R v CN (No 2)
[2019] ACTSC 171
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v CN (No 2) |
| Citation: | [2019] ACTSC 171 |
| Hearing Date: | 26 June 2019 |
| Decision Date: | 26 June 2019 |
| Before: | Murrell CJ |
| Decision: | Various rulings made; see [15], [28] and [49]. |
Catchwords: | EVIDENCE – HEARSAY – When the maker was unavailable – Whether the intended asserted fact has probative value – |
| Whether the evidence is unfairly prejudicial | |
| EVIDENCE – TAKING OF EVIDENCE – Application for | |
| witnesses to give evidence by audiovisual link from a | |
| participating State – Whether it is convenient for the witness – | |
| Whether it causes unfairness to the accused | |
| EVIDENCE – TENDENCY EVIDENCE – Cross-admissibility of evidence of each charged acts – Whether the evidence supports a general or a particular tendency – Application of The Queen v | |
| Bauer [2018] HCA 40 | |
| EVIDENCE – TENDENCY EVIDENCE – Whether evidence of the accused’s browser history has significant probative value – | |
| Whether the evidence supports the asserted tendency of having | |
| a sexual interest in young females – Whether the evidence is | |
| unfairly prejudicial | |
| Legislation Cited: | Evidence Act 1977 (Qld) pt 3A Evidence Act 2011 (ACT) ss 65, 97, 101 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 16, 20, 43, 60, 63(4) |
| Cases Cited: | Brodie v Streeter [2003] ACTSC 88; 180 FLR 176 Hughes v The Queen [2017] HCA 20; 92 ALJR 344 R v CN [2019] ACTSC 50 R v DF [2010] ACTSC 31 The Queen v Bauer [2018] HCA 40; 92 ALJR 846 |
| Parties: | The Queen (Crown) |
| C N (Defendant) | |
| Representation: | Counsel |
| S Naidu (Crown) | |
| S McLaughlin (Defendant) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
| File Numbers: | SCC 211 of 2018; SCC 215 of 2018 |
| Murrell CJ | |
| Introduction |
1. The accused has pleaded not guilty to seven counts of sexual misconduct involving his step-granddaughter, X, a person under the age of 16 years. X was between nine and 11 years old at the time of the alleged offending.
2. Count 1 alleges that the accused maintained a sexual relationship with X over the period 10 July 2016 to 26 January 2018, when she made visits to Canberra. Counts 2 to 7 are charged in the alternative. They relate to alleged sexual conduct on 5 January 2018 in a storeroom and an apartment located in an apartment block in Barton, Canberra. The accused managed the apartment block. The alleged conduct that is the subject of Counts 2 to 7 forms part of the conduct relied upon in support of Count 1.
3. The apartment where the sexual misconduct allegedly occurred was usually occupied by PK, but on 5 January 2018 she was absent from the Territory and the accused had access to the apartment for the purpose of caretaking.
4. The trial was listed to be heard on 4 March 2019.
5. The pre-trial cross-examination of two child complaint witnesses was scheduled for 4 February 2019, but did not proceed because their mother decided that the experience would be too traumatic for them and was unwilling to present them for cross- examination.
6. On 14 February 2019, I heard the prosecutor’s application to allow the tender of the
video-recorded evidence-in-chief interviews of the complaint witnesses through the interviewing police officer under s 65 of the Evidence Act 2011 (ACT) (Evidence Act), claiming that the children were unavailable within the meaning of the Evidence Act. No objection was taken on the basis that, if adduced in the manner proposed, the children's evidence would be second-hand hearsay, and the Court did not consider the application on that basis. The Court was satisfied that the probative value of the evidence was outweighed by the danger of unfair prejudice to the accused as the evidence would not be tested by cross-examination: R v CN [2019] ACTSC 50.
7. The trial date of 4 March 2019 was vacated. The matter is now listed for trial on 12 September 2019. It is listed for the taking of pre-trial evidence on 17 and 18 July 2019.
