Director of Public Prosecutions v O'Brien (a pseudonym)

[2024] ACTSC 63

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v O’Brien (a pseudonym)

Citation: 

[2024] ACTSC 63

Hearing Date: 

16 April 2024

Decision Date: 

17 April 2024

Before:

Mossop J

Decision: 

1.    The prosecution is permitted to adduce tendency evidence as notified in the Notice of Intention to Adduce Tendency Evidence dated 30 November 2023 as follows:

(a)    incidents 1 to 5 are admissible as tendency evidence in support of tendency A as identified in the notice dated 30 November 2023 in relation to counts 1 to 3; and

(b)    incidents 1 to 2 and 5 to 15 are admissible as tendency evidence in support of tendency B as identified in the notice dated 30 November 2023 in relation to counts 2 to 12.

2.    The application in proceeding dated 10 April 2024 seeking severance of the indictment is dismissed.

Catchwords: 

CRIMINAL LAW – EVIDENCE – Tendency evidence – prosecution application to adduce tendency evidence – where charges involve multiple complainants – where prosecution seeks to rely upon evidence of each complainant in relation to each other complainant and evidence of each complainant as between their own counts – whether probative value outweighs danger of unfair prejudice – held that it does – application allowed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Matters connected with conduct of defence – defence application to sever charges – whether changes to consent law will cause confusion for jury and lead to unfair trial – whether direction to jury able to overcome any confusion – held that direction to jury adequate to avoid unfair trial – application dismissed

Legislation Cited: 

Crimes Act 1900 (ACT), ss 26, 27, 28, 50B, 54, 55(5)(b), 60, 61(5)(b), 67, 264

Crimes (Consent) Amendment Act 2022 (ACT)

Evidence Act 2011 (ACT), ss 97, 97A, 101, 192A

Cases Cited: 

Gilbert v The Queen [2000] HCA 15; 201 CLR 414

Hughes v The Queen [2017] HCA 20; 263 CLR 338

McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045

R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56

R v Mueller [2005] NSWCCA 47; 62 NSWLR 476

Parties: 

Director of Public Prosecutions

Nathan O’Brien (a pseudonym) ( Accused)

Representation: 

Counsel

D Swan ( DPP)

K Lee ( Accused)

Solicitors

Director of Public Prosecutions

Hugo Law Group ( Accused)

File Numbers:

SCC 95 of 2023

SCC 96 of 2023

MOSSOP J:  

Introduction

1․The accused faces an indictment dated 28 November 2023 that contains 12 counts. Presently before me are two applications. One is an application by the prosecution seeking an advance ruling pursuant to s 192A of the Evidence Act 2011 (ACT) that it is permitted to adduce as tendency evidence the evidence in relation to each of the alleged offences, as well as some uncharged acts. The other is an application by the defence to sever the indictment so as to split the charges up and decide them by way of four or, alternatively, three separate trials.

Background

2․The 12 counts involve allegations relating to four different complainants. Each of the complainants was a minor and was about the same age as the accused at the time of the alleged offending. In these reasons, the complainants have been anonymised by giving them pseudonyms.

3․The prosecution relies upon an Amended Notice of Intention to Adduce Tendency Evidence dated 30 November 2023, which identifies 15 separate tendency incidents. The relationship between the 15 separate tendency incidents and the counts on the indictment is disclosed by the following summary table. Where the complainant is identified, a letter is given to indicate whether the offending is alleged to have occurred on a particular occasion with other offending or whether it was separate.

