R v King
[2012] ACTSC 176
•December 10, 2012
THE QUEEN v IAN HAROLD KING
[2012] ACTSC 176 (10 December 2012)
CRIMINAL LAW – EVIDENCE – tendency – coincidence – relevance – consent to sexual intercourse negated by abuse of position – abuse in the context of s 92P (1) (h) Crimes Act1900
Acts Amendment (Sexual Offences) Act1992 (WA)
Crimes Act 1891 (Vic), s 5
Crimes Act1900 (ACT), ss 67, 92 J, 92P
Crimes Act1900 (NSW) s 66 C
Crimes Act1958 (Vic) s 48, and s 49 (repealed)
Crimes (Sexual Offences) Act 1980 (Vic)
Crimes (Sexual Offences) Act 1991 (Vic)
Evidence Act2011 (ACT) ss 97, 98
The Criminal Code (WA) s 322
Crimes (Amendment) Ordinance (No 5) 1985 (ACT) No. 62 of 1985
R v DH [1997] Unreported NSWCCA, 14 July 1997
R v Fletcher (2005) 156 A Crim R 308
R v Howes (2000) 116 A Crim R 249; [2000] VSCA 159
R v Johnston [2012] ACTSC 89
No. SCC 164 of 2009
Judge: Burns J
Supreme Court of the ACT
Date: 10 December 2012
IN THE SUPREME COURT OF THE )
) No. SCC 164 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: THE QUEEN
Applicant
AND: IAN HAROLD KING
Respondent
ORDER
Judge: Burns J
Date: 10 December 2012
Place: Canberra
THE COURT ORDERS THAT:
The application to lead tendency and coincidence evidence is refused.
The accused will be tried separately on the following Counts:
a) Counts 1 and 2;
b) Counts 3 and 4;
c) Counts 5 and 6;
d) Count 7; and
e) Count 8.
The accused Ian Harold King has entered pleas of not guilty to eight counts contrary to s 92 J (l) of the Crimes Act1900 (ACT) (in its then form) on an indictment dated 21 March 2012 in the following terms:
FIRST COUNT THAT between the 1st day of April 1989 and the 30th day of September 1989 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon T, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
SECOND COUNT AND FURTHER THAT between the 1st day of January 1990 and the 31st day of December 1990 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged in sexual intercourse with T, without consent, knowing that he did not consent or being reckless as to whether he consented to the sexual intercourse.
THIRD COUNT AND FURTHER THAT between the 1st day of September 1993 and the 31st day of January 1994 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged in sexual intercourse with J, without consent, knowing that he did not consent or being reckless as to whether he consented to the sexual intercourse.
FOURTH COUNT AND FURTHER THAT between the 1st day of September 1993 and the 31st day of January 1994 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged in sexual intercourse with J, without consent, knowing that he did not consent or being reckless as to whether he consented to the sexual intercourse.
FIFTH COUNT AND FURTHER THAT between the 1st day of December 1997 and the 31st day of March 1998 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon M, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
SIXTH COUNT AND FURTHER THAT between the 31st day of March 1998 and the 1st day of May 1998 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon M, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
SEVENTH COUNT AND FURTHER THAT between the 26th day of December 1997 and the 31st day of January 1998 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon P, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
EIGHTH COUNT AND FURTHER THAT between the 1st day of January 1998 and the 1st day of July 1998 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon A, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
By notices dated 20 July 2012, the Crown gave notice of its intention to lead tendency evidence pursuant to s 97 of the Evidence Act2011 (ACT) (the EA 2011) and coincidence evidence pursuant to s 98 of the same Act at the accused’s trial. The Crown seeks orders pre-trial that it be permitted to lead tendency and coincidence evidence as set out in these notices. The accused opposes these applications. There is agreement between the Crown and the accused that if these applications are unsuccessful, the indictment should be severed and the accused separately tried with respect to the counts alleging offences against each of the five different complaints.
The relevant provisions of the EA 2011 are s 97 and s 98:
97 The 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.
98 The coincidence rule
(1)Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mine on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally 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.
NoteOne of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.
(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 coincidence evidence presented by another party.
