R v Se

[2020] NSWDC 951

District Court

New South Wales

Medium Neutral Citation:	R v SE [2020] NSWDC 951
Hearing dates:	Tuesday 20 October 2020
Date of orders:	Tuesday 20 October 2020
Decision date:	20 October 2020
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Evidence admissible as tendency evidence pursuant to s 97A of the Evidence Act 1995 (NSW).
Catchwords:	EVIDENCE — Tendency evidence — Criminal proceedings — Sexual intercourse with a child under 10 — Sexually touch child aged between 10 and 16 — Indecent Assault — Accused observed by witness interacting with children at social events — Accused would often put children on his lap and would drag hand over groin of child sometimes grasping to readjust child’s position on his lap — Evidence not found to demonstrate unfair prejudice to the accused — Evidence found admissible as tendency evidence.
Legislation Cited:	The Evidence Act 1995 (NSW) ss 97A, 97A(2), 97A(5), 97A(5)(g), 101.
Cases Cited:	HML v The Queen (2008) 235 CLR 334. IMM v The Queen (2016) 257 CLR 300. Hughes v The Queen (2017) 92 ALJR 52. Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56.
Category:	Principal judgment
Parties:	Regina (The Crown) SE (The Accused)
Representation:	Counsel: Mr. M. Pincott (The Crown) Mr. L. Finch (The Accused) Solicitors: Ms. M. Hughes (The Crown) Ms. T. Cornwall (The Accused)
File Number(s):	2019/0003781
Publication restriction:	Non-publication order applies regarding the identity of the accused and any material likely to identify the accused, AND; Statutory non-publication order applies regarding the identity of the complainants and any material likely to identity the complainants.

Judgment

1. HER HONOUR: The Crown will, at the continued trial of this matter, seek to rely on the evidence of a witness, Kellyn Larritt, as tendency evidence. It has not been necessary for me to rule in relation to other parts of the Crown’s tendency notice because the cross-admissibility of the evidence of each of the complainants does not need an advance ruling because it is a joint trial, and also I have not been required to rule in relation to the other piece of third party tendency evidence from the accused’s biological daughter, BS, because it was only a portion of that which was objected to, which would have been in the nature of complaint evidence from her, which is not pressed by the Crown.
    

2. The Crown does intend to lead evidence from BS in which she claims she had been sexually touched by the accused when she was a child and there is no objection, at least at this stage, on behalf of the accused to that part of the evidence being called as tendency evidence. She will give evidence of what she claims to have occurred. She also claims to have made a complaint via a Facebook message. That portion of her statement was objected to and the Crown indicated at the beginning of this trial yesterday that they will not seek to rely on that portion of her statement, which with respect is an appropriate concession to make on the basis that it would amount to either complaint evidence on her part or evidence of a prior consistent statement if, of course, an issue is raised in relation to lack of prior consistent statement. That matter may be revived, but accused’s counsel has indicated to the Court that he is unlikely to make such a submission or put such a proposition to her.
    

3. The only other piece of tendency evidence is that which is now the subject of a ruling by me, namely from a neighbour who was present apparently at various barbecues in which the complainant, CG, and her sister, the other complainant, and her other sister were present together with other neighbours as was Ms Larritt and her children, one of whom was a 7-year-old girl.
    

4. As quickly as I can, I will summarise her statement. It is in two parts. She asserts that she observed the accused interacting with a number of children, in particular in the first part of her statement, the two complainants and their other sister whilst at various social functions. They were at various neighbourhood houses where there were barbecues. Her evidence would be that he was affectionate towards each of the complainants and their other sister and in particular in her statement she says he would often pick them up and sit them on his lap and his hands would be dragged over their groin regions and sometimes grasping to readjust their position on his lap.
    

5. It is not entirely clear what exactly this means, but in summary it would appear to be that he displayed a great deal of affection towards all of them, in particular the complainant CG. Her evidence would be that she often saw him kiss the two younger children, namely this complainant and her sister who is not a complainant and he would kiss them on the forehead and the cheeks. Her evidence is also that - and this could not be given in this form but nonetheless presumably would be able to be given in an appropriate form - that he would find reasons to stay inside with the children whilst the adults were outside.
    

6. The second part of her statement that the Crown relies on to prove the tendencies are the portions specifically at paragraphs 7 to 11 of her statement, that she also saw the accused interact with her daughter who was then aged seven, that she saw him pick her up, sit her on his lap and kiss her on the forehead. She then called her daughter over to her. She then took some action in relation to that, none of which of course would be admissible.
    

7. The tendency notice was filed in time and appears to be in appropriate form. There are a number of tendencies asserted which are sought to be proved by various witnesses, but so far as this witness, Ms Larritt, is concerned there would appear to be only three:

1. A tendency to have a sexual attraction to children aged between 5 and 10;

2. A tendency to act on that attraction by creating opportunities to be alone with young girls; and

3. A tendency to act on that sexual attraction by showing physical affection, in particular picking up, cuddling and kissing young girls.
    

