KQE v The Queen
[2022] ACTCA 18
•27 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | KQE v The Queen |
Citation: | [2022] ACTCA 18 |
Hearing Date: | 20 April 2022 |
DecisionDate: | 27 April 2022 |
Before: | Elkaim J |
Decision: | See [46] |
Catchwords: | APPEAL – APPLICATION – Application for leave to appeal against orders made in the Supreme Court – tendency evidence – whether primary judge incorrectly assessed probative value of relevant evidence in respect of certain uncharged acts allegedly committed by the accused – whether the primary judge should have ruled that an admission made by the accused to a police officer be excluded from evidence |
Legislation Cited: | Crimes Act 1914 (Cth) s 23V Evidence Act 2011 (ACT) ss 85, 90, 97A, 138 Supreme Court Act 1933 (ACT) s 37J |
Cases Cited: | DS v R [2018] NSWCCA 195; 274 A Crim R 551 R v DL [2018] ACTCA 9 R v Lou [2017] ACTSC 127 |
Parties: | KQE (Appellant) The Queen (Respondent) |
Representation: | Counsel J Cooper (Appellant) K McCann (Respondent) |
| Solicitors Aboriginal Legal Service (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 13 of 2022 |
Decision under appeal: | Court/Tribunal: Supreme Court Before: McWilliam AJ Date of Decision: 4 April 2022 Case Title: R v KQE Citation: [2022] ACTSC 69 Court File Numbers: SCC 65 of 2021; SCC 135 of 2021 |
Elkaim J:
I have heard this matter as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).
On 4 April 2022 McWilliam AJ handed down her decision on a number of interlocutory applications that had been listed for pre-trial determination (R v KQE [2022] ACTSC 69).
There were six applications filed, but three were resolved prior to the hearing. Two of the applications, which were decided contrary to the submissions of the current applicant, generated an application for leave to appeal from an interlocutory judgment. This application was filed on 11 April 2022.
The current application (henceforth to be referred to as the application) requests that leave be given to appeal against the following orders made by McWilliam AJ:
Order 1: In respect of the application in proceeding filed by the Crown on 10 September 2021, the applicant is permitted to adduce tendency evidence as notified in the Amended Notice of Intention to Adduce Tendency Evidence dated 14 December 2021.
Order 2: The statement made by the accused to Senior Constable Vesna Johnston on 28 October 2020 is admissible at the accused’s trial.
At this stage the accused is due to go to trial on 4 July 2022. If the application is granted the parties envisaged that an appeal would not be heard until November 2022 or later. The accused is currently in custody awaiting his trial.
The parties agreed that the principles to be applied in considering leave to appeal from an interlocutory decision were set out by Burns J in R v DL [2018] ACTCA 9. The Crown correctly summarised the principles as follows:
(a)Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by the Court of Appeal;
(b)Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong;
(c)Whether the grant of leave would inappropriately fragment the criminal trial process; and
(d)Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.
The applicant said that McWilliam AJ had made two errors:
(a)In respect of an application made by the Crown to adduce tendency evidence, her Honour incorrectly assessed the probative value of the relevant evidence in respect of certain uncharged acts allegedly committed by the accused.
(b)Her Honour should have ruled, on an application made by the accused, that an admission made by the accused to a police officer, should be excluded from evidence to be placed before the jury at trial (Grounds written submissions at [2]).
As a general statement I think the assertion in respect of the tendency evidence is weak and suffers from a particular deficiency. This deficiency is that the argument put before me does not seem to have been run before her Honour.
I think the argument concerning the admission is far stronger and entitles the accused to the relief that he is claiming.
Her Honour set out the charges at the commencement of her decision:
1.The accused, who has been given the pseudonym “KQE”, is charged with the following offences, contrary to s 55(1) of the Crimes Act 1900 (ACT) (Crimes Act):
(a) Count 1 (CH2020/857): That between 5 and 14 March 2020, the accused engaged in sexual intercourse with a person under the age of 10 years, a complainant who will be referred to as “SL”.
(b) Count 2 (CH2020/858): Further, that between 5 and 14 March 2020, the accused engaged in sexual intercourse with a person under the age of 10 years (again, SL).
2.The accused is further charged with the following offence contrary to s 55(2) of the Crimes Act:
(c) Count 3 (CH2021/3263): That on 21 March 2021, the accused engaged in sexual intercourse with a person under the age of 16, a different complainant, who will be referred to as “LT”.