The application to lead tendency evidence
The tendency notice served on the accused states that the Crown will seek to prove that the accused has a tendency to act in particular ways, being:
a)a tendency to use his role as a cricket coach to develop a close relationship with young males by positioning himself as a mentor;
b)a tendency to use this close relationship to groom the young males;
c)a tendency to use his role as a cricket coach to introduce sexual topics with young males;
d)a tendency to buy gifts for young males as a means of grooming them to engage in sexual activity;
e)a tendency to attempt to normalise sexual contact with young males, in order to develop sexual contact;
f)a tendency to use pornography to normalise sexual contact with young males;
g)a tendency to relate sexual performance to cricket performance; and
h)a tendency to perform sexual acts on young males.
In the same notice the Crown alleges that the accused had a tendency to have the following particular states of mind:
a)a tendency to be attracted to young males to whom he acted as a cricket coach; and
b)a tendency to use his position of trust to facilitate sexual contact with young males he coached.
The accused admits that each of the sexual acts alleged in the charges occurred, with the trial to be fought on the question of whether each of the complainants consented to those acts. The above tendencies were formulated by the Crown before it became aware that the accused was admitting to the sexual acts alleged. Where the particular facts in issue at a trial have not been identified, it is appropriate to approach the issue of admission of tendency evidence on the basis that the perpetration of the acts alleged by the Crown is in issue: R v Fletcher (2005) 156 A Crim R 308. Subsequently, it has become clear that the issue upon which the trial will be fought is consent: did each of the complainants consent, and, if they did not, was the accused aware they were not consenting, or may not have been consenting?
What does the Crown seek to prove by proof of the tendencies referred to in the tendency notice? In other words, what facts in issue in the trial will the proposed tendency evidence assist in proving? The proposed tendency evidence cannot now be relevant to establishing identity, as the accused admits he is the person who had the relevant dealings with each of the complainants. Nor can it now be relevant to prove that the actual sexual acts themselves occurred, as the accused also admits that they did. I cannot see how the proposed evidence could establish that any of the acts were indecent, or that the accused knew them to be indecent.
In his written submissions the accused states that the issue at trial will be whether the complainants consented to the sexual acts the subject of the charges. In that regard, the Crown must prove that each of the complainants did not consent and that the accused either knew they were not consenting or was reckless as to whether they were consenting.
As stated above, the Crown must prove, with respect to each of the charges, that the complainant did not consent to the acts of the accused, and to negate any argument that the accused did not know they were not consenting. It is apparent from the Crown’s written submissions that it intends to rely on the provisions of s 92P of the Crimes Act1900, as it was at the relevant times (subsequently renumbered as s 67), to negate what, on the face of the facts outlined in the tendency notice, would appear to be the consent of a number of the complainants to the acts alleged against the accused. Section 92P relevantly provided:
Consent
92P.(1) For the purposes of section 92D, paragraph 92E (3)(b), section 92 J and paragraph 92K (3)(b) and without limiting the grounds upon which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused –
(h)by the abuse by the other person of his position of authority over, or professional or other trust in relation to, the person;
(3) Where it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in paragraphs (l) (a) to (j) (inclusive), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.
In its written submissions the Crown submitted that the proposed tendency evidence is relevant to the question of the consent of the complainants and the accused’s state of mind on that issue:
21.Even if the physical acts the subject of the charges are admitted, the evidence of each complainant is still relevant and admissible in relation to the charges relating to other complainants as tendency evidence in relation to the accused’s state of mind in having an attraction to young males he coached, and using the position of trust be occupied to facilitate sexual contact with those males, and to obtain their ‘consent’ to sexual acts.
22.In R v Thomas William Johnston [2012] ACTSC 89 (8 June 2012), Justice Burns stated (at [47]-[48]):
There are certain states of mind that may be proved without proof of repetition of associated acts, and proof of which may lead to an inference that the individual has a tendency to have that state of mind. Sexual attraction is one such state of mind. If evidence establishes, for example, that an individual is, at a particular date, sexually attracted to children, that, in my opinion, would allow an inference that the individual has a tendency to have that state of mind, that is, to be sexually attracted to children...The more unusual or extraordinary a demonstrated state of mind, the easier it may be to infer that the accused has a tendency to have that state of mind. Sexual attraction to children is an example.
