R v Kent
[2020] SADC 159
•9 November 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KENT
[2020] SADC 159
Ruling of her Honour Judge Fuller
9 November 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINDER OF COUNTS AND DEFENDANTS
The accused is charged with three sexual offences against two child complainants - application to sever the charges to allow for a separate trial for each complainant - whether evidence cross-admissible as discreditable conduct evidence on the basis of similarity of account, a Nieterink use and propensity.
Held: The evidence of each complainant is not cross-admissible and does not have a permissible use under s 34P(2)(a) or (b) of the Evidence Act 1929 (SA).
Application allowed. Order for severance of counts requiring separate trials for each complainant.
Criminal Procedure Act 1921 (SA) s 102(6)(b); Evidence Act 1929 (SA) ss 34P, 34P(2)(a), 34P(2)(b), 34P(3); District Court Rules 2014 (SA) Rule 49(1)(e), referred to.
R v Maiolo (No 2) (2013) 117 SASR 1; R v M, JJ; R v C, JN (2013) 117 SASR 81; R v Nieterink (1999) 76 SASR 56; R v C, CA [2013] SASCFC 137; De Jesus v The Queen (1986) 68 ALR 1; R v N, SH [2010] SASCFC 74; Sutton v The Queen (1984) 152 CLR 528; Des v The Queen [2020] SASCFC 32; R v Bolte [2010] SASC 112; MDM v The Queen [2020] SASCFC 80; McPhillamy v The Queen [2018] HCA 32; Hughes v The Queen (2017) 263 CLR 228, considered.
R v KENT
[2020] SADC 159
Jeffrey Thomas Kent is charged on one Information with three sexual offences against two sisters, BJL and TL, which are all said to have been committed between 16 June 2017 and 31 January 2018.
The accused is charged with one count of unlawful sexual intercourse in respect of BJL. It is alleged that she was a person under the age of 14 years and that the accused had unlawful sexual intercourse with her by inserting his finger or fingers into her vagina.
The accused is charged with one count of aggravated indecent assault and one count of gross indecency in respect of TL. It is alleged that she was a person under the age of 14 years and that the accused indecently assaulted her by taking her pants off and then looking at her vagina as he was trying to take her underpants off. It is further alleged that she was a person under the age of 16 years and that the accused exposed his penis to her through the fly of his underwear.
On 5 June 2020, the prosecution filed a notice of intention to adduce discreditable conduct evidence. The first item of discreditable conduct sought to be led was each charged and uncharged act of sexual misconduct against each complainant. It was asserted that there was a permissible use for this evidence as:-
…circumstantial evidence demonstrating a specific sexual attraction to the particular complainant and a tendency for the accused to act in furtherance of that sexual attraction. The evidence shows the accused to have a particular propensity to engage in the conduct described by the complainants.
The second item of discreditable conduct sought to be led was the evidence of the accused buying BJL a lingerie style Halloween costume and taking her bra shopping. It was asserted that there was a permissible use for this evidence as: -
…circumstantial evidence which demonstrates a specific sexual attraction to BJL and a tendency for the accused to act in furtherance of that sexual attraction. The evidence shows the accused to have a particular propensity to engage in the conduct described by the complainants.
On 16 July 2020, the accused filed a notice of intention to object to the discreditable conduct proposed to be led by the prosecution. On 18 July 2020, the accused made application pursuant to Rule 49 (1) (e) District Court Rules 2014 for a separate trial of the counts alleging the commission of offences against TL.
The joinder of charges is authorised by s 102 (6) (b) Criminal Procedure Act 1921 (SA). That section provides: -
(6)Despite subsection (5) any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different victim.
The discretion to order a separate trial of a count relating to a particular complainant is only to be exercised where the evidence in relation to that count is not cross-admissible. That discretion is to be exercised judicially. In R v N, SH[1], the Court said of the earlier equivalent of s 102 (6) (b):
In our view, the amendment of s 278 by the insertion of subsection (2a) does not alter the general proposition that if the evidence on one count is not admissible on the other count or counts, the Court will usually exercise its discretion to order separate trials, particularly in sexual cases. The section limits the Court in deciding the cross admissibility of the evidence, but upon the Court determining the evidence is not cross admissible the Judge, in exercising his or her discretion, must have regard to the principles in Sutton and De Jesus.[2]
[1] [2010] SASCFC 74
[2] At [44].
Discreditable Conduct
Evidence that a person has committed sexual offences other than the charged offence is evidence of ‘discreditable conduct’. The admissibility of this evidence is governed by s 34P of the Evidence Act 1929 (SA).
Section 34P provides:
34P – Evidence of discreditable conduct
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than the conduct constituting the offence (discreditable conduct evidence) –
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)is inadmissible for that purpose (impermissible use); and
(c)subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if –
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue – the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3) In the determination of the question in subsection (2) (a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
Cross admissibility
In summary, the prosecution submits that the evidence of each complainant is cross admissible and can be used in consideration of the charge or charges in relation to the other complainant in the following ways:
(i)First, that the evidence of each complainant is necessary to provide a complete picture of the alleged offending, allowing the trier of fact to have a complete and proper understanding as to how the offending unfolded and continued. This is commonly referred to as a “Nieterink” use of the evidence (and does not rely upon any propensity on the part of the applicant).