Incident	Count	Occasion	Charge	Description
1	Uncharged	Sara (A)	Uncharged	Touching thighs, buttocks, hips
2	Uncharged	Sara (B)	Uncharged	Photographing thighs and sending pictures
3	Uncharged	Sara (C)	Uncharged	Comments about big breasts, “porn star”, “thunder thighs”
4	1	Sara (D)	Indecency	Lying beside her on a beanbag
5	2/3	Sara (E)	Indecency/ assault	Hand on leg at desk
6	4	Ingrid  (A)	Indecency	“Dry hump” in the accused’s bedroom
7	5	Ingrid (B)	Indecency	Touch breasts, hand down pants in the complainant’s bedroom
8	6	Ingrid (B)	Choke	Choke in the complainant’s bedroom
9	7	Ingrid (B)	Indecency	Penis between buttocks in the complainant’s bedroom
10	8	Ingrid (B)	Intercourse	Intercourse until ejaculation in the complainant’s bedroom
11	9	Ingrid (C)	Indecency	Rub penis between buttocks at Urambi Hill
12	Uncharged	Ingrid (D)	Uncharged	Various refusals to wear a condom or taking it off during intercourse
13	10	Lara (A)	Indecency	Pulled pants down at school
14	11	Lara (A)	Intercourse	Intercourse at school
15	12	Brianna (A)	Intercourse	Intercourse in accused’s bedroom

4․In these reasons, in order to avoid confusing dual references to both incident number and count number, I will refer only to the count number for each charged offence. In the cases of tendency incidents 1, 2, 3 and 12, which are not the subject of charges, I will refer to them by their incident number.

Defence application to sever charges

5․Section 264 of the Crimes Act 1900 (ACT) provides for the severance of indictments where the court is of the opinion that an accused “may be prejudiced or embarrassed in his or her defence because of being charged with more than 1 offence in the same indictment, or that for any other reason it is desirable to direct that [there be] a separate trial of a count or counts of the indictment”.

6․Counsel for the accused submitted that the issue of severance should be dealt with first because that would have consequences for the determination of the tendency application. I have adopted that course.

7․The submission made on behalf of the accused is that the changes made by the Crimes (Consent) Amendment Act 2022 (ACT) apply in relation to counts 10, 11 and 12 but not in relation to the balance of the charges. Counsel submitted that this had the effect that counts 10, 11 and 12 should be severed from the balance of the indictment.

8․The changes made by the Crimes (Consent) Amendment Act came into effect on 12 May 2022. They may be summarised as follows:

(a)requiring that, in addition to consent being freely and voluntarily given, it must be communicated by saying or doing something: Crimes Act, s 50B;

(b)updating the circumstances set out in s 67 of the Crimes Act, which provides a non-exhaustive list of circumstances in which consent is negated: s 67(1); and

(c)requiring that any belief that a person has that the other person consents to a sexual act in ss 54, 55(5)(b), 60, 61(5)(b) (sexual intercourse or acts of indecency without consent or with a young person) be “reasonable in the circumstances”: s 67(4), and that a belief is not taken to be reasonable in the circumstances if the accused person did not say or do anything to ascertain whether the other person consented: s 67(5).

9․The essential reason for this submission is that if the indictment is not severed, then the jury will need to be given separate instructions on the issue of consent in relation to counts 10-12. It is submitted that, in those circumstances, there is a danger that the jury will misunderstand and/or misapply the relevant principles.

10․Counsel for the accused submitted that, in the event that (a) the indictment was severed so as to have separate trials which align with the charges before and after the change to consent laws; and (b) the prosecution seeks to lead evidence from each complainant at both trials, it would still be possible to have each complainant give pre‑trial evidence on a single occasion by editing the pre-recorded evidence to accommodate any issues relating to the separate trials, or the consequences of the verdict in the first trial for admissibility of the evidence in the second trial.

11․I do not accept the submission that the change in consent laws creates an unacceptable danger of an unfair trial for the accused. While the starting point must be that juries follow the directions they are given: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31], I accept that the giving of directions is not necessarily a balm for all ills. That is expressly recognised in the severance power in s 264. However, in the present case I do consider that, with the benefit of proper directions, the trial will be a fair one. That is because I consider that the directions given to the jury will be sufficient to explain to them the different legal tests that must be satisfied. The jury will not need to understand the intricacies of the history of the change in the law. Instead, they will need to have explained to them, in a brief and structured way, those things of which they must be satisfied beyond reasonable doubt in order to convict the accused. The exercise will be little different to the exercise that a jury must engage in when faced with different offences which relate to similar conduct and have overlapping elements. The jury must consider each charge separately and determine whether the required elements of that charge are established beyond reasonable doubt. Further, if there are specific statutory considerations that differ as between offences, those may be the subject of directions to the jury. The exercise of directing the jury will remain within reasonable bounds and not be such as to create any significant risk of confusion arising from the amendment of the law.

