R v NBB (No 2)
[2020] ACTSC 85
•15 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NBB (No 2) |
Citation: | [2020] ACTSC 85 |
Hearing Date: | 11 February 2020 |
DecisionDate: | 15 April 2020 |
Before: | Burns J |
Decision: | See [52] |
Catchwords: | CRIMINAL LAW – PRE-TRIAL APPLICATION – application to adduce tendency evidence – 22 charges of sexual offending against children – three separate complainants – whether an accused person known to the complainant did the acts alleged by the Crown – whether evidence has significant probative value – consideration of whether evidence of each complainant is cross-admissible with regard to charges alleging an offence against a different complainant – application of McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 |
Legislation Cited: | Crimes Act 1900 (ACT), s 66B |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 |
Parties: | The Queen (Crown) NBB (Accused) |
Representation: | Counsel ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) |
| Solicitors K Lee (Crown) J Campbell (Accused) | |
File Numbers: | SCC 228 of 2019; SCC 230 of 2019; SCC 293 of 2019 |
BURNS J:
The accused, NBB, is awaiting trial on 22 charges alleging sexual offending against children between January 2000 and March 2019. Expressed in abbreviated form, the charges against the accused are:
· Count 1 (CH 2019/818) – between 1 January 2000 and 4 November 2003, engaging in sexual intercourse with KT, being a person under the age of 10 years.
· Count 2 (SCCAN 2019/3815) – between 24 November 2003 and 4 March 2005, engaging in sexual intercourse with KT, being a person under the age of 10 years.
· Count 3 (CH 2019/819) – between 4 March 2005 and 4 March 2006, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 4 (CH 2019/319) – between 30 November 2001 and 24 November 2003, engaging in sexual intercourse with KT, being a person under the age of 10 years.
· Count 5 (SCCAN 2019/3816) – between 24 November 2003 and 4 March 2005, engaging in sexual intercourse with KT, being a person under the age of 10 years.
· Count 6 (CH 2019/820) – between 4 March 2005 and 20 April 2007, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 7 (CH 2019/821) – between 30 November 2001 and 20 April 2007, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 8 (CH 2019/822) – between 1 January 2004 and 31 December 2006, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 9 (CH 2019/823) – between 1 January 2004 and 31 December 2006, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 10 (CH 2019/824) – between 1 January 2004 and 31 December 2006, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 11 (CH 2019/826) – between 1 January 2004 and 31 December 2006, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 12 (CH 2019/825) – between 1 January 2004 and 31 December 2005, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 13 (CH 2019/827) – between 1 January 2004 and 31 December 2005, attempting to engage in sexual intercourse with KT, being a person under the age of 16 years.
· Count 14 (CH 2019/828) – between 1 January 2006 and 31 December 2007, engaging in sexual intercourse with KT, being a person under the age of 16 years.
· Count 15 (CC 2019/4421) – between 1 January 2015 and 31 December 2015, engaging in sexual intercourse with a person who is under the age of 10 years and who was to his knowledge his stepchild, namely BH.
· Count 16 (CC 2019/4422) – between 1 June 2016 and 31 July 2016, engaging in sexual intercourse with a person who is under the age of 10 years and who was to his knowledge his stepchild, namely BH.
· Count 17 (CC 2019/4423) – between 1 January 2015 and 20 August 2016, engaging in sexual intercourse with a person who is under the age of 10 years and who was to his knowledge his stepchild, namely BH.
· Count 18 (CC 2019/4423) – between 11 August 2016 and 20 August 2016, engaging in sexual intercourse with a person who is under the age of 10 years and who was to his knowledge his stepchild, namely BH.
· Count 19 (CC 2019/4425) – between 11 August 2016 and 20 August 2016, engaging in sexual intercourse with a person who is under the age of 10 years and who was to his knowledge his stepchild, namely BH.
