Director of Public Prosecutions v Wilson (a pseudonym) (No 2)
[2024] ACTSC 286
•16 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Wilson (a pseudonym) (No 2) |
Citation: | [2024] ACTSC 286 |
Hearing Date: | 16 September 2024 |
Decision Date: | 16 September 2024 |
Reasons Date: | 19 September 2024 |
Before: | Taylor J |
Decision: | (1) The prosecution is not permitted to adduce the tendency evidence of Counts 1 – 3 in support of Counts 4 – 9 on the indictment. (2) Accordingly, I direct that the indictment is to be severed, with Counts 1 – 3 to be tried separately to Counts 4 – 9. (3) The witness FO is to be recalled for further cross-examination pursuant to s 69(7) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The extent of the evidence to be adduced from this witness is limited to the text message exchange between the complainant and the accused’s sister as at Annexure “C” of the affidavit of Ms Cheryl Khurana affirmed 27 August 2024, the image from the March 2018 wedding as described at [109] and the image at Annexure “E”. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – amendment of date range on the indictment – accused no longer an adult for the duration of the date range – application to revisit the tendency ruling – application to recall the complainant – two child complainants – consideration of relevance and probative value – consideration of whether exceptional circumstances exist – indictment severed |
Legislation Cited: | Evidence Act 2011 (ACT) ss 55, 97A, 101 Court Procedures Act 2004 (ACT) s 76(3) Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 69 |
Cases Cited: | BC v R [2015] NSWCCA 327; 257 A Crim R 340 Davidson (a pseudonym) v The King [2024] NSWCCA Decision restricted [2023] NSWCCA 163 DPP v Duncan (A pseudonym) [2024] ACTSC 80 DPP v Lodding [2024] ACTSC 244 DPP v Mastalerz [2024] ACTSC 30 DPP v Wilson (a pseudonym) [2023] ACTSC 100 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v R [2016] HCA 14; 257 CLR 300 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 R v Sean (a pseudonym) (No 2) [2023] ACTSC 132 Taylor v R [2020] NSWCCA 355 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 TL v The King [2022] HCA 35; 275 CLR 83 WX v R [2020] NSWCCA 142; 102 NSWLR 467 |
Parties: | Director of Public Prosecutions ( Crown) Joseph Wilson (a pseudonym) ( Accused) |
Representation: | Counsel S Ozolins ( DPP) A Williamson SC ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) AKN & Associates ( Accused) | |
File Numbers: | SCC 306 of 2022 SCC 354 of 2022 |
TAYLOR J:
Background
1․The accused was tried in October 2023 in relation to nine counts alleging sexual offences against two complainants, who I will refer to as LO and FO. The complainants are sisters.
2․In April 2023 Berman AJ ruled that the prosecution were permitted to adduce tendency evidence in the accused’s trial, the result of which was the accused being tried for all counts against both LO and FO on the basis that they were cross admissible: DPP v Wilson (a pseudonym) [2023] ACTSC 100.
3․Accordingly, the prosecution were permitted to rely on the following tendencies:
That the accused had a tendency to act in particular ways, namely:
1․ To act upon his sexual interest in children (Incidents 1-8)
2․ To act upon his sexual interest in [LO] (Incidents 1-2)
3․ To act upon his sexual interest in [FO] (Incidents 3-10)
4․ To engage in opportunistic acts at his home to act on his sexual interests (Incidents 1-3; 5-8; 10)
That the accused had a tendency to have a particular states of mind, namely:
1․ To have a sexual interest in children (Incidents 1-8)
2․ To have a sexual interest in [LO] (Incidents 1-2)
3․ To have a sexual interest in [FO] (Incidents 3-10)
4․During the October 2023 trial, after evidence had been adduced from the complainants, the prosecution sought leave to amend the particulars of Counts 1, 2 and 3, being the counts in relation to LO, as well as Counts 7 and 9, counts in relation to FO.
5․The accused opposed the amendment. Leave was granted.
6․Counts 1, 2 and 3 were amended so that the period between which it was alleged the accused committed the offences was brought forward to be between 1 January 2009 and 1 January 2013.
7․The period in Counts 1, 2 and 3 was originally particularised as 15 February 2011 and 1 January 2013.
8․There is some significance in 15 February 2009, it being the date the accused turned 18 years old.
9․Counts 7 and 9 were amended to extend the end date, the effect of which saw the offending conduct end in January 2019. This saw the period of the offending conduct span around a decade from when the accused was 15.
10․The result of the amendment to Counts 1, 2 and 3 is that the prosecution case now has the offending conduct commencing at a time when the accused was, at the earliest, 15 years of age. This had the consequential effect of the complainant, LO, being five or six years of age when Count 1 was allegedly perpetrated against her.
11․The jury in the October 2023 trial could not agree on an outcome and were discharged.
The application
12․The accused now stands to be tried for a second time. An application was made to revisit the pre-trial tendency ruling on the basis that the determination as to tendency was on the basis that the accused was, at all material times, over the age of 18. The age of the accused at the time of the offending against LO is submitted to be matter that should now be included as a factor relevant to the assessment of the admissibility of the tendency evidence and ultimately produce a different ruling as to the cross admissibility of the evidence.