12․In reaching this conclusion, I have taken into account the need for care in formulation of the tendency direction, particularly the use of counts 10, 11 and 12 in support of tendency B, which is described below. I do not consider that the need for care in formulating the tendency direction is such that it creates a danger of unfairness sufficient to warrant severance of the indictment.

13․A subsidiary argument was put in relation to the counts relating to the complainant, Sara. The submission was that the evidence in relation to incidents 2-3 and counts 2-3 would not be cross‑admissible for the purposes of establishing tendency B. For reasons that will be explained below, I have rejected that submission. Therefore, it does not provide a basis for severance of counts 1-3 from the indictment.

14․A further subsidiary argument was put in relation to the choking charge (count 6). This arose because the conduct alleged was “violent conduct of a different kind to that otherwise alleged, and may be used by the jury impermissibly to reason that the Young Person is a violent person and for that reason is more likely to have committed the other offences”. This was said to be a reason why the charges in relation to the complainant, Ingrid, should be severed.

15․I do not accept this submission. As a result of the definitions in s 27, the charge of choking under s 28(2)(a) of the Crimes Act can apply in a wide range of circumstances, from minor pressure on the neck to catastrophic strangling. In the present case, the conduct alleged is well towards the former end of the spectrum. Ingrid described the accused as having his hand around her throat, pinning her down, and that she felt confused. She said: “It kind of hurt and I couldn’t breathe properly”. She said his hand was on her throat for a couple of minutes. Having regard to this description of the incident, I do not consider that it is so dramatically different or so confronting that there is a risk that the jury would, despite directions, misuse it in the way contemplated. I therefore do not consider that it provides support for the contention that the allegations relating to Ingrid should be severed.

16․For these reasons, the application to sever the indictment will be dismissed.

Prosecution application to adduce tendency evidence

17․The prosecution has sought to rely upon the evidence of each complainant as tendency evidence in respect of the counts relating to each of the other complainants. The prosecution also seeks to rely upon the evidence of the complainants between their own counts and, where applicable, the uncharged allegations.

18․The asserted tendencies and how they might be applied are described later in these reasons.

19․The relevant statutory provisions are ss 97 and 101 of the Evidence Act. The notice requirements of these provisions have been satisfied. The provisions require that the relevant evidence to be presented in the proceeding, either by itself or with other evidence, have significant probative value: s 97(1)(b). They also require that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant: s 101(2).

20․Reliance was also placed on s 97A. That provides that in a criminal proceeding in which the commission of an act that constitutes a child sexual offence is a fact in issue, it is presumed under s 97A(2) that certain tendency evidence will have significant probative value unless the court determines otherwise under s 97A(4). The categories of tendency evidence are:

(a)tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest); and

(b)tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.

21․Given that the complainants in the present case (along with the accused) were children at the time of the alleged offending, the section could apply notwithstanding that the provision is not targeted at such circumstances (as opposed to circumstances such as those in a case such as McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045).

22․In the event that s 97A applies, the accused submits that, pursuant to s 97A(4), the court should determine that the tendency evidence does not have significant probative value. For those purposes the matters in s 97A(5) may not be taken into account.

23․It is unnecessary to determine whether, or to what extent, s 97A could apply, having regard to the differently formulated tendencies to be relied upon. That is because, in my view, the tendency evidence is admissible pursuant to the generally applicable requirements of ss 97 and 101.