· Count 20 (SCCAN 2019/3817) – between 11 August 2016 and 20 August 2016, engaging in sexual intercourse with a person who is under the age of 10 years and who was to his knowledge his stepchild, namely BH.
· Count 21 (SCCAN 2019/3818) – between 11 August 2016 and 20 August 2016, engaging in sexual intercourse with a person who is under the age of 10 years and who was to his knowledge his stepchild, namely BH.
· Count 22 (CC 2019/4426) – between 1 January 2016 and 4 March 2019, being an adult, maintaining a sexual relationship with the young person, namely KE.
Counts 1, 2, 3, 4, 5, 6, and 8 are alleged to be “course of conduct charges”, referring to s 66B of the Crimes Act 1900 (ACT).
It will be seen from the above that there are three separate complainants. The offences relating to complainant KT are alleged to have occurred between 1 January 2000 and 31 December 2007, when KT would have been between 4 and 12 years old. The offences relating to the complainant BH are alleged to have occurred between
1 January 2015 and 20 August 2016, when BH would have been between
7 and 8 years old. The offence relating to the complainant KE is alleged to have occurred between 1 January 2016 and 4 March 2019, when KE would have been between 5 and 8 years old.
Crown case statement
Alleged offences against KT
It is alleged that the accused was a schoolfriend of KT’s older brother. The accused is approximately five years and three months older than KT. It is alleged that in 2000, KT commenced kindergarten at the school attended by the accused. It is alleged that shortly after their first meeting in 2000, KT and the accused began to go on bike rides together. It is alleged that they would stop in secluded areas including bushland areas, and the accused would tongue-kiss KT, perform fellatio on KT, and would have KT perform fellatio on him. It is alleged that the bike rides occurred, on average, three or four times a week and the fellatio occurred on almost every bike ride. This is the basis of Counts 1, 2 and 3.
On 30 November 2001, KT’s family moved to a new address. It is alleged that at these premises the accused would regularly tongue-kiss KT, perform fellatio on KT, and have KT perform fellatio on him. This is the basis of Counts 4, 5 and 6.
On one occasion after the move to the new address, it is alleged that the accused had KT perform fellatio on him in the house. This is the basis of Count 7.
It is alleged that between 2004 and 2006 when KT was in Years 4 to 6 at school, the accused would perform fellatio on KT and have KT perform fellatio on him at a swimming pool on approximately five to ten occasions. This is the basis of
Count 8.
It is alleged that between 2004 and 2006, on one occasion at the shower cubicle in the change room of a public swimming pool, the accused perform fellatio on KT and had KT perform fellatio on him. This is the basis of Count 9.
Around 2004, when the accused was approximately 14 years and 9 months old, his mother told him about his real biological father and that he would be receiving an inheritance when he turned 18 years of age. It is alleged that the accused promised to give money to KT and to purchase him things such as alcohol, cigarettes and a mobile phone in exchange for KT engaging in sexual activity, including anal sex, with him.
On occasion between 2004 and 2006 when KT was in Years 4 to 6 at school, it is alleged that the accused engaged in anal intercourse with KT by penetrating his anus with the accused’s penis. KT found this to be very painful. It is alleged that this occurred in the top bunk bed in the accused’s bedroom. This is the basis of Count 10.
It is alleged that on another occasion between 2004 and 2006, the accused again engaged in anal intercourse with KT by penetrating KT’s anus with his penis. It is alleged that this occurred in the top bunk bed in the accused’s bedroom. This is the basis of Count 11 on the indictment.
It is further alleged that between 2004 and 2005, the accused took KT to a paddock and gave him red wine. KT became drunk. It is alleged that the accused kissed KT, performed fellatio on KT, and had KT perform fellatio on him. It is further alleged that the accused attempted to penetrate KT’s anus with his penis but was unsuccessful. These allegations are the basis of Counts 12 and 13.