23.Although each of the five complainants was above the legal age of consent at the time of the offences, each was still a child. In relation to each, the accused was a considerably older man and stood in a position of responsibility as the complainants’ cricket coach.
24.It is submitted that the evidence taken as a whole demonstrates a tendency not only to have a sexual interest in young males to whom he was providing cricket coaching, but also a tendency to use his position of authority and trust to act upon that sexual interest and to obtain consent to sexual acts by abusing that position of trust.
25.It is submitted that the evidence sought to be relied upon as tendency evidence is of significant probative value in proving that the accused used his position of trust to obtain consent to sexual acts (thereby negating consent pursuant to s 92P (as it then suggestion (sic) that each of the acts involving the accused and the much younger complainants was a ‘consensual’ sexual act.
The allegations against the accused
Counts 1 & 2
Before turning to the provisions of s 92P of the Crimes Act1900 (ACT), it is appropriate to consider the nature of the Crown case against the accused with respect to each of the counts on the indictment. Count 1 alleges an offence against T, who was either 15 or 16 years old at the time of the alleged offence. On the date in question he accompanied the accused to Pine Island for the day. He had previously been to Pine Island with the accused and they had been bushwalking. On this occasion they walked for about 20 minutes down the river, so that they were a long way from other people. The accused then said to the complainant “Alright then, drop them, let’s have a look”. The complainant knew that the accused meant for him to drop his pants, and felt awkward at the request. The complainant did not want to hurt the accused’s feelings or wreck their friendship by refusing and so dropped his underwear and pants. The accused then inspected the complainant’s penis. The accused crouched in front of the complainant and grasped the complainant’s penis with one of his hands and began moving it from side to side looking at it. After about 30 seconds he let go of the complainant’s penis.
The second count on the indictment also relates to T. It is alleged that between 1 January 1990 and 31 December 1990, when the complainant was in year 12 at college, the accused took him to a sex shop in Fyshwick. The complainant was either 16 or 17 years old at this time. The complainant remained in the car while the accused went into the sex shop and bought a blow up doll. After the accused had bought the doll he drove the complainant back to his home in Kambah. The accused put on a pornographic movie, which both he and complainant watched. The accused then offered to let the complainant try out the doll and said he could take it into the bedroom. The complainant went into the accused’s bedroom and shut the door behind him. He tried to use the doll, however he could not sustain an erection. After a short time the accused entered the bedroom without knocking. The complainant froze with embarrassment. The accused saw that the complainant did not have an erection and asked what was wrong. The complainant said that he could not do anything with the doll. The accused then said “I can fix that”. The complainant was seated at the end of the bed and was about to pull his pants up when the accused knelt down in front of him and put the complainants penis in his mouth and began to suck on it. The complainant did not tell the accused to stop as he was in shock and did not want the accused to become angry with him or for it to affect their friendship. The complainant’s penis became erect in the accused’s mouth and after about one minute the complainant ejaculated into the mouth of the accused.
As background evidence the Crown alleges that the complainant began playing for a district cricket club in Canberra in 1987. The complainant met the accused in the 1988/1989 cricket season which began in September 1988 with pre season training and ended in April 1989. The complainant was 14 years old age at that time. At the beginning of the 1988/1989 cricket season the complainant was playing in the under 17s side. At the first training session of the season the complainant was training in the cricket nets when he was approached by the accused. The accused asked the complainant to come and train with the third grade team of which he was the captain and coach. It is alleged that as the season progressed the accused helped the complainant with his cricket training, coaching and mentoring him. They developed a close relationship.
During the season the complainant’s cricket improved to the point where he was able to play with the third grade side. Before the complainant’s first third grade game the accused took him to the Sportsman’s Warehouse in Fyshwick to buy a pair of cricket spikes, which cost around $80, which the accused paid for. At around the same time the accused gave the complainant a full cricket kit.