(ii)Second, ‘similarity of account’, that is improbability of the acts occurring other than alleged by the two complainants (this use does not rely upon propensity on the part of the applicant).
(iii)Third, ‘permissible propensity’, that evidence of the interactions between each child and the applicant demonstrate that the accused has a particular propensity to engage in the conduct alleged by the prosecution, namely that the defendant had a particular propensity to commit sexual offences against young girls within the age range of 9-13 that were under his supervision, and a tendency to act in furtherance of that sexual attraction (a propensity use).[3]
[3] Prosecution Outline of Argument, 23 September 2020 at [55].
In R v MJJ; R v CJN[4] Kourakis CJ set out the process by which the probative value of the evidence is weighed:
The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially outweighs its prejudicial effect.
At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. Resorting to generalities such as “context”, “background” and “underling unity” will seldom illuminate the analysis.
[4] (2013) 117 SASR 81.
Similarity of account
In R v C, CA[5], Kourakis CJ described similarity of account as the clearest basis for the cross-admissibility of evidence of offending against each complainant:
The clearest basis for the cross-admissibility of the evidence of offending against each complainant on the trial of the offending against the others is that the testimonial accounts of the complainants demonstrate the improbability that the conduct of which they complained was concocted or imagined by each of them independently of the others. I will refer to that basis for admissibility as the “similarity of account” basis and to evidence admitted for that purpose as “similarity of account evidence”. The strong probative force of similarity of account evidence was explained in Hoch v The Queen (Hoch). It arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail. Section 34S of the Evidence Act has removed the common law condition for the admissibility of similarity of account evidence established in Hoch. It is no longer a necessary condition of admission that the trial Judge be satisfied that there is no possibility of collusion between the complainants. That is now a factual question for the jury.
The strong probative force of similarity of account evidence in the circumstances of this case can be shortly explained. If there were separate trials of the offences against each of the complainants, the primary issue would become the reliability and credibility of the individual complainant concerned. Having sought separate trials, it is very unlikely that the appellant would raise collusion with another complainant who had made similar allegations as a reason for doubting the complainant in the charges before the court. Instead, on a trial of the charges relating to a single complainant alone the defence is likely to advance matters peculiar to that complainant for doubting his reliability or credibility. Those matters are likely to be accorded substantially greater weight if nothing is known of the allegations made by other complainants than if it is known that other complainants have given very similar accounts of sexual offending by the accused. The rational reason for according that defence less weight, and therefore the probative force of the similarity of account evidence, lies in the improbability that several complaints, independently made, would share the substantial similarities apparent in the accounts of the complainants, given the great diversity in human behaviours and imaginations. If the similarity of account evidence excludes the hypothesis of independent concoction beyond reasonable doubt, the similarities can only be explained by collusion on the one hand or the truth of the complaints on the other.
[5] [2013] SASCFC 137.
In Des v The Queen[6], Doyle J said that the focus must be upon the degree of similarity between the complainants’ allegations of abuse, rather than the number or regularity of the instances of alleged abuse. Further, the focus must be upon similarity (or dissimilarity) that bears upon the improbability of fabrication, coincidence or collusion.[7] In Des v The Queen, Doyle J identified the several significant similarities between the allegations of the three complainants. The allegations each involved the appellant sexually abusing a young niece by entering their bedroom late at night whilst asleep; often involved the appellant getting into bed with the relevant complainant and touching her vagina; on most occasions this occurred when he was babysitting, or his mother was babysitting and he smelt of beer or alcohol; the offending was brazen and opportunistic. Doyle J described the issue as ‘relatively finely balanced’ but was satisfied that the trial Judge was correct to accept that the evidence of the three complainants was cross-admissible under s 34P (2)(a) of the Evidence Act on a similarity of account basis.
[6] [2020] SASCFC 32.
[7] At [70].
Livesey J agreed with Doyle J that the issue was ‘finely balanced’:
Whilst that may be a relevant consideration when determining admissibility, it is ultimately resolved by a decision by the trial Judge about the extent to which the degrees of similarity of account bear on the improbability of independent fabrication or coincidence. This, together with whether the permissible and impermissible uses can be kept sufficiently separate and distinct so as to remove the risk of impermissible use, will determine cross admissibility.
…Whilst it was not beyond argument, the evidence in this case was not merely that which “would always present itself” in cases of sexual abuse by a male of a female.[8]
[8] At [158]–[159].
The focus must be on the similarity between the complainants’ allegations, rather than the complainants’ characteristics:
…the similarities to be taken into account when applying similar account reasoning are only those appearing within the narrative of allegations made by each of the relevant complaints such as to make it improbable that each complainant would have independently falsified to that same level of detail.[9]
[9] MDM v The Queen [2020] SASCFC 80 at [130] per Peek J. In R v C, CA, at [92] – [93], Kourakis CJ said that the features identified by the trial Judge of the similar age of the complainants, the absence of a father figure, their common acquaintance with another person and the accused’s practice of taking the complainants on outings had no relevance for the purpose of similarity of account reasoning.