It is alleged that at some stage in 2006 or 2007, KT briefly dated TH, a young female. On one occasion they went to a swimming pool in Canberra with the accused and his then girlfriend, KS. It is alleged that when TH and KS went to purchase food, the accused and KT performed fellatio on one another at the pool. This is the basis of
Count 14.
Alleged offences against BH
In early 2013, the accused married IB. BH was the son of IB from an earlier relationship. In January 2013, BH was five years old. When the accused married IB, he became the stepfather of BH.
It is alleged that on one occasion in 2015, BH was colouring-in at the residence shared by his mother, IB, and the accused. It is alleged that while he was doing this, the accused took a sharp pencil from a pencil case, pulled down BH’s pants and inserted the pencil into BH’s anus. BH protested and told the accused not to do that, however the accused told BH that he could not tell the accused what to do. He then sent BH to his bedroom. Subsequently, BH left his bedroom and the accused asked him whether he was ready to do it again, and BH returned to his bedroom. It is alleged that the accused entered the bedroom with a pencil and chased BH with it before inserting the pencil into BH’s anus. This is the basis of Count 15.
It is alleged that on one occasion in June or July 2016, BH was jumping on the trampoline in the backyard of the residence shared by his mother and the accused when the accused found a stick and called BH to him. BH got off the trampoline and the accused chased him with the stick before inserting it into his anus while his shorts were still on. The stick created a little hole in BH’s shorts and underwear. This is the basis of Count 16.
During bath time on a day between January 2015 and August 2016, it is alleged that the accused inserted the nozzle of a shower gel container into BH’s anus and squeezed shower gel into it. It is alleged that the accused told BH that this was occurring because BH would not admit that he was “gay”. It is alleged that later that evening, the accused gave Ventolin to BH for his asthma and told him he was sucking a penis. This is the basis of Count 17.
It is alleged that on a day between 11 and 20 August 2016, BH was at the residence shared by his mother and the accused, and gave the accused a massage in exchange for playing the Xbox. When BH was walking down the hallway towards the lounge room to play the Xbox, it is alleged that the accused placed his fingers into BH’s anus. This is the basis of Count 18.
On a day between 11 and 20 August 2016, it is alleged that the accused and BH were at the residence shared by the accused and BH’s mother when the accused told BH they had to finish an argument, and then immediately placed his fingers into BH’s anus. This is the basis of Count 19.
On a day between 11 and 20 August 2016, it is alleged that BH was at the residence shared by the accused and BH’s mother when the accused scrunched up a pair of underwear and inserted his fingers, wrapped in the underwear, into BH’s anus. It is alleged that the accused told BH that this is what he got for saying he was not “gay”. This is the basis of Count 20.
It is alleged that on a day between 11 and 20 August 2016 when the accused was bathing BH, he rubbed shower gel over BH’s body and said that he had to wash the inside of BH’s bottom. BH told the accused that it would hurt him, and the accused said that was the point. It is alleged that the accused inserted the nozzle of the shower gel container into BH’s anus and squeezed shower gel into it. This is the basis of
Count 21.
Alleged offences against KE
Since approximately 1998, the accused was friends with SI. SI had two children, one of whom was KE. It is alleged that around 2016 or 2017 when KE was between
five and seven years old, the accused began to engage in sexualised behaviour towards him. Between January 2016 and March 2019, it is alleged that the accused touched and sucked KE’s penis on multiple occasions, at his own home and at KE’s home. It is alleged the accused would often indicate to KE that he could use the Xbox if KE allowed the accused to play with KE’s penis. It is alleged that these incidents occurred when KE was between five and eight years of age. This is the basis of
Count 22.
The accused participated in recorded interviews with police with regard to the allegations concerning BH on 23 August 2016, and KE on 11 March 2019. He denied any sexual impropriety.