The tendency application
The Crown’s original tendency application generally related to establishing a tendency that would apply across each of the three charges. As her Honour put it: “[t]he Crown’s application seeks that each charged act be cross-admissible in respect of the other counts”. Her Honour described the three tendencies that the Crown relied upon at [7]:
The Crown seeks to establish that the accused has a tendency to:
(a)have a sexual interest in female children that are known to him and younger than him (Tendency 1);
(b)act on that sexual interest by engaging in sexual activity with female children known to him and younger than him, when in a residence with them (Tendency 2); and
(c)create opportunities to engage in sexual activity with female children when in a residence with them, by taking them or encouraging them to a part of the residence where they are alone and away from other occupants (Tendency 3).
No complaint is made in respect of her Honour’s decision on the original application. But there was an Amended Tendency Notice which Her Honour summarised as follows, at [9]:
The Amended Tendency Notice also includes a further incident that is not the subject of the present charges (or any charges). The Crown seeks to adduce evidence of the further incident as tendency evidence, on the basis that it falls within the described tendencies as propounded in both the Tendency Notice and Amended Tendency Notice. The substance of this evidence concerns conduct alleged to have occurred between 2014 and 2016, when the accused was aged between 12 and 14. The alleged facts in the Amended Tendency Notice in relation to the further incident is summarised as follows:
(a)LE and LT were living at the house of the accused. LT was aged between 6 and 8 years old at the time. She and her sister, “LI”, were playing with Barbies in a room in the house. The adults at the house were outside.
(b)The accused came into the room where the girls were playing and began touching LT’s chest. At some point he tried to take off her shirt.
(c)The accused then asked LT and LI to go under the bed with him. He pressed his penis against LT’s bum and rubbed her chest. He did the same thing to LI. At some point, LT said “[w]hat are you doing?”. The accused said “[n]othing” and left the room.
(d)LI told LT not to tell anyone what happened.
Her Honour’s decision on the amended notice is the subject of this application.
The allegations in the amended notice include facts which are not the subject of any charges.
Her Honour noted that s 97A of the Evidence Act 2011 (ACT) (Evidence Act) was applicable. The error suggested by the accused is that, pursuant to subsection (4), her Honour should have found that the tendency evidence did not have significant probative value.
The argument put forward by the accused was described by Basten JA in DS v R [2018] NSWCCA 195; 274 A Crim R 551 (DS):
10.Thirdly, the evidence of the appellant’s alleged conduct in relation to his niece must raise two questions for consideration. The first is whether, objectively, there is any basis to conclude that the way an adolescent (11 year old) boy, not proved to have a mature understanding of the distinction between right and wrong, behaves in relation to a four year old niece gives any reliable indication as to a tendency to sexually abuse a nephew some seven or eight years later when intellectual and emotional maturity has increased. The second question is whether it is right to expect a jury to have any experience of such matters, or at least sufficient experience to draw inferences in the context of a criminal trial.
11.There is little basis to conclude that a tendency to act in a particular sexual manner at an early age, without the necessary understanding of its wrongfulness, would continue to affect the person’s behaviour, after achieving a sufficient understanding of its wrongfulness. The evidence therefore had little or no probative value. Further, the fact that it is presented to the jury will no doubt lead them to infer that it is relevant and therefore provides a sound basis for them to draw inferences, the validity of which their own experiences may not allow them to assess. That factor involves a significant risk of prejudicial effect. For these reasons, the evidence should have been rejected in any event, no matter how it was left to the jury.
In the present case the accused was said to be 12 years of age when the uncharged acts occurred but he was 17 or 18 years of age when the alleged charged conduct took place.
Consistent with the scenario described by Basten JA it was submitted that the accused’s sexual understanding as a 12-year-old would have been very different to when he was 17 or 18 years of age. How could it be said, submitted the applicant, that his maturity as a 12-year-old could give rise to any tendency which would still be operative some five or six years later? Consequently the actions of the accused as a 12-year-old could not have the probative value required by s 97(1)(b) of the Evidence Act.
A significant difficulty with the argument arising from DS is that s 97A of the Evidence Act had not yet been enacted. The section came into force in New South Wales on 1 July 2020 and in the ACT on 1 September 2020. Section 97A states:
97AAdmissibility of tendency evidence in proceedings involving child sexual offences
(1)This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97 (1) (b) and section 101 (2):
(a)tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest);
(b)tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3)Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.
(4)Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5)The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:
(a)the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act);
(b)the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;
(c)the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act;
(d)the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;
(e)the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;
(f)the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features;
(g)the level of generality of the tendency to which the tendency evidence relates.
(6)In this section:
child sexual offence—
(a)means each of the following offences (however described and regardless of when it occurred):
(i) an offence against, or arising under, a territory law involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence;
(ii) an offence against, or arising under, a territory law involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence;
(iii) an offence against, or arising under, a law of the Commonwealth, a State or a foreign country that, if committed in the Territory, would have been an offence of a kind mentioned in subparagraph (i) or (ii); but
Note State includes the Northern Territory (see Legislation Act, dict, pt 1).
