R v Estuardo Ioberto Pazmino
[2010] ACTSC 148
•25 November 2010
HUMAN RIGHTS ACT
R v ESTUARDO IOBERTO PAZMINO
[2010] ACTSC 148 (25 November 2010)
CRIMINAL LAW – sexual intercourse without consent – acts of indecency – eight separate incidents – seven complainants
EVIDENCE – pre-trial application – application to sever the indictment – application partially granted
EVIDENCE – pre-trial application – application to adduce evidence of tendency and coincidence – whether evidence has significant probative value – whether probative value substantially outweighs prejudicial effect – unrelated issues – unfair prejudice – application partially dismissed – allegations of similar and underlying unity – relevant to rebut suggestion of accident – relevant to rebut lack of awareness of inappropriateness – relevant to general context – application partially granted
Crimes Act 1900 (ACT), ss 50, 54, 60
Criminal Code 2002 (ACT)
Evidence Act 1995 (Cth), ss 55, 95, 97, 98, 101, 135, 137
Crimes Act 1958 (Vic), s 398A (repealed)
Human Rights Act 2004 (ACT), s 21
Perry v R (1982) 150 CLR 580
Hoch v R (1988) 165 CLR 292
Pfennig v The Queen (1994) 182 CLR 461
Thompson v The King [1918] AC 221
R v Lockyer (1996) 89 A Crim R 457
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
R v Ellis (2003) 58 NSWLR 700
R v Papamitrou [2004] VSCA 12; (2004) 7VR 375
R v Fletcher [2005] 156 A Crim R 308
R v Harker [2004] NSWCCA 427
Phillips v The Queen (2005) 225 CLR 303
R v Smith (2008) 190 A Crim R 8
R v Ford [2009] NSWCCA 306
NAM v The Queen [2010] VSCA 95
No. SCC 318 of 2009
Judge: Higgins CJ
Supreme Court of the ACT
Date: 25 November 2010
IN THE SUPREME COURT OF THE )
) No. SCC 318 of 2009
AUSTRALIAN CAPITAL TERRITORY )
R
v
ESTUARDO IOBERTO PAZMINO
ORDER
Judge: Higgins CJ
Date: 25 November 2010
Place: Canberra
THE COURT ORDERS THAT:
The application to sever counts 1 - 5 from counts 6 - 12 on the indictment dated 28 June 2010 is granted.
The application to further sever the indictment dated 28 June 2010 is refused.
The application to lead evidence of the complainants in counts 6 - 12 as evidence of tendency and coincidence in counts 1 - 5 is refused.
The application to lead evidence of the complainants in counts 6 - 12 as evidence of tendency and coincidence supporting each of the counts in the other or others of them is granted.
By indictment dated 28 June 2010 the accused has been charged with 12 counts alleging various sexual offences as follows:
FIRST COUNT
... on the 5th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino engaged in sexual intercourse with [Complainant KW] without her consent being reckless as to whether she was consenting to the sexual intercourse.
SECOND COUNT
AND FURTHER THAT on the 5th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino committed an act of indecency on [Complainant KW] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
THIRD COUNT
AND FURTHER THAT on the 5th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino engaged in sexual intercourse with [Complainant KW] without her consent being reckless as to whether she was consenting to the sexual intercourse.
FOURTH COUNT
AND FURTHER THAT on the 5th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino committed an act of indecency on [Complainant KW] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
FIFTH COUNT
AND FURTHER THAT on the 5th day of May 2009 at Canberra in the Australian Capital Territory Estuardo Pazmino committed an act of indecency on [Complainant KW] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
SIXTH COUNT
AND FURTHER THAT on or about the 25th day of October 2006 at Canberra in the Australian Capital Territory Estuardo Pazmino committed an act of indecency on [Complainant AB] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
SEVENTH COUNT
AND FURTHER THAT on the 31st day of July 2008 at Canberra aforesaid Estuardo Pazmino committed an act of indecency on [Complainant CB] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
EIGHTH COUNT
AND FURTHER THAT on the 15th day of September 2008 at Canberra aforesaid Estuardo Pazmino committed an act of indecency on [Complainant FT] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
NINTH COUNT
AND FURTHER THAT on the 16th day of April 2009 at Canberra aforesaid Estuardo Pazmino committed an act of indecency on [Complainant EA] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
TENTH COUNT
AND FURTHER THAT on the 22nd day of April 2009 at Canberra aforesaid Estuardo Pazmino committed an act of indecency on [Complainant SI] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
ELEVENTH COUNT
AND FURTHER THAT on the 4th day of May 2009 at Canberra aforesaid Estuardo Pazmino committed an act of indecency on [Complainant KB] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
TWELFTH COUNT
AND FURTHER THAT on the 6th day of May 2009 at Canberra aforesaid Estuardo Pazmino committed an act of indecency on [Complainant SI] without her consent and at the time of doing so knew that she was not consenting or was reckless as to whether she was consenting.
On 6 August 2010 the Crown applied for leave to adduce evidence of tendency and coincidence by leading the evidence supporting each of the counts in the other or others of them.
The accused seeks, by application dated 9 August 2010, to sever counts 1-5 from the other counts and to sever counts 10 and 12 from the other counts and the remainder from each other. That would have the effect of separate trials in respect of the allegations made by each complainant.
The indictment refers to eight separate incidents wherein sexual offences are alleged involving seven complainants.
In chronological order the allegations are:
Count 6 – [Complainant AB]
Act of indecency without consent
On 25 October 2006, the complainant attended a fitness centre in which the accused practised as a massage therapist. The complainant was a client of Ms GC but, as she was unable to attend to the complainant, AB agreed to a massage from the accused.
The accused told AB to strip down to her underwear and lay face down on the table with a towel over her back, which she did.
The accused started to massage her and started to talk about her sex life with her partner. This made AB feel uncomfortable. The accused said words to the effect of
“You’re out of your dirty thirties and into your naughty forties.”
This was a reference to a conversation they had about the complainant having recently turned 40 years of age.
During the massage AB was laying face down with her arms up above her head resting on the massage table. AB felt the accused’s erect penis leaning against her arm. When the accused was massaging her legs, she felt the accused’s erect penis against her leg.
At some point during the massage, the accused got onto the massage table and straddled AB’s legs, by putting his legs over hers. AB could feel the accused’s genitals resting against her backside.
The accused asked AB to roll over and he massaged the sides of her breasts.
