R v KH (No 2)
[2015] ACTSC 348
•24 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KH (No 2) |
Citation: | [2015] ACTSC 348 |
Hearing Date(s): | 23 October 2015 |
DecisionDate: | 24 November 2015 |
Before: | Burns J |
Decision: | See [27] – [29] |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against children – sexual offences – sexual intercourse with a person under the age of 16 years – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – tendency to have a sexual interest in specific children – tendency to act on a sexual interest in specific children – relationship evidence – context evidence. |
Legislation Cited: | Evidence Act 2011 (ACT) ss 97, 101 |
Cases Cited: | R v Lam [2014] ACTSC 49 R v KH [2015] ACTSC 339 |
Parties: | The Queen (Crown) KH (Defendant) |
Representation: | Counsel Ms S McMurray (Crown) Mr R Thomas (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Gil-Jones Barker (Defendant) | |
File Number(s): | SCC 7B of 2014 |
BURNS J:
The accused is awaiting trial with respect to a number of charges:
(a)six counts of committing an act of indecency on LC, being a person of above the age of 10 years but under the age of 16 years;
(b)one count of engaging in sexual intercourse with LC, being a person of or above the age of 10 years but under the age of 16 years;
(c)five counts of committing an act of indecency on MC, being a person under the age of 10 years; and
(d)one count of committing an act of indecency upon KC, being a person under the age of 10 years.
The accused has also been charged with a number of summary offences which, as I understand it, have not been dealt with pending the outcome of the accused’s trial.
The trial of the accused on these charges is due to commence on 7 December 2015. The Crown now seeks leave to lead tendency evidence and/or relationship or context evidence in the course of the trial. To the extent that the Crown seeks to lead evidence as relationship or context evidence, it submits that the evidence will assist the jury in understanding why the complainants’ may not have complained at the earliest opportunity. The evidence would also allow the jury to assess the probability of the accused acting as alleged in each of the charges in the context of the relationship.
The Notice of Intention to Adduce Tendency Evidence
On or about 3 September 2014, the Crown served on the accused a Notice of Intention to Adduce Tendency Evidence (the notice), giving the accused notice of its intention to adduce tendency evidence at his trial to establish that, at the relevant times, he had the following tendencies:
(a)a tendency to have a particular state of mind, namely:
(i)to have a sexual interest in LC, MC and KC; and
(b)a tendency to act in particular ways, namely:
(i)to rub KC’s face in urine;
(ii)to act on his sexual interest in LC, MC and KC; and
(iii)to engage in sexual acts with LC, MC and KC.
It will be noted that the tendencies alleged by the Crown related to each of the three named complainants. There is no general allegation that the accused had, for example, a sexual interest in children in general. In that regard, the allegation against the accused is that he had what has traditionally been referred to as a “guilty passion” with respect to each of the three named complainants. The notice sets out details of 15 incidents about which the Crown proposes leading evidence at trial to prove that the accused had one or more of the alleged tendencies. Some of these incidents relate to counts on the indictment, some relate to the summary charges and some relate to uncharged events. The Crown also proposes leading evidence of these incidents as context or relationship evidence. The notice describes the incidents as follows:
Incident 1 (CC13/7354)
(a)Substance of the evidence:
Between 1992 and 1993 the accused and [QQ] were arguing. He kicked her out of bed and continually banged her head into the architrave. [KC] entered the room while this was occurring and he urinated himself. The accused put his hand in the urine and then rubbed it over [KC’s] face and head.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 May 1992 and 25 October 1993 in Palmerston, Canberra.
...
Incident 2 (uncharged)
(a)Substance of the evidence:
From 1991 until 1993, when [KC] urinated himself, the accused would put his hand in it and then rub it on [KC’s] head and face.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 June 1991 and 25 October 1993 in [Toorloo] Arm, Victoria and Palmerston, Canberra.
...
