R v KK

[2018] NSWDC 506

District Court

New South Wales

Medium Neutral Citation:	R v KK [2018] NSWDC 506
Hearing dates:	22, 23, 24, 25 July 2018
Date of orders:	25 July 2018
Decision date:	25 July 2018
Jurisdiction:	Criminal
Before:	S Norrish QC DCJ
Decision:	Counts 1 and 2 on the indictment be separated from Counts 4 to 7.
Catchwords:	Interlocutory orders – admissibility of tendency evidence, separate trials.
Legislation Cited:	Evidence Act 1995 Criminal Procedure Act 1986
Cases Cited:	IMM v The Queen [2016] HCA 14 Hughes v The Queen [2017] HCA 20 Ceissman v R [2015] NSWCCA 74 Pfenning v The Queen [1995] HCA 7; 182 CLR 461 JG v R [2014] NSWCCA 138 DSJ v R [2012] NSWCCA 9 Demirok [1976] V.R. 244 Webb & Hay v The Queen (1993-1994) 181 CLR 41 R v Dent [2016] NSWSC 99 R v Watkins [2005] NSWCCA 164 Saoud v R (2014) 87 NSWLR 481 BP v R [2010] NSWCCA 303 R v Carroll (2002) 213 CLR 635 R v RN [2005] NSWCCA 413 Bauer v The Queen (No.2) [2017] VSCA 176 RHB v The Queen [2011] VSCA 295 Jones v R [2014] NSWCCA 280 Mol v R [2017] NSWCCA 76 R v Shamouil [2006] NSWCCA 112
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) KK (Accused)
Representation:	Counsel: Mr R Kimbell (Crown) Mr Green (Accused)   Solicitors: Director of Public Prosecutions (Crown) McGir Lawyers (Accused)
File Number(s):	2016/41637
Publication restriction:	No publication of any information that might identify child complainants including the identity of the defendant. Each is to be referred to by a pseudonym.

Judgment

Introduction

1. The Crown has filed an indictment in the following terms that the accused:

“1. Between 26 June 2014 and 15 July 2014, at [north western suburb of Sydney] in the State of New South Wales, did have sexual intercourse with HC without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that the at the time of the sexual intercourse HC was a person aged under the age of 16 years, namely 14 years.

2. Between 26 June 2014 and 15 July 2014, at [north western suburb of Sydney] in the State of New South Wales, did assault HC a person then under the age of 16 years, namely, 14 years and at the time of such assault did commit an act of indecency on HC.

3. Between 26 June 2014 and 15 July 2014, at [north western suburb of Sydney] in the State of New South Wales, did have sexual intercourse with HC without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the sexual intercourse HC was a person aged under the age of 16 years, namely 14 years.

4. On or about 7 February 2016, at [north western suburb of Sydney] in the State of New South Wales, did have sexual intercourse with CC without her consent and knowing that CC had not consented to the sexual intercourse.

5. On or about 7 February 2016, at [north western suburb of Sydney] in the state of New South Wales, did have sexual intercourse with CC without her consent and knowing that CC had not consented to the sexual intercourse.

6. On or about 7 February 2016, at [north western suburb of Sydney] in the State of New South Wales, did have sexual intercourse with CC without her consent and knowing that CC had not consented to the sexual intercourse.

7. On or about 7 February 2016, at [north western suburb of Sydney] in the State of New South Wales, did assault SS and at the time of the assault committed an act of indecency on SS.”

1. The accused has pleaded ‘Not Guilty’ to each of these counts. The complainants in Counts 4 -7 inclusive are siblings and related to the accused. The complainant in Counts 1 – 3 is unrelated to the accused’s relatives.

2. The prosecution has served upon the accused’s legal representatives a number of “Tendency Notices” in accordance with the Evidence Act 1995. The details of the most recent Notice are set out later. A number of matters pleaded as relevant tendencies as recently as 17 July 2018 are now not pressed by the prosecution.

3. The prosecution wishes to rely upon the evidence of each complainant as evidence of “tendency” in proof of guilt of the accused in relation to the allegation(s) of other complainants in particular ways. As I understand it the Crown also wishes to rely upon the evidence of a complainant on one count as evidence of tendency in respect of other counts concerning the same complainant. As it transpires this does not appear necessary because of ‘admissions’ made by the accused.

4. The prosecution also wishes to establish relevant tendencies from the evidence of “other complainants” and a witness who does not allege any misconduct against her, but as a supporting witness for the evidence on one of the “other complainants”. These courses are opposed by the accused. He seeks the “exclusion” of “tendency reasoning” in proof of guilt of any of the counts. The accused also seeks to separate Counts 1 – 3 from Counts 4 – 7, by Motion filed.

5. Other pre-trial applications of the accused which are relevant to the above matters are:

1. Trial(s) by Judge (see s 132 Criminal Procedure Act 1986), by Motion filed.

2. Exclusion of evidence of the complainant for Count 7 in relation to alleged indecent assaults in South Africa in 2006 contained in a statement dated 17 July 2018 (see s 146 Criminal Procedure Act 1986). Complaint being failure of the Crown to comply with “disclosure” requirements. This evidence is said by the prosecution to be particularly relevant to “tendency” issues in respect of Counts 1 – 3.

3. An adjournment due to the unavailability of a potential witness as a result of late service of the statement of 17 July 2018. This application is not currently pressed, but is in part relevant by the motion filed in relation to the s 146 application.

1. There have been other admissibility issues raised such as, parts of the pre-recorded evidence of HC (which has been resolved), objections to the choice of support person for this complainant (to be resolved) and objection to hearsay evidence from an “unavailable witness” (pursuant to s 65 Evidence Act1995), which issues are largely resolved. That witness is an investigating police officer.

2. There are no issues from the accused as to adequate “Notice”, save for the s 146 Criminal Procedure Act issue. Nor has issue has been taken by the Crown with the filing of Motions by the defence.

The Crown case

1. The Crown case in relation to the specific allegation counts, without regard to tendency evidence and events leading up to the arrest of the accused is set out in the ‘Crown Case Statement’ which is in the following terms:

“During the July school holidays in 2014, the complainant HC (then aged 14) attended a house party with a friend (then aged 14) following an invitation via ‘Facebook events’. The party was at the accused parents’ home in Northern Sydney. The accused was aged 26. The complainant didn’t know the accused however knew he worked at a gym.

When the complainant got to the party, the accused greeted her and told her he was 18 years of age. The complainant told the accused she was 14.

During the night, after she had been at the party for about an hour or so, the complainant consumed one drink that the accused made for her.

The drink was Russian vodka mixed with orange juice.

The complainant “felt weird” about 10 minutes after drinking it, like he had spiked her drink with something.

The complainant was socialising with her friends on the tennis court area. The complainant danced for a bit and at some point she started crying. The complainant told her friend she wanted to go home.

The complainant threw her phone. Her friend went and picked it up.

The accused came over and told her to come in and wash her face.

Her friend stayed with D, a ‘mate’ of the accused.

The accused and complainant went into a bedroom and he sat the complainant on the bed. The accused started kissing the complainant.

The accused pushed the complainant back on the bed. The accused leaned over the complainant’s body and touched her on the vagina on top of her clothing.

The accused put his hand into the complainant’s underwear and inserted his fingers into her vagina (Count 1).

The accused took his penis out of his pants and put the complainant’s hand onto his penis (Count 2).

The accused was lying on top of the complainant and pulled her pants down. The complainant described a “really sharp pain” and felt something going inside her vagina. The accused forced his penis inside the complainant’s vagina (Count 3).

The complainant described it as hurting and told the accused to “stop doing that”. The complainant began to cry.

The complainant immediately pushed the accused away from her. The complainant said to the accused “why would you do that to me” to which the accused said “shhh don’t cry”.

The complainant ran out of the room to find her friend. The party had finished. They left the party.

The complainant saw the accused on a further occasion, when she was in attendance at a New Year’s Eve Party at his house.

A school friend J spoke to HC over Skype. She told him that she had three Cruisers and then got a drink from “KK”, that she started to feel like she was going to vomit and that the room was spinning, that KK took her to a room, “started doing stuff” and “raped her”. She told him that she thought he spiked her drink. Once she realised what was happening, she ran out of the room crying and her friend ran after her.

