R v BI
[2016] ACTSC 287
•18 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BI |
Citation: | [2016] ACTSC 287 |
Hearing Date: | 29 July 2016 |
DecisionDate: | 18 August 2016 |
ReasonsDate: | 29 September 2016 |
Before: | Burns J |
Decision: | See [37]-[39] |
Catchwords: | CRIMINAL LAW – Particular offences – offences against the person – sexual offences – act of indecency on a person under the age of 16 years – indecency in the presence of a young person – attempted incest – incest – attempted sexual intercourse with a young person. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – charged and uncharged acts – tendency to have a particular state of mind – to be attracted to children – tendency to act in a particular way – obtain sexual gratification from children – permitted to lead tendency evidence of charged acts. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to sever the indictment – where complainants are known to each other – where significant length of time between alleged acts – whether insufficient similarities in conduct – application refused. |
Legislation Cited: | Evidence Act 2011 (ACT), ss 55, 56, 97, 101 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51 |
Cases Cited: | BP v R; R v BP [2010] NSWCCA 303 Hughes v The Queen [2016] HCATrans 201 Velkoski v The Queen [2014] VSCA 121; 45 VR 680 |
Parties: | The Queen (Crown) BI (Accused) |
Representation: | Counsel Mr S McLaughlin (Crown) Mr M Kukulies-Smith (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Numbers: | SCC 64 of 2016; SCC 159 of 2016 |
BURNS J:
The accused, BI, is awaiting trial on the following charges:
(a)six counts of committing an act of indecency upon, or in the presence of TM, being a person under the age of 16 years, between 30 September 1995 and 1 June 1996;
(b)two counts of engaging in sexual intercourse with TM, being a person under the age of 16 years;
(c)two counts of attempting to engage in sexual intercourse with TM being a person under the age of 16 years, between 30 September 1995 and 1 June 1996;
(d)four counts of committing an act of indecency on OI, being a person under the age of 16 years, between 23 January 2009 and 3 July 2009;
(e)three counts of attempting to engage in sexual intercourse with a person under the age of 16 years, namely OI, who was to his knowledge his lineal descendent, between 23 January 2009 and 3 July 2009;
(f)one count of engaging in sexual intercourse with a person under the age of 16 years, namely OI, who was to his knowledge his lineal descendent, between 23 January 2009 and 3 July 2009;
(g)one count of engaging in sexual intercourse with a person under the age of 10 years, namely EI, who was to his knowledge his lineal descendent, between 23 January 2009 and 3 July 2009; and
(h)in the alternative to (f), one count of committing an act of indecency on EI, being a person under the age of 10 years, between 23 January 2009 and 3 July 2009.
All of these counts are contained in an indictment dated 17 May 2016.
In addition, the accused has recently been committed for trial on two further charges alleging that he committed an act of indecency on BB on 5 January 2005. These charges allege that BB was 13 years of age at the time of these alleged events. As I understand it, the Crown proposes filing a fresh indictment including these charges. I am not called upon in the present application to decide whether it is appropriate that the charges concerning BB be included on the same indictment as the charges alleging offences against TM, OI and EI. There are initial indications that the joinder of those charges may not be appropriate. As I understand it, unlike the other complainants, BB may not have been previously acquainted with the accused before the alleged offences. This means that an issue of identification may arise concerning the alleged offences against BB that will not arise with regard to the other alleged offences. I will therefore for present purposes, confine myself to consideration of the application as it applies to the charged on the present indictment.
By an application dated 30 June 2016 the Crown sought orders that it be permitted to lead evidence of tendency at the accused’s trial. The application ultimately proceeded on the basis of an amended Notice of Intention to Adduce Tendency Evidence dated 14 July 2016 (the Notice). The Crown proposed leading evidence of each “incident” in the Notice in relation to each count, or each other count on the indictment.
The Notice set out details of 13 incidents which the Crown proposed to rely upon to establish that the accused had a tendency, at the relevant times, to have a particular state of mind, namely to be sexually attracted to children, and also had a tendency to act in a particular way, namely to obtain sexual gratification from children. Many of the incidents set out in the Notice refer to the alleged acts of the accused which are the basis of charges against him, but some refer to alleged acts that are not the basis of any charges.
