R v RD

[2012] NSWDC 242

District Court

New South Wales

Medium Neutral Citation:	R v RD [2012] NSWDC 242
Hearing dates:	27/07/2012
Decision date:	27 July 2012
Jurisdiction:	Criminal
Before:	Murrell SC DCJ
Decision:	Tendency evidence admitted re two complainants, rejected re third complainant.
Catchwords:	CRIMINAL LAW- Evidence- tendency- application on voire dire to adduce evidence that the accused has a tendency to be sexually interested in young girls- evidence of other complainants from separate trials- risk of concoction and contamination- similarity of acts- distance in time- whether significant probative value to facts in issue.
Legislation Cited:	Evidence Act 1995 (Cth) ss 97, 101
Cases Cited:	R v Cittadini [2008] NSWCCA 256 Dao V R [2011] NSWCCA 63 R v PWD [2010] NSWCCA 209 AE v R [2008] NSWCCA 52 Hoch v The Queen (1998) 165 CLR 222 BP v R [2010] NSWCCA 261 R v OGD [2000] NSWCCA 404
Category:	Separate question
Parties:	The Crown RD
Representation:	Mr P Wagstaff (Crown) Mr M Smith (Accused) Office of the Director of Public Prosecutions NSW McGirr James Hall & Associates (Accused)
File Number(s):	2009/223470
Publication restriction:	There is to be no publication of the names of the complainants or any material that tends to identify the complainants.

Ruling on Tendency Evidence

1. A prosecutor can rely on evidence showing that an accused tends to think or act in a particular way if the "tendency evidence" has "significant probative value" and the probative value "substantially outweighs any prejudicial effect" on the accused. In this case, three young women (complainants A, B and C) allege that, in 2002, the accused sexually assaulted them. The Crown argues that the evidence of each complainant should be admitted in the trials relating to the other complainants because it shows a tendency of the accused to be sexually interested in young girls and to act upon that interest. In addition, the prosecutor seeks to rely upon A's evidence of sexual conduct in Queensland and a photograph of a naked girl (said to be A) that police found at the premises of the accused. In the trials relating to A and C (but not B), I will admit evidence of each in the trial relating to the other because I am satisfied that it has significant probative value and its probative value substantially outweighs any unfair prejudice to the accused.

1. The Crown gave appropriate notice of its intention to adduce tendency evidence (voir dire Exhibit 5).

1. The Crown submits that the evidence is also admissible as coincidence evidence. However, the Crown's principal concern is to use it as tendency evidence.

1. It is not necessary to address the coincidence issue because it raises considerations similar to those raised by the tendency argument. Insofar as it raises different considerations, in the circumstances of this case, it would be more difficult for the Crown to establish admissibility.

1. The Crown does not pursue the foreshadowed application to adduce tendency evidence in relation to complainant D, in relation to A's evidence that the accused showed her photographs of naked children, or in relation to B's evidence that the accused encouraged her to wear only knickers.

The Acts Alleged in the Indictment

1. In 2002, A was 7 or 8 years old, B was 5 or 6 years old and C was 7 years old. A and B are sisters. A and C were friends. A, B and C met the accused when they resided in a motel/ caravan park that was managed by the accused. With one exception, it is alleged that the offences occurred inside the residence of the accused at the motel.

1. The indictment contains 12 relevant counts. Briefly, the allegations founding the counts are as follows:

(1)   Aggravated sexual intercourse on A (digital penetration during overnight stay).

(2)   Aggravated indecent assault on A (alternative to 1).

(3)   Aggravated sexual intercourse on A (digital penetration using cream on pretext of treating vaginal infection).

(4)   Aggravated sexual intercourse on A (digital penetration using cream, during overnight stay).

(5)   Aggravated sexual intercourse on A (digital penetration using cream, during daytime).

(6)   Aggravated indecent assault on B (touching her genital area when she was asleep on pretext of checking whether B had urinated, during overnight stay).

(7)   Aggravated indecent assault on B (touching her chest under clothing, during overnight stay).

(8)   Aggravated indecent assault on B (touching her chest over clothing while walking together).

(9)   Aggravated sexual intercourse on C (digital penetration on the pretext of applying cream to a rash on her back).

(10)   Aggravated indecent assault on C (touching her genital area, breast and buttocks outside her swimming costume, during the day).

(11)   Aggravated indecent assault on C (touching her genital area, breast and buttocks, outside her clothing, during the day).

(12)   Aggravated indecent assault on C (touching her genital area, breasts and buttocks, outside her clothing, during the day).

Relevant Chronology

2002

Early January

A, B and their mother moved into the motel.

Mid to late January

The accused took A and B on a holiday to Queensland.