One evening whilst at home half way through 2015, HC’s mother heard her daughter speaking to someone over the phone about being raped, then had her other daughter confront HC about it. From the discussion, the mother found out from her daughter that she was at a party the previous year, where someone called “[KK]” made her a drink, after which she felt funny and dizzy within 5 minutes and [KK] took her to his room away from everyone and “did things to her”. HC kept saying that she didn’t want to do it. HC said that she was crying and he told her to be quiet and that he said no one to know what has happened.

She came to learn that penetration occurred but was not aware of the details. She refers to the complainant speaking to someone at Youth Hope, Wesley Mission and believing that person encouraged HC to speak to JIRT, which she eventually did.

On 18 June 2015, HC, attended Parramatta JIRT office and provided a recorded interview.

Prior to October 2015, Detective Samantha Simpson was allocated as the officer in charge. The investigation was still current at the time she resigned from NSW Police Force.

In October 2015, Detective Sergeant Munro allocated Detective Senior Constable Lindsay Odendaal as the officer in charge.

On 29 October 2015, both police officers met with the complainant and her mother.

Over the following months, Detective Senior Constable Lindsay Odendaal continued to make enquires and Detective Sergeant Munro monitored the investigation.

The accused was charged on 9 February 2016.

Complainants CC and SS are relatives of the accused. CC normally resides in South Africa, however at the time of the alleged offences was in Australia with her sibling SS on a working holiday.

On 5th February 2016, it was the birthday of the siblings. At the time they were staying at the accused’s parent’s house at Northern Sydney.

On 6th February 2016, DH and KH (parents of the accused) held a party at their home at Northern Sydney. The party was called an ‘end of summer party’. It was due to start about 3pm. CC and SS assisted their aunty in preparing the party on the day, and then went to get themselves ready about 2.45pm. CC got dressed into a white short dress. Whilst they were getting ready, CC and SS each had a glass of champagne. They finished getting ready about 3.30pm, and then started mingling with party guests. CC had a couple more glasses of champagne. After a couple of hours at the party, CC drank 2 or 3 cosmopolitan cocktail drinks (vodka, cranberry juice, lime and some other alcohol). Later in the evening, CC started having shots of peppermint liqueur and cognac. A lot of the party guests left around 9.30pm. CC was still dancing on the back patio area with younger people including SS, the accused girlfriend JJ, the accused and also another friend of the accused. CC was going in and out of the lounge room area, then back outside to change the music.

On one occasion when she went inside to change the music, the accused stood next to her and put his hand on her bum. CC ignored him, but thought to herself, “OK, that’s a bit inappropriate”.

Someone dared the accused to put a girl’s bikini on. The accused came out of the house to the pool area wearing either SS or CC’s bikinis. CC did not assist him in putting this on.

The accused ended up in the pool. CC did not interact with the accused much at all.

Soon after, CC decided to have a rest on the lounge as she was intoxicated and tired. CC passed out on the lounge. Whilst she was asleep on the lounge in the lounge room, there was a loud altercation right near her involving the accused and his brother. A window was smashed during the altercation. Police were called and in attendance. CC did not wake at all during this period and had no knowledge of it happening until the following day when told by her sister.

After the Police left, SS picked CC up off the lounge. She had to support her body weight, and assisted her to their bedroom. SS lay her sister on the bed, still wearing her white dress. SS left her on the bed as she was sleeping. SS left the room.

The next memory CC has is being in the bed that she and her sister had been sleeping in on their holiday. She recalls waking briefly and the accused was on top of her, kissing her. She had the feeling of being so drunk, that her eyes were rolling back in her head. When she woke for those few seconds when he was kissing her, she thought to herself, “Why is this happening”. She did not consent to this, nor did she want this to happen.

Some moments later, she recalls coming through (sic) again, and the accused was performing oral sex on her (Count 4). She recalls thinking to herself, “hit him”, but she couldn’t as she was so affected by alcohol. Again, she did not consent to this, nor did she want this to happen. She passed out again.

CC came through (sic) a third time. She felt immediate pain to her vagina, and saw that the accused was having penile/vaginal intercourse with her (Count 5). It was very painful for her. She said something like, “What the hell is happening? We are cousins”. Again, she did not consent to this, nor did she want this to happen. She thought to herself, “How do I get out of this”, and thought, “Just roll off the bed”. CC then ended up on the floor.

At some point, SS went back in to check on CC. CC was sitting on the bed with no bra on. SS formed the opinion that she may have been trying to change herself. The accused’s girlfriend was possibly in the bedroom, and then the accused walked in and was laughing. SS asked him to get out of the bedroom. SS changed CC into her pyjamas, being a white shirt with a love heart on the front, and a pair of black shorts with the word ‘Love’ written all over them.

SS went to a different bedroom, to go to bed. She left CC in the other bedroom where she was, and JJ and the accused were in there. The room SS went to had a queen size bed, and is towards the front of the house. Sometime after, CC left the room she was in and walked to the bedroom SS was in. CC was not comfortable being in the room that the accused and his girlfriend were in.

CC said, “[SS], [SS], where are you? Where are you? I want to come sleep with you. I don’t want to be away from you.” CC walked into the bedroom where SS was. The accused followed directly behind CC into the front bedroom. CC got into the bed and spooned up against her sister. The accused got into the bed behind CC.

SS received a telephone call from her mother in South Africa, and walked out to a different room in the house to speak with her. SS spoke with her mother for about 15 minutes; they were discussing the earlier altercation in the lounge room when the Police attended.

She returned to the bedroom and CC was asleep. When SS returned to the room, the accused said to her, “Is everything ok? You seem stressed”. SS told him not to worry about it, and she was rubbing her own shoulders. The accused offered to give her a massage, however SS declined. The accused kept saying he was trained in giving massage and could fix it for her. The accused told SS to lie down, however she remained standing. The accused kept telling her to lie down. He was being very persistent in wanting her to lie down. SS’s guard went up, and she became short with the accused. The accused left the room to get some massage oil. The accused returned with the oil, and told her to lie down. SS said “No. It’s only my shoulders, not my back”. The accused kept trying to get SS to take her shirt off. CC was still sleeping next to SS. SS eventually lay down on the bed, and moved her shirt up halfway, exposing the lower part of her back. The accused straddled across SS. He massaged her back, and moved his hands up under her shirt to her shoulders. As the accused was massaging SS, he was moving the rest of his body. SS felt as though the accused was grinding himself on her in a sexual way. SS could feel the accused erect penis on the lower part of her back as he massaged her.

SS then received another call from her mum, and moved to a different room where the phone reception is better. SS spoke with her mum for another 15 or 20 minutes.

It is at this stage that it is alleged the accused again sexually assaulted CC in that bedroom whilst SS was out of the room talking to her mother. The accused did this by inserting his fingers in and out of CC’s vagina without her knowledge or consent (Count 6), and recorded himself doing so on his mobile phone as described earlier. Before SS left the room for that phone call, CC was sleeping. CC had no knowledge of this sexual assault or recording until she was informed of the details of the recording by investigators.

After speaking with her mother, SS returned to the bedroom where CC and the accused were in bed. SS thought that CC and the accused were asleep when she returned. She tried to sleep, however she wasn’t feeling well due to heart burn. This is a common occurrence for SS. SS tried to make herself vomit in the en-suite bathroom. SS was yelling out to CC to come and help her, which was a very short distance away. After a while, CC came into the bathroom. SS asked her to get her toothbrush from the other bedroom. CC was gone for about 5 minutes.

Whilst CC was away, the accused came into the bathroom. SS was squatting in front of the toilet. The accused got into the same position, squatting behind her. He asked if she was ok, then kissed her on top of her head. He wrapped his arms around her, rubbed her arm and was saying, “It’s going to be ok”. The accused started rubbing SS’s leg, then rubbed under her shorts on her bum cheek. SS said, “Ah ah [KK], that’s enough”. He stopped rubbing her leg, and then rubbed her shoulders. The accused then returned his hand to SS’s leg, and moved his hand into her pyjama shorts. SS wasn’t wearing any underwear under her pyjama shorts. The accused moved his hand onto SS’s vagina and was touching her vagina aggressively (Count 7). SS then elbowed the accused and said, “[KK] that’s enough”. The accused said, “I didn’t mean it. I love you”. SS stood up and washed her hands. The accused left the bathroom.

CC arrived with a toothbrush and toothpaste for SS. After brushing her teeth, SS returned to the bedroom. At about 4am, the accused said something about having to sober up or going back to see his girlfriend JJ, who was asleep in another bedroom.