The tendency application
By an application dated 20 December 2019, the Crown seeks orders that it be permitted to adduce tendency evidence in accordance with an Amended Notice of Intention to Adduce Tendency Evidence (the Notice) at the trial of the accused. The Notice refers to 18 Incidents which correspond to the Counts on the indictment. Some of the incidents encompass more than one count.
There is, in addition, one incident which refers to uncharged acts on the part of the accused. Incident 9A alleges that in around 2004, when the accused was aged around 14 years and 9 months, he found out he would be receiving an inheritance when he turned 18 years old. It is alleged that after this, on a number of occasions, the accused would try to bribe KT into having anal sexual intercourse with him by offering to give him money or other gifts. The accused would also “dry hump” KT when they both had clothes on. It is further alleged that on a number of occasions the accused would attempt to engage in penile-anal intercourse, but KT would tense up or clench his legs to prevent this.
By adducing this evidence, including the evidence of the uncharged acts, the Crown seeks to prove that the accused had a tendency to act in particular ways and to have particular states of mind, namely:
(a)to have a sexual interest in pre-pubescent male children;
(b)to act on his sexual interest in pre-pubescent male children;
(c)to engage in fellatio with pre-pubescent male children;
(d)to engage in acts or attempted acts of anal penetration with pre-pubescent male children;
(e)to have a sexual interest in KT;
(f)to act on his sexual interest in KT;
(g)to have a sexual interest in BH;
(h)to act on his sexual interest in BH;
(i)to have a sexual interest in KE; and
(j)to act on his sexual interest in KE.
The Crown provided the following table identifying which tendencies were relevant to each count:
Tendency to be proved Relevant incidents Relevant count(s) 1. To have a sexual interest in
pre-pubescent male children.1-18 1-22 2. To act on his sexual interest in
pre-pubescent male children.1-18 1-22 3. To engage in fellatio with pre-pubescent male children. 1,2,3,4,5,8,9 1-9,12,14,22 4. To engage in acts or attempted acts of anal penetration with pre-pubescent male children. 6,7,8A,9A,10-16,18 10,11,13,15-22 5. To have a sexual interest in KT. 1-9A 1-14 6. To act on his sexual interest in KT. 1-9A 1-14 7. To have a sexual interest in BH. 10-16 15-21 8. To act on his sexual interest in BH. 10-16 15-21 9. To have a sexual interest in KE. 17,18 22 10. To act on his sexual interest in KE. 17,18 22
Relevant legislation
The following provisions of the Evidence Act 2011 (ACT) (the EA) are relevant:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
…
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a
proceeding is admissible in the proceeding.(2) Evidence that is not relevant in the proceeding is not admissible.
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
…
101 Further restrictions on tendency evidence and coincidence evidence
presented by prosecution(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
Relevant decisions
In Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 (Vojneski), Murrell CJ and Refshauge J at [47]-[48] considered how tendency evidence is likely to be relevant to proving a fact in issue:
In criminal proceedings, tendency evidence is often called to show that, at the time of the alleged offence, the accused tended to think or act in a particular way that makes it more likely that he or she committed the offence because the behavioural or mental tendency of the accused conformed to the offending behaviour. Or, to put it another way, evidence may support an inference that the accused tended to behave or think in a particular way which makes it more likely that the accused did so at the time of the offence: R v Cittadini[2008] NSWCCA 256; 189 A Crim R 492 at [22]–[23] and Elomar v The Queen[2014] NSWCCA 303; 316 ALR 206 at [359]. In IMM v The Queen[2016] HCA 14; 257 CLR 300 (IMM) at [104] Gageler J said:
The evidence is adduced in order to provide a foundation for an inference that the accused has or had a tendency to act in that way or to have a particular state of mind, the existence of which tendency makes it more probable that the accused acted in a particular way or had a particular state of mind at the time or in the circumstances of the alleged offence. Tendency evidence is thus evidence of the relevance of which lies in its capacity indirectly to affect the assessment of the probability of the existence of a fact in issue of the accused’s actual state of mind at the time when the circumstances of the alleged offence.