I have a discretion to admit the evidence for non-propensity purposes if I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused, and that this use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
In R v Maiolo (No 2)[10] Peek J said:
…the combined effect of ss 34P(2)(a) and 34P(3) is to require, for evidence of discreditable conduct to be admissible, that it must have a degree of probative value which substantially outweighs any prejudicial effect it may have on the defendant and, in assessing the possibility of prejudicial effect (and hence the question of whether the possibility is substantially outweighed) the Judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose (i.e. of impermissible use).
[10] (2013) 117 SASR 1 at [54].
Relevance of forum for trial
The accused has elected for trial by Judge alone. The prosecution contends that the test for admissibility is inextricably linked to the forum in which the trial will be conducted. It was submitted that in a trial by Judge alone there is little scope for arguing that relevant evidence should be excluded by reason of prejudicial content. Reliance was place upon the following passages in the judgment of Gray J in R v Bolte [2010] SASC 112:
The present trial was by Judge alone, and accordingly the risk of impermissible reasoning by a jury did not arise. However, as is evident from the trial Judge’s reasons, when assessing credit, the Judge generally had regard to his views of the credibility and reliability of both complainants and the defendant.[11]
As earlier mentioned, the risk of impermissible reasoning by a jury did not arise in the circumstances of a Judge alone trial, and as a consequence the potential prejudice to the defendant that a conclusion of guilt on the one count would infect reasoning as to proof of guilt on the other, did not arise. It is to be observed, that the Judge specifically warned himself against such reasoning… Although the Judge generally had regard to his views of the credibility and reliability of both complainants and the defendant, this did not constitute impermissible reasoning occasioning prejudice to the defendant.[12]
[11] At [10].
[12] At [15].
The prosecution did not go so far as to contend that s 34P (3) did not apply in a trial by Judge alone but argued that the outcome of assessing the prejudicial effect will be very different in a trial by Judge alone from that in a jury trial. In my view, s 34P, in its terms, applies, no matter the forum of the trial. It prescribes a mandatory consideration, and it has been held that the risk of misuse of discreditable conduct is greatest when it is admitted as propensity evidence.[13]
[13] R v Roberts (2019) 134 SASR 483 at 486-487 per Kourakis CJ.
In R v C, CA, Kourakis CJ said:
The mischief to which s 34P (3) of the Evidence Act is directed is the risk that the tribunal of fact, whether a judge or jury, will be distracted by the impermissible use of evidence if that use cannot be sufficiently differentiated from its permissible use.[14] [Emphasis added]
[14] At [76].
In R v C, CA, Kourakis CJ said that although it is to be assumed that a Judge has a greater capacity to keep the reasoning distinct from a jury of twelve, a Judge does not have the benefit of having his or her reasoning tested by jury room debate. However, his Honour said:
…I would not be inclined to attribute to Parliament an intention to prescribe a test for the admissibility of evidence which would be applied differently depending on the mode of trial. Section 34P of the Evidence Act imposes a test for admissibility which involves an evaluative judgment as a matter of law, and not the exercise of a discretion.[15]
[15] At [82].
I note that in the recent decision of MDM v The Queen [2020] SASCFC 80, the Court considered the application of s 34P (3) in an appeal from a trial by Judge alone. In that case, the prosecutor had not contended that the discreditable conduct evidence was admissible as evidence of propensity under s 34P (2) (b). The trial Judge had, however, used it in this way. Peek J took the view that it was arguable that the prosecutor had made the right decision. In considering whether s 34P (2) (b) would have permitted the trial Judge to look at the evidence of one of the complainants quite separately from that of the other, accept it beyond reasonable doubt, and then find it to establish a relevant propensity which could then be used in assessing the evidence of the other complainant, Peek J said:
First, that the probative value of the evidence asserted to be cross-admissible for an ostensible “permissible use” of establishing propensity pursuant to that legal theory could not substantially outweigh the prejudicial effect it may have on the defendant (and particularly so having regard to the fact that the evidence would be otherwise admissible under s 34P(2)(a) of the Act); and
Secondly, that the probative value of the evidence asserted to be cross-admissible for an ostensible “permissible use” of establishing propensity pursuant to the legal theory could not have strong probative value having regard to the particular issue arising (and particularly so having regard to the fact that the evidence would be otherwise admissible under s 34P(2)(b) of the Act); and
Thirdly, that in determining the above questions, it is not possible “to remove any appreciable risk” of the evidence being used for the impermissible use of suggesting that the defendant is more likely to have committed the offence because he has engaged in discreditable conduct (s 34P(3) of the Act).
The fact that the trial was by Judge alone did not feature as a relevant factor in the resolution of the application of s 34P (2) (b) in the circumstances of that case.