At approximately 6am, he opened their bedroom door and said goodbye. SS and CC were in bed sleeping together at the time. CC was very sick that day, vomiting a number of times.

On 9 February 2016, Detective Sergeant Munro attended an address of the accused in the company of a number of other police.

The accused was placed under attest in relation to a number of sexual abuse allegations relating to a number of females including HC.”

On Thursday 18 February 2016 a review was commenced of the accused’s mobile phone. There are a number of video files on that device that appear to have been recorded directly onto the device using the camera. Police believe the camera was being operated and held by the accused in his hand.

Police located 6 sequential videos involving the filming of CC. Two videos were located in the “Recently Deleted” folder of the phone.

The first video was recorded at 11.45pm on 6 February 2016. The first recording lasts for 1:03 minutes. There is a female lying on her side, wearing a white dress or top and white coloured g-string underwear. From the video, the accused appears to be assisting this female into a bed. Once she lays down, he records on his phone, and moves the camera very close to her anus. CC is facing away from the accused and his camera, laying on her side and appears to have no knowledge that the accused is filming her private parts. The accused appears to cover the phone camera, or place it down on the bed when another female seems to come into the bedroom and speak with the accused. The accused is heard to ask this female to get a glass of water for “her” (CC). The female leaves and the accused moves the camera back onto the private parts of CC, who is motionless, and in essence in the foetal position attempting to go to sleep.

The second recording starts only seconds later, and again focuses on her anus as she is lying on her side. The accused is heard to say, “Are you awake” There is no response from CC. He then moves around before telling her to sit up so he can take her top off. The accused takes off her white top and she lays back down on the bed. It appears as though he is attempting to assist her in going to bed, but at the same time takes this recording of her private parts whilst she is in a heavily intoxicated state lying motionless on the bed. The accused is seen wearing a pair of multi-coloured shorts, which were also located at his home during the search warrant on 23 February 2016. A brief image of the accused’s face is also seen; as is a distinct tattoo on his chest (he was wearing no shirt).

A further video was created about 4 hours later in the early hours of Sunday 7 February 2016. The video depicts the same female as in the earlier video, being his first cousin CC. On this occasion, she has moved from the bed where the first recording was made, to a different bedroom in the same house where her twin sister was sleeping. This is a larger queen size bed. CC was asleep, and was now at this stage wearing a short pair of navy pyjama shorts with the word ‘love’ written on them a number of times. She is asleep, and motionless. CC is laying on her right side again in the foetal position with her legs pressed against each other and curled up. She is facing towards her twin sister SS. The accused slides into the right side of the bed behind CC. The accused somehow slides her pants and underwear down enough below her bottom/genitalia. She remains asleep. The accused then uses his right hand to move apart the buttocks of his cousin CC. He then uses his middle finger and inserts it inside CC’s vagina. He moves it around for 20 seconds before taking it out. She does not move, and the recording finishes.

In February 2017, investigators went to South Africa and obtained a statement from CC. She provided further information in respect of the offences, as did her sister SS.

Their statements were obtained on 20 February 2017.”

1. Some parts of the Crown Case Statement, relating to other evidence not of relevance to the applications, have been edited.

2. The Crown has produced a document, which sets out a chronology relating to the “Other Complainants” by reference to Court Attendance Notices which have been exhibited. All these allegations are triable in the Local Court.

3. That “Chronology” in its terms is annexed to this judgment.

4. A number of these allegations have been dismissed at the Local Court (where various matters have been tried in front of three different Magistrates). Some were dismissed “on the merits” (which informants are not relied upon in this trial). Another complainant failed to appear to give evidence and then declined to give evidence at the Local Court (MY aged 16 at the time of relevant events). This potential witness the Crown wishes to call in the trial. It is agreed that if her potential evidence is admissible some form of “Basha inquiry” will be required and that the prosecution will not open upon her evidence if it is relevant to the proceedings.

5. The prosecution of the summary matters occurred after this matter was listed for trial in September 2017.

6. Some of the “other complainants” alleging conduct of a sexual nature are SK (aged 18), MW (aged 18), JH (aged 36), PN (aged 47), and EA (aged 16).

7. There is also evidence relied upon set out in the statement of a male adult, in relation to observations of the accused’s conduct towards MY and communications by text between himself and the accused, which include denials of criminal wrong doing by the accused.

8. The “Tendencies” claimed to be had by the accused (with the ‘relevant’ witnesses to establish the tendency in parentheses) are set out in the latest “Notice”, originally dated 17 July 2018, but amended again on 24 July 2018.

9. It relevantly is in the following terms:

Tendency Notice

Notice is hereby given that the Prosecution presently intends to adduce evidence of “tendency” pursuant to the tendency rule in sub-section 97(1) of the Evidence Act 1995, i.e. evidence of the character, reputation or conduct of a person, or tendency that a person has or had 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.

1. The person whose “tendency” is the subject of the evidence sought to be adduced is KK. Whilst this will most often be the accused, sometimes it will be another person such as the victim

2. The tendency sought to be proved is his tendency to have a state of mind, namely:

1. Having a sexual interest in female children of 16 years and under (a male, EA, C and SS);

2. Having a sexual interest in his female cousins (CC & SS);

3. Having a sexual interest in sleeping females or females adversely affected by being under the influence of alcohol and/or drug (CC, SS, MY, C);

1. The tendency sought to be proved is his tendency to act in a particular way, namely:

1. To target younger females of 17 and under (EA, MY, C);

2. To isolate himself with female guests in his family home, in particular inside a bedroom (CC, C, MW, EA);

3. To kiss or attempt to kiss females in social situations without their consent (Y, C, CC);

4. To take advantage of females under the influence of alcohol (C, CC, SS, Y);

5. To press his body against females with his penis region against their body (CC, SS, EA, Y);

6. To force the hand of a female onto his penis without prior consent (C, Y);

7. To put his penis into females vagina’s without consent (C, CC);

8. To put his finger or fingers in females vagina’s without consent (C, CC, SS);

9. To lie or attempt to lie on or in bed with female associates (CC, SS, EA, Y);

10. To “spoon” in bed with a female prior to sexual interaction (CC, SS, Y);

11. To use his mobile phone to record the intimate areas of females without their permission (CC, Y);

1. In the view of the lawyer with the current conduct of the matter, the tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue:

1. Whether KK touched the complainants as alleged;

2. Whether KK forced the complainant to touch the accused as alleged;

3. Whether KK sexually and indecently assaulted the complainants as alleged;

4. Whether each of those alleged assaults were accompanied by or also comprised acts of indecency;

5. Whether KK filmed the complainant CC;

6. The state of mind of KK as to consent.”

1. A tendency chart has been tendered by the Crown in relation to the material available in Statement form.

Material from the accused relevant to the applications

1. In the course of submissions of the counsel for the accused he indicated that the ‘facts in issue’ for the accused’s case were.

1. Whether the relevant complainant named in the indictment did not consent, and/or

2. Whether the accused knew the relevant complainant named in the indictment was not consenting.

1. The accused has tendered “Admissions” pursuant to s 184 Evidence Act 1995.

2. The admissions made by the accused are as follows:

“Admissions pursuant to section 184 Evidence Act 1995

Counts 1, 2 & 3

1. At all material times the accused’s parents resided on a semi-rural property at Northern Sydney.

2. In July 2014 the accused and others organized for a party to be held at the Northern Sydney property.

3. The accused was consuming alcohol at the party.

4. In July 2014 HC attend the abovementioned party at Northern Sydney.

5. The accused and HC had not met before she attended the party.

6. The accused admits that he entered a bedroom of the house at Northern Sydney with HC. The only people in the bedroom at the time were the accused and HC.

7. The accused admits that he kissed HC whilst they sat on a bed inside the bedroom.

8. The accused admits that he used his hand to rub HC on her vagina under her clothing. The accused admits that at some stage he took his penis out of his pants whilst kissing HC. The accused admits that he placed his fingers inside her vagina.

9. The accused admits that he had penile vaginal intercourse with HC.

Counts 4, 5 & 6

1. CC and SS are relatives of the accused.

2. On 6 February 2016 there was a party at the Northern Sydney property. CC and SS were staying at the Northern Sydney property at the relevant time.

3. The accused admits in the course of the evening of 6 February and early hours of 7 February 2016 he had oral sex and penile vaginal sex with CC.

