R v Kirkham

[2020] NSWDC 658

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v MK [2020] NSWDC 658

Hearing dates:

1 October 2020

Date of orders:

6 October 2020

Decision date:

06 October 2020

Jurisdiction:

Criminal

Before:

McLennan SC DCJ

Decision:

Decline to admit the evidence

Catchwords:

TENDENCY – Section 66EA - tendency to have a sexual interest in young children- tendency to act on sexual interest in young children by maintaining unlawful sexual relationships

EXPERT EVIDENCE – expertise to give opinion – Literature review – children’s evidence – reasons for delay in complainant - relevance

Legislation Cited:

Evidence Act

Criminal Code (Qld)

Criminal Procedure Act

Cases Cited:

Hughes v The Queen [2017] HCA 20

McPhillamy v The Queen [2018] HCA 52

The Queen v Bauer [2018] HCA 40

R v Davies [1985] 3 NSWLR 276

Bellemore v Tasmania (2006) 170 A Crim R 1

Hoyle v The Queen at [2018] ACTCA 42

MA v The Queen (2013) 226 A Crim R 575

Suresh v The Queen [1998] HCA 23

M v The Queen (1994) 181 CLR 487

Category:

Procedural rulings

Parties:

Regina (Crown)
MK (Accused)

Representation:

Counsel:
Mr. J Hanna for the Crown
Mr. M Maarroaui for the Accused
Solicitors:
Ms. K. Biffin (DPP)
Mr. C. Hope

File Number(s):

2018/280458

INTRODUCTION

1. The accused has pleaded not guilty to a 27 count indictment alleging sexual offences against three brothers during the period May 2017 to September 2018. The complainants will be identified as MLD, MSD and JD respectively. MLD and MSD are twins who were 11 years old at the time. Their other brother JD was 12. The accused was in a domestic relationship with the complainants' mother at the time.

2. The Crown seeks admission into evidence allegations made by IB and KB concerning events said to have occurred in 2012 in Queensland at a time when they were students in the accused’s primary school class. KB was aged nine to ten years of age, IB was eight to nine years of age. The justification for the admission into evidence of these allegations is said to be that it evidences the following tendencies which if proved make it more likely that the accused offended against MLD, MSD and JD. Those tendencies are:

(1) the tendency to have a sexual interest in young children;

(2) a tendency to act on his sexual interest in young children by maintaining unlawful sexual relationships;

(3) a tendency to act on his sexual interest in young male children by committing sexual acts with or towards young male children, including in circumstances where the accused acted opportunistically and/or where there was a risk of detection.

3. The accused objects to the admission of that evidence. The principal objections (set out at point 3 of the defence written submissions MFI 2) are that the evidence has no significant probative value and that it is otherwise highly prejudicial. The defence objections highlight the fact that:

(1) the Queensland allegations predate the New South Wales allegations by a period of approximately five years; and

(2) the Queensland allegations concern alleged activities in the accused’s workplace during the course of his employment whereas the New South Wales allegations concern alleged activities during the course of a private domestic relationship.

4. The Crown also seeks to have admitted into evidence what is said to be an expert report concerning the way in which victims of childhood sexual abuse respond to their abuse, particularly as concerns delay in reporting abuse, “staggered” disclosure of abuse and direct responses to abuse. The author of the report, Dr Rita Shackel, is a professor of law and ethics at the University of Queensland who has conducted an extensive literature review and has summarised the relevant research findings. The objections to this evidence are based essentially on relevance and the lack of expertise of Dr Shackel to offer the information set out in her reports. A further question arises as to whether a literature review can amount to an “opinion” for the purposes of the Evidence Act.    

THE TENDENCY EVIDENCE ARGUMENT

(i)    The New South Wales Allegations

5. The background to these allegations are set out in paras 1 to 3 of the Crown case statement. The accused commenced a relationship with the mother of the complainants MLD, MSD and JD in May of 2017 and moved in with the family in Northern New South Wales in August 2017. In October 2017 he was charged with the Queensland offences relating to KB and IB. The relationship with the complainants' mother ended on 17 August 2018.

