R v BF
[2016] ACTSC 244
•25 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BF |
Citation: | [2016] ACTSC 244 |
Hearing Date: | 24 August 2016 |
DecisionDate: | 25 August 2016 |
ReasonsDate: | 25 August 2016 |
Before: | Murrell CJ |
Decision: | Incidents 1 and 2 may be led as evidence of a tendency to have a sexual interest in B. Otherwise, Incidents 1–9 are not to be led as tendency evidence. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Tendency evidence – sexual offences – child complainants – whether incidents demonstrate tendency – whether tendency evidence may be led |
Legislation Cited: | Evidence Act 2011 (ACT) ss 97, 101 |
Cases Cited: | IMM v The Queen (2016) 90 ALJR 529 R v Kisun [2016] ACTSC 212 |
Texts Cited: | Goodman-Delahunty, Jane, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) |
Parties: | The Queen (Crown) BF (Accused) |
Representation: | Counsel Ms S McMurray (Crown) Mr P Smith (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 180 of 2014 |
MURRELL CJ:
The tendency application
The accused is charged with one count of committing an act of indecency on A, being a person under 16 years old (Count 1), four counts of committing an act of indecency on B, being a person under 10 years old (Counts 2–5), and two counts of having sexual intercourse with B, being a person under 10 years old (Counts 6 and 7).
Pursuant to s 97(1) of the Evidence Act 2011 (ACT) (Evidence Act), the prosecution seeks to tender the evidence on all counts and evidence of two other incidents as tendency evidence on each count.
The accused objects to the proposed tendency evidence.
The prosecution case
A and B are brothers. During 2010 and 2011, they lived with their mother and step-father. A was 11–12 years old and B was 6–7 years old.
The accused lived next door with his mother and younger siblings. The accused was aged 16–18 years. The accused has an intellectual disability.
In 2010–2011, A and B played with the accused at their home and the home of the accused; their step-father often took the accused on family outings.
The prosecution case is that A allowed the accused to use A’s Play Station Portable (PSP) to watch movies. The accused downloaded pornography onto the PSP and showed the pornography to A. The accused showed B the pornography on the PSP and also showed him pornography on the accused’s mobile telephone. The accused touched B in sexual ways and had oral sex with B.
The defence case is that the conduct did not occur. In addition, the defence raises mental impairment.
The tendencies
The prosecution asserts that the accused had behavioural tendencies to:
(a)expose A and B to pornography in order to evoke B’s sexual interest;
(b)kiss and bite B and touch B’s penis;
(c)pull B’s pants down and put B’s penis in his mouth; and
(d)put his penis into B’s mouth.
The prosecution asserts that the accused had a mental tendency to have a sexual interest in B.
The tendency evidence
The prosecution seeks to rely upon the following incidents to establish those tendencies.
Incident 1 (Count 1)
During 2011, A gave the accused his PSP so that the accused could watch movies. The accused downloaded pornography. A told the accused that he should not put pornography on the PSP, but the accused continued to do so.
When interviewed by police, the accused said that A had asked him to download pornography onto the PSP, but he had not done so.
A’s mother observed pornography on the PSP.
Incident 2 (Count 2)
During 2011, the accused showed B pornography on the PSP and on his mobile phone.
Incident 3 (Count 3)
In 2011, the accused kissed B with an open mouth.
When interviewed, the accused said that B had asked the accused to kiss him and do “naughty stuff”, including asking the accused to have sex, but the accused had declined to do so.
Incident 4 (Count 4)
In 2011, the accused touched B’s penis.
Incident 5 (Count 5)
In 2011, the accused licked and touched B’s bottom.
It is not clear whether B says that Incidents 3, 4 and 5 occurred on the same occasion.
Incident 6 (Count 6)
When interviewed by police, the accused said that B had sucked his penis and that he had been unable to prevent B from doing so, despite being much larger and stronger. When interviewed, B did not refer to this incident.
Incident 7 (Count 7)
In 2010–2011, in the lounge room of B’s house, the accused pulled B’s pants down when B got up to get a drink and the accused sucked on B’s penis.
Incident 8
In 2011, the accused bit B’s neck.
Incident 9
In 2010–2011, A was told to leave when the accused and B were playing together.
Issues on the application
In R v Kisun [2016] ACTSC 212, at [42], I summarised the questions that a court must consider on a tendency application as follows:
(a)Has the tendering party identified a s 97 tendency (a tendency to think or act in a “particular” way)?
(b)Are the tendency incidents (individually or in combination) capable of establishing the asserted tendency?
(c)What is the relevant “fact in issue” in the proceedings?
(d)If the jury accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
(e)Does the tendency evidence have significant probative value; could it be influential in the context of fact-finding/ important or of consequence in proving or disproving the existence of the fact in issue?
(f)What unfair prejudice attaches to the tendency evidence?
(g)Does the probative value of the tendency evidence substantially outweigh any prejudicial effect, taking into account the impact of jury directions?
(a) Has the tendering party identified a s 97 tendency (a tendency to think or act in a “particular” way)?
On its face, each of the five asserted tendencies is a s 97 tendency; it is a tendency to think or act in a particular way.
(b) Are the tendency incidents (individually or in combination) capable of establishing the asserted tendency?
Incident 1 refers to exposing only A to pornography. In isolation, it is not capable of establishing a tendency to evoke B’s sexual interest. However, it appears to be very relevant to supporting Incident 2/Count 2. If the accused downloaded pornography onto A’s PSP, then that is a circumstance that supports B’s assertion that the accused showed him pornography on A’s PSP.