Incident 3 (CC13/7353)
(a) Substance of the evidence:
In October 1992 or 1993, [KC] attended a blue light disco at [a primary school]. The accused picked up [KC, LC and MC] from the school at about 10:00pm. On the way home the accused became angry with [KC]. He pulled the car over and handed [KC] a pocket knife and told him to get out of the car and cut a branch off the tree. [KC] did this. During the rest of the car trip home the accused told [KC] he was going to flog him. When they arrived home, the accused took [KC] into his bedroom, made him take his pants down and get on all fours and then whipped him with a tree branch.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
During 1 May 1992 to 25 October 1993 in Palmerston, Canberra.
...
Incident 4 (uncharged)
(a)Substance of the evidence:
During 1992 or 1993, [KC] went to a community swimming pool. On the way home the accused asked him if he had seen all the different size and shaped penises in the change room.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 May 1992 and 25 October 1993 in Canberra
...
Incident 5 (Count 3)
(a)Substance of the evidence:
During 1992 and 1993, [KC] got out of the shower and the accused called him into the lounge room where he was sitting. [KC] was still naked. The accused laid [KC] across his lap. He put some cream on his hand and began rubbing [KC’s] penis until it became erect.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 May1992 (sic) and 25 October 1993 in Palmerston, Canberra.
...
Incident 6 (uncharged)
(a)Substance of the evidence:
Between 1991 and 1993, the accused took a photograph of [KC] standing bent over with his pants around his ankles.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 June 1991 and 25 October 1993 in [Toorloo] Arm, Victoria.
...
Incident 7 (uncharged)
(a)Substance of the evidence:
On a date between 1 June 1991 and 25 October 1993, [QQ] saw the accused taking photographs of her daughter’s (sic) vaginas while they slept.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1May (sic) 1992 and 25 October 1993 in [Toorloo] Arm, Victoria or Palmerston, Canberra.
...
Incident 8 (uncharged)
(a)Substance of the evidence:
During 1991, [LC] was in the master bedroom with the accused. He called her over to the bed and pulled the covers back. The accused was naked and his penis was erect. The accused told [LC] to “play with it like a joystick”, referring to his penis. The accused put his hand over [LC’s] and guided it up and down his penis.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 June 1991 and 31 October 1991 in [Toorloo] Arm, Victoria
...
Incident 9 (uncharged)
(a)Substance of the evidence:
Between 1991 and 1993, the accused would make [LC and MC] shower with the door open so that he could see them in the shower.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 May 1992 and 25 October 1993 in Palmerston, Canberra.
...
Incident 10 (uncharged)
(a)Substance of the evidence:
During 1991 until 1993 the accused took [QQ, LC, MC and KC] camping for the weekend near where ‘The Man from Snowy River’ was filmed. During the weekend the accused made the children bathe in the river naked. The accused took photographs of [LC] bathing naked. [QQ] told the accused this made the children feel uncomfortable, however this began an argument.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 June 1991 and 25 October 1993, in Victoria.
...
Incident 11 (Counts 1 and 2)
(a)Substance of the evidence:
During 1992 or [1993] the accused called [LC] into the master bedroom. The accused was lying across the bed naked. The blankets were to the side exposing his erect penis. The accused took [LCs] hand and put it on his penis and rubbed her hand up and down his penis. The accused told her that it was practice for when she was older. This occurred until there was stuff on [LCs] hand that was ’wet‘ and ’gooey‘. The accused also made [LC] kiss him on the mouth, and the accused would put his tongue into her mouth.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1May (sic) 1992 and 25 October 1993 in Palmerston, Canberra.
...
Incident 12 (Counts 4, 5 and 6)
(a)Substance of the evidence:
During 1992 or 1993, the accused called [LC] into the master bedroom. The accused was lying across the bed with his erect penis exposed. The accused told [LC] to kiss his penis. Shortly after, the accused told [LC] to put her mouth right over his penis, which she did. The accused put his hand on her head pushing it up and down. After this [LC] masturbated his penis and kissed him until he ejaculated.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 May 1992 and 25 October 1993 in Palmerston, Canberra.
...