13․The accused did not seek to revisit the prosecution’s reliance on tendency evidence for Counts 4 to 9 in relation only to FO.
14․The accused relied on s 76(3) of the Court Procedures Act 2004 (ACT) which provides:
An order, ruling or direction of the Supreme Court under subsection (2) is binding on the trial judge at the hearing of the trial unless in the opinion of the trial judge it is not in the interests of justice for the order, ruling or direction to remain binding.
15․The accused also applies to have the complainant, FO, recalled pursuant to s 69(7) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
16․On the day the application was made, I made rulings with reasons reserved.
17․For the reasons that follow, it is my view that the amendment to the indictment does have a significant effect on a consideration of the tendency evidence to the extent that the prosecution should not be permitted to adduce the evidence of FO in the counts that relate to LO. It follows that is not in the interests of justice for the ruling previously made by Berman AJ to remain binding.
18․I am also of the view that it is in the interests of justice for the complainant FO to be recalled to give further, limited evidence.
The tendency evidence
19․The offending alleged against LO and FO is comprehensively described in Wilson at [3]-[17]. LO was born in 2003. The case statement and amended tendency notice setting out the prosecution case identifies LO as seven or eight years of age when the counts 1, 2 and 3 occurred. Those acts were said to occur in the accused’s family home in Forde.
20․In summary, Counts 1 and 2 arise out of an incident with LO that occurred at the accused’s home in a room with a television. The accused asked LO to sit on his lap and asked if he could tickle her. LO said he could and the accused rubbed her arms and legs with his hands. He then began to kiss her arms and then her cheek. The accused asked LO to kiss him on the cheek. She did and the accused turned his head so that she ended up kissing him on the mouth. The accused put his hand on the back of her head during the kiss.
21․Count 2 reflects an allegation that the accused then put his hands inside LO’s shirt onto her chest and stomach. He put his other hand inside her leggings and alternated between having his hand on her thighs, and inside her underwear touching her genitals. He did not penetrate her. This conduct lasted for about five to ten minutes.
22․Count 3 relates to a separate incident days later when the accused, in the same room of his home with LO’s brother present playing video games close to the TV, asked if he could tickle LO. LO said yes and the accused picked up one of her arms and kissed it further and further up her arm. When the kisses reached LO’s neck, her brother turned around. The accused said something like “blowing air into a balloon” and LO’s brother turned back to face the TV.
23․At all times the accused was 10 years older than LO. The accused was born in 1993.
24․Counts 4 to 9 relate to FO and acts said to have occurred now, between 2011 and 2019. FO was born in 1996. There are other uncharged acts against FO relied upon as tendency evidence. The uncharged acts began when FO was 14. The first charged act related to when she was 15. The final charged act was alleged to have occurred when FO was 21. At all times the accused was three years older than FO.
25․The prosecution submitted that the case against the accused has not changed with the amendment to the indictment. So much is true to the extent that the nature and extent of the acts he is alleged to have engaged in remain the same. The timing of the acts against LO does represent a shift in the prosecution case in terms of when the acts occurred. The amendment to the indictment came after the evidence of LO whereupon the prosecution sought to reflect her evidence that the offending could not have occurred in the Forde house and accordingly occurred earlier than the indictment originally particularised. The amendment had the effect of reducing the age of both LO and the accused at the time Counts 1, 2 and 3 occurred.
26․It is the age of the accused and LO, as well as the temporal connection of the acts underpinning Counts 1, 2 and 3 to the allegations involving FO, that the accused now relied upon as now significant considerations for the purposes of the admissibility of the tendency evidence.
Relevance and probative value
27․There is no dispute that the tendency evidence is relevant evidence: s 55 of the Evidence Act 2011 (ACT) (the Evidence Act). That is, the evidence of LO if accepted could rationally affect (directly or indirectly) the assessment of the probability of the accused offending against FO as alleged and vice versa.
28․The amendment to the indictment does not alter the application of s 97A of the Evidence Act to the tendency evidence, save for Count 9 which is said to have occurred at a time when FO was 21.
29․Section 97A dictates that tendency evidence about a sexual interest in children or acting on that interest is presumed to have significant probative value
30․The presumption of significant probative value may be rebutted pursuant to s 97A(4), if the Court is satisfied there are sufficient grounds to determine that the tendency evidence does not have significant probative value. Section 97A(5) provides matters not to be taken into account, “unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account” (emphasis added). The evidence must be taken at its highest and on the assumption that the jury will accept it: IMM v R [2016] HCA 14; 257 CLR 300 at 314-315 [50].
31․In Decision restricted [2023] NSWCCA 163, Beech-Jones J (as his Honour then was), with whom Hamill J agreed observed at [14]:
In this Court, the Crown accepted that “exceptional circumstances” may be established where the particular circumstances of one or more of the matters identified in s 97A(5) are such that they demonstrate the absence of significant probative value on the part of the subject evidence; i.e. in a particular case, the particular feature or features identified in s 97A(5)(a)−(g) may be so strong in terms of their bearing upon an assessment of probative value that they warrant the description “exceptional”. This concession was well-founded and is reflected in the words “exceptional circumstances in relation to those matters” in s 97A(5).
