R v BEK
[2019] ACTSC 116
•9 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BEK |
Citation: | [2019] ACTSC 116 |
Hearing Date: | 15 April 2019 |
DecisionDate: | 9 May 2019 |
Before: | Burns J |
Decision: | See [28] |
Catchwords: | CRIMINAL LAW – Pre-Trial Application – tendency evidence – Awaiting trial on six counts – four counts of committing an act of indecency upon a person above the age of 10 years and under the age of 16 years – one count of maintaining a sexual relationship with a young person – one count of engaging in sexual intercourse with a person above the age of 10 years and under the age of 16 years – whether incidents alleged have significant probative value – whether the probative value of the evidence substantially outweighs the any prejudicial effect |
Legislation Cited: | Crimes Act 1900 (ACT) Evidence Act 2011 (ACT) |
Cases Cited: | McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 The Queen v Bauer [2018] HCA 40; 92 ALJR 846 |
Parties: | The Queen (Crown) BEK (Accused) |
Representation: | Counsel Ms R Christensen (Crown) Ms B Morrisroe (Accused) |
| Solicitors ACT DPP (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 295 of 2018; SCC 296 of 2018 |
BURNS J
By an Application in Proceeding dated 22 March 2019, the Crown seeks orders that it be permitted to adduce evidence at the trial of the accused to prove that the accused has the following tendencies:
(a)to have a sexual interest in pre-pubescent girls and act on this sexual interest;
(b)to have a sexual interest in the complainant, TN;
(c)to act on his sexual interest with the complainant, TN; and
(d)to use physical and emotional violence and control within a family context.
The accused is currently awaiting trial on an indictment dated 17 January 2019, containing the following six counts:
(a)Count One: That between 31 July 1983 and 15 February 1992 at Canberra in the Australian Capital Territory he, being an adult, maintained a sexual relationship with a young person, namely TN.
(b)Count Two: That between 24 December 1991 and 5 February 1992 he engaged in sexual intercourse with TN, being a person above the age of 10 years and under the age of 16 years, who was to his knowledge his stepchild.
(c)Count Three: That between 24 December 1991 and 1 January 1992 he committed an act of indecency upon TN, being a person above the age of 10 years and under the age of 16 years.
(d)Count Four: That between 31 December 1991 and 15 February 1992 he committed an act of indecency upon TN being a person above the age of 10 years and under the age of 16 years.
(e)Count Five: That between 31 December 1991 and 15 February 1992 he committed an act of indecency upon TN, being a person above the age of 10 years and under the age of 16 years.
(f)Count Six: That between 31 September 1991 and 15 February 1992 he committed an act of indecency upon TN, being a person above the age of 10 years and under the age of 16 years.
The accused has entered pleas of not guilty to each of these charges. No admissions have been made by the accused, so that it must be assumed that all matters are in dispute.
As required by the Evidence Act 2011 (ACT) (the Evidence Act), the Crown served on the accused a Notice of Intention to Adduce Tendency Evidence (the Notice) dated 22 March 2019. The Notice sets out eight incidents of which the Crown seeks to adduce evidence in order to establish that the accused has one or more of the tendencies set out above. Incident 1 relates to Count One on the indictment, the charge of maintaining a sexual relationship with a young person. This is a charge contrary to s 56 of the Crimes Act 1900 (ACT), and requires the prosecution to prove that the accused engaged in a sexual act with the complainant on two or more occasions within the period specified in the charge. Accordingly, Incident 1 in the Notice is divided into four sub-incidents, each setting out different sexual acts alleged to have been engaged in by the accused against the complainant as part of Count One.
Incident 1A alleges that the complainant was in bed one night with her bedroom door shut. It is alleged that the accused opened the door and entered her bedroom, leaving the lights off. He said to her, “[y]ou can be your mum tonight”. It is alleged that the accused pulled down the complainant’s blanket with his hands to just above her knees, so that her lower body from her knees to her waist was exposed. The accused proceeded to pull down the complainant’s pyjama pants. The complainant was not wearing underwear. It is alleged that the accused rubbed the complainant’s genitals with two fingers in a circular motion.