The applications
8. The prosecutor now applies for directions and orders:
(a)
to adduce evidence of previous representations made by PK in a police interview on 27 April 2018, on the basis that PK is unavailable within the meaning of s 65 of the Evidence Act, as she died on 21 April 2019;
(b)
that the evidence of the complainant, her mother and her aunt be given by audiovisual link from Queensland, pursuant to s 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act); and
(c) that each charged act be lead as tendency evidence in relation to each other charged act, and evidence of the accused’s internet browser history be lead
as tendency evidence in relation to each charged act.
Hearsay
9. Section 65 of the Evidence Act provides:
65 Exception—criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous
representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the
representation being made, if the representation—
(a)
was made under a duty to make that representation or to make representations of that kind; or
(b)
was made when or shortly after the asserted fact happened and in circumstances that make it unlikely that the representation is a fabrication; or
(c)
was made in circumstances that make it highly probable that the representation is reliable; or
(d) was—
(i)
against the interests of the person who made it at the time it was made; and
(ii)
made in circumstances that make it likely that the representation is reliable.
…
10. On 27 April 2018, police recorded an interview with PK. She died on 21 April 2019. On 17 May 2019, the prosecution was notified of her death.
11. The prosecution seeks to rely on a number of the representations made in the recorded police interview.
12. There was no dispute that the witness was “unavailable” within the meaning of the
Evidence Act, or that the representations were made in circumstances that satisfied the requirements of s 65(2).
13. The accused objected to the tender of a number of the representations on a variety of bases, including relevance and unfair prejudice. However, in general terms, the accused took no objection to representations that:
(a)
the accused looked after PK's apartment while she was interstate by checking on it;
(b)
PK was in Canberra between 7 and 10 December 2017, at which time the accused told her that he had taken the complainant to her apartment prior to that time, and he also told her that the complainant watched television when she was in the apartment;
(c)
PK was absent from her apartment between 10 December 2017 and 24 April 2018; and
(d) when PK returned to her apartment, the couch appeared to have been used. 14. The representations to which objection was taken included representations concerning disturbance to the bed (which was not associated with any alleged offence) and representations that PK had left the unit in a pristine condition but that, when she returned, it was in a dreadful state.
15. Ultimately, the parties agreed about the admissibility of most of the representations. The parties did not agree about the admissibility of representations concerning the messy state of the premises and disturbance to the bed. I consider that the facts asserted in these representations have little if any probative value and that their admission would be unfairly prejudicial to the accused. Accordingly, these representations will not be admitted.
Evidence by audiovisual link
16. Section 20 of the Miscellaneous Provisions Act provides:
20 Territory courts may take evidence and submissions from participating States
(1) A territory court may, on the application of a party to a proceeding before the court or on its own initiative, direct that evidence be taken or a submission made by audiovisual link or audio link, from a participating State.
(2) The court may make the direction only if satisfied that—
(a) the necessary facilities are available or can reasonably be made available; and (b) the evidence or submission can more conveniently be given or made from the participating State; and (c) the making of the direction is not unfair to a party opposing the making of the direction.
17. Section 16(1) of the Miscellaneous Provisions Act defines “participating State” as
another State where provisions of an Act in terms substantially corresponding to this
chapter are in force.18. The complainant, her mother and her aunt reside in Queensland. They travelled to Canberra to give evidence in the trial that was to have commenced on 4 March 2019. When they arrived in the foyer of the courthouse, they encountered the accused, and the complainant became distressed. She told police that she was reluctant to speak to them because she had just seen the accused. Subsequently, the complainant's mother told the prosecutor that the complainant had been psychologically disturbed and poorly behaved since attending court on 4 March, and had reported experiencing nightmares about coming to Canberra again.
19. The complainant's mother is pregnant and is due to give birth on 9 July 2019, approximately a week before the dates fixed for the taking of pre-trial evidence. The complainant's aunt is a single mother of two young children who runs her own business. It is very inconvenient for her to attend Canberra.
20. Part 3A of the Evidence Act 1977 (Qld) (particularly s 39E) substantially corresponds with Part 3.2 of the Miscellaneous Provisions Act as it provides for the taking of evidence from participating states. In R v DF [2010] ACTSC 31, the court held that legislation in the participating state need not be identical, and observed that the
Queensland legislation was very similar to the ACT legislation: at [288]–[289].