32․Consistent with that approach, Berman AJ in DPP v Duncan (a pseudonym) [2024] ACTSC 80 (Duncan) at [35] observed that a consideration of “exceptional circumstances” (s 97A(5)), was difficult to isolate from a consideration of whether there were “sufficient grounds” (s 97A(4)) when determining whether the presumption was displaced, concluding at [36]:
Whatever it is that makes circumstances “exceptional” must be decided by considering whether they demonstrate the absence of significant probative value of the proposed tendency evidence.
33․As I did in DPP v Lodding [2024] ACTSC 244 at [16], I consider those cases contemplative of the question of the probative value of tendency evidence, prior to the enactment of s 97A, instructive as to an assessment whether exceptional circumstances and sufficient grounds have been established.
34․Per Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes) at 356 [41], an assessment of whether tendency evidence has significant probative value “involves consideration of two interrelated but separate matters”:
The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. […] In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
35․In DPP v Mastalerz [2024] ACTSC 30 Baker J at [36] identified matters relevant to the assessment of probative value of tendency evidence. They included but were not limited to the following considerations:
(a) the number of incidents establishing the tendency: Hughes at 371 [91];
(b) the temporal distance between the tendency incidents and the alleged acts: McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [30]-[32]; TL v The King [2022] HCA 35; 275 CLR 83 (TL) at 98 [37] (see further at [39] below);
c) Any similarity in conduct and circumstances between the tendency incidents and the alleged acts, and among the tendency incidents: TL at 95 [29] (see further at [37] below);
(d) Whether the tendency alleged is unusual: Hughes at 393 [155];
(e) The specificity (or generality) of the tendency alleged: TL at 95 [29]; Hughes at 363 [64] (see further at [38] below);
(f) Whether tendency evidence involves a single complainant, or more than one complainant: The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at 82 [48], 83 [50] and 88 [60] (see further at [38] below);
(g) The nature of the tendency alleged (including whether “logic and human experience” suggest that the tendency is such as to be probative of the facts in issue: Hughes at 356 [40]);
(h) The extent to which the tendency as particularised will assist in determining the fact(s) in issue: TL at 95 [29];
(i) The issue that the tendency evidence is sought to establish (for example, whether the tendency is adduced to support a witness’ credibility or to establish identity; whether the evidence is adduced to explain or contradict tendency evidence adduced by another party; and/or whether the tendency evidence is adduced to demonstrate a critical fact in the prosecution case): Hughes at 355 [39], but see TL at 96 [30] – [31]); and
(j) The other evidence to be presented: s 97(1)(b) of the Evidence Act.
36․Plainly, the probative value of tendency evidence is no longer evaluated by reference to “striking similarity”. That said, the extent to which there is similarity in the conduct relied upon remains a relevant, though not determinative, consideration. An assessment of the probative value of the evidence will include an assessment of whether there are features of the offending which “links the two together”: The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at 87 [58].
37․In TL v The King [2022] HCA 35; 275 CLR 83 the High Court observed at 95-96 [29]:
There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of “significant probative value”. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the facts or facts in issue. The specificity of the tendency has a direct impact of the strength of the inferential mode of reasoning. Put in different terms, that is why tendency evidence must have significant probative value. Otherwise, s 97 is reduced to relevance, which is addressed in s 55.
Footnotes omitted.
38․The extent of the similarity as between the conduct enhances the probative value of the evidence. As Bell P expressed in Taylor v R [2020] NSWCCA 355 (Taylor) at [122](vii):
[W]hilst in order to qualify as tendency evidence, the conduct sought to be adduced does not necessarily need to bear a striking or even close similarity with the offences charged […] the closer the degree of similarity, the more significant and more probative the evidence is likely to be. This is because the specificity of the tendency directly informs the strength of the inferential mode of reasoning.
39․Bell P went on to observe (at [122](xiv)(c)) that the probative value of the evidence sought to be relied upon for tendency reasoning may be influenced by the period between the charged conduct and the conduct relied upon for tendency purposes, stating at [122(xiv)(e)] that the absence of any evidence “as to the manifestation of the tendency in a lengthy intervening period will undermine the likely probative value of the history of the historic tendency evidence”: see also McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 at [30]-[32].
40․In Davidson (a pseudonym) v The King [2024] NSWCCA at [47] Adamson JA (with whom Stern HA and Wright J agreed) observed:
In some cases, the tendency will be established by an accused’s continuing sexual interest in the complainant; in others, by an accused’s sexual interest in another child whose gender, age and, potentially, relationship with the accused, share common features with the complainant; or the tendency will be sought to be established by evidence of an accused’s sexual interest in children generally. These various possibilities reflect the circumstance that tendency can be established in as many ways as it is exhibited.
Exceptional circumstances
41․In the application to revisit the tendency ruling the accused embraced the basis upon which Berman AJ found “exceptional circumstances” existed to warrant a consideration of the factors at s 97A(5) of the Evidence Act, being the difference in the sexual interest revealed in the conduct toward LO and FO because of the difference in their ages. His Honour accepted, as I do, that there is a “very big difference between an 18 year old indecently assaulting a girl of 7 or 8 years old and a 17 year old making sexualised comments to a 14 year old girl and then as an 18 or 19 years old committing acts of indecency on a girl 3 years younger than him”: at [35]. The sexual interest demonstrated in LO was described as having “the flavour of paedophilia” while the sexual interest demonstrated in FO was characterised as “an adolescent male acting on a sexual attraction to an age-appropriate friend”.