The accused opposed the Crown’s application. By an Application in proceedings dated 29 July 2016, he sought orders that the indictment be severed such that there would be separate trials for the charges relating to each alleged complainant.
This matter was listed for the taking of pre-trial evidence of the complainants, OI and EI on 18 August 2016. On that day I made orders that the Crown would be permitted to lead tendency evidence consisting of the evidence of each of the charges on the indictment to prove that the accused had, at the relevant times, a tendency to have a particular state of mind, being a sexual attraction to children. At that time I said that I would publish my reasons at a later date. These are those reasons.
The Notice
The incidents set out in the Notice are as follows:
Incident 1 (uncharged act)
(a)Substance of the evidence:
During a day in or before October 1995, the accused was lying on a couch in a house in Robinvale, Victoria with [TM] seated beside him. The accused unzipped his pants and forced [TM] to touch his erect penis. At the time, [TM] was approximately 12 years old (or younger).
Incident 2 (Counts 1-3)
(a)Substance of the evidence:
On an occasion in 1995 or 1996 (while [TM] was living with the accused and his sister [DM] – the accused’s then wife), the accused suggested that [TM] sleep with him in his bed as they were getting up early in the morning to go to the acccused’s work. Once in bed, the accused touched [TM]’s penis and bottom, masturbated in the presence of [TM], and then engaged in penile-anal intercourse with [TM]. At the time of this incident, [TM] was 12 or 13 year old.
Incident 3 (Count 4)
(a)Substance of the evidence:
On an occasion in 1995 or 1996 (while [TM] was living with the accused and his sister [DM] – the accused’s then wife), the accused suggested that [TM] sleep with him in his bed as they were getting up early in the morning to go to the accused’s work. Once in bed, the accused engaged in penile-anal intercourse with [TM]. At the time of the incident, [TM] was 12 or 13 years old.
Incident 4 (Counts 5-7)
(a)Substance of the evidence:
On a day in 1995 or 1996, [TM] accompanied the accused to his place of employment at [redacted for legal reasons]. While there, the accused showed [TM] a pornographic movie. The accused unzipped his pants and took out his penis. The accused forced [TM] to touch his penis and attempted to push [TM]’s head towards his penis. At the time of this incident, [TM] was 12 or 13 years old.
Incident 5 (Counts 8-10)
(a)Substance of the evidence:
During 1995 or 1996, the accused and [TM] were alone at [redacted for legal reasons]. The accused showed [TM] a pornographic movie. The accused made [TM] touch his penis and attempted to push [TM]’s head towards his penis. At the time of this incident, [TM] was 12 or 13 years old.
Incident 6 (uncharged)
(a)Substance of the evidence:
During 1995 or 1996, the accused and [TM] travelled from Canberra to ‘Spiro’s’ farm in Robinvale, Victoria. The accused and [TM] went to bed in the front room of the house on ‘Spiro’s’ farm while it was still light outside. The accused then had penile-anal intercourse with [TM]. [TM] experienced pain from this intercourse. At the time of this incident, [TM] was 12 or 13 years old.
Incident 7 (uncharged)
(a)Substance of the evidence:
Approximately one to two days after ‘Incident 6’, and during the return trip from ‘Spiro’s’ farm in Robinvale, Victoria, the accused stopped the car, at night, in Gundagai (near ‘the dog on the tucker box’). The accused and [TM] got into the back seat of the car where they had penile-anal intercourse. [TM] experienced pain from this intercourse. At the time of this incident, [TM] was 12 or 13 years old.
Incident 8 (uncharged)
(a)Substance of the evidence:
On 29 November 2002, [DD] borrowed $350 from the accused with the intention of paying the money back to the accused on 6 December 2002. On 6 December 2002 [DD] sent a text message to the accused letting him know that she was not coming around that day to pay him back. An exchange of text messages followed during which the accused sent: “how about don’t worry about the money I can come over you can pay me in sex” and “c’mon just open your legs for me”. The accused also called [DD], during which he said “I am not joking, let’s just deal with it”. Over the following days, [DD] received more than 200 further text messages from the accused. At the commencement of this incident [DD] was 15 years old. ([DD] turned 16 years old on 8 December 2002).
