R v kN
[2018] ACTSC 262
•17 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KN |
Citation: | [2018] ACTSC 262 |
Hearing Dates | 13 August 2018 |
DecisionDate: | 17 September 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [38]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – sexual offences – multiple complainants |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 56, 65 Evidence Act 2011 (ACT) ss 55, 97, 101, 192A |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 92 ALJR 92 McPhillamy v The Queen [2018] HCATrans 141 (9 August 2018) Vojneski v The Queen [2016] ACTCA 57; A Crim R 370 Tully v the Queen [2016] ACTCA 4 |
Parties: | The Queen (Crown) KN (Accused) |
Representation: | Counsel Ms R Christensen (Crown) Mr J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Accused) | |
File Number: | SCC 58 of 2018 |
LOUKAS-KARLSSON J:
Introduction
This is an application under s 192A of the Evidence Act 2011 (ACT) (Evidence Act) for a pre-trial ruling on the admissibility of tendency evidence.
The accused has been charged with a series of sexual offences against 3 separate complainants, all of whom were children at the time of the offences. There is 1 count of possession of child pornography (s 65 Crimes Act 1900 (ACT)) (Crimes Act)), 1 count of maintaining a sexual relationship with a young person (s 56 Crimes Act), and 5 counts of sexual intercourse with a young person (s 55 Crimes Act).
The prosecution seeks to adduce evidence of the charged acts and an uncharged act to prove that the accused had a tendency to have a particular state of mind, namely:
(a)to have a sexual interest in the girls he spent time with by virtue of sharing a house with their parent, being in a relationship with their parent, or both.
The prosecution also seeks to prove that the accused had a tendency to act in particular ways, namely:
(b)to act on that sexual interest in the girls by engaging sexually with them; and
(c)to use his relationships with the parents of the girls to gain access to the girls in order to engage sexually with them.
Alleged Facts
The accused is alleged to have committed sexual offences against three female complainant children. Each of the complainants are known to the accused through his relationship with their biological parents. The counts are briefly summarised as follows:
First Complainant – Count 1
Count 1 (Tendency Incident 1)
The accused lived with a partner and her two children, including the first complainant (UD), between 2001 and 2011. In about March or April 2011, the accused is alleged to have downloaded a pornographic image of UD, who was aged 15 at the time, from the complainant’s phone on to his laptop. UD had taken the photo when she was 14 years old in order to send it to a boy at school.
Second Complainant – Counts 2 - 6
In February 2013, the accused commenced a relationship with the mother of the second complainant (LL). LL and her mother began staying at the accused’s residence with the accused’s two sons towards the end of 2013.
Count 2
Count 2 is that the accused maintained a sexual relationship with LL, as identified by counts 3 to 6 and other acts of a similar type, between 17 February 2013 and 26 March 2014. LL was aged between 10 and 11 during this time period. The accused told LL not to mention what happened to anyone else.
Count 3 (Tendency Incident 3)
Count three relates to a night in 2013 when the complainant was staying at the accused’s house. The accused allegedly woke the complainant up between 8 and 10pm to play a game they had been playing in previous weeks, where LL would be blindfolded and asked guess what flavour was being placed in her mouth on a spoon. The accused allegedly put chocolate spread onto his erect penis and placed it into LL’s mouth. The accused started to thrust his penis into LL’s mouth and she used her tongue to try and lick off all the chocolate. The accused is alleged to have removed his penis when LL heard a door open and her mother enter the home.
Count 4 (Tendency Incident 4)
Count 4 relates to another occasion in 2013, when the complainant was staying at the accused’s house and her mother was asleep. The accused entered LL’s bedroom and woke the complainant up. The accused placed chocolate spread on his penis and placed it in LL’s mouth in a manner similar to what is alleged in Count 3. The accused removed his penis and left the bedroom when LL had removed the chocolate spread.
Count 5 (Tendency Incident 5)
10. On a later date in 2013, the accused entered LL’s bedroom at the accused’s house at around lunchtime when there were no other family members at home. The accused placed chocolate spread on his penis and placed it in LL’s mouth in a manner similar to what is alleged in Counts 2 and 3. On this occasion, the blindfold lifted slightly and LL could see the accused’s penis entering her mouth in a thrusting motion. The accused left her bedroom after a time, after which LL felt sick and went to the bathroom to wash her mouth out.