42․The amendments to the indictment have not altered the basis for those observations and having assessed the evidence for myself, I agree with them.
43․In addition, the accused relied upon the prosecution case now resting upon the offences committed against LO occurring at a time when he was 15 or 16 years of age as a factor that further contributes to the exceptional nature of the circumstances and strengthens the basis upon which it ought to be concluded that there are sufficient grounds to rebut the presumption of significant probative value.
44․The prosecution conceded that the allegations against LO are now put on the basis that they occurred when the accused was 15 or 16 years of age. While it was suggested this might have always been the case, the indictment was not originally framed this way.
45․In any event, the prosecution submitted that the tendency ruling should not be disturbed because the accused’s age should have limited weight in a consideration of the application of ss 97A and 101 of the Evidence Act when the evidence is considered as whole.
46․I do not agree.
47․The “big difference” between the alleged offending against the sisters to which his Honour referred, in my view is rendered more significant when considered in light of the accused being (at his youngest) aged 15 and LO being (at her youngest) aged 5 at the time the incidents against LO occurred.
48․Like his Honour, I am accordingly satisfied that there are exceptional circumstances that warrant a consideration of the relevant factors at s 97A(5) to determine whether there are sufficient grounds to rebut the presumption.
Significant probative value
49․There is no doubt that the ages of the sisters at the time when the acts allegedly occurred is markedly different. The offences against LO occurred first in time, days apart. She was, on any view, prepubescent. A sexual interest in a child of that age is unequivocally paedophilic.
50․FO was 14 when the uncharged acts, said to be the accused remarking on her breasts and her bottom, occurred.
51․The first charged act occurred when she was 15. The accused pulled her into a room and held her down to kiss her and rub her genitals over her clothing. The accused later tried to pull her into his car, but the appearance of the FO’s brother saw him stop. The accused was 18 years old when this conduct occurred.
52․The second charged act was when FO was 16 and at a party with the accused. The accused touched her bottom between 20 and 30 times. FO asked him to stop on many occasions. The accused was 19 years old.
53․The third and fourth charged acts (Counts 6 and 7) occurred at the accused’s family home when FO was 17 years old. The accused grabbed FO and pulled her into a room, pushed her onto a bed and tried to kiss her. The accused did kiss FO on her neck. The accused was 20 years old.
54․There are then more uncharged acts relied upon which include the accused pulling FO into rooms of his family home on several occasions and in one or two instances, being pushed onto a bed. The accused is said to have hugged her and moved his hands up and down FO’s back on these occasions.
55․The next charged act occurred when FO was 17. The accused picked FO up, put her on a couch and held her down so she could not move. The accused kissed her neck, put his hands between her inner thighs and rubbed her genitals over her clothing. The accused told FO to be quiet. The incident ended when the accused’s sister and her boyfriend walked into the room. The accused was 20 years of age.
56․The final count occurred when FO was 21. The accused pushed FO up against a wall, grabbed her breasts and squeezed them. The accused was 24 or 25 years of age.
57․There is undoubtedly some similarity as between the incidents involving both LO and FO. They occur for the most part in the accused’s home, there are other people present in the home and the complainants are members of the same family to whom the accused had access.
58․The sexual acts revealed in the conducted directed toward FO have an air of menace and/or control about them, in particular Counts 4, 6, 7, 8 and 9. Those acts include the direct exertion of physical force as a significant feature, not seen in the acts directed toward LO. The acts against FO appear contemplative of opportunities to carve FO out from group or family gatherings and secret her away, without drawing the attention of others to her absence. The final count where FO assists an unwell family member to a bedroom of the house during a gathering, whereupon the accused was waiting outside the bedroom is a particularly compelling example of that mindset.
59․The acts directed toward LO do not have that same appearance; the accused, LO and her brother being in a room with a TV where younger members of a family group might be expected to congregate. The incidents begin somewhat playfully without the exertion of overt physical control. The accused put his hand inside LO’s underwear in the first incident but not the second incident. FO does not allege any direct, skin to skin contact with her genitals.
60․The sexual interest revealed in the conduct directed to FO is persistent and largely consistent over the period the prosecution alleges the tendency manifested in the offending conduct and uncharged acts. Though not at the invitation or with the consent of FO on the prosecution case, the relationship between the accused and FO is different to that of LO in that they are only three years apart in age. Sexual interest on the accused’s part toward FO is not of itself repulsive or unnatural. It is what might ordinarily be considered an “age-appropriate” sexual interest.
61․The age of the accused at the time of the offences against LO cannot be ignored. There is, on the prosecution case a longer period between the acts perpetrated against LO and the acts against FO. The prosecution case does not reveal a consistent manifestation of the tendency from the point in time it reveals itself in the acts directed toward LO. There are two events, very close in time without any repetition.
62․At the time of the offences committed against LO the accused was less mature and could be expected to be less experienced than the time of the offences committed against FO. As Berman AJ observed, the relationship (leaving aside the allegations) between LO and the accused was more akin to an older brother, while the relationship with FO was more in keeping with friendship, consistent with their respective ages.