(Citations omitted)
Like any other evidence, in order to be admissible tendency evidence must be relevant within the meaning of s 55 of the Evidence Act; it must be capable of elucidating a “fact in issue” in the proceedings. At the s 55 admissibility stage, the questions are:
(a) Has the tendering party identified a s 97 tendency (a tendency to act or think in a “particular” way)?
(b) Are the incidents (individually or in combination/s) capable of establishing the asserted tendency?
(c) What is the relevant “fact in issue” in the proceedings?
(d) If the fact finder accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue (often - could it inform whether the accused committed the offence because the tendency conforms with what is otherwise known about the offending behaviour)?
The relevant fact in issue in the present case is whether the accused did the acts alleged by the Crown. While the accused has made no admissions, it seems clear that the issue is not the identity of the person who is alleged to have committed the offences. In each case, the accused was known to the complainant. There is always potential for issues of identification to occur when dealing with evidence from young children, or evidence from witnesses about something that occurred to them as a young child, but it is likely that the most significant issue for the jury to consider at the accused’s trial will be whether the alleged incidents occurred at all. The Crown has identified tendencies on the part of the accused to act and/or think in particular ways, and the proposed tendency evidence is capable of establishing the suggested tendencies.
At the s 55 stage, the issue is whether, assuming the jury accepted that the tendency incidents occurred and showed an asserted tendency, the tendency could “rationally affect (directly or indirectly) the assessment of the existence of a fact in issue”, in this case being whether the accused did the acts alleged by the Crown?
In
Hughes v The Queen[2017] HCA 20; 263 CLR 338 (Hughes), Kiefel CJ, Bell, Keane and Edelman JJ referred to the Report of the Australian Law Reform Commission which preceded the Uniform Evidence Acts, of which the EA is one. Their Honours said,
at [21]:
At the time the ALRC published its reports in its landmark reference on the law of evidence, the preponderance of English and Australian authority was against the admission of evidence of propensity altogether. The ALRC considered that the rules precluding the prosecution from adducing evidence of the bad character of the accused were supported by the results of psychological research. The research was concerned with the value of evidence of general behavioural traits such as honesty. A person’s general disposition was found to be of little value as a predictive tool, whereas a person’s behaviour in similar situations might justify prediction.
(Citations omitted)
In Vojneski, the Court of Appeal observed, at [46]:
In Stephen Odgers, Uniform Evidence Law (Thompson Reuters, 12th ed, 2016) (Odgers) at 669 [EA.97.60], the author quotes from Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) vol 1, [797], describing the role of tendency evidence as follows:
if an individual has behaved in a particular way in a particular situation, that individual is likely to behave in a similar way in a similar situation.
The relevance of tendency evidence, generally speaking, is to persuade the trier of fact that an accused person has behaved in a particular way in a particular situation connected with an alleged offence, because they have behaved in that way in a similar situation. At the s 55 stage, the question is one of bare relevance: can proof of the tendency logically assist in proving a fact in issue in the proceeding? Questions of the extent to which tendency evidence is capable of assisting in proving a fact in issue is not a relevant matter at the s 55 stage. That is dealt with later, when considering
ss 97 and 101 of the EA.
In determining the relevance of proposed tendency evidence, the Court is to assume that the tribunal of fact will accept the evidence: IMM v The Queen [2016] HCA 14; 90 ALJR 529 at [39]. As the relevance of proposed tendency evidence is based on the proposition that a person is likely to act in similar ways in similar situations, the s 55 requirements will frequently not be difficult to satisfy. In the present case, proof that the accused has sexually assaulted male children could, if accepted by the tribunal of fact, establish:
(a)that the accused was sexually attracted to an individual child;
(b)that the accused was willing to act upon that sexual attraction;
(c)that the accused was sexually attracted to male children; and
(d)that the accused was willing to act upon his sexual attraction to male children.
