R v RJW

[2019] NSWDC 303

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RJW [2019] NSWDC 303
Hearing dates:	26 - 27 June 2019
Date of orders:	24 June 2019
Decision date:	26 June 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Evidence sought to be led by the Crown pursuant to the tendency notice is admissible
Catchwords:	EVIDENCE — Character evidence — Tendency rule CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years
Legislation Cited:	Evidence Act
Cases Cited:	Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 R v Bauer [2018] HCA 40 R v Ford [2009] NSWCCA 306
Category:	Procedural and other rulings
Parties:	Regina (Crown) RJW (Accused)
Representation:	Counsel: Mr P Lowe (Crown) Ms M Swift (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused)
File Number(s):	2017/42529
Publication restriction:	identifying details of complainants

Judgment

INTRODUCTION

1. The accused faces a 16 count indictment. Count 1 is an allegation of sexual intercourse without consent with KL. The other 15 counts relate to LB and involve ten counts of sexual intercourse (counts 2, 3, 5, 6, 7, 8, 9, 11, 14, and 16). There is one count of attempted sexual intercourse (12), two counts of committing an act of indecency (counts 13 and 15), one count of indecent assault (count 10) and one count of assault with an act of indecency (4).

THE NOTICE

2. By notice the Crown asserts tendency. The notice is dated 6 May 2019. The tendency sought to be proved is:

"(2A) Has a tendency to have a sexual interest in teenage girls aged 16 years and under who are under his authority and supervision including KL and LB, and;

(2B) has a tendency to act on that sexual interest by engaging in sexual conduct with KL and LB while they were at his family home just not opportunistically and where there was a risk of detection (either by way of complaint from the girls in question or as a result of someone witnessing an incident and/or walking in)".

STATUTORY PROVISIONS

3. Section 97(1) of the Evidence Act provides:

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

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

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

4. The other relevant provision for consideration is s 101. S 101(2) provides:

“(2)

"This section only applies in a criminal proceeding and so applies in addition to ss 97 and 98(2). The 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."

THE MEANING OF PROBATIVE VALUE AND SIGNIFICANT PROBATIVE VALUE

5. The dictionary to the Act defines probative value of evidence as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of facts in issue in the proceedings". Significant probative value has been interpreted as connoting something more than mere relevance but something less than a substantial degree of relevance.

6. The majority in Hughes v The Queen [2017] HCA 20; (2017) 344 ALR 187 adopted at [40] the following description of significant probative value from Campbell JA's judgment in R v Ford [2009] NSWCCA 306,

"The disputed evidence should make more likely to a significant extent the facts that make up the elements of the offence charged".

7. The determination whether probative value is significant is an evaluative judgment about which minds may differ. As the majority in Hughes noted at [16],

"The open textured nature of an inquiry into whether the Court thinks that the probative value of the evidence is significant means it is inevitable that reasonable minds might reach different conclusions".

8. The majority in Hughes made clear that the determination whether tendency evidence had significant probative values requires two separate evaluations: first, whether the evidence supports the asserted tendency and secondly, whether the asserted tendency supports the elements of the offence. The majority said at [41],

"The assessment of whether evidence has significant probative value involves consideration of two interrelated but separate matters. The first is the extent to which the evidence supports the asserted tendency. The second 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, that is instead a question concerning whether the offence is 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 tendency and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."

CROWN FEATURES OF COMMONALITY

9. The Crown pleads the following features of commonality in respect of the charges;

1. The allegations concern young girls aged 13 and 16 years;

2. The accused (a man of mature years) was significantly older than the complainants;

3. The accused has had access to KL and LB through his wife, SW;

4. He was in the position of authority and supervision in respect to KL and LB;

5. He had taken on a position of "loco parentis" in respect to both of them;

6. KL and LB were vulnerable having come from difficult and/or dysfunctional homes prior to moving in with the accused and his family;

7. All of the offences occurred in the accused home while KL and LB were living with the accused and his family;

8. The allegations relate to one incident involving KL, and six incidents involved LB (incidents 1 to 7 respectively);

9. A number of the incidents occurred at times when SW was absent from the house, the accused having created and/or found an opportunity to be alone with KL and/or LB respectively (i.e. incident 1,4, 5, 6 and 7);

10. There were other people present at the house at the time of some of the offences;

11. The allegations involved penile/vaginal intercourse with KL and LB;

12. There are various other forms of sexual activities relating to LB.

EVIDENCE THE CROWN RELIES UPON

10. The Crown contends that the evidence in respect of each complainant is cross admissible as tendency evidence. A summary of the evidence that the Crown intends to adduce for each count is as follows;

Count 1.