Tendency A

24․The tendency in relation to Sara is expressed as follows:

That in June and July 2020 the accused had a tendency to have a sexual interest in [Sara] and act upon that sexual interest by touching her and making sexualised comments to her;

25․Five alleged incidents are relied upon. Two of those are charged acts and three are not. In summary they are as follows:

(a)Incident 1: Touching her on her thighs, her buttocks and her hips. This occurred on various occasions in the 20 days preceding the charged acts.

(b)Incident 2: Taking photographs of her thighs without her consent and showing her or sending the images to her mobile phone. This occurred on various occasions in the 20 days prior to the charged acts.

(c)Incident 3: Referring to her by saying she would make “a good porn star”, saying that her breasts were big and calling her “thunder thighs”. This occurred on various occasions in the 20 days prior to the charged acts.

(d)Count 1: This involved the accused coming and lying next to her on a beanbag in class, pushing himself against her so that his stomach was connected with her back and his groin was on her thighs and buttocks.

(e)Counts 2-3: While sitting at their desk in class, the accused placed his hand on her right leg. She asked him to remove it. He did so, but then two minutes later he put his hand back there.

Incidents 2 and 3 and counts 2 and 3: adolescent needling or sexual attraction?

26․Counsel for the accused submitted that the allegations in incident 2 and part of incident 3 are not evidence of sexual attraction or willingness to act upon it. Rather, it is submitted that “it is more likely the purpose of that behaviour was to tease”. The submissions refer to the complainant being made to feel sad, rather than unsafe or uncomfortable.

27․In relation to counts 2-3, the submission is that the conduct is not unequivocally sexual and “more consistent with an adolescent needling or annoying a classmate for fun”.

28․No specific submissions were addressed to incident 1, touching Sara on her thighs, her buttocks and her hips without her consent.

29․When considering whether incidents 2‑3 and counts 2-3 are of significant probative value, it is important to recognise that regard must be had to the evidence “by itself or having regard to other evidence … to be presented”: s 97(1)(b). Thus, it is not appropriate to treat each of the incidents in isolation when considering their probative value but instead it is necessary to consider them when combined with each other. In this way, what might, on its own, seem to be evidence of a single minor incident which is of limited probative value in establishing the asserted tendency, when combined with evidence of other incidents, could be evidence that has significant probative value.

30․It is also important to remember that the assessment of the significance of the incidents will ultimately be a matter for the jury. Thus, it will be for the jury to conclude whether or not the conduct demonstrates a sexual interest in Sara or is conduct that should be explained by other motivations. So far as the assessment of probative value is concerned, it is the capacity of the evidence, taken at its highest, to demonstrate a sexual interest which is of significance.

31․In the present case, the challenged incidents 2‑3 and counts 2-3 must be considered in the light of these two factors. Incidents 2‑3 and counts 2-3 will need to be considered in the context of the other evidence, in particular incident 1 and count 1. Further, the jury will have to decide whether this conduct demonstrates a sexual interest or it does not. In my view, the evidence is capable of supporting a finding that it demonstrates a sexual interest. Counsel for the accused submitted that the reference to “thunder thighs” was not necessarily demonstrative of a sexual interest and hence not supportive of the existence of tendency A. Rather, he submitted that the likely purpose of the behaviour was to tease. While it may be possible to characterise it as teasing or annoying a classmate, having regard to the other highly sexualised remarks made to the complainant, it is certainly open to conclude it was engaged in because of a sexual interest in the subject.

Conclusion

32․In my view, taken at its highest, the evidence to be presented in relation to each of incidents 1-3 and counts 1-3 has, when considered in the context of the other evidence to be led in relation to this complainant, significant probative value because it has the capacity to support the existence of the asserted tendency and the existence of that asserted tendency has the capacity to provide significant support for the allegations in count 1 and counts 2-3 or both. Further, I consider that the probative value of the evidence outweighs the danger of unfair prejudice to the accused.

Tendency B

33․Tendency B is articulated as follows:

That between June 2020 and July 2022, the accused had a tendency to have a sexual interest in adolescent females known to him and to act on that sexual interest by engaging in sexual acts with those adolescent females, and persisting with sexual acts despite their protestations and for his own sexual gratification.