In R v C, CA, Kourakis CJ did not distinguish between Judge and jury in considering whether it was possible to remove any appreciable risk of propensity evidence admissible in respect of two complainants being used, impermissibly, to suggest that the accused was more likely to have committed the offences alleged in respect of a third complainant:
In considering the predisposition manifest in the evidence of MG and MA it is very difficult, for a judge or jury, to put the evidence of SG completely to one side. The evidence has the capacity to prejudice the evaluation of the evidence of MG and MA for propensity purposes because of the strong human tendency to reason retrospectively to the effect that the appellant’s conduct against SG was a manifestation of the tendency suggested by the conduct against MG and MA and that the only reason the appellant did not offend in that way against SG was that the appellant was not given sufficient opportunity to indulge his proclivity with SG. Consciously or subconsciously, the evidence of the offending against SG will then be used to reinforce the inference of a particular propensity arising out of the evidence of MG and MA. Fallacious retrospective reasoning of that kind is common to trained and lay minds alike. The evidence of SG, for that purpose, is not strongly probative and easily conflated with “bad person” reasoning.[16] [Emphasis added]
[16] At [87].
The resolution of the question of whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose does not depend upon the forum of the trial but rather on the particular facts of the case and an evaluative judgment as a matter of law.
I reject the submission by the prosecution that where the trial is to be before a Judge alone that has a significant bearing on the application of the test in s 34P (3). Parliament has not confined the operation of s 34P (3) to the forum of a jury trial and has not formulated a different test for a trial by Judge alone.
Propensity use
All applications for the admission of discreditable conduct evidence must first pass the test in s 34P(2)(a). If the particular discreditable conduct evidence is being tendered ‘for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue’, then s 34P(2)(b) also requires that an additional requirement of admissibility must be satisfied, namely that ‘the evidence has strong probative value having regard to the particular issue or issues arising at trial’. Section 34P(3) also applies to the admission of such evidence because it is engaged by s 34P(2)(a) which must be satisfied as a condition to the admissibility of all discreditable conduct evidence (whether or not involving a propensity or disposition use).[17]
[17] The Queen v C, CN (2013) 117 SASR 64, 69 per White J, Peek J concurring; Blue J also concurring subject to two unrelated matters; BNM v The Queen [2020] SASCFC 10 per Doyle J, Peek J and David AJ agreeing; R v Wickers (2019) 134 SASR 504.
In R v C, CA, Kourakis CJ said:
In my view, s 34P(3) of the Evidence Act is more likely to weigh against the admissibility of discreditable conduct evidence when the permissible form of reasoning is based on a propensity or disposition which is not powerfully established by the evidence of discreditable conduct.[18]
[18] At [79], Anderson and Nicholson JJ agreeing.
Where the propensity evidence relates to sexual misconduct with a person other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together: McPhillamy v The Queen [2018] HCA 52. Proof that an accused person has sexually assaulted one child is not strongly probative of the fact that he has sexually assaulted a different child at a particular time and date. A tendency to have a sexual interest in young female children and a tendency to act on that sexual interest, without more, cannot have strong probative value. As the plurality in McPhillamy said, the prosecution must identify some feature of the alleged instances of sexual misconduct that links them together. In MDM v The Queen, Kourakis CJ observed:
However, to be admissible as evidence of propensity the discreditable conduct must be more than relevant. It must overcome the threshold required of both subparagraph (a) and (b) of s 34P (2) of the Evidence Act. It must be both strongly probative and substantially outweigh the prejudicial effect of the evidence. I so held in R v MJJ; R v CJN, R v Bonython-Wright and R v C,CA. Kelly J expressed the same view in R v Wickers.
In applying those threshold conditions for admissibility, it cannot be assumed that a person’s sexual instincts, as ingrained as they commonly are, will never change, or that he or she will act on them whenever it is possible to do so. For the evidence to be strongly probative it is necessary to identify common features which are capable of linking the offences and demonstrating a tendency to offend in the way, and in the circumstances of the kind, alleged.
…
The similarities must be such as to sufficiently distinguish a particular proclivity of the kind I have just adumbrated from a more general sexual interest in children in order for the probative value of the evidence to substantially outweigh its prejudicial effect.[19][Emphasis added]
[19] At [9] – [11], footnotes omitted.
The feature identified by the prosecution in this case is the accused’s tendency to act on his sexual attraction related to young girls within the age range of 9-13 who were under his supervision.
The evidence – an overview
The complainants, BJL and TL, are sisters who came to be in the care of the accused and his wife on various occasions. The complainants’ parents died in 2016, orphaning their 5 children. The eldest child, DL, born in 1996, became the guardian of his younger siblings, three daughters, CL, the complainants BJL and TL and another son, JL. From 2013, DL was in a relationship with CH. CH is the accused’s niece by marriage; her aunt is the accused’s wife JK.
CL and JL moved in with their Aunt and BJL; TL lived with DL.
In 2016, BJL and TL first met the accused and his wife when the accused was visiting CH’s grandfather in hospital.[20] In 2016, DL was living at Valley View and CH was splitting her time there and at her parents’ home.
[20] CH’s grandfather, JD, was admitted to Modbury Hospital on 7 March 2016 and died on 12 March 2016: Affidavit of Dr Holden, 30 October 2019.