The complainant came to see the accused as a good friend from whom he had learnt a lot. He began receiving private cricket training from the accused which took place at different cricket nets in Canberra. The accused would often muck around with the complainant and other players, grabbing them in bear hugs. It is alleged that the accused was a very “hands on” coach, grabbing the complainant by the hands or arms to help practice batting or bowling. The accused told the complainant that he had a theory that a batter should put as many grips around the handle of their cricket bat until it was the same girth as their own penis, so that it would be more comfortable to hold in their hands. The accused also asked the complainant if he masturbated in the shower, and that he should try it because it felt good. The accused also gave the complainant pornographic videos to take home and watch.
It is alleged that the accused often took the complainant and other cricket players out for dinner or to the movies. Sometimes these outings only involved the accused and the complainant. The accused always paid for the meals or movie tickets. Whilst the accused and the complainant were at the movies together, the accused would grab the complainant at the top of his thighs pretending to be scared. On other occasions the accused would grab the top of the complainant’s thigh when he was sitting across from him and they were talking.
During the off season the accused maintained contact with the complainant and continued to take him out for dinner and to the movies. On one other occasion the accused took the complainant to Pine Island and inspected his penis in an almost identical manner to that described in relation to Count 1 on the indictment.
Counts 3 & 4
Count 3 on the indictment alleges an offence against J. It is alleged that during one training session between 1 September 1993 and 31 January 1994 when the complainant was 16 years old, the complainant and the accused went to the accused’s home after cricket training. The complainant had a shower and was lying on the accused’s bed. The accused was giving the complainant a sports massage and then started to touch the complainant’s penis. The accused then performed fellatio on the complainant and the complainant ejaculated into his mouth.
Count 4 on the indictment also relates to J. It is alleged that during another training session between 1 September 1993 and 31 January 1994 when the complainant was 16 years old, the accused and complainant returned to the accused’s home after cricket training. The complainant had a shower and was lying naked on the accused’s bed. The accused began to fondle the complainant’s penis with his hands until he was aroused and then performed fellatio on him by placing the complainant’s penis in his mouth, until the complainant ejaculated. After this incident the accused and complainant shopping at Woden Plaza where the accused bought the complainant a pair of dark blue pants and a dark blue top. The accused spent about $100 on the clothing.
The Crown also proposes to lead relationship evidence concerning the accused and J. It is alleged that in 1993 the complainant was selected in the ACT cricket under 17s training squad. The accused was the coach of the training squad. Training for the squad took place from about June 1993 until January 1994. The complainant had weekly training for the squad at the NATEX centre. The complainant met the accused during the first training session. As training progressed the complainant got to know the accused quite well. The accused took an interest in the complainant’s cricket which was something no adult in his life had previously done. In June or July 1993 after the complainant came to know the accused quite well, the accused offered him personal training sessions. The complainant accepted as he knew the accused had played cricket at a state level and was a fast bowler. The complainant was himself trying to improve his bowling and believed the accused could assist with this. The complainant began receiving private training from the accused. These sessions would involve the complainant attending the accused’s house. The complainant and the accused would normally attend local cricket nets to practice training and then return to the accused’s house where the complainant would have a shower.
It will be alleged that during the training sessions that occurred between September 1993 and January 1994, when the complainant was 16 years old, it was common for the accused and the complainant to return to the accused’s house and for the complainant to have a shower. The accused would then give the complainant a sports massage. The accused would then begin to touch the complainant’s penis, with his hands until he became aroused. The accused would then perform oral sex upon the complainant. It is alleged that these incidents would occur in the same manner usually once a week.
Counts 5 & 6
Count 5 alleges an offence against M. It is alleged that on an occasion between 1 December 1997 and 31 March 1998 when the complainant was 16 years old he attended the accused’s house in Lyons for the purpose of private cricket training. The accused told the complainant to stand in front of the mirror, which was located at the end of a hallway. The complainant took all his clothes off except for his underwear. The accused began to point to a chart depicting the muscles of the human body on the wall, indicating the areas the complainant needed to strengthen. The accused then pointed out those body parts on the complainant. The accused then told the complainant to remove his underwear. The accused then pointed to the muscle chart and indicated that the complainant needed stronger muscles in the area of his inner thigh and genital area. At this time the accused brushed his hand across the complainant’s scrotum. The accused then stopped all of a sudden and told the complainant to get dressed and sit on the couch. The accused then berated the complainant telling him he had not paid attention and that he should have spontaneously got an erection from being touched in that area, and that he must not have been paying attention.
