecution evidence is outweighed “by the danger of unfair prejudice.”
11․Section 137 states, in full, as follows:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
(Emphasis added.)
12․It is axiomatic that where the prosecution seeks to adduce context or relationship evidence, the evidence must be relevant: see MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 (MM) at [103] per Jagot J. Further, the purpose of adducing the evidence must be clearly and precisely articulated by the prosecution – this is for two reasons. First, context evidence must be distinguished from tendency evidence which carries a different evidential purpose. Second, the purpose stated by the prosecution may be professedly narrow but the evidence may be used for tendency reasoning by a jury.
13․As observed by Burns J in MM at [44] – [45] the purpose of the evidence must be stated clearly by the prosecution and the purpose must be determined objectively by the judge. It may be necessary to look beyond the prosecution stated purpose and consider whether the evidence is tendency evidence:
[44]Where the Crown seeks to adduce context or relationship evidence, the evidence must be relevant to the issues before the jury: R v ATM [2000] NSWCCA 475 at [72]. The purpose for which the evidence is led must be clearly stated, because in many cases evidence which provides a context to a particular allegation may also be capable of establishing a tendency on the part of the accused to act in a particular way or have a particular state of mind. For example, evidence that a child has been sexually assaulted by a parent other than on the occasion the subject of a charge may explain (where relevant) why the child has not made an immediate complaint after the incident the subject of the charge. The same evidence may also be capable of showing that the accused has a tendency to sexually assault the complainant, or to be sexually attracted to the complainant. The purpose for which the evidence is tendered defines whether it is tendency evidence or relationship/context evidence.
[45]The purpose for which such evidence is tendered is determined objectively, and it is sometimes necessary to look beyond the purpose as expressed by the Crown and consider the process of reasoning the jury will be asked to apply in using the evidence: RG v The Queen [2010] NSWCCA 173 at [34]. If the process is, in truth, a process involving proof of a tendency, then the evidence is tendency evidence and subject to the restrictions placed on such evidence by the Evidence Act 1995 (Cth) and, now, the Evidence Act 2011 (ACT). If the process of reasoning the jury is asked to apply in using the evidence does not involve tendency reasoning, and if the context sought to be proved is relevant to a matter in issue in the proceedings, and if the evidence is not excluded under s 135 or s 137 of the Evidence Act 1995 (Cth) or the Evidence Act 2011 (ACT), then it should be admitted as context evidence. Where such evidence is admitted, the jury should be carefully directed as to the confined use that may be made of the evidence, and that a process of tendency reasoning is impermissible: see generally Qualtieri v The Queen (2006) 171 A Crim R 463; [2006] NSWCCA 95.
(Emphasis added.)
14․Thus, the purpose of adducing the evidence must be clearly and precisely articulated by the prosecution so as to distinguish from a tendency purpose and tendency reasoning.
15․Germane to this discussion, in KJS v The Queen [2014] NSWCCA 27; 86 NSWLR 603 (KJS v The Queen), the Court discussed the admissibility of context evidence about other sexual acts occurring before and between the counts on the indictment at [34]:
[34] The relevance and purposes for which the Crown sought to lead this evidence are clear:
(i)To demonstrate that there was a process of habituating ISS to physical contact with the appellant so that such contact seemed unremarkable.
(ii)To place count 1 in its proper context so that rather than appearing to be an extraordinary assault which had suddenly occurred, it could be seen as a result of a course of conduct in which sexual touching had been established between the appellant and ISS as a normal activity and had progressed to a more serious form of indecent touching.
(iii)To provide a proper basis for the jury to make an assessment of the description by ISS of count 1 and more particularly her failure to resist the appellant, to cry out for help or to otherwise express surprise at what was, viewed in isolation, an almost unbelievable anomaly in the father/daughter relationship.
(iv)To place count 2 in its proper context so that, rather than appearing to be another isolated and quite extraordinary sexual attack upon ISS, the offence was seen as the continuation and culmination of a consistent course of conduct over a period of years.
(v)To provide some explanation for the failure of ISS to complain about her father's conduct. Without the evidence of what could readily be considered as a slow process of habituating ISS to sexual activity, the jury might well have found it incredible that after the occurrence of count 1 (and later count 2), ISS made no complaint.
The distinction as between context evidence and tendency evidence
16․The distinction as between tendency and context evidence was usefully discussed by Baker J in DPP v Mastalerz [2024] ACTSC 30 (Mastalerz), at [50] – [51]. An important distinction, noted there, is that context evidence is relevant to the believability of the complainant’s account as opposed to tendency evidence which is concerned with the tendency of the accused.
[50]The reasoning process for context or relationship evidence is different to tendency reasoning. For example, evidence may be relevant as context or relationship evidence because it explains why the complainant did not respond to the alleged offending in a way that the jury might have expected if they were unaware of the broader context of the relationship. The use of evidence in this way does not engage tendency reasoning. It is concerned with the believability of the complainant's response, rather than with the tendency of the accused.
[51]Similarly, context or relationship evidence may also be relevant to a consideration of the accused's state of mind without engaging tendency reasoning. For example, it may be necessary for the tribunal of fact to hear broader evidence of the relationship between an accused and the complainant in order for the tribunal of fact to draw accurate inferences about an accused's state of mind, or their reason for acting in a particular way towards the complainant. Again, the use of evidence in this matter does not engage tendency reasoning. It is not reasoning which involves the tendency of an accused to have a particular state of mind or to act in a particular way.
(Emphasis added.)