11. The accused grabbed KL by the arm and took her into the bedroom he shared with his wife. He told her to lie on the bed, and she did. The accused then took KL's pants and underpants off, and started kissing her neck, and stroking her hair. The accused then removed his boxer shorts exposing his penis which became erect as he continued to kiss KL's neck.

12. The accused then inserted his penis into KL's vagina. She told him to stop, however, he continued to have sexual intercourse with her causing her to feel pain and fear. KL froze from the fear while the accused had sexual intercourse with her. After some time, the accused stopped and flopped on top of the complainant before rolling off.

Count 2.

13. At his home, the accused approached LB, and kissed her while she was standing in the kitchen. The accused then placed his hand down the front of LB's pants and underpants, and inserted his finger into her vagina causing her pain. The accused removed his finger a short time later.

Count 3.

14. LB was in her bedroom. The accused walked into the bedroom, and approached LB. He leaned over her, hugged her, kissing LB on the mouth as he said goodnight. While he did this, he placed his hand down the back of her pants, and held onto her bottom. A short time later, he took his hand out, and placed it down the front of LB's pants before placing his finger inside her vagina for about 20 seconds.

Counts 4 - 7.

15. LB was in the master bedroom with the accused. LB and the accused were lying next to each other on the bed. The accused placed his arm underneath LB. He took hold of LB's hand, and placed her hand onto his penis causing LB's to masturbate the accused. The accused then got LB to stand near his face while he licked her vagina for about one minute. LB lay down on the bed, and the accused told her to stay there.

16. He then walked over to a drawer nearby where he obtained a lubricant which he squirted on his hand. The accused, using one hand, rubbed the lubricant over the backside and vagina of LB, inserted a finger both into her vagina and anus simultaneously. The accused told LB again to stay there, and then walked back to the drawer, and obtained an object before returning to LB. The accused instructed LB to lift her legs up, and has then inserted an unknown object into LB's anus causing pain to her.

Count 8.

17. Due to bad behaviour of some sort, LB would remain at the home with the accused while the rest of the family celebrated Australia Day. They started watching an unknown program on TV. LB sat on the accused's lap which is something she used to regularly do. He started to kiss her on the lips. His tongue went into her mouth. His hands went down LB's pants and underpants. The he placed one or two fingers inside her vagina and moved his fingers in and out for a short period of time.

Counts 9 - 13.

18. LB was in the bedroom of the accused. She was lying on the bed with a blanket on top of her watching TV. The accused walked in and lay next to her. The accused then placed his left hand down the front of LB's shorts and rubbed the outside of her vagina on top of her underpants. A short time later he placed his hand under LB's pants and put his finger inside her vagina. He moved his finger in and out of LB's vagina for about two minutes. At this point the accused removed his hand and then pulled out his penis from his pants. The accused took hold of LB's hand and placed her hand onto his penis and moved her hand upon his penis, pushing it up and causing her to masturbate him. The accused got LB to go underneath the blanket and she ended up placing her mouth on his penis and sucked or performed fellatio on him.

19. While LB was bent down doing this the accused was trying to place his finger into her bottom. She stopped performing fellatio. He told her to lie across the bed, which she did. The accused then masturbated as he stood over LB before he ejaculated onto her stomach.

Counts 14 - 16.

20. LB entered the accused's bedroom to use her mobile phone. The accused then entered the bedroom and closed the door. The accused hugged LB and told her to take her pants off. She did as she was told and removed her boxer shorts and underpants. Then while LB was laying on the bed the accused, who was standing in front of her, inserted two fingers into her vagina, asking if it felt good. While still digitally penetrating LB, the accused then began to masturbate his penis. The accused inserted his penis into LB's vagina. The accused had sexual intercourse with LB for some time before withdrawing his penis and ejaculating onto her stomach.

CROWN SUBMISSIONS

21. The Crown relies upon what was said by the majority in Hughes at [41], although the Crown, in his most helpful submissions, suggested that it was found at [54] which is incorrect because [54] deals with the evidence that occurred in the Hughes trial. The Crown relied upon what was said in Hughes at [41], in that in summary there is likely to be a high degree of probative value – (i) the evidence by itself or together with the evidence strongly supports proof of tendency and; (ii) the tendency strongly supports the proof of fact that makes up the offence charged.

22. In R v Bauer [2018] HCA 40 the Court held that the trial judge had been correct to conclude that the complainant's evidence was admissible as tendency evidence. All of the charged and uncharged acts were alleged to have been committed and none of them was far separated in point of time or far different in nature of gravity from the others. These characteristics meant that there was no need for the evidence to have any special feature in order to render the evidence of one charge cross-admissible and proof of the other charge or to render the evidence of uncharged acts admissible and proof of charged acts.