According to CH, after seeing BJL and TL a number of times at the hospital, the accused and his wife offered to look after the sisters if CH and DL ever wanted any respite. Thereafter, the accused and his wife would often come and take the complainants out to the movies or shops and then return to their home for dinner or would come and stay at their home while CH and DL went out for a short while.
BJL and TL also saw the accused and his wife on 17 June 2017, at the 18th birthday party of SO-B, a cousin of CH. After the party, the accused began communicating with BJL via Facebook Messenger.
On 27 July 2017, DL and all of his siblings (including CL and JL) moved into rental premises at Mawson Lakes. CH continued to split her time between DL’s new home and her parents’ home. The accused and his wife, JK, were living at Mawson Lakes at this time. CH said that it was during this time that she and DL had gone out for birthday drinks and had dropped the complainants off at the accused’s house. On this occasion, the complainants, the accused and his wife watched a Star Wars movie. It was on this occasion that BJL alleges that the offending the subject of count 1 took place.
TL alleges that on an occasion when she was at the accused’s house in Mawson Lakes, she was left alone with the accused when JK went to the shops with BJL. It was on this occasion that the conduct the subject of count 2 is alleged to have occurred. On another occasion, the accused came over to the house she was living in with her siblings, at a time when she was alone in the house. He called her into the bathroom, and it was at that time that the conduct the subject of count 3 is alleged to have occurred.
The accused and his wife moved to Queensland after this, and the complainants visited them in January, April and October 2018. BJL alleges that the accused ran his hand up and down her thighs on a few occasions when she was staying with him in Queensland, but she hit his hand away and he stopped.
In December 2018, the accused and his wife returned to South Australia to live, which coincided with DL and his siblings being evicted from their Mawson Lakes rental home. Arrangements had been made for the complainants to live with the accused and his wife. While the accused, JK, the accused’s parents, CL and the complainants’ aunts JL and CL were present assisting with the move, BJL yelled at the accused and walked off by herself into a park. CL walked to the park to talk to BJL at which point she saw BJL on her mobile telephone and heard her saying ‘so you can finger me again’. CL told BJL to put the telephone on speaker, which she did, and she heard the accused asking BJL to come back to the house. BJL yelled at him about fingering her and buying her things so she would not say anything and then hung up on her. BJL then told CL that the accused had ‘fingered’ her.
The accused did not see either complainant after this day. He tried to contact BJL, but she blocked him on several social media platforms and when he contacted her in a group chat, she told him she did not want to talk to him.
The alleged offending against BJL
In her affidavit dated 23 June 2019, BJL says that she was living in Mawson Lakes with TL, JL and DL when she first met the accused. DL’s girlfriend at the time was CH. She was at a relative’s 18th birthday party and met the accused and his wife JK and described them as friendly. Not long after the party, the accused called her on Facebook messenger ‘out of the blue’. After that she said they got to know each other over the phone and then he started to babysit her and TL. She described him as ‘friendly enough’ and ‘maybe a little too friendly as though everything that I had an interest in he pretended that he liked it as well’.
BJL said that the accused and JK were living in Mawson Lakes and she remembered the very first time they stayed at his house because that is when he touched her. After she and TL arrived at his home, the accused had taken her and TL to Woolworths and spent about $80 on candy and chocolates for them. BJL said that JK had gone to bed and TL was on the couch sleeping and she was on the blow-up mattress on the floor of the lounge next to the couch. It was July 2018 and winter, and she was wearing long sleeve pyjamas with long pants. She was watching Star Wars and trying to fall asleep. She was lying on her back when the accused started massaging her. He was rubbing his hand up and down the side of her back from her hips to up near her underarm. Initially he was rubbing on top of her pyjamas but then he put his hand underneath and rubbed his hand on her skin. He was rubbing his hand on the front of her neck area and moving his hand out towards her shoulder, sliding his hand on her skin. She felt really uncomfortable and was too frozen to move. She did not know what to do and was also a bit scared.
BJL said that she was wearing underwear and that the accused ‘moved his hand down the front of my pants and was touching my pussy. I could feel his hand and his fingers moving around on top of my pussy but then he moved his hand between my legs and put his finger in me…I felt his finger…in my pussy.’ He told her it was a massage. She said, ‘It hurt me, like a pinching feeling and he was moving it inside. I pushed him away’. The accused then said, ‘Ok I’ll go to bed now’.
BJL said this was the only occasion that the accused had babysat her and her sister before moving to Queensland. After the accused and JK moved to Queensland, BJL and TL stayed with them in Queensland in January, April and October 2018 for a week each time. The accused never touched BJL in the same way again but ‘he did rub his hand up and down my thighs on my skin a few times when I was there, but I hit his hand away and he stopped’.
BJL said that the accused came to Adelaide in December 2018 and announced that he was moving back to Adelaide so he could help DL with the babysitting. When the accused learnt that BJL and her siblings were being evicted from their rental home at Mawson Lakes the accused said he wanted them to live with him.