After the massage AB met with friends MJ and MW. AB appeared to be upset and she told MJ and MW about the massage. She later also told her partner, WU what had happened with the accused. MJ identifies the date on which she met AB from an entry in her diary for 25 October 2006.
Soon after AB went to Queensland on a holiday with WU. When she returned from the holiday, WU complained to GC. GC counselled the accused about his behaviour. The accused denied any inappropriate touching of AB.
The instances of coming into contact with the complainant’s body with his genital area and the massaging of the side of her breasts is the conduct the Crown relies upon as constituting an act of indecency.
At no time did AB consent to the accused’s genital area coming into contact with her body or to the accused massaging her breasts.
In the alternative, it is alleged that any ‘consent’ to these acts was obtained by the accused abusing his position of trust with the complainant.
Count 7 – [Complainant CB]
Act of indecency without consent
CB had received a massage from the accused twice before 31 July 2008. On 31 July 2008, she attended the accused’s massage rooms which were then located at Bodywise Studio, shop 3/11 Trenerry Street, Weston. She told the accused that she was upset as a friend had committed suicide recently and that she just wanted a relaxing massage.
CB removed her clothing, except for her underpants and got on the massage table. The accused started to massage CB. During the massage the accused and CB were talking to each other. Whilst doing this he said:
“You have a great body.”
This made CB feel uncomfortable. The accused continued to massage her back.
The accused got CB to turn over onto her back and he started to massage her neck. The accused moved his hands and was massaging her chest and breasts. CB froze and felt that the massage was now a sexual or erotic massage. There was no conversation between CB and the accused after she turned over onto her back.
The accused started to massage CB’s legs. The accused got onto the massage table and pulled CB’s legs apart. He massaged the tops of her legs and the groin area, close to her vagina but did not actually touch the genital area.
CB felt frightened and could not believe that this was happening. CB did not say anything to the accused.
Again the accused said “you have a great body.”
The accused finished the massage and CB left the massage rooms.
CB phoned the police on 18 August and informed the police about the incident, however she indicated that she did not want to proceed with the matter.
CB contacted Australian Traditional Medicine Society but decided not to make an official complaint.
CB rang the accused from work and confronted him about his actions and told him, among other things, that he had inappropriately touched her.
CB confronted the accused on 20 November 2008 at his rooms in Flames Fitness, Lyneham. CB told the accused that he had touched her inappropriately, that she was annoyed because now she would need to get a new massage therapist. The accused offered CB a refund. The accused stated that touching her breasts was appropriate as part of the massage. The accused asked CB “why didn’t you say no, why didn’t you stop me, why did you take months to come back in and see me about it?” CB told the accused “I was vulnerable, you are the massage therapist, I was weak and you took advantage of me.”
The accused started to cry and said “I am disgusted, I am despicable. I’ve never done this before” and “I can’t believe I did it, I’m awful and unhappy with myself and work, I don’t feel appreciated.”
The accused offered a fully clothed massage to CB which she accepted. She provided the accused with a copy of the Code of Conduct from the Australian Tradition Medicine Society which she had previous downloaded from a website and an article regarding a South Australian naturopath who had digitally penetrated a client.
CB complained about the massage she received on 31 July 2008 to DM and MD.
The instance of massaging the complainant’s breasts is the conduct the Crown relies upon as constituting an act of indecency. CB did not consent to these acts. In the alternative, it is alleged that any ‘consent’ to this act was obtained by the accused abusing the position of trust with the complainant.
Count 8 – [Complainant FT]
Act of indecency without consent
FT met the accused when he came into Flames Fitness and gave her a 15-minute massage.
FT attended the accused’s massage room, then still located in Weston, on 15 September 2008. FT recalls that the lights were out with candles lighting the room. The accused told FT that the lights were out from a storm, but a CD was playing.
FT informed the accused that she had been experiencing pain in her elbow. She completed a form which she can recall had something to the effect of “no massaging of genitalia or the breasts of women.”
The accused told FT to “strip down”. FT said “I am only here for an elbow massage.” The accused said
“No, no what we will do, is we will do a full body massage, get to know your body and then we will work on your elbow in further appointments.”
FT agreed to the full body massage. She said “I’m not wearing any underwear” and the accused said “that’s not a problem, don’t worry about it.”
FT removed all her clothing and got onto the massage table. Whilst she was on her stomach, the accused massaged her upper thighs and buttocks. The accused’s hand made contact with FT’s vagina but FT considered the contact inadvertent.
During the massage the accused said to FT that she was “gorgeous” and that she had ‘a beautiful body, you must work hard on it’.
FT turned onto her back and the accused massaged her shoulders and neck. The accused started to massage the top of her pectoral muscles and said, “Excuse me” and placed his hands under the towel and massaged FT’s breasts and nipples in circular motions.
When the massage ended, FT got dressed and paid for the massage. She made another appointment as she felt pressured to do so.
FT immediately rang JL and told him about the massage.
A few days later FT phoned the accused and cancelled the appointment she had made. She told the accused that it was inappropriate for him to massage her breasts and hung up the phone.
FT reported the matter to QB, the owner of Flames Fitness as he had referred her to the accused. FT also spoke to MF, JN and MB about the matter.
The instances of massaging the complainant’s buttocks while she was wearing no underwear, massaging her breasts and nipples and the touching of the complainant’s vagina is the conduct the Crown relies upon as constituting an act of indecency. FT did not consent to these acts. In the alternative, any ‘consent’ to these acts was obtained by the accused abusing the position of trust with the complainant.
Count 9 – [Complainant EA]
Act of indecency without consent
...
EA made an appointment with the accused for 16 April 2009 at 9.00am.
On 16 April 2009 EA attended the accused’s rooms. She told the accused that she wanted a massage on her lower back.
The accused asked EA to undress to her underwear. EA got onto the massage table. At this point she was still wearing bike shorts. The accused said words to the effect of,
“We need to loosen up your glutes in order to do the massage for greater benefit.”
The accused continued to massage EA’s “glutes”. The accused then said words to the effect of,
“You know, it’s not really working. Do you mind if I take them off?” (indicating her bike shorts)
EA said it was fine. The accused removed EA’s shorts. EA did not have any underpants on under the shorts. The accused covered one side of EA’s buttocks while he massaged the other. At one point EA’s backside was completed uncovered.
When the massage finished the accused left the room while EA dressed.
The accused told EA her first massage would be free as she was a trainer and could refer her clients to him. EA made another appointment on 24 April 2009.
EA later discussed the incident with her friends, DN, JH and DP.