Incident 2 is not capable of establishing asserted tendencies 2–4, each of which is quite specific. However, Incident 2 (which inferentially refers to a number of occasions when the accused showed the complainant pornography, either on the PSP or on the accused mobile telephone) is capable of establishing a tendency to have a sexual interest in B.
The accused submitted that Incident 2 is not capable of establishing that the accused tended to have a sexual interest in the complainant because the pornographic material that was allegedly shown to the complainant was heterosexual material and both the accused and the complainant were males.
I do not agree. The submission assumes that “sexual interest” must necessarily focus on a particular gender. The accused was a young and intellectually immature adult. If heterosexual pornographic material was shown to B, then the most obvious reason for doing so would be to sexualise B and then somehow use B, an available and vulnerable child, as a vehicle for the expression of the accused’s sexuality, be it homosexual, heterosexual or non-gender specific.
Incidents 3–5, 7 and 8 each concern specific sexual conduct by the accused towards B. Each is capable of establishing a tendency to have a sexual interest in B, but is not capable of establishing a tendency to engage in other, different, and specific sexual conduct.
If accepted, the evidence of Incident 6 does not support the proposition that the accused had a sexual interest in B. According to the accused, B forced him to submit to the conduct. Of course, the statement of the accused may be admissible on another basis.
Incident 9 refers to an occasion when the accused briefly secluded B from his family members. In combination with the other incidents, this may support the tendency to have a sexual interest in B in a very indirect way. It may be otherwise admissible.
(c) What is the relevant “fact in issue” in the proceedings?
In relation to each count, the “fact in issue” is whether the alleged act of indecency or sexual intercourse occurred. In a practical sense, the “fact in issue” is whether the relevant complainant is a reliable witness: IMM v The Queen (2016) 90 ALJR 529 (IMM).
(d) If the jury accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
The tendency to have a sexual interest in B, which may be established by the incidents other than Incident 6, is capable of informing the question of whether B is a reliable witness. If the accused had a sexual interest in B then that is a circumstance that is consistent with the asserted sexual behaviour of the accused towards B. It could inform the question of whether B is a reliable witness.
(e) Does the tendency evidence have significant probative value; could it be influential in the context of fact-finding/important or of consequence in proving or disproving the existence of the fact in issue?
Evidence has “significant probative value” if it could be “influential in the context of fact-finding”: IMM per the plurality at [46]. It has also been said that evidence has “significant probative value” if it is “important” or “of consequence” to proving or disproving a fact in issue: IMM per Gageler J at [103].
As the fundamental enquiry concerns the reliability of B as a witness, the evidence that may be influential in deciding that issue is evidence sourced from witnesses other than B. Apart from Incidents 1 and 2, all the evidence about whether the conduct occurred is sourced from B. There is some complaint evidence, but the complaint was not immediate and the complaint evidence is also sourced from B.
In combination, the evidence of Incidents 1and 2 is sourced from A, B and the mother of A and B. Further, the accused stated that he had a conversation with A concerning the downloading of pornography, although he denied that he agreed to do so. When Incidents 1 and 2 are viewed together, it is not simply a matter of B saying that there was pornography on A’s PSP which the accused showed him. Taken together, the evidence of Incidents 1 and 2 has significant probative value. It goes to establishing a tendency of the accused to have a sexual interest in B, which could be a powerful circumstance supporting B’s account of the accused behaving in a sexual way towards him.
The accused submitted that the evidence concerning pornography lacked significant probative value because the pornography was heterosexual pornography. For the reasons explained above, I consider the evidence to be of significant probative value despite the fact that the pornography was heterosexual pornography.
Incident 9 does not have “significant” probative value either alone or in combination with the other evidence. It is evidence of one occasion when the accused may have engineered a situation to be alone with B. The occasion is associated with what appear to be inadmissible assertions by B. It is not alleged that anything untoward occurred on that occasion.
(f) What unfair prejudice attaches to the tendency evidence?
Tendency evidence is usually prejudicial because it often raises bad character. In this case, the evidence of Incidents 1 and 2 says that the accused was prepared to show pornography to A and B, who were children. This type of criminal behaviour is different, although not more serious, than that alleged on the other counts.
The “unfair prejudice” to which s 101 of the Evidence Act refers is the risk that the fact-finder will use the evidence to engage irrational thinking or will become emotionally prejudiced by the evidence.
In this case, there is no “unfair prejudice” associated with the evidence of Incidents 1 and 2. If the proper use of the evidence is clearly explained to the jury, the jury will understand the reasoning process in which it must engage and will not simply jump to the conclusion that, because the accused was the sort of person who was prepared to show pornography to children, he therefore committed the other offences. The suggestion that the jury may use this evidence in any logical or emotional way is mere speculation. Juries are robust. There is empirical evidence that juries do not engage in emotional or illogical reasoning when considering tendency evidence: Jane Goodman-Delahunty, Annie Cossins and Natalie Martschuk, Jury reasoning in joint and separate trials of institutional child sexual abuse: An empirical study (Royal Commission into Institutional Responses to Child Sexual Abuse, 2016) 114.
(g) Does the probative value of the tendency evidence substantially outweigh any prejudicial effect, taking into account the impact of jury directions?
The probative value of the tendency that may be established by Incidents 1 and 2 is very significant. Any risk of prejudice can be addressed by appropriate directions. The real “prejudice” of the evidence arises from its probative value; it is not “unfair prejudice”.
The prosecution is permitted to lead Incidents 1 and 2 as evidence of the tendency of the accused to have a sexual interest in B. Otherwise, the evidence of Incidents 1–9 is not to be lead as tendency evidence.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 25 August 2016 |
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