In late December 2018, the accused was present when BJL and other family members were collecting their belongings from the Mawson Lakes home. BJL said she became emotional and walked off to the park. The accused was yelling at her on the telephone, and she then had a flash back. CL had come to the park to see if she was all right and BJL told her what the accused had done to her. This was the last time she saw the accused, although he tried to contact her via various social media platforms, but she blocked him. He contacted her in a Snapchat group chat, and she told him she did not want to talk to him.
The alleged offending against TL
TL said she met the accused and his wife at a party. Around a month after meeting him, TL was at the accused’s home in Mawson Lakes. JK had left to go to the shops with DL so TL was alone with the accused. They were in the lounge room and he asked her if she wanted to get dressed so they went into his bedroom. The accused tried to help TL take her shorts off and saw her vagina. Her shorts were hanging down as were her knickers. She said the accused pulled her shorts down and thought he pulled her knickers down too, but she did not ‘remember that much’. When he did this, he said that it was okay. TL said she quickly put her pants on but then said she covered herself with a blanket. At about this time JK and DL returned, and TL got dressed. The accused said to her that ‘it didn’t really matter, no one’s going to really care what happened’.
TL said that a little while after they moved in the house at Mawson Lakes, near the accused, there was an occasion when the accused was at her house. TL was in her room. He went into the toilet and called her in there. At first, she was around the corner and then he said, ‘I’ll hide it’ and then TL went into the bathroom. The accused said, “I want to show you something’. She said, ‘maybe show me after’ and he said, ‘no stay here’. The accused then ‘showed me his jocks and then he said that he showed that his thing could come out’. She explained that he was talking about his ‘doodle’. When he did this, he said ‘oh isn’t that cool’. His penis came out of a ‘little cut’ in his underpants. She thought it was disgusting so she just left the room. Before she did so he said he was sorry and pulled his pants up and then came out of the bathroom. Neither he nor she ever spoke about the incident. TL went back into her room and then the accused came in and ‘then we just kept talking and playing in the room that’s where most of the toys and stuff was’.
TL said she kept in contact with the accused including a trip to the Zoo and three visits to Queensland when he moved there. He used to buy a lot of things for her and BJL.
Analysis
Similarity of account
The prosecution case is that the accused engaged in similar ongoing sexual misconduct against two females in his care who were both children at the time of the offending. It was argued that the similarities are apparent in ‘the facts which constitute the offending, the circumstances in which the offences arise and the relationships out of which the offences arise’.[21] The prosecution specifically referred to the following matters:
[21] Prosecution Outline of Argument dated 23 September 2020, para [38].
·The time frame during which the offending is alleged to have occurred;
·The gender of each child, namely female;
·The age range of the children, noting that at the material time they were aged between 9 and 13 years;
·The fact that both complainants were under the supervision and care of the accused by virtue of his wife’s familial connection with the complainants;
·The circumstances in which the complainants came to be in the accused’s care, which form the basis for the accused’s ability to create opportunity to access each complainant;
·The cautious approach of the accused in grooming each child, namely stopping the conduct when alerted or when faced by resistance by the child;
·The comments made by the accused on each occasion to normalise the conduct so as to minimise the risk of complaint;
·The occasions of the accused spoiling the complainants with gifts or other purchases.
The first five matters are of no relevance to the issue of similarity of account.[22] The focus must be on the degree of similarity between the complainants’ allegations of abuse and whether the similarities (or dissimilarities) bear upon the improbability of fabrication, coincidence or collusion. In this regard, the prosecution argues that there are features of the accused’s behaviour described by the complainants on each charged occasion which contain strong parallels.
[22] Des v The Queen [2020] SASCFC 32; MDM v The Queen [2020] SASCFC 80; R v C, CCA [2013] SASCFC 137.
In my view it is difficult to identify any real similarity between the narrative of both complainants when their accounts are compared: -
1.The accused had contact with BJL via Facebook Messenger after first meeting her at her cousin’s 18th birthday party. BJL alleges that in 2017, on the first occasion she and TL slept at the accused’s home, the accused in the presence of a sleeping TL and with his wife in a nearby bedroom, lay down next to her and started to massage the side of her back from her hips up to near her underarm. This was on top of her pyjamas at first and then underneath. He touched her neck area towards her shoulder. This was the prelude to count 1, and shortly after doing this the accused put his hand down the front of her pyjama pants and underwear and touched her vagina. He then inserted his finger or fingers in her vagina and told her it was a massage. She pushed him away and said she was tired. He desisted and said he would go to bed too.
2.On a few separate and later occasions in 2018 whilst at the accused’s home in Queensland, BJL alleges the accused ran his hand up and down her thighs. No further detail is provided of where in the house this occurred, who was present or what was said.
3.CH asserts that the accused would show BJL much more attention that TL. She also refers to an occasion when BJL asked for a wolf Halloween costume that was not appropriate for a child as it was ‘lingerie’, but the accused bought it for her. He also took her bra shopping and if she were angry with him, he ‘would be really apologetic and be grovelling to her’.