6. On 11 September 2018 MLD disclosed the offences said to have been perpetrated on him. On 12 September 2018 MSD and JD made disclosures. MLD’s disclosures involved allegations of penile/anal intercourse, masturbation and fellatio and the licking of the complainant’s anus. They gave rise to a charge pursuant to s 66EA(1) of the Crimes Act (count 1) and various alternatives (counts 2 to 13). MSD’s disclosures involved allegations of penile/anal intercourse, masturbation and the complainant licking the accused’s penis. They gave rise to a charge pursuant to s 66EA(1) (count 14) and various alternatives (counts 15 to 18). JD’s disclosures involved allegations of penile/anal intercourse, digital anal penetration and fellatio. They gave rise to a charge pursuant to s 66EA(1) (count 19) and various alternatives (counts 20 to 27). In respect of MLD and MSD they allege conduct occurring in the family home, very often at times when their mother was at the gym early in the morning but while the other siblings were at home. In respect of JD the offending conduct was alleged to have occurred in the family home, in the accused’s motor vehicle and at the home of the accused’s parents.

7. In respect of MSD bribery was used to obtain acquiescence; the bribe was the opportunity to play a computer game called Minecraft. In respect of JD bribery was used to obtain acquiescence; the bribe was fast food (KFC) or drinks and lollies from Coles. In respect of MLD threats were used, the accused telling him “if you tell anyone I will get very, very angry with you”.

1. The Queensland Allegations

8. In 2012 the accused was a teacher at a State School. KB and IB attended that school and were in the same class taught by the accused. In respect of KB it is alleged that the accused used his hand to rub the child KB on the buttocks area. This would occur every two to three days in the classroom. In respect of IB it was alleged that the accused would place his hand under the complainant child’s shorts and underwear and touch him on the testicles. This was almost a daily occurrence.

9. On three or four occasions the accused kissed the complainant IB in a kitchen adjoining the classroom and forced his tongue into the child’s mouth. KB’s allegations gave rise to a charge in Queensland contrary to s 229B(1) of the Criminal Code, as did IB’s allegations. Section 229B of the Criminal Code (Qld) creates the offence of maintaining a sexual relationship with a child. It has similarities with the New South Wales offence of persistent sexual abuse of a child contrary to s 66EA of the Crimes Act.

(iii)    Tendency Evidence: Principles to be Applied

10. Section 97(1) of the Evidence Act sets out the tendency rule in these terms.

“Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless:

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

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

11. Subsection (2) is not relevant for present purposes.

12. Section 101(2) of the Evidence Act is as follows.

“Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.”

13. Assessment of the probative value of tendency evidence requires the Court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so the Court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence: McPhillamy v The Queen [2018] HCA 52 at [26]; Hughes v The Queen [2017] HCA 20 at [41].

14. In determining the extent to which proof of the tendency increases the likelihood of the commission of the offence, that is, in determining whether the evidence of the tendency has significant probative value, it is unnecessary that there be established an “underlying unity”, “pattern of conduct” or “modus operandi”: Hughes at para 34. Having said that, in a multiple complainant sexual offence case such as this there must ordinarily be some feature of or about the offending which links the two together: The Queen v Bauer [2018] HCA 40 at [58]; McPhillamy at [31].

15. More specifically, absent such a feature of or about the offending evidence that an accused has committed a sexual offence against one complainant proves no more about the alleged offence against another complainant than that the accused has committed a sexual offence against the first complainant, which is not ordinarily significantly probative: Bauer at [58]. The requirement of some “linking feature” should not be equated with a requirement that there be a similarity between the acts which are said to have occurred: Hughes at [37].

16. Nonetheless, generally speaking, the closer and more particular the similarities between the circumstances of the offending and the alleged offences the more likely it is that evidence will have significant probative value: Hughes v R [2015] NSWCCA 330 at [179] (citation of authorities referred to omitted by me).

17. The above principles direct attention to the need for there to be a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all of the tendency evidence provides significant support for that tendency but it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant: Hughes (High Court) at [64].

18. McPhillamy provides an example of how the interaction of three factors may combine in such a way as to lead to a conclusion that tendency evidence may not have significant probative value. Those factors can be identified as follows.

(a) a tendency expressed at a high level of generality;

(b) a difference in the context of offending;

(c) a gap in time between the offending.

