Jaensch v The Queen
[2000] WASCA 212
•11 AUGUST 2000
JAENSCH -v- THE QUEEN [2000] WASCA 212
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 212 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:141/1999 | 6 DECEMBER 1999 | |
| Coram: | KENNEDY J PIDGEON J ANDERSON J | 11/08/00 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against conviction refused Leave to appeal against sentence refused | ||
| PDF Version |
| Parties: | HANS ANTON JAENSCH THE QUEEN |
Catchwords: | Criminal law and procedure Sexual offences Admissibility of relationship evidence Whether prejudice outweighing probative value Adequacy of directions of trial Judge Whether verdict unsafe or unsatisfactory Criminal law and procedure Sentencing Unlawful and indecent assault on a girl aged 10-1/2 or 11 years Oral sex Applicant the step-father of the child Sentence of 3 years not set aside |
Legislation: | Nil |
Case References: | Edwards v The Queen (1993) 178 CLR 193 Gipp v The Queen (1998) 72 ALJR 1012 Hardingham v R, unreported; CCA SCt of WA; Library No 940105C; 3 March 1994 Jones v The Queen (1997) 191 CLR 439 Kahn v The Queen [1971] WAR 44 M v The Queen (1994) 181 CLR 487 Pfennig v The Queen (1995) 182 CLR 461 R v FJB [1999] 2 VR 425 R v Mills [1986] 1 Qd R 77 R v Pearce (1999) 108 A Crim R 580 B v The Queen (1992) 175 CLR 599 Bellissimo v The Queen, unreported; CCA SCt of WA; Library No 950457; 30 August 1995 Broadhurst v The Queen [1964] 1 All ER 111 Cleland v The Queen (1982) 151 CLR 1 Davies & Cody v The King (1937) 57 CLR 170 Director of Public Prosecutions v Kilbourne [1973] AC 729 Doney v The Queen (1990) 171 CLR 207 Freshwater v The Queen, unreported; CCA SCt of WA; Library No 940386; 28 July 1994 Gill v The Queen [1999] WASCA 68 Honeybone v The Queen, unreported; CCA SCt of WA; Library No 950224; 10 May 1995 Huynh v The Queen [1999] WASCA 45 Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996 K v R, unreported; CCA SCt of WA; Library No 980276; 22 May 1998 Kailis v The Queen [1999] WASCA 29 Leary v The Queen [1975] WAR 133 Longman v The Queen (1989) 168 CLR 79 Nguyen v The Queen [1999] WASCA 192 Petty v The Queen (1994) 13 WAR 372 R v Ball [1911] AC 47 R v Baskerville [1916] 2 KB 658 R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999 R v Erdei [1998] 2 VR 606 R v Fordham (1997) 98 A Crim R 359 R v Frawley (1993) 69 A Crim R 208 R v GP (1997) 18 WAR 196 R v Jenyns (1981) 3 A Crim R 243 R v Liddington (1997) 18 WAR 394 R v M (1998) 104 A Crim R 154 R v MacKay [1985] VR 623 R v Pelham (1995) 82 A Crim R 455 R v Podirsky (1989) 43 A Crim R 404 R v Weng Keong Chan (1989) 38 A Crim R 337 R v Wilson, unreported; CCA SCt of WA; Library No 950258; 26 May 1995 R v Witham [1962] Qd R 49 Spiers v The Queen [1999] WASCA 206 Wilson v The Queen (1970) 123 CLR 334 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : JAENSCH -v- THE QUEEN [2000] WASCA 212 CORAM : KENNEDY J
- PIDGEON J
ANDERSON J
- CCA 142 of 1999
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sexual offences - Admissibility of relationship evidence - Whether prejudice outweighing probative value - Adequacy of directions of trial Judge - Whether verdict unsafe or unsatisfactory
Criminal law and procedure - Sentencing - Unlawful and indecent assault on a girl aged 10-1/2 or 11 years - Oral sex - Applicant the step-father of the child - Sentence of 3 years not set aside
Legislation:
Nil
(Page 2)
Result:
Leave to appeal against conviction refused
Leave to appeal against sentence refused
Representation:
Counsel:
Applicant : Mr R G W Bayly
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Bayly & O'Brien
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
Gipp v The Queen (1998) 72 ALJR 1012
Hardingham v R, unreported; CCA SCt of WA; Library No 940105C; 3 March 1994
Jones v The Queen (1997) 191 CLR 439
Kahn v The Queen [1971] WAR 44
M v The Queen (1994) 181 CLR 487
Pfennig v The Queen (1995) 182 CLR 461
R v FJB [1999] 2 VR 425
R v Mills [1986] 1 Qd R 77
R v Pearce (1999) 108 A Crim R 580
Case(s) also cited:
B v The Queen (1992) 175 CLR 599
Bellissimo v The Queen, unreported; CCA SCt of WA; Library No 950457; 30 August 1995
Broadhurst v The Queen [1964] 1 All ER 111
Cleland v The Queen (1982) 151 CLR 1
Davies & Cody v The King (1937) 57 CLR 170
(Page 3)
Director of Public Prosecutions v Kilbourne [1973] AC 729
Doney v The Queen (1990) 171 CLR 207
Freshwater v The Queen, unreported; CCA SCt of WA; Library No 940386; 28 July 1994
Gill v The Queen [1999] WASCA 68
Honeybone v The Queen, unreported; CCA SCt of WA; Library No 950224; 10 May 1995
Huynh v The Queen [1999] WASCA 45
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
K v R, unreported; CCA SCt of WA; Library No 980276; 22 May 1998
Kailis v The Queen [1999] WASCA 29
Leary v The Queen [1975] WAR 133
Longman v The Queen (1989) 168 CLR 79
Nguyen v The Queen [1999] WASCA 192
Petty v The Queen (1994) 13 WAR 372
R v Ball [1911] AC 47
R v Baskerville [1916] 2 KB 658
R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999
R v Erdei [1998] 2 VR 606
R v Fordham (1997) 98 A Crim R 359
R v Frawley (1993) 69 A Crim R 208
R v GP (1997) 18 WAR 196
R v Jenyns (1981) 3 A Crim R 243
R v Liddington (1997) 18 WAR 394
R v M (1998) 104 A Crim R 154
R v MacKay [1985] VR 623
R v Pelham (1995) 82 A Crim R 455
R v Podirsky (1989) 43 A Crim R 404
R v Weng Keong Chan (1989) 38 A Crim R 337
R v Wilson, unreported; CCA SCt of WA; Library No 950258; 26 May 1995
R v Witham [1962] Qd R 49
Spiers v The Queen [1999] WASCA 206
Wilson v The Queen (1970) 123 CLR 334
(Page 4)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Pidgeon and Anderson JJ, with which I am generally in agreement.
2 Relationship evidence continues to present problems in the trial of sexual offences and full and careful directions are necessary when such evidence is admitted as to the purpose for which it may be used by the jury, particularly when it concerns uncharged criminal acts, for the reason that it can be highly prejudicial to an accused - see, for example, R v FJB [1999] 2 VR 425, and see also R v Pearce (1999) 108 A Crim R 580, per Tadgell J at 589 - 591. On some occasions, it may appear that the prosecution is seeking to have admitted more of this type of evidence than is necessary or desirable. However, as McPherson J pointed out in R v Mills [1986] 1 Qd R 77, at 85: "A "relationship" between two persons is ordinarily capable of being established only by evidence of a series of acts between those persons".
3 In the application for leave to appeal against the applicant's conviction, the grounds of appeal, with one exception, relate to the admissibility of the relationship evidence and not to the directions given to the jury by the learned trial Judge. The one exception relates to the evidence of the applicant having provided the complainant with alcohol and cannabis.