On 24 April 2009, EA attended another appointment with the accused. The accused did not remove her underwear on this occasion. EA paid $45.00 in cash and did not recall receiving a receipt.
After these incidents EA and JH contacted Massage Standards Australia and asked whether being naked during a massage was acceptable. They were told that it was not.
The Crown case is that the consent given by the complainant to the removal of her pants and the massaging of her buttocks while naked was negated as it was caused by the accused abusing his relationship of trust with the complainant. In the alternative, consent was obtained by fraudulent misrepresentation as to the acts, namely that it was necessary to do the massage for ‘greater benefit’ and that it was necessary to remove her shorts to perform the massage.
Count 10 – [Complainant SI]
Act of indecency without consent
On 22 April 2009, SI attended her first appointment with the accused at his rooms in Lyneham. SI had only ever had one massage many years before 2009. SI told the accused to work on her back, shoulders and neck. SI recalls filling out a form which included a section about terminating the massage if she felt anything sexual about the massage.
The accused told SI to undress, leave her underwear, lie on the table and place a towel over her back. The accused returned to the room before SI had enough time to get on the massage table.
During the massage SI said words to the effect of,
“Don’t wobble the fat bits.”
The accused said words to the effect of,
‘No, no, you are beautiful.”
The accused lightly slapped SI on her backside.
The accused massaged SI’s buttocks for some time. The accused then got SI to roll onto her back. The accused asked SI if he could work on the top section. SI said yes. The accused slipped his hands underneath the towel and massaged SI’s breasts.
Towards the end of the massage, the accused shifted the towel covering SI. SI saw that her left breast and nipple were exposed.
SI said words to the effect of,
“Are you right?”
The accused pulled the towel back and giggled.
After the massage finished the accused left the room while SI dressed. She paid $75.00 in cash and received a receipt, invoice number 30 that showed the accused’s name and details. SI also made another appointment for 29 April 2009.
On 29 April 2009, SI attended her second appointment with the accused. As nothing inappropriate happened during the massage on that day, SI did not say anything to the accused about the previous massage. SI paid $75.00 in cash and received a receipt, invoice number 47 that showed the accused’s name and details. SI also made another appointment for 6 May 2009.
The instances of slapping the complainants [sic] buttocks and massaging the complainant’s breasts are the conduct the Crown relies upon as constituting an act of indecency. The Crown case is that the consent given by the complainant to the massaging of her breasts was negated as it was caused by the accused abusing his relationship of trust with the complainant. The complainant did not consent to her buttocks being slapped.
Count 11 – [Complainant KB]
Act of indecency without consent
KB started receiving massages from the accused in late April 2009 and had 3 massages. KB had informed the accused that she wanted her sciatic nerve treated.
On 4 May 2009 KB attended the accused’s rooms for a massage. The accused asked KB to get undressed and left the room. He returned quickly before KB had a chance to lie on the massage table.
The accused began to massage KB’s lower back and shoulder blades. He did some “cupping” which hurt her. The accused explained the process of cupping and that it may be uncomfortable. KB had bruises from the cupping following the massage. The accused said “look at all the hickeys”.
The accused asked KB to turn over, whilst he held the towel over her. The accused said “it’s good to massage your breasts” and “that it would be very good for you”.
KB said “Well I am a bit sensitive around there because I have got a gastric band which I have a port there and it sits right there and I don’t like people touching, because it is tender sometimes.”
The accused said “I will do your breasts.” He started to massage her breasts and there was no towel covering her breasts at the time. The accused was rolling, rubbing and squeezing her breasts, similar to a medical examination. At the end of massaging the complainant’s breasts, the accused stroked the complainant’s nipple in a gliding motion with his fingers.
Whilst the accused was doing this, KB’s head was very close to his groin and she noticed a bulge in his pants, which she believed to be an erection.
When the massage had finished the accused said that he wanted to stay in the room to fill out the receipt. KB got up from the massage table and dressed.
KB spoke to her friend DW about the massage.
KB did not attend her next appointment on 11 May 2009.
The instances of massaging the complainant’s breasts (while placing his visibly erect penis close to the complainant’s head) and the stroking of her nipple are the conduct the Crown relies upon as constituting an act of indecency. The Crown case is that the consent given by the complainant to the massaging of her breast was negated as it was caused by the accused abusing his relationship of trust with the complainant. The complainant did not consent to her nipple being stroked.
In the alternative, consent to the massaging of her breast was negated as it was obtained by a fraudulent misrepresentation as to the nature of the act, namely that it would be ‘good for her’.
Count 12 – [Complainant SI]
The accused is charged with committing an act of indecency on SI without her consent knowing she was not consenting or being reckless as to whether she was consenting.
On 6 May 2009, SI attended her third appointment with the accused. The accused told SI to put on “fisherman pants” so that she would not be exposed when he manoeuvred her legs in different ways.
During the massage the accused massaged SI’s achilles tendon, causing her to yell out in pain. The accused said words to the effect of,
“I like a groaner,” or “I like a squealer.”
The accused got SI to lie on her stomach on the floor, then he pulled SI’s arms behind her so that her chest was off the floor, exposing her breasts.
After this the accused went over and sat in a chair and said words to the effect of,
“You can get up now and just have a walk around and tell me how you feel.”
SI removed her arm from covering her breasts and touched her toes. The accused told SI to lie on the massage table again and he started to massage SI’s back. The accused then slipped his hand under SI’s stomach, untied the pull string on the pants, removed the pants and covered SI with a towel. The accused continued to massage SI’s back quite roughly. SI felt her buttocks moving and said words to the effect of,
“Stop it, you’re making it wobble too much.”
The accused slapped SI’s backside firmly and said words to the effect of,
“There’s nothing wrong with that,” and “It wouldn’t make that sound if it wasn’t firm.”
The accused massaged SI’s legs, then told SI to roll onto her back. The accused told SI that he was going to work on her chest and lowered the towel, exposing her breasts. The accused said words to the effect of:
“Can I give you a chest massage. You know, this area we worry too much about, in this sort of culture. Where I come from, we don’t consider this any different from any part of the body.”
The accused applied oil to SI’s breasts and started to massage that area for approximately five minutes. When he had finished the accused went and sat on a chair while SI got up and dressed. SI arranged to pay the accused the following day.
SI later discussed the incident with her husband [I].