63․The criminal law makes clear distinction between adult and juvenile offenders by reference to the age of an offender when they commit an offence. In reality, there is no bright line of maturity achieved upon reaching the age at which a person is charged as an adult offender.
64․It is relevant in my view to consider, when assessing the probative value of evidence that seeks to establish a sexual tendency said to have manifested in a young person and continued into adulthood, that children and young people continue to develop emotionally, psychologically, physically and sexually. That development includes exploration and experimentation in search of identity. Conduct engaged in during the course of the development of a young brain may not be fully understood or contemplated and cannot necessarily be explained by reference to patterns of behaviour or fixed tendencies, in part because of limited life experience and the unpredictability of adolescent behaviour.
65․In R v Sean (a pseudonym) (No 2) [2023] ACTSC 132, McCallum CJ, in refusing an application by the prosecution to lead tendency evidence against a 16 year old accused of murder, observed at [11]:
I concluded that the evidence failed both tests. As to the requirement of s 97 (1)(b) I had reservations as to the probative value that can properly be assigned to evidence of an apparent tendency in a person as young as the accused, having regard to the dynamic and often volatile nature of adolescent behaviour (the accused who was 15 at the time of the skate park incident).
66․Her Honour went on at [15]-[16] and [20]:
15. The probative value of tendency evidence rests on an assumption that the existence of a tendency to act or think in a certain way is likely to produce repetition. In Hughes v The Queen [2017] HCA 20; 263 CLR 338, the majority (Kiefel CJ, Bell, Keane and Edelman JJ) analysed that issue by reference to the unusual nature of the tendency (in that case, the inclination of a mature adult male to engage in sexual conduct with underage girls and a willingness to act upon that inclination: at [57]). It may readily be accepted that a tendency to act in such a way and have such a state of mind is unusual in mature adult males. The majority in Hughes framed this as “a matter of ordinary human experience”: at [57].
16. My concern in the present case was that the predictability of repetition in the acts and states of mind of adolescents is significantly less reliable. It is well understood that adolescents are in the process of brain development and have less predictable emotional and behavioural regulation than mature adults. There is also a temporal factor here. An adolescent will have had little opportunity to develop independent tendencies, usual or unusual. The accused in the present case was squarely in that tumultuous period of growth. I took the view that I should exercise considerable caution before accepting that evidence of his past acts and inclinations had significant probative value in predicting his behaviour on another occasion.
[…]
20. The Crown contended that the alleged tendency here to have a disproportionately violent response is not typical of an adolescent. However, as a matter of “ordinary human experience” (Hughes at [57]), or at least the ordinary experience of the courts, I do not think it can be said to be unusual in the way a paedophilic interest in young girls is unusual. As already indicated, I would take it to be a matter of ordinary human experience that many adolescents experience difficulties in regulating their emotions and responses due to the nature of brain development during puberty.
67․While of course, in consideration of a different category of offending, her Honour’s observations are apposite. The reference in [20] to the unusual nature of a sexual interest in young girls was a reference to the circumstances in Hughes, where an adult man was revealed to have such an interest. It is not an observation about such an interest manifesting in teenager under 18, to which I will come.
68․Similar reservations as to the reliance by the prosecution on conduct said to evince a tendency in a young person that continued into adulthood were expressed in the BC v R [2015] NSWCCA 327; 257 A Crim R 340 (BC) by N Adams J (in dissent) at [34]:
The Crown case focuses not so much on the applicant’s conduct at particular ages but on the overall pattern, but this avoids the question whether, to take the extremes, the sexual activity of a child does at the age of 11 tell one anything significant about what he or she might do at the age of 24. Or, if one started at the other end, what the sexual conduct of a 24 year old would say about his or likely conduct at the age of 11. The focus on pattern obscures the essential task of identifying the probative weight of the particular tendency demonstrated in each charge or in relation to each of the other charges to which it is said to be relevant. So far as counts 1 to 3 are concerned, accordingly, the issue of doli incapax is an additional complication not, as it appears the primary judge thought, the only question. Difficulties of a similar character, though to a somewhat lesser degree, are presented by the probative value of any tendency shown by the applicant’s alleged sexual conduct when he was 16 (though he might have been 18), in respect of counts 4 to 7, 8 to 11 and 12 to 15, so far as counts 16, 17, 18, 19 and 20 are concerned. Tendency is usually concerned with the acts of an adult demonstrating that adult’s propensity to do certain things. However, it is highly speculative, to my mind, to attempt to deduce the likely conduct of an adult from his or her conduct as a 16 year old, let alone from his conduct as an 11 year old or even that of a 16 year old from his conduct as an 11 year old.
69․While Beech-Jones J (as his Honour then was) confirmed the admissibility of the tendency evidence, citing the continuing pattern of the tendency revealed in conduct from when the accused was 10 years of age until he was 28 years of age, his Honour did observe at [87]:
Considered in isolation there may be serious reason to doubt that evidence of such conduct by an 11 to 13 year old is capable of being “of importance or of consequence in establishing” that the applicant committed, say, counts 19 and 20 when he was aged between 25 and 28 years.