4. The accused admits that he took video images of CC on his mobile phone.

5. In all the relevant images the female depicted is CC and the male depicted is the accused.

6. The accused admits that he recorded himself placing his fingers inside CC’s vagina.”

Other material produced

1. At the Court’s request the Crown has also tendered transcripts of the evidence of the “other complainants” at the Local Court. This evidence is not included in the Chart prepared by the Crown. The disputes in relation to the various witnesses called at the Local Court are many and varied.

Matters largely not in dispute

1. Neither the prosecution nor the defence took me to the transcripts, subject to a matter of purported “contamination” concerning the potential witness Julie Hall. That matter was discussed with counsel for the accused and in my view fell short in limine of any suggestion of relevant concoction and/or contamination.

2. The parties suggested that the evidence of these witnesses was “largely” in accord with their statements. Some of these “complainants” met the accused in a social setting, some met him or had contact with him in his capacity as a “gym instructor”.

3. The ‘Notice’ and the ‘Chart’ show that not all “complainants”, in the indictment and in the Local Court proceedings, are relied upon as supporting the existence of a particular tendency. Some claimed “tendencies” are common to the complainants identified in the indictment but not all.

4. A number of claimed tendencies are “evidenced” by one or other of the complaints in the indictment and one or other of the “other complainants” concerned with the Local Court proceedings.

5. “Common Tendencies” that would justify joinder of Counts 1 – 3 with Counts 4 – 7 are particularised at 2a), 2b), 2c), 3b), 3c), 3g), 3h).

6. Amongst all the “complainants” there is no underlying unity or modus operandi other than a general interest in sexual contact in various and many ways with women of a great range of ages.

7. Not all of the “other complainants” give evidence of a relevant “tendency” concerned with all the complainants in the indictment.

8. As indicated earlier, the prosecution has produced in relation to the tendency issues a number of “evidentiary documents” including all relevant statements, the transcript evidence at the Local Court in relation to the “Other complainants… and related witnesses”, as well as oral evidence from two police officers, in addition to their statements from 2017 and more recently in July 2018 as to the circumstances in which the complainant SS made allegations of events in 2006 to be relied upon for tendency purposes.

9. The proceedings in the Local Court are ‘Part Heard’ although the Crown case in each matter is concluded. The matters return to court in November 2018 for further evidence and submissions. As I understand it, the “actions” giving rise to the allegations are in dispute.

Re Tendency Evidence – The principles to be applied

1. S 97 of the Evidence Act relevantly provides;

“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:

1. 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

2. 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...”

1. S 101 of the Evidence Act relevantly states:

1. This section only applies in a criminal proceeding and so applies in addition to ss 97 and 98.

2. 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.

1. In IMM v The Queen [2016] HCA 14, the High Court held that in assessing the probative value of evidence the Court must proceed on the assumption that the evidence is accepted, that is credible and reliable (at [48]).

2. In IMM the majority (at [46]) stated that:

“The significance of probative value of the tendency evidence must depend on the nature of the facts in issue to which the evidence is admissible and the significance or importance which the evidence may have in establishing those facts. So understood, the evidence must be influential in the context of the fact-finding.”

1. In IMM the court observed (at [62] – [63])

“In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.

Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.”

1. In the context of the Dictionary (of the Evidence Act) definition of “probative value” of the majority of the High Court in Hughes v The Queen [2017] HCA 20 stated (at [16]):

“Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent… the starting point requires identifying the tendency and the fact or facts in issue which it is adduced to prove”

1. The majority said (at [20])

“Tendency evidence depends for its probative value on how persuasively it can be reasoned that the person will behave in a way that is consistent with the tendency.”

1. The majority further said at [40] – [42]

“In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford: "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

Unlike the common law which preceded s 97(1)(b), the statutory words do not permit a restrictive approach to whether probative value is significant. However, the open-textured nature of an enquiry into whether "the court thinks" that the probative value of the evidence is "significant" means that it is inevitable that reasonable minds might reach different conclusions.”

1. At [64] the majority further stated:

“The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all 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.” (Emphasis added).

1. Issues relevant to these matters will include the nature of the proceedings and whether matters are required to determine “beyond reasonable doubt” (Hughes at [16]): the number of occasions the particular conduct occurred in the context of all the evidence relevant to that issue (Bauer v The Queen (No.2) [2017] VSCA 176: RHB v The Queen [2011] VSCA 295 (at [20]), the time gap between charged events and the claimed evidence of tendency (R v Watkins [2005] NSWCCA 164 (at [36]) amongst other matters.

2. A tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in relevant acts to the claimed tendency (Hughes at [37]).

3. Competing inferences arising from the evidence relevant to establish a particular tendency are relevant to the assessment of the “probative value” of evidence of a particular tendency (DSJ v R [2012] NSWCCA, JG v R [2014] NSWCCA 9). Such other evidence may “reinforce” evidence otherwise lacking “significant probative value” (Hughes at [62]) or may weaken the inference of “tendency” sought to be established (JG), Jones v R [2014] NSWCCA 280 at [88] – [90].

4. This in terms of s 97 requires consideration of “other evidence adduced or to be adduced by the party seeking to adduce the evidence” (s 97(1)(b)).

5. As to the operation of s 101 of the Act, in the context of its terms the Court of Criminal Appeal in Hughes ([2015] NSWCCA 330 at [189] – [193]) held (not granted special leave for the High Court Appeal):

“Section 101(2) provides that tendency evidence cannot be used against a defendant in a criminal trial, unless its probative value substantially outweighs its prejudicial effect on the defendant. The section involves an evaluative judgment by the trial judge, not the exercise of a discretion: see R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at [94]-[95], although it is accepted that the principles in House v The King [1936] HCA 40; 55 CLR 499 apply to the appellate review of a determination made under s 101(2). see Ford at [110]; DAO at [170]; Fletcher at [48]. As Simpson J (Kirby and Schmidt JJ agreeing) stated in DAO at [170]:

“What is involved under s 101 is quintessentially a judgment – a judgment as to the probative value of the evidence relative to any potential prejudicial effect. That, no doubt, is why it is established that a so called ‘decision’ (read judgment) under s 101 is reviewable only on House v The King principles.”

1. The determination to be made under s 101(2) requires the trial judge to engage in a balancing exercise. As explained by this Court in Ceissman v R [2015] NSWCCA 74at [36], in relation to coincidence evidence, although the same principles apply in respect of tendency evidence:

“The question [under s 101(2)] requires an evaluation of the probative value of the evidence balanced against an evaluation of its potential prejudicial effect. Both evaluations are to be undertaken by the trial judge on the basis of the information available at the time its admission is determined. The first evaluation (of probative value) is to be made on the assumption that the evidence said to constitute coincidence evidence is accepted by the tribunal of fact: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228.”

1. As is the case with s 97, the “no rational explanation” test as held in Pfenning v The Queen [1995] HCA 7; 182 CLR 461 no longer reflects the appropriate consideration of the matters to be balanced under s 101(2): see Ellis at[95]-[96]. As Campbell JA stated in Ford, at [64]:

“The proper carrying out of the balancing task requires the judge to identify the type or types of prejudicial effect it may give rise to, and why it is that the judge has reached the view that the probative value of the evidence substantially outweighs (or does not substantially outweigh, as the case may be) any such prejudicial effect: R v Harker [[2004] NSWCCA 427] at [47], [58]; R v RN [2005] NSWCCA 413.”

1. In Sokolowskyj, the Court (Hoeben CJ at CL Adams and Hall JJ agreeing) held, at [47], that “[t]he concept of ‘prejudicial effect’ is understood in substantially the same way as ‘unfair prejudice’”,as the latter term is used in s 137, namely, that there is a risk that the evidence will be misused by the jury in an unfair manner: see also Gardiner at [57]; Ford at [55]. The question for determination under s 101(2) is whether probative effect outweighs that prejudicial effect. The section calls for a determination of the “prejudicial effect” the evidence “may have on the defendant” (emphasis added). In DAO, Simpson J considered, at [171], that such terminology meant that:

“… it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect.” See also R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 at [32].

This observation in DAO is to the same effect as observations made in Sokolowskyj. It is a function of the trial judge in a jury trial to give such directions in order to ensure a fair trial.”

1. In Hughes from the High Court judgment, in obiter remarks, the majority stated (at [17]):

“In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.”