17․In R v ATM [2000] NSWCCA 475 (R v ATM), Howie J at [74] – [76] (Sully and Whealy JJ agreeing) made two important points. First, it was underlined that admissibility is dependent on the purpose of the evidence and second, it was underlined that directions concerning impermissible use may be appropriate:
[74] Further, the admissibility of the evidence of relationship will depend upon the purpose for which it is admitted. As was made clear in R v A.H. (1997) 42 NSWLR 702 at 708-709, the evidence can be relevant in two different ways: (a) as evidence relevant to place the events giving rise to any charge in the indictment into context and to explain the conduct of the complainant and the accused upon the particular occasion to which a charge relates; and (b) as evidence of tendency on the part of the accused to act in a particular way toward the complainant, sometimes described as evidence of guilty passion.
[75] It is incumbent upon a trial judge to explain to the jury the purpose for which the evidence of uncharged acts was place before them and the use they are to make of it in the course of their deliberations. In particular, if there is a possibility that the jury might use the evidence for a purpose for which it is not before them and to the prejudice of the accused, then it will generally be necessary that the trial judge warn the jury about any impermissible use which might be made of the evidence and direct them against using the evidence in a way other than that for which it was admitted into evidence: R v Beserick (1993) 30 NSWLR 510 at 16; R v Fraser (NSW Court of Criminal Appeal, unreported, 10 August 1998) at 28; R v Greenham [1999] NSWCCA 8 at [28].
[76] Where relationship evidence is admitted only to give context to, or by way of explanation of, the allegation contained in any charge in the indictment, the trial judge should direct the jury against using the evidence as proof that the accused committed any offence on the indictment. This may require the trial judge to direct the jury that they must not use the evidence as proof of any propensity on the part of the accused: R v A.H, above; BRS v The Queen (1997) 191 CLR 275 at 305 per McHugh J; R v R.N.S. [1999] NSWCCA 122. The words used to convey to the jury the limitation upon the use to be made of the evidence is, of course, a matter for the judge. But for my part, I believe it is better to avoid introducing terms such as “guilty passion” or “sexual interest”.
(Emphasis added.)
18․In KJS v The Queen, at [41] it was emphasised that it is a well-established tenet of criminal justice principles that juries comply with judicial directions.
19․Further, in CA v The Queen [2017] NSWCCA 324 (CA v The Queen) at [83], the Court affirmed the importance of judicial direction concerning context evidence that may be capable of being relevant as tendency evidence:
[83]There will no doubt be many cases in which the Crown relies upon similar incidents, which are not included in the indictment, as context evidence when the same evidence is also capable of being relevant as tendency evidence. It is for that reason that this Court has held that, in such cases, the trial judge is required to give a direction that the evidence cannot be relied upon in that way, as the trial judge did in this case (see [80] in Qualtieri v R extracted above at [68]).
(Emphasis added.)
20․Generally, in L'Estrange v The Queen [2011] NSWCCA 89; 214 A Crim R 9 (L’Estrange), the NSW Court of Criminal Appeal at [60] – [64] underlined that courts must bear in mind that the disavowal by the prosecution of a tendency evidence purpose does not remove the risk that the jury may use the evidence in that way.
21․Nevertheless, as I noted in DPP v Murphy [2023] ACTSC 4 at [64], jury directions are not a legal panacea in all cases, as discussed in Taylor v The Queen [2020] NSWCCA 355 at [122]. It depends on the specific case. Most, but not all danger of unfair prejudice, can be overcome by judicial direction. It cannot safely be assumed that judicial direction would necessarily be successful in all cases. Further, as I noted at [51] of Murphy, the dangers of unfair prejudice include that the jury may be influenced to convict as punishment for conduct other than that charged: see R v Harker [2004] NSWCCA 427. A jury may overestimate the probative value of the evidence: see ALRC 102 [3.18]. Juries may be distracted from the central issues in the trial: Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [17].
22․Appropriate jury directions may go a substantial way to ameliorating the danger of unfair prejudice. Further, I note in this vein the Court of Appeal has referred to “modern life” being “confronting” and juries being “robust”: Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 at [125]; see also Murphy at [58].
23․Nevertheless, a court must assess the danger of unfair prejudice taking into account potential directions without adopting a general forensic assumption or view that such jury directions will of necessity, be a panacea in all cases; see Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 at [52]–[57]; see also Murphy at [59].
24․Finally, I underline that the Victorian Court of Appeal in Harris (a pseudonym) v the Queen [2015] VSCA 112; 44 VR 652 at [28]-[30], reinforced, that where the jury directions would be “quite complicated and potentially confusing” unfair prejudice may not be outweighed by the probative value of the evidence; see also Murphy at [59].
25․It is well established and nevertheless important to repeat; the duty of judges to ensure a fair trial is at the core of criminal justice and criminal jury trials in Australia; see DPP v Smith (No 3) [2024] ACTSC 300 at [74].
General submissions on the three categories of evidence: “Razzle Dazzle,” the wooden “chest incident” and fear of the accused.
26․It is important, to first outline the broad submissions made by the parties in relation to the three categories of evidence in contention, concerning the application before me, before then proceeding to analyse in more detail the submissions concerning the specific evidence from [32] – [34].
27․The prosecution submitted that the evidence the prosecution sought to lead places in context the complainant’s lack of outcry, delayed reporting and her continued interactions with the accused after the offending, without which the complainant’s actions may seem inexplicable to a jury.
28․Counsel for the accused submitted that the parties were fundamentally at odds as to whether or not what the prosecution has referred to as the “grooming” evidence regarding the accused contained in the various EICI’s of the complainant and her mother, is inadmissible tendency evidence (accused’s position) or context evidence (prosecution’s position).