4 As to this ground, there does, with respect, appear to me to be some lack of clarity in the relevant direction. Her Honour dealt first with the evidence of an inappropriate sexual interest on the part of the applicant in the complainant. That evidence, if accepted, revealed a quite abnormal interest of the applicant in the complainant's body and in her sexuality. Her Honour correctly instructed the jury that they could not use this evidence as evidence simply prejudicial to the applicant or as showing some propensity on his part. She then went on to deal with what she termed relationship evidence, which included evidence of the provision to the complainant and her friends of alcohol and, later, cannabis, and she instructed them that the evidence could only be used in considering the relationship between the applicant and the complainant and whether the applicant treated her more as a partner or a sexual partner than as a step-daughter. She added: "If you find he did do that, then it's a matter that you may find assists you in considering whether these offences in fact were committed". However, she then went on to instruct the jury that, particularly with respect to the provision of the cannabis and the alcohol, it was important that the jury should not rely upon that evidence as simply prejudicial. She said that it had only been brought before them as
(Page 5)
- evidence of the relationship, the Crown suggesting that a man who would share cannabis, for example, with his step-daughter and her girl friends is a man who is acting like a partner to her and not as an appropriate step-father. This evidence was also relevant in the jury's consideration of why the complainant had chosen to live with her step-father who was of mature years and who, it was alleged, had committed immoral acts with her in his home without her consent. There was evidence that no complaint had been made by her. She chose to return to live with the applicant after moving out of what had been her home and living with her natural mother for a relatively brief time.
5 The jury were entitled to know what had been taking place in the step-father's home in considering the complainant's evidence. It was quite clear that this was a significant issue in the trial. It was, I have concluded, made clear to the jury that they could not use this evidence as evidence of propensity. That the jury paid heed to her Honour's direction is demonstrated, as Anderson J has pointed out, by their verdicts of not guilty on the second and third counts, both of which required the prosecution to establish an absence of consent on the part of the complainant.
6 Although I would grant leave to appeal, I would dismiss the applicant's appeal against his conviction. I agree that leave to appeal against the sentence should be dismissed for the reasons given by Pidgeon J.
7 PIDGEON J: On 14 June 1999 and on the days following, the applicant stood trial before her Honour Judge Yeats and a jury on an indictment specifying three offences against his stepdaughter which were alleged to have occurred some 11 - 14 years earlier. The first count alleged that between 25 May 1983 and 2 December 1984 he unlawfully and indecently dealt with this stepdaughter, a girl under the age of 13 years. He was found guilty by the jury on this count. The offences in the remaining two counts were of unlawful and indecent assault which were alleged to have occurred between 13 October 1987 and 1 November 1988. He was acquitted on these two counts.
8 He is appealing on a number of grounds. The first ground claims that evidence which the prosecution purported to lead under the heading of relationship ought not to have been admitted. The second ground claims that the conviction is unsafe both by reason of the acquittal on two of the counts together with other factors referred to. The remaining grounds relate to directions given by her Honour to the jury which I shall set out in greater detail when examining these grounds.
(Page 6)
9 The applicant was born in Germany in 1949. In 1973 at the age of 24 he emigrated to Australia. He came as a single man and settled here. He returned to Germany on vacation for a short time in 1978. In March 1980 his father died in Germany and the applicant returned home to be with the family for that month. It was on this occasion that he met his wife. When they met she had two children, the complainant who had been born on 1 November 1972 and who was then aged eight and a younger sister then aged five. They agreed to marry. The applicant returned to Australia later in March 1980. His fiancée and her two children arrived in Australia on 17 June 1980 and they were married on 28 June 1980. A daughter was born to them in the following year.
10 The family lived, initially, in Mt Newman but returned to Perth and from November 1981 until December 1985 lived in a house at Padbury. On 25 May 1983 the applicant obtained a Renault motor car. The complainant said the first offence occurred during the time they were at the house in Padbury and the indictment alleges it is over the period between when the car was obtained and when they left the house in December 1985. The applicant, on the other hand, said nothing of that type had ever occurred. It was during this time that difficulties arose in respect of the marriage. The wife was dysfunctional. She started to drink alcohol to excess and was interested in another man. The applicant said that he left the house in Padbury for a period and this occurred around about the date of his wife's birthday, 20 September 1983. He said that arrangements were subsequently made for marriage guidance counselling and he agreed to return home. The applicant said that he left again on 26 December 1984. He returned on 6 June 1985 and he said that his wife then left the home and went to live elsewhere. On 25 June 1985 the Family Court made an interim custody order granting the applicant custody of the three children. Following this order they resided with the applicant in the Padbury house. On 10 December 1985 the applicant and the children moved to a house in Glenanga Way, Craigie where they stayed for almost two years. By a final order dated 21 April 1986 the applicant was granted sole guardianship and custody of the three children and his wife was granted access. Shortly after that the complainant's younger sister returned to live with the mother leaving the complainant and the youngest child living with the applicant. On 13 October 1987, the applicant and the two children living with him moved to a house in Chadbourne Street, Craigie where they remained until March 1989. It is during this period at this house that it was alleged that the other two offences in the indictment took place. In March 1989 they moved to a
(Page 7)
- house in Yanchep where the applicant stayed until 28 December 1993. In 1988 the applicant and his wife were divorced and the children remained with the applicant. The complainant left home in 1991.
11 The offence referred to in the first count was alleged to have occurred when the family was living in Padbury prior to the wife finally leaving home. The complainant said that she recalled driving home in the Renault car at a time she believed was night. Her mother was not present and she did not know where her sister was. She said that in the car the applicant asked her if she knew what an orgasm was. She said she did not know what that meant and replied no. She said that he replied, "Would you like me to show you" and her reply was, "Yeah sure." She said they returned home and her next memory was that she was sitting on the bed in the master bedroom with no underpants on and nothing on below her waist. She said the applicant was standing in front of her and there was no-one else in the room. She does not remember anything being said, but she remembers lying down on the bed. She said the applicant came towards her and put his mouth on her genitals. She said that his mouth was over her vagina and that he had inserted his tongue into her vagina.
12 The applicant in her deposition said that when they were in the motor vehicle they were coming back from visiting her mother in hospital. In her evidence before the jury, she said she did not know where they were returning from and indicated it was a time when her mother was not at home. This inconsistency is the subject of a later ground of appeal and arises by reason of the defence ascertaining that the mother was not in hospital any time that could be associated with this incident.
13 The complainant said in evidence that this was not the only incident and she said the next time it occurred was in the house in Chadstone Street, Craigie. They were in this house between October 1987 and March 1989. The complainant said the incident occurred in her bedroom and only the applicant and she were present. She thought that her younger sister was living with her mother but she said that the youngest child must have been in the house. The complainant said that she and the applicant were alone in the bedroom and he started a conversation about her being trustworthy and not going out with boys. She said that the applicant remained in the room and put his hand under the bed covers. He moved his fingers towards her vagina and touched the outside of the vagina. She froze and wriggled away. She said she tried to wriggle away and pretended to be asleep. This allegation became the subject of the second count. She admitted in cross-examination that she could have been wrong about the actual house.
(Page 8)
14 The incident the subject of the third count occurred at a later time in the Chadstone Street house. She said that the applicant was out and she was sleeping in the applicant's bed. She was asked why she slept in his bed and replied, "I don't know - to hold on to a bit of security, I suppose, being alone at night, being scared, you know, that safe feeling of sleeping in your parents' bed." When she awoke, the applicant was in bed with her. She did not remember how he came to be in her bed. She said his left hand was on her genitals and she did not know what to do. She tried to move away and she said that he "begged me and said 'please'." She said he tried to touch her clitoris. She demonstrated how he did this. She was asked what he was doing with the other hand and she replied, "I believe he was masturbating." She said the incidents described were the ones most clear in her mind, but she added, "I do believe there were other times that I don't remember as clearly." The applicant in his evidence denied each of the specific incidents and said that at no time was there any inappropriate behaviour or touching. He said that he had difficulty in managing the complainant and objected to some of the company she was keeping as the persons were involved in criminal activity.