1. The court may mitigate or remove the prejudicial effect of tendency evidence by direction (Mol v R [2017] NSWCCA 76 at [36]), the character of relevant prejudice should be specifically identified (Mol op. cit.).

2. This risk in s 101(2) of the Act is concerned with the risk “that the evidence will be misused in some unfair way (e.g.) by provoking an irrational, emotional or illogical response by giving the evidence more weight than it truly deserves or by distracting the jury (R v Shamouil [2006] NSWCCA 112 (at [72])).

Submissions of the parties

1. The parties, particularly the accused’s counsel, made a number of supplementary oral submissions to the written submissions, particularly in the context of discussion with the Bench and the amendments to the Tendency Notice (settled on 24 July with an amended form of the Notice dated 17 July 2018). These and other submissions have been taken into account and are specifically reflected in the consideration of the relevant issues to be decided.

2. As to the essence of their submissions in writing the following are the principal matters litigated.

3. The Crown submits in relation to the issue of “tendency” admissibility:

“The Crown relies on the evidence of each of complainants named on the indictment as tendency evidence in respect of all of the other counts on the indictment.

The Crown relies on six (6) other female complainants as tendency evidence in respect of all counts on the indictment. The Crown also relies on LP in relation to the alleged tendency by the accused to have a sexual interest in female children of 16 years and under…

In the present trial it is likely that the defence case on each count will be that the complainant has fabricated his (sic) account. The issue at trial is likely to be twofold: first, whether the accused engaged in the conduct alleged at all; and secondly, whether any conduct in which he did engage was innocent.

The tendency evidence points to the accused having a tendency to have a sexual interest in females and in the way described and he was willing to act out that sexual interest.

While there are similarities, there is also a “pattern of behaviour, modus operandi, system or pattern and common threads”.

The proposed evidence shows the accused’s state of mind, and strongly rebuts the possibility of accident. It has significant probative value, which substantially outweighs the prejudicial effect it may have on the accused (s 97(1)(b), s 101 Evidence Act).

It is submitted that the proposed evidence is relevant and admissible, and application of the statutory provisions and relevant authorities leads to the evidence being admissible.”

“The Crown submits that tendency evidence should be admitted.

In relation to Counts 1-7 the Crown relies on s 29(1) the various offences involving a series indecent and sexual assaults of the same or similar character committed by the accused between the period 2014-2016 in the same premises at Kenthurst. The complainants were all females aged between 14 and 22.

The evidence has significant probative value under s 97(1)(b). Under s 101(2) the Crown submits the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.”

1. Further in relation to the related separate trial application

“The Crown submits under s 21 Criminal Procedure Act, the accused has an onus of showing that there is a reason for a separate trial and the Crown submits they have not discharged that onus.

The Crown submits under s 29(1)(c) the offences form or are a part of a serious of the same or similar character.

In relation to Counts, the Crown relies on s 29(1) the various offences involving a series indecent and sexual assaults of the same or similar character committed by the accused 2014 and 2016.

The Crown submits that Counts 1-7 should not be separated for the reasons outlined above including the admission of tendency evidence.”

1. The accused submits in his written submissions:

“The Crown alleges the accused has (a number of) specific tendencies in relation to having a certain state of mind and (a number of) specific tendencies to act in a particular way. None of these tendencies are common to each tendency witness and some of the alleged tendencies give rise to competing inferences.

In JG v R [2014] NSWCCA 138, Simpson J said that, on the authority of DSJ v R [2012] NSWCCA 9, competing inferences are potentially relevant to an assessment of probative value in relation to s 97, because s 97 requires consideration of other evidence adduced or to be adduced by the party seeking to adduce the evidence.

Furthermore, there is a real issue as to concoction and contamination, firstly, in relation to the allegations of CC and SS, and secondly the other tendency witnesses the accused contends were cultivated and improperly influenced by Detective Lindsay Odendall.

The probative value of the tendency evidence is not significant when one considers the competing interference the Crown itself asks the Court to draw from the evidence and in light of the real risk of significant contamination of the evidence. The test mandated by s 97 of the Evidence Act is not satisfied.

The prejudice with which s 101(2) is concerned is the ‘risk that the evidence will be misused by the jury in some unfair way, for example, by provoking an irrational, emotional or illogical response, or by giving the evidence more weight than it truly deserves, or by distracting the jury’.

That is to say, it is not unfairness per se with which s 101 is concerned, it is whether there is an unacceptable risk that the jury will use the evidence in a way “logically unconnected with the issues in the trial”.

The question with which s 101 is concerned is the prejudicial effect the evidence may have, and the Court ought take into account the “ameliorating effect of any directions that may be available to reduce the prejudicial effect”.

Beyond the ‘generic prejudice’ that arises in many cases of this type, there are a number of specific identifiable prejudices that arises in this case. Primarily, two of the allegations only relate to alleged sexual misconduct towards a child under the age of consent and one of those allegations is historic in nature when the accused himself was perhaps only 16 or 17 years of age.

The disgust and/or revulsion that one or more members of the jury may experience by reason of those allegations raises the real issue of prejudice. The tendency the Crown seeks to prove, that the accused has a sexual interest in female children of 16 years and under, in the face of strongly competing inferences, is of such little probative value that it cannot outweigh the prejudicial effect that evidence carries.”

1. The issue of the relevance of “concoction” and “contamination”, considered in the written submissions of both parties in respect of the issue of admissibility of evidence for tendency purposes, does not arise practically for consideration. There is no need to dwell upon the authorities as there is no evidence of contamination or concoction by or between HC and the two relatives of KK, nor between either of these persons and the so called “other complainants”.

2. This issue was submitted to arise from the character of the police investigation. But no evidence has emerged that “contamination” or “concoction” has occurred by reason of the investigation per se. This was conceded by counsel for the accused.

Separation of counts

1. The application of the accused in respect of the form of the indictment is that Counts 1 – 3 be separated from Counts 4 – 7. If the evidence of the first complainant is not admissible as “tendency” in respect of the other two complainants and “vice versa”, having regard to the terms of s 21 and s 29 Criminal Procedure Act 1986 (CPA), my understanding of the matter is that the only basis reasonably open for joinder of all the complainants is the commonality of evidence between the witnesses for tendency purposes. It is agreed by the accused that despite the terms of the relevant Motion filed on this matter that the allegations of the accused’s relatives are to be tried together. Putting aside ‘tendency’ issues as between them, the relevant events are connected in time and place. Any issue of “contamination” or “concoction” in relation to them can only be ventilated properly by joinder.

2. S 21 CPA states:

21 Orders for amendment of indictment, separate trial and postponement of trial

1. If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

2. If of the opinion:

1. that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or

2. that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,

the court may order a separate trial of any count or counts of the indictment.

1. If of the opinion that the postponement of an accused person’s trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary.

2. An order under this section may be made either before trial or at any stage during the trial.

3. The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial:

1. if the order is made during the trial, the court may order that the jury be discharged from giving a verdict:

1. on the count or counts in respect of which the trial is postponed, or

2. on the indictment,

3. as the case may be,

1. the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced,

2. subject to the Bail Act 2013, the court may commit the accused person to a correctional centre.

1. Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

1. S 29 CPA states:

29 When more than one offence may be heard at the same time

1. A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:

1. the accused person and the prosecutor consent,

2. the offences arise out of the same set of circumstances,

3. the offences form or are part of a series of offences of the same or a similar character.

1. A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances:

1. the accused persons and the prosecutor consent,

2. the offences arise out of the same set of circumstances,

3. the offences form or are part of a series of offences of the same or a similar character.

1. Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

1. On this issue the Crown’s written submissions largely are concerned with the joinder of the accused persons, not counts. The issue of what constitutes the “interests of justice” (s 29(3)) may overlap with considerations in s 21(2) CPA.

2. Relevant legal issues are set out by the prosecution in its written submissions. In part, they are as follows:

“The trial judge has a discretion to grant separate trials for various counts in the indictment or for various accused persons, where a joint trial would work an injustice to the accused. The exercise of that discretion will not lightly be interfered with on appeal: R v Guldur (1986) 8 NSWLR 12; 25 A Crim R 271 but see Verma v R (1987) 30 A Crim R 441; BC8701074. The accused has an onus of showing that there is a reason for a separate trial and in an appropriate case this may require that the accused adduce evidence of the prejudice to be suffered so that it can be tested by the Crown: R v Bikic (2000); [2000] NSWCCA 106.