29․Counsel for the accused broadly submitted that at trial the accused will not dispute that he frequently did favours for the complainant, such as giving her lifts to her friend’s place in Goulburn or other locations within the ACT. Accordingly, it was submitted that it is insufficient to submit, that particular evidence contextualises other evidence, without specifically demonstrating how it does so. There is, in my view, some force to this submission in light of the authorities discussed above at [10]-[22], in particular MM.
30․Further, counsel for the accused submitted that while delay will be raised by the accused at trial, the “grooming evidence” does not assist in explaining delay.
31․I further note that, it is well-established, that the bare fact that evidence concerns a relationship between the accused and the complainant does not of itself lead to the conclusion that evidence is admissible: see Norman v The Queen [2012] NSWCCA 230 at [33].
The complainant’s belief, and the basis for such belief, that the accused had caused and threatened to cause physical harm to the complainant’s mother
32․The third key area of evidence in dispute concerns what the prosecution submits is context evidence of the complainant’s belief regarding the accused’s willingness to inflict violence.
Outline of objections to complainant’s fear of the accused category in the complainant’s EICI
33․The first objection was to QA952 – QA954:
Q952. She’s been like, ‘I’m going to kill him.’ You’ve gone to the police station and – all right. Okay. You’ve mentioned before in the interview some reasons that it took you quite a bit of time to tell your mum. Can you tell me a bit about those reasons?
A I didn’t tell Mum because I didn’t want to come to the police and then [accused] find out that, like, I know and then him come to Goulburn and hurt mum or [complainant’s friend], um, because she was still my best friend at the time. Um, I – I didn’t – because he knew where I lived, he knew where my mum lived, where my dad lived, what school I went to, where [complainant’s friend] lived, um, where I worked and whatnot, and stuff like that. Like, I just didn’t want him to come back and hurt – not even me – Mum and [complainant’s friend], and my stepdad and my dad. Like, yeah, I just – yeah.
Q953. Okay. What makes you think that he would hurt them?
A Um, well, he’s hurt my mum before - - -
Q954. Yep.
A - - - um, for no reason, um, so what’s stopping him from hurting my dad, or my best friend, or my stepdad?
(Emphasis added by the Court.)
34․The second objection was to A961 – QA962:
A- - - because he hurt my mum. Um, I love my mum and I’m very protective over her. Um, but I knew I couldn’t even say anything because then if he knew that I knew, he could hurt my mum worse, because Mum was scared of him, um, to the point where she sent me a message saying, ‘If anything happens to me, it’s [the accused]. Tell them it’s [the accused].’
Q962. Mm-hmm.
A Um, so obviously she was scared enough to say that to me. And, yeah, I just – I didn’t want him to hurt my mum more, so I kept my mouth shut and played along, even though I – even after just hearing that, before he done anything to me, I hated him for it, because he hurt my mum.
(Emphasis added by the Court.)
Outline of objections to complainant’s fear of the accused category in the mother’s EICI
35․The first objection was to the following bolded passage of A283:
Q283. Okay.
A. And he even, um - I'm not sure if it's in that video, ah, or one of the videos, because I - I haven't, you know, watched them in - because I don't like to, because the way I sound in them, too, is, like - it's, like - yeah, I - I don't know. I was scared. You can, like – I remember being scared, but – yeah.
36․The second objection was to QA284:
Q284. Tell me about being scared.
A. I just thought he was going to kill me, but didn't know when.
(Emphasis added by the Court.)
37․The third objection was to the following bolded passage of QA285:
Q285. Okay
A.And the reason - and so [complainant] knows about it too, and this is - again, it's a memory of it - is because after it all happened and he was in the shower, I went out to the laundry, and then there's, like, obviously out to the outside. And I remember calling her and saying, um, 'If you don't hear from me for a few days, just know that [the accused] did it.' And I - like, I shouldn't have done it, because obviously she's young, but I think I was, like, scared. Like, I was scared. And she was with her friend [friend 2], and [complainant] told, um, [friend 2’s] mum, [friend’s mother], who was like, 'Do you want me to call the police?' And, like, I didn't physically speak with her on the phone. And I was like, 'No, don't - don't worry about it.' Like, it's just, like, I hate saying it, because it just - it's stupid. I should have - like, I should have done it. Yeah. It's just stupid, because I'm, like, yeah, mentally stronger than that. But - I don't know - certain things make you do weird things.
(Emphasis added by the Court.)
Consideration
38․Evidence of family violence is permissible under s 74A of the EMPA. This is subject to s 137 of the Evidence Act in accordance with fair trial principles.
39․The prosecution submitted this evidence would be led to explain the complainant’s lack of outcry during the offending, and the complainant’ delay in reporting, noting the complainant describes in A961 - A962 her concerns about what harm the accused might inflict upon her mother, friend and family should the complainant report the alleged offending.
40․The prosecution sought that references to the complainant’s belief generally that the complainant’s mother had alleged violence by the accused, and specifically to her mother’s fear, communicated to the complainant, that the accused may kill her, remain in evidence. The prosecution submitted that the latter is evidenced by the communication made by the complainant’s mother to the complainant that if the complainant does not hear from her, that the accused had, impliedly killed her. Such evidence, in my view, generates the clear danger of unfair prejudice.
41․The prosecution submitted this is evidence directly relevant to the complainant’s delay in reporting and further submitted the evidence is not offered for the truth, and any prejudice may be ameliorated through a direction to the jury. I do not accept that any prejudice may be automatically ameliorated through a direction to the jury. This, in my view, is to adopt a too benign characterisation of the evidence sought to be excluded and is contrary to decisions discussed above at [22], such as Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 and Harris (a pseudonym) v the Queen [2015] VSCA 112; 44 VR 652.