15 The first ground of appeal relates to the type of evidence her Honour admitted as being relevant to the relationship between the applicant and the complainant. I shall outline the general nature of the evidence which was led at the trial and I shall then refer to the particulars of this ground which set out the specific evidence the subject of the ground. The complainant, in her evidence, said that the acts that were made the subject of the three counts were the acts she clearly remembered, but there were a number of other acts of a similar type which she could not remember in detail and which she has tried to put out of her mind. She said that in the second house in which they lived in Craigie, namely the Chadstone Road house, when she was about 15 she recalled an argument with the applicant "about me not wanting him to touch me". She then referred to a number of further matters which were the subject of objection. Her Honour ruled some of the evidence inadmissible but admitted the evidence the subject of the ground of appeal. The applicant said in the evidence which was allowed in at the trial that when they were in the Padbury house, this being the house where the first offence was alleged to have occurred, there was a pool and that usually the children were not allowed to wear anything in the pool. She said that when she was younger it did not concern her because "we all did it as a family and didn't really worry me because it was something that had always been done". She said it became a problem when she reached puberty at about the age of 12 as she wanted to wear clothing. She said the applicant ridiculed her and made her feel
(Page 9)
- abnormal for not wanting to be naked like everyone else and made her feel there was something wrong with her. She said she wanted to wear clothes as she was starting to develop and was shy. She said that she did not have privacy in the bathroom of any of the houses. She said the biggest memory she had was in a bathroom in Yanchep. They had moved to Yanchep in 1989 so this would be a year or so after the last alleged offence. She said that in the Yanchep bathroom he would "constantly walk in on me when I was having a shower". If she locked the door she would be ridiculed and he would say, "Why are you locking the door there is no need for you to lock the door - I am not a stranger." She referred to an incident in Padbury where she said the applicant would be sitting in the lounge and his dressing gown would fall open and his penis would be exposed and he would not bother covering it up. She said, "The picture is unfortunately embedded in my brain." She said originally she just tried to ignore him, but when she got older she started to say things like, "Would you please cover up" or "You're hanging out".
16 The complainant said she had her first period when she was 13. She said the applicant was quite excited about it and had a small celebration at which they drank champagne to celebrate her womanhood. She testified to a number of incidents of inappropriate behaviour and comments that one would not expect a father to say to his daughter. These included asking whether she was masturbating. He would, on her evidence, make most inappropriate comments about tissues with which she had been wiping herself. He indicated he was attracted to her. She said again that when she was younger she thought "that's what dads and daughters do - I trusted him. He always went on about the family unit and being together and how important family is and everything. I trusted him and I thought it was normal behaviour. I was not led to believe otherwise." As she grew older she realised it was inappropriate behaviour.
17 The area most strongly in contention is the decision of the trial Judge to admit evidence of how the applicant introduced the complainant and her friends to marijuana. She described, in particular, her 15th birthday party which would have occurred on or about 1 November 1987. They had moved into the Chadstone Street house in Craigie. It was at the time that the applicant had custody of her and it was about the time the offences in the second and third count were said to have occurred. She was allowed to invite a number of her young friends and the applicant supplied alcohol and marijuana. She said her friends brought some of the alcohol, but the applicant supplied much of the marijuana. About six friends were present at the birthday party. The applicant was with them in the kitchen "packing the bong" and they all then smoked the marijuana.
(Page 10)
- She said that some of her friends said, "Wow, he's cool, what a great dad you've got." She said there were similar gatherings after that. She said that she thought the first time she was introduced to marijuana was at an earlier time when she was alone with the applicant and a friend.
18 She said that he made many comments when she was developing. He once told her that she looked "hot". She said there were conversations regarding the sort of impact she would have on men and how much trouble she was going to have when she was older as men would be constantly after her. She said there were conversations that had sexual connotations all the time. She said that what she particularly remembered was that on a number of occasions whenever he would cook mushrooms, he said remarks to the effect that the texture of a mushroom is the same as a man's penis, "So how are you ever going to head?" She said she remembered clearly that being said in Yanchep, but that was not the first time. It had been said on a number of times previously. When she was putting on a pink bikini in the Chadstone Street house he said to her that she "looked hot and had a great body". Her evidence was to the effect that he encouraged her to dress up to look a lot older than she was and he would take her to restaurants. It was in this context that the restaurant "Hilite 33" became mentioned in the grounds of appeal.
19 The Crown called the complainant's younger sister who referred to a specific incident at the Padbury house relating to marshmallows. She said that the applicant, the complainant and herself were present. The youngest child, namely her half sister, had been born, but she did not think this child was present then. She saw the applicant and the complainant playing a game of chasey and the complainant, on her coming back, had a marshmallow quite high up in her crutch. She said that the applicant was later laughing and joking about it and she felt disgusted.
20 Evidence was given by a close school friend of the complainant who lived for a period in the second house at Craigie. The applicant, the complainant and the youngest child were staying there. The middle sister was with her mother. The witness stayed with the family for about five months. She shared a room with the complainant. Her evidence suggested the year this occurred was 1987 or possibly 1988. She said the applicant would give them alcohol and marijuana. She said that quite often they would smoke bucket bongs and become quite obliterated and at times the applicant would show them pornographic movies. The youngest child would be put to bed when these things occurred. She referred to the
(Page 11)
- applicant wearing a white robe and she inferred he was wearing nothing underneath and she said that at times she saw "more than I wanted to see".
21 The first ground of appeal claims the trial Judge erred in admitting evidence of this type and, as I mentioned the particulars set out specifically the evidence the subject of the ground. The particulars read:
"I That the applicant had supplied alcohol and drugs to the complainant and others.
II Photographs of the Applicant apparently smoking a bong which photographs were taken 7 years after the offence alleged in Count 1.
III That the Applicant had watched the Complainant shower several years after the offence alleged in Count 1.
IV That the Applicant had made sexually inappropriate comments to the Complainant several years after the offence alleged in Count 1.
V That the Applicant took the Complainant to Hilite 33 for dinner several years after the offence alleged in Count 1.
VI That the Applicant exposed himself whilst wearing a bath robe several years after the offence alleged in Count 1.
VII That the Applicant would not allow his daughters to wear bathers in the swimming pool.
VIIII That the Applicant had played a game which involved marshmallows being placed near the Complainant's vagina.
IX That the Applicant encouraged the Complainant and others to watch pornographic movies."
(Page 12)
23 Her Honour, in ruling that the remainder of the evidence was admissible referred to portions of the following passage from the reasons of Anderson J in Hardingham v R, unreported; CCA SCt of WA; Library No 940105C; 3 March 1994:
"Such evidence is most usually described as 'similar fact' evidence, although as to that see S v R (1989) 168 CLR 266 per Toohey J at 279 and R v TJW ex parte The Attorney- General (1988) 2 Qd R 456 per Thomas J at 458 where the accuracy of that categorisation was doubted. However it may be classified, it is evidence tending to show a propensity or predisposition on the part of the accused to commit the kind of offence charged. It is therefore highly prejudicial. It is nevertheless admissible, as an exception to the rule that evidence of predisposition should not be received, because it tends to prove more than mere propensity or predisposition; it tends to show the accused to be guilty of the crime charged for a reason other than that he has a propensity to commit acts of the kind. This has been explained in various ways. The probative value of the evidence has been said to reside in its tendency to reveal unnatural carnal attraction or abnormal lust in the accused for the complainant, which could be regarded by the jury as tending to prove the particular offence charged. R v Witham (1962)Qd R 49. In the same case it was said that evidence of similar acts committed upon the same complainant by the accused both before and after the act charged was admissible both on the principles relating to similar fact evidence and on the separate ground that it formed 'a chain of relevant circumstances' in which the act charged was 'only one link' so that to exclude the evidence would not give the 'full story' and would result in the evidence having a 'lopsided effect'. See per Brown J at 63 and Stable J at 77-80. Evidence of sexual contact on occasions other than the one the subject of the charge has been held admissible, in an incest case involving brother and sister, as tending to show the true relationship between the parties and as showing that their relationship involved a 'guilty passion' which greatly heightened the likelihood of the offence having occurred: R v Ball [1911] AC 47 . The evidence has been held to be admissible because the other acts and the charged act formed 'a continuous transaction' and provided an explanation for 'why she continued to submit to him and why he was able to commit his indecent acts upon her on the occasion charged': R v Etherington (1982)
(Page 13)
- 32 SASR 230 at 235. Evidence of other assaults has been admitted because all of the assaults were 'a connected series of events' and evidence of the other assaults enabled the case to be presented in 'an intelligible and real fashion': R v Garner (1963) 81 WN (Pt 1) (NSW) 120 at 123. Such evidence has been described as having probative value additional to proof of propensity or predisposition because it 'tends to prove why or how on the occasion in question, the offence occurred in the circumstances alleged': Harriman v R (1989) 167 CLR 590 per McHugh J at 631. And because it shows a 'special manner of living' from which 'an inference that the specific act took place might properly be drawn': Martin v Osborne (1936) 55 CLR 367 per Evatt J at 396."