70․None of this is to say that evidence of conduct engaged in by a young person cannot ever be adduced in support of tendency reasoning. So much is clear from the result in BC. However, the probative value of evidence said to reveal a tendency in a young person in my view should be carefully scrutinised because of what can be accepted as to the significance of the developing brain and the limited opportunity a young person has to develop tendencies.
71․Acting Justice Berman rightly, at [43] in Wilson, drew significant support for his ruling from the circumstances and reasoning in Hughes. His Honour considered that the common circumstance as between LO and FO, being the possibility of detection by others, rendered the conduct “risky”; a matter a jury “may well” view with “some circumspection” absent the evidence as to experience of both complainants. In Hughes the Court observed at [55] that the tendency evidence:
“[A]s a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection”.
72․In Hughes, as is the case here, there was some difference in the ages of the multiple complainants and some difference as between the specific acts engaged in by the offender with respect to each complainant. At all times the offender in Hughes was a “mature adult” and it was in this context that an inclination to engage in sexual conduct with underage girls and a willingness to act on the inclination was “unusual”. So too, a level of “disinhibited disregard of the risk of discovery by other adults” was even more unusual as a “matter of ordinary human experience”. This common feature, a high level of opportunism, explained to some extent the absence of a particular pattern of conduct or modus operandi: at [57].
73․It may be readily observed that a consideration of the admission of tendency evidence is fact specific. The accused’s age when the offending against LO is said to have occurred and the temporal connection between the offending against LO and FO, undermine the capacity to characterise the accused’s conduct as a continuing manifestation of the tendency.
74․I have already acknowledged the similarities between the alleged conduct and circumstances involving both sisters, LO and FO. This adds to the probative value of the evidence.
75․Though, I return here to the observation I made at [54] about the incidents involving LO not taking on the air of deliberate predation that might be ascribed to the conduct involving FO. Unlike with FO, the incident does not have the appearance of being deliberately contrived by the accused. The conduct directed at LO, being a 15 or 16 year old in the presence of another young person, ostensibly “tickling” a 5 or 6 year old with whom they are in a “older brother” relationship, does not in my view reflect the same level of “disinhibited disregard” of risk in the same way that the act of a young adult man pulling a young woman into a room, holding her down on a bed and groping her, might.
76․This assessment feeds into an assessment of the character of the of sexual interest revealed in the conduct.
77․I consider the difference as between the sexual interests revealed in the alleged conduct to be significant, exposed by reference to the personal characteristics of the complainants and the nature of their relationship with the accused. There is, as I have already recorded, nothing unusual about the accused’s sexual interest in FO. The same cannot be said about LO. The two occasions involving LO occurred in very quick succession. There is no evidence that the “unusual” sexual interest, being paedophilic in nature, has ever been repeated.
78․Further to this, the accused was far from being a “mature adult” man at the time of the offending against LO. While of course, at 18 years of age and older the accused may similarly be far from that status, that the offending in respect of FO goes over an extended period of time and is consistent in nature as to the acts and opportunism, provides a foundation to view the conduct as evincing a tendency to think and act in a particular manner.
79․Add to these considerations, the small period between the incidents involving LO and the absence of overt physical force from the acts involving LO and the probative value becomes less compelling.
80․Further, the period between the counts involving LO and the counts involving FO by virtue of the amendment to the indictment, undermines the force of the whole of the evidence to reveal an ongoing manifestation of the tendency.
81․I have also taken into account that the tendencies for the purposes of cross-admissibility are expressed with a high level of generality being a tendency to have sexual interest in children and to act on that interest opportunistically. As was observed in Hughes at [64]:
A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.
82․Returning to the two separate inferences employed in tendency reasoning, the combination of the relevant factors I have identified in this matter, warrant hesitation about attributing the conduct against LO to a tendency of the 15 or 16 year old accused to have a sexual interest in children and in LO, and to act on that sexual interest opportunistically.
83․Further, I am not satisfied that the evidence about the conduct directed toward LO makes it more likely that the conduct directed toward FO occurred.
84․I am satisfied that there are sufficient grounds to rebut the presumption of significant probative value. Accordingly, the prosecution should not be permitted to adduce tendency evidence with respect to LO in the case against the accused with respect to FO.
85․This does not disturb the prosecution’s reliance on tendency reasoning with respect to FO.
Application to recall the complainant
86․At the October 2023 trial, FO gave evidence via audiovisual link to the courtroom as part of the requirements in sexual offence proceedings mandated in the Evidence (Miscellaneous Provisions) Act 1991 (the EMP Act). The accused applied to have FO attend the trial to give further evidence pursuant to s 69 of EMP Act.
87․Relevantly, s 69 provides:
…
(7)A party to a related proceeding may apply to the court for an order that the witness attend the hearing to give further evidence.
(8)The court must not make the order unless satisfied that—
(a)the applicant has become aware of something that the applicant did not know or could not reasonably have known when the recording was made; and
(b)if the witness had given evidence in person at the hearing—the witness could be recalled; and
(c)it is in the interests of justice to make the order.
88․Affidavit material filed in support of the application attests to the accused engaging different legal representatives for this trial, both solicitor and counsel.
89․At the October 2023 trial, FO gave evidence via an evidence in chief interview (EICI) with police and in cross-examination, the general effect of which was that she actively sought to avoid the accused as a result of the offending conduct. FO specifically described in the EICI that she did not want to return to the accused’s home which was also where his sister, her close friend, TQ lived.