42․Ultimately, the prosecution submitted that the above context is relevant to facts in issue, including the circumstances in which the alleged offending took place, and the complainant’s response. The prosecution submitted that, when taken in isolation, the three areas of evidence may fall foul of the exclusionary provisions of ss 55, 135 and 137 of the Evidence Act. However, the prosecution submitted that when taken in totality, the context evidence places the alleged conduct, forming the basis for the count on the indictment, in the rightful context. The prosecution submitted that without this evidence, the alleged conduct may appear, to a trier of fact, to be isolated, an “extraordinary assault” and the complainant’s response to it “incredible.” The prosecution submitted this would be misleading and unfair. The prosecution further submitted this is not a case where the jury would be “consumed” with context evidence, rather, it is a number of distinct and separate incidents which occurred in close proximity to the charged act. I do not accept this prosecution submission as, in my view, evidence that the accused was feared to be a potential killer would be antithetical to a fair trial concerning the count on the indictment. A jury may be influenced to convict as punishment for conduct other than that charged: see R v Harker [2004] NSWCCA 427.
Conclusion to consideration
43․I determined that the complainant’s belief evidence was inadmissible as context evidence for the following reasons.
44․This, in my view, is evidence that a court must exclude under s 137. A court must refuse to admit evidence presented by the prosecution if the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Here, the unfair prejudice is clear. The unfair prejudice concerns fear of physical violence and potential murder. In my view, I must exclude this evidence as the probative value is not high when looked at in context and is clearly outweighed by the danger of unfair prejudice concerning “killing”. Such danger of unfair prejudice is not conducive to a fair trial. The evidence must perforce in my view be excluded in accordance with s 137.
“Razzle Dazzle” category of evidence
Outline of objections to “Razzle Dazzle” category in complainant’s EICI
45․The objections concerning the EICI of the complainant and the “Razzle Dazzle” category, were as follows.
46․The first objection was to the following bolded passage of A34 of the complainant’s EICI:
Q34.Is there anything else about him that you would describe to me – you want to describe to me?
A Um, it was like he would stand over you, like, if he thought he had power over you. And, yeah, he was very touchy. We had a thing called a Razzle-Dazzle, where you’d poke someone in the (indistinct), like, as a joke. You’d just go up to them and poke them in the butt. And he’d do that more – like, a lot, to the point where it wasn’t really funny anymore. Um, yeah. So there was that, which kind of gave me a little bit of a red flag, but I didn’t see it as that because I thought he was my mate.
(Emphasis added by the Court.)
47․The second objection was to QA129 of the complainant’s EICI:
Q129. Okay. All right. You’ve mentioned to me that you played a game of Razzle-Dazzle, which is where you would, like, poke each other in the bum.
A Yep.
48․The third objection was to QA130 of the complainant’s EICI:
Q130. Okay. But you said that he did it a lot, to the point that it wasn’t funny.
A Yes. And I recall one time he done it, I was walking in the front door, and he done it as I was getting up the step to go inside. And he done it, but he missed a bit and kind of hit my fanny a little bit. I don’t know if that was intentional or not, but that did kind of creep me out a little bit. But yet again, I didn’t take anything from it, because I thought he didn’t know that he’d done that. He may have just missed, I guess.
49․The fourth objection was to QA134 – QA141 of the complainant’s EICI:
Q134. All right. So that time that you were just telling me about, when you were walking in the front door – the front door of where?
A His house.
Q135. His house.
A Yep.
Q136. Okay. Can you remember, like, maybe roughly when that happened?
A No, I wouldn’t have a clue. I’m sorry.
Q137. That’s okay. Had you – okay. All right. So you were walking in the front door of his house.
A Yep.
Q138. Okay. All right. And then he tried to - - -
A Razzle-Dazzle me.
Q139. Yep. And then he hit your fanny, but you don’t know if it was - - -
A Intentional.
Q140.Intentional, okay.
A Yeah.
Q141. Did you say anything?
A I think I may have mentioned something to Mum.
50․The fifth objection was to the last sentence of A876 of complainant’s EICI:
QA876. Was there any physically contact between you and [the accused]?
A Um, not that I recall that – not that night. Like, there may have been the dap up or the Razzle-Dazzle, but other than that, no.
(Emphasis added by the Court.)
Outline of objections to “Razzle Dazzle” category in the mother’s EICI
51․The objection to the EICI of the complainant’s mother, was to QA157 – QA164:
Q157. Yep.
AAlthough, I will say to this, um, again, a memory - they used to have a thing, and [complainant] still does it to me all the time. So it's called a RazzleDazzle, right? So it's actually a Japanese schoolyard game. It's where you randomly - and this is going to sound really weird.
DAVIDSON:
Q158. Mm-hmm.
AIt's where you randomly go up behind someone and, like, poke them in the butt.
Q159.Mm-hmm.
AUm, so, yeah - so it's called a Razzle - like, and she'd been doing it years before, and she still does it to me all the time now, like - well, not actually, to lie - not as much, because it brings up that, um, like, sort of - that with her. So they did have a little thing like that, but it was more - like, I don't ever recall him ever initiating it. like, he - he would do it after, and then she might be like, 'Oh, mate, that was a bit close,' or something. And - but at - at the time, you know, I didn't register, but, you know, maybe that was intentional sort of thing, because it - yeah, it's - it's a - it is literally a Japanese schoolyard - it's weird, but it - - -
SUTHERLAND:
Q160.So the Razzle-Dazzle, you were just referring to?
AYep.
Q161. And that's done with clothes on?