The instances of slapping the complainant’s buttocks and massaging the complainant’s breasts are the conduct the Crown relies upon as constituting an act of indecency. SI did not consent to her buttocks being slapped. The Crown case is that the consent given by the complainant to the massaging of her breasts was negated as it was caused by the accused abusing his relationship of trust with the complainant. In the alternative, the consent given to massaging the breasts was negated as it was obtained by a fraudulent misrepresentation as to the nature of the act, namely that there was nothing unusual about a massage in that area.
Counts 1-5 – [Complainant KW]
2 x sexual intercourse without consent, 3 x act of indecency without consent
On 5 May 2009 at about 1.30 pm KW attended an appointment for a complimentary massage at the accused’s place of work, located at Shop 1, Colville Street, North Lyneham in the Australian Capital Territory.
KW had recently been employed as a personal trainer and the accused had offered to give her a massage so that she could understand what services he provided and could offer her clients his services in the future.
On KW’s arrival at the accused’s place of work, the accused asked her,
What part of your body would you like to work on?”
The complainant nominated her back and shoulders, as she played a lot of netball.
The accused told KW to “take off your pants, leave your undies on, take your bra and sports bra off.” The accused left the room and KW removed her clothing except her underpants and lay face down on the massage table. The accused came back into the room and closed the door. He started to massage KW’s lower back, and said words to the effect:
“Oh, you’re tight, but you’re such a gorgeous client.”
The accused started to massage KW’s “glutes” (that is, her bottom). The accused told KW that he had to lower her underwear down her buttocks. The accused continued to massage this area for about twenty minutes.
The accused told KW he would have to further lower her underwear to massage her hamstrings. He applied oil to KW and started massaging her hamstrings. At one point during the massage, the accused locked the door to the room.
The accused returned to KW, and removed her underwear. During this time, KW had a towel covering her backside.
The accused pulled KW’s leg out to the side and massaged her inner thigh. While he was doing this, the accused explained the physiology of what he was doing, and named all the muscle groups. The accused moved his hands higher and higher until he was touching KW’s genitals. This is the conduct the Crown relies upon as constituting an act of indecency (Count 2). KW did not consent to this touching of her genitals.
KW said to the accused words to the effect of,
“Stop. I just really want you to work on my upper back.”
At one point the accused told KW that he was going to get on top of the table to get out a knot. Then the accused undid his belt and took off his pants. The accused got onto the massage table on top of KW.
The accused said words to the effect of;
“You’re such a beautiful client, you’re a gorgeous client. I wish all my clients were gorgeous like you.”
The accused then slapped KW on her backside two or three times.
The accused was on top of KW, pushing down with his hands on her back. The accused said words to the effect of,
“I’ll massage you while I fuck you.”
The accused penetrated her vagina with his penis (Count 1). He was not wearing a condom. This continued for some time. During this time the accused continued to speak to KW, saying words to the effect of,
“You’re gorgeous.”
KW did not say anything to the accused and buried her face into the towel.
The accused rolled KW onto her back. KW kept the towel to her face so she could not see the accused. KW said words to the effect of,
“Don’t cum in me because I’m, not on the pill.”
The accused ejaculated on KW’s stomach. KW kept her face covered with the towel. The accused massaged his semen into KW’s body.
The accused then put his mouth on KW’s vagina and licked KW on the clitoris and vagina. This continued for about 25 seconds (Count 3).
The accused wiped KW’s stomach with a cloth, then turned her over. The accused put his pants on and said words to the effect of;
“All right, roll over. I am a bit more relaxed now. I can work on your back now.”
The accused continued to massage KW’s back. He then kissed KW on both buttocks (Count 4).
The accused started massaging KW’s upper back and neck. The accused told KW to roll onto her back which she did. KW held a towel across her face as she was lying on her back. The accused said words to the effect of,
“You tight in your pecs.”
KW said words to the effect of;
“It’s more my neck.”
The accused started massaging KW’s breasts (Count 5). Whilst he was doing so, the accused said words to the effect of,
“Oh, you’re gorgeous.”
While the accused was massaging her breasts, KW opened her eyes, she moved the towel from her face and observed the clock read 2.50 pm. She said words to the effect of,
“Oh look at the time, I have to go, I have to go to an appointment.”
KW got off the massage table and collected her clothes. The accused sat in the room and watched KW get changed.
The accused said words to the effect of,
“So, when can I see you next?”
KW did not know what to say, and said words to the effect of,
“I don’t have any money, I haven’t been paid yet.”
The accused said words to the effect of,
“Well, now you know what my services are about, you can offer my service to your clients and we can work together on this.”
KW left the accused’s place of work. KW immediately went into the toilets at Flames Fitness and then left the building. KW sent an email to her friend Mr FI stating “Something really bad has just happened.”
KW returned to her home at about 3.30 pm and showered. At about 4.30 pm Mr FI arrived and KW told him what had happened. KW shortly after attended Belconnen Police Station and made a report.
KW participated in a forensic medical examination by Dr Vanita Parekh and her clothes were seized for forensic examination. Dr Parekh reported that KW sustained injuries to her genitals that were consistent with penetration. Semen consistent with the DNA profile of the accused was detected on the singlet worn by KW after sexual intercourse had occurred.
On 6 May 2009 the accused attended the Belconnen Police Station. After the accused was informed of the allegation, he said words to the following effect:
It was consensual.
She wanted it.
She was saying pleasure me.
She was saying stick it to me.
She was horny.
She was moaning and groaning.
She pulled her own undies off.
I kept asking her if she was OK with it.
It was the first time I have ever done this.
The accused declined to participate in a Taped Record of Interview. The accused was placed under arrest. The accused consented to a forensic procedure.
On 8 May 2009 police executed a search warrant at the accused’s home address, located at 93 Jabbanunngga Avenue, Ngunnawal in the Australian Capital Territory. A receipt book for the accused’s business commencing at receipt 66 was located in the rubbish bin.
At no time did KW consent to sexual intercourse with the accused or to the acts of indecency committed by the accused.
In the alternative, any ‘consent’ to the acts of sexual intercourse and acts of indecency were obtained by the accused abusing the position of trust with the complainant.
The accused raises no objection to the joinder of counts 1-5 nor counts 10 and 12.
The Crown, for its part, acknowledges that the incident represented by counts 1-5 is of a different level of seriousness compared with the others. There would be no issue in relation to counts 1-5 as to whether the actions of the accused, if proved as alleged, were an intentional sexual assault or act of indecency, as the case may be. Nor could there be an issue as to whether a genuine professional massage technique was misinterpreted as a sexually motivated assault.
The offences alleged in this case are created by the Crimes Act 1900 (ACT) (Crimes Act). There are no applied provisions of the Criminal Code 2002 (ACT) (the Code) which are relevant for present purposes.