Where the fact in issue, or a fact in issue, is whether an accused person known to the complainant did the acts alleged by the Crown to constitute an offence or offences, and where it is alleged that those offences are child sex offences, the fact that the accused has one or more of the tendencies referred to in the previous paragraph is obviously capable of logically bearing upon proof of the fact in issue. Evidence tending to prove that the accused possessed such tendencies therefore satisfies the s 55 requirements.
The fact that proposed tendency evidence is relevant to a fact in issue is not enough to permit the evidence to be led. By virtue of s 97(1)(b) of the EA, the Court must think that the evidence will, either by itself or having regard to other evidence to be adduced by (in this case) the Crown, have significant probative value. In Vojneski, Murrell CJ and Refshauge J said, at [59], citing R v Ford [2009] NSWCCA 306; 201 A Crim R 451 (Ford), [52] and Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481, [33]:
A decision that evidence has significant probative value is a decision about the capacity of the evidence to influence the fact-finder; about the reasoning process that is open to a jury…
(Emphasis as per original)
What gives evidence “significant probative value”? It is obvious that the probative value of evidence depends on what the evidence is adduced to prove, in other words, what the fact in issue is that the evidence is adduced to prove. In the present case, as I have said, the Crown seeks to prove that the accused, who was known to the complainants, did those acts alleged by the Crown to constitute the charged offences. This is not a case where the Crown seeks to prove that the accused was an otherwise unidentified perpetrator of sexual assaults on a child or children.
Prior to the High Court decision in Hughes, there was disagreement between intermediate Courts of Appeal whether proposed tendency evidence had to be similar to the conduct which the Crown sought to prove before it could have significant probative value: see, for example, Ford and subsequent cases, on the one hand, and Velkoski v The Queen [2014] VSCA 121; 45 VR 680 on the other. This disagreement was addressed by the High Court in Hughes, where the majority (Kiefel CJ, Bell, Keane and Edelman JJ), said, at [39]–[42]:
Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.
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. This means that in marginal cases it might be difficult to know whether an appellate court might take a different view of the significance of the tendency evidence from a trial judge. This might result in the setting aside of any conviction and an order for a retrial. There may also be other risks for the prosecution. The admissibility of the tendency evidence is assessed based upon the evidence that witnesses are expected to give. In this case, the evidence given by the witnesses did not differ materially from their anticipated evidence. But in cases where the admissibility of tendency evidence is borderline, there may be risks if the actual evidence does not accord with the evidence as anticipated. Again, this could have consequences for any conviction. One intermediate appellate court has recently observed that the potential consequence of a new trial in cases where a conviction is overturned due to the wrongful admission of tendency evidence which was borderline should be a matter taken into account by the prosecution in assessing, perhaps conservatively, what tendency evidence it will rely upon. In any event, the open-textured, evaluative task remains one for the court to undertake by application of the same well-known principles of logic and human experience as are used in an assessment of whether evidence is relevant.
(Citations omitted; emphasis as per original)
Later, at [57], their Honours said:
An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience. Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a “pattern of conduct” or a “modus operandi” which would qualify the evidence as admissible at common law. But significant probative value may be demonstrated in other ways. In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by. This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience. The evidence might not be described as involving a pattern of conduct or modus operandi – for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.
In Hughes, the evidence of each complainant did more than establish that the offender was sexually attracted to children and that he was willing to act on that attraction. The tendency particularised by the Crown, and supported by the evidence of the various complainants, was one of engaging in sexual conduct with females under 16 years of age by carrying out sexual acts upon the complainants when they were within the vicinity of another adult. What was remarkable about the complainants’ evidence, and gave the evidence significant probative value as tendency evidence, was the degree to which it revealed the offender’s “tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk”: Hughes at [59].