19. In McPhillamy the tendency on which the prosecution relied was to act on the appellant’s sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to two witnesses, B and C (McPhillamy at [27]. The context of the offending differed. B and C’s allegations appear at paras 6 through to 7 of the judgment in McPhillamy and the complainant A’s allegations appear at para 4 of the judgment. The judgment of the High Court summarised the position thus:

“The supervision exercised by the appellant as assistant housemaster in 1985 over vulnerable homesick boys in his care has little in common with the supervision exercised in his role as acolyte over A, an altar boy, when the two were at the cathedral for services in 1995 to 1996...the tendency to take advantage of young teenage boys who sought out the appellant in the privacy of his bedroom is to be contrasted with A’s account that the appellant followed him into a public toilet and molested him.” (McPhillamy at [31].”

20. As the above shows there was a gap of ten years between the conduct concerning B and C on the one hand and A on the other. In the view of the High Court in the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the college the inference that at the dates of the offences he possessed the tendency is weak: (McPhillamy at [30]. That was in spite of it being not disputed that the appellant’s sexual interest in young teenage boys was an interest of a kind that is likely to be enduring (see McPhillamy at [26].

21. On this analysis primacy was afforded to the tendency to act on the interest rather than merely to possess the particular state of mind that the interest reflects. This may represent a withdrawal from the position articulated at Hughes at [32] where the Court said:

“Moreover, s 97(1) in terms provides for the admission of evidence of a person’s tendency to have a particular state of mind. An adult’s sexual interest in young children is a particular state of mind. On the trial of a sexual offence against a young child proof of that particular state of mind may have the capacity to have significant probative value.”

22. Presumably that is so because it increases to an important degree the likelihood that a person possessing that state of mind will act in accordance with their interest.

1. The Competing Submissions

23. There is no application to sever the indictment such that the accused would face separate trials in respect of the allegations of MLD, MSD and JD. However, the approach of the accused was to leave to the end of the trial arguments concerning the use that might be made of each complainant’s allegations in proof of the allegations made by the others. (see transcript of argument 1 October 2020, transcript 11 at lines 5 through to 39).

24. The Crown’s position was that it was necessary to consider the tendency evidence as a whole so that (for example) when considering proof of the allegations concerning MLD one would have regard to the Queensland allegations in combination with the evidence of MSD and JD. (transcript 12 lines 6 through to 12).

25. The Crown submitted that the common feature linking the Queensland allegations with the New South Wales allegations were that each involved risk and opportunistic offending, including in circumstances where other people were nearby and there was a risk of discovery.

26. In respect of the time gap between the two sets of allegations the submission was that they were not remote in time or place or so significantly different in circumstance. (see MFI 1 at paras 15 through to 19). The defence emphasises the difference in context (occupational versus domestic) and the difference in magnitude of conduct (fondling of buttocks and genitals versus penile/anal penetration). (see MFI 2 at para 97). The Crown submits that should the evidence of the Queensland allegations have significant probative value then any prejudice can be overcome by appropriate directions. The defence, on the other hand, point to prejudice arising from three matters,

(a) the spectre that the accused might be considered a sexual predator,

(b) an overwhelming emotional response to the Queensland allegations,

(c) a disinclination in those circumstances to give the accused the benefit of the doubt,

which prejudice alone or in combination could not be cured by directions. (see MFI 2 at para 10).

1. Decision

27. In my opinion the Queensland allegations are incapable of establishing a tendency with significant probative value. Consequently, whether considered alone or in combination with the other tendency evidence in the case, they do not increase to an important degree the likelihood that the accused committed offences against either MLD, MSD or JD.

28. The five year gap in time between the Queensland allegations and the New South Wales allegations is half that in McPhillamy. It is not a sufficient answer to the problem raised by that gap to say that the accused was suspended from teaching from August 2013 until he was charged with the Queensland offences in October 2017 and therefore his opportunity for offending was limited (see MFI 1 at para 18).

29. The unexpressed implication in that submission is that his sexual interest and tendency to act on it was confined to male primary school students in his class. The tendency in fact sought to be established, as pleaded, transcends occupational limitations and boundaries. The tendency in fact sought to be established is of the high level of generality that establishes only relevance, in my view.

30. The asserted common feature of opportunistic offending, including where other people were nearby, does not provide the kind of link in this case that increases the probative value of the evidence when one has regard to the significant differences between the two sets of allegations.

31. The fondling of the buttocks and genitals of primary school children on the part of a teacher does not have significant probative value, in my assessment, on the issue whether that same person would commit penile/anal intercourse on the sons of the woman he was in a relationship with.