Incident 13 (Count 7)
(a)Substance of the evidence:
During 1992 until 1993, [LC] walked up to the master bedroom to speak to [QQ]. When she got into the room she saw [MC] leaning over the accused kissing him. The accused was telling [MC] that it was something she needed to learn for when she was older.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 May 1992 and 25 October 1993 in Palmerston, Canberra.
...
Incident 14 (Counts 8, 9, 10 and 11)
(a)Substance of the evidence:
During 1992 or 1993, the accused called both [LC and MC] into the master bedroom. The accused was lying on top of the covers. He told [LC and MC] to get into different sides of the bed. The accused took [MC’s] hand and put it on to his penis. He moved her hand around his penis. While she did this the accused told [LC] to kiss him, which she did. At some stage the accused told them to swap over and [LC] had to masturbate the accused while [MC] kissed him. The accused told them it was something they had to learn for when they got older and they couldn’t expect to get a boyfriend if they didn’t know what to do.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1 May 1992 and 25 October 1993 in Palmerston, Canberra.
...
Incident 15 (Count 12 and 13)
(a)Substance of the evidence:
During 1992 or [1993] the accused called [MC] into the master bedroom. The accused made her masturbate his penis and kiss him. The accused ejaculated into her hand. [MC] walked out into the kitchen and said to [QQ] “Yuk, [the accused] made me all sticky”.
(b)(i)Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1May (sic) 1992 and 25 October 1993 in Palmerston, Canberra.
Consideration
The following provisions of the Evidence Act 2011 (ACT) are relevant:
97The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless –
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2)Subsection (1) (a) does not apply if –
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict tendency evidence presented by another party.
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1)This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
I take the applicable principles relevant to this application to be those set out by Refshauge J in R v Lam [2014] ACTSC 49 at [40]:
I summarise the effect of the relevant provisions of the Evidence Act and the consideration of them by the authorities as follows:
· Evidence that the accused had a tendency to act in a particular way, or have a particular state of mind, can be admissible to prove that he had that tendency, but only if the Court thinks that that evidence will have “significant probative value”: s 97(1)(b).
· An application to the court to permit such evidence to be led should carefully articulate the tendency that the evidence is said to prove.
· In approaching an application for permission to adduce tendency evidence the court must assess the extent to which the evidence has the capacity rationally to affect the probability of the fact in issue and then to assess and predict the probative value that the jury might ascribe to the evidence.
· Accordingly, it is important to identify the use to which the proposed evidence is to be put and the issues which it addresses.
· In assessing the probative value of the evidence, it must be assumed that the evidence will be accepted, and that any inference open to the jury and favourable to the Crown will be drawn.
· It must also be assessed having regard to all the evidence in the case.
· Tendency evidence has “significant probative value” if it has more than “mere relevance”, or if it is “important” or “of consequence”, though it need not have a “substantial” degree of relevance.
· As a general rule, the greater the degree of specificity with which the similarities of the evidence can be identified, the more likely is the evidence to be probative of a tendency to act in a distinctive way or to do act of a distinctive kind.
· Nevertheless, admissible tendency evidence is not necessarily based on similarities and there is no requirement for the relevant conduct to be distinctive.
· Tendency evidence and coincidence evidence may not be used “unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”: s 101(2).
· “The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to ‘some irrational, emotional or illogical response’ or ‘giving the evidence more weight than it truly deserves’”.
· There may be discretionary reasons for excluding or limiting the evidence such as where it is overwhelming or otherwise under ss 135, 136 or 137 of the Evidence Act.
In the present case, the accused has not made any formal admissions, nor is there any indication that he proposes to make any such admission. Therefore, it must be assumed that everything is in issue. The most significant issue is likely to be whether the events which form the basis of the charges occurred at all. To the extent that the Crown alleges that the accused had a sexual interest in the complainants, it is obvious that evidence which could establish such a sexual interest would be relevant to proving that the accused committed the offences with which he is charged. Evidence of “guilty passion” on the part of an accused towards a particular child has always been admissible, absent other factors, to establish that the accused committed a sexual offence with respect to that child. To be admissible as tendency evidence, however, the proposed evidence must be more than relevant; it must have significant probative value. Even where the evidence is shown to have significant probative value, the evidence may not be admitted unless the probative value substantially outweighs any prejudicial effect it may have on the accused. Finally, before the evidence may be admitted, it may be necessary to consider the discretionary exclusion provisions under the Evidence Act.
