R v BF

[2023] QChC 10

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v BF [2023] QChC 10

PARTIES:

DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)
v
BF

(applicant)

FILE NO/S:

CCQ 504/22

DIVISION:

Childrens Court of Queensland

PROCEEDING:

Pre-trial Hearing

ORIGINATING COURT:

Childrens Court of Queensland

DELIVERED ON:

9 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2023

JUDGES:

Dearden DCJ

ORDER:

Applications dismissed.

CATCHWORDS:

EVIDENCE – EXCLUSION OF EVIDENCE – EVIDENCE OF UNCHARGED CONDUCT – where the evidence is proposed to be led at the trial of the defendant child in respect of two counts of indecent treatment of a child, under 16, under 12 - whether evidence of uncharged conduct should be excluded – where the applicant submits that the evidence is not relevant – where the respondent submits that the evidence carries an undercurrent of sexual behaviour

COUNSEL:

J Wallace for the applicant.

P O’Connor for the respondent.

SOLICITORS:

Wallace O’Hagan for the applicant.

Office of Director of Public Prosecutions for the respondent.

Introduction

1. This is an application seeking to exclude evidence proposed to be led by the prosecution at the judge-alone trial of the defendant child, BF, in respect of two counts of indecent treatment of a child under 16, under 12, alleged to have occurred on a date unknown, between the 30^th of June 2020 and the 30^th day of April, at Manly West, each count relating to a complainant, GF, a child under 16 years, under 12 years. Although a formal application has not been filed, both prosecution and defence are content for the matter to proceed on the basis of an undertaking from Mr Wallace, for the applicant child, to file a written application, and this matter will proceed on the basis that that will be filed as soon as possible.

2. The charged offences are helpfully outlined in the respondent’s submissions are as follows:-[1]

   [1] Exhibit 2 – submissions on behalf of the prosecution.

   (8) Count 1 on the indictment is the occasion where the defendant (13) was caught by his mother.  The complainant (8) was about to go to sleep.  He recalls the following account of the event:

   … this time, he was more aggressive and more disgusting, and this time, he was, he - w -, he was actually doing it faster.  He went on top of me, and he kept on, umm, he kept on like, umm, –, touching me on the back … my mum saw him, and, and, umm, she, she came over, she said, “What were you doing,” but I was very scared, and I was very, umm, it was, I was very scared, so I lied, and I said nothink.  [s.93A interview p.24 - sorry, p.19, ll32 - 50, (exhibit (a) affidavit of Brianna Hayes, affirmed 8 March 2023)].

   … I think, I was laying on my back, and, basically, he did what, he did what, he did everything he did in the, the first time he tried doing it … he did basically hovering on top of me, like what he did in the first time … I think he was demanding me to do stuff, but I just didn’t do it.  Umm, I was just being, I was just being quiet and not listening to him … when he was on top of me, I couldn’t basically breathe, because his chest was on my nose, so I had to go on to the side and breathe out, and then I, and then that was when, umm, what’s it called, umm, that was also when my mum came … he was demanding me to get on my stomach, like, as in lay on my stomach … what I mean by aggressive, more fast, like, in this time, umm, he was holding my bum with his other hand … the, he was on top of me … I told him to stop.  [s.93A interview p.30, l12 - p.32 l1 - exhibit (a) affidavit of Brianna Hayes, affirmed 8 March 2023].

   (9) MB, says that she saw the defendant and complainant on the bed under the covers.  The complainant was facing the wall with his pants on, the defendant was laying on the outside of the bed with his pants down.  He reached down to pull his pants up.  She tried to remove the bedding, but the defendant held onto it to stop her.  MB called out to JM. When she got there, JM, recalls that the defendant had his pants pulled all the way down, and the complainant had his pants halfway down.  She also saw the defendant reach for his pants and try to pull them up.  JM saw a blue bottle of lotion, which the defendant had obtained earlier in the evening, she could smell it in the room.  [Statements of MB dated 29.6.2021 and 15.12.2022 are exhibits (b) & (c); statements of JM, dated 8.3.2022 and 15.12.2022 are exhibits (d) & (e) respectively to the affidavit of Brianna Hayes, affirmed 8 March 2023].