AOh, yeah. Yep.
Q162. Always?
A Yeah. You could just be, you know, sit - you know, standing having a drink of water and you just go up behind someone and - and you say, 'Razzle-Dazzle,' and - - -
Q163. Yep.
AYeah. Yeah.
Q 164. So outside of the Razzle-Dazzle - - -
AMm. It's just a funny word to say, isn't it? Sorry.
Consideration
52․The prosecution submitted that the touching was both deliberate and an attempt to habituate the complainant to intimate physical contact so that such contact was normalised: KJS v The Queen at [34].
53․The prosecution submitted this evidence is critical context for the charged conduct, which allegedly occurred in a room into which the complainant’s mother entered several times throughout the course of the offending. On this basis, the prosecution properly submitted that the “brazenness” of the accused’s alleged offending in close proximity to the complainant’s mother, is given context by the accused’s previous testing of the complainant’s boundaries. In my view, there is some force to this submission.
54․In relation to QA134 – QA141 of the complainant’s EICI (referred to at [49] above), counsel for the accused submitted that: firstly, the incident referred to will not assist the jury in making a determination about whether the charged act occurred; and secondly, the evidence can be characterised as tendency evidence as it pertains to “the accused’s state of mind and conduct” regardless of the prosecution characterising the evidence as context evidence.
55․Further, counsel for the accused submitted that the evidence is being led by the prosecution as “grooming behaviour,” and that this pertains to the accused’s state of mind in testing the boundaries with the complainant. Counsel for the accused further submitted there is a danger the evidence will be treated by the jury as such, and that an anti-tendency direction will not cure the prejudice to the accused.
56․In response to the prosecution submission that the evidence places the offending in context so it does not appear “out of the blue” to the jury, counsel for the accused referred to QA153 to QA157, submitting that the jury will not be “left in a vacuum”:
Q153. Yep.
A So Mum had gotten me this – like, this foot cream stuff, because I have really bad feet. Um, and she got me foot cream stuff, and then he was giving me a foot massage. And then I was wearing tights – or not tights, um, pyjama pants. And then he went – was going up slowly and lifting, like, my pants up this way and starting to massage and tickle my, like, calf and shin and stuff. And my pants ended up being just above the knee.
Q154. Mm-hmm.
A And then he said, ‘Why don’t you just take your pants off?’ And that weirded me out at first, but I just laughed about it because I thought he was joking, and I just brushed it aside. And then he said it again a couple of minutes later, and I was like, ‘No, that’s fucking weird,’ and, like, laughed about it and brushed it off again. So then that’s when I asked [complainant’s friend] if she wanted to come, and she said, ‘Yeah,’ and then I asked Mum.
Q155. Okay.
A And [the accused] was okay with that, because it made me happy. He – yeah, he had an infatuation with me.
Q156. All right. So thank you for telling us that, okay? I understand it can be really difficult to talk about. So you’ve spoken about him saying, ‘I’ll just tell the cops I’m your girlfriend,’ and you’ve spoken about the foot massage that he’s given you. What one came first?
A The foot massage.
Q157. The foot – okay. All right. So we’ll talk about that a bit more. So on Boxing Day, your mum had gotten you foot cream stuff.
A For – like, she got it for me for Christmas.
57․Counsel for the accused further submitted that the incident in QA153 to QA157 is said to have occurred on Boxing Day, before the complainant asked her mother if her friend could come and stay. Therefore, counsel for the accused submitted that without “Razzle Dazzle”, it is not the case that the offence will appear “out of the blue.”
58․The prosecution accepted that the evidence could be used both for context and tendency purposes, but that this could be ameliorated through an anti-tendency direction to the jury.
Conclusion to consideration
59․I determined that the “Razzle Dazzle” evidence was admissible as context evidence for the following reasons.
60․First, I accept that the evidence is relevant: MM v The Queen [2012] ACTCA 44; 232 A Crim R 303 at [103].
61․Second, the purpose for adducing the evidence has been clearly articulated by the prosecution in that the brazen nature of the alleged offending on the indictment, without complaint by the complainant, is given proper context. That is, the context of the habituating of the complainant to intimate physical contact, without complaint by the complainant: KJS v The Queen [2014] NSWCCA 27; 86 NSWLR 603 at [34].
62․Third, in my view, an appropriate judicial context direction alongside a strong anti-tendency direction are both important in the forestalling of potential prejudice in this case and a jury should be so directed: KJS v The Queen [2014] NSWCCA 27; 86 NSWLR 603; R v ATM [2000] NSWCCA 475; CA v The Queen [2017] NSWCCA 324.
63․Fourth, with such judicial direction, probative value is not outweighed by the danger of unfair prejudice and therefore, as such, the evidence should be admitted.
The wooden “chest incident”
64․The second disputed category of evidence concerns an incident in which the accused allegedly pretended to or initiated masturbation in the presence of the complainant’s mother who, believing him to be masturbating about the complainant, responded angrily including by attempting to throw a wooden chest at the accused, which led to a physical altercation with the accused (the “chest incident”).
Outline of objections to “chest incident” category in complainant’s EICI
65․Below are set out the objections relating to the “chest incident” evidence in the complainant’s EICI.
66․The first objection was to QA454 - QA455:
Q454. Okay. You did mention that he was intimating he was wanking over you to get to your mum.
A Mm-hmm.
Q455. Is that-Were you present for that, or did your mum later tell you about that?
A That’s what Mum, um – like, I was obviously there when I’ve stopped her, but I didn’t know what he was doing until she had told me later.
67․The second objection was to A756:
Q756. Okay.
A And I know how she reacted when he was wanking over me.