Incident 1B alleges that the accused was lying in bed in the bedroom he shared with the complainant’s mother. He had a sheet up over the bottom of his stomach and was sitting half upright, propped up by a pillow. He was naked aside from the sheet that was covering his lower body. He was smoking a cigarette, and there was a towel and an ashtray sitting next to him on the bed. The door to the room was open. The complainant entered the bedroom and proceeded to fellate the accused’s erect penis. The accused then masturbated until he ejaculated onto the towel. It is alleged that he then brought his lit cigarette to the complainant’s middle knuckle on her left hand and burnt her. He told her not to tell anybody about what had happened.
Incident 1C alleges that the complainant and her siblings sometimes accompanied the accused to the pool where he worked. On one such occasion, it is alleged that she accompanied the accused to the pool and swam while he cleaned. After the accused had finished cleaning, the accused and the complainant went to a change room. The complainant was wearing swimmers and the accused was wearing jeans. The accused knelt on the ground and the complainant stood in front of him. The accused asked the complainant to pull down her pants so that he could touch her genitals. After she removed her pants, the accused pulled his erect penis out of his jeans through the fly. He then touched the complainant’s vagina with his fingers in a rubbing motion. At the same time that he was touching the complainant’s vagina, he masturbated himself. It is alleged that the complainant was friends with a girl, DC, who lived next door. DC asked the complainant several times if she could go with her and the accused to Civic Pool. It is alleged that the complainant always refused because of what the accused had done to her at the pool.
Incidents 1A, 1B and 1C are all specific incidents which the Crown intends to rely upon to establish the charge of maintaining a sexual relationship with TN. Incident 1D consists of other alleged sexual relationship evidence. It is alleged that during the course of this sexual relationship, the accused engaged in regular sexual contact with the complainant including:
(a)touching her vagina by rubbing with his fingers on the inside and outside of her vagina;
(b)touching her breasts;
(c)masturbating himself in her presence;
(d)having TN fellate him; and
(e)having TN watch pornographic material.
Incident 2 relates to Count Two on the indictment. It is alleged that the complainant walked into the bedroom that the accused shared with the complainant’s mother. The accused was lying in bed, and the complainant stood next to the bed. The accused pulled down the bedcovers, revealing his underwear. The accused removed his underwear, exposing his erect penis. The complainant got onto the bed and sat between the accused’s legs. The accused put his hand around the back of the complainant’s head and guided her head downward towards his penis to make her fellate him.
Incident 3 relates to Count Three on the indictment. It is alleged that the accused and the complainant were in the bedroom that the accused shared with the complainant’s mother. They were seated on the bed and the accused kissed the complainant in an “adult”, “mouth-to-mouth” fashion.
Incident 4 relates to Count Four on the indictment. It is alleged that the accused and complainant were alone in the lounge room when the accused put his hand up the complainant’s dress. The complainant’s mother entered the lounge room, and the accused pulled his hand out from underneath the complainant’s dress and put it behind his head.
Incident 5 relates to Count Five on the indictment. It is alleged that the accused and complainant were standing in a room when the complainant’s mother entered. The complainant was wearing a denim skirt. When the complainant’s mother entered the room, she saw the complainant quickly flip down her skirt.
Incident 6 relates to Count Six on the indictment. It is alleged that the accused knelt in front of the complainant while holding a black video recorder with both of his hands. The accused was fully clothed, however the complainant had no pants on. The complainant lay on the ground approximately one and a half metres in front of the accused. The accused looked through the eyepiece of the video recorder and directed the complainant to rub her vagina with her fingers in a circular motion. The complainant complied with these directions. The complainant heard her mother approach up the driveway, and quickly pulled back on her black tights.
Incident 7 refers to uncharged acts of alleged physical and emotional violence. It is alleged that the accused was regularly abusive and violent throughout the complainant’s childhood. It is alleged that the accused would become angry if she or her siblings did something wrong. The accused would then become very abusive and violent towards her mother. On one occasion, it is alleged that the accused pushed the complainant’s mother back into a recliner chair and was “in her face”. The accused hit the complainant’s mother across the face with his open hand. With regard to sexual conduct, the accused would sometimes threaten the complainant after sexual contact had occurred, saying that he would kill her if she told someone. The accused also told the complainant that if she told anyone, he would go to jail and when he got out he would kill her. It is further alleged that the accused would not allow the complainant to have other children over to her house or allow her to stay at friends’ houses. The complainant’s mother described the accused as “constantly critical of her, emotionally abusive and frequently physically violent”. These incidents are said to have occurred between 31 July 1983 and 15 February 1992.