34․This tendency involves a sexual interest, a willingness to act upon it for sexual gratification and, most significantly, doing so despite the protestations of the young women. The significance of the tendency lies in the persistence with sexual acts despite the protestations of the complainants because, as the accused submitted, each of the features other than the persistence despite protestations would make the tendency “completely unremarkable” for an adolescent boy.

Lack of protestation

35․Counsel for the prosecution conceded that incident 3 and count 1 did not involve evidence of persistence despite protestation and, as a consequence, could not be relied upon in support of tendency B. However, he submitted that otherwise the incidents relating to Sara (incidents 1‑2 and counts 2‑3) had the capacity to support tendency B because of the evidence that they involved persistence with sexual acts despite protestations.

36․Counsel for the accused submitted that not all of the tendency incidents significantly support the tendency. In particular, he submitted in relation to the following incidents, that “the extent to which there was protestation to the act the subject of the counts is unclear”:

(a)count 4;

(b)count 9;

(c)count 11; and

(d)count 12.

37․For counts 4 and 9, the complainant was Ingrid. In relation to count 4, the complainant’s evidence is that she was trying to get the accused off her while he was “dry humping” her. She then told him she had to go because her mum was out the front. Despite that, he continued the act of indecency until the point of ejaculation.

38․In relation to count 9, the complainant’s evidence is that she told the accused that she did not want to have sex with him, that she had her period, and that she was not ready for anything like that. Despite that, he committed an act of indecency on her until the point of ejaculation.

39․For count 11, the complainant was Lara. The complainant’s evidence is that this occurred immediately after count 10, when the complainant had resisted the accused by pulling up her pants that he had pulled down, and then walked to the other side of the room while he tried to kiss her. The sexual intercourse which, on the prosecution case, appears to have been acquiesced in, occurred in the context of the previous resistance towards count 10.

40․For count 12, the complainant was Brianna. The complainant’s evidence is that this involved the accused asking the complainant “Can we fuck”, or words to that effect, and the complainant saying that she did not want to on at least two occasions. That is consistent with the tendency alleged in that it involved perseverance despite the protestations of the complainant.

41․Counsel for the accused submitted that the evidence of continuing protestation was not clear, so that the conduct might involve free and voluntary consent given “begrudgingly” or “after persuasion”. He referred to the decision in R v Mueller [2005] NSWCCA 47; 62 NSWLR 476. The evidentiary basis for this submission was limited, largely drawn from a possible inference that after protestation there was a change of mind to free and voluntary consent.

42․In the circumstances of the present case, where each of these counts is a charged count, the prosecution accepted that it was a case in which (despite R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at [86]) the jury should be directed to only consider as a tendency incident those charged incidents where the tendency was proved beyond reasonable doubt. That would have the effect of excluding those incidents where the jury considered that there was a reasonable possibility of free and voluntary consent, leaving only those where the jury was satisfied beyond reasonable doubt that there was not.

43․In my view, the evidence in relation to each of the above counts is capable of supporting the existence of tendency B and the tendency, if established, would be of significance in determining any unresolved charges. They are therefore admissible in support of tendency B.

Count 6 - choking

44․Counsel for the accused accepted that there was evidence of protestation in relation to counts 5, 7 and 8. Because of the submissions made in relation to count 6, some description of the protestations in relation to counts 5, 7 and 8 will be given.

(a)Count 5: In relation to this charge, the accused was grabbing the complainant’s breasts and putting his hand down her pants. The complainant’s evidence indicates that, although she was uncomfortable, the accused kept insisting that they engage in sexual activity, even after she moved away. She describes this particular incident by saying that he flipped her over, climbed on top of her, and pulled her pants down as she was trying to push him off. The evidence of the complainant does not specifically record what she said in addition to her physical acts of resistance, but the circumstances are such that some verbal communication on her part was inevitable. It is closely related to counts 6 and 7 as, on the prosecution case, in response to the complainant’s resistance, the accused choked her before committing an act of indecency and engaging in sexual intercourse without consent.