Count 6 also alleges as offence against M. It is alleged that on an occasion between 31 March 1998 and 1 May 1998, when the complainant was 16 years old the accused contacted him and commented that he had had an ordinary cricket season, and perhaps they should catch up. The complainant attended the accused’s house in Lyons. The accused told the complainant to stand in front of the mirror. The accused referred to the muscle chart on the wall. The accused then told the complainant to take his clothes off. The complainant complied and the accused briefly mentioned something about his muscles. The accused then told the complainant to go and jump on the bed. The accused then gave the complainant a rub down and massaged his legs with cream. The accused rubbed the complainant’s thighs and groin area. The complainant sustained an erection. The accused then took hold of the complainant’s penis and began pulling his penis with his hand for about 20 or 30 minutes. The complainant then ejaculated. The accused then cleaned up the semen with a facecloth. The accused told the complainant the feeling he had now was the relaxed feeling he should have when he batted. The complainant then went into the lounge room and the accused put on a pornographic video, which the complainant watched.
The Crown also proposes to lead background evidence concerning the relationship between the accused and M. It is alleged the complainant began playing cricket for a district club when he was 10 years old. When he was in year 10 he tried out for the ACT under 17 representative side. The complainant met the accused when he travelled to a game with the accused and another cricket player and his father. One day during 1997 the complainant was hitting balls from a bowling machine at the Manuka cricket nets when the accused approached him and pointed out a technical fault with his batting. The accused told the complainant he could help him with the problem, but no further conversation took place at that training session. The complainant was eager for assistance from the accused as he was aware that the accused had played state cricket. The under 17s side was announced and the complainant was not successful in making the side. In around December 1997, the accused suggested the complainant attend his house for some private cricket training.
Count 7
Count 7 on the indictment alleges an offence against P. It is alleged that on an occasion between 26 December 1997 and 31 January 1998, when the complainant was 17 or 18 years of age, he was at the accused’s house when the accused said the size of his penis should be the same size as a cricket bat. The complainant was facing a mirror in the accused’s house, when the accused pulled down the complainant’s pants including his underwear and placed his thumb and forefinger around the complainant’s penis and squeezed for a couple of seconds.
As background to the relationship between the accused and P, the Crown alleges that the complainant began playing cricket for a district club when he was about 5 or 6 years old. At the beginning of the 1997/1998 cricket season the complainant met the accused. The complainant’s brother, who also represented the ACT in cricket, recommended that the complainant seek personal training from the accused. The complainant approached the accused and organised to attend his home for private training. These training sessions would take place at the accused’s residence near Woden Plaza. The accused would often have the complainant stand in front of a full length mirror and practice his batting technique. When the complainant began these training sessions with the accused, the accused asked him if he masturbated in the shower and told him the feeling he had when his legs go weak with hot water running over his body after he ejaculated was the same feeling he should have when he hit the cricket ball correctly. The accused also gave the complainant homework to masturbate in the shower. At the following private training sessions the accused asked the complainant if he had done his “homework”. The complainant did not know how to respond but told the accused he had and said it felt fantastic.
Count 8
Count 8 on the indictment is allegedly an offence against A. It is alleged that on an occasion between 1 January 1998 and 1 July 1998 when the complainant was 17 years old he attended the accused’s house. The accused began to talk to the complainant about the size of other cricket players’ penises and asking the complainant whether he masturbated. He asked the complainant how long it had been since he had ejaculated. The accused said other players would come to his house and masturbate in the beanbag, and asked the complainant if he wished to do the same. The complainant refused. The accused then had the complainant stand in front of a mirror and practice his batting technique. The accused then told the complainant to take his shirt off and stood next to him facing the mirror. The accused then told the complainant to breathe in and stand up straight and indicated what his posture should be like. The accused then told the complainant to take his pants and then his underwear off. The complainant was then standing naked in front of the mirror. The accused began talking about how the complainant’s body shape should be. The accused then placed his right hand just above the penis of the complainant.