Late March

A, B and their mother moved from the motel, but continued to visit.

Late June

D moved into the motel. Later in 2002, she babysat C.

Early September

C and her mother moved into the motel.

Late September

At about the time that their mother gave birth to their younger sister, A and B stayed at the motel for some days.

Early November

A's mother says that A complained that the accused has "touched (her) china".

18 November

A and B were placed in foster care.

21-22 November

A complained to her foster mother, inter alia that the accused had "placed his fingers inside her vagina". When questioned by her foster mother, B stated that the accused "had touched her too".

25 November

A and B were examined by Dr Hart.

3 December

A and B were interviewed by police.

B stated that the accused had touched the outside of her fanny one night when she was sleeping at his residence with A, but only to check whether she had wet herself.

12 December

Pursuant to a search warrant, police seized a photograph of a naked girl and the computer of the accused (nothing of relevance was found when the computer was examined).

13 December

A and B were examined by Dr Brennan.

20-22 December

Complaint by C to D, then to C's mother (see below).

2003

8 January

C was interviewed by police (re counts 10,11 and 12)

8 April

D was interviewed by police

2011

19 May

Further statement of C (re count 9).

26 May

Further statement of B. She provided a more incriminating account in relation to one incident and, for the first time, provided a statement in relation to another two incidents.

27 May

Further statement of A.

30 May

Further statement of B.

1. A gave evidence that, on more than one occasion, she told B what had happened to her. A said that B was aware of the conduct of the accused towards A as B had witnessed it. During the period that the accused assaulted her, A said that she made complaints to B to the effect that her genital area was sore and that the accused was "a dirty old man". A asked B whether the same things had happened to her (i.e. the application of cream to the genital area and touching of the area). B responded that she had been "touched". According to A's mother, in about mid November 2002, A complained to her that the accused had "touched" her genital area. A's mother confronted the accused. He denied that he had deliberately touched A in an inappropriate way when applying cream to her back, and A's mother accepted his denial.

1. On 21 November, A complained to her foster mother. A and B were medically examined on 25 November. The doctor's report (voir dire Exhibit 2) refers to a complaint by A that she and B had been:

" interfered with ... on numerous occasions and she and her sister were touched in the groin area and at times hurt ... photos were taken ... the children were left in the perpetrator's care, alone at times ..."

The report mentions digital penetration.

1. B gave evidence that A did not complain about what the accused had done to A. B said that she had never told A what the accused had done to her. She first disclosed the misconduct in response to questions from her foster mother. There was no relevant communication between B and C.

1. A gave evidence that, on one occasion in 2002, she told C that the accused had "touched (her) a number of times" and had "inserted cream". A said that C had replied: "He is doing the same things". C did not recall any complaint made by or to A. In late 2002, C made a complaint to D and to her mother. C doesn't recall whether, at that time, she was aware that others had complained. On 8 April 2003, D told police of C's complaint that the accused:

" took (her) into his bedroom and ... pulled (her) pants down and tried to shove ... his fingers inside of (her) and he was rubbing (her) down there and everything ...".

C's mother approached police. The COPS entry of 23 December (voir dire Exhibit 14) states:

" (the mother stated that she had been told that) the accused had touched (C) on the vagina ... he was playing with the rude bits and put his fingers in rude bits ... over a period of five or so months, with the last being a week ago. This occurred within the office/house section of the motel ...".

In a statement made on 20 January 2003, C's mother recalled C's complaint of 21 December as being that the accused had "touched" her when they were seated in his lounge room. The 2003 police interview does not contain any reference to the facts founding count 9. In C's 2011 statement, those facts are set out in some detail. In 2011, C recalled that she had been truthful in the 2003 interview, but she no longer recalled anything about the two assaults discussed in 2003. Following the police interview of C on 8 January 2003, there was no contact between A and C.

The Evidence Act

1. Section 97 of the Evidence Act 1995 provides:

"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:

...

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

... " (emphasis added)

1. The Dictionary to the Act defines "probative value" as:

"the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

1. Section 101 of the Act provides:

"101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

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

(2) Tendency 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."...(emphasis added)

Applying the Tendency Rule

1. The " tendency" to which " the tendency rule " refers is a tendency of a person to act in a particular way or to have a particular state of mind. If an accused has a tendency to act or think in a particular way, then that is a circumstance or stepping stone that may make it more probable that he acted or thought in that way in connection with the alleged offence: R v Cittadini [2008] NSWCCA 256 at [21] - [23], Dao v R [2011] NSWCCA 63 at [180].

1. Where the Crown seeks to rely upon tendency evidence, a court must embark on two inquiries:

(1)   Whether the evidence has "significant probative value" (the s 97 (1) inquiry).

