J L T v The Queen

[2010] VSCA 358

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0389

JLT	Applicant
	v
THE QUEEN	Respondent

JUDGE:	WARREN CJ, ASHLEY and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2010
DATE OF JUDGMENT:	22 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 358
JUDGMENT APPEALED FROM:	R v JLT (Unreported, County Court of Victoria, Judge Gullaci, 3 November 2010)

EVIDENCE – sexual abuse of applicant’s daughters - admissibility of tendency and co-incidence evidence – appeal allowed.

CRIMINAL LAW – application to sever indictment – application to conduct separate trials in respect of each complainant – application refused.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Glynn	Hartley’s Lawyers
For the Crown	Mr J D McArdle QC with Mr J Lewis	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ

ASHLEY JA

BONGIORNO JA:

1. The Court has before it an application for leave to appeal against two interlocutory decisions originating from the County Court sitting at Geelong.  The first decision concerns the admissibility of certain tendency and coincidence evidence. The second decision concerns severance of the indictment. The accused is charged with one count of incest and ten counts of committing an indecent act with a child under the age of 16 years.  The alleged offences involve two complainants, both the natural daughters of the accused.

1. Pre‑trial argument was heard before the trial judge and his Honour delivered thorough and careful reasons for the rulings which the applicant now seeks to challenge. Relevant details contained in the interlocutory appeal information sheet (and the particular conduct, where relevant, set out in the Notice of Tendency Evidence) are set out below. Those details refer to the tendency and coincidence notices served on the accused and his Honour’s rulings in respect of them.

Notice	Relevant to charges	Tendency / Coincidence Alleged	Admissible/ Inadmissible
Tendency 1	2, 8 and 10	To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by kissing the particular complainant on the mouth using his tongue whilst in the absence of their mother. To have a particular state of mind, namely to have a sexual interest towards his daughters and a willingness to act upon it in the absence of the complainants’ mother.	Admissible
Tendency 2	4, 7, 9 and 11	To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by touching or squeezing the particular complainant’s bottom. To have a particular state of mind, namely to have a sexual attraction towards his daughters and a willingness to act upon it.	Admissible
Tendency 3	3 and 5	To act in a particular way, namely to engage in sexual activity with his daughters aged 7-13 by masturbating in their presence whilst their mother was not home. To have a particular state of mind, namely to have a sexual attraction towards is daughters and a willingness to act upon it whilst their mother was not home.	Inadmissible
Tendency 4	1, 2, 3 and 4	(Uncharged acts in relation to complainant “C”) To act in a particular way, namely in respect of each charge to act upon his sexual attraction toward his daughter aged 7–13 years by engaging in the said sexual activity in the absence of the complainant’s mother. To have a particular state of mind, namely to have a sexual attraction towards his daughter and a willingness to act upon it and to have a confidence that his conduct would go unreported or unbelieved. Conduct relied upon: Accused groping, slapping and squeezing complainant “C”’s bottom. Accused touched bottom of complainant “C”. Accused climbing into bed with complainant “C”, waking her up and rubbing her bottom and top. Accused sexually penetrated complainant “C”’s anus with a crayon. Accused kissed the complainant “C”. The accused said to complainant “C” “don’t tell your mother”.	No objection by defence to parts 3, 4 and 6 of notice. Objection by defence to parts 1, 2 and 5. All parts ruled Admissible
Tendency 5	4, 5, 6, 7, 8, 9, 10 and 11	(Uncharged acts in relation to complainant “M”) To act in a particular way, namely in respect of each charge to act upon his sexual attraction toward his daughter aged 7–13 years by engaging in the said sexual activity in the absence of the complainant’s mother. To have a particular state of mind, namely to have a sexual attraction towards his daughter and a willingness to act upon it and to have a confidence that his conduct would go unreported or unbelieved.	No objection by defence. Admissible
Tendency 6	1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11	To act in a particular way, namely to use aspects of his parental relationship and authority in furtherance of his offending by: (a) Using his relationship with and access to the complainants to place himself in intimate contact with them; (b) Instigating normal parental physical contact and then exploiting that opportunity by committing sexually motivated acts; (c) Using his authority to obtain compliance from the complainants during the offending; and (d) Using his parental authority to conceal the offending.	Inadmissible
Coincidence 1	2, 8, and 10	Did a particular act, namely to engage in sexual activity with his daughters aged 7-13 by kissing the particular complainant on the mouth using his tongue whilst in the absence of their mother. Had a particular state of mind, namely to have a sexual interest towards his daughters and a willingness to act upon it in the absence of the complainants’ mother.	Admissible
Coincidence 2	4, 7, 9 and 11	Did a particular act, namely to engage in sexual activity with his daughters aged 7-13 by touching or squeezing the particular complainant’s bottom. Had a particular state of mind, namely to have a sexual attraction towards his daughters aged 7-13 and a willingness to act upon it.	Admissible
Coincidence 3	3 and 5	Did a particular act, namely to engage in sexual activity with his daughters aged 7-13 by masturbating in their presence whilst their mother was not home. Had a particular state of mind, namely to have a sexual attraction towards is daughters and a willingness to act upon it whilst their mother was not home.	Inadmissible
Coincidence 4	2, 3, 4, 5, 7, 8, 9, 10 and 11	Did particular acts, namely engaged in sexual activity with his daughters aged 7-13 by kissing them on the mouth, touching their bottom and masturbating in their presence. Had a particular state of mind, namely a sexual attraction towards his daughters and a willingness to act upon it.	Inadmissible

1. In order to put the matter beyond doubt, the Court indicates that we take his Honour to have ruled that all of the matters in coincidence notice number four are inadmissible.

1. Essentially, the submissions for the applicant related to conduct consisting of kissing alleged to have been perpetrated by the accused against his daughters.  The Court, having heard the argument, considers that the evidence relating to that kissing is admissible.  We consider that the reasons stated by his Honour in his ruling are sufficient to encompass those matters.

1. The second category of conduct which was the subject of argument, was evidence relating to the applicant touching the bottoms of the two girls.  The Court considers that there is no evidence proposed to be led of anything in the nature of the principles laid out in Papamitrou,[1] that is, there is no underlying activity of unity.  There is no more than alleged offences against parts of the body at different times. Accordingly, the Court will rule inadmissible the relevant evidence relating to the touching of the bottoms of the girls.

   [1](2004) 7 VR 375.

1. It follows that the Court will order, in due course, that tendency notice number two is disallowed in its entirety. With respect to tendency notice number four, items 1 and 2 are disallowed, but item 5 is allowed. Finally, coincidence notice number two is disallowed in its entirety.

1. Before turning to the final orders with respect to the tendency and coincidence notices affected, we turn to the second application, an application for severance.  In our view, there is no reasonable basis for severing the trials in all the circumstances of this case. This point was ultimately conceded by counsel for the applicant at the end of argument this morning.

1. Accordingly, the Court will order that: 

   1.   The applicantion for leave to appeal against the rulings in respect of tendency and co-incidence evidence made on 3 November 2010 is granted.

   2.   The appeal is allowed in part.

   3.   Tendency notice number two in its entirety is disallowed.

   4.   Tendency notice number four, items 1 and 2 are disallowed.

   5.   Coincidence notice number two is disallowed in its entirety.

   6. The Court grants to the appellant an indemnity certificate pursuant to s 15A(2)(a) of the Appeal Costs Act 1998 for the accused’s own costs of the appeal.