R v JSK

[2013] ACTSC 147

R v JSK
  [2013] ACTSC 147 (2 August 2013)

CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown Application to adduce – whether proposed tendency evidence of significant probative value – whether proposed tendency evidence too ambiguous to be of significant probative value – whether proposed tendency evidence admissible for another purpose – application granted in part

Evidence Act2011 (ACT), ss 56, 97, 101

REASONS FOR DECISION

No. SCC 64 of 2012

Judge: Burns J             
Supreme Court of the ACT

Date: 2 August 2013  

IN THE SUPREME COURT OF THE     )
  )          No. SCC 64 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

R
  v
  JSK

REASONS FOR DECISION

Judge:  Burns J
Date:  2 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The accused’s application for a separate trial on Count 9 is formally granted. 

1. The Crown’s application to lead evidence relevant to each of the Counts 1-8 as tendency evidence with respect to each of the other Counts in the first trial of the accused is granted.

1. With respect to the admissibility of incidents alleging uncharged acts on the Amended Notice of Intention to Adduce Tendency Evidence in the first trial of the accused:

a)          Incidents 5 and 13 are not admissible, either as tendency evidence or on any other basis. 

b)          Incidents 6 and 14 are admissible as tendency evidence. 

c)          Incident 8 is not admissible as tendency evidence or on any other basis. 

d)          Incident 12 is not admissible as tendency evidence, but is admissible as relationship evidence. 

1. The Crown is entitled to lead as tendency evidence those images of adolescent girls which form part of the material the subject of Count 9 in the trial of the accused on Counts 1-8.

1. The accused is awaiting trial on the following charges on an Indictment dated 28 November 2012:

   THAT between 1 September 2011 and
   23 October 2011 at Canberra in the Australian Capital Territory JSK committed an act of indecency on a      person under the age of 16 years, namely JF.

   SECOND COUNT      AND FURTHER THAT on 14 October 2011 or 15 October 2011 at Canberra aforesaid JSK committed an act of indecency in the presence of a person under the age of 16 years, namely JF.

THIRD COUNT        AND FURTHER THAT between 1 February 2011 and 23 October 2011 at Canberra aforesaid JSK committed an act of indecency in the presence of a person under the age of 16 years, namely JF.

FOURTH COUNT      AND FURTHER THAT between 12 April 2011 and 24 July 2011 at Canberra aforesaid JSK committed an act of indecency on a person under the age of 16 years, namely CS.

FIFTH COUNT         AND FURTHER THAT between 1 February 2011 and 23 October 2011 at Canberra aforesaid JSK committed an act of indecency on a person under the age of 16 years, namely CS.

SIXTH COUNT         AND FURTHER THAT between 1 February 2011 and 23 October 2011 at Canberra aforesaid JSK committed an act of indecency in the presence of a person under the age of 16 years, namely BA.

SEVENTH COUNT     AND FURTHER THAT on about
16 September 2011 at Canberra aforesaid JSK committed an act of indecency in the presence of a person under the age of 16 years, namely BA.

EIGTH COUNT        AND FURTHER THAT between 1 August 2011 and 3 October 2011 at Canberra aforesaid JSK committed an act of indecency on a person under the age of 16 years, namely BA.

NINTH COUNT        AND FURTHER THAT on 25 October 2011 at Canberra aforesaid JSK possessed child pornography.

1. On or about 28 November 2012, the Crown served on the accused an Amended Notice of Intention to Adduce Tendency Evidence (the notice).  The notice set out 15 incidents, the substance of which the Crown proposed leading as tendency evidence at the trial of the accused.  Some of those incidents correspond to counts on the indictment, whereas others referred to uncharged acts.  The notice specifies that the Crown proposes using the tendency evidence to prove that the accused had a tendency to have particular states of mind or to act in particular ways, being:

a)to have a sexual attraction to adolescent girls;

b)to act on his sexual attraction to adolescent girls;

c)to touch adolescent girls in sexual ways;

d)to perform explicit sexual actions with adolescent girls;

e)to talk with adolescent girls about engaging in sexual intercourse with him;

f)to ask adolescent girls to share sexual experiences with him;

g)to talk sexually towards adolescent girls about bottoms, breasts and genitals;

h)to talk to adolescent girls in sexually explicit ways;

i)         to take advantage of his daughter’s friendships with adolescent girls to gain access to those girls.

1. At about the same time the Crown served the notice on the accused, it also filed an application for orders that it be permitted to adduce tendency evidence as outlined in the notice at the accused’s trial.

1. The accused opposed the Application to Adduce Tendency Evidence, and sought an order that the final count on the indictment, the charge of possession of child pornography, be severed and proceed as a separate trial. The application to sever Count 9 was not opposed by the Crown, and I now make the formal order of severance. However, the Crown seeks to lead certain images, part of the material subject of this Count as tendency evidence in the trial of the accused on the remaining eight Counts. The images the Crown proposes to use are those depicting adolescent girls.