Incident 9 (the charges recently committed for trial)
(a)Substance of the evidence:
On 5 January 2005, at approximately 2:00pm, [BB] approached [redacted for legal reasons] and asked the accused if he could mow the accused’s lawn. The accused agreed and gave [BB] $20. A short time later, the accused offered [BB] a drink. [BB] went inside, sat down and had his drink. The accused then gave [BB] a cigarette and commenced playing a pornographic video on his computer. The accused was sitting in a chair which was beside where [BB] was sitting. The accused placed his hand on [BB]’s thigh and asked a number of times: “Can I touch?” The accused also asked [BB] whether he liked sex. [BB] left the house and mowed a portion of the accused’s lawn. The accused gave [BB] a further $5. At the time of the incident, [BB] was 13 years old.
Incident 10 (Counts 11-14)
(a)Substance of the evidence:
During a night between 23 January 2009 and 3 July 2009, [OI] was at the accused’s house at [redacted for legal reasons]. While [OI] was in the shower, the accused took his clothes off and got into the shower with her. The accused used a shower/washing pouf to wash [OI]. After the shower [OI] got dressed into her pyjamas and got into the accused’s bed. The accused got into bed with [OI] without any pants on. At this time, [OI] could see the accused’s penis. The accused proceeded to make [OI] touch his penis with her hand and pushed her head towards his penis in an effort to put his penis in her mouth. The accused also verbally encouraged [OI] to put his penis in her mouth. Subsequently, the accused removed [OI]‘s pants and performed cunnilingus on her. At the time of this incident [OI] was 11 years old.
Incident 11 (Counts 15-17)
(a)Substance of the evidence:
During a night between 23 January 2009 and 3 July 2009, [OI] was at the accused’s house at [redacted for legal reasons]. The accused had a shower with [OI]. [OI] and the accused then got into the accused’s bed. The accused then attempted to make [OI] touch his penis and put his penis in her mouth. At the time of this incident, [OI] was 11 years old.
Incident 12 (Counts 15-17)
(a)Substance of the evidence:
On a weekday between 23 January 2009 and 3 July 2009, [OI] was at the accused’s house at [redacted for legal reasons]. [OI] was sitting on a couch watching television and the accused was sitting on another couch. The accused told [OI] to come and sit next to him, which she did. The accused then pulled down his pants and underwear. The accused told [OI] to put his penis in her mouth. [OI] refused to do this and went back to the other couch. At the time of this incident, [OI] was 11 years old.
Incident 13 (Counts 19-20)
(a)Substance of the evidence:
Sometime between 23 January 2009 and 12 February 2012, [EI] was at [redacted for legal reasons]. Also present at that time were the accused, [OI], and [BI]. [EI] went to bed in the accused’s bed. Sometime later, the accused entered the bedroom and got into bed with [EI]. The accused then removed his clothes and told [EI] to do the same. The accused put his penis near [EI]’s vagina for a number of minutes before inserting his penis into her vagina. At the time of this incident, [EI] was between 4 and 7 years old.
Relevant legislation
The following provisions of the Evidence Act 2011 (ACT) (the Evidence Act) are relevant:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
...
56Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
97The 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.
(2)Subsection (1) (a) does not apply if—
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict tendency evidence presented by another party.
Note The tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
101 Further 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.
Dictionary
Part 1Definitions
probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The Crown’s submissions
The Crown submitted that the alleged tendencies, if established, would allow the jury, together with other evidence, to conclude that the accused did the acts alleged in the charges against him. It further submitted that a jury could conclude that the accused had the alleged tendencies based on the evidence of each of the alleged incidents. The Crown acknowledged that the sexual acts allegedly referred to in the charges were not all the same, but said that the evidence must show a tendency to act in a particular way, not a tendency to commit acts of a closely similar nature: R v Ford [2009] NSWCCA 306; 201 A Crim R 451; R v Smith [2008] NSWCCA 247; 190 A Crim R 8.
The Crown noted that the accused had not formally identified any matters as in issue or not in issue at his trial, so that the Crown was obliged to proceed on the basis that everything was in issue. As the accused is a person who was apparently known to each of the complainants before the alleged events, the likely issue at the trial will be whether the alleged events occurred at all.