The Crown will also seek to lead evidence of the relationship between the complainant and A. The Crown says that the complainant began playing for a district cricket club when he was seven years old. The complainant met the accused when he was about 13 or 14 years old at a special training day when the accused was a coach. In the 1997/1998 cricket season the complainant was a member of the ACT under 17 representative cricket team, and the accused was the coach of the team. In January 1998 the team travelled to Hobart to play in the under 17 national carnival, with both the complainant and the accused taking part in the trip. During the trip the accused gave out pornographic magazines to some of the players, including the complainant. After the tour the accused sent a letter and some photographs to the complainant. The letter suggested the complainant do some personal training with him.
Section 92P (1) Crimes Act1900
In order to determine whether the proposed tendency evidence is relevant to negating the consent of the complainants, and establishing the accused’s knowledge that they were not consenting, as suggested by the Crown, it is necessary to have a proper understanding of s 92P, and in particular s 92P (1) (h). Section 92P was inserted into the Crimes Act1900 of the State of New South Wales in its application to the Australian Capital Territory by the Crimes (Amendment) Ordinance (No 5) 1985. At around that time, amendments to the law concerning sexual assault, and in particular sexual assault of children, were made in a number of Australian jurisdictions.
Following on from the ‘Report of the New South Wales Child Sexual Assault Taskforce of March 1985’, s 66 C was introduced into the Crimes Act 1900 (NSW) which made it an offence to have sexual intercourse with a person who is of or above the age of 10 years and under 16 and who “is (whether generally or at the time of the sexual intercourse only) under the authority of” the offender.
In Victoria, prior to 1991, the fact that an offender held a particular position such as a schoolmaster or teacher (s 5 of the Crimes Act 1891 (Vic)), or held a position of “care, supervision or authority” with respect to a person under the age of consent (Crimes Act 1958 (Vic) s 49 (3) as amended by the Crimes (Sexual Offences) Act 1980 (Vic)) was a matter of aggravation with respect to an offence of carnal knowledge, making an offender subject to a higher maximum penalty. Subsequently the Crimes (Sexual Offences) Act 1991 (Vic) amended the Crimes Act1958 (Vic), enacting s 48, in the following terms:
48. Sexual penetration of 16 year old child
(l) A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority.
In Western Australia TheCriminal Code (WA) was amended by the Acts Amendment (Sexual Offences) Act1992 (WA), inserting s 322, which made it an offence to sexually penetrate a child (defined as a child of or over the age of 16 years) who is under the offender’s care, supervision or authority.
It will be observed that a common approach was taken to the protection of children from sexual exploitation by persons in authority (to use a generic term) in these provisions. Each jurisdiction (with some minor variations) made it an offence for such a person to sexually penetrate a child under their authority. The offences created did not require proof by the Crown that the child did not consent to the sexual penetration, or only consented because of the offender’s position of authority.
Thus, in R vHowes (2000) 116 A Crim R 249; [2000] VSCA, the appellant’s conviction with respect to an offence under s 48 of the Crimes Act 1958 (Vic) was upheld in circumstances where there was apparent consent to sexual intercourse by the complainant. Howes was a teacher at a grammar school in a provincial city in Victoria. The 17 year old complainant was one of his students. They formed a relationship in which they discussed personal matters outside the student/teacher relationship. Howes offered to take the complainant to show her around the Melbourne University campus. They met at the university as arranged, and Howes suggested they have lunch before he showed her around. They drove to his residence where he supplied the complainant with alcohol, so that she became very intoxicated. Sexual intercourse then occurred.
In dismissing Howes’ appeal, Brooking JA, with whom Chernov JA agreed, said:
Care should be taken to make it clear to jurors that the section does not require that the child’s consent to the act of sexual penetration be in any way influenced by the relationship of care, supervision or authority.
A similar position was taken by the Court of Criminal Appeal in NSW regarding s 66C of the Crimes Act1900 (NSW): R v DH (Unreported, Court of Criminal Appeal NSW, 14 July 1997 as referred to in Howes v The Queen).