68․The third objection was to QA758:
Q758. So you didn’t want to tell your mum at the time because you’d seen how she’d reacted when he had motioned that he was wanking over you?
A Yes.
Outline of objections to “chest incident” category in the mother’s EICI
69․Below I set out the objections relating to the “chest incident” evidence in the mother’s EICI.
70․The first objection was to the following bolded passage in A24:
Q24. (Indistinct)
A…Um, and then of course, in - in that – in October of '22, um - well, a bit of a backstory to that, [complainant] was acting up at school, the whole school year, you know. She had a lot of attitude, whatnot, not necessarily with me, but just out of her behaviour to do that. And, you know, I was getting calls from the school every one, two weeks or so saying, you know, she'd been talking back and, um, you know, act - acting like [complainant] doesn't normally act. And I was at work and, um, she called me up and - and she said, 'Oh, you're going to get a phone call from [school principal],' who's the principal. And I said, ‘[Complainant], what the fuck is going on?' I said, 'You've got to pull your head in, mate.' And she's like, 'You don't - you don't know what happened to me, Mum.' I said, 'Well, you've got to tell me, darling. I can't help you if you - if you don't tell me.' And then she's like, 'You know [the accused]?' And then I – she didn't even have to say anything else, and I just knew. I said, 'He didn't,' like, and I just started crying. Like, I've never cried that much. And - and - and she - she didn't say one word to me, but it was like I knew. Like, I knew he had done something to her. Um, and then so I said, 'Darling, all right. I'm going to go home and,' um, 'I'll meet you there.' And that's when I sent - I tried to call him, because I was ropeable and I wanted to tear into him and he - he'd blocked my number, so I sent him an email saying, '[Complainant] told me what you did to her. I'm going to ruin your life,' sort of thing, like, you know, obviously out of anger. Um, and then, yeah, she got - she got home and we went down to the police station, had the interview. Ah, at that time, I sort of didn't really know exactly what - what he'd fully done to her, like, either time that I'm aware of that he - he'd done things to her. It wasn't till sort of a bit - a bit later. Um, so, yeah, when she, you know - when she told me, I didn't - I - I didn't want to push it, because I knew that it - you know, it was affecting her, and - and her whole thing was she didn't want me to be cranky at her and, you - you know, I - obviously, I would never be cranky at - at her for that. That's a hundred per cent not her fault. And then she told me, like, 'Remember, like, how I wanted to go get [complainant’s friend] on the 26th?' and then it sort of started making sense as to why, you know, she wanted [complainant’s friend] there all the time or - and then I started to think back of other times that they were together, and it was like, 'Well, were they, like, too matey-matey?' or, you know, 'Was he trying to be too matey-matey with her?' but I, you know, obviously - because I just - even though he had done what he'd done to me, I just didn't think him to be the type to do that to a young girl. So I just - yeah. And then, um, went to the Goulburn Police Station. They took down a little bit of information and said, you know, because it was done in the ACT - and I think they called it, ah, historical sexual assault - um, it should be dealt with in the ACT. So it took a couple of months. Um, and then we went to the City Police Station, and I forget the gentleman's name that we spoke with there, and he took all - all, um, sort of the details and whatnot and - and wrote it all down and said that, you know - that they'd be in contact. And I believe that's how this all came about, so - but there was a time, like - and, again, I'm sorry to keep remembering things. There was a time, and I couldn't even tell you - I think it was between, like - I'm going to say just before the New Year, is that he was lying out on the couch and he was - and, you know, [Complainant] and [Complainant’s friend] were there, and they were in their rooms, and, you know, [Complainant] – [Complainant] wears clothes like singlet tops and whatnot, which is - is totally normal for - for girls to wear and whatnot. And, you know, she came out to look for [Complainant’s friend] earrings and he was in a - he was in a mood. And, like, she found them, and they went back into the room, and then he started making, like, weird noises, like - like, the way I would see it, like touching himself. That's - I didn't know, because I wasn't in the room, but I could sort of hear it, and I said, 'You'd better fucking not be doing that about my daughter.' And he - and he's like, 'Ha-ha, no. Why would I be doing that?' And he kept doing it to bait me. And there was this chest of, like - it's, like, a chest that was sitting in the - in the lounge room, like, um - I don't know - you see them all the time. They're, like, wooden chests, but they look like Chinese, like, engravings in them. And I just remember picking it up and, like, going to smash it on his head, because he was laying on the couch. Um, and he kicked me in the gut. Um, but, yeah, I just sort of remembered that - that little bit there, so - like, I just - it - the way I'm going to explain it is I don't want it to sort of, like, sound - it's just when I talk about it more, the more little things I remember - - -
(Emphasis added by the Court.)
71․The second objection was to QA821- QA825:
Q821.Mm-hmm.
A.Yeah. Um, and it was on top of that, which is - so [the accused]was on the couch here. The thing's there. Um, and I was in the kitchen. And, like, you know, she's come out and came and gotten it with [complainant’s friend] and walked back into the room. And I just - yeah, he was just making weird noises, like, and I - as an adult, I know what kind of noises these were. And for some reason, it just, like - I don't know why, but I just said, 'That better not have been about my daughter. Like, you'd better not be doing that about my daughter,' and he did his stupid laugh again and then started doing it. I said, 'I'm fucking serious, [accused]. Like, if that's about my daughter, you're going to cop it.' And he did his (demonstrates audibly) laugh again. So I walked out there, and I picked up the - because he was lying down, sorry. He was lying - lying down. He wasn't sitting down. So I picked up the chest of - because I was - I was that cranky about it, and, ah, went to smash it on his head, but he's kicked me in - in the chest. And it took the wind out of me, like, and I dropped the box and everything. And [complainant] and [complainant’s friend] have come out and they hadn't seen that exact thing, but they were like, 'What happened?' And I just said, 'Oh, I dropped a box,' sort of thing, so - - -
Q822. Okay.