32. The Queensland allegations undoubtedly establish that the accused is a person of bad character and is the kind of person who was more likely to have committed the New South Wales offences. However, as McPhillamy at [32] makes clear, more is required of tendency evidence for it to be admitted pursuant to s 97(1)(b) of the Evidence Act.

33. To put it simply, the combination of the same three factors identified as having relevance to the outcome in McPhillamy has produced the same result in this case. It was not the outcome in McPhillamy that mandated the outcome in this case but the simple application of the principles identified in Hughes (both in the High Court and in the Court of Appeal), Bauer and McPhillamy to the facts in this particular case.

34. Having come to the conclusion that the tendency evidence does not meet the threshold requirement of s 97(1)(b) of the Evidence Act it is not necessary to examine in detail the submissions respecting s 101(2) of the Act concerning prejudice. However, were I to admit the evidence of the Queensland allegations I would be confident that directions could be fashioned to overcome any of the concerns identified by the accused. The experience of the courts in these matters has demonstrated to my satisfaction that juries do adhere to directions that are given to them concerning evidence admitted as tendency evidence.

THE REPORTS OF DR SHACKEL

35. Dr Rita Shackel is a professor of law and ethics. Dr Shackel has an impressive knowledge of the literature concerning the behaviour of victims of child sexual assault. Dr Shackel is not a child and adolescent psychologist or psychiatrist. Dr Shackel is not an expert in that field but rather an expert in the field of what other experts in the field have to say on the topic of the behaviour of victims of child sexual assault. Dr Shackel offers no opinion herself on how such victims behave as regards, for example, the dynamics of their complaints, (that is, as I choose to express it, the how, when and why of complaining). Dr Shackel has performed an important literature review. Her opinion, however, is really an opinion as to what other person’s opinions are in a field in which she possesses no expertise.

36. To illustrate my point Dr Shackel states:

“Research has highlighted a number of common misconceptions relating to the physical, emotional and behavioural responses of victims of child sexual abuse.”

37. The footnote to that assertion (footnote 26 p 10 of her first report) is an article by Dr Shackel titled “The beliefs commonly held by adults about children’s behavioural responses to sexual victimisation” [see (2008) 32(4) Child Abuse and Neglect 485 at pp 491 to 492]. When one goes to that article one finds that it in turn is a literature review of empirical studies concerning the beliefs of jurors and the broader community in relation to particular facets of the behaviour of sexually victimised children (p 486).

37. I do not accept the Crown’s submission that Dr Shackel has become an expert in the field of child and adolescent psychology or psychiatry by virtue of her familiarity with and study of the literature. The information referred to in the literature, generally speaking, is relevant insofar as it has the capacity to bolster the credit of the complainants and provide information that is educative (see Hoyle v The Queen [2018] ACTCA 42 at 232) but the issue at this point is not relevance, it is whether Dr Shackel is the appropriate vehicle for the introduction of this material into the trial; in my opinion she is not.

38. As to relevance certain points can be made. In the early part of the 18th century Hawkins, in Pleas of the Crown 1716-1721, said “it is a strong, but not a conclusive, presumption against a woman that she made no complaint in a reasonable time after the fact” [of sexual assault]. That assumption of “doubtful validity” (see Suresh v The Queen [1998] HCA 23) has cast a long shadow over the prosecution of sexual assault allegations. Three hundred years later research, a Royal Commission and the long experience of the courts has proved (at least to my satisfaction) the truth of Gaudron J’s observations in M v The Queen (1994) 181 CLR 487 that:

“There is one class of case which cannot be approached on the basis of an assumption of the kind discussed in Hawkins’ Pleas of the Crown, namely, cases of sexual assault on a child by a person who has the child’s trust and confidence. In cases of that kind, the victim may be reluctant to resist the offender or to protest and, on that account, reluctant also to complain. As well, a child in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment or, even, fear of rejection by the offender. (p 515)”