The Crown relied on observations which I made in R v Tully (No. 1) [2013] ACTSC 127 at [43], where I said:
Both the tendency to be sexually attracted to female children and the tendency to act on that attraction are sufficiently extraordinary to possess significant probative value in assessing whether an accused has committed an alleged sexual offence on a female child: R v Johnston (2012) 6 ACTLR 297.
On appeal (Tully v The Queen [2016] ACTCA 4 (Tully v The Queen)), Murrell CJ and North J said at [45]:
If established by reliable evidence, each charged act provided strong evidence of the appellant’s alleged tendencies to be sexually attracted to young girls and to act on that attraction. The appellant did not dispute that, if credibly established, each tendency constituted circumstantial evidence of significant probative value. Each tendency was a circumstance that may well have bolstered the complainants’ allegations in a legitimate way.
The Crown submitted that each of the incidents set out in the Notice were relevant to establishing the alleged tendencies, and that those tendencies have significant probative value as they increase the likelihood that the charged acts took place.
The Crown submitted that the probative value of the proposed tendency evidence substantially outweighed any prejudicial affect to the accused, citing the judgment of Murrell CJ and North J, Tully v The Queen at [33]-[35]:
The probative value of evidence goes to proof of an issue, whereas the prejudicial effect of evidence goes to the fairness of the trial: Pfennig v The Queen (1995) 182 CLR 461 (Pfennig) per McHugh J at 528. Evidence is prejudicial if there is a risk that the jury may misuse it, i.e. use it other than by way of considering its rational impact on the probability of a fact in issue. For example, evidence is prejudicial if it is inflammatory or it encourages unconscious prejudice: R v Zhang (2005) 227 ALR 311.
Tendency evidence is inherently prejudicial. In Pfennig, Mason CJ, Deane and Dawson JJ accepted that it is natural for a jury to think that, if an accused tends to act in a particular criminal way, then he probably acted in that way on the occasion/s charged. In Stephen Odgers’ Uniform Evidence Law (11th edition), at page 535, the primary dangers associated with tendency evidence are expressed to be the dangers that the jury may convict as punishment for conduct other than that charged; may overestimate the probative value of the evidence; may too readily accept other prosecution evidence adduced to prove guilt; and may be distracted from the central issues in the trial.
In many cases involving prejudicial evidence, the prejudice can be addressed by limiting the extent of the evidence or by appropriate directions: HML v The Queen (2008) 235 CLR 334 at [28]. Where tendency evidence has been admitted, it is usual for the trial judge to caution the jury about the improper use of tendency evidence. Of course, there will be other cases where the nature, significance or volume of the prejudicial evidence is such that the prejudice is incapable of cure, even by careful direction: Patel v The Queen (2012) 247 CLR 531.
The accused’s submissions
The accused opposed the application to lead tendency evidence, and sought orders that there be separate trials for the charges relating to each separate complainant. The accused submitted that the proposed tendency evidence did not possess significant probative value as: (a) the events alleged by the Crown are too far apart in time; (b) there are insufficient similarities in the conduct alleged to give the evidence significant probative value; and (c) there is a risk of contamination or concoction of the evidence.
Consideration
The first series of offences alleged against the accused, counts 1 to 10 in the indictment, allege offences against TM between 30 September 1995 and 1 June 1996. The next alleged offence, in chronological order, is the alleged act of indecency against BB on 5 January 2005. The next series of offences, counts 11 to 18 on the indictment, allege offences against OI between 23 January 2009 and 3 July 2009. The final series of alleged offences are said to have been committed on EI between 23 January 2009 and 3 July 2009.
It is apparent that there is a gap of approximately 9 years between the events in counts 1 to 10, and the alleged assault of BB. There is then a further gap of 4 years between that alleged assault and the events of counts 11 to 20.