The accused opposed the application by the Crown to lead evidence of these incidents as either tendency evidence or as context or relationship evidence. The submissions made by the accused were identical with those which I considered in R v KH [2015] ACTSC 339. For the reasons that I gave there, I do not accept the proposition put forward by the accused that allowing the Crown to call evidence of events that occurred in Victoria, which may have been the subject of charges which were before the County Court in April this year, would be an abuse of process. Nor do I accept the submission that the evidence of alleged events in Victoria should be excluded on discretionary grounds, for the same reasons that I gave in that decision.
None of the counts on the indictment, as I understand it from the contents of the notice, allege an offence involving the accused rubbing KC’s face in urine. That allegation only appears to arise with respect to summary offences which have been transferred to this Court. It is not appropriate that this alleged tendency be led to the jury, or that evidence in support of any such tendency be placed before the jury. In my opinion, the relevant tendencies alleged by the Crown are:
(a)a tendency to have a sexual interest in LC and MC; and
(b)a tendency to act on his sexual interest in LC and MC.
I will deal with each of the Incidents as set out in the notice:
Incident 1
I am not satisfied that this evidence is admissible as tendency evidence or as relationship or context evidence. I am not satisfied that it has significant probative value, or that such probative value as it possesses substantially outweighs the potential prejudicial effect of the evidence.
Incident 2
I am not satisfied that this evidence is admissible as tendency evidence or as relationship or context evidence. I am not satisfied that it has significant probative value, or that such probative value as it possesses substantially outweighs the potential prejudicial effect of the evidence.
Incident 3
I am not satisfied that this evidence is admissible as tendency evidence or as relationship or context evidence. I am not satisfied that it has a significant probative value, or that such probative value as it possesses substantially outweighs the potential prejudicial effect of the evidence.
Incident 4
I am not satisfied that this evidence is admissible as tendency evidence or as relationship or context evidence. I am not satisfied that it has a significant probative value, or that such probative value as it possesses substantially outweighs the potential prejudicial effect of the evidence.
Incident 5
This is an incident which forms the basis of a charge on the indictment (Count 3). It is the only Incident which I propose admitting concerning the complainant KC. As it is the only count on the indictment concerning KC, it cannot logically be used as tendency evidence concerning KC. The evidence also has no probative value in establishing that the accused was sexually attracted to LC or MC. For these reasons, the evidence will not be admitted as tendency evidence, nor am I satisfied that it has any probative value as relationship evidence.
Incident 6
I am not satisfied that this evidence is admissible as tendency evidence, as I am not satisfied that it has significant probative value, or that such probative value as it possesses substantially outweighs the potential prejudicial effect of the evidence. I am also satisfied that the evidence has little probative value as context or relationship evidence, and such value as it possesses is outweighed by the potential prejudicial effect of the evidence.
Incident 7
This as evidence which, if accepted by the jury, has a significant probative value in establishing that the accused had a sexual interest in LC and MC. I am satisfied that the probative value of this evidence substantially outweighs any potential prejudicial effect of the evidence. In that regard, I note that the jury will be instructed as to the way in which this evidence may, and may not, be used. This evidence will be admitted for the purposes of establishing that the accused had a sexual interest in LC and MC. In my opinion, it should not be admitted as context or relationship evidence. The complainants were asleep at the time of this alleged incident, so that it could not be relevant on a context or relationship basis.