   (10) Count 2 occurred at his dad’s house when they were on the couch watching TV.  The complainant described it as follows:

   … he just wanted to do the same thing on the couch, though, but, umm, he tried to do the same thing he did last time, umm, but this time, uh, umm, I w -, we were sideways, we were basically lying down like this … with my legs out, and then he came on, and then he tried to, umm, he tried -, he tried to get behind me, so he can hold my bottom, and, umm, and then that we -, umm, and then I got off him … he, he tried -, he was pulling me back, so I couldn’t go … and that was when I was laying down, and then he, he touched my bottom … so he was just holding it the whole time, umm, like, holding it the whole time, while his other hand was holding the back of my shirt, so I could get off him … [s.93A interview p.34 l45 - p.37 l9, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023].

3. The uncharged conduct is also helpfully summarised in the respondent prosecution’s outline as follows:-

   (5) The first time something happened was around the end of 2018, the complainant (7) recalls that the defendant (12) called him to their shared bedroom.  He told the complainant to get onto the bed.  The complainant laid down on his back, and the defendant tried to lay down on top of him, but the complainant rolled off the bed and ran away.  [s.93A interview p.5 - 13, exhibit (a) affidavit of Brianna Hayes, affirmed 8 March 2023].

4. The complainant described the defendant’s behaviour as follows:

   … he was acting more like, he was acting gay, I think, more of a sexually-gay person … actually acting like a, like a boy, but tryna act like a girl at the same time, and doing, acting weirdly, by, like, acting like, what he was watching, which was weird and disgusting and how they talked was weird … he was acting uh, aggressively, too, more, he wanted to do it fast without no one knowing … he’s very mean to me mostly.  And he wa -, he wasn’t mean, he was just acting nice and weird.  Not like his normal self, cos his normal self is mean, and he never umm, is nice … [s.93A interview p.11 - 12, exhibit (a) affidavit of Brianna Hayes, affirmed 8 March 2023].

   (6) the next time something happened was around February 2019 [s.93A interview p.14 L15, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023], the complainant (7) was asleep, laying on his stomach in bed, and woke up to the defendant (12) touching him disgustingly.  [s.93A interview p.13 l56, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023].  The complainant described waking up with the defendant on top of him, touching his shoulders and back [s.93A interview p.16 l55 - p.17 l1, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023]. 

   The complainant says:-

   … he like, stopped, when I just woke up, then he started going again … and then, like, after one minute, and - so then I went into my mum’s room. [s.93A interview p.17 ll34 - 40, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023].

   I thought he was trying to umm, he was trying to rape me … raping is basically sexually abusing someone by basically going on them - - … without permission.  [s.93A interview p.19 ll32 - 50, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023].

   The following occasion was around the start of 2020, close in time to count 1 [s.93A interview p.24 l9, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023] and concerns the defendant (13) exposing the complainant (8) to a video on his phone.  The complainant says that he learned the word “sexually” from what the defendant was watching, in the show.  In the show they were watching, it said raping was good [s.93A interview p.21 l20, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023].  On this specific occasion, he described the video as portraying two men wearing clothes, and that it was “gross and disgusting”.  [s.93A interview p.23 l54, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023].  He states that:

   … it was two guys, umm, there was a bed … and basically they were doing the same thing, exact same thing that BF was doing, it’s just that they were older than him …, hovering on top of me, touching me, umm, [indistinct] he was doing basically everything, and they weren’t talking, they were doing the same thing, umm, and yeah, and they were maybe way older … [s.93A interview p.26 ll38 - 54, exhibit (a), affidavit of Brianna Hayes, affirmed 8 March 2023].

5. The Crown seeks to lead this evidence of the three prior incidents (the two physical incidents and the showing of the complainant child the video of two adults apparently acting “sexually” to each other (the adults being men)) as evidence of a sexual interest in the complainant by the defendant, in the context of their relationship as siblings in the family home at the time.