24 Her honour then gave the following reasons for admitting evidence: (AB82)
"Now, having heard counsel at some length this morning and beginning to appreciate the nature not only of the crown case but of the defence case in this regard, it does seem to me that any evidence, whether it happened at Padbury, Craigie or Yanchep, which is evidence that shows an inappropriate relationship, of a sexual interest on the part of the accused, is admissible because of the reasons that were set out by Anderson J.
The crown is entitled to show - and some of that evidence will be at the same time as the alleged offences, others may be before or may be after that but because it's the same complainant and the same accused, it's one relationship and I don't consider the mere fact that any of these incidents happened at Yanchep and therefore were at least a year after the last offence disturbs the probative value of this evidence. Therefore, I would allow the evidence on page 8 and over onto page 9 in regard to that.
On pages 9 and 10 there are passages which relate to the complainant's evidence about the use of a bong and the accused - on her 15th birthday party, the accused providing a bong and passing it around among her friends, the fact that there was smoking - that he allowed her both to smoke pot, to drink alcoholic drinks and gave her cigarettes. Now, I accept that that evidence is prejudicial but it seems to me that that evidence is
(Page 14)
- probative of a number of different things and whether it occurred at Yanchep or it occurred earlier, it seems to me that it is part of the relationship between the accused and the complainant.
It is evidence again that does not seem to demonstrate a normal father-daughter relationship, but that will be a matter for the jury and would therefore be evidence that they could use in their deliberations when they're looking at the nature of the relationship between the complainant and the accused. There was also more evidence of that nature at page 11 where the complainant complains of being treated like a friend or adult rather than a daughter and the fact that his friends were allowed to smoke, drink and do drugs in the accused's presence.
I would consider that evidence is also admissible for the reasons I have just given. Also the evidence of the offender taking her to the Hilite 33 for dinner and treating her like a partner rather than a daughter is evidence that I do consider is admissible because it is relationship evidence, shows that they had what the jury would be entitled to consider could be an inappropriate sexual relationship and not an appropriate father-daughter relationship."
25 There would seem little argument that other acts of touching of a sexual nature would be admissible under the principles referred to. The submissions in the main were centred on the decision to admit into evidence the use of the bong at the applicant's 15th birthday party. It was submitted that this was unconnected with any acts of a sexual nature and that it was highly prejudicial. It was submitted that there was no logical connection between providing marijuana and alcohol to a daughter and sexually molesting her. I would see a risk of prejudice by reason of the jury having a view of a parent inviting other school friends to his house and instead of properly supervising the party, deliberately giving marijuana to school-children he was entrusted to supervise.
26 The first question that must be asked is whether the evidence was relevant and by reason of that, admissible. If it was not relevant and admissible then, amongst other things, it would be in contradiction of s 8 of the Evidence Act which contains a prohibition of evidence of bad character being led except in limited circumstances. Her Honour examined the question of relevancy in the reasons I have set out and reached the view that it was relevant as being part of the evidence to
(Page 15)
- establish a relationship which was not a normal father daughter relationship and confirmed the impression that the complainant was being treated as an adult partner, and her Honour considered that this was evidence of a relationship and was probative in the way she had set out from the reasons of Anderson J.
27 Normally evidence of this type would not be evidence of relationship. However, when one looks at the evidence in this particular case as a whole, a different picture emerges. When each piece of the jigsaw is put together there emerges a peculiar and abnormal relationship and I consider that the supplying of marijuana in the manner it was fits into that jigsaw and that the picture would be distorted by its exclusion. The picture suggests that the applicant, from the time the marriage was starting to disintegrate, was turning his attention to the complainant as a substitute. The first offence occurred at a time when the evidence shows the wife was away from home drinking heavily and interested in another man. The abnormal behaviour as outlined by the complainant showed a continuous development from that time. The fact that the relationship was an unusual one becomes evident from the first improper conversation that occurred around about the time of the first offence, namely whether she had had an orgasm. There was then a continuity of conduct showing relationship. Some of the alleged incidents refer to the Padbury house. The evidence contained an explanation as to why the complainant continued to live with the applicant despite the conduct alleged. The evidence is probative in this area and contains an explanation as to why the alleged offences occurred. I consider therefore, that her Honour was correct to rule that the evidence was admissible.
28 The next question which arises is whether her Honour ought to have excluded the evidence in her discretion on the basis that its prejudicial value outweighed its probative value. If the evidence was of only marginal probative value, then that would be a ground to exercise the discretion. It is apparent from her reasons that her Honour saw the evidence as significantly probative and with that I agree. The picture would be a distorted one if the evidence was excluded. Her Honour appreciated the prejudice and it is also apparent that she considered that this could be dealt with by giving a warning to the jury about being prejudiced in respect of the providing of cannabis. It would be inconceivable to me that, in these circumstances, an Australian jury would convict an accused person of an offence as serious as molesting his stepdaughter if they did not think he did it, but considered that there should be a conviction by reason of his supplying mmarijuana in the way he did. The fact that the jury acquitted the applicant on the two later
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- charges, particularly those charges which were alleged to have occurred at the time the marijuana was supplied, is indicative that the jury did not let prejudices of the type expected to arise from the supply of drugs to affect their judgment. I do not consider her Honour's discretion miscarried in not excluding the evidence and the jury's verdict is a further indication that the trial did not miscarry by reason of the evidence being before the jury.
29 The submissions on behalf of the applicant were also mounted on the basis that much of the evidence related to the two charges on which there were acquittals. This evidence was far removed in time from the first charge on which there was the conviction. An argument of this type overlaps the next ground as to whether the conviction on the first count is unsafe by reason of there being evidence not admissible on the first count being before the jury. I consider that there are two answers. The first is a repetition of what I earlier said, that I do not consider a jury would be as perverse as to convict a person on one count by reason of such person supplying marijuana in the way I have indicated. The next answer is that I consider it did have relevance to the first count because, on the complainant's evidence, the abnormal relationship commenced at about the time of the first count and developed in the manner outlined.
30 I have dealt specifically with the question of marijuana by reason of the prejudice that it could have. I consider that the remaining evidence referred to in the first ground of appeal is evidence of relationship for the reasons set out by Anderson J in the passage her Honour quoted and for the reasons stated by her Honour.
31 These reasons also deal with the first paragraph of ground 5 which claims that her Honour erred in directing that the evidence relating to cannabis and alcohol was evidence of relationship. I consider the evidence is in this category particularly in the context that her Honour gave the direction.
32 Particular II referred to two photographs taken three years later at the complainant's 18th birthday party which would have been in November 1990, some two or three years after the last alleged offence. One photograph shows the applicant smoking a bong. He is in a group which includes the complainant. The other shows the complainant using the bong. The Crown initially sought to produce these photographs on the basis that it was confirmation that what the complainant was saying was in fact true. Her Honour ruled that they would not be admissible in
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- evidence in chief, but indicated the matter may change by reason of a cross-examination.
33 In cross-examination it was suggested that she, on her own account, was having parties involving marijuana and there were disagreements between her and the applicant relating to her using drugs. She was asked whether she would agree that during 1988 he did not want her to take alcohol and did not want her to smoke marijuana. It was put to her that during 1988 and 1989 he wanted her to study hard to get good results for her TEE. She was later cross examined about her fifteenth birthday party on the basis that carried the implication that the applicant ever introduced her to marijuana.
34 Her Honour ruled:
"I have listened to the flavour of the cross-examination and the emphasis of the cross-examination and given the specific question I think the photographs are now admissible. I accept that they are prejudicial but I consider they have strong probative value and I will allow them."
35 I consider the nature of the cross-examination in these areas made the photographs relevant. The cross-examination suggested that the applicant was opposed to her using drugs and that she was not speaking the truth when she said that he was the one that introduced her to it.