A. Yep.
Q823.Describe the noises a bit more. Like, how ---
A. Like, sexual noises, like you would make if you were having sex or masturbating.
Q824. And what kind of – you said as an adult, you knew what they were. What were they to you?
A.That he was wanking ---
Q825.Okay
A.--- because [complainant] had come out in her tights and crop top. I mean, when I say that, actually, like it could have been [complainant’s friend], like, and – because at the time, you know, I didn’t know, because they both had come out.
72․The third objection was to QA838 – QA860:
Q838.So when he was making the weird noises - - -
A.Mm-hmm.
Q839- - - which you've described as sexual noises - - -
A. Mm-hmm.
Q840- - - where were [complainant] and [complainant’s friend]?
A.Um, so they had walked back out into the - into the bedroom.
Q841.Yep.
A.So they'd come out, found the earrings on the Chinese chest of drawers and then walked back into the room. And I was in the kitchen, which is just off the lounge room. And then he was making those noises.
Q842.Yep.
A.Yes.
Q843.So other than making the noises - - -
A.Yeah.
Q844.- - - did you see him doing anything else?
A.No. No.
Q845.So in terms of - - -
A.No, I couldn't. It's - I didn't walk in and see him with a boner or anything like that either, so - but I - I wasn't focused on that. I was focused on hitting him with the chest of drawers - or, like, the chest with the carving on it so - - -
Q846.Yep. How big is the chest?
A.Like, it's little but, like, um - like that - around that. It's, like, heavy but not too heavy, like, if I could lift it and put it above my head.
Q847.So prior to you lifting - picking up the chest of drawers, where was it?
A.So if he was laying, like, here on the couch, it was here.
Q848.Sitting on the ground?
A. Yeah.
Q849. Yep.
A.Yep.
Q850.And when you said - so you'd approached him and picked it up. Is that right?
A.Mm-hmm. Mm-hmm.
Q851.And then you've said something to him, 'That better not be about my daughter.'
A.Yeah. Yep.
Q852.And then he kicked you?
A.Well, I went to do that, and as I've gone like that, he's booted me and knocked the wind out of me.
Q853. Yeah.
A. Yep.
Q854. And did you remain standing?
A.Yep.
Q855. Did you fall down?
A.No, I remained standing, yep. Just took the wind out of me.
Q856. Okay.
A.Yeah.
Q857.And what happened after that?
A.Um, and then, like, I fell to the ground, and the girls came out. And I'm pretty good at recovering things and making it like it wasn't – pretending like it wasn't too bad. I said, 'Oh, I just kicked it over. Sorry, girls.'
Q858.And what happened after that?
A.They went back into the room and then I went back into the kitchen and, yeah, that was - he was - I don't know what he was doing afterwards.
Q859.Yep.
A.Yep.
Q860Did you ever get - did you ever speak with him about that?
ANo. (Indistinct) No.
Outline of objections to “chest incident” category in the complainant’s friend’s EICI
73․The first objection was to the following bolded passage of A136:
A Um, and we went out there a couple of times because we heard them yelling. Um, and then we went back in the room. And then things went quiet, and [complainant’s mother] was going to bed, and [the accused] was in the lounge room. Um, and then I could hear [complainant’s mother] screaming, and I was like, ‘[complainant].’ And then she was like, ‘Yeah, what’s up?’ And I was like, ‘Your mum. Like, I can hear her, like – you need to go. Like, something’s happening.’ Then we went out, and she, like, had the chest of drawer, but then she, like, dropped it. Um, but basically – and then she was, like, screaming, ‘I – I could hear you. I could hear you,’ and then told basically me and [complainant] after that she could hear him grunting, um, and she thought he was, like, wanking over, like, [complainant] and, like, trying to, like, aggravate [complainant’s mother], I guess, like, because [complainant] would tell – ah, not [complainant], sorry – [complainant’s mother] would tell, um, him all the time and tell us that he was, like, a weirdo and stuff, and all that. Um, and so I think he was, like, probably just trying to aggravate [complainant’s mother] in a way by doing that. But I didn’t hear the noises or grunting. I just could hear [complainant’s mother] yelling.
(Emphasis added by the Court.)
74․The second objection was to the following bolded passage of A153:
Q153. Yep.
A But, yeah, that was about it. And [complainant’s mother] was screaming, ‘I heard you. I heard you.’ And then she put it down, and then me and [complainant] were like, ‘Come on.’ And then she went back to bed.
(Emphasis added by the Court.)
Consideration
75․The prosecution submitted that the mother’s response was witnessed by the complainant and the complainant’s friend. The prosecution submitted that the complainant specifically referred at QA755 - QA758 to having seen her mother’s reaction to what the mother perceived to be the accused masturbating about the complainant. The complainant indicated that witnessing her mother’s reaction led to the complainant’s unwillingness to alert her mother to the offending as it was occurring, and to report it to her in the ensuing months.
76․The prosecution submitted that the evidence of the wooden chest incident is therefore directly relevant to the complainant’s lack of outcry during the commission of the offence, and her delay in reporting. The prosecution submitted this is context evidence, not offered for the truth of whether the masturbation actually occurred, or to show the accused had a sexual interest in the complainant, rather, to give “essential” context for the complainant’s state of mind during and after the assault.