1. On 13 March 2013, I ruled that the Crown is entitled to lead evidence relevant to each of the Counts as tendency evidence with respect to each of the other Counts.  With respect to the incidents alleging uncharged acts, I ruled that Incidents 5 and 13 as set out on the notice were not admissible, either as tendency evidence or on any other basis.  I ruled Incidents 6 and 14 admissible as tendency evidence.  I ruled that Incident 8 would be provisionally admissible as tendency evidence, with a final ruling to await the pre-trial evidence of the witness SH.  On 14 March 2013, I made a final ruling that Incident 8 would not be admissible as tendency evidence or on any other basis.  Finally, on 13 March, I also ruled that Incident 12 would not be admissible as tendency evidence, but would be admissible as relationship evidence.  I indicated that I would publish my reasons at a later time.  These are those reasons.

THE INCIDENTS SET OUT IN THE NOTICE

1. Incident 1 (Count 1)

(a)       Substance of the evidence:

Between 1 September 2011 and 23 October 2011, JF (13 years old) was at the accused’s house with her friend (the accused’s daughter) YK (12 years old), CS and BD.  JF went to the bathroom alone to do her hair before they went to Tuggeranong Hyperdome.  The accused walked into the bathroom and       said “you’re so hot”.  The accused touched her breasts and buttocks and said “You have nice boobs...you have a nice arse”.

1. Incident 2 (Count 2)

(a)       Substance of the evidence:

On 14 October 2011 or 15 October 2011, JF was again at the accused’s house         with YK.  JF was in the lounge room with the accused waiting for YK to get         ready to go motorbike riding.  The accused said to JF “you have a nice tight        vagina [JF]...can I have sex with you [JF].  I want to have sex with you”.

1. Incident 3 (Count 3)

(a)       Substance of the evidence:

Between 1 February 2011 and 23 October 2011, JF was at the accused’s house        in the lounge room with YK, BK and JK.  The accused was in his bedroom         and called out to JF to “come here”.  JF walked into the bedroom and saw the accused watching [a] home-made pornography video of him and his estranged wife having sex.  The accused showed her another video of his wife having sex as well as photo albums of home-made pornography with his estranged wife.

1. Incident 4 (Count 4)

(a)       Substance of the evidence:

Between 12 April 2011 and 24 July 2011, CS (12 years old) was in the kitchen of the accused’s house making noodles.  The accused came into the kitchen and began preparing food.  As CS went to the fridge the accused grabbed CS, put his hands down her leggings and touched her vagina.  The accused said “I like girls with shaved pussies”.

1. Incident 5 (uncharged)

(a)       Substance of the evidence:

Between 2 May 2011 and 23 October 2011, CS was laying on YK’s bed with YK.  The accused walked into the bedroom and slapped CS on the bottom and   said “A girl who has their arse out always means they want to get it slapped.”

1. Incident 6 (uncharged)

(a)       Substance of the evidence:

Between 1 February 2011 and 23 October 2011, the accused picked up CS from her house so that she could sleep over at his house with his daughter YK.  During the car trip the accused asked CS what colour bra she was wearing.  At the time CS was wearing one-piece pyjamas.  While driving the accused reached over [and] partially unzipped the front of her pyjamas down to her chest.

1. Incident 7 (Count 5)

(a)       Substance of the evidence:

Between 1 February 2011 and 23 October 2011, CS was in the accused’s      bedroom playing Xbox.  The accused came in and started to play wrestle with her. When the accused’s young son, JK, came into the room the accused told him to “pin her down”.  JK held CS by the shoulders while the accused put his face between her legs and licked at her vagina over her leggings.  Afterwards CS noticed there was a wet patch at the crotch of her leggings.

1. Incident 8 (uncharged)

(a)       Substance of the evidence:

Between 2 May 2011 and 8 July 2011, SH was at the accused’s house in the kitchen making a jam roll.  The accused was in the kitchen when the accused he touched her bottom. [sic]

1. Incident 9 (Count 6)

(a)       Substance of the evidence

Between 1 February 2011 and 23 October 2011, BA (14 years old) and CS were in the accused’s bedroom using the computer.  At the time the girls were being filmed without their knowledge.  At some stage the accused walked into the bedroom and said to the girls “Show me your boobs.  What about me?” A short time later CS leaves the bedroom and the accused asks BA to “stay with him”.  BA declines and the accused says “I promise I won’t fuck you more        than ten times, and eat your pussy more than twenty.  I promise you’ll come.”  The accused later says “I’ve got to find somebody to fuck”.  A short time later the accused leaves the bedroom and the film stops.