36 The applicant's answer, in his evidence-in-chief, was that he was an ardent advocate against drugs and always had been. He was at the forefront of fighting against them. He assisted in the sponsorship of the United Nations International Day Against Drug Abuse and Illicit Trafficking which occurred on 26 June 1999. He produced a pamphlet bearing his name advertising this function. His explanation in respect of his being photographed with a bong was that it occurred on one of his birthday parties and not on the applicant's 18th birthday. He said the bong was found by accident on the road near the party and as a joke it was passed around cold with no cannabis ever being smoked from it.
37 The second ground claims that the verdict of conviction on count 1 is unsafe and unsatisfactory. The test to be applied was formulated by the High Court in M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. There are five reasons contained in the particulars to support this ground. The first is that the verdict of guilty on the first count is inconsistent with the verdict not guilty on the two other counts. Jones v The Queen was a case of where the appellant was found
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- not guilty on one of three counts. In that case it was considered that the finding of not guilty on the one count damaged the complainant's credibility in respect of the other two counts. I do not consider that is the situation in the present case. The complainant could remember with greater clarity the circumstances surrounding the offence in the first indictment. Additionally, there is a further important factor. The trial Judge directed that consent was not an issue in respect of the first count, but absence of consent was required to be established in respect of the other two counts. The jury, in all the circumstances, could well have had a doubt as to whether there was an absence of consent in respect of those two counts.
38 The second particular claims that the evidence of the complainant was inconsistent with the Crown's opening address. It was said in opening that prior to the first offence occurring the applicant was in a motor car being driven from her mother in hospital, whereas her evidence-in-chief was that she was driving home from somewhere and could not recall where she had been. This inconsistency of itself could not possibly impugn the trial, but it is tied up with the next alleged inconsistency and that was, the complainant did say in her statement to the police that the first offence occurred at a time when her mother was in hospital. The defence was able to establish that the only time the complainant's mother was in hospital was at a time when the applicant did not own a Renault and was beyond the dates alleged in the indictment. In my view, a mistake on a matter of that type when a complainant is giving evidence some years after the event is not of sufficient significance to impugn the trial. The inconsistency was before the jury and it is a matter for the jury to weigh up and give what weight they think fit to it.
39 The remaining two particulars relate to the applicant's decision to remain with the father rather than her natural mother. The first specific reference was to the fact that not long after the first offence occurred, the complainant spoke to her Family Court counsellor and indicated her wish to remain with the father. The complainant gave an explanation for this decision. She believed as a result of what her father had told her that her mother did not want her. She also said that originally, when her father started talking to her in the way he did and doing what he did, she thought it was a natural thing between father and daughter. Later, as she grew older, she realised it was wrong. These are matters for the jury to weigh up in deciding whether or not to accept the testimony and are no more than a factor for the jury to take into account.
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40 Much of the evidence referred to in ground 2 was led for the purposes of explaining why she chose to remain with her father and that an unusual and unnatural relationship had developed.
41 I do not consider any of the matters referred to in the third ground, either of themselves or in combination, make the verdict unsafe or unsatisfactory.
42 Ground 3 reads:
"3. The trial Judge having directed the jury that it would be dangerous to convict the applicant on count 1 on the uncorroborated evidence of the complainant failed to direct the jury as to the meaning of the term corroboration and failed to direct the jury as to what could or could not constitute corroboration."
43 Her Honour, when initially summing up to the jury, gave a Longman direction in the following terms. She explained the reason for it, namely the delay and problems with the complainant's memory. She said: (AB426)
"For these reasons, before you act upon the complainant's evidence you must scrutinise her evidence with particular care and you must look for supporting evidence. There has been a body of evidence led by the crown about what is suggested to be support; that is, evidence of an inappropriate sexual interest on the part of the accused in this girl who was at the time his stepdaughter. You will need to consider that evidence very carefully.
It includes the evidence about not wearing bathers when you're swimming and the evidence about the accused laughing about marshmallows. It includes the complainant's evidence that the accused spoke to her about her experience of an orgasm at what you may find to have been a very young age, 10 and a half or 11. It includes discussions which the complainant alleged took place about mushrooms and about masturbation. It includes the evidence about the celebration of the complainant having her first period, if you accept that evidence.
It includes the evidence about the complainant and her sister Christie and Sharon Allfrey, of the accused looking at the complainant while she was showering and exposing himself
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- when he was wearing his bathrobe. It includes the complainant's evidence of the accused looking at her on that occasion when she was lying naked on her bed and it includes the evidence of Christie and Sharon Allfrey about the accused coming in to wake the complainant in the morning when she was sleeping in her nightie without underpants on and the accused pulling the covers up off her feet and legs and touching or being inappropriately close to her bottom."
44 After the jury retired her Honour was requested to give a stronger Longman direction and to refer to the danger of conviction. Her Honour acceded to this request and gave the following further direction: (AB445)
"Now, ladies and gentlemen, in my direction to you I said this - I spoke to you about the circumstance of the long passage of time and the effect that that may have had on the complainant's memory. I told you that experience had shown that human recollection, especially of events that happened during childhood, can be faulty and liable to error and distortion, and then I talked about the problems with count 1 and count 2 and the problems that were obvious in relation to the memory of this complainant.
Now, because of the length of time and the discrepancies in the complainant's evidence, particularly in counts 1 and 2, I direct you that it would be dangerous to convict on the uncorroborated evidence of the complainant and that is why, when I directed you before, I directed you that you must scrutinise the complainant's evidence with considerable care before you act on it, so I think you appreciate that, ladies and gentlemen."
45 If a Judge informs the jury that the evidence is uncorroborated and by reason of that it would be dangerous to convict on it, there would be no need to explain what at law amounts to corroboration. It would be clear to the jury from the words used what the Judge meant. If the jury are being required to determine whether there is in fact corroborating evidence, then it is necessary to give the type of direction referred to in Kahn v The Queen [1971] WAR 44 as the jury must know that they are to look for a limited type of evidence, namely evidence independent of the complainant and implicating the accused person. In that case the jury were told that it would be dangerous to act on the evidence "without its being in some way corroborated by other circumstances…". In the present case, when her Honour referred to uncorroborated evidence, she followed it
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- immediately by saying, "and that is why, when I directed you before, I directed that you must scrutinise the complainant's evidence with considerable care etc." It is clear from the context of those remarks that her Honour was telling the jury that the evidence was uncorroborated and that is why they must carry out the exercise. Earlier her Honour had been addressing the jury on the basis that the evidence was not corroborated.
46 The fourth ground claims that the trial Judge failed to direct the jury fairly because, upon re-directing the jury, she informed them that some of the redirections were at the request of defence counsel. I do not consider on the facts of this case that the re-direction was in any way undermined by the reference made to the defence. Her Honour gave a reason why she mentioned it was for the defence. She said: (AB443)
"The reason I mention that they are mentioned by the defence is that if you take these now, as you are going to, in isolation it will seem very lopsided. They have to be read in conjunction with what I said before but there are points that Mr Bayly says that I did not make that he would want me to make. I am willing to do that because I do not want the defence case to be lost to you even though I think he put it quite well. The first matter was in relation to count 1 and just to remind you that the defence alleges that the complainant did not make a mistake about whether or not they were coming back from hospital. The defence alleges that she actually lied to you on her oath."
47 The next direction was to read out at length some cross-examination in respect to count 2. Her Honour concluded with the stronger Longman direction, but I do not consider she indicated that it was the defence who asked for this direction. In my view her Honour's direction was balanced and fairly put the defence case at some length; and there would be no question that what was said by her Honour had the force of judicial authority and was not merely a repetition of what the defence wanted put.
48 The final ground to consider claims that the trial Judge erred in directing the jury that if the applicant lied about the photos of himself apparently smoking a bong, then his evidence as a whole could be rejected. I shall set out the context of her Honour's address in this area. She explained to the jury how they were to use the relationship evidence and she continued (AB428):
"Now, particularly with the cannabis and the alcohol, ladies and gentlemen, it's important that you don't simply rely on any
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- evidence you may find about cannabis and alcohol as simply prejudicial to the accused or to the complainant. I don't know the attitude of everyone on the jury toward these substances. One is an illegal drug, one is a legal drug. Both are illegal for children. So you may have very strong views about this drug. It has only been brought before you as evidence of the relationship, and the crown suggests that a man who would share cannabis, for example, with his daughter and her girlfriends is a man who was acting like a partner to her and not as an appropriate father.