4.In contrast, TL alleges that she was at the accused’s home and after BJL and the accused’s wife left to go to the shops they were alone together in the lounge room. The accused asked if he could help her get dressed and they then went into the accused bedroom. The accused then pulled down her pants during which time he saw her vagina before she quickly pulled them back up. His hands were up moving towards her and she thought he was trying to touch her vagina. She jumped back and covered herself with a blanket. BJL and the accused’s wife returned at this time, so TL quickly got dressed. The accused said to her it was ok, that it didn’t really matter, and no one was really going to care about what happened.
5.TL also alleges that on one other occasion, at her own home, the accused visited. They were alone together in the house. The accused called TL into the bathroom and then showed TL his underwear and that his ‘doodle’ could come out of the cut in his underwear. He said, ‘isn’t that cool’. She thought it was disgusting and left the room and the accused said ‘sorry’ but in a way that she did not think was genuine. They both went to her bedroom together where there were many toys and kept talking and playing.
6.TL saw the accused on many subsequent occasions following the occasion of count 3, including three visits to Queensland with BJL. There is no allegation of any other sexual misconduct on any of those subsequent occasions.
I am unable to agree with the prosecution that the narrative of each complainant demonstrates a similar ‘cautious approach in grooming each child’. Count 1 is striking for the fact that it literally comes out of the blue and there is no evidence of ‘grooming’ in the lead up to count 1. I reject the prosecution submission that it can be inferred from the fact that the accused was in contact with BJL via Facebook Messenger prior to the occasion of count 1 that he was emboldened to touch her sexually without fear of rejection or complaint. The massaging of BJL prior to the digital penetration was plainly designed to make her comfortable and provide the opportunity to touch her vagina but there is nothing in the evidence to suggest that the accused had interacted with the complainant in a way that might give him any comfort that she would acquiesce in sexual contact.
I accept that in respect of each narrative, a similar feature is that accused desists when there is express or implied rejection of his conduct. However, given the isolated nature of the alleged offending (charged and uncharged) this cannot assume such significance as to bear upon the improbability of fabrication, coincidence or collusion.
I cannot agree with the prosecution that each narrative includes the accused making comments, in an attempt to normalise his conduct. When the accused inserts his fingers into BJL’s vagina he tells her that it is a massage. When BJL pushes the accused’s hand away and tells him she is tired, he simply says “Ok I’ll go to bed now”. There is nothing about these comments that, in my view, amounts to an attempt to normalise the conduct in a way that would minimise the risk of complaint. In contrast, on the occasion of count 2 the accused told TL that it ‘didn’t really matter’ and that no one was going to really care what happened. This is the only example of the accused making comments in an attempt to normalise his conduct in a way that would minimise the risk of complaint. After the conduct the subject of count 3, the accused simply said ‘sorry’. On any view, this was an apology for some wrongdoing and cannot be construed as an attempt to normalise his conduct in a way that would minimise the risk of complaint.
It is evident that there are significant dissimilarities in each complainant’s narrative, both as to the nature of the sexual offending alleged and the circumstances in which it occurred. The accounts of the complainants do not have such a degree of similarity that the hypothesis that they independently fabricated, imagined or otherwise were mistaken about the offences, for reasons peculiar to each of them, is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect. Indeed, it simply cannot be said that the accounts of each complainant are ‘very similar’ and the dissimilarities, which in my view, are substantial, lead me to conclude that the evidence has a limited probative force which does not substantially outweigh the prejudicial effect on the accused.
The evidence is not cross-admissible as similarity of account evidence.
Nieterink use
The prosecution contends that the evidence of each complainant is necessary to provide a complete picture of the alleged offending, allowing the trier of fact to have a complete and proper understanding of how the offending unfolded and continued. It is argued that because the complainants were in the care of the accused at the same time and were both recipients of gifts, including during their trips to Queensland, ‘this evidence is necessary to explain and provide context in which the charged acts occurred’.[23] It is also said that it would be artificial to isolate one complainant from the other and would deprive the trier of fact of the complete picture, given that the ‘creation of the opportunities to access the complainants is the same’.[24] Finally, it is said that the conduct the subject of count 3 should be heard together with counts 1 and 2 in order to ‘fully understand the sexual connotation of the conduct the subject of the charge’ thereby rebutting any innocent explanation or suggestion of mistake by the complainant.
[23] Prosecution Outline of Argument, 23 September 2020, para [62] (iv).
[24] Prosecution Outline of Argument, 23 September 2020, para [62] (v).
I do not agree. The evidence of the circumstances in which the complainants came to be in the care of the accused can be led intelligibly without resort to the respective narrative of the alleged sexual misconduct by each complainant. The same can be said of the giving of gifts. The evidence on this topic mostly comes from TL and is relatively vague or otherwise refers to gifts bought in Queensland. CH refers to the buying of lingerie for BJL and an inappropriate Halloween costume, but this is not mentioned other than elliptically by BJL when she confronts the accused in the telephone call in December 2018. Further, in terms of context, all of the charged acts occurred prior to the accused moving to Queensland. TL makes no allegation of any inappropriate conduct by the accused during the times she stayed with him in Queensland.