Incident 8
This incident involves an allegation of unequivocal sexual conduct involving LC. It would clearly be relevant to establishing that the accused had a sexual interest in LC, and that he was prepared to act upon that interest. I am satisfied that it has significant probative value for that purpose, and that its probative value substantially outweighs the potential prejudicial effect of the evidence. It will be admissible as tendency evidence for that this purpose. The evidence is also admissible as context or relationship evidence, as, if accepted by the jury, it could assist them in understanding why the complainant may not have made an early complaint with respect to those events that form the basis of the charges in which she is a complainant.
Incident 9
The allegation with respect to this Incident is quite ambiguous, and would only have significant probative value if one started from the proposition that the accused’s actions were done for a sexual purpose. I am not satisfied that this material is admissible as either tendency or relationship evidence.
Incident 10
For the same reasons that I gave with respect to Incident 9, I am not satisfied that this material is admissible as either tendency or relationship evidence.
Incident 11
This incident involves an allegation of unequivocal sexual conduct involving LC. It is the basis of Counts 1 and 2 on the indictment. If the jury were to be satisfied beyond reasonable doubt that the accused had committed these offences, it would be open to the jury to conclude that the accused had a sexual interest in LC. I am satisfied that this evidence has significant probative value as tendency evidence to establish that the accused had a sexual interest in LC, and that he was prepared to act upon that interest, I am satisfied that the probative value of this evidence substantially outweighs the potential prejudicial effect of the evidence. The evidence will also be admitted as context or relationship evidence.
Incident 12
This incident involves an allegation of unequivocal sexual conduct involving LC. It is the basis of Counts 4, 5 and 6 on the indictment. If the jury accepted the evidence of LC concerning these alleged events, it would be open to the jury to find that the accused had a sexual interest in LC, and that he was prepared to act on that interest. I am satisfied that the evidence has a significant probative value, and that its probative value substantially outweighs any potential prejudicial effect of the evidence. For the same reasons that I gave with respect to Incident 11, this evidence that will be admitted as tendency evidence for the purposes of establishing that the accused had a sexual interest in LC and was willing to act upon that interest. The evidence will also be admitted as relationship or context evidence.
Incident 13
This incident involves an allegation that the accused kissed MC. It would be open to the jury to conclude that this was sexual conduct on the part of the accused, particularly if the jury accepted the evidence of MC that the accused said that it was something that “she would need to learn” for when she was older. This incident forms the basis of Count 7 on the indictment. If the jury accepted that this incident occurred, and that the accused’s motive was sexual, it would be open to the jury to conclude that the accused had a sexual interest in MC and was prepared to act upon that interest. The evidence has significant probative value, which outweighs any potential prejudicial effect of the evidence. It will be admissible as tendency evidence to establish that the accused had a sexual interest in MC and was willing to act on that interest. The evidence will also be admitted as relationship or context evidence.
Incident 14
This incident involves an allegation of unequivocal sexual conduct involving LC and MC. It is the basis of Counts 8, 9, 10 and 11 on the indictment. It would be open to the jury on the basis of the evidence of this incident to conclude that the accused had a sexual interest in LC and MC and was prepared to act upon that interest. The evidence has significant probative value, which substantially outweighs any potential prejudicial effect it may have. It will be admitted as tendency evidence for this purpose. The evidence will also be admitted as relationship or context evidence.
Incident 15
This Incident involves an allegation of unequivocal sexual conduct involving MC. It is the basis of Counts 12 and 13 on the indictment. It would be open to the jury on the basis of the evidence of this Incident to conclude that the accused had a sexual interest in MC and was prepared to act upon that interest. The evidence has significant probative value which substantially outweighs any potential prejudicial effect it may have. It will be admitted as tendency evidence of this purpose. It will also be admitted as relationship or context evidence.
Orders
I order that Incidents 7, 8, 11, 12, 13, 14 and 15 be admitted as tendency evidence to prove that the accused had a sexual interest in LC and/or MC and to act on his sexual interest in LC and/or MC.
I order that Incidents 8, 11, 12, 13, 14 and 15 be admitted as relationship and/or context evidence.
I order that these reasons not be published other than to the parties until the accused’s trials have concluded.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 24 November 2015 |