It is quite clear that the law in the ACT took a different path with the enactment of s 92P. The section may be interpreted in two ways. First, it may be interpreted as negating actual consent where one of the circumstances in the section is made out. In other words, it would act so as to deem there to have been no consent when, in fact, the complainant had consented. Secondly, it may be interpreted as a legislative recognition of the common law principle that consent must be real consent as opposed to submission brought about, for example, by threats of violence.
In elucidating the legislative intention behind s 92P (1) (h) it is important to recognise that the section requires the Crown to prove that the consent of the complainant was caused not just by the accused’s occupation of a position of trust in relation to, or authority over, the complainant, but by abuse of that position. The use of the word “abuse” appears to have been a deliberate choice by the drafter, so as to avoid the suggestion that consent was negated simply by reason of an accused holding such a position. In order to negate consent under s 92P (1)(h) it is not sufficient for the Crown to establish that an accused held such a position, and/or even that the holding of such a position caused the consent. The Crown must also prove that the accused abused that position. Where an offender abuses his or her position and is aware that this abuse has caused the consent of the complainant to the act of intercourse or the indecent act, as the case may be, s 92P (3) deems the offender to have known that the complainant was not consenting.
It is important to recognise that the act of sexual intercourse or indecency relevant to s 92P (1) (h) cannot be the conduct that constitutes the abuse of an offender’s position for the purposes of the section. This is because s 92P (1) only operates where there has been apparent consent by a complainant to the act of sexual intercourse or the indecent act, and logically that apparent consent must either precede or at least be concomitant with the act. It follows that the act of sexual intercourse or the indecent act relevant to the application of s 92P (1) cannot form the basis of a finding that an accused person abused their position of authority or trust for the purposes of negating consent under that section. The acts or circumstances establishing that abuse must be found elsewhere.
If the very act which is effectively proscribed by s 92P (1) (h) (being the particular act of sexual intercourse or the particular indecent act) cannot be the basis of an allegation of abuse of position for the purposes of the section, this strongly suggests that consensual acts of sexual intercourse are not intended to be the basis of an allegation of abuse of position at all. It would be anomalous if second or subsequent consensual sexual acts between a complainant and a person in a position of authority or trust attracted the operation of s 92P (1) (h), whereas the first such act did not. This, in turn, strongly supports the proposition that s 92P (1) (h) is not intended to legislatively negate real consent, but instead is directed towards confirming the necessity for there to be real consent.
It would have been easy for the legislature to have created an offence similar to those found in NSW, Victoria and Western Australia to which reference has been made. Consent is irrelevant to those offences. That was not the approach taken in this Territory. Consensual sexual acts between an individual and another with respect to whom he or she has a position of authority or trust is lawful, except where consent to those acts is caused by abuse of the position of authority or trust. Section 92P (1)(h) requires a casual connection between abuse of the position of trust or authority and consent to sexual acts. This strongly suggests that the nature of the abuse intended by the legislature must be such as to deprive apparent consent of any reality.
I will venture an example. The fact that an individual occupies a position of authority, such as a teacher, may make that person attractive to a student, and may cause the student to consent to a sexual act with their teacher. In that case the complainant’s consent to the sexual act may be said to have been caused by the teacher’s position of authority. Undoubtedly, many in the community would consider participation in such an act on the part of the teacher inappropriate and may also refer to it as an abuse of his or her position, but s 92P (l)(h) would not operate so as to potentially make the act criminal. On the other hand, if the teacher offered to give the student an unwarranted higher grade, or threatened to give an unwarranted lower grade in order to induce the student to consent to a sexual act, this would constitute abuse of the teachers position of authority over the student.
In its written submissions as set out in paragraph 9 above, the Crown addressed the question of what it sought to prove by the proposed tendency evidence and suggested, by reference to s 92P, that the evidence would be “relied upon to rebut a suggestion that each of the acts involving the accused and the much younger complainants was a ‘consensual’ sexual act”.
On the facts outlined in the tendency notice I can see no merit in the proposition that the proposed tendency evidence is relevant to determining whether the accused abused his position, as that word is properly understood in s 92P (1) (h), such that any apparent consent is negated by that provision. In the example that I gave earlier, many people would consider that a teacher who had sexual relations with their student (albeit one over the age of consent) was abusing their position of trust. When used in this sense, abuse connotes a moral judgment, the formation of which is not dependent upon the issues of the capacity of the student to consent or the reality of that consent. Such a judgment would provide a very uncertain foundation for criminal liability.