So far as the photographs are concerned, there is another use you could make of them, depending on how you assess them. You judge - you look at the photographs. You have heard the complainant's evidence that it was a party and that the - she used the bong, and you see her using the bong, having cannabis, and that her father had cannabis as well. Her evidence right through the trial was that he had a stash of cannabis and he would share it with them.
Now, he has completely denied that and in fact led evidence that he's a campaigner against drug use. So you have a photograph of him, he explained that he just found that bong on the table that night and that they were mucking around posing when the photos were taken. The crown suggests that he's simply lying about that and that he was smoking cannabis that night and that you have evidence of that, and you should use that on issues of credibility. In other words, if he would lie to you about that, that you shouldn't accept his evidence."
49 It is clear that her Honour was making this statement in the context of how the evidence could be used in the way the Crown saw it. She was putting it as part of the Crown case before she moved to the defence case. She made it clear it was entirely up to the jury. It was open to make the remarks in the context she made them and I would see the address as being a balanced one. Lies were being used exclusively in the context of credibility in the way outlined by her Honour and it was not at any time suggested that the telling of a lie was being relied on to prove guilt. For that reason the case of Edwards v The Queen (1993) 178 CLR 193 referred to on behalf of the applicant would have no application.
50 I would refuse leave against conviction.
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APPEAL AGAINST SENTENCE
51 Her Honour imposed a sentence of 3 years imprisonment. Her remarks on sentence were: (AB454)
"You have now been convicted after trial by jury of one count of indecent dealing with a child under the age of 13 years. It's a very serious offence under the laws of Western Australia and brought liability to 7 years' imprisonment. That's the maximum sentence.
The offence occurred at the time when the girl Andrea was your stepchild living in a family with you and her mother, her sister and another child of both you and the mother. The offence occurred when you were living at a house in Padbury. The circumstances of the offence that I have heard in this trial are particularly serious. We know from the trial itself that your wife at that time, the girl's mother, had come from Germany with her children, had come here to marry you, and that the mother was dysfunctional, if I can put it, during this period. We have had evidence of her overtaking of alcohol and problems that she was having personally.
We don't have specific details on the particular night in question but we know she wasn't there and you were driving the girl in your car. On this occasion you spoke to her about whether she had ever experienced an orgasm. She was shocked at this. I have seen her give her evidence and clearly it brought back to her the shock she felt when you said that to her on that occasion. Once that happened, when she got home she found herself on your bed in your bedroom, your wife wasn't there, and you performed oral sex on her. At the time she was only 10 and a half or 11 years old.
Oral sex of a child that young is a very serious matter. We have many indecent dealings that come before this court where an isolated touching, an isolated act of that nature, may well be minor enough that it could be dealt with without a period of imprisonment. This is not such an offence in my view. You're now a 50-year-old man. You have no previous convictions. I understand that you undertake an amount of community work
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- and are the convenor of the political human rights organisation of the United Nations in Western Australia.
I also understood that you have been employed and supported your family over many years and I know that you're now a chef by trade, and also have worked as a taxi driver. I do sentence on the basis that this is one thing that happened. I take no account of the other two charges. You have been acquitted of those and I do not take any account of those. I know that this offence occurred over 14 years ago and you are a person who has taken responsibility for these children and looked after them for a long period in your life and I give you credit for all those things. Unfortunately when one deals with a young girl as you have done, it seems to me it is such a breach of trust and so serious.
You have shown no remorse. There's nothing I can find that mitigates it. The nature of the offence itself is so serious that the only appropriate sentence I find is one of imprisonment. The maximum sentence for this offence is one of 7 years' imprisonment. I don't consider that you deserve anything near the maximum, although there's a basis on which one could reach that view, because it would seem to me oral sex or cunnilingus with a girl of this year is a more serious example of indecent dealing. You're sentenced to 3 years' imprisonment. I order that you be eligible for parole."
52 The grounds of appeal against sentence are concise and read: (AB7)
"1. The term of 3 years imprisonment with parole was having regard to all the circumstances manifestly excessive having regard to:
A) The applicant's antecedents and prior good record.
B) The fact that the applicant cared for and supported the complainant at her request for many years after the office [sic].
2. The learned trial Judge in sentencing the applicant to imprisonment erred in finding:
a) that the applicant had committed oral sex when the conviction was of Indecent Dealing.
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b) that immediate imprisonment was the only appropriate penalty."
53 The main thrust of the argument is that having regard to the antecedents of the applicant, who had no previous convictions, and the length of time since the commission of the offence, imprisonment was not the only option available to the sentencing Judge. Reference is also made to the fact that the applicant, at the request of the complainant, was the principal care giver of the family for a period of 7 years.
54 The section of the Criminal Code existing at the time the offence was committed (s 189(i)(ii)) provided that any person who unlawfully and indecently deals with a child under the age of 18 years is guilty of a crime and is liable to imprisonment for a period of 7 years. Oral sex is a form of indecent dealing. This is what the complainant alleged took place and it was accordingly open to her Honour to refer to it. Her Honour made clear in her sentencing remarks that she was sentencing for indecent dealing, but made it clear that she considered that the form it took was oral sex. It was open to her on the evidence she heard to reach this view. The fact that it took this form makes it more serious than other forms of indecent dealing. When one has regard to the actual age of the complainant at the time, it was open and proper for her Honour to reach the view she expressed in respect of the seriousness of the offence. The applicant was a person seen in the community as being of good character. This is, however, negated to a large extent by the evidence of inappropriate conduct that was before her Honour, but which did not amount to the offences charged. I would refer in particular to a guardian of a child supplying marijuana and in engaging in the conversations referred to. By reason of this it was open to her Honour to say that this was not an act that could be regarded in isolation. I do not consider her Honour's discretion miscarried in imposing a term of imprisonment or in the length of the term imposed.
55 I would refuse leave to appeal against the conviction and sentence.
56 ANDERSON J: I have had the advantage of reading in draft the judgment of Pidgeon J and I agree that this application for leave to appeal against conviction and sentence must be dismissed, for the reasons given by Pidgeon J. I wish only to add some comments concerning the admissibility of certain background evidence which was admitted at trial.
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57 At the time of trial, the complainant was of the age of 26, having been born in Germany in November 1972. The applicant had met the complainant's mother in Germany, when the complainant was seven or eight. There was another daughter some three years younger than the complainant. The applicant and the complainant's mother were married in Western Australia in 1980 and there is a daughter of that marriage, born in 1981.
58 The marriage ran into difficulties and the applicant left the matrimonial home in December 1984. His wife remained in the matrimonial home, caring for the three girls. However, it would appear that she became incapable of looking after the girls. The applicant returned to the matrimonial home in June 1985, when his wife moved out. Shortly afterwards, the applicant obtained a custody order with respect to the three girls. Some time in the first half of 1986, the youngest girl, that is, the child of the marriage, moved out to live with her mother. The complainant and her sister continued to live with the applicant until 1991. In February or March of that year, the complainant left home, she having just turned 18.
59 The indictment contained three counts, the first being a count of unlawful and indecent dealing and the second and third being counts of unlawful and indecent assault. The offence charged in the first count is alleged to have occurred some time between May 1983 and December 1984, when the complainant was 10 or 12 and before the applicant and his wife had separated. The applicant was convicted of that offence. The second and third counts charge offences alleged to have occurred between 13 October 1987 and 1 November 1988, when the complainant was 14 or 15. The applicant was acquitted of those offences.
60 The direct evidence given by the complainant with respect to the offences is set out in the judgment of Pidgeon J and there is no need to set it out in this judgment. At trial, the Crown was allowed to lead evidence of other conduct on the part of the applicant towards or involving the complainant, which was not the subject of any charge in the indictment. Some of this conduct was of a sexual nature and some of it was not. By the first ground of appeal it is pleaded that:
"The Trial Judge allowed into evidence, over objection by the Defence, evidence which was of no probative value and was very prejudicial to the Applicant."
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61 Nine separate matters of evidence are complained of. They are set out in the form of particulars and it will be convenient to deal with them one at a time.