1. Matters of the public interest are not irrelevant. In Demirok [1976] V.R. 244 King CJ stated at 254:

“The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials’”.

1. In Webb & Hay v The Queen (1993-1994) 181 CLR 41 per Toohey J at 89, Mason CJ and McHugh J (at 56) agreeing, it was stated

“…(I)t is necessary for the judge to consider the interests of justice as well as the interests of the (accused). The interests of justice do not mean only the interests of (the accused). There is an additional interest in conserving costs and avoiding inconvenience to witnesses properly to be taken into account: see R v Oliver 57 ALR 543 at 547. Further, there is the undesirable risk the separate trials will lead to verdicts which are inconsistent on the facts: R v Lake 64 Cr App R 172”

Consideration of the issues

Tendency admissibility

1. It was important to address the matter by regard to what are the “facts in issue” in order to establish whether a claimed tendency had “significant probative value”. In this matter the facts in issue are not whether the acts alleged occurred (except for Counts 2 and 7) but whether they occurred when the relevant complainant was not consenting and/or the accused knew that she was not consenting. Given the admission of facts asserted as to acts of the accused relevant to Counts 1 and 3 (concerning HC) and Counts 4, 5 and 6 (concerning CC), the remaining matters relating to Counts 2 and 7 do not assume importance in considering the need to produce further evidence to support the relevant complainant’s credibility in relation to those counts.

2. As I understand the ‘Admissions’ now made by the accused the facts in issue concern (a) whether the accused forced the complainant’s hand onto his penis (Count 2), whether the accused indecently assaulted SS (Count 7) and whether the complainants HC and CC did not consent and/or whether the accused knew they did not consent. As for Count 2 that was an act done in the course of admitted acts relevant to Counts 1 and 3.

3. In the context of the legal principles to be applied set out above I accept the submission that in respect of the tendency to have a state of mind, earlier set out being a sexual interest in female children 16 years and under, one has to have regard, as the section requires, to other evidence not just that of particular complainants that support the existence of claimed tendency. There is evidence from CC and a number of “other complainants” of the accused’s sexual interest in other women a number of whom were over 16 years of age. One of whom was 36 and another was 47 (JG v the Queen [2014] NSWCCA 138, DSJ v the Queen [2012] NSWCCA 9). Ms CC was 22 years of age in early 2016.

4. These authorities establish that where there are competing influences to be drawn from the available evidence as to the existence of a particular tendency, that will make the existence of that inference less significant. Here there was an abundance of evidence that if the accused had a sexual interest in females it was not confined to sexual interest in persons 16 years or younger, or for that matter 17 years or younger, as pleaded as a relevant tendency to “act in a particular way” (paragraph 3 of the Crown’s Tendency Notice).

5. The claimed tendency to either have a particular state of mind relating to the age of the relevant complainant in the indictment (HC) is not of significant probative value having regard to the facts in issue. There is no dispute as to two acts of sexual intercourse with that complainant. There is no evidence directly that her age was a relevant factor or consideration in the performance of any act (including the disputed act). The tendency as expressed reflects the fact that there are “tendency” witnesses that the accused had sexual contact with that were relevantly 16 or younger (eg EA, Y and SS), but that fact is not significantly probative on consent issues nor as to whether sexual contact occurred as alleged by HC.

6. In a general sense, it is not a remarkable thing for a young heterosexual man to have an interest in females of a variety of ages. That he had a sexual interest in HC is not disputed or in issue. That he had a sexual interest in his cousin when she was 13, and he was 19, does to make more likely the fact that he would engage in sexual conduct without the consent of HC, or that he would perform a particular act of a sexual nature (as alleged in Count 2).

7. Another aspect of this matter not addressed in the submissions of either Crown or accused is the “fact” that the matters raised by SS in her statement of 16 July 2018 (as part of the evidence of tendency) are concerned with events in December 2006, when she was 13, and when the accused was 19 years of age. Her evidence of the claimed sexual activity of the accused is of less significance, particularly in relation to the issue of consent as it arises in respect of Counts 1 – 3, than if the age difference between the accused and the complainant was considerably greater. Further, the lapse of time of over eight years between the events she alleges and the matters giving rise to counts 1 to 3 in the indictment is a relevant matter to the assessment of the significance of the probative value of the evidence. The tendency existing at one point of time may not necessarily exist at another point of time substantially apart. Particularly if at the time of the existence of the alleged tendency the accused might reasonably be expected to be less mature and or sexual experienced than he was at the time of the alleged commission of the offences in the indictment.

8. The length of time between relevant events may be of significance in assessing the probative value of particular evidence relied upon for tendency purposes, e.g. R v Dent [2016] NSWSC 99 – (albeit that was a gap of 37 years), R v Watkins [2005] NSWCCA 164. This matter does not reflect the conduct that was capable of demonstrating that the accused had continued to engage in relevant during the time between charged events (cf BC v The Queen [2015] NSWCCA 327).

9. The claimed tendency to have a state of mind as reflected in ‘2 (b)’ of the Notice is a matter of significant probative value, particularly as, a ‘fact in issue’ is whether the accused indecently assaulted the complainant SS. But it is not a justification for rejoinder of the allegations of HC with the sisters given that the accused had no family connection with HC. It was a tendency that was, if it existed, mutually exclusive as between the allegations made by the sisters and the allegations made by HC. It is not relevant to facts in issue in respect of Counts 1 – 3. The probative value of the evidence substantially outweighs the prejudicial effect of the evidence of Y on this matter given the opportunity to ameliorate such effect by proper direction. But the evidence is only of significant value in so far as it makes the allegation relevant to Count 7 more likely.

10. The claimed tendency to “have a sexual interest in sleeping females or females adversely affected under the influence of alcohol and/or drug” (2c) of the Notice) is, in fact, alleging two separate “tendencies”. Whilst the issue of sexual activity with a person who is asleep or intoxicated is relevant to, and could be significantly probative in relation to issues of consent in the context of the available evidence, accepting the context of statements at face value, there are important observations to be made about the respective observations of CC and HC’s accounts.

11. In relation to HC her account is that she had “one drink” and then “felt weird” about 10 minutes later. She states that she had a belief that her drink was “spiked”, a conclusion that is speculative on her part and likely inadmissible. There is no acceptable evidence that the accused knew or believed she was intoxicated, let alone that her drink was spiked. She states a memory of the relevant events. She does not claim to be asleep, incapable of expressing dissent or offering resistance. In fact she does both on her account. In my view her evidence is not probative of the tendency claimed. The complainant CC was voluntarily heavily intoxicated, which was not the fault of or caused by the accused, and was at particular times asleep, with little or no memory of the circumstances leading up to Counts 4 and 5, and no memory of the events concerned with Count 6, which the accused video-taped. The circumstances of each matter are very different and do not establish, even at a prima facie level, a common “sexual interest” in “sleeping females” or “females adversely affected by alcohol/or drugs”.

12. The pleaded “tendency” in the Notice attempts to conflate two different situations in an endeavour to infer a more cogent “tendency” when one of those situations is not reasonably consistent with the particulars of the claimed tendency. Ultimately the “tendency” particularised is not a correct representation of the “connection” between the complainant HC and CC and is not of significant probative value.

13. The evidence of MY however is capable of having “significant probative value” in relation to the issue of “filming” the intimate parts of females without their permission (whilst asleep) (at 3k) of the Notice). But her “evidence”, if given in accordance with her statement, is not relevant to the claimed tendency particularised at 2c) of the notice.

14. I do not accept that a number of the tendencies identified in the Tendency Notice as ‘Tendencies to act in a particular way’ have significant probative value.

15. The claimed tendency to “take advantage of females during social interaction” is a very broad and general aspect of the evidence which does nothing more than reflect upon the circumstances in which in particular instances, but not all, the accused met particular people. The evidence of his cousins as to the events of 2016 do not support the contention that this claimed “tendency” is relevant.

16. The claimed tendency to ‘target’ younger females of 17 and under, relevant to the complainant HC but only evidenced by his contact with two of the “other complainants”, does not reflect all of the evidence available as to the characteristics of people that he is alleged to have sexually assaulted. It is not a relevant tendency of significant probative value, certainly far short of a modus operandi. The use of the word “target” is meaningless in context. If the phrase was used “to have a sexual interest in females 17 years or younger” it would speak of no relevant tendency of significant probative value to proof of facts in issue. It merely speaks of a characteristic of particular complainants so general as to add little to the proof of the Crown case in respect of the complainant HC.