(b)does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.
Section 97A(2) raises a presumption that evidence of the type that is in issue in this case will be probative. Subsection (4) allows a court to override the presumption but only if, pursuant to subsection (5), there are exceptional circumstances. Subsection (5) lists a number of matters which are “not to be taken into account” when deciding whether or not the court can act in accordance with subsection (4).
The list of matters in subsection (5) include, at (a), whether there is a difference in the sexual interest in the asserted act and the sexual interest alleged in the proceeding, and, at (c), whether “the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act” and, at (e), “the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act”.
When the provisions of s 97A are factored in, the observations by Basten JA in DS are significantly weakened. This is not to say that a submission will not be able to be made to the jury about the differences in motivation between the acts allegedly carried out by the accused as a 12-year-old, compared to when he allegedly committed the charged acts.
Accordingly, I do not think the tendency issue alone is sufficient to ground the application for leave to appeal.
Allowing the admission to go into evidence
The argument here mostly stems from s 85 of the Evidence Act. The section states:
85Criminal proceedings—reliability of admission by defendants
(1)This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant—
(a)to, or in the presence of, an investigating official who at the time was exercising functions in connection with the investigation of the commission, or possible commission, of an offence; or
(b)as a result of an act of someone else who was, and who the defendant knew or reasonably believed to be, capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.
NoteSubsection (1) was inserted as a response to the decision of the High Court of in Kelly v The Queen (2004) 218 CLR 216.
(2)Evidence of the admission is not admissible unless the circumstances in which the admission was made make it unlikely that the truth of the admission was adversely affected.
(3)Without limiting the matters that the court may take into account for subsection (2), it must take into account—
(a)any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and
(b)if the admission was made in response to questioning—
(i) the nature of the questions and the way in which they were put; and
(ii) the nature of any threat, promise or other inducement made to the person questioned.
The background and content of the admission were described by her Honour at [68]:
On Wednesday 28 October 2020, DLSC Madders and Senior Constable Vesna Johnson attended an address in Charnwood, being the address associated with the accused’s father. There, the police officers identified and had a conversation with the accused’s father, which resulted in the father phoning the accused to attend the location. The accused approached the location shortly after, at which point Senior Constable Johnson told the accused he was “under arrest for sexual assault”, to which the accused responded “I fucked up good. I know what I did was wrong”. Senior Constable Johnson instructed the accused to stop speaking and informed him she was not going to ask him any questions at that time.
The primary argument concentrated on s 85(3)(a). The applicant complained that her Honour had failed to properly take into account his personal circumstances. Her Honour described the circumstances:
71.Developing the first of those grounds, counsel for the accused submits that evidence of the alleged admission should be excluded because it was made in circumstances of vulnerability, such that it cannot be established by the Crown that it is likely the admission was reliable.
72.In support of the accused’s vulnerability, the accused relies upon a report of registered psychologist, Ms Vanessa Edwige, who diagnosed the accused as having suffered developmental disadvantage and complex developmental trauma. According to that report, the accused has been a victim of long-term exposure to domestic violence and childhood neglect. His behaviour and symptoms met the diagnostic criteria in DSM 5 for Post Traumatic Stress Disorder and Autism Spectrum Disorder. Ms Edwige’s view was that the accused did not understand the abstract notion of his right to be silent.
Her Honour set out the Crown’s position on reliability at [80]:
Matters related to vulnerability, such as a high probability that the accused did not understand the abstract notion of his right to be silent, have little bearing on the truth of the admission. As to the risk of gratuitous concurrence, the accused was not asked any questions by the police officer. What occurred was a voluntary, positive statement suggesting that the accused had knowledge of the conduct the officer was referring to when she placed him under arrest and an awareness of wrongfulness on his part. In short, the Crown accepts that, as a concept, gratuitous concurrence may exist insofar as it relates to the way Aboriginal people may answer questions from authority figures. But it is not an appropriate label here as that was not the situation faced by the accused. All that the police officer did was place the accused under arrest and name the allegation; her conduct sought no answer from the accused at all.
Her Honour began her consideration of the respective arguments at [84]. Her Honour, drawing on R v Helmout [2000] NSWSC 185, correctly stated that s 85 was “concerned with whether the circumstances of an investigation was such as to produce unreliable evidence”.
Her Honour observed at [88]:
The court’s focus is not on whether the admission was true or untrue. It is upon the impact of the circumstances in which the admission was made on the actual reliability of the admission: McLaughlan at [58] (referring to R v McLaughlan (2008) 218 FLR 158; 185 A Crim R 97).