"I.That the applicant had supplied alcohol and drugs to the Complainant and others."
62 The Crown led evidence from the complainant, and from one of the complainant's friends, on this subject. The complainant gave evidence that she had many school friends and there would often be social activities at the house where she was living with the applicant. Her evidence was to the effect that, on the occasion of her 15th birthday party, she was allowed to invite friends to the house and she and her friends drank alcohol and smoked marijuana. Some of the alcohol and most of the marijuana was supplied by the applicant. Her evidence was that the marijuana which she and her friends smoked was smoked from a bong which was packed by the applicant. The complainant said that the applicant had introduced her to marijuana and on previous occasions she had smoked it with him and with "a friend of mine". Her evidence was that, on a number of occasions after her 15th birthday, the applicant supplied marijuana and alcohol for consumption by her and by her friends.
63 This evidence was confirmed in a general way by one of the complainant's school friends who gave evidence that for several months during the winter of 1988 (when the complainant would have been 15) she lived with the complainant at the applicant's house because "my relationship with my mother wasn't very good". She gave evidence that, during this time, there was "a lot of alcohol drinking, a lot of drug smoking" and identified the drug as marijuana supplied by the applicant. She said she referred to the applicant as "Hans". She said that before she had commenced to live with them, she "used to go there on the weekends as well and we would drink and smoke then too".
64 On behalf of the applicant, it was submitted that this evidence was irrelevant to any matter in issue and was highly prejudicial to the applicant and that the admission of the evidence caused the trial to miscarry.
65 Generally speaking, and depending on the precise circumstances of the case, it is unlikely that evidence that a father (or stepfather) allowed a teenage daughter to take alcohol and smoke marijuana in the home would be probative of an allegation that he had sexually assaulted her. There might be evidence of a connection between the permissive conduct
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- relating to substance abuse on the one hand and the sexual misconduct on the other. For example, if it was the Crown case that the motive in encouraging the girl to take alcohol and drugs was to seduce her, the evidence with respect to the supplying of alcohol and/or drugs would plainly be admissible. However, where the evidence does not go so far as to provide any direct link between the one kind of conduct and the other, prima facie the evidence would not be admissible. Evidence of reprehensible conduct on the part of the accused which is not probative of the charged offence is irrelevant and is not made admissible by giving it a label such as "background evidence" or "relationship evidence" or "manner of living evidence". The only basis upon which prejudicial background evidence is admitted is that it has probative value beyond proof of mere bad disposition. The basis for the admission of such evidence is that it is circumstantial evidence; that is, evidence which is actually probative of the disputed conduct: Gipp v The Queen (1998) 72 ALJR 1012; Pfennig v The Queen (1995) 182 CLR 461, especially at 482 - 483. If background evidence is not of that character and quality, it should not be admitted and, if it is wrongly admitted and is prejudicial, the trial will usually miscarry. The accused will not have had a fair trial.
66 The circumstances of this case included that the complainant was living with the applicant and making regular contact with her natural mother. After the two had separated, the complainant had a choice with whom to live and she chose to live with the applicant. She was then 13 and her choice was made at a time which, on the Crown case, was after the offence alleged in count 1 in the indictment. She continued to live with the applicant until early 1989, when the applicant moved house from Craigie to Yanchep. Apparently, the complainant preferred not to live at Yanchep and, as a matter of choice, she went to live with her mother for a short time. After a couple of months, she decided that she would prefer to return to live with the applicant and did so. She was then nearly 17 and this decision to return to live with the applicant was made after the date of the offences charged in the remaining counts on the indictment. The complainant continued to live with the applicant until she finished school. She finished school at the end of 1990 and her evidence was that she moved away a short time later in February or March 1991.
67 These being the circumstances, I am of the opinion that the generalised evidence now under consideration was admissible as probative of the Crown case and its prejudicial effect did not outweigh its probative value. It seems to me that when a stepfather of mature years is alleged to have done something immoral with a young stepdaughter in the home without her consent and there is evidence that no complaint was
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- made by the girl and the girl continued as a matter of choice to live with the stepfather and chose to return to live with him after living with her natural mother for a while, the jury is entitled to know what was going on in the stepfather's home - how they were living - in considering the girl's evidence on the allegation. In this case, evidence of corrupting conduct by the applicant, including in the form of overindulgence of the complainant by freely permitting the use of alcohol and drugs in the home and by actually supplying drugs to the complainant and her school friends for their enjoyment, was relevant to that consideration. It tended to explain her behaviour. It tended to explain why she was attracted to live with the applicant and why she may have been prepared to put up with unwelcome sexual advances on the part of the applicant when it might seem to the jury that, if her evidence as to the charged offences was true, she would have shunned the applicant and would have gone to live with her mother.
68 The Crown was entitled to anticipate that line of defence and to rebut it in advance by leading, as part of the Crown case, evidence which revealed reasons why, even if her story was true, the complainant might have preferred to remain in the applicant's household rather than go to live with her mother. In fact, the complainant was cross-examined along those lines. Part of the cross-examination is set out below (t/s 412):
"And you chose, after living with your mother for 1 or 2 months, to return to him in Yanchep?---There was more to it than that and I don't remember.
That was in 1989, wasn't it?---I'm not clear about the dates you're talking about.
Miss [M], you seem to be able to recall the incidents that you wish to do so, but surely - - -?---I do not wish to do so. It just happens to be this way.
Surely a momentous decision by going back to live with this person who you hate, who you detested, according to your evidence, and who had molested you - in early 1989 you made a decision to go back and live with him?----I was in two minds for years about my feelings for that man, about his promises to be a good father, and the turmoil inside my head between what had happened to me as a child and between being put on a pedestal by that man."
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69 Additionally, the evidence in question fitted with other evidence, referred to below, to the effect that the applicant indulged the complainant in other ways revealing, or tending to reveal, that the relationship between the applicant and the complainant was far from a normal father/daughter relationship and was more that of adult male and female companion.
"II. Photographs of the Applicant apparently smoking a bong which photographs (Exhibit 5) were taken 7 years after the offence alleged in Count 1."
70 This ground refers to the admission into evidence of one photograph showing the applicant smoking a bong in the presence of the complainant and another photograph showing the complainant using the bong in the applicant's presence. The photographs were taken in 1988. The Crown was not allowed to put these photographs into evidence as part of its case in chief. However, the complainant was cross-examined to the effect that the applicant did not encourage the complainant to take alcohol or smoke marijuana and did not provide her with marijuana. Set out below are portions of the cross-examination (t/s 439):
"Would you agree during 1988 that he didn't want you to take alcohol and didn't want you to smoke marijuana?---If he didn't want me to, why did he let me?
No, just - in 1988 - that would have been - - -?---He didn't - - -
In 1988 and 1989 he wanted you to study hard to get good results in your TEE, didn't he?---Yeah.
And he was pretty strict with you about doing your studies?---He didn't really take much notice of that. I could say I've done my homework and he would believe me.
…
So far from being an encourager of these parties, he in fact discouraged you from having parties, didn't he?---By giving us all marijuana? That's discouraging?
Well - - -?---And making sure that we had alcohol.
I suggest to you that he never gave you - - -?---He used to let me drink - - -
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- - - - marijuana?--- - - - Brandivino in bottles about this big, at $6 that you could buy back then, and I used to have it on ice with lemon and he used to make them for me and let me drink them. I don't call that discouraging.
Getting back to the marijuana, do you say he gave you marijuana?---Yes, and sometimes I stole it.
Stole it from him?---Because he had a stash and I knew where it was.
I see. Which house was this in?---Chadstone.
I put it to you that he never had a stash of marijuana and he never gave you marijuana?---That is crap." (t/s 443)
71 Her Honour considered that this cross-examination made the photographs relevant. I am not persuaded that that ruling was erroneous. The purpose of the cross-examination was to impeach the complainant's evidence that the applicant used marijuana in the home and encouraged her to do so by supplying her with it, by providing a bong and by inviting or allowing her to use the bong in his presence. The evidence in the form of the photographs therefore went directly to a matter put in issue by the applicant. It affected the assessment of the complainant's credibility on a matter upon which she was directly challenged.