17. I accept the submission of the accused that a tendency to “kiss or attempt to kiss females in social situations without their consent” falls far short of establishing a ‘tendency relevant to proof of guilt of sexual assault without consent’. It lacks significant probative value. It is not a matter, having regard to the character of the alleged sexual “assaults” in Counts 1 – 7, that makes the truth or credibility of the evidence of the complaints more likely.

18. The claimed tendency to “take advantage of females under the influence of alcohol” is not necessarily a common element of the allegations made by the complainants in the indictment as earlier outlined. This is not a characteristic of the allegations made by SS. It is not reflected in the available evidence of many of the “other complainants”. It is a “tendency” that does not have significant probative value in relation to HC’ allegations noting the earlier observations that I have made.

19. The claimed tendencies to “put his penis into females’ vaginas without consent” and “put his finger or fingers in females’ vaginas” speak of actions claimed as part of charged sexual activity which are not in issue. That he has intercourse with a number of people does not make it more likely that he does so without consent. The “tendency” to “force the hand of a female onto his penis”, relevant to Count 2, may have “significant probative value” if available from the evidence of MY. But the context of the different episodes particularised by the Crown would require further examination to consider its admissibility in proof of guilt of Counts 1 – 3.

20. The claimed tendencies of “spooning in bed with a female prior to sexual interaction” and “pressing his body against females with his penis region against his body” may speak of a prelude to sexual activity but they are not probative of activity undertaken without consent, or probative of the physical acts in dispute in relation to Count 2 and/or Count 7. Putting aside the issue of lack of similarity to the charged conduct in Counts 1 – 7 they do not reflect a relevant tendency to “sexually assault”, either by acting in the way alleged in the indictment or to have a relevant state of mind.

21. I accept that the claimed tendency – “To use his mobile phone to record the intimate areas of females, without their permission, while they are asleep or adversely affected by alcohol”, whilst found only in two instances, is a tendency of ‘significant probative value’ in the context of facts in issue in relation to the allegations of CC, being absence of consent and knowledge of absence of consent. The evidence ought not be excluded pursuant to s 101(2) of the Act. Prejudice can be addressed by direction.

22. Generally speaking, although there are “degrees” of similarity in the various acts, seen in a wider context, whilst not critical in the determination of these matters, there is not a sufficient pattern of conduct or modus operandi to establish the “facts in issue”, as opposed to establishing more general matters which are not of significant probative value (Saoud v R (2014) 87 NSWLR 481 at [42] – [44] – per Basten JA: BP v R [2010] NSWCCA 303, at [108], per Hodgson JA).

Conclusions

1. It follows from the findings I have reached above as to admissibility that the trial of the accused in respect of the allegations of HC should be separated from the trial of the accused in relation to the allegations of his cousins.

2. There are two substantial reasons on a factual basis for this. Firstly, the evidence of HC in my view is not admissible in relation to the proof of guilt of the accused in relation to the allegations of the accused’s cousins, nor is their evidence admissible in relation to guilt of the accused in respect of the allegations of HC. Such evidence from other witnesses which may establish a relevant tendency to matters raised by HC, or one or other of the complainants in relation to Counts 4-7 is not required to be given in a joint trial concerning all the complainants. There is in reality only one “common witness” MY. But her evidence, said to be relevant to particular tendencies relates to different tendency issues in respect to HC and the accused’s relatives. The joinder of disconnected allegations could not be justified by legal directions to overcome the prejudice to the accused (s 21 CPA).

3. The joinder of the counts in the indictment can only occur without prejudice to the accused in the manner discussed above, or in the interests of justice to put the matter another way, if there was ‘tendency reasoning’ available between the evidence of the complainants or if there was a large body of common evidence from other witnesses which was in one way or another relevant to prove the guilt of the accused in respect of each of the particular complainants currently identified in the indictment. The last matter does not arise here. As to the one witness who appears common to HC and CC, her evidence can be either given on more than one occasion, given that her evidence is potentially relevant for different reasons, or can be audiovisually recorded to be replayed with editing in a subsequent trial without undue waste of court resources or time. As with the evidence of her supporting witness. This particular “other complainant” in any event has previously declined to give evidence and may do so again, but will certainly need to be examined by way of ‘Basha Inquiry’ as agreed by the Crown.

4. In considering the admissibility of the evidence of this particular “other complainant” (MY) I have taken into account the course of the proceedings in the Local Court. Whilst the dismissal in the Local Court is not an “acquittal”, because there has been no hearing on the merits, even if there is an acquittal that does not necessarily mean that evidence of relevant tendency will be inadmissible as such (R v Carroll (2002) 213 CLR 635; R v RN [2005] NSWCCA 413 at [21]). Given the need to consider at some future time issues relating to this potential evidence, this matter will need to be re-addressed at a future time.

5. Thus: In the context of findings above:

I order that Counts 1 – 3 be separated from Counts 4 – 7. The order of prosecutions is a matter for the learned Director and the learned Crown Prosecutor.

1. It follows from the above conclusions that I should not order a trial by Judge pursuant to s 132 CPA. I need not dwell upon the many authorities cited or provided. There appears nothing at this stage that cannot be dealt with by proper direction to remove any risk of prejudice. The issue may have been differently decided had I permitted joinder of the counts and permitted a large number of complainants to give evidence as to a number of different alleged tendencies. But that is not the situation at the present time.

2. At this point I need not rule upon s 146 issues concerning the statement of SS as the evidence of events in South Africa in 2006 is irrelevant to HC’s allegations. It is also in my view irrelevant to the tendency of the accused to have a “sexual interest in his cousins”, because the critical fact in issue is whether the accused had a sexual interest in SS, given the admitted conduct towards CC. Not vice versa. It does not provide context for the allegation in Count 7. It is not admissible for the reasoning stated from IMM previously cited. It comes from the same source as required to establish Count 7. Further it is disconnected in time from the events of 2016. If it did have significant probative value it should be excluded pursuant to s 101(2). The evidence of CC is potentially available though in relation to Count 7. I may need to hear more submissions on this matter. It is not a matter that has significant probative value as to the issue of “consent”, particularly as it relates to the allegations in Counts 4 – 6 relating to CC.