The accused referred me to the decision of the New South Wales Court of Criminal Appeal in R v Watkins [2005] NSWCCA 164; 153 A Crim R 434 (R v Watkins). The appellant, Watkins, was convicted at trial of 30 counts of fraud between July 1999 and April 2002. At his trial the Crown was permitted to lead on tendency and coincidence evidence that between 1983 and 1984 the appellant committed offences of larceny as a clerk. In his trial for the latter offences, the appellant admitted drawing the cheques in question, the only issue being whether he had drawn and used the cheques dishonestly or honestly in a manner authorised by his employers. In determining that evidence of the 1983/1984 offences should not have been admitted, Barr J (with whom Grove and Howie JJ agreed) said at [33]-[36]:
As refined during the trial, the principal issue was whether the appellant made the deposits according to the arrangement he claimed to have made with Mr Robert Frost and Mr McAndrew. The Crown had to prove beyond reasonable doubt that he did not. The tendency of the appellant contended for was to cheat and defraud. No doubt if a person is proved to have stolen money from one employer thirty-seven times over a period of a year, misleading other employees by his lies, he may be understood to have a tendency to cheat and defraud his employer. No doubt, also, the person in whom such a tendency is established may be expected to retain that tendency for some time, especially if he continues to occupy a similar position, like senior accountant, and has similar duties, like authorising payments to creditors. But people do reform, and the fact that the Crown asserted no dishonest act between 1984 and 1999, coupled with the fact that in 1985 the appellant pleaded guilty and returned all the money he had stolen from Fairfax, might have thrown doubt on the continuation of his tendency for a period as long as fifteen years.
To have significant probative value the evidence had to be more than merely relevant, but have a substantial degree of relevance, and that was to be judged by reference to the issue raised at trial, namely whether the appellant deposited the cheques intending to cheat and defraud Tasman KB or whether he was innocently giving effect to an arrangement proposed by Mr Robert Frost and Mr McAndrew: R v Lockyer (1996) 89 A Crim R 457.
There was no logical connection between the events of 1983 and 1984 and 1999 to 2002, and the only way in which the jury could have used tendency evidence was to reason that the appellant was a cheat and a fraud and was therefore more likely to have cheated and defrauded Tasman KB, which is another way of saying that he was therefore more likely to be lying in his assertion about the arrangement he said was proposed by Mr Robert Frost.
The jury could so reason only if the appellant had retained such tendency as was demonstrated by evidence of the events of 1983 and 1984. Critical to that question was the passage of fifteen years without asserted blemish, a circumstance argued by defence counsel as affecting the probative value of the evidence. His Honour's failure to refer to counsel's argument and to the passage of time suggests that those matters were overlooked.
The Court also concluded that the evidence should not have been admitted as coincidence evidence, due mainly to dissimilarities between Watkins’ conduct in the 1983/1984 offences and the alleged offences at trial.
In my opinion, the factual circumstances of the present matter, as alleged by the prosecution, distinguish it from these in R v Watkins. Sexual attraction is of a different nature to whether a person chooses to act honestly or dishonestly. To say that a person has a tendency to dishonesty is to say nothing more than the person, in the past, made particular choices about the way in which they will act. A jury would be entitled, using its own knowledge of human affairs, to conclude that sexual attraction is an innate characteristic over which the passage of time is likely to have little influence. This is not to say, as the accused submitted, that “once a paedophile, always a paedophile”, as the passage of time may well influence whether an individual acts upon a sexual attraction; whether an individual acts upon a sexual attraction is a matter of choice, and an accused’s morality and understanding of the harm caused to children by involvement in sexual activity may well influence an individual’s choice whether to act upon such a sexual attraction. These are matters which may change or develop over time. This, however, is different to suggesting that the individual chooses to be sexually attracted to children.
For this reason, I did not consider that the probative value of the evidence was adversely affected by the chronological gaps between the charges.
Turning to the second objection made by the accused, that there were insufficient similarities between the alleged offences to give the evidence significant probative value, the accused acknowledged that s 97 of the Evidence Act does not require, on its face, close similarity between events and circumstances. He, nevertheless, submitted that consideration of similarities between events and circumstances remains critical to the assessment of probative value, citing BP v R; R v BP [2010] NSWCCA 303 and Velkoski v The Queen [2014] VSCA 121; 45 VR 680.