The definition of sexual intercourse, for the purposes of counts 1 and 3 is contained in s 50 of the Crimes Act. That is,
(a)The penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
...
(d)cunnilingus;
The offence is provided for by s 54:
(1)A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
...
(3)For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.
Section 60 defines the remaining offences:
(1)A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years.
There is an issue as to whether s 60 creates two offences with the mental element of one being knowledge of lack of consent and the other being recklessness as to lack of consent. Nothing turns on that issue for present purposes.
I turn first to the prosecution application. This has some bearing upon the application by the accused to sever the indictment.
The Crown submission is that the evidence of each complainant establishes a tendency on the part of the accused to engage in sexual activity upon clients presenting for therapeutic massage and that that same evidence is relevant to establish that a false accusation by any of the complainants is less likely by reason of the number of complainants alleging similar non-consensual sexual misconduct on the part of the accused.
The law is understandably cautious about admitting such evidence. It is highly prejudicial. For example, to adduce evidence of a criminal history for theft would overshadow a question as to whether on the occasion charged the accused had committed theft. It is not permissible reasoning to conclude that an accused acted in a certain way on the occasion under scrutiny because he has, or, worse, is alleged to have, acted in a similar way on other occasions.
The Evidence Act 1995 (Cth) (Evidence Act) deals with tendency and coincidence evidence in Pt 3.6.
Section 95 provides:
(1)Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.
(2)Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that mater even if it is relevant for another purpose.
Section 97 refers to ‘the tendency rule’. Relevantly, due notice having been given, that provides:
(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:
...
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
...
Section 98 refers to ‘the coincidence rule’. Relevantly due notice having been given, that provides:
(1)Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
...
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
...
There is a further restriction on the admission of such evidence in criminal proceedings.
Section 101(2) provides:
Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced 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.
In approaching the admission of proposed tendency and coincidence evidence it will almost always pass the relevance test in s 55 of the Evidence Act. There is a rational basis for concluding that, for example, if there are three persons with the opportunity to commit a theft then the one with a history of theft convictions would be the more likely suspect. Further, if a person on several occasions in close proximity is known to have left shops with goods not paid for and offered an excuse that on each occasion the apparent theft was inadvertent, that excuse might be more sceptically viewed by reason of the coincidence of those events.
However, such reasoning is notoriously capable of producing an erroneous result. It might not be the known thief who had committed the theft in question. As Murphy J pointed out in Perry v R (1982) 150 CLR 580, 594:
It is very easy to assume that in common experience a person is hardly ever associated with poisonings of four close relatives, and that if such an association occurs it is so remarkable that it is unlikely to be innocent. Common assumptions about improbability of sequences are often wrong. A suggested sequence, series or pattern of events is often incorrectly regarded as so extremely improbable as to be incredible. However highly improbable, as well as merely improbable, sequences and combinations are constantly occurring. In random tossing the occurrence of a run of ten consecutive heads or tails is generally regarded as highly improbable. But this will occur on the average once in every 512 tosses, and the lesser sequences more frequently (2 runs of 9; 3 runs of 8; 8 runs of 7). If one randomly tosses a coin 257 times, more likely than not there will be a sequence of ten heads or tails. Although it is extremely improbable that any particular ticket will win a large lottery it is certain that one will.
The other vice is that of circular reasoning. That is, to prove the guilt of the accused in relation to any one of a number of like accusations not proved standing alone by reference to the concatenation of them. Guilt must be assumed in respect of one or more of the other accusations without, in any case, proof beyond reasonable doubt of any of them.
As Murphy J noted, at 595, in the context of the Perry case:
... Legal proof is not limited to proof by syllogisms nor to other methods which depend upon precision. The solution of most legal problems are those of approximate reasoning, which deals with indeterminate or “fuzzy” factors. For this generation, even the simplest of mathematical formulae are unsuitable tools for use in ordinary trials. But some practical working rules can be adopted for a criminal case like the present. Evidence of any circumstance such as any of the alleged poisonings of Duncan, Haag or Montgomerie should be discarded when it appears on consideration of the whole of the evidence that there is reasonable doubt about the accused’s culpability in relation to that circumstance. Otherwise the stage is being set for a miscarriage of justice.
To apply those observations to the present case, before admitting the evidence of any one complaint in relation to the proof of any other, it must be sufficiently “significant” so that it raises the likelihood of guilt. Relevance must be assessed on the basis of an identifiable issue to which that evidence is relevant. It may be that of identification or of the presence of criminal intent as opposed to an act done by inadvertence or accident. It is not enough for admissibility merely to add credibility to an otherwise sufficient Crown case. That is the consequence of the twin barriers the Crown must surmount to be permitted to rely upon such evidence. First, to show the evidence has “significant” probative value and, second, to show, even if the evidence would pass that test, that it “substantially outweighs” the inevitable prejudicial effect of such evidence.
I accept that s 101(1) incorporates the burden placed on the prosecution by s 137, that is:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
That conclusion also implies that the reference to prejudice in s 101(2) is to “unfair” prejudice. Unfairness in that context derives from the diversion of attention from the particular allegations in question and the temptation to substitute for that examination the circular and speculative reasoning identified and condemned by Murphy J in Perry v R (supra).
Another aspect of such evidence was referred to in Hoch v R (1988) 165 CLR 292. In that case, the evidence of three complainants of indecency were admitted in the case of each other of them. The evidence was of strikingly similar dealings. However, it was a real possibility that each of the boys had been influenced consciously or otherwise by the others of them and had a motive to make a false accusation.
Mason CJ, Wilson and Gaudron JJ concluded that the evidence should not have been admitted. The admissibility of such evidence, their Honours held, depended on more than relevance. In the circumstances it lacked the degree of probative value necessary to render it admissible by reason of the presence of a relationship affording opportunity and motive for concoction. It is enough that such could be a reasonable explanation for allegations of a similar kind being made by each of the three complainants.
Brennan and Dawson JJ acknowledged that at p 301:
The rule which excludes similar fact evidence rests upon the view taken by the law that the mere proof of the commission of offences other than the offence with which an accused is charged does nothing more than establish criminal propensity, either in general or in relation to a particular type of crime. Evidence of criminal propensity – a disposition to commit crime – is prejudicial to an accused for it may be wrongly used as sufficient by itself to show that the offence charged was actually committed. But if the evidence, although of propensity, points in some other way to the commission of the offence charged, it may be admitted provided that the additional probative value is sufficient to outweigh or transcend the inevitable prejudice.
Such evidence might go, in the case of Hoch, their Honours suggested, to show “system”, rebut innocent association or confirm the complainant’s evidence as truthful rather than fantasy or misinterpretation.
Hoch v R was applied in Pfennig v The Queen (1994) 182 CLR 461. Mason CJ, Deane and Dawson JJ pointed out that propensity evidence may be admitted in an appropriate case. The evidence admitted was of an incident in which the accused had attempted to abduct a boy in circumstances similar to those in which the victim had, according to the Crown case, been abducted for sexual purposes and murdered. There was a perceived “underlying unity” in the two incidents which gave the evidence sufficient probative value to outweigh the prejudicial effect of that evidence.
The plurality affirmed the Hoch test but emphasised that “striking similarity” is not the essential characteristic for admissibility. Nevertheless, there is always a tension between probative force and prejudicial effect even if the evidence can be seen as supportive of an inference of guilt. The guiding principle (at 485) is to –
... recognize that propensity evidence is circumstantial evidence and that, as such, it should not be used to draw an inference adverse to the accused unless it is the only reasonable inference in the circumstances.
The disputed evidence had a sufficiently probative impact for admission in the trial. It was of significance to link the appellant with the apparent conduct of the murderer.
Toohey J agreed that the only rational conclusion from the disputed evidence, if accepted, was that the accused had acted in a similar manner towards the deceased as with another boy on a previous occasion. More than propensity to act in such a manner was, his Honour held, necessary for such evidence to be accepted as admissible. One reason for so doing might be the similarity of the circumstances. A mere acknowledgment that the probative force of the evidence outweighs its prejudicial effect, in his Honour’s opinion (at 506), “... leaves too many questions unanswered.”
The further question is whether it is “just” to admit the evidence. His Honour said at 507:
... The reference to just aptly conveys the notion that it is not only the interests of the accused that are involved. The legitimate interests of the Crown and of the community cannot be overlooked. The admissibility of the H. incident depends upon it possessing those features identified in Hoch. Unless it does, the evidence is not admissible. If it does, the evidence may be admitted notwithstanding its prejudicial effect if the trial judge considers it just to admit the evidence.
The evidence was, his Honour concluded, rightly admitted.
McHugh J emphasised the importance of the exclusionary rule, noting the various reasons advanced to support it. They are that it undermines the presumption of innocence, it creates a presumption of guilt, it may cause a jury to entertain bias against the accused. Further, such an inquiry, if permitted, disproportionately widens the scope of a trial. Nevertheless, that does not require the exclusion of such evidence in all circumstances. However, it is not enough that evidence of the uncharged acts “is strongly probative of guilt” (at 515):
... The recent cases emphasize that as a matter of law and not discretion the probative value of evidence revealing bad character or criminal propensity must be sufficiently strong to outweigh or clearly transcend the prejudicial effect of the evidence.
The onus is not on the accused to show that such evidence, being relevant, should be excluded. Rather, the prosecution must show that the probative value of the evidence outweighs its prejudicial effect. Was the ‘no rational explanation’ test applicable to all such cases? McHugh J considered that the test (at 517):
... varies according to the reasoning process to be employed, the nature of the evidence, and the degree of potential risk to a fair trial if the evidence is admitted.
Propensity evidence to prove guilt is admissible to prove, for example, that the accused had committed sexual offences against the complainant on other occasions than the occasion charged. Thus, McHugh J concluded, there is no rule that propensity evidence cannot be relevant to prove the guilt of an accused, citing Thompson v The King [1918] AC 221. However, as Thompson illustrated, propensity reasoning carries a real risk of unfairness. At 528:
... it cannot be admitted merely because it has probative or even strong probative value.
To attempt to weigh that characteristic of the evidence against the risk of unfair prejudice is in itself an impossible exercise. The two concepts focus on different issues. The first focuses on the strength and relevance of the evidence to real issues in the trial. The second relates to the fairness of the trial:
... The use of the term “outweigh” suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. In no sense does the probative value of evidence disclosing propensity, when admitted, outweigh its prejudicial effect. On the contrary, in many cases the probative value either creates or reinforces the prejudicial effect of the evidence.
That, his Honour opined, requires a value judgment to be made not a mathematical calculation. The question is whether the prosecution has persuaded the judge that the public interest in adducing all relevant evidence should be given priority over the risk of an unfair trial.
The repetition of examples to support tendency may itself engender unfairness.
To quote Lady Bracknell from Oscar Wilde’s “The Importance of Being Ernest”:
To lose one parent, Mr Worthing, may be regarded as a misfortune, to lose both looks like carelessness.
Those decisions are now supplemented by the provisions of the Evidence Act. It is apparent that the Act recognises the tension between relevance to a prosecution case and the real threat to a fair trial posed by tendency and coincidence evidence. Thus it imposes the “significant” probative value test and the requirement that the evidence also “substantially outweighs” the prejudicial effect of it.
Those provisions are to be applied according to their terms but their context is significant.
Usually such evidence is led by the Crown. However, in R v Lockyer (1996) 89 A Crim R 457, the accused led such evidence to raise a reasonable possibility that the partner of the accused committed the murder of one of their children rather than himself.
Hunt CJ at CL pointed out that, if the Crown leads such evidence, the accused may rely on s 101 to exclude it but, if it is adduced by the accused, the Crown might rely on s 135 to exclude it.
The term “probative value” relates to the degree of relevance of the evidence in question to proof of a fact in issue. That means a fact really, not merely theoretically, in issue. The term “significantly” falls somewhere between mere relevance and “substantial” probative value. Per Hunt CJ at 459:
One of the primary meanings of the adjective “significant” is “important”, or “of consequence”. In my opinion, that is the sense in which it is used in s 97. To some extent, it seems to me, the significance of the probative value of the tendency evidence (whether led by the Crown or by the accused) must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact.
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 considered tendency evidence in the context of a civil proceeding. The evidence in question was of a representation made to prospective lessees other than the appellant to support a conclusion that such a representation had been made to the appellant.
The evidence was rejected as not having significant probative value. That was acknowledged to be a value judgment concerning the degree to which the evidence, if relevant, had satisfied that statutory test (per Sackville J, Whitlam and Mansfield JJ agreeing).
R v Ellis (2003) 58 NSWLR 700 was concerned with the correct application of s 101(2). It came before a bench of five judges (Spigelman CJ, Sully, O’Keefe, Hidden and Buddin JJ). Evidence was led of an “unusual” method of breaking and entering premises, that is, removing glass panels/windows from their frames.