90․Since the October 2023 trial the accused’s new solicitor Ms Khurana conferenced with the accused’s sister who is likely to give evidence in this trial, as she did in the October 2023 trial. During the course of that conference, it was discovered that TQ was in possession of additional evidence and had knowledge about an incident, of which the accused was unaware when FO gave evidence.
91․I can readily deal with one aspect of the application and that is with respect to an incident described by the accused’s sister where the accused’s father publicly berated, and potentially humiliated, FO: an event submitted by the accused to be a potential source of resentment by FO toward the accused’s family. I do not consider that this evidence could substantially affect the assessment of FO’s credibility.
92․The application to recall the complainant identified a message exchange on 6 February 2018 between the accused’s sister and FO, as well as several photographs and videos discovered to be in the accused’s sister’s possession, the existence of which he was unaware at the October 2023 trial.
93․In support, counsel for the accused submitted that had the accused been aware of the messages, photographs and videos they would have undoubtedly been produced during the October 2023 trial as part of the challenge to the evidence of FO. There is force to this submission given the approach taken during cross-examination of FO.
94․The prosecution submitted that the evidence now identified in support of the application is evidence the accused could reasonably have known about at the October 2023 trial.
95․The accused’s sister gave evidence in the trial that she had seen the brief of evidence and had been given some information from the accused’s solicitor about court processes including “what to expect and that we are required – it would be nice if we could come in and give evidence”. The accused’s sister was asked to identify a Facebook chat between her and FO from 2017. In cross-examination the following exchange occurred:
Q: So did you, after reading what [FO] said in her statement think that you would look at your Facebook posts and see what you could find to assist your brother?
A: No. So I looked at my Facebook posts because I was trying to look to see if there’s any way that I ever thought that they were uncomfortable around any of us ---
Q: But you would have? And I couldn’t find anything.
96․This is the extent of any exploration of what messages or evidence the accused’s sister might be aware of, or in possession of, relevant to FO’s interaction with the accused. There were no questions asked of the accused’s sister about any photographs or imagery she might have in her possession depicting the accused and FO in each other’s company.
97․In my view, the accused could not know the content of communications between his sister and FO. Equally, the accused’s sister may not have appreciated the significance of messages or material that she was in possession of, to the facts in issue. The focus of the accused’s sister appeared to be on messages that indicated FO was “uncomfortable” around members of the accused’s family and not on communications where she might have sought or welcomed the accused’s company. The accused’s sister was not ever asked directly about FO distancing herself from, or actively avoiding, the accused. The accused’s sister was asked about FO not attending the accused’s home as regularly as she used to for a period or “dropping off” and she replied “I never felt like that. I never noticed that” and, “I’ve never noticed that we’ve been interacting less”.
98․In my view, the material suggests that the accused’s sister likely did not appreciate the significance of the material in her possession. The accused cannot be expected to know about the existence of messages or images that he did not produce.
99․In WX v R [2020] NSWCCA 142; 102 NSWLR 467 (WX), Beech-Jones J (as his Honour then was, with Payne JA and N Adams J agreeing) considered the NSW provision governing the compellability of a complainant in a re-trial involving sexual offences and the concept of the “interests of justice” in that context. For the present purposes it is not necessary to consider the specific detail of the provisions under consideration in WX. Instructive for the purposes of this application is his Honour’s observation at [42] “the concept of “interests of justice” clearly embraces (and requires) a consideration of the impact of fairness of the accused’s forthcoming trial if the complainant does not give further evidence and the desirability of not occasioning further trauma to the complainant if they do”. The prosecution submitted that FO ought to be considered a “vulnerable witness” and that the effect of the text message exchange, photographs and videos was generally covered by cross-examination of FO in the October 2023 trial, when it was suggested to her that she continued to have contact with the accused after he engaged in the conduct she alleged.
100․It is important to note some of the chronology demonstrated by the evidence and some of the evidence FO gave in the October 2023 trial.
101․It is uncontroversial that the accused’s sister’s wedding occurred in India in March 2018. The accused and FO attended. The final count on the indictment was said to have occurred after that wedding, at a reception event held in Australia.
102․FO gave evidence that she only saw the accused once after the wedding in March 2018 in a car park when the accused tried to make conversation with her, and she “was like, yeah, not having any of it”. FO clarified early on in cross-examination that it was in fact after the reception event in Australia that the one occasion when she spoke to the accused occurred, it being the occasion in the carpark. FO stated:
I had seen him between the wedding and the reception. We were obviously really good friends with his sister, so we had seen each other for dance rehearsals for the reception, but after the reception I had absolutely nothing to do with him. I only spoke to him once after that. Might’ve seen him a couple of times at family events, but just in passing, but never spoke to him other than that one time.
103․FO agreed in cross-examination that she told police that at the March 2018 wedding in India the accused was flirting with her, and that she “shut it down immediately”. FO later went on to agree that she told police that she did not like “being in environments where he might show up”. FO also agreed in cross-examination that she was “actively trying to avoid” the accused at the March 2018 wedding and further that she wanted “absolutely nothing to do with” the accused “because of what he had done to her”.