In my opinion, much depends upon the fact or facts in issue to which the tendency evidence is directed, and the process of reasoning required of the jury. Where, for example, tendency evidence is adduced to prove that it was the accused who committed a particular offence, as opposed to any other person, it may be expected that the probative value of the evidence will depend upon the extent to which similarities between events reveals a forensic signature, but this will not always be the case. For example, evidence that an accused person has a history of using, or threatening to use, knives on others may, together with evidence of opportunity and motive, have significant probative value in establishing that it was the accused who murdered the victim by stabbing: see R v Vojneski [2014] ACTSC 66 (R v Vojneski). In forensic signature cases the process of reasoning which the jury is asked to adopt is that the similarities between events is so striking as to suggest that it must have been the accused who committed the charged offence. For the similarities to have probative value, they must be such as to suggest that it was the accused, and not some other person, who committed the charged offence. In the second type of case, of which R v Vojneski is an example, there is no striking similarity between the tendency evidence and the charged events. The tendency evidence nevertheless demonstrates something of great probative value, being that the accused has a tendency to use knives against others when he is angry. This is a form of circumstantial evidence. In that type of case, the Crown asks the jury to consider that circumstance together with other circumstances such as evidence of opportunity and motive to infer that the accused, and not some other person, committed the offence.
The fact in issue in the present is not the identity of the alleged assailant. The accused is well known to each of the complainants. The fact in issue is whether the accused acted in the way alleged by the complainants. It is, in my opinion, open to the jury to reason that he is more likely to have so acted if he has a proven sexual attraction to children. Proof of such a tendency by itself, could not establish his guilt with respect to any of the charges, but it is a circumstance which the jury could consider, together with the evidence of each of the complainants, to determine whether they are satisfied that the accused committed a charged offence. The use of evidence of a tendency of the accused to be sexually attracted to children in this way does not involve impermissible propensity reasoning, as it does not rely upon the jury reasoning from the tendency evidence that the accused must be guilty of a charged offence because he is the sort of person who would commit such an offence. In contrast, the evidence in R v Watkins of earlier offending was only capable of establishing that the accused was a dishonest person, and the jury were in effect invited to reason that because he was a dishonest person he was more likely to have committed the charged offences. The difference in the present case is that there is a point of similarity between the different offences said to have been committed by the accused, in that they are all sexual offences involving children. Sexual attraction to children is a characteristic sufficiently unusual as to give it significant probative value in determining whether an individual possessing such a characteristic has committed a sexual crime against a child. Adducing evidence of a tendency of an accused to be sexually attracted to children is clearly prejudicial, as there exists the possibility that the jury may misuse the evidence, but it is standard practice for the jury to be warned against such impermissible reasoning.
I note in passing that the extent to which similarity between events is a precondition to the admission of tendency evidence, and the apparent difference of approach between the Courts of New South Wales and Victoria on this issue, is, as I understand it, to be considered by the High Court after special leave to appeal was granted in Hughes v The Queen [2016] HCATrans 201 on 2 September 2016.
Turning to the final matter raised by the accused, that the evidence does not have significant probative value because of the risk of concoction or contamination of the evidence, it must be accepted that the complainants are known to each other, as they are related. There was no application to cross-examine the complainants on the voir dire, so that the suggestion of concoction or contamination of the complainants’ evidence was based solely upon the contents of their evidence-in-chief interviews with the police.
The accused submitted that OI has a motive to lie about him, because she has an acrimonious relationship with her stepmother. In her evidence-in-chief interview, OI does say that she does not like her stepmother, and refers to her as ‘a little bit of a bitch’. This, however, is not evidence of concoction or contamination of her evidence.
In a recorded conversation with police, OI’s mother is asked whether she can think of any reason why OI would ‘make something like this up’ against the accused, and she replied ‘I don’t know, you know. Like, unless she doesn’t want to take the chance of him being in charge of her...’ The accused submitted that it is significant that OI’s mother was uncertain whether OI would lie about matters of this nature, and that she, OI’s mother, volunteered the possible motive of OI fabricating the allegation to avoid OI having to live with the accused. In my opinion this material does not provide support to the proposition that the evidence of OI may be affected by concoction or contamination. The question directed to OI’s mother by police was capable of being understood as either seeking information from the witness based upon her personal knowledge, that is, something that may have been said by OI, or as seeking an opinion from OI’s mother. The witness’ answer is clearly speculation, not said to be based on any statement by OI to her mother. This material would be clearly inadmissible if attempts were made to lead it at the trial of the accused.
