R v Cattle
[2020] ACTSC 8
•31 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cattle |
Citation: | [2020] ACTSC 8 |
Hearing Date: | 30 January 2020 |
DecisionDate: | 31 January 2020 |
Before: | Elkaim J |
Decision: | See [46] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – application for a stay of proceedings – application for severance – course of conduct charge for child sexual offences – retrospectivity |
Legislation Cited: | Crimes Act 1900 (ACT) ss 66B, 76, 92K(2) Evidence Act 2011 (ACT) ss 97, 101 |
Cases Cited: | Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11 |
Texts Cited: | Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 25 October 2018, 4238-4241 (Gordon Ramsay, Attorney-General) Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 27 November 2018, 4874-4875 (Gordon Ramsay, Attorney-General) Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (Executive Summary and Parts I - VI, August 2017) |
Parties: | The Queen (Crown) John Walter Cattle (Accused) |
Representation: | Counsel K Lee (Crown) C Smith SC with S Howell (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused) | |
File Numbers: | SCC 162 of 2019 |
ELKAIM J:
The accused was charged with the following 7 offences in an indictment filed on 2 September 2019:
(a) 1 count of indecent assault on a female, contrary to s 76 of the Crimes Act 1900 (ACT) (the Crimes Act) in conjunction with s 66B of the Crimes Act;
(b) 3 counts of indecent assault on a female, contrary to s 76 of the Crimes Act; and
(c) 3 counts of committing an act of indecency on a person between 10 and 16 years, contrary to s 92K(2) of the Crimes Act.
The accused is due to stand trial on 10 March 2020.
On 21 November 2019 the Crown filed an Application in Proceeding requesting leave to adduce tendency evidence in accordance with a Notice of Intention of the same date.
Also on 21 November 2019 the accused filed an Application in Proceeding requesting that Counts 1, 2, 3 and 4 in the above indictment be permanently stayed. On 5 December 2019 the accused filed an Amended Application in Proceeding setting out the grounds of its application. On 12 December 2019 the accused filed a further Application in Proceeding seeking an order that the indictment be severed, effectively to separate the two complainants involved in the allegations.
The three applications came on for hearing yesterday. At the commencement of the hearing I was informed that the Crown had decided not to proceed with Counts 2, 3 and 4. I note here that Counts 1, 2, 3 and 4 relate to one complainant (‘AB’) and Counts 5, 6 and 7 relate to the second complainant (‘CD’).
The effect of the Crown’s decision was the following:
(a) The stay application was now confined to Count 1;
(b) The tendency application excluded Counts 2, 3 and 4; and
(c) The parties agreed that the severance application would be dictated by the result of the tendency application.
The stay application
The stay application was dealt with first. Count 1 is an offence brought pursuant to s 76 in conjunction with s 66B of the Crimes Act. Section 66B was introduced in 2018 and took effect from 5 December 2018.
The facts making up Count 1 occurred between 1 January 1983 and 31 December 1984, plainly before the commencement of s 66B. The accused's argument, simply put, was that s 66B was not in existence at the time of the alleged offences and does not operate retrospectively.
The accused correctly submitted that a substantive provision in an Act will not have retrospective effect unless the legislation clearly states that that is to be the case. Also correctly, the accused submitted that even if the provision was basically procedural, there was still a presumption against retrospectivity if it operated to change the fundamental rights of the accused. All of these propositions were derived from the decision of the High Court in Rodway v R (1990) 169 CLR 515 (Rodway).
Even though the Crown submitted that the section was merely procedural, it accepted that if there was a fundamental alteration of the accused’s rights then, in order for the section to be retrospective, there needed to be a clear statement of that intention.
The accused submitted that there was no such statement. He relied on the Victorian case of R v RS [2016] VCC 1464, a decision of Chief Judge Kidd in the County Court of Victoria. His Honour was dealing with the Victorian equivalent of s 66B. His Honour referred to the relevant principles of statutory construction arising from Rodway but ultimately had little difficulty in concluding that the relevant section had a retrospective effect.
The accused pointed out that his Honour’s decision was largely based on two elements of the Victorian legislation which are absent from the legislation in the Australian Capital Territory. These are the inclusion of a transitional provision (set out at [9] of the judgment) and a note included within the relevant section (sch 1 cl 4A of the Criminal Procedure Act 2009 (Vic)).
The transitional provision and the note, said the accused, again correctly, made plain the intention of the legislature that the section should be retrospective.
At this stage I think it necessary to make some comments about s 66B. The section does not create a new offence, rather it allows for the charging of more than one child sexual offence incident in a single charge on the satisfaction of a number of conditions. The point of the section is to remove the common law requirements against duplicity and an absence of specificity. Thus sub-s (5)(a) says that the charge “need not include particulars of any specific incident of the offence” and sub-s (7) says:
it is not necessary to prove an incident with the same degree of specificity as to date, time, place, circumstance or occasion as would be required if the person were charged with the child sexual offence constituted only by that incident.