104․FO agreed in cross-examination that the accused may have been invited to a 2019 event celebrating her graduation by her parents via Facebook.
105․The accused now seeks to put the text message exchange from February 2018 with the accused’s sister to FO as a matter that could substantially affect the assessment of FO’s credibility on the basis that it directly contradicts her evidence of actively avoiding the accused.
106․The text message exchange reads:
FO: I can’t do Friday sorry! I’ve already got concert tickets.
TQ: That’s okaaay! I’ll see if [the accused] can stay at someone’s sat if not then I’ll have to make it Friday [sad face emoji]
FO: Why can’t [the accused] stay at home? He won’t bother us will he
TQ: Nah he won’t I’ll see what he says anyways and let you guys know it [sic] seems
FO: Okie dokie.
107․The accused made a submission, with which I agree and that is that the message appears to be an entreaty to the accused’s sister not to make arrangements for the accused to leave the house when she is to be there. This is directly inconsistent with the evidence of FO that she sought to actively avoid him when she could because of the conduct he had perpetrated against her.
108․Included in the photographs the accused now seeks to put to the complainant is a photograph taken of the accused, two other men and FO at the March 2018 wedding. In the image the accused has his back to FO. FO is on the accused’s left side and two other men are on his right side. The men have their arms around each other. FO is leaning the upper part of her body against the upper back of the accused with her left hand cupping his left shoulder and her left forearm braced against his upper left arm. FO is leaning in close to the accused so that her chin is almost resting on her left hand as it sits on the accused’s left shoulder. FO is smiling widely. The accused is not making contact himself with FO. The image has the appearance of the accused posing with the men for the image and FO joining the trio. None of the men are making physical contact with FO.
109․The image is inconsistent with the picture painted by FO’s evidence that she was doing all she could to avoid the accused at the wedding because “he was just always next to [her] trying to, like, flirt with me and stuff”. I consider it is an image, questions about which, could rationally affect an assessment of her credibility. There is another image from that wedding which does little more in my view than establish what FO accepted and that is that they were both present at the wedding. I do not consider that that image could rationally affect an assessment of FO’s credibility.
110․There is also an image said to be from an event in celebration of FO’s graduation on 16 February 2019. This is an event that FO and the accused were asked questions about. The image confirms two things not clear from the evidence. First, that the accused did in fact attend the event. Secondly, that FO was sitting directly across from him when the image was taken at 2:44am on 17 February 2019. FO is smiling and leaning over the table, toward the accused. This is an occasion after the “carpark” interaction, which FO described as the last occasion she ever spoke to the accused.
111․By omission it would seem, the question of whether the accused actually attended this event was not ever squarely put to either FO or the accused. The evidence certainly demonstrated that he was invited, though the complainant suggested it was by her parents and not by her directly. I consider that questions about the image in view of the evidence FO gave could rationally affect an assessment of her credibility.
112․There are other images at Annexure “D” and “F”, and video footage from dance rehearsals for the reception event that the accused seeks to put to FO. I do not consider that that material could rationally affect an assessment of FO’s credibility on the basis that she accepted there may well have been occasions after the “carpark” interaction that they were at events together and that she described there being dance rehearsals at which they were both present. The video evidence does nothing to present that evidence as an inconsistency relevant to FO’s credibility in my view.
113․I accept as a matter of both common sense and practical experience that returning to court to give evidence in the proceedings will be very unpleasant for FO, to say the least. I accept that it is likely to be distressing and further compound any trauma that FO has suffered arising from her participation in the process, in circumstances where she reasonably considered her participation to have been finalised. I note that the purpose of recalling FO is not to revisit large portions of her evidence and an order can be made limiting the extent of any further cross-examination.
114․The evidence I do consider could rationally affect an assessment of FO’s credibility, could be compelling when weighed against the consistent narrative of FO that she took active steps wherever she could to avoid direct contact with the accused. The credibility of FO is a central issue in the case against the accused. The honesty and accuracy of FO will be key to the issues the jury must determine. The evidence that the accused now seeks to confront FO could be significant in an assessment of her honesty and accuracy and ultimately, in an assessment of the existence of the facts in issue. To refuse the application permitting further cross-examination of the complainant in relation to that material and deprive the jury of opportunity to consider it, would create unfairness in the accused’s trial.
115․Accordingly, I am satisfied that the accused did not know or could not reasonably have known about the material he now seeks to put to FO when she gave her evidence, that FO could have been recalled had she given evidence in person in the proceedings and that is in the interests of justice to order that she be recalled in the re-trial.
Orders
116․For those reasons I made the following orders:
(1)The prosecution is not permitted to adduce the tendency evidence of Counts 1 – 3 in support of Counts 4 – 9 on the indictment.
(2)Accordingly, I direct that the indictment is to be severed, with Counts 1 – 3 to be tried separately to Counts 4 – 9.
(3)The witness FO is to be recalled for further cross-examination pursuant to s 69(7) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The extent of the evidence to be adduced from this witness is limited to the text message exchange between the complainant and the accused’s sister as at Annexure “C” of the affidavit of Ms Cheryl Khurana affirmed 27 August 2024, the image from the March 2018 wedding as described at [109] and the image at Annexure “E”.
| I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: A Turner Date: 19 September 2024 |
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