21. I am satisfied that appropriate remote witness facilities are available at the Southport District Court on the afternoon of 17 July, and throughout the day on 18 July 2019. Additional facilities are available at the office of the Queensland Director of Public Prosecutions, which is located in the Southport courthouse. The facilities are such that witnesses will be able to refer conveniently to exhibits during the course of their evidence.
22. The expression “more conveniently” used in s 20(2)(b) of the Miscellaneous
Provisions Act has been interpreted broadly to include convenience to the court, the parties and the witnesses: Brodie v Streeter [2003] ACTSC 88; 180 FLR 176 at [15].
23. From the prosecution and witness perspective, it would be far more convenient for the witnesses to give their evidence by audiovisual link from Queensland. The complainant is a child who should not be unduly distressed. In any event, she will be giving her evidence remotely, whether it is given from Queensland or a remote location in the ACT: s 43 of the Miscellaneous Provisions Act.
24. The complainant's mother and aunt are special relationship witnesses as defined under s 42 of the Miscellaneous Provisions Act. They are entitled to give their evidence at a pre-trial hearing and by audiovisual link from an external place linked to the courtroom: ss 43, 60 and 63(4) of the Miscellaneous Provisions Act. It would be the most inappropriate to require the complainant's mother to be absent from the complainant at a critical time, or to be absent from her newborn child (assuming that she has given birth by the time she gives evidence). The complainant's aunt has already been significantly inconvenienced, and there is no real advantage in her giving evidence remotely in the ACT, as opposed to giving it remotely from Queensland.
25. Importantly, it is also more convenient from the Court's perspective that the evidence be given by audiovisual link from Queensland, because all witnesses are likely to be more relaxed and comfortable, and therefore able to give better quality evidence.
26. There will be no unfairness to the accused if evidence is given from Queensland, particularly in the circumstance that all witnesses would be giving their evidence remotely in the ACT in any event.
27. Appropriately, the accused did not object to the making of the orders.
28. Consequently, I make the orders sought in the application concerning the giving of evidence via audiovisual link from a participating state.
Tendency
29. In the Amended Notice to Adduce Tendency Evidence dated 23 May 2019 (the Tendency Notice), the prosecution outlined eight incidents upon which it sought to rely as tendency evidence. First, the prosecution seeks to tender evidence supporting each of the charged acts as tendency evidence in relation to each of the other charged acts. Second, the prosecution seeks to tender the internet browsing history on a computer used by the accused.
30. In the Tendency Notice the prosecution articulated the following tendencies:
(a)
a tendency to have a particular state of mind, namely a sexual interest in young females;
(b)
a tendency to have a particular state of mind, namely a sexual interest in the complainant;
(c)
a tendency to act in a particular way, namely to act on his sexual interest in young females by viewing sexual activities involving young females; and
(d)
a tendency to act in a particular way, namely to act on his sexual interest in the complainant by engaging in sexual activity with her.
31. Admission of tendency evidence is governed by ss 97 and 101 of the Evidence Act, which relevantly provide:
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. … 101 Further restrictions on tendency evidence and coincidence evidence presented by prosecution
…
(2) Tendency 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.
32. There is no dispute that the prosecution gave adequate notice of its intention to lead the tendency evidence, as required by section 97(1)(a) of the Evidence Act.
Cross-admissibility of evidence of charged acts – Incidents 1 to 7
33. In The Queen v Bauer [2018] HCA 40; 92 ALJR 846 at [50] and [51], the High Court
opined that an accused’s commission of a sexual offence against the complainant on
one occasion made it more likely that he may have committed another, generally similar offence against her on another occasion, at least where there is a close temporal relationship; that ordinary human experience shows that, where a person is sexually attracted to another and acts on that attraction, the person is likely to repeat such conduct if a further opportunity presents itself.
34. Acknowledging that approach, the accused conceded that, as far as the allegations the subject of Counts 1 to 7 were concerned, they supported the asserted tendencies to have a sexual interest in the complainant and to act upon it by engaging in sexual activity with her. Consequently, the cross-admission of the evidence supporting each of the counts is, to that extent, uncontroversial.