It was conceded by the Crown that because of these previous common law requirements any prosecution of the accused on the same alleged facts would have failed.
Ultimately, the question is whether or not s 66B, or any other enactment, contained any clear statement that it was the intention of the legislature that s 66B have retrospective effect.
Section 66B(12) states:
(12) In this section:
child sexual offence means–
(a)an offence against a child under this part; or
(b)an offence against a child under a sexual offence provision of this Act previously in force.
The accused submitted that sub-s (12)(b) was equivocal in its meaning and could be intended to cater for a future change of law rather than have the commencement of
s 66B as its anchor point. In other words, if at some time in the future there was a change to the Crimes Act then s 66B would continue to apply notwithstanding the amendment. I think this interpretation is simply untenable.
In my view the meaning of sub-s (12)(b) is clear. It is intended to refer to offences that existed prior to s 66B coming into effect. This meaning is in fact so clear that it does not require any examination of extrinsic material to support it.
In turn, I am satisfied that the intention of the legislature, as expressed through
sub-s (12)(b), was to allow s 66B to be used in aid of the prosecution of offences that occurred before its commencement. It is important to reiterate that s 66B is not creating a new offence.
However, if there is any doubt about the intention of the legislature then the extrinsic material with which I was provided extinguishes that doubt. Use of this material is permitted pursuant to s 141 of the Legislation Act 2001 (ACT).
I was referred to the Criminal Justice Report arising from the Royal Commission into Institutional Responses to Child Sexual Abuse, the debates in the ACT Legislative Assembly on 25 October and 27 November 2018, a Scrutiny Report of the Standing Committee on Justice and Community Safety dated 20 November 2018 and a response to the last document by the ACT Attorney-General which is undated.
I do not think I need to go into the detail of these documents other than to say that there is an overwhelming theme through all of them – that the intent of s 66B is to address the matters raised by the Royal Commission and to permit the prosecution of historical sexual offences. While I respectfully disagree with the Attorney-General that s 66B is only “procedural in nature”, I note his statement that:
The prosecution will still only be indicting people on offences that currently or previously existed at the time of the offence.
Further, while the Attorney-General in the above response emphasises that s 66B is not retrospective, as already mentioned, he is doing so against the background of the section not creating a new offence but rather facilitating the pursuit of old offences.
The Attorney-General made the intent of the section quite clear in the Legislative Assembly on 27 November 2018 when he stated:
The difficulty of victims in recalling precise and exact particulars of persistent sexual abuse committed many years earlier is unfortunately not uncommon in child sexual offence matters. The royal commission noted that to require complainants to delineate separate, and specific, acts of “largely indistinguishable occasions of abuse” years after the abuse happened is “at best an artificial exercise that does not convey the nature of the abuse they endured and, at worst, impossible”. Allowing complainants of historical child sexual abuse the ability to access justice in a way that recognises the trauma and impact of the abuse supports the operation of justice and equality before the law for those victims.
In conclusion therefore I reject the application for a stay of Count 1.
The tendency application
This application is supported by the affidavit of Mr Ryan Roberts sworn 21 November 2019 and the supplementary affidavit of Ms Serrina Davis affirmed 10 January 2020. No objection was taken to either affidavit.
The tendencies that the Crown seeks to rely upon are as follows:
(a)The accused had a sexual interest in young female children between 10 and 13 years of age;
(b)The accused acted on his sexual interest in young female children between 10 and 13 years of age by engaging them in sexualised activities; and
(c)The accused used his position as a tennis coach to obtain access to, and seek out opportunities to be alone with, young female children between 10 and 13 years of age to engage in sexualised activities with them.
The Crown wishes to lead three incidents as tendency evidence. The first incident comprises the facts said to support Count 1. The Statement of Facts gives this description:
On a number of occasions during tennis lessons in the late afternoon, the accused called [AB] into the kitchen area of the clubhouse. No other person would be in the clubhouse at the time. The accused would be leaning against a sink and would wrap his arms around [AB] and hold her closely to him. The accused would bend down and kiss [AB] using his tongue. The accused would guide [AB]’s hand onto his penis and demonstrate to her how he would like her to touch him - as a result, [AB] touched and played with the accused’s penis.
The second incident relates to an uncharged act. Again, quoting from the Statement of Facts:
The accused told [AB] to go to the female toilets in the clubhouse and to read a magazine which was located at the toilets…[AB] went to the female toilets as directed by the accused. There, she found a magazine which contained pornographic material in it…When [AB] returned to the tennis courts, the accused asked her what she thought about the magazine.