1. Incident 10 (Count 7)

(a)       Substance of the evidence:

On about 16 September 2011, after BA had been drinking alcohol the accused grabbed her from behind and touched her breasts.  The accused told CS that he “had the privilege to be able to touch [B’s] boobs and everything now because she won’t remember it in the morning”.  The following morning the accused said to BA “I like it when you get drunk because I get to touch your boobs.  I should you drunk more often and we can do more” [sic].

1. Incident 11 (Count 8)

(a)       Substance of the evidence:

Between 1 August 2011 and 3 October 2011, BA was at the accused’s house watching an NRL match on television with YK, BD and the accused.  During the match the accused said to BA “if my team wins you have to have sex with me...and if my team scores you have to give me gobs [fellatio]”.  Each time the accused’s team scored he went over to BA and grabbed her head and pulled her head backwards and forwards towards his genital area.

1. Incident 12 (uncharged 8)

(a)       Substance of the evidence:

Between 1 February 2011 and 23 October 2011, the accused often made sexual comments to JF, CS and BA and touched them in sexual ways.

1. Incident 13 (uncharged)

(a)       Substance of the evidence:

Between 1 February 2011 and 23 October 2011, the accused showed BA      home-made pornography pictures of him and his ex-wife having sex.  The pictures also showed the accused’s ex-wife in various other sexual acts.

1. Incident 14 (uncharged)

(a)       Substance of the evidence:

Between 1 February 2011 and 23 October 2011, the accused sent pictures of          penises and pornography from his mobile phone to CS’s mobile phone.

1. Incident 15 (Count 9)

(a)       Substance of the evidence:

The accused possessed a number of child pornography images and multimedia files of adolescent girls on a Silver Seagate hard drive 320GB (saved in his ‘My Documents’ folder) and 1x DVD-R labelled “Pics Software Stuff”.  Images on the devices included several images of young girls between 6-14 years old including posing naked with their genitals showing or penetrative sexual activity with adults.

THE RELEVANT LAW

1. There can be no doubt that the evidence the Crown proposed to lead as tendency evidence is relevant to proving the charges against the accused, either directly or through one or more of the alleged tendencies. Therefore, by virtue of s 56 of the Evidence Act2011 (ACT) (the ‘Evidence Act’), the evidence is admissible unless rendered inadmissible by some other provision of that Act.

1. The reception of tendency evidence is primarily governed by s 97 of the Evidence Act, which relevantly provides that evidence of a tendency a person has or had is not admissible to prove that a person has or had a tendency to act in a particular way or to have a particular state of mind unless the court thinks that the evidence will, either by itself or in conjunction with other evidence to be led, have significant probative value.

1. The term “probative value” is defined to mean the extent to which the evidence could rationally effect the assessment of the probability of the existence of a fact in issue.

1. A further restriction is placed on the reception of tendency evidence by s 101 of the Evidence Act, which provides that tendency evidence presented by the prosecution against an accused cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.

THE ACCUSED’S CASE

1. As I understand it, the accused did not participate in a record of interview with the police, so that I am not assisted by such interview in determining what facts are in issue.  Counsel for the accused has cross-examined a number of the complainants during the taking of pre-trial evidence, and it appears from that cross-examination that the accused asserts that some of the events alleged against him did not occur, while others were part of a pattern of joking banter that commonly occurred between himself, the complainants and his children.

CONCLUSIONS

1. I concluded that evidence of some of the incidents should be admitted, as capable of establishing the following tendencies:

a)        a tendency to have a sexual attraction to adolescent girls; and

b)        a tendency to act on his sexual attraction to adolescent girls.

1. I considered the remaining tendencies referred to in the notice to be adequately encompassed by these two tendencies.

1. In my opinion, the evidence relevant to proving these tendencies has significant probative value.  It may assist in proving that the alleged events occurred, or that the accused’s purpose in acting as the Crown alleges was a sexual purpose.

1. I ruled incidents 5 and 13 to be inadmissible as being too ambiguous to be of significant probative value.  I ultimately ruled incident 8 to be inadmissible as the evidence surrounding the incident was vague and ambiguous.  The evidence of those matters referred to as incident 12 was also very vague, such that it did not meet the test for admission as tendency evidence.  However, evidence of this nature is commonly led as relationship evidence, relevant to establishing why the complainant may not have complained at the earliest opportunity. 

1. In my opinion, the Crown should also be entitled to lead as tendency evidence those images of adolescent girls which form part of the material the subject of Count 9. The material is clearly relevant to establishing the asserted tendencies and has significant probative value. That probative value substantially outweighs the prejudice to the accused.

   I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:    2 August 2013

Counsel for the Crown:  Mr T Hickey
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Accused:  Mr M Hassall
Solicitor for the Accused:  Pappas, j. -attorney
Date of Hearing:  13 – 14 March 2013
Date of Reasons:  2 August 2013