35. On the other hand, the accused submitted that the evidence relating to Counts 1 to 7 did not support, or at least was not significantly probative of more general tendencies to have a sexual interest in young females or act upon them, or act upon such a sexual interest by viewing sexual activity involving young females. As a matter of logic, this argument is convincing. It was ultimately accepted by the prosecution that the cross-admission, as tendency evidence, should relate to tendencies to have a sexual interest in the complainant and act upon that interest, rather than any tendency relating to young females generally.
Evidence of the accused’s browsing history – Incident 8
36. The prosecution sought to rely upon the accused’s internet browsing history as
evidence of a tendency to have a sexual interest in young women generally and to act upon that interest by engaging in the conduct of searching the internet for material depicting sexual activity involving young females.
37. The sum total of the evidence sought to be adduced by the prosecution is that, in the three weeks prior to 28 March 2018, the browser history of a computer used by the accused included numerous pornography sites. The evidence comprises various photographs of the computer screen taken by the police. Only the titles of the websites and their web addresses are visible. There is no way of verifying the contents of the websites based on the photographs, or ascertaining the period of time spent on any website.
38. The prosecution conceded that, at least by reference to their title, many of the sites do not refer specifically to child pornography. The accused admitted to police that he accessed adult pornography sites. Consequently, any titles that do not clearly relate to child pornography can be dismissed as not relevant to the asserted tendencies.
39. The prosecution submitted that the Court should admit evidence of the browser history concerning sites that, based on their name, appear to refer to child pornography.
40. When assessing whether evidence should be admitted as tendency evidence, the Court is required to address two interrelated questions: whether and to what extent the evidence supports the asserted tendency, and the extent to which the asserted tendency makes it more likely that the alleged facts occurred: Hughes v The Queen [2017] HCA 20; 92 ALJR 344 at [41].
41. It may readily be accepted that a tendency to have a sexual interest in young females similar to a complainant, and to act on that interest by viewing sexual activities involving young females similar to the complainant, may be tendencies that make it more likely that an accused will have an interest in and engage in sexual activity involving a particular complainant who falls within the class of young females in question.
42. However, the initial question is whether the evidence advanced supports the asserted tendency and, if so, whether it supports the asserted tendency to a significant extent.
43. In my view, in this case the evidence does not support the asserted tendencies.
44. The material simply shows a browser history. A browser history may be created as long as a website is opened, irrespective of whether it is opened as a result of user initiation. In the absence of deliberate user action, a website can open as a pop-up window. The evidence cannot conclusively show that the accused specifically searched for websites that may display images of underage girls engaging in sexual activity. Further, even if the accused did specifically search for child pornography websites, there is no evidence that the websites named in the browser history actually contained such material or, if they did contain such material, that it was a significant part of the website content.
45. There is no evidence as to the content of precise pages that were searched for and/or viewed, for any significant period of time, by the accused. Consequently, the Court cannot compare the accused's internet interest with the substance of the allegations that are to be in the trial, for the purpose of working out whether the accused's internet interest supported the asserted tendencies and whether the evidence was of significant probative value.
46. The prosecution faces the further difficulty imposed by s 101: that tendency evidence cannot be used against an accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on him.
47. Admission of the browser history would undoubtedly cause significant unfair prejudice to the accused. It would invite the jury to speculate that the accused was a highly undesirable person because he had sought out and accessed child pornography websites, whereas the evidence supports neither the fact that he deliberately sought them out nor that he intentionally accessed them, let alone to any substantial degree. If admitted, the evidence could result in the jury reasoning in a way that was improper and prejudicial. I am not convinced that such prejudice is capable of cure or mitigation by direction.
48. The evidence of the accused’s browser history is rejected.
49. The evidence supporting each of the charged acts will be admitted as tendency evidence to prove that the accused had a tendency to have a particular state of mind, namely to have a sexual interest in the complainant; and that the accused had a tendency to act in a particular way, namely to act on the sexual interest by engaging in sexual activity with the complainant. Otherwise the tendency application is dismissed.
I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.
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