6. The applicant’s submissions are that the evidence should be excluded on the basis that the first reported incident occurred some two years prior to the first count on the indictment, and in the applicant’s submission:-[2]

   [2] Exhibit 1 [14].

   … goes no higher than the defendant tried to lie on top of the complainant.

7. At the time, the complainant would have been around six and the defendant around 12, and it is submitted that the incident is “utterly innocuous” and does not demonstrate a sexual interest.

8. The applicant argues that the second incident said to occur in early 2019 was a “hovering incident”, with the defendant rubbing the complainant’s shoulders and back, but without any “sexual conduct” or inappropriate touching, and, again, it is submitted that this evidence lacks any probative value in showing a sexual interest.

9. Finally, the applicant submits that the third incident, at the beginning of the same year, that the first allegation is alleged to have occurred, is a video of two clothed men, one hovering on top of the other, and, again, it is submitted, does not evidence sexual interest.

10. The primary submission is that the evidence is not relevant, that it is not overtly sexual, and therefore does not demonstrate a sexual interest by the applicant in the complainant.

11. The respondent, on the other hand, submits that the uncharged conduct in each case carries “an undercurrent of sexual behaviour” (exhibit 2 [11]).  In particular, the respondent identifies the description by the complainant of each of the occurrences using sexualised language, and the descriptions in each case are of events that, at least as perceived by the complainant, were sexualised in one way or another.

12. In respect of the first incident, he talks about the defendant acting as a “sexually-gay person”; in respect of the second incident, the complainant describes an incident in which he perceived that the defendant was “trying to rape me”, that is “sexually abusing someone” by going on them “without permission.”  And, finally, the third matter, the complainant describes learning the word “sexually” from being shown that video and describes the two men wearing clothes in the video as doing basically the same thing as his brother (the defendant) had been doing to him.

13. The issue then is whether this is evidence demonstrating a sexual interest, which is therefore admissible, because it places the balance of the prosecution case, in particular, the two indicted offences, in context.  From the respondent’s point of view, it is clear that the uncharged acts have occurred, although some reasonable time prior to the charged acts (in the order of two years) in a context of family members who have an ongoing relationship with and contact with each other, where the nature of the conduct between the defendant and the complainant, as alleged, appears to be escalating and would in the context of adult sexual offending against a child clearly be considered to be “grooming”, testing the complainant’s level of resistance to the physical acts in each case and, in respect of the video, demonstrating the normalisation essentially of that conduct between two male persons (albeit, adults in respect of the video).

14. As the complainant describes these incidents (and I stress that is always going to be subject to cross-examination which may change the landscape), not only are each of the incidents described as being sexualised, but the complainant’s description of count 1 is essentially that the defendant was “more aggressive and more disgusting”, by inference than previous physical contact, with the complainant describing something as being of the same kind as the previous conduct by the defendant against him, and that, of course, makes no sense without the admission of that prior uncharged conduct. Then, in respect of the second incident, there is a description of the defendant wanting to do “the same thing” on the couch, although it is not clear from that whether that is the same thing as the first incident or, in turn, whether that is related back to the prior uncharged conduct in respect of the first two incidents of that conduct, or even perhaps what he describes as seeing in the video.

15. In my view, I have no hesitation in concluding that the uncharged acts most clearly, taken at face value, demonstrate a sexual interest and a form of grooming (in respect of the video), they undoubtedly are relationship evidence, and, in any event, particularly, at least in respect of count 1 and arguably count 2, the prior uncharged acts contextualise the allegations that the complainant makes about the physical conduct of the defendant towards him which, depending on the view that the tribunal of fact takes, might be considered to be “indecent” in light of time, place and circumstances.  That assessment of “time, place and circumstances” should, in my view, be an assessment that is made in the light of the prior uncharged conduct between the defendant and the complainant.

    Order

16. It follows from the conclusions that I have reached that the application to exclude the uncharged conduct must fail.  Accordingly, I order as follows:

    (1)Application dismissed.