Count 6 (Tendency Incident 6)
11. On a later date in 2013, at around 9:30 or 10:30 pm, the complainant was in the lounge room of the accused’s house whilst guests were present. The accused asked if LL would like to “practice” the game, and took the complainant into the main bedroom. The accused did not use a blindfold as LL closed her eyes. The accused moved his erect penis in and out of LL’s mouth for several minutes before he stopped and pulled his shorts up. LL returned to the lounge room after the incident.
Third Complainant – Count 7
12. The accused was a client of the father of the third complainant (SN). SN’s mother and father ended their relationship in February 2015, leaving the house occupied solely by SN’s father. A short time later, SN’s father asked the accused to move in with his youngest son to assist with rental payments. The accused moved into the property in about May 2015. In August 2015, SN’s mother and father began to share custody of their children on a 7 day on/off cycle. SN has an intellectual disability within the moderate range.
Count 7 (Tendency Incident 7)
13. On an occasion between August 2015 and January 2017, when SN was aged 13, the accused entered her room and woke her up. SN saw the accused was wearing a t-shirt and no pants or underwear. SN tried to wake her brother, who was sleeping in the same room, by calling out to him. The accused grabbed SN by the back of the head and pulled her towards his mid-section. The accused used force to put his penis into her mouth. SN tried to push the accused away. The accused told SN not to tell her father about what had happened.
Other tendency incidents
14. In addition to the tendency incidents identified above, the Crown relies on a further incident with the first complainant, UD. After the accused had concluded his relationship with UD’s mother, the accused sent a 16th birthday card to UD. Inside the card, the accused had written “Happy sixteenth birthday, I really miss you” and that he wanted to take her out on a “hot date”. This was referred to by the prosecution as Tendency Incident 2.
Approach to the application
15. In order to succeed in a tendency application, the prosecution must establish the following:
(a)That the evidence is relevant under s 55 of the Evidence Act;
(b)That the tendency evidence has significant probative value pursuant to s 97 of the Evidence Act; and
(c)That the probative value of the tendency evidence substantially outweighs any prejudicial effect.
16. In dealing with the application, I adopt the same approach as outlined in Vojneski v The Queen [2016] ACTCA 57; A Crim R 370.
Relevance: s 55 of the Evidence Act
Has the tendering party identified a s 97 tendency (a tendency to act or think in a “particular” way)?
17. The prosecution identified the relevant tendency as outlined in paragraph [3] above. The Crown has identified a s 97 tendency.
Are the incidents capable of establishing the asserted tendency?
18. The prosecution submitted that this question would be answered in the affirmative, as a number of probative tendencies had been identified and all are capable of establishing the asserted tendencies, except for Incident 2 which, the prosecution conceded, did not demonstrate a tendency to act, and only goes to the tendency to have a particular state of mind.
19. The accused submitted that incidents 1 and 2 may not be capable of establishing the asserted tendency. The accused conceded that the remainder of the incidents would be considered tendency incidents consistent with the High Court’s decision in Hughes v The Queen [2017] HCA 20; 92 ALJR 92 (Hughes).
20. In my view, Tendency Incident 1 (Count 1), the downloading of a pornographic image, is not capable of establishing the asserted tendency. It is not capable of establishing that the accused had a tendency to act on his sexual interest by engaging sexually.
21. A similar analysis applies, in my view, to Tendency Incident 2, involving the same complainant as Count 1 (UD). Tendency incident 2 involved the accused sending UD a 16th birthday card. Written inside the card was “Happy 16th Birthday, I really miss you” and that the accused wanted to take her out on a “hot date”. Whilst Tendency Incident 2 may involve a tendency to think in a particular way, it does not in my view involve a tendency to act on that sexual interest in actually engaging sexually. The Crown accepted that the submission as to relevance was limited and not as high in respect to the birthday card.
22. Counsel for the accused correctly conceded that incidents 3 to 7 fall within the legal principles articulated by the High Court in Hughes.
What is the relevant “fact in issue” in the proceedings?
23. The relevant fact in issue in the proceedings is likely to be whether or not each alleged incident occurred.
If the fact finder accepted that the tendency incident occurred and showed the asserted tendency, could the tendency inform the fact in issue?
24. The prosecution submitted that if the jury accepted that the tendency incidents did occur and that they showed the asserted tendencies, that the asserted tendencies could inform the facts in issue in this matter.
25. As stated above, in my view tendency incident 1 and tendency incident 2 do not inform the fact in issue in this case: a tendency to act on that sexual interest.
Significant Probative Value of the Tendency Evidence: s 97 of the Evidence Act
26. The prosecution submitted that s 97 requires the Court to determine if it is “satisfied that the evidence will, either by itself or in combination with other evidence to be presented by the party leading the tendency evidence, have significant probative value”: R v CX [2016] ACTSC 106 at [7].