As noted above, the majority in Hughes observed that an inclination on the part of a mature adult to engage in sexual conduct with children and to act on that inclination are unusual as a matter of ordinary human experience. But is the unusualness of those inclinations enough to give evidence of them significant probative value in a trial alleging child sex offences? In a separate dissenting judgment in Hughes,
Gaegler J said, at [109]:
A grown man does not normally have a sexual interest in female children less than 16 years of age. A tendency to have such a sexual interest and to engage in sexual activities with female children less than 16 years of age, opportunistically or at all, is so abnormal as to allow it to be said that a man shown to have such a tendency is a man who is more likely than other men to have engaged in a particular sexual activity with a particular female child on a particular occasion. Yet the problem is this: how much more likely is not easy to tell, in part because common experience provides no sure guide, and the abhorrence any normal person naturally feels for such a tendency highlights the risk that any subjective estimation of the likelihood will be greater than is objectively warranted.
Nettle J, also in dissent in the result, was of the opinion that proof that an accused person had committed a sexual offence against one female child was not, of itself, significantly probative that he had committed a sexual offence against another female child. A similar approach was endorsed by Gordon J in her Honour’s dissenting judgment.
Subsequently, in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 (McPhillamy), the plurality of the High Court (Kiefel CJ, Bell, Keane and Nettle JJ), at [26]–[27], again addressed the issue of the probative value of evidence which does nothing more than demonstrate that an accused has a sexual attraction to children:
As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man’s sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of “B” and “C” was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring.
Proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases it’s probative value.
(Citations omitted; emphasis as per original)
It is accepted in the present application that evidence that the accused engaged in sexual activity with a particular complainant, whether that be activity encompassed by a charge or otherwise, is admissible with regard to all charges, or all other charges, against the accused alleging an offence against that complainant: see R v Bauer [2018] HCA 40; 271 A Crim R 558 (Bauer). The issue in the present application is whether the evidence of each complainant is cross-admissible with regard to charges alleging an offence against a different complainant. In McPhillamy, the majority, at [31], said that:
Where…the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.
In the present case, the first two tendencies alleged by the Crown are in very general terms. They allege, respectively, a tendency to have a sexual interest in pre-pubescent male children and a tendency to act on that sexual interest. Without more, such tendencies cannot have significant probative value. Proof that an accused person has sexually assaulted one child is not significantly probative that they have sexually assaulted a different child at a particular time and date. As the majority said in McPhillamy above, the prosecution needs to identify some feature of the alleged instances of sexual misconduct that link them together. After the decision in McPhillamy, it is not enough in cases involving multiple complainants to identify the sole factor linking the alleged instances of sexual misconduct as the fact that all the complainants are children.
Consideration
In the table provided by the Crown, as set out at [27] above, the Crown has identified only two tendencies said to be common to the charges concerning different complainants. Tendency 3, the alleged tendency to engage in fellatio with
pre-pubescent males, is said to be a common feature of offences committed by the accused against KT and KE. Tendency 4, the alleged tendency to engage in acts or attempted acts of anal penetration with pre-pubescent male children, is said to be a common feature of offences committed by the accused against KT and BH.
With regard to Tendency 3, there is a gap between the accused’s alleged sexual offending against KT, which is said to have finished in 2007, and the commencement of his alleged offending against KE in 2016. As such, it cannot be suggested that there is a temporal link between the alleged instances of offending. In addition, the conduct alleged to link the instances of sexual misconduct (engaging in fellatio) is generic sexual conduct, in the sense that it is conduct of the type that is usually reported in sexual offending. In order to give evidence of sexual offending against complainant A significant probative value in establishing that an accused sexually offended against complainant B, more is required than merely establishing that each alleged instance of offending consisted of acts commonly reported in that type of offending. This does not provide a sufficient link between the instances of offending to give each significant probative value as tendency evidence.
Turning to Tendency 4, there is a gap of some seven years between the conclusion of the accused’s alleged sexual offending against KT and the commencement of his offending against BH. In addition, the nature or description of the acts alleged does not provide a sufficient link between the instances of alleged offending to give them significant probative value as tendency evidence for the same reasons that I gave with regard to Tendency 3.