8. The admissibility of this evidence as tendency evidence is now subject to the provisions of s 97A of the Evidence Act 1995 (NSW) which came into effect from 1 July 2020 in relation to the admissibility of tendency evidence in proceedings involving child sexual assault offences. Tendency evidence generally is to be admitted if the Court is of the view that the evidence will have significant probative value. Section 97A(2) provides a presumption that evidence which establishes a sexual interest of the defendant in children will have significant probative value and further that evidence about the accused’s acting on a sexual interest in children will also have significant probative value.
    

9. This is a distinct departure from the admissibility generally of tendency evidence in that it presumes that evidence which establishes these two tendencies to have significant probative value. The Court is not required to make a determination as to whether or not that has been established. However, pursuant to s 97A(4), the Court may determine that the evidence does not have significant probative value if it is satisfied there are sufficient grounds to do so.
    

10. The legislation goes further in s 97A(5) by precluding the Court’s consideration of a number of matters in determining whether or not there are sufficient grounds for the purpose of excluding evidence which is otherwise presumed to have significant probative value.
     

11. Section 97A(5) of the Evidence Act 1995 is as follows:

The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of sub-s (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:

(a) the sexual interest or act to which the tendency evidence relates (the “tendency sexual interest or act”) is different from the sexual interest or act alleged in the proceeding (the “alleged sexual interest or act”),

(b) the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred,

(c) the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject’s age, sex or gender) are different to those of the subject of the alleged sexual interest or act,

(d) the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act,

(e) the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act,

(f) the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features,

(g) the level of generality of the tendency to which the tendency evidence relates.

12. Significantly, these matters are the very matters to which Courts have had regard when assessing the probative value of tendency evidence, and which were referred to by the High Court, most recently in the, until now, definitive decision of The Queen v Dennis Bauer [2018] HCA 40. They included such matters as whether or not the tendency evidence established a set of circumstances different from the circumstances alleged, whether there were distinctive, unusual or common features, the level of generality of the tendency alleged, the period of time between the tendency evidence and the alleged act, and those various other matters set out in s 97A(5).
     

13. It seems to me that the legislature has purposely, by enacting this section, determined to exclude from the Court’s consideration in relation to significant probative value, those matters that have otherwise been open to the Court, and in fact throughout many years of varying appellate decisions, were required to be taken into account by the Court in establishing whether or not tendency evidence has significant probative value. These included in particular HML v The Queen [2008] HCA 16, IMM v The Queen [2016] HCA 14, Hughes v The Queen [2017] HCA 20 and The Queen v Dennis Bauer [2018] HCA 40.
     

14. The evidence that the Crown seeks to rely on from Ms Larritt has some difficulties. It is capable of being viewed as evidence of a normal human interaction between an adult and young children, particularly so affectionate behaviour between a person acting as grandfather, and young girls. There is nothing in the evidence overtly sexual, except for the reference to his hands being draped across the groin of the children but, as I said, it is not entirely clear exactly what that means in the statement. However, it seems to me that that amounts to an evaluation of the evidence, which is a matter for the jury and not a task that I am entitled to conduct and may also fall within the prohibition of s 97A(5)(g).
     

15. This evidence is also capable of establishing the tendencies relied on by the Crown, which the legislation presumes to have significant probative value. It seems to me that this evidence clearly has significant probative value because of the application of s 97A, that there is no real reason for being satisfied that there are no sufficient grounds for the Court determining that it does not have sufficient probative value and that some of those factors which might bear on that assessment are specifically precluded by s 97A(5).
     

16. It does remain open to the Court to determine, pursuant to s 101 of the Evidence Act 1995, that the danger of unfair prejudice outweighs the probative value of this evidence. The probative value of this evidence is significant by definition under s 97A. The danger of unfair prejudice is a possibility that the jury may, in the circumstances of the trial overall, give it a sexual connotation that it ought not otherwise have and reason that way to establish the claimed tendencies. However, I am not satisfied that danger is in fact made out.
     

17. Much of whether or not the jury is likely to give it a sexual connotation when that is not otherwise open, depends on an evaluation of the evidence, which is a matter for the jury and there is nothing unfair in that task, particularly as it will be open to those representing the accused to argue to the jury that this is just normal human interaction between an adult and children and that they should use their common sense and experience of the world in determining whether or not it amounts to normal human interaction or something which demonstrates a sexual interest in children. That is why we have juries and that is a matter for the jury.
     

18. In those circumstances I am not satisfied that the evidence does demonstrate an unfair prejudice to the accused. It is open for those arguments to be put fairly on his behalf and I will allow the evidence to be called from paragraphs 7 to 11 of Ms Larritt’s statement, of course only in appropriate form, to prove the tendencies asserted which are relevantly a tendency for the accused to have a sexual interest in young girls, a tendency to act on that sexual interest by finding opportunities to be alone with young girls and a tendency to act on that sexual interest by displaying affection in the form of kissing and cuddling those young girls.
     

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Decision last updated: 14 November 2022