"III. That the Applicant had watched the Complainant shower several years after the offence alleged in Count 1."
72 Some of the evidence which the complainant gave on this subject is as follows (AB 120C - D):
"Was this particular to any house?---The - yes. The biggest memory I have of that happening, of being in a bathroom, was in Yanchep and Hans would constantly walk in on me when I was having a shower - constantly, all the time. If I locked the door to get some privacy, I would be ridiculed into - "Why are you locking the door? There's no need for you to lock the door" - you know, "I'm not a stranger," or just be made to feel a fool if I locked the door, so then I didn't lock the door and of course what would happen, he would walk in and wash his hands or do something stupid, something trivial that he could have done outside. He didn't have to walk into the bathroom to do it.
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- Was there a curtain in the shower?---There was a curtain but it was one of those showers that was in the bath and the curtain only reached so far and all the rest of the bath was uncovered so I used to hang towels over it to try to deter him, so that when he came in he couldn't look at me."
73 In my opinion, this evidence was relevant to show a continuing sexual interest on the part of the applicant in the complainant and it was, therefore, evidence which tended to lessen the improbability of the prosecution case in respect to the charged offences. That the particular behaviour described appears mostly to have occurred later than the last offence charged on the indictment did not affect its admissibility in the circumstances of this case. Overall, the complainant's evidence was of conduct on the part of the applicant which showed a persistent sexual interest in her, commencing when she was 9 or 10, that is, before the marriage break-up, and continuing until the complainant left home at the age of 18. The evidence as to shower-watching is simply part of the whole evidence of the applicant's sexual interest in her throughout that time. In considering the cogency of the Crown case as to the charged acts, the jury was entitled to know that the applicant continued a pattern of inappropriate sexual conduct with respect to the complainant until she left home.
"IV. That the Applicant had made sexually inappropriate comments to the Complainant several years after the offence alleged in Count 1."
74 This ground does not, in its terms, accurately reflect the evidence inasmuch as it implies that there was only one episode of this kind of behaviour. The evidence which was led from the complainant was to the effect that, from the time she began to physically develop, the applicant made constant sexual references in ordinary conversation with her. As she put it, "there were other conversations that had sexual connotations all the time": AB 120. She gave evidence that the applicant made complimentary comments about "my boobs" and on one occasion he told her "that I looked hot and had a great body". Her evidence was that one of his themes was to the effect that, because she did not like to eat mushrooms, she would have difficulty engaging in fellatio (she said he called it "giving a head") because the texture of mushrooms was similar to the texture of a penis. She said that this kind of comment would be made by the applicant "every time he made something with mushrooms or something came up with mushrooms". She gave evidence that another of
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- his behavioural characteristics was to search the house for evidence that she was engaging in sexual activities, including going through her waste bins and examining her discarded tissues. He would confront her in very crude terms with his suspicions.
75 In my opinion, this behavioural evidence was admissible for the same reason as already given in respect to the shower-watching behaviour. It tended to reveal a strong and inappropriate sexual interest in the complainant and, thus, added cogency to the Crown case.
"V. That the Applicant took the Complainant to Hilite 33 for dinner several years after the offence alleged in Count 1."
76 This ground refers to evidence given by the complainant to the effect that, from when she was aged 15 or thereabouts, the applicant would take her to dinner "to nice restaurants, to the casino". She was asked whether he took anyone else to accompany them and her answer was:
"No, it was just us two. I remember one time we went to the casino. Another time we went to the Hilite 33; went to a few restaurants and went out for dinner, things like that."
77 The reference to "Hilite 33" is a reference to a good-class revolving restaurant at the top of St Martin's Tower, in Perth. As can be seen, the evidence about it was part of the complainant's general evidence as to how the applicant treated her. This aspect of the relationship evidence, put together with the other behavioural evidence, tended to show that the applicant liked to treat the complainant as an adult female companion. It tended to show that he was attracted to her in that way. In my opinion, it was relevant circumstantial evidence which supported the Crown case.
"VI. That the Applicant exposed himself whilst wearing a bath robe several years after the offence alleged in Count 1."
78 The complainant's evidence was to the effect that the applicant was, at the least, careless about exposing his genitals to the complainant; and that in her company he would adopt revealing postures whilst wearing only a dressing-gown. The evidence did not relate to a single period "several years after the offence alleged in Count 1", as pleaded in this ground of appeal. The evidence was as follows (AB 128A - D):
"Do you remember when you first got your periods?---I was 13 when I first got my period.
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- Do you remember what Mr Jaensch's reaction to that was?---He was quite excited about the whole thing, thought it was great.
How did he show his excitement?---We had a small celebration.
What was consumed in celebration?---Christie was there at the time and we had champagne because I got my period and I was celebrating my womanhood.
I think you already told us about Mr Jaensch being naked, for example, at times in Newman or swimming and the like. Did he carry that behaviour through into the house where he was living with you?---Yes, he did. He wasn't shy. He didn't mind exposing himself.
Can you remember any specific instances or ways in which he would expose himself?---I remember - I remember when I was younger when we were living in Padbury and he would be sitting on the lounge and his dressing-gown would fall open and his penis would be exposed and he wouldn't bother covering up. The picture is unfortunately embedded in my brain.
Do you remember any reactions from the people who were around him - you, for example?---Just tried to ignore him. When I got older I started to say things to him like, "Would you please cover up?" or "you're hanging out" or something along the lines.
What was his response?---"Oh, oh," you know, like, "Sorry," like he didn't realise but he knew."
79 In my opinion, this evidence was admissible as revealing the applicant's general standards of behaviour towards the complainant in sexual matters. It tended to reveal a sexual interest on his part towards her. It is evidence consistent with a pattern of seductive and corrupting behaviour. It tended to increase the probability of the Crown case as to the charged offences or, at least, to lessen the improbability of the Crown case as to those offences.
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"VII. That the Applicant would not allow his daughters to wear bathers in the swimming pool."
80 In my opinion, this evidence was admissible as revealing a relevant manner of living in this household and the applicant's sexual interest in the complainant from an early time.
"VIII. That the Applicant had played a game which involved marshmallows being placed near the Complainant's vagina."
81 In my opinion, this evidence was admissible as revealing the applicant's sexual interest in the complainant and his disregard for appropriate standards of behaviour towards her in sexual matters. It was not evidence of mere propensity, but of a propensity to engage in sexually inappropriate conduct with the complainant. It was, in that way, probative of the Crown case in that it affected, and rationally affected, the assessment of the probability of the Crown case with respect to the counts charged in the indictment.
"IX. That the Applicant encouraged the Complainant and others to watch pornographic movies."
82 In my opinion, this evidence was evidence of a relevant manner of living in this household. Once again, it showed the applicant's disregard for appropriate standards of behaviour towards a young daughter in sexual matters. It was evidence of a pattern of behaviour on the part of the applicant calculated to sexually corrupt the complainant.
83 It is true that much of the generalised evidence of bad conduct by the applicant in respect of the complainant was not contemporaneous with the only offence of which the applicant was convicted. However, the ultimate outcome of the trial could not affect the question of admissibility. The matters alleged in the indictment covered a period of about five and a half years to November 1988. For most of that time and until the complainant left in 1991, the complainant and her sister were alone in the house with the applicant who was supposed to be fulfilling the role of parent. For the reasons I have tried to explain, I do not see why the jury should not hear evidence of the moral environment prevailing in the house throughout the period that the complainant lived there. It is evidence which could rationally assist them to understand the evidence directly relating to the charged acts. Without it they would not have a true picture. They would not know the real circumstances. They would be judging the
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- complainant's evidence relating to the charged acts against a blanked out background.
84 In any case, having regard for the verdicts that were returned by the jury, it seems unreal to think that there actually was any prejudice to the applicant arising from the evidence in question. The generalised behavioural evidence, for the most part, related to a period when the complainant was of the age of 14 to 18. It was the period after the marriage had broken up, when the complainant and her sister were living alone with the applicant. This was the period during which the offences charged in counts 2 and 3 on the indictment are alleged to have been committed. The applicant was acquitted of those charges. The jury's decision to acquit the applicant of those charges shows that the jury did not reach its verdict on count one by prejudice.
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