Tendencies 5 and 6 allege sexual attraction on the part of the accused towards KT, and a willingness to act upon that sexual attraction. This clearly has significant probative value regarding those charges alleging offences against KT: see Bauer. Such tendencies do not have significant probative value regarding charges alleging offences against BH or KE. The Crown will be permitted to lead evidence of Incidents 1 to 9A in the Notice at the trial of the accused for the purpose of establishing
Tendencies 5 and 6.
Tendencies 7 and 8 allege sexual attraction on the part of the accused towards BH, and a willingness to act upon that sexual attraction. This clearly has significant probative value regarding those charges alleging offences against BH. Such tendencies do not have significant probative value regarding charges alleging offences against KT or KE. The Crown will be permitted to lead evidence of Incidents 10 to 16 in the Notice at the trial of the accused for the purpose of establishing
Tendencies 7 and 8.
Tendencies 9 and 10 allege sexual attraction on the part of the accused towards KE, and a willingness to act upon that sexual attraction. Such tendencies, if established, would obviously have significant probative value regarding charges alleging offences against KE. There is only one charge alleging an offence against KE, but it is a charge of maintaining a sexual relationship over a nominated period of just over three years. The Notice sets out two incidents relevant to this charge. If a juror was satisfied that one incident occurred, it would be open for that juror to reason that the accused had the tendencies alleged by the Crown, and to use that fact in determining whether they are satisfied that the second Incident occurred. For this reason, although there is only the one charge, permitting the Crown to rely upon tendency evidence is not futile. The tendencies alleged do not, of course, have significant probative value regarding charges alleging offences against BH or KT. The Crown will be permitted to lead evidence of Incidents 17 and 18 in the Notice at the trial of the accused for the purpose of establishing Tendencies 9 and 10.
Orders
The formal orders which I make are:
· the Crown will be permitted to lead evidence of Incidents 1 to 9A at the trial of the accused for the purpose of establishing Tendencies 5 and 6;
· the Crown will be permitted to lead evidence of Incidents 10 to 16 at the trial of the accused for the purpose of establishing Tendencies 7 and 8;
· the Crown will be permitted to lead evidence of Incidents 17 and 18 at the trial of the accused for the purpose of establishing Tendencies 9 and 10;
· the Crown’s application is otherwise dismissed;
· these reasons are not to be published, except to parties, until the conclusion of the accused’s trial.
Postscript
I am cognizant of the fact that the present ruling is likely to have an impact upon the form of the indictment that presently exists. There are aspects of that indictment which trouble me, but about which there is no application before me and upon which I have not had the benefit of hearing submissions from counsel. I will, nevertheless, simply record my concerns.
Counts 2 and 5 on the current indictment allege offences by the accused against KT said to have occurred when KT was under the age of 10 years. The range of dates particularised in these charges, in each case, concludes on the 10th birthday of KT (according to the Crown Case Statement), a day on which he was no longer under the age of 10 years. Secondly, Count 14 alleges an offence partly occurring when the accused was a juvenile and partly when he was an adult (based on the date of birth of the accused found in the Crown Case Statement). Finally, I note that Counts 1 and 4 allege offences occurring partly before and the date of the accused’s 14th birthday, and Count 7 alleges an offence occurring partly before and partly after the accused’s
14th birthday. By virtue of s 26 of the Criminal Code 2002 (ACT), where a child is aged 10 years or older but under 14 years old at the time of an alleged offence, he or she can only be held criminally responsible if the child knows that their conduct is wrong, and the burden of proving this fact lies with the Crown. It is not readily apparent to me how this provision could operate regarding an offence expressed as having occurred at some point prior to and after the accused’s 14th birthday.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Sophie Hewitt Date: 15 April 2020 |
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