(b)Count 7: This is the act of indecency which followed the choking. The complainant’s evidence indicates that she tried to push the accused off her but that he kept going.

(c)Count 8. This is the sexual intercourse without consent which is alleged to have immediately followed count 7. The complainant’s evidence indicates that, after the act of indecency, she had tried to push the accused off her and get him to stop, but that he persisted and engaged in sexual intercourse without consent.

45․Counsel for the accused submitted that these incidents involved a single course of conduct and hence provided only one example of persisting despite protestation. The acceptance that there was evidence of protestation in relation to the above three incidents is significant for the next submission that he made.

46․Counsel for the accused submitted that count 6 did not support the alleged tendency because it related to a charge of choking which was not a sexual act nor was it done for sexual gratification.

47․I do not accept this submission. The tendency alleged is to persist with sexual acts despite the protestations of the complainants. Count 6 occurred following count 5 (act of indecency without consent) and before count 7 (act of indecency without consent) and count 8 (sexual intercourse without consent). If the evidence was accepted, it would be strong evidence of his persistence with sexual acts despite the protestation of the complainant, Ingrid, which offers strong support for the existence of the asserted tendency.

48․Further, in oral submissions, the submission was made that the nature of the choking allegation was such that, if used as tendency evidence in relation to other complainants, the probative value of the evidence did not outweigh the danger of unfair prejudice to the defendant. I have dealt with this argument in relation to the question of severance earlier. In short, I do not consider that the nature of the offending alleged is such as to create any real risk of unfair prejudice.

Sara’s incidents

49․Finally, the accused submitted that the incidents involving Sara did not support, to a significant extent, the existence of tendency B because they did not involve engaging in sexual acts, persisting with sexual acts despite the complainant’s protestations, or doing so for the accused’s sexual gratification. This submission was addressed by the concession by the prosecution that incident 3 and count 1 could not be used as evidence in support of tendency B because they did not involve protestations on the part of the complainant.

50․A further submission was made that there was a risk of unfair prejudice if tendency evidence arising from other, more serious, incidents was allowed to be led in support of these incidents. This was really a severance argument rather than a tendency argument because, unless the trials were severed, evidence of all of the charged acts would be led in any event. I accept that these incidents are less serious than the subsequent incidents. However, I do not consider that the nature of the subsequent incidents is such that there is a danger that the jury will be overwhelmed by them in a way that leads them to improperly deal with the counts relating to Sara.

Conclusion

51․The tendency incidents have a significant degree of similarity in that the targets of the conduct are a confined category, and each has the evidence of persistence in the face of protestations. They occurred in a reasonably confined period, notwithstanding the gap between counts 9 and 10. Adopting the two-step process identified in Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [41], the evidence in the identified incidents strongly supports proof of the asserted tendency and that tendency would strongly support the proof of the charged conduct. The consequence is that I am satisfied that each of the alleged incidents and counts other than incident 3 and count 1, considered having regard to other evidence to be presented by the prosecution, has significant probative value because it would support the existence of tendency B and the existence of tendency B would provide significant support for the allegations the subject of the charges. I consider that the probative value of the evidence outweighs the danger of unfair prejudice to the accused.

Orders

52․The orders of the Court are:

1.The prosecution is permitted to adduce tendency evidence as notified in the Notice of Intention to Adduce Tendency Evidence dated 30 November 2023 as follows:

(a)incidents 1 to 5 are admissible as tendency evidence in support of tendency A as identified in the notice dated 30 November 2023 in relation to counts 1 to 3; and

(b)incidents 1 to 2 and 5 to 15 are admissible as tendency evidence in support of tendency B as identified in the notice dated 30 November 2023 in relation to counts 2 to 12.

2.The application in proceeding dated 10 April 2024 seeking severance of the indictment is dismissed.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 17 April 2024