Incident 8 refers to previous convictions for one offence of indecently dealing with a child under the age of 16 years, and another offence of attempting to unlawfully procure a child under 16 years to commit an indecent act. The complainant with regard to those offences, according to the copy of the indictment, was “under 12 years” of age. A copy of the sentencing remarks of Judge O’Brien in the Queensland District Court on 15 December 2003 suggests that the complainant was nine years of age. Judge O’Brien noted that the accused pleaded guilty on the morning of the trial. These sentencing remarks do not set out the exact conduct which was the basis of the charges. The judge notes that the first offence did not “involve actual penetration”, but no further details are provided. The accused was sentenced to 18 months’ imprisonment, to be released after serving three months. A Queensland Police Service Court Brief provides details of the allegations made against the accused in those proceedings. It was alleged that the accused was the neighbour of the complainant’s family, and that on 3 October 2002 the complainant was left with the accused for two short periods of approximately 30 minutes each. It was alleged that when the complainant was in bed, the accused kissed her on the mouth and then removed her boxer shorts and underwear. He then kissed, sucked and licked her vagina. After the complainant’s pants had been pulled up, the accused put his hand down the front of her pants, and felt the area of her vagina.
The relevant legislation
The tendency rule is set out in s 97 of the Evidence Act, which provides:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
Further restrictions on the admission of tendency evidence in criminal proceedings are found in the s 101 of the Evidence Act, which provides:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
Consideration
With regard to the alleged tendency to have a sexual interest in pre-pubescent girls, and to act upon that interest, the Crown relied upon not only the events that are the subject of the present charges against the accused, but also those events that occurred in Queensland in 2002, which are referred to in Incident 8 in the Notice. In my opinion, the Crown should not be allowed to lead evidence of the alleged events in 2002 as tendency evidence with regard to the present charges. This is so for a number of reasons. Taken at its highest, proof that the accused committed sexual offences against a nine year old girl in 2002, may be capable of establishing that, at that time, the accused had a tendency to have a sexual interest in pre-pubescent girls, and a tendency to act upon that sexual interest. The evidence would reveal a tendency that existed between 10 and 19 years after the events, which the Crown seeks to prove at trial with regard to the present charges.
In McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 (McPhillamy), the accused was convicted after trial of sexual offences against complainant A, an 11 year old altar boy. The accused was an acolyte at the same church. The offences allegedly occurred between November 1995 and March 1996, when A was 11 years old. At the accused’s trial, the Crown led evidence that in 1985 the accused had committed sexual offences against two 13 year old boys (“B” and “C”) who were under his care as an assistant housemaster at a boarding school. The Crown led the evidence to establish that at the time it was alleged that the accused committed the offences against A (1995-1996), he had a tendency to be sexually attracted to young teenage males, and to act upon that sexual attraction. At his trial, the accused did not challenge the evidence of B and C but did challenge the evidence of A.
The plurality of the High Court (Kiefel CJ, Bell, Keane and Nettle JJ), in ruling that the tendency evidence should not have been admitted, stated at [26]-[27], concerning the probative value of the evidence:
As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of "B" and "C" was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring.
Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to "B"'s and "C"'s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against "A".
Later, at [30], they said:
Cox was concerned with the relevance of the evidence of the earlier conviction. It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with "B" and "C" is relevant to proof that he committed the offences alleged by "A", but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.
Finally, at [31], they said:
Moreover, where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together. The suggested link in this case is the appellant's tendency to act on his sexual interest in young teenage boys who were under his supervision. The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable, homesick boys in his care has little in common with the supervision exercised in his role as acolyte over "A", an altar boy, when the two were at the Cathedral for services in 1995-1996. The evidence does not suggest that "A" was vulnerable in the way that "B" and "C" were vulnerable. The tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with "A"'s account that the appellant followed him into a public toilet and molested him.