Incidents 1 and 2 are said to have taken place during 1983 or 1984. The third incident is made up of the facts behind Counts 5, 6 and 7. There is a specific date of 4 April 1987. On this day the following facts are alleged:
The accused and [CD] walked into the clubhouse which was quite dark as the lights were off. At this time, [CD] was wearing a t-shirt and a tennis skirt. The accused asked [CD] whether she had seen the male change room to which she responded that she had not. The accused steered [CD] into the male change room. The accused then grabbed [CD] by the shoulders, pinned her against the wall and forcibly tongue-kissed her. The accused ran one of his hands over [CD]’s breasts over the top of her t-shirt. The accused placed one of his hands up [CD]’s tennis skirt and under her scungies, and rubbed her vaginal area with his fingers.
The accused conceded that the evidence in each incident was relevant to a fact in issue but said that that relevance could not be elevated to a status of being significantly probative, as required by s 97 of the Evidence Act2011 (ACT) (the Evidence Act).
In support of this submission I was taken to [64] of the majority decision of the High Court in Hughes v The Queen [2017] HCA 20; 263 CLR 338:
The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.
The accused submitted that the nature of the evidence constituting Count 1 was necessarily at a level of generality because it lacked specificity, particulars and an inability to be placed in time. This submission was derived from the very nature of a charge utilising s 66B, which allows for a generalised approach to be taken.
My first reaction was that this was a sound submission because it accorded with the purpose of s 66B which is to allow for prosecution in the absence of specificity and particulars.
However, on closer consideration of Incident 1, I have come to the view that the alleged facts are not so general as to affect the significant probative value of the evidence. The alleged activities are detailed both as to what occurred and where they occurred. The dates are not certain, but this does not affect the probative value of the allegations.
Having rejected the above argument, arising from the generality of the allegations making up Count 1, I am of the view that the tendency application in this matter is an example of what might be referred to as a classical application of this evidentiary mechanism.
In R v Bauer [2018] HCA 40; 92 ALJR 846 the High Court, in regard to cases where there is more than one complainant, said this at [58]:
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
(References omitted)
Here are some of the common features through the incidents:
(a)Each complainant is female;
(b)Each complainant was, at the relevant time, aged between 10 and 13;
(c)Each complainant was attending a tennis lesson under the coaching of the accused, a circumstance which provided the accused with unsupervised access to the girls;
(d)Each incident occurred in the clubhouse; and
(e)Each complainant was subjected to indecent sexualised behaviour highly suggestive of a sexual interest in the child.
I am satisfied that the incidents, and the tendencies alleged, are directed at facts in issue. The accused has made no admissions as to any of the allegations against him. As stated by the Crown, it is likely that the credit of the complainants will be contested and perhaps also submitted that they have misinterpreted innocent actions taken by the accused, and given those actions a sinister interpretation.
The accused also submitted that the passage of time between Count 1 and Counts 5, 6 and 7, being about three or four years, affects the admissibility of the tendency evidence. I think a passage of time can be relevant in this regard, but I do not think three or four years is such a large gap as to affect the probative value of the evidence. As observed by Burns J in R v Kisun (No 2) [2018] ACTSC 85, “the passage of time is of less significance in cases of allegation of sexual attraction to children…”.
In relation to s 101 of the Evidence Act the accused submitted that the probative value of the tendency evidence did not substantially outweigh its prejudicial effect on the accused. It was submitted that a jury would be confused by any explanation concerning the involvement of the generalities allowed by s 66B in the context of Count 1 being used to establish a tendency available to prove Counts 5, 6 and 7 and, more significantly, in reverse.
I disagree. In Hoyle v The Queen [2018] ACTCA 42; 339 FLR 11, the Court of Appeal, in relation to tendency evidence, although referring to a different aspect to the point being made here, observed at [125] that juries were “robust”. Returning to Kisun (No 2), Burns J said this at [39]:
The probative value of this tendency evidence is very high. I accept that there is a risk, as there always is, of unfair prejudice to the respondent in allowing the Crown to lead this evidence. The significant risk is that the jury will adopt impermissible reasoning regarding this evidence, in effect reasoning that the respondent is the sort of person who would molest children and, as such, is likely to be guilty of the charged offences. This risk may be significantly ameliorated by appropriate and strong judicial direction.
There are only three incidents involved in the tendency evidence. I do not think that proper directions could not be made to a jury to direct them as to the proper use of the evidence and to ensure that there was not an overwhelming prejudice to the accused.
In summary therefore I am satisfied that the Crown application to adduce tendency evidence in the manner described in the Notice should be permitted.
Accordingly, I make the following orders:
(a)The accused’s application for a stay of Count 1 is refused.
(b)The Crown’s application to adduce tendency evidence, pursuant to s 97 of the Evidence Act 2011 (ACT), as described in the Notice of Intention to Adduce Tendency Evidence dated 21 November 2019 is allowed.
(c)The accused’s application to sever the indictment is refused.
(d)These reasons are not to be published until the completion of the trial.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 1 April 2020 |
6
4