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TENDENCY CHART

1st Complainant – HC Counts 1 – 3	2nd Complainant CC Counts 4 – 6	3rd Complainant SS Count 7	Tendency Witnesses
Date of Offences	26 June 2014 – 15 July 2014	7 February 2016	7 February 2016	Various
Place of Offences	(accused’s family’s home)	(accused’s family’s home)	(accused’s family’s home)	Various
Nature of acts by the accused (if relevant)	Inserting his fingers into the vagina of HC without her consent (Count 1 – s61J(1) Aggravated sexual assault) Putting HC’s hand onto his penis without her consent (Count 2 – s61M(2) Indecent assault person under 16 ) Engaging in sexual intercourse with HC without her consent (Count 3 – s61J(1) Aggravated sexual assault)	Touching buttocks of CC Performing oral sex on CC without her consent (Count 4) Engaging in sexual intercourse with CC without her consent (Count 5) Filming CC’s pelvic region while inserting his fingers into her vagina without her consent (Count 6) Counts 4 – 6 – 3 x s61I Sexual intercourse w/o consent	Touching the buttocks and rubbing the vagina of the witness without her consent (Count 7 – s61L Assault with act of Indecency)	Various
2. Tendency to have a particular state of mind
(a) Having a sexual interest in female children of 16 years and under	Yes – All counts HC was 14 at the time of the alleged offending. DOB 04/09/1999 (Q&A 3 – 4, p 1 – JIRT interview of HC dated 18/06/2015)	N/A	Yes SS was 13 at the time of the previous sexual assault which occurred when the accused visited her family in 2006 in South Africa (Statement dated 16.07.2018, p1 [para 4]).	EA (2 x s61L Assault with act of indecency – both charges pending in LC) (Statement dated 09.11.2016, p1 [para 3]) Nature of acts by accused: Pressing his pelvic region and erect penis against the witness’ back Touching the vagina of the witness during stretching in the course of a personal training session Touching the breasts of the witness without her consent LP (no charge) (Statement dated 30.09.2016, p3 [para 16]; and conversation via text)
(b) Having a sexual interest in his female cousins	N/A	Yes CC states that her father has a brother who is the father of the accused. This makes CC and the accused first cousins (CC statement dated 20.02.2017, p1; and SS statement dated 20.02.2017, p1, [para 4]).	Yes SS states that the accused is her cousin (SS statement dated 20.02.2017, p1, [para 4]; and CC statement dated 20.02.2017, p1).	N/A
(c) Having a sexual interest in sleeping females or females adversely affected by being under the influence of alcohol and/or drug	Yes – All counts HC alleges that the accused sexually assault her after drinking an alcoholic beverage that made her feel “very weird in my body” (Q&A 35, p4 – 5). She says that she was “drugged” and “didn’t really know what was happening” (Q&A 28, p3).	Yes – All counts CC states that she realised she was “fairly tipsy” after consuming a number of alcohol beverages during the party, and that she then passed out just prior to become aware of the alleged offending (CC statement dated 20.02.2017 p3-4, [paras 10-11]). She states “I had the feeling of being so drunk, that my eyes were rolling back into my head” (p4, [para 11]). CC states she continued to pass in and out of consciousness during the course of the alleged offending (p4-5, [paras 11-15]).	Yes SS said the accused was following CC, who was heavily intoxicated, everywhere, and the accused then got into the bed with her, JJ and CC (SS statement dated 20.02.2017, p6, [para 32]) and later with just her and CC (p7, [para 34]).	MY (8 x s61L Assault with act of indecency & 1 x 91L(1) Film private parts w/o consent – all charges withdrawn and dismissed) (Statement dated 19.01.2016, p3 and 4 [paras 11-13]; and Statement dated 14.03.2016, p2 [para 10]) Nature of acts by accused: Touching the vagina of the witness during stretching in the course of a personal training session Pressing his pelvic region and erect penis against the witness Attempting to kiss the witness Placing the witness’ hand on his penis Touching the breasts and buttocks of the witnesses Filming the pelvic region of the witness while she was asleep
3. Tendency to act in a particular way
(b) Target younger females of 17 and under	Yes – All counts (Q&A 3 – 4, p 1)	N/A	Yes SS was 13 at the time of the previous sexual assault which occurred when the accused visited her family in 2006 in South Africa (p1 [para 4]).	EA (Statement dated 09.11.2016, p1 [para 3]) Y (Statement dated 19.01.2016, p1 [para 4])
(c) To isolate himself with female guests in his family home, in particular inside a bedroom	Yes – All counts HC alleges that the accused asked her to come to the bathroom to wash her face (Q&A 35 p 5 and Q&A 130 p 17), but he “never took me into that… bathroom bit” (Q&A138, p18) and took her to one of the guest bedrooms in his family’s house (Q&A 136 – 137, pg 17-18). HC says “he has a really big house so there’s like guests bedrooms and stuff so he took me to one of the bedrooms and that’s when that all happened” (Q&A 136, p17-18)	Yes – All counts CC states that the alleged offending occurred inside a guest bedroom in the house (p4, [para 11]). She recalls later waking up and “SS and JJ now being in there also as well as Matthew and I” (p4, [para 14]).	N/A	EA (Statement dated 09.11.2016, p4 [para 19]) MW (1 x s61L Assault with act of indecency – charge pending in LC) (Statement dated 01.04.2016, p1 [para 5])
(d) To kiss or attempt to kiss females in social situations without their consent	Yes HC alleges that the accused took her into a guest bedroom during the course of a house party and “started kissing me and stuff” (Q&A 35, p5; and Q&A 154 & 155, p20). HC says that she responded with “No, stuff like Don’t, and then I was like, ‘cause I was really, really blind drunk, I don’t know what was going on, like I know, I knew nothing that was going on” (Q&A 35, p4-5).	Yes CC alleges that the next memory she has “after passing out on the lounge, was being in the room that Sam and I had been staying in, and Matthew was on top of me kissing me. I don’t know how I got into the room” (p4, [para 11]). She states that she thought to herself “Why is this happening” before passing out again (p4, [para 12]).	Yes SS states that the accused walked towards her, pushed her back towards a cupboard and kissed her. She put her hands up between them, pulled her head backwards and said “Woah Matt” (p4, [para 19]).	MY (Statement dated 19.01.2016, p2 [para 7])
(e) To take advantage of females under the influence of alcohol	Yes – All counts HC alleges that the accused sexually assaulted her while she was adversely affected by alcohol. HC says that she asked the accused “why would you take advantage of me when I’m like this” (Q&A 35, p5).	Yes – All counts CC alleges that the accused sexually assaulted her while she was adversely affected by alcohol. After waking to realise that the accused was performing oral sex on her, CC states that she remembered thinking “Hit him” but couldn’t as she was so affected by alcohol (p4, [para 12]).	Yes SS states that she had been consuming alcohol throughout the night prior to the accused sexually assaulting her (p3, [para 14 and 17]).	MY (Statement dated 14.03.16)
(g) To press his body against females with his penis region against their body	N/A	N/A	Yes SS states that as the accused was massaging her, he was moving his body. She realised it was becoming more sexual, as though “he was grinding himself on me” and she “could feel his erect penis on the area of my lower back and bottom”. This made her feel extremely uncomfortable (p7, [para 40]).	EA (Statement dated 09.11.2016, p2 [para 9]; and p3 [para 14]) MY (Statement dated 19.01.16, p2 [para 6] and p3-4 [para 13]) PN (3 x s61L Assault with act of indecency – all charges pending in LC) (Statement dated 03.03.2016, p2-3 [para 14]).
(h) To force the hand of a female onto his penis without prior consent	Yes – Count 2 HC alleges that the accused “grabbed my hand and put it like, on his dick… but I didn’t do anything to it, I was just like sitting there… because I had no idea what was going on…” (Q&A 159, p20-21)	N/A	N/A	MY (Statement dated 19.01.16, p2 [para 8])
(i) To put his penis into females’ vaginas without consent	Yes – Count 3 HC says after the accused grabbed her hand and put it on his penis, he “stated putting like, trying like, force his dick into, inside me and that’s when I realised what he was doing to me” (Q&A 159 – 160, p20-21)	Yes – Count 5 CC states that she came around and felt immediate pain. She saw the accused was having sexual (penile/vaginal) intercourse with her. She states “it was very painful obviously because my body was not in agreeance with what was happening” (p4 [paras 13]).	N/A	N/A
(j) To put his finger or fingers in females’ vaginas without consent	Yes – Count 1 HC alleges that the accused reached down towards her vagina and started “fingering” her (Q&A 159, p20) by putting “at least two fingers inside me… up my vagina” (Q&A 164 and 165, p22)	N/A	Yes SS says the accused, while sitting in front of her on the floor, reached his hands behind him and began rubbing her vagina with his fingers, rubbing the lips of her vagina, and then inserted a finger inside her vagina. This lasted approximately 4 minutes (Statement dated 16.07.2018, p1-2 [paras 5 – 7]).	N/A
(l) To lie or attempt to lie on or in bed with female associates	N/A	Yes CC states that the alleged offending occurs while the accused is lying in/on a bed with her (p4-6 [paras 11-16]).	Yes SS states that the accused and JJ were lying with CC in bed (p6, [para 32]). Later the accused followed CC into a different room and got into bed with her and SS (p7, [para 34]).	EA (Statement dated 09.11.2016, p4 [para 20]) MY (Statements dated 19.01.2016; and 14.03.2016 [all])
(m) To “spoon” in bed with a female prior to sexual interaction	N/A	Yes CC states that the accused was, at various times during the alleged offending, laying on the side of her, squeezed next to her, and coming up close to her in bed (p4-5 [paras 14-16]).	Yes SS observed that the accused got into bed behind CC (p7, [para 34]). CC described the accused being squeezed next to her and coming up close behind her, while SS was in the same bed (CC statement dated 20.02.17, p4-5 [paras 14-16]).	MY (Statements dated 19.01.2016; and 14.03.2016 [all])
(p) To use his mobile phone to record the intimate areas of females, without their permission, while they are asleep or adversely affected by alcohol	N/A	Yes (p6, 7, [para 18, 20]; and Video of sensitive evidence relating to CC)	N/A	MY (Statement dated 14.03.16, p2-4; attached photographs; and Video of sensitive evidence relating to MY) (Video of sensitive evidence relating to MY) SK (no charge) (Statement dated 01.04.16, p1 [para 7])

Decision last updated: 19 June 2019