40. However, because of the presumed continuing significance of an absence of timely complaint on the credibility of a complainant Parliament enacted initially s 405B of the Criminal Procedure Act and then in 2006 (apparently in dissatisfaction with the High Court’s decision Crofts v The Queen) s 294 of the Criminal Procedure Act. Explanations for the absence of, or delay in, making a complaint were relevant to be led in examination‑in‑chief to neutralise the adverse inference otherwise likely to be drawn from that circumstance: see R v Davies [1985] 3 NSWLR 276 at 277F‑278B. Such explanations would now add content to the directions mandated by s 294(2)(b) of the Criminal Procedure Act. However, the credibility of such explanations when offered may be attacked. In the case of a child the complainant may not be able to articulate any reasons although they may truly exist. In consequence s 108C of the Evidence Act was enacted in 2007. It reads:

“(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if:

(a) the person has specialised knowledge based on the person's training, study or experience; and

(b) the evidence is evidence of an opinion of the person that:

(i) is wholly or substantially based on that knowledge; and

(ii) could substantially affect the assessment of the credibility of the witness; and

(c) the court gives leave to adduce the evidence.

(2) To avoid doubt, and without limiting subsection (1):

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse); and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally;

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.”

41. In my opinion evidence of the kind referred to by Dr Shackel certainly has the capacity to bolster the credit of the complainants MLD, MSD and JD and, in my opinion, given the continued forensic significance in the trial context of delay in complaint, even evidence that has the capacity to merely neutralise an adverse inference concerning credit should be assessed as being of substantial weight (see s 108C(1)(b)(ii)).

42. Conclusions to that effect have been reached in Tasmania, Victoria and the Australian Capital Territory: see Bellemore v Tasmania (2006) 170 A Crim 1 per Crawford J at [51]-[53], per Blow J at [211]‑[216]; MA v The Queen (2013) 226 A Crim R 575 at [32]‑[34]; Hoyle v The Queen at [220]‑[242]. The New Zealand Law Reform Commission (quoted in MA at [23) explained the rationale for the admission of such evidence as follows:

“...the purpose of the evidence is educative: to impart specialised knowledge the jury may not otherwise have in order to help the jury understand the evidence of and about the complainant and therefore be better able to evaluate it...the purpose of such evidence is to restore a complainant’s credibility from a debit balance because of jury misapprehension back to a zero or neutral balance.”

43. As I have indicated, the fact that a complainant may offer up an explanation for a delay in complaining does not render expert evidence on the topic irrelevant. Likewise, explanations for a staggered complaint are relevant to an assessment of credit. Expert evidence explaining that phenomena (where present in a particular case) will also be potentially relevant under s 108C, particularly in the light of s 293A of the Criminal Procedure Act which reads as follows:

“(1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant's account that may be relevant to the complainant's truthfulness or reliability.

(2) In circumstances to which this section applies, the Judge may inform the jury:

(a) that experience shows:

(i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and

(ii) trauma may affect people differently, including affecting how they recall events, and

(iii) it is common for there to be differences in accounts of a sexual offence, and

(iv) both truthful and untruthful accounts of a sexual offence may contain differences, and

(b) that it is up to the jury to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability.”

44. This section assumes particular importance when considering the evidence of JD which emerges in two separate interviews 18 months apart (12 September 2018 and 17 March 2020 respectively). Dr Shackel’s second report in particular seeks to address that topic.

45. As I have made clear I regard the information as being (in general) relevant and prima facie admissible. The issue of leave under s 192 of the Evidence Act has not been the subject of submissions at this stage. How much of the information that currently appears in Dr Shackel’s reports, as summarised initially at pp 2 to 3 of her report of 17/12/2019, could be relevant and admissible through the appropriately qualified expert will only become apparent after the cross-examination of the complainants has concluded but Dr Shackel is not the appropriate vehicle for the admission into evidence of any of that information.

46. I am fortified in my conclusion by noting that in Bellemore the expert was a psychiatrist with expertise in the area of children and adolescent victims of sexual abuse (see [206]; in MA the expert was a consultant forensic psychiatrist and assistant clinical director of the Victorian Institute of Forensic Mental Health with a special interest in sexual offending and the effects of sexual abuse upon children (see [60] through [68]; and in Hoyle the expert was an associate professor whose expertise concerning psychology was ultimately not attacked. (see [225] to [226] and [241] to [242].

47. Accordingly, I decline to admit the evidence of Dr Shackel for the reasons set out above.

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Amendments

03 November 2020 - citation corrected

18 July 2023 - Paragraphs [1] and [5] - anonymised name.

22 September 2023 - Coversheet - anonymised name of accused.

Decision last updated: 22 September 2023