I do not think that the legislature intended the word “abuse” to be construed in this way. The nature of the abuse intended is such as to deprive any ostensible consent of any force or value, such as some threat or inducement which the accused is capable of carrying into effect because of his position of authority or trust.
Whether the facts as set out in the tendency notice support a finding that the accused was in a position of authority or trust with respect to the complainants is debatable. But on those facts there could be no finding that the accused abused any such position, in the sense that he did some act connected with his position calculated to deprive the apparent consent of the complainants of any reality. It is not suggested, for example, that if he had any power over selection of players within the club or in representative terms (which is not clearly alleged in the notice), he induced the complainants to engage in sexual acts by offering to ensure their selection, or threatening to block their selection, as the case may be.
In an appropriate case evidence of the tendencies alleged by the Crown may not only be admissible, but would also have significant probative value as evidence that an accused person knew that the apparent consent of a complainant was not real consent. However, this is not such a case.
For these reasons, the application to lead tendency evidence is refused.
The application to lead co-incidence evidence
As I noted in R v Johnston [2012] ACTSC 89, the coincidence role as set out in s 98 of the Evidence Act 2011 (ACT) is not concerned with all forms of coincidence reasoning, but only with a subset of them:
Rather, s 98 governs the admissibility of a particular type of coincidence evidence, being evidence linked by a similarity in events or the circumstances in which they happen.
In its coincidence notice the Crown has identified similarities between the events and circumstances surrounding the charges against the accused “on the basis of which it is unlikely the events occurred coincidentally”:
·In relation to all complainants, the accused developed a relationship with them in his capacity as a cricket coach;
·In relation to all complainants, the accused provided private cricket training;
·In relation to complainants J, M and A, private cricket training was provided at the instigation of the accused;
·In relation to all complainants, the accused introduced sexual topics;
·In relation to all complainants, the accused engaged in touching or asked them to remove clothing and related these actions to cricket training;
·In relation to all complainants, the accused committed sexual acts upon them when they were aged between 15 and 18 years;
·In relation to all complainants, the accused sexual activity with them by touching their penis or masturbating them;
·In relation to complainants T and J, the accused bought the complainants gifts or treated them;
·In relation to the complainants T and J, sexual acts by the accused progressed to fellatio;
·In relation to events in Charges 2, 6 and 8, the accused exposed the complainants to pornography.
By use of this evidence, the Crown seeks to prove that each of the acts alleged against the accused occurred, and that “the accused intended to use his position of trust in relation to the complainants to facilitate sexual acts committed upon them”.
As the accused now does not dispute that he did the acts the subject of the charges, the proposed evidence is not relevant to proving that the acts occurred.
The Crown’s written submissions state that the coincidence evidence is relevant to proving that the accused had a particular state of mind, being an intention “to use his position of trust to obtain ‘consent’ to the sexual acts”. This appears to be a reference to the Crown’s position concerning the application of s 92P (1) (h) to which I have already referred. With respect, it appears to me that this suggested use of the proposed coincidence evidence is not relevant to any fact in issue. The question is not whether the accused made use of his position at the cricket club to facilitate his sexual activities, but whether he abused, in the sense to which I have referred, his position.
For the reasons set out above with respect to the application to lead tendency evidence, I am satisfied that the proposed coincidence evidence cannot be relevant to establishing that the accused had, at the relevant times, acted in such a way as to engage the provisions of s 92P (1) (h).
Conclusion
The applications to lead tendency and coincidence evidence are refused. The accused will be tried separately on Counts 1 and 2, Counts 3 and 4, Counts 5 and 6 and on Count 7 and Count 8.
I certify that the preceding fifty five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 10 December 2012
Counsel for the applicant: Mr S. Drumgold
Solicitor for the applicant: Office of ACT Director of Public Prosecutions
Counsel for the respondent: Mr K. Archer
Solicitor for the respondent: Aboriginal Legal Service (NSW/ACT) Limited
Date of hearing: 31 August 2012
Date of judgment: 10 December 2012
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