In McPhillamy, it was conceded by the accused that a sexual interest in young teenage boys aged between 11 and 13 years was an interest of a type which was “likely to be enduring”. No equivalent concession has been made by the present accused. There is no evidence that apparently opportunistic offending against a nine year old girl in 2002 can, by application of established scientific knowledge, be logically probative of a tendency on the part of the accused to have a sexual interest in pre-pubescent girls between 10 and 19 years earlier, much less a tendency to act upon such a tendency. In my opinion, a jury cannot be asked to infer from their life experience or common knowledge that this is, or may be, the case. In The Queen v Bauer [2018] HCA 40; 92 ALJR 846 (Bauer), the High Court said that in cases where the tendency evidence related to the same complainant as the complainant in the charged offences, the cross-admissibility of evidence of the charged and uncharged acts rests on the “very high probative value” of that evidence “which results from ordinary human experience that, when a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person…”. In the present case, ordinary human experience cannot assist in determining whether proof of opportunistic offending against a child left with him for two periods of 30 minutes in 2002 can be said to make it more likely that the accused engaged in systematic sexual abuse of his step-daughter between 1983 and 1992.
In McPhillamy, a gap of ten years between the events alleged as tendency evidence and the charged events was sufficient to deprive the tendency evidence of significant probative value, with regard to an alleged tendency to act upon a sexual interest in young teenage boys. I see no reason why similar reasoning should not apply in the present case, albeit that in the present case the tendency events occurred after the charged events.
In addition, it is unclear precisely what material the Crown would propose adducing to prove the events of 2002. The affidavit of Bridget O’Kane, affirmed 28 March 2019, relied upon by the Crown in support of the application, simply lists three documents as relied upon by the Crown, being a copy of an indictment from the District Court in Brisbane dated 12 June 2003, a copy of the sentencing remarks of Judge O’Brien in the District Court of Brisbane delivered on 22 December 2003 and a copy of a Queensland Police Service Brief, which appears to relate to the charges on the indictment and sets out the facts as alleged by the prosecution. The sentencing remarks of Judge O’Brien, unfortunately, do not reveal the facts upon which he was asked to sentence the accused. Proof of the accused’s convictions for the 2002 offence may be facilitated by s 179 of the Evidence Act. The Crown, however, would need to do more than prove the fact of conviction; it would also need to prove the facts upon which the accused was convicted and sentenced in the Queensland proceeding. Section 91 of the Evidence Act provides that evidence of a decision, or a finding of fact, in an Australian proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding. In the absence of an admitted Statement of Facts provided to the District Court for sentencing purposes in 2003, it would be necessary to prove the relevant facts by sworn testimony, which it appears the Crown is not in a position to do. As there is no affidavit or statement from the complainant with regard to the 2002 offences, and no agreed Statement of Facts, it is simply not possible to determine to what extent any evidence of the facts surrounding the 2002 offences could possess significant probative value, with regard to proving the alleged tendencies and the present alleged offences. It follows that the Crown will not be permitted to allege tendency (a).
The remaining incidents as set out in the Notice, with the exception of Incident 7, relate to evidence to be given by the complainant with regard to the charged acts. This evidence should be admitted, on the basis of the principles referred to in Bauer. The evidence is capable of establishing that the accused had a tendency to be sexually interested in the complainant, and to act on that sexual interest. The evidence has significant probative value in proving both the alleged tendencies (b) and (c) at [1] above, and also to proving that the accused committed the charged offences. I am satisfied that the probative value of this evidence substantially outweighs any prejudicial effect its admission may have on the accused: s 101 Evidence Act.
The material referred to in Incident 7 of the Notice is directed towards proving alleged tendency (d) as set out at [1] above. In my opinion, the Crown should not be permitted to lead this evidence as tendency evidence, because it is not necessary to do so. The Crown is entitled to lead this evidence as context or relationship evidence to assist the jury in understanding why the complainant did not make immediate complaint about the alleged charged events. To elevate this material to a tendency is apt to increase the prejudicial effect of the evidence, without in any way increasing its probative value.
In conclusion:
(i)the Crown will be permitted to lead the evidence referred to in Incidents 1A, 1B, 1C, 1D, 2, 3, 4, 5, and 6 as evidence relevant to each charge that the accused has a tendency to have a sexual interest in the complainant and to act on that sexual interest;
(ii)the Crown will not be permitted to lead the evidence referred to in Incident 7 as tendency evidence, but will be permitted to lead it as context or relationship evidence; and
(iii)the Crown will not be permitted to lead the evidence referred to in Incident 8 for any purpose.
These reasons are not to be published other than to the parties until the accused’s trial is completed.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
0
2
2