The next matter referred to by the accused is the suggested change in the version of events given by EI to police at her two interviews. In the first interview, which took place on 16 September 2015, EI made no complaint against the accused, and said she did not remember any disclosures being made to her by OI. Further, EI denied having seen the accused’s penis. In her second interview conducted on 9 January 2016, however, she makes a number of allegations of sexual abuse against the accused. Further, in the second interview EI told police that she had previously told OI that the accused had put ‘his private parts on mine’, but, the accused said, OI made no mention of EI making such a statement to her when OI spoke to police on 16 September 2015.
The first point made by the accused is inconsistency between the two statements made to the police by EI. This is undoubtedly a matter which may reflect on the credibility of EI. I note that in her second interview, EI was asked by police why she had not said anything at the first interview about the allegations that she was then making and EI replied ‘I was really shy to...’ At the time of the first interview EI was 10 and she had turned 11 by the time of the second interview. It would not be surprising if a child of that age was embarrassed to reveal alleged sexual abuse by her father. This is something a jury would weigh up in considering EI’s credibility. In the second interview EI also denies having recently discussed the allegation with OI, saying that she told OI of these allegations when she, EI, was about seven years old. I note that in her interview with police on 16 September 2015, OI was not asked any questions about EI, and the questions posed by the interviewing police focussed on OI’s allegations that the accused has assaulted her.
The next matter relied upon by the accused is a statement made by EI’s brother, BI, to police on 14 February 2016 where he expressed the opinion that EI was ‘easily influenced’ and that ‘someone may have been able to twist the way she thought about our father’. No weight can be given to this material, which is clearly inadmissible.
I accept that it is important to consider all of the material relevant to the possibility of concoction or contamination as a whole, but having done so I was satisfied that the evidence does not rise above establishing that the theoretical possibility of concoction or contamination may exist.
I was satisfied that the evidence would have significant probative value. I therefore turned to the test under s 101 of the Evidence Act, which provides that tendency evidence presented by the prosecution cannot be used against an accused person unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the accused.
The accused submitted:
It is contended that “sexual cases ... are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.” De Jesus v The Queen [1988] HCA 65; (1986) 61 ALJR 1, 3 (Gibbs CJ): R v Fitzpatrick (2012] (sic) ACTSC 102 [21] (Burns J). This concern is heightened in cases in which sexual acts against children are alleged. There is a very real risk that if the jury finds allegations on one indictment or some of them proved that its members may determine guilt on the other on the basis of disposition without proper consideration for the strength of each complainant’s evidence. In other words,
the jury might reason no more rationally than that, if the respondent molested [two other persons], he did the same to the complainant, and the emotion not rationality would govern’: R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408.
It may be accepted that sexual cases, and particularly those involving alleged offences against children, are particularly apt to elicit strong emotions. The cases cited by the accused, however, do not stand for the proposition that tendency evidence cannot, or even should not, be admitted in cases involving alleged sexual offending against children. Caution must, however, be exercised. An unnecessary proliferation of counts involving multiple complainants, or unnecessary expansion of the ambit of the trial by reference to uncharged acts, may tip the balance in favour of rejecting an application to lead tendency evidence, and, where applicable, ordering that the indictment be severed.
The tendency which the Crown will be permitted to allege is a tendency to be sexually attracted to children. That is sufficient for present purposes. I declined to allow the Crown to lead evidence of the uncharged acts because of their slight probative value as evidence additional to the charged acts, and the prejudicial effect of proliferation of alleged impropriety by the accused.
For these reasons I made the orders which I did on 18 August 2016. It follows, of course, that the accused’s application to sever the indictment was refused.
There is one further matter which must be addressed. The accused has made an application pursuant to s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) to cross-examine OI and EI in relation to previous “sexual activity”. The application is limited to cross-examination of these complainants about their access to, and viewing of, pornography prior to their respective complaints to the police concerning the accused. The purpose of the proposed cross-examination is to establish that the complainants’ apparent familiarity with sexual matters, unusual in children their age, is the result of exposure to pornography rather than indicative of the truth of their allegations of sexual abuse at the hands of the accused. This is a legitimate forensic purpose, unconnected with any attack on the complainant’s credibility based upon sexual reputation or prior sexual history. I allow the application in this limited form.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 29 September 2016 |
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