Her Honour also referred to what Burns J, in R v Lou [2017] ACTSC 127, considered to be the critical question:
The question to be asked, therefore, is not whether the Crown has proven that the truth of the applicant’s confession was not likely to have been adversely affected by his mental illness, but, rather, whether the circumstances of the interviewing process adopted were such … that the admissions made by the applicant, as a person suffering a particular mental illness, were unlikely to have been adversely affected. This would leave the wider question of whether the admissions made were in fact true, as opposed to a figment of the applicant’s psychosis, to be determined by the jury…
Her Honour asked the question posed by Burns J and concluded, at [93]:
But there was nothing about the circumstances in which the admission was made that adversely affected the reliability of what was said.
Her Honour thus, again correctly, decided that the surrounding circumstances of the admission did not affect its reliability.
After dealing with s 23V of the Crimes Act 1914 (Cth), her Honour went on to discuss discretionary considerations arising under ss 90 and 138 of the Evidence Act. Her Honour did not think s 138 applied. In respect of s 90, she said, at [101]:
Ultimately, I am of the view that the evidence should not be excluded under s 90. The nature of the alleged admission and the circumstances in which it was made are such that the jury will readily be able to assess and evaluate the reliability of the accused’s words, the meaning of the statement and what significance they give it. They will undoubtedly receive directions, particularly in light of this application and these reasons, such as to ameliorate any unfairness concerns about an accused who speaks before any caution is given and without being informed of the particulars of the charge that was ultimately brought.
The concern I have arises both in respect of ss 85 and 90. I think her Honour’s arguments, and reasoning, while certainly technically correct against the background of the authorities that are quoted in respect of s 85, may not give appropriate consideration to the actual terms of the admission.
Going back to the admission, the applicant said, in answer to the statement of the police officer that he was being placed under arrest “for sexual assault”, said “I fucked up good. I know what I did was wrong”.
But what, it may be asked, did he do that was wrong? Was it the facts behind Count 1, or the facts behind Count 2, or perhaps even the facts giving rise to Count 3, or perhaps some other incident altogether? Which of the two complainants, or perhaps someone entirely different, was he referring to?
No description was given of the sexual assaults for which the applicant was being arrested. What then, it might be asked, was he making an admission in respect of? No victim had been named and no date had been given.
When s 85(3)(a) is added in, reflecting the opinion of Ms Edwige, the consideration that the applicant was a young indigenous man with significant mental health issues becomes highly important. He was unquestionably a vulnerable person, which when added to the unknown subject of the admission, creates a strong argument that the admission was not reliable, perhaps even not an admission to the facts behind the crimes for which the applicant was being arrested.
The police officer was perhaps acutely aware of this possibility by immediately telling the applicant to ‘say no more’. She may simply have been aware that the applicant should be cautioned before he spoke, or perhaps receive legal advice, but whatever the case, she was concerned to halt the conversation. The result is that all that was left was a statement about sexual assault which may or may not have anything to do with the reasons behind the applicant’s arrest.
It is not for me, in the exercise that I am conducting, to state that her Honour’s approach was correct or not. I do however think that, whether under s 85, or pursuant to the discretion under s 90, the decision, adopting the Crown’s statement of the test, “is attended with sufficient doubt to warrant its reconsideration by the Court of Appeal”.
In making this decision I am acutely aware of the possibility that the trial will be delayed for some time. The applicant is currently in custody, and if no application for bail is made (or is successful) he will be in custody for a good deal longer prior to coming to trial. But that is a choice he has no doubt made and has given instructions accordingly.
Although the parties envisaged that the matter would not reach the Court of Appeal until the November sittings, I have been informed that there is space in the August sittings of the Court.
The trial will necessarily be fragmented by my decision. However I think the asserted admission is of such significance that its presence has the potential to have a marked effect on the outcome of the hearing. Obviously if the Court of Appeal dismisses the appeal that then that is an effect which will have a legitimate basis.
In the light of my decision I do not think it necessary to discuss the argument arising from s 23V of the Crimes Act 1914 (Cth).
Returning to the tendency issue, I have not found there to be an argument in the applicant’s favour that would justify giving leave to appeal. However, as I am giving leave to appeal in respect of the admission issue, I think it appropriate to extend that leave to both issues to take advantage of all current appeal points being dealt with before trial.
I make the following orders:
(i)Leave is given to the applicant to appeal against the orders made by McWilliam AJ on 4 April 2022 in respect of tendency evidence (but restricted to uncharged acts) and the asserted admission made by the applicant on 28 October 2020.
(ii)The matter is listed in the appeal index list on 28 April 2022 at 2:30pm with the intent that it be listed for appeal in the August sittings of the Court of Appeal.
(iii)The trial date of 4 July 2022 is vacated.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |