R v IW

[2021] NSWDC 789

District Court

New South Wales

Medium Neutral Citation:

R v IW [2021] NSWDC 789

Hearing dates:

9 September 2021

Date of orders:

16 November 2021

Decision date:

16 November 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

In relation to the tendency notice, the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.

In relation to the uncharged act, the Crown should not be able to adduce the evidence as tendency or context evidence where it relates to a child presumed to be doli incapax.

Catchwords:

CRIMINAL PROCEDURE – evidence – tendency – historical child sexual offences – buggery – conduct that has ceased to be an offence – does section 97A of the Evidence Act 1995 operate to catch such conduct? – probative value of evidence – uncharged act – doli incapax

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Amendment) Act 1984 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

The Queen v Bauer [2018] HCA 40

Category:

Procedural rulings

Parties:

Regina
IW

Representation:

Counsel:
Mr Paul Kerr (Crown)
Mr Scott Corish (Accused)

Solicitors:
Office of the Director of Public Prosecutors (Crown)
Perrot's Solicitors (Accused)

File Number(s):

2020/00250955

Publication restriction:

Non-publication order in relation to the name of the accused and the complainants, or of any information which may enable their identities to be ascertained

Judgment

INTRODUCTION

1. The accused faces a six-count indictment. The allegations are that he committed an act of buggery, or attempted buggery, with GW (count 1), JW (counts 2 and 3), PW (counts 4 and 5), and AW (count 6).

2. The dates of the alleged offending range from 1 January 1967 to 31 December 1969. The complainants are brothers.

THE NOTICE

3. By a notice, the Crown asserts tendency. The tendency sought to be proved is that the accused had a sexual interest in young male children under his care and supervision, and he acted on that sexual interest by having sexual intercourse, or attempting to have sexual intercourse, with young male children under his care and supervision.

THE ALLEGATIONS

GW

4. From time to time, the complainant stayed with his grandparents at a sheep and cattle station located in New South Wales. The complainants’ grandfather was HW. After HW's first wife died, he married MW. At the time of their marriage, MW had two grandchildren: the accused and his sister.

5. HW and MW occupied a house on the property not far from the shearing shed. The house had three bedrooms with a large lounge room. The kitchen was separate to the house and was built at the back of the property. There was a caravan approximately 20 metres from the house that was owned by HW. The caravan was used when HW was droving. Approximately 200 metres from the house was a shearing shed and shearers’ quarters. The shearers’ quarters consisted of approximately ten rooms. At one end of the shearers’ quarters was a shower block and laundry. There were also several detached sheds and stables around the property.

6. GW says he was in the caravan with the accused when he was pushed from behind and against the caravan table. He was held by one hand and his shorts were pulled down. The accused put his dick into his bottom inside him. He felt excruciating pain. He was yelling “Fuck off, fuck off”, and the accused told him to shut up. He freed himself and ran out of the door of the caravan. Later on, the accused told him to keep his mouth shut.

7. At the time of the incident the accused was under 14. The Crown case statement refers to the above incident as the doli incapax incident. It is not a subject of a count on the indictment. The Crown seeks to lead the evidence in proof of tendency and/or context evidence.

8. Approximately 12 months later, when the accused was above the age of 14, GW asserts that “Pop” sent he and the accused out to the donkey room to light the wood fired hot water service. While in the donkey room, the accused grabbed him and pushed him into the handbasin. The accused was standing behind him, his shorts were pulled down to his knees. The accused put his dick into his bottom. He felt it go inside. “It hurt like shit”, and he put up a fight and broke loose. He ran out of the door and pulled his pants up as he ran. This incident is count 1 on the indictment.

JW

9. JW and the accused went for a ride on a horse to check the water level of a dam. They were standing on the bank of the dam. The accused pulled his shorts down. He was pushed to the ground face first. The accused was kneeling over the back of him. He heard spit from the accused’s mouth and felt wetness between the cheeks of his bottom. His bottom was penetrated. He has never felt pain like that in his life. He cried until the accused stopped and got off him. He was told not to say anything (count 2).

10. A couple of weeks later, the complainant was on a horse with the accused. They stopped at a dam. The accused wanted to do what they had done previously. He refused. He jumped off the horse and started to run. The accused came under the neck of the horse and grabbed him by the arm. When he did that, he dropped the reins to the horse. The horse began to walk off. He was struggling and trying to pull away. Because the horse was walking away, the accused let go and said, “If you tell anyone we will get a flogging” (count 3 - attempt to commit an act of buggery).

PW

11. The complainant and the accused were riding separate horses. They stopped at a dam and dismounted. The complainant was having a “piddle”. He was grabbed from behind and pushed to the ground. His pants were pulled down to his knees. The accused spat on his bum a couple of times. He then felt a “dick” penetrate inside his bum. He felt the accused moving backwards and forward. He stopped and the accused wiped the top of his bottom with a hankie. The accused said, “If you tell anybody I will do more than that to you” (count 4).

12. About ten minutes later the complainant was having a bath. He heard someone walk into the room and lock the door. It was the accused. He got out of the bath, and he was grabbed and bent over the bath headfirst. The accused said, “If you scream, I will drown you in the bath water”. He felt the accused’s “dick” penetrate his bottom. He felt his dick moving backwards – back and forwards. He stopped and the complainant wiped fluid off his bottom and put his clothes back on. The accused said, “Remember what I said before, if you open your mouth, it will be worse next time” (count 5).

AW

13. The complainant was about six years of age. His mother told him to have a bath at the shearers’ quarters. The accused walked him up and filled the bath. He got into the bath. The accused hopped in the bath and asked the complainant to come down his end so he could wash his back. He stood up and spun around. The accused pulled him down and he fell down on the accused’s lap. The accused began pushing his dick in his bottom. He screamed in pain and was crying. About a minute later, the accused let him go and he jumped out of the bath. The accused told him to tell everyone that he had slipped in the bath and hit his head (count 6).

STATUTORY PROVISIONS

14. The Crown relies upon s 97(1) and s 97A of the Evidence Act 1995 (NSW).

15. Section 97(1) 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—

(a)   the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(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.

16. Section 97A provides:

(1)   This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.

(2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2)—

(a)   tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest),

(b)   tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.

(3)   Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally.

(4)   Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.

(5)   The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account—

(a)   the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act),

(b)   the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred,

(c)   the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act,

(d)   the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act,

(e)   the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act,

(f)   the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features,

(g)   the level of generality of the tendency to which the tendency evidence relates.

(6)   In this section—

child means a person under 18 years of age.

child sexual offence means each of the following offences (however described and regardless of when it occurred)—

(a)   an offence against, or arising under, a law of this State involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence, or

(b)   an offence against, or arising under, a law of this State involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence, or

(c)   an offence against, or arising under, a law of the Commonwealth, another State, a Territory or a foreign country that, if committed in this State, would have been an offence of a kind referred to in paragraph (a) or (b),

but does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.

17. Section 101 of the Evidence Act 1995 (NSW) provides:

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2)   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 outweighs the danger of unfair prejudice to the defendant.

(3)   This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant.

(4)   …

CROWN SUBMISSIONS

18. The Crown submits that the evidence of the complainants sustains the alleged tendency to have a particular state of mind, namely, a sexual interest in young male children under his care and supervision, and also the tendency to act on it by having sexual intercourse or attempting to have sexual intercourse with young male children under his care and supervision. The Crown relies upon the following behaviour:

1. to attempt to and/or have anal intercourse with young male children whilst they are alone and under his care and supervision.

2. to create opportunities to be alone with young male children.

3. to use physical force to overpower young male children to have anal intercourse without their consent.

4. to threaten the complainants if they reported the sexual behaviour of the accused.

ACCUSED’S SUBMISSIONS

19. The accused submits that the statements of the various complainants do not support the asserted tendency as particularised; that is, there is no linking feature asserted. Counsel referred to, and relied upon, what was said in The Queen v Bauer [2018] HCA at [58].

20. The accused submits that the complainants were not under his care and supervision. He was slightly older but a juvenile. Something more is required, such as direction or maturity, to accept and understand the nature of such responsibilities.

21. It is submitted that the statements do not suggest that the accused created opportunities or engineered scenarios as a child himself to be alone with the child complainants.

22. Mr Corish submits that there is a paucity of evidence of the issuing of threats to the children that they would get in trouble and/or hurt if they reported the sexual behaviour of the accused. He submits that GW does not mention any threat. That submission is inaccurate. GW in his statement said the accused “told him to keep his mouth shut”. This, in my view, is a threat.

23. Mr Corish concedes the evidence discloses the following:

1. JW: says the complainant told him not to say anything and “If you tell anyone we will get a flogging”.

2. PW: says the complainant said to him that if he said anything “I will do more than that to you”, and “remember what I said before. If you open your mouth, it will be worse next time”.