I agree that to fully understand the sexual connotation of the conduct the subject of count 3, it will be necessary for the trier of fact to hear the evidence on count 2. This is because the fact that there are two occasions upon which the accused has engaged in this type of conduct bears upon the likelihood of it having an innocent explanation. However, the fact that the accused massaged BJL and put his fingers in her vagina does not, other than by dint of impermissible propensity reasoning, bear on the likelihood of his conduct with TL having an innocent explanation.
The evidence is not cross-admissible for a Nieterink use.
Propensity
The prosecution contends that the evidence of each complainant ‘displays a common feature of the applicant being a man of mature years that [sic] had a particular sexual interest in the complainants, being young girls, and a tendency to act in furtherance of that sexual interest by engaging in the conduct described by the complainants’.[25]
[25] Prosecution Outline of Argument, 23 September 2020, para [86].
For the evidence to be strongly probative, the common features must be capable of linking the offences and demonstrating a tendency to offend in the way, and in the circumstances of the kind, alleged. In MDM v The Queen, Kourakis CJ referred to the allegations and said:
They are broadly similar. They were committed within a span of a decade, from the first offence against KMA to the last against RAM, with an interruption of four years between the two series. In the intervening period the appellant was not in a familial relationship. It is a significant feature of the offending that it was committed at night when KMA and RAM appeared to be asleep and no‑one else in the house was awake. The mode of offending, and its timing, suggests that the appellant acted on his sexual interest in young girls when he had easy access to their bedrooms, and at a time, and in a way, which minimised the risk of complaint from his victims and the risk of discovery by others. The offences were also committed in a period during which the appellant’s capacity for self‑control was likely to be impaired by his heavy alcohol use. Those combined circumstances provide a strongly arguable case for the cross-admissibility of the evidence for propensity purposes.[26] Of course, the consideration mandated by s 34P(3) of the Evidence Act, as Peek J observes, is important in this respect. The similarities must be such as to sufficiently distinguish a particular proclivity of the kind I have just adumbrated from a more general sexual interest in children in order for the probative value of the evidence to substantially outweigh its prejudicial effect.[27][Emphasis added]
[26] Hughes v The Queen (2017) 263 CLR 338 at [58].
[27] At [11].
Proof that a person has sexually assaulted one child is not strongly probative of the fact that he has sexually assaulted a different child at a particular time and date. As was said by the plurality in McPhillamy, the prosecution must identify some feature of the alleged instances of sexual misconduct that links them together.
The common features of the offending, limited as they are, do not distinguish a particular proclivity from a more general sexual interest in children and are not capable of linking the offences and demonstrating a tendency to offend in the way, and in the circumstances of the kind, alleged. Count 3, in particular, is markedly different from counts 1 and 2. The prosecution contended that the circumstances did not lend themselves to contact offending of the type in counts 1 and 2. However, that submission does not sit well with TL’s evidence that immediately after the accused showed TL his penis, they went together into her bedroom, where most of her toys were, and kept talking and playing. Nor does it sit well with the fact that there were many subsequent occasions that TL and the accused were together and on none of those occasions did the asserted proclivity manifest itself.
The sexual conduct alleged by TL (the pulling down of her pants and the ‘looking at’ her vagina and the exposure of the accused’s penis) is distinctly different and less serious than the earlier conduct alleged by BJL (the massaging of BJL followed by the insertion of finger of fingers into her vagina). This evidence of different and more limited conduct is not capable of establishing a proclivity that would have strong probative force as circumstantial evidence of the more serious charged offence against BJL.
The probative value of the evidence does not substantially outweigh its prejudicial effect. In this case, the evidence demonstrates no more than a general sexual interest in children. The propensity is expressed in general terms. The evidence does not have the requisite strong probative value.
Even if I had formed the view that the evidence of each complainant had a permissible use, I would refuse to admit the evidence of TL in the trial of the charge against BJL because there is a very real risk that the trial Judge would engage in impermissible bad person reasoning from the evidence of TL.
The evidence of each complainant is not cross-admissible for a propensity purpose.
The second item of discreditable conduct is the evidence of the accused buying BJL a lingerie style costume and taking her bra shopping. I note in passing that the evidence that this occurred comes from CH and not BJL. I rule that this evidence is admissible as circumstantial evidence which demonstrates a specific sexual attraction to BJL.
There is no allegation that the accused purchased underwear or intimate items for TL. I have already ruled that the evidence of each complainant is not cross-admissible under s 34P (2) (a) or (b). In my view, this evidence alone, or in combination with the other evidence referred to above, is not capable of establishing the tendency alleged and I rule that it is not admissible for a propensity purpose in respect of counts 2 and 3.
Orders
As I have found that the evidence of each complainant, and the evidence that the accused bought intimate items for BJL, is not cross-admissible and does not have a permissible use under s 34P (2) (a) or (b) in respect of the other complainant, the discretion to sever the counts in respect of each complainant arises. I have had regard to the principles referred to in Sutton and De Jesus[28] and the mischief to which s 34P is directed. Notwithstanding that the trial is by Judge alone, I rule that count 1 must be severed from counts 2 and 3 to avoid impermissible prejudice to the accused.
[28] Sutton v The Queen (1984) 152 CLR 528; De Jesus v The Queen (1986) 68 ALR 1.
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