27. The prosecution submitted that the evidence of each of the incidents strongly supports the asserted tendency. The prosecution submitted that:
…each of the incidents relied upon…contain that evidence of the sexual interest in the girls and secondly it contains evidence that the accused acted on that sexual interest…it follows from that the evidence does support the asserted tendencies.
28. Further, the prosecution submitted that evidence that the accused had a sexual interest in girls he has access to makes it “more likely that he committed the offence as charged”. The prosecution submitted that the evidence of each incident is significantly probative
29. The prosecution submitted in supplementary written submissions that there is “similarity of both conduct and circumstances across the tendency incidents and with the alleged acts”. The similarities were particularised as follows by the prosecution:
· Tendency incidents 1, 3-7 and the charged acts relate to sexual offending involving children;
· Tendency incidents 1, 3-7 and the charged acts involving sexual interest and sexual acting towards early to mid-pubescent girls;
· All incidents and the charged acts occurred in the circumstances where there was a significant risk of detection by a parent or sibling;
· All incidents and the charged acts occurred in circumstances where the accused has gained access to the child through living with their parent;
· Tendency incidents 3,4,7 and counts 3, 4 and 7 took place in the child’s bedroom at night and occurred after waking the child;
· Tendency incidents 1,3-7 and counts 3-7 occurred in a bedroom;
· Tendency incidents 3-7 and counts 3-7 all involve conduct of having the child fellate him; and
· The accused expressly told two of the complainant children not to tell their parent about the act/s
30. The prosecution further submitted in supplementary written submissions that the factual circumstances
…are such that there is no possibility of concoction or contamination and the complainant children and their complaints are made entirely independently of each other with no opportunity or motive for concoction.
31. The accused accepts, in my view correctly, that Tendency Incidents 3 to 7 inclusive, are of significant probative value as outlined by the prosecution. In my view, however, Tendency Incidents 1 and 2 are not in the same category. As discerned above, both Tendency Incidents 1 and 2 respectively do not involve significant probative value in either case. Neither the downloading of the photograph nor the birthday card involve a tendency to act on the sexual interest by actively engaging in a sexual act.
Whether the probative value of the evidence substantially outweighs any prejudicial effect: s 101 of the Evidence Act
32. The prosecution submitted that in this matter, “each incident is highly probative to all the facts in issue in the trial”. Further, the prosecution submitted that “there is little risk that the evidence may render the trial unfair”. The prosecution conceded that the evidence is “inherently prejudicial”, but that it “does not have characteristics of it being inflammatory or of such volume that any unfairness cannot be cured by direction”. The prosecution submitted that the evidence would not “overwhelm a jury and lead to any of the ‘primary dangers associated with tendency evidence’”: Tully v the Queen [2016] ACTCA 4 at [34].
33. Tendency incidents 1 and 2 do not meet the test posited under s 101 of the Evidence Act. The accused accepts, again, in my view correctly, that Tendency Incidents 3 to 7 meet the test posited under s 101. Tendency incidents 3 to 7 all involve sexual acts. There is evidence of sexual interest in the girls and that the accused acted on that sexual interest, and the evidence supports the asserted tendency and is of significant probative value. Tendency Incidents 3 to 7 are similar to both conduct and circumstances.
Additional Matters
34. I should add for the sake of completeness three matters.
35. First, at the time of this decision, the reasons for judgment in McPhillamy v The Queen [2018] HCATrans 141 (9 August 2018) in the High Court had not been delivered though the appeal had been upheld on 9 August 2018.
36. Second, the prosecution indicated that the card (Tendency Incident 2) may be sought to be admitted as relationship evidence before the trial judge if not admitted as tendency evidence. I should add at this point that jury directions may become overly complicated in this case if they are to include not only directions in relation to tendency but also directions as to relationship: see R v Aitchison [2017] ACTSC 260 at [39].
37. Third, on 12 September 2018, the High Court decision of The Queen v Bauer [2018] HCA 40 which dealt with tendency evidence was handed down.
Decision
38. For these reasons, I find that Tendency Incidents 1 and 2 are not admissible as tendency evidence. I find that Tendency Incidents 3, 4, 5, 6 and 7 are admissible as tendency evidence. The evidence in support of each charge (3-7) cannot be used as tendency evidence in relation to a charge involving the same complainant, but can be used as tendency evidence in support of a charge involving a different complainant.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 17 September 2018 |
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