3. AW: the accused encouraged him to tell a false story, namely that he had slipped in the bath and hit his head.

24. Mr Corish submits that “to the extent of any of the above can be characterised as the issue of threats, they should only be admissible in relation to that particular complainant and not in relation to other complainants”. I accept that submission.

25. The Crown is precluded from asserting a tendency to issue threats as cross-admissible against the complainants. The issue of threats is admissible individually to each complainant but is not cross-admissible.

26. Mr Corish submits that s 97A of the Act does not apply. The section does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct. He submits that buggery is no longer an offence. The offence of buggery under s 79, is described as the abominable crime of buggery, in the Crimes Act 1900 which was repealed in 1984 by the Crimes (Amendment) Act 1984. He submits that the offence of buggery is a unique offence insofar as its primary purpose was the prohibition of consenting conduct between adults. It is not an offence directed to the sexual assault of a child by an adult. He submits that the offence of buggery is in a unique position and is one of the few offences that may be captured by the final words of s 97A.

27. Mr Corish submits that if the tendency evidence has significant probative value, it does not substantially outweigh the prejudicial effect of the evidence: s 101 Evidence Act 1995.

CONSIDERATION

28. It is submitted on behalf of the accused that the act of buggery is no longer an offence. The offence of buggery under s 97 of the Crimes Act was repealed in 1984 by the Crimes (Amendment) Act1984. Mr Corish calls into aid the words:

“But does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.”

29. The argument fails to take into account the definition of child sexual offence contained in s 97A(6)(a) in that a child sexual offence means:

“An offence against, or arising under, a law of this State involving sexual intercourse with, or any other sexual intercourse against a person who was a child at the time of the offence regardless of when it occurred.”

30. The penetration of the anus by a penis is defined as sexual intercourse; it is a sexual offence. Although the physical act in between the charge periods is referred to as the act of buggery, it is sexual intercourse by insertion of a penis into the anus. It is a child sexual offence as defined and is not conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.

31. I reject the accused’s submission that s 97A does not apply because “the unique offence of buggery is no longer an offence”.

32. The complainants were children, that is, persons under 18 years of age. Section 97A has application. Pursuant to subsection (2) it is presumed that the tendency evidence will have significant probative value for the purposes of s 97(1)(b) and s 101(2).

33. Tendency is an inclination towards a particular characteristic or type of behaviour. Mr Corish submits that the statements of the various complainants do not support the asserted tendency as particularised. He submits there is no linking feature, and he relies upon what was said by the High Court in The Queen v Bauer [2018] HCA 40 at [58]:

“...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, the evidence that an accused has committed a sexual offence against the first complainant proves no more than 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”.

34. Bauer needs to be read in light of s 97A that presumes the tendency will have significant probative value, and one is precluded from taking into account that “the tendency, sexual interest or act, an alleged sexual interest or act, do not share distinctive or unusual features”: s 97A(5)(f).

35. Criticism is made that the accused did not have the children under his care and supervision. This may be so, but the tendency is one of acting towards a child when the child is present. If the allegations are to be believed, it was opportunistic behaviour on the part of the accused to engage in anal intercourse with a complainant absent the presence of anyone else.

36. It is submitted that the evidence does not establish a tendency on the part of the accused to create opportunities to be alone with young male children. This may be so, however, when he was alone with the complainants, it is said he engaged in anal intercourse. This is the tendency, that is, an inclination towards a type of behaviour, namely, engaging in anal intercourse with children younger than himself.

37. I am satisfied that there is a high degree of probative value of the evidence that the accused inserted his penis into the anus of the complainants in the absence of other people. The evidence by itself, or together, strongly supports proof of tendency, and the tendency strongly supports the proof of facts that make up the offence charged. I have not been satisfied that the tendency does not have significant probative value, nor are there exceptional circumstances rebutting the presumption of significant probative value in s 97A.

34. All tendency evidence is prejudicial to an accused. I am satisfied that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. I do not believe that the jury will use the evidence improperly in some unfair way.

35. There is an allegation of an uncharged act contained in paragraph 7 of the statement of GW. The Crown seeks to adduce that evidence of tendency and/or context. The presumption of doli incapax applies to this episode. On the materials before me, there is no evidence the prosecution can adduce to rebut the presumption.

36. I accept Mr Corish’s argument that the uncharged act should be excluded pursuant to s 137, due to the danger of unfair prejudice. It may result in a trial within a trial to rebut the presumption. The Crown should not be able to adduce the evidence as tendency or context evidence where it relates to a child presumed to be doli incapax.

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Decision last updated: 27 May 2022