Spigelman CJ, with the concurrence of the remainder of the Court, examined the application of s 101 (at 710 and following). The issue was whether the Pfennig test should be the standard for “significant” probative value. Both in this court and the full Federal Court on appeal a lower standard has been regarded as directed by the Evidence Act. The NSWCCA accepted this but asked whether it was permissible to insist on the Pfennig test even if not mandated?
Spigelman CJ, at 717, opined that the statutory test is to be applied according to its terms, thus:
The continued application of a “no rational view” test is not, in my opinion, consistent with a statutory test which expressly requires a balancing process and tilts that process in the same direction as that which the joint judgment in Pfennig suggested, but by the use of different terminology, that is, “substantially”.
The reasoning in Pfennig applied the “no rational explanation” test to a common law principle that probative value outweighs prejudicial effect. That reasoning is, in my opinion, inapplicable to a statutory test that probative value substantially outweighs prejudicial effect.
His Honour found the dissenting judgment of McHugh J in Pfennig to be consistent with the statutory test. Thus to have sufficient probative value it is not necessary that the only rational explanation for the evidence, if accepted, is that of the guilt of the accused. To adopt the “no rational explanation” test would render negatory the requirement to balance it against its prejudicial effect. His Honour did not, however, agree with an observation of Hidden and Buddin JJ, that is:
(719) ... evidence of that kind is likely to be highly prejudicial, and of the need to ensure that it is admitted only when the interests of justice require it. Its admission at common law is exceptional for reasons of policy, not of logic. These considerations should guide the balancing exercise required by the statutory provision, so that the test for admissibility under that provision remains one of very considerable stringency.
Sully J and O’Keefe J agreed with the Chief Justice.
However, Spigelman CJ did observe, at 718:
My conclusion in relation to the construction of s 101(2) should not be understood to suggest that the stringency of the approach, culminating in the Pfennig test, is never appropriate when the judgment for which the section calls has to be made. There may well be cases where, on the facts, it would not be open to conclude that the probative value of particular evidence substantially outweighs its prejudicial effect, unless the “no rational explanation” test were satisfied.
In Victoria, the Pfennig test was replaced by a provision that propensity evidence is admissible if ... (s 398A Crimes Act 1958 (Vic)(repealed)):
... the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.
In R v Papamitrou [2004] VSCA 12; (2004) 7VR 375 the accused was charged with 15 counts of sexual offences of various kinds in respect of six different unrelated complainants. The “underlying unity” relied on by the trial judge to support cross-admission of the evidence was that the accused in each case was alleged to have used his place of work and position to solicit and exploit girls of adolescent age for sexual activity with himself.
It was accepted that it was a powerful factor favouring severance that prejudicial evidence not admissible against the accused on one count is relevant and admissible on another.
The evidence was cross-admitted. The trial judge told the jury that, to the extent that they accepted the “other act” evidence as reliable and not possibly the result of collusion or concoction they could use it as supporting the evidence of a particular complainant or as bearing on the improbability of six different persons telling similar lies or, of course, being similarly mistaken, as to the occurrence of the conduct complained of.
Winneke P noted that the primary obligation of a trial judge is to ensure a fair trial (for this Territory, that is a right enshrined in the Human Rights Act 2004 (ACT), s 21) and observed, at 388:
... the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused.
Winneke P considered that the evidence of each complainant provided strong support for that of each of the others. At 391:
... It is obvious that evidence of this type carries with it a “prejudice” to the accused. But the “prejudice” of which s 398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them.
In R v Fletcher [2005] 156 A Crim R 308, the appellant, a priest, had engaged, it was alleged, in a pattern of behaviour befriending families with young sons and engaging in sexual conversations with such boys. There was evidence of “low grade” sexual activity with three such boys. Others were subjected to more serious sexual activity. In particular, one proposed witness (GG) gave evidence of conduct amounting to sexual intercourse. The trial judge rejected the former evidence but admitted the latter in support of the current charge.
Simpson J (McClellan CJ at CL agreeing) noted that s 101(2) could only apply to evidence deemed admissible under s 97(1). The proferred evidence might show a tendency to sexual misconduct with adolescent boys, admissible as tendency evidence under s 97(1). That would rationally affect, adversely to the accused, the assessment of the probability that he sexually misconducted himself with the complainant, an adolescent. At 319-320, her Honour observed:
But this is where caution needs to be exercised. While it may be tempting to think, for example, that evidence of a sexual attraction to male adolescents has probative value in a case where the allegations are, as here, of sexual misconduct with a male adolescent, an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called “similar fact” evidence, showing “a striking similarity” between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing.
In her Honour’s view the previous decisions relating to similar fact evidence, that is, striking similarity, underlying unity, system or pattern can still be used to guide the process of evaluation of whether tendered evidence is “capable of having, or would have, significant probative value” at 322.
Her Honour, at 323, endorsed the opinion of Howie J (Santow JA and Bell J agreeing) in R v Harker [2004] NSWCCA 427 that:
[52]... the simple fact, if it were the fact, that the respondent was indecently assaulting [the witness] or engaging in homosexual intercourse with him would not be admissible as proof that he was engaged in similar conduct with the complainant ...
It was open to conclude that the evidence in this case, given the additional common circumstances, showed a pattern of sexual predation on the part of the accused using his position as parish priest.
The s 101(2) test involves the judge prognosticating about the use the jury might make of the evidence. It was open to conclude that the prejudicial effect, though significant, did not transcend the probative value of the evidence.
Rothman J pointed out that for the accused, as a priest, being involved with parishioners and their families was not probative of any relevant tendency. It was the use of that situation to sexualise and sexually abuse the complainants which was probative of a relevant tendency.
It was conceded by the Crown that the apparent sexual preference of the accused for young males was not probative of the commission of the offences in question. Nor was there, if sexual assault had occurred, any issue about the identity of the offender. It would be a different situation if the occurrence might have had an innocent explanation. Nevertheless, Rothman J was in dissent in holding that the evidence should not have been admitted.
In Phillips v The Queen (2005) 225 CLR 303 the charges were of assault with intent to rape. There were six complainants. The issue in each case, like the present, was not identity but of consent or not. As well there was the additional issue of whether the conduct was or not intentionally or knowingly indecent. The evidence of each complainant was admitted in a trial of all such counts. An application to sever the indictment in respect of each separate complainant was rejected.