77․The prosecution submitted that the probative value of this evidence far outweighs any prejudice to the accused from referencing his alleged masturbation, such that the threshold for exclusion in s 137 of the Evidence Act is not met.
78․Counsel for the accused submitted that the factual chain for this evidence begins at the accused joking about wanking and the moaning which is the accused’s state of mind, or him acting upon a certain state of mind about the sexual interest in the complainant, which is tendency evidence.
Conclusion to consideration
79․The order concerning this specific application was apparently incorrectly recorded as “admissible” on 1 November 2024 rather than correctly recorded as “not admissible”.
80․I determined that the chest incident evidence was not admissible as context evidence for the following reasons.
81․Determined objectively, in accordance with the authorities including MM v The Queen [2012] ACTCA 44; 232 A Crim R 303, this is tendency evidence. While the prosecution has put forward a narrow articulation concerning the purpose of the evidence, it is important for this Court to look beyond the prosecution stated purpose. In my view, a jury direction concerning this evidence would not be the all-encompassing legal panacea in this case, as the prosecution submits: see Sokolowskyj v The Queen [2014] NSWCCA 55; 239 A Crim R 528 at [52]-[57], see also DPP v Murphy [2023] ACTSC 4 at [64].
82․Before concluding in relation to this specific aspect of the application, it is important the Court underlines the following prosecution submission: “Your honour, we [the prosecution] absolutely must have the conduct that preceded the mother’s response.” To the prosecution’s credit, when judicially corrected, the prosecution appropriately conceded that this was not a proper framing of a legal submission. Statements of counsel’s opinion are not acceptable, orthodox nor appropriate legal submissions and must be avoided in the context of counsel expanding on legal submissions in Court. It is a message worthy of repetition to all counsel.
Application to edit the text message (Exhibit 4)
83․The accused objected to the admissibility of the third text message that appears on page 6 of Exhibit 4.
84․The screenshot of the messages includes the following three text messages from the accused to the complainant. The message in bold was objected to:
Morning mate if you mum is carrying on don’t stress about it. I only just asked if she could get another mattress cause she can’t stand me lol.
Oh and she rekns I’m a weirdo and am trying to groom you lol.
You will have two start making horse noises
(Emphasis added by the Court.)
85․Counsel for the accused submitted that the text message does not readily appear to be something that would assist the jury in making a determination about whether or not the facts in issue occurred, because it is a belief that the mother had communicated to the accused which was then communicated to the complainant. In my view, there is force to this submission, on the evidence before me.
86․The prosecution submitted the evidence goes to the accused’s state of mind but may be permissible context, referring to Mastalerz at [51]. The prosecution submitted the evidence is the accused’s attempt at damage control and trying to minimise the concerns that had been raised by the mother about his conduct. The prosecution further submitted that one of the criticisms surrounding the context of the offending is that the mother was coming in and out of the room throughout the duration of the offending. The prosecution submitted the text message is therefore highly probative as to the “brazenness” of the accused concerning the alleged offending.
Determination
87․I determined that the evidence objected to was not admissible for the following reasons.
88․In my view, the probative value of the evidence in question is not high, as it can only be properly characterised as evidence of a particularly indirect, digressive and tangential nature.
89․Further, in my view, in light of this less than significant probative value as such, the probative value is consequently outweighed by the danger of unfair prejudice; s 137. This is because, in truth, the evidence tends towards a main characterisation as tendency evidence and in view of the less than significant weight of the context purpose put forward by the prosecution the evidence should not be admitted in accordance with s 137. Moreover, a combined context and anti-tendency direction in these circumstances would tend to confuse a jury rather than be forensically illuminating. Hence, the heightened danger of unfair prejudice before a jury is aggravated; see Harris (a pseudonym) v the Queen [2015] VSCA 112; 44 VR 652 at [28]-[30].
Application to edit QA998 – QA1001 of the complainant’s EICI
90․Counsel for the accused further objected to QA998 – QA1001 of the complainant’s EICI which states:
Q998. When you were saying you couldn’t really speak, if you had – what do you think he would have done if you had have said no? Could you say what you might have thought?
A I feel like he would have kept going.
Q999. He would have kept going?
A He would have done it anyways. Yep.
91․Counsel for the accused submitted this evidence is not relevant and that the evidence is speculative. Counsel for the accused further submitted it does not assist the jury in making a decision regarding the charged conduct.
92․The prosecution submitted that these were the complainant’s reasons for not crying out during the offending, or attempting to stop the accused.
Determination
93․I determined that this evidence was admissible for the following reasons.
94․The evidence is highly probative of the complainant’s reasons for not calling out during the alleged offending. This will be an issue at trial. As for the danger of unfair prejudice, I am not persuaded that there exists any significant danger of unfair prejudice. Such danger is not extant concerning this piece of evidence, in my view.
Orders
95․For the above reasons the following orders were made:
(1)Evidence in category 3 (the complainant’s belief, and the basis for such belief, that the accused had caused and threatened to cause physical harm to the complainant’s mother), as referred to in MFI 4 (prosecution Summary of Argument), is not admissible under s 137 of the Evidence Act 2011 (ACT).
(2)Evidence in category 1 (“Razzle Dazzle”), as referred to in MFI 4 (prosecution Summary of Argument) is admissible as context evidence.
(3)Evidence in category 2 (“the chest incident”), as referred to in MFI 4 (prosecution Summary of Argument), is not admissible as context evidence.
(4)Evidence of the third text message that appears on page 6 of Exhibit 4 is not admissible.
(5)Evidence of QA998–QA1001 of the Evidence in Chief Interview of the complainant is admitted.
| I certify that the preceding ninety-five [95] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Date: |
2
23
3