23. Although Bauer was a single complainant case, the High Court, speaking in one voice, discussed tendency evidence in multiple complainant cases at [58]. The Court said:

"In a multiple complainant sexual offences case where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant, it is significantly probative of the accused having committed a sexual offence against another complainant. The logic of probability reasoning dictates that for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together.

More specifically, absent such a feature of or about the offending evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant and the mere fact that the accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If however there is some common feature of or about the offending it may demonstrate on tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true."

24. As to 2A in the notice the Crown submits, that the evidence of both complainants provides support for the accused as having that tendency at the time of the trial. It assists to establish that the accused had a state of mind involving the sexual interest in girls aged 16 years and under who were under his authority and supervision. His sexual interest manifested itself as penile vaginal penetration of both complainants, and in acts of masturbation performed by LB on him at his instigation.

25. As to 2B in the notice the Crown submits, the extent to which the tendency makes more likely the facts making up the charge offences - the accused was not just in a position of authority and supervision, but his sexual interest was to engage in sexual conduct with both complainants in the family home, not just opportunistically but impulsively, thereby exposing himself to the risk of detection. The alleged acts of penile vaginal penetration, as well as the circumstances under which they occurred, were extremely similar. The sexual activity revealed the accused's tendency to act on his sexual interest.

26. The Crown submits that the common feature in the case (see [3] of the notice) which link the offences together are that a man of mature years had a sexual interest in children between 13 to 16 years which he was prepared to act on.

THE ACCUSED'S SUBMISSIONS

27. The accused correctly concedes that the counts 2 to 16 dealing with LB are cross-admissible with each other. The accused contends that counts 2 to 16 (LB) should not be cross-admissible with the KL count. It is submitted on behalf of the accused that there is no common feature of or about the allegations by the respective complainants which would make one complainant relevant to the other: [13] accused's submissions. The accused concedes:

"that the evidence of LB taken at its highest is capable of establishing that the defendant had a sexual interest in her and that he sought to fulfil the sexual interest by committing sexual acts with her. The existence of a sexual interest and a willingness to act on it, if found to be established by the evidence, would be highly probative": [14] accused's submissions.

28. The accused points to the following matters:

1. the age difference between KL (16) and LB (10).

2. that count 1 involves consent and counts 2 to 16 do not.

3. there is a significant difference between a sexual attraction to pre pubescent or emerging pubescent girls and a sexual attraction to a physically mature 16-year-old girl.

4. the features relied on by the Crown to link the allegations made by the two complainants lack the logical connection which would be required for the allegations to be significantly probative.

5. the allegations of sexual misconduct are different. In the case of KL, it was penile-vaginal intercourse. In the case of LB, it included digital penetration, masturbation of the accused, performing fellatio on the accused, cunnilingus, use of an unknown object to penetrate her anus, digital penetration and anus and penile-vaginal intercourse.

6. There was no identifiable or a particular pattern of sexual conduct during each alleged incident.

7. The two sets of matters are materially different in nature and thus comparisons between them has a strikingly lower probative value and thus it is less likely that the probative value of the evidence will substantially outweigh the prejudicial effect it may have on the defendant.

CONSIDERATION

29. In Hughes, the case was ultimately decided by a majority on the basis that taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature, that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.

30. The Crown submits there are features of or about the offending that links the two together. The Crown relies upon the relationship, opportunity, the place, temporal connection and the age of the complainants. The Crown further relies upon the unusual feature of the risk of detection either by way of complaint from the girls in question or as a result of someone witnessing an incident. The Crown further submits that if the complainants' accounts were considered in isolation, the conduct may appear to be inherently unlikely.

31. An inclination on the part of a mature adult to engage in sexual conduct with girls aged 16 or younger, in a position of trust and a willingness to act upon that inclination are unusual as a matter of ordinary human experience.

32. I am satisfied that there are features of commonality in respect of the charges. The proposed evidence reveals a pattern of conduct which qualifies the evidence as significantly probative and admissible.

SECTION 101 DETERMINATION

33. Prejudicial effect of tendency evidence cannot be equated with prejudice to the accused. All tendency evidence is prejudicial to an accused. In Bauer at [73], the High Court said:

"Despite textual differences between the expression prejudicial effect in s 101, unfairly prejudicial in s 135 and unfair prejudice in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way."

34. The probative value of the evidence substantially outweighs any prejudicial effect that it may have on the accused. Appropriate directions to the jury will overcome any prospects of the misuse of the evidence.

34. The evidence sought to be led by the Crown pursuant to the tendency notice is admissible.

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Amendments

11 July 2019 - paragraphs 11 and 12 - anonymised name

Decision last updated: 11 July 2019