In a joint judgment Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ ruled that the evidence should not have been admitted. This was a case, not under the Evidence Act, but under common law. There was no suggestion, however, of collusion or mutual influence or bias to explain the several complaints. There were no “striking similarities” in the evidence of the various sexual acts engaged in. The similarity was merely in engaging in sexual acts and the complaint that they were without consent. In some cases, the appellant had denied the acts in question had occurred at all. Their Honours said, at 318:
Neither the courts below nor counsel for the respondent cited any case in which similar fact evidence of complainants who said that they did not consent was led to show that another complainant had not consented. Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants’ evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused; it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her.
It was contended that the evidence was admissible as supporting the occurrence of the sexual acts in question or as rebutting reasonable mistake as to consent on the part of the accused.
Indeed, that is one purpose advanced in this case. The argument is that having had a complaint drawn to his attention, subsequent conduct leading to complaint could not have been accidentally indecent nor could the accused contend that he was thereafter unaware of a substantial risk that his sexual advances might be unwelcome.
In Phillips that argument was rejected. At 321:
That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative.
Pfennig v R was further explained though not departed from. The role of the trial judge was explained as follows at 323-4:
First, due weight must be given to the necessity to view the similar fact evidence in the context of the prosecution case. Secondly, it must be recognised that, as a test of admissibility of evidence, the test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v the Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged. But it does require the judge to exclude the evidence if, viewed in the context and way just described, there is a reasonable view of the similar fact evidence which is consistent with innocence.
It must be borne in mind that the test in Phillips is to read in the context of ss 97, 98 and 101 of the Evidence Act. That does not alter the assessment their Honours made as to whether particular evidence has probative value. It does lower the test for the level of that probative value. It must be ‘significant’ rather than explicable on no other reasonable hypothesis than guilt of the offence charged. Even so, that probative value, even if ‘significant’ must ‘substantially’ outweigh the undoubted prejudicial effect of such evidence. As was noted in Phillips (at 328), the common law set a high threshold for the admission of such evidence. No other result, their Honours opined than exclusion of the evidence “would be compatible with the fair trial of the appellant”.
The Evidence Act continues to impose a high threshold. That is necessary to ensure that accused persons are accorded a fair trial given the high risk of unfair prejudice by reference to tendency or coincidence reasoning.
Nevertheless, in R v Smith (2008) 190 A Crim R 8, the NSW Court of Criminal Appeal (McClellan CJ at CL, Blanch and Hislop JJ) a ruling at trial that such evidence was inadmissible was set aside. The evidence was of sexual touching and fondling of young girls other than the complainant. The actual touching and fondling was not in each case identical but the surrounding circumstances were. Blanch J, for the court, stated at 13:
The evidence goes to establish the respondent’s sexual interest in young girls, his preparedness to carry out sexual acts with young girls where there were other people in the room where he performed his actions and where he ran a significant danger of being discovered and the nature of his actions in fondling both girls on the vagina were also the same in each instance.
The present case, by contrast, involves an adult male expressing a sexual interest in adult women. The context of a professional massage is of some significance.
In R v Ford [2009] NSWCCA 306 Campbell JA, Howie and Rothman JJ agreeing, a ruling to exclude similar evidence made by Judge Sorby pre-trial was vacated.
In that case the respondent was the subject of evidence from three complainants. Each had fallen asleep at his home after consuming alcohol and alleged that thereafter the respondent had engaged in sexual activity with them without their consent. The acts of sexual interference were otherwise not similar.
It was clearly relevant evidence. It went to establishing tendency to sexually molest guests whilst sleeping and it was considered that the risk of unfair prejudice could be averted by proper directions.
An appeal against a ruling sanctioning the admission of evidence of sexual acts by a grandfather against two female grandchildren was dismissed in NAM v The Queen [2010] VSCA 95 by Maxwell P, Buchanan and Nettle JJA. There was found to be a sufficient connexion in the circumstances in which the appellant took advantage of being left in charge of the complainants despite the dissimilarity or lack of distinctiveness in the sexual acts alleged.
It is important, as these cases illustrate, to identify the use to which and the issue to which the proposed evidence would go. In each of the events in question in this case the accused was acting as a professional masseur and, so, by consent, touching each of the complainants. It was not a situation where sexual acts were expected or likely. Consequently, if the accused engaged, as [KW] says he did, in sexual intercourse with her there could be no issue about that being a legitimate part of any therapeutic massage. The only issue would be whether the complainant had consented to that activity or whether, even if not, the accused believed that there was consent.
The issue in respect of the other complainants would potentially be that any touching which is relied on as indecent was either believed by the accused to be part of the massage process, was accidentally intimate or was not sexually motivated but playful, even if inappropriate.
In that context, it could not be said that any relevant tendency is revealed by the fact that the accused found or appeared to find adult women in a state of undress sexually attractive or even that he was sexually aroused in such circumstances. It is only on one occasion that he is alleged to have taken advantage of the situation to engage with one client in sexual intercourse.
It may be in the other cases that there could be an issue as to whether the accused was aware that his conduct was indecent. In some cases, there is an issue as to whether, whatever the state of mind of the accused, his actions were in fact indecent.
I do not consider that the incidents with women other than [KW] indicate anything other than a general attraction to some of the adult women with whom he came into contact in a massage situation. If, in the case of [KW], he acted upon his sexual urges, then the issue of consent arises. The fact that other women were touched sexually without consent would not bear upon that issue as Phillips v R (supra) illustrates. The only purpose of the evidence of other complainants in that context would be to paint the accused as a sexual predator which would unfairly prejudice the unrelated issue raised in respect of counts 1-5.
It follows, in my view, that the evidence of those other complainants is not to be admitted in the trial of counts 1-5. I also consider, though it is not inevitable that it be so simply for that reason, that counts 1-5 should be severed from the remainder of counts on the indictment.
However, I consider there is sufficient similarity and underlying unity in the remaining allegations not to exclude the evidence of those complainants as supportive of the evidence of the others. The evidence is relevant to rebut a suggestion of accident or genuine therapeutic purpose. It is also relevant, in the circumstances, at least in late events, to rebut a suggestion of lack of awareness of the inappropriateness of intimate touching. The general context is also relevant, having some analogy with the circumstances in R v Ford (supra). I decline to further sever the indictment.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 25 November 2010
Counsel for the Crown: Ms K Weston-Scheuber
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the Defendant: Mr M Kukulies-Smith
Solicitor for the Defendant: Kamy Saeedi Lawyers
Date of hearing: 9 August 2010
Date of judgment: 25 November 2010
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