(2) Whether the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the accused (the s 101 inquiry).

1. For the purposes of section 97, the question is whether the contentious evidence is, to a sufficient degree, capable of rationally affecting the assessment by a jury of the probability of the existence of the relevant facts in issue: Dao v R [2011] NSWCCA 63 at [184]. In order to have "significant probative value", tendered evidence must be important or "of consequence". There is no need to establish "close similarity" between the tendered evidence and the evidence directly supporting the relevant charge, let alone "striking similarity": R v PWD [2010] NSWCCA 209 at [79]. However, generally speaking, where there is greater similarity between the tendency evidence and the evidence directly supporting the relevant charge, the tendency evidence will have greater probative value. The assessment of the probative value of evidence does not depend on its believability or reliability; the issue is whether and to what extent the evidence is "capable" of affecting a jury's determination of a fact in issue: Dao at [182].

1. The onus is on the Crown to establish that tendency evidence has significant probative value.

1. The "unfair prejudice" addressed in s 101 is similar to that addressed in s 137. Generally, it is prejudice associated with the risk that a jury will take an irrational approach and misuse the evidence, to the detriment of the accused. In AE v R [2008] NSWCCA 52, the Court found that the trial judge should have rejected tendency evidence of a long course of sexual misconduct against one complainant when considering whether the Crown had proved two counts of alleged sexual misconduct against a second complainant because of the risk that the jury would be "overwhelmed" by the strength of the tendency evidence: at [45]. Further, the Court found that the evidence should have been rejected because there was a possibility of deliberate concoction arising from the fact that the complainants were sisters and had been in contact with each other at the time that each made a complaint: at [44]. The reasons for the latter finding were not fulsome.

1. At common law, it has been said that tendency evidence that is "reasonably capable of explanation on the basis of concoction" will lack the necessary probative value. When considering whether concoction is a reasonable possibility, it is relevant to examine the relationship, opportunity and motive of the witnesses: Hoch v The Queen (1988) 165 CLR 222 at 297.

1. This formulation has been adopted in relation to s 101 of the Act. In BP v R [2010] NSWCCA 303 at [110], Hodgson JA observed that the risk of concoction or contamination "powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect". If concoction/contamination may be the explanation for apparent similarities, the tendency evidence is deprived of force. It has often been noted that the chance of concoction must be a real chance, not merely a speculative chance: eg in R v Colby [1999] NSWCCA 261 at [111], in BP at [110]. The Crown bears the onus of negating any "real chance" of concoction: R v OGD [2000] NSWCCA 404 at [74], BP at [110].

1. In relation to contamination, a slightly different and less restrictive approach has been taken. Evidence that may have been contaminated will be excluded under s 101 if the risk of contamination affects material issues and "goes to the substance of the evidence": per Hodgson JA in BP at [123].

Applying Section 97 in this Case

1. In this case, there is no dispute that the contentious evidence has probative value in that it is capable of bearing on two facts in issue: whether the conduct founding each charge did occur, and whether (if it did occur) the conduct was sexually motivated. Nor was there extensive argument about whether the evidence has "significant probative value".

1. The Crown relies upon the following similarities as showing a pattern of sexual attraction to young girls and sexual conduct towards them:

• Complainants A, B and C were girls aged respectively 7 - 8, 5 - 6 and 7.
• All offences occurred during 2002.
• The offences against A and B occurred when the complainants were in the care of the accused.
• The nature of the conduct was similar (touching the outside of the genital area, digital penetration or touching the breasts).
• The conduct occurred in the residence of the accused (except count 8).
• In relation to counts 3, 4, 5 (complainant A) and 9 (complainant C), and in relation to the Queensland act, cream was used (in relation to two counts, as a pretext for touching).

These matters do not show close similarity, but they do show consistency in interest (particularly in relation to the age of the complainants), in the way in which opportunity was used, and in behaviour.

1. In relation to each count, the evidence of the other counts, the Queensland act and the photograph are of "significant probative value" in that the evidence is capable of being an important circumstance, establishing a definite tendency on the part of the accused to engage in sexual misconduct towards girls aged 6 - 8 years.

1. The Crown has discharged the onus of establishing "significant probative value".

Applying s 101 in this Case

1. The onus is on the Crown to establish that the probative value of the tendency evidence substantially outweighs any prejudicial effect.

1. Although there was no onus on him, I note that the accused made the following submissions:

(1)   As between A and B, there is a real possibility of concoction because the complainants are sisters who were living together at all material times. According to A (whose evidence should be accepted on this point), the complainants had discussed the allegations prior to disclosure to a third party.

(2)   As between A and B, there is a real possibility of material contamination, particularly in relation to B's evidence because A had told B about the way in which the accused had misconducted himself towards A.

(3)   If A's evidence is admitted as tendency evidence in relation to the complaints by B, there will be unfair prejudice because of the "bootstraps effect" referred to in AE.

(4)   As between B and C, B's statement of May 2011 is apparently contaminated by C's 2011 statement. Several paragraphs of C's statement have been "cut and pasted" by police into B's statement.

(5)   C's evidence in support of count 9 is inherently unreliable as the allegations (including that in relation to the use of cream on a pretext) were not made in the 2003 police interview. Notably, the most distinctive similarity in the allegations made by the complainants is the use of cream.

1. I accept that, when assessing whether there has been a real possibility of concoction, it is relevant to examine the relationship, opportunity and motive of witnesses. However, the Court must examine all relevant considerations. Important (and relatively objective) considerations are the timing and content of the complaints made by the witnesses. The timing and content of complaints may assist the Court to determine whether there is a real risk that an opportunity for concoction/ contamination has been utilised.

1. As between A and B, there was and is a close sisterly relationship. Both at the time of the alleged offences and over the years since 2002, there has been ample opportunity for concoction. However, in the period prior to 3 December 2002 (when the complainants were interviewed by police) there was no credible reason for the complainants to concoct evidence and the contents of the police interviews do not suggest concoction. In effect, in her police interview, B maintained that the accused had done nothing wrong when he touched her to check whether she had wet herself. B was reluctant (or unable) to incriminate the accused. The police interviews of A and B reveal quite different accounts of the conduct of the accused. Further, as B was only 5 - 6 years old in 2002, common sense suggests that she would have been incapable of consistent and complex lying. I am satisfied that there was no concoction prior to 3 December 2002. There is a theoretical possibility of concoction after December 2002. However, when the witnesses were called on the voir dire that possibility was not explored. Further, it was not the subject of submission.

1. In relation to the issue of contamination, the position is different. The 2002 complaints and statements by B revealed no more than "touching", possibly innocent touching. After a break of eleven years, B provided detailed incriminating statements.

1. A readily admits that she repeatedly complained about the accused to B. As B's older sister, A has been an influential and authoritative person in B's life. It may be that B's current account of the conduct of the accused is true. However, there is a distinct risk that the change and development of her evidence has been materially (although subconsciously and unintentionally) influenced by A. This distinct risk significantly undermines the probative value of B's evidence as tendency evidence in relation to the alleged offences against A. Further, given the inherent problems with B's evidence (arising from her failure to clearly incriminate the accused in 2002), a substantial risk of unfair prejudice would arise if A's evidence was allowed as tendency evidence in relation to the alleged offences against B due to its possible "bootstraps" effect in relation to the counts concerning B. Consequently, A's evidence cannot be used as tendency evidence on the counts concerning B, and vice versa.

1. A and C were friends. There were opportunities to discuss events, inter alia at school. According to A, on one occasion there was a discussion and she told C that the accused had touched her a number of times and had "inserted cream". C may have learned of those allegations prior to 20 December 2002, when C complained to D that the accused was rubbing her down and tried to insert his fingers. Since 2003, there has been no contact between A and C. In these circumstances, is there a real risk that C's evidence has been concocted or contaminated through her 2002 discussions with A?

1. There is no obvious motive for concoction. Further, in C's 2003 police interview, she did not raise the allegations that support count 9. Unlike C's other allegations (that were made in 2003), the count 9 allegations do have a close similarity to some of the allegations made by A, and are also similar to the complaint that A says that she made to C in 2002. It was not until 2011 that C mentioned to anyone that the accused had used cream in relation to sexual misconduct. In my view, had there been concoction between A and C, then C would have raised the count 9 complaint in 2003 and would have mentioned cream in her 2002 complaints and/ or her 2003 police interview. Similarly, the complaints and/ or the interview would suggest any contamination of C's evidence through prior discussions with A. I am satisfied that there is no real risk that C's evidence has been concocted with A, and there is no real risk that it has been materially contaminated by discussions with A. In relation to the allegations made by A, C's evidence has substantial tendency value, particularly as the complainants were the same age at the time of the alleged offences. Because of its close similarity to some of the events alleged by A, C's evidence in relation to count 9 is especially probative.

1. Given the timing of A's complaints and the very general disclosure that C made to A (that the accused was doing "the same things" to her), there can be no real possibility that A's evidence has been materially contaminated by C.

1. I am satisfied that the evidence of A should be admitted as tendency evidence in relation to the counts involving C, and vice versa.

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Decision last updated: 24 January 2013