R v T.A.A

[2009] NSWDC 115

CITATION:	R v T.A.A [2009] NSWDC 115
JUDGMENT DATE:	21 May 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Defence may cross-examine one complainant on the conversations and acts referred to in paragraph 6 in statement of brother. Prosecution may re-examine on any evidence adduced from this cross-examination.
CATCHWORDS:	Criminal Law - Historical sexual assault trial - interlocutory judgment - defence application to cross-examine complainant on invitation to brother to participate in incestual sexual activity - purposes of cross-examination - explain away any shame claimed by complainant - potential for inconsistency of accounts - credit of complainant - probative value of evidence measured against distress, humiliation, or embarrasment complainant may experience.
LEGISLATION CITED:	Criminal Procedure Act 1985 Evidence Act
PARTIES:	Regina T.A.A
FILE NUMBER(S):	2007/00016123
COUNSEL:	Crown: S Bowers Defence: J Gordon

Application to adduce evidence of other sexual experience pursuant to s.293 (6) (b)

1. Given the alleged victims were children when the offences alleged by the Crown are said to have occurred, none of the complainants’ names is to be published, nor is anything to be published which is likely to identify any of them. Given the alleged victims are children of the accused and still carrying his surname, publication of his name could lead to their identity being revealed. Thus the non-publication order to protect the identity of the victims necessarily extends to publication of the accused’s surname.

2. The indictment presented to the Court charges the accused with seven counts of sexual offending, although count 3 is an alternate charge to count 2. The second and third charges relate to an allegation of rape, in the alternative, carnal knowledge by the accused of his daughter, Trish. This offence is said to have occurred between September 1969 and September 1971. Count 7 is an alleged act of indecency upon the daughter Trish. It is said to comprise cunnilingus. It is said to have occurred in April 1975.

3. The accused is also charged with the rape of his daughter Linda between January and November 1973 (count 4) and of indecently assaulting Linda between January 1967 and March 1967 (count 1). Finally there is a charge of indecently assaulting his son Kim between June 1973 and June 1975 (count 5).

4. The charges against the accused in respect of Trish and Kim are being retried. In the indictment presented for the first trial before acting Judge Boulton there were five charges, the charges relating to Linda having been earlier separated for trial on their own. Defence counsel no longer seeks severance, hence the inclusion of all complainants' allegations in the one indictment.

The Crown allegations against the accused

5. In 1975 the accused was the father of 8 children with his then wife Tanya. The eldest was J--, followed by R---, Trish, G---, Linda, Kim, S--- and A---. Between 1975 and 1978 the accused and Tanya separated. He began a relationship with another woman, Joanne, who at that time was the mother of daughters. It is not clear on the evidence before me whether the second wife has borne other children fathered by the accused.

6. The Crown alleges the accused began sexual activity with Trish when she was aged 4 or 5 years. Initially it was fondling of her genital area. It progressed through the years to include penile/vaginal and anal intercourse until she was about 17 years old. There were periods during the years from the early 1960s through to 1975 when two or more children shared a bedroom or bedrooms. Trish alleges that between her 5th and 9th year the accused would come into her bedroom, open her legs whilst she was in bed at night, and masturbate himself “onto my vaginal area”. She claims that she also saw him “playing sexual games” at night with her brothers R--- and Kim by masturbating them, or having them masturbate him.

7. The family moved from time to time to new housing. During her teenage years Trish shared a bedroom with her younger sister Linda. The accused would enter this bedroom, select one or other of his daughters, both of whom where sleeping in the same bedroom, and sexually assault her. That included placing his hands on her vagina, engaging in cunnilingus. During these acts he would masturbate himself. Trish claims at the age of 13 she lost her virginity to her father when he penetrated her vagina with his penis. Thereafter he had sexual intercourse with her at least once weekly until she left home. Trish claims the accused also had intercourse with her sister Linda on a regular basis while both she and Linda shared the same bed. Linda gives an account consistent with that given by Trish.

8. J---, the eldest child, gives an account of first being sexually assaulted when aged five. He was in the bath; his father entered the bathroom and indecently fondled him. Thereafter five or six times weekly he was sexually interfered with, the interference graduating to fellatio of him by the accused, and fellatio of the accused by him. The accused would make J--- masturbate him. By puberty sexual interference had reached a point of anal penetration by the father of him, and a requirement of him that he anally penetrate the father. The penetration of each would continue until ejaculation. On J---’s account things did not stop there.

9. While J--- was still at primary school, his father started to involve this son in sexual acts with one or other of his sisters. One or other was selected by the father. J--- was forced to penile penetrate one of his sister’s vagina, or with having three way sex with a sister and the father. For example if Trish was sucking J---’s penis, the father would penetrate her vagina.

10. J--- alleges his brothers R--- and G--- had to do the same things with their sisters. When this activity was on-going the other children were locked out of the house. Kim was seven years younger than J--- and nearly 5 years younger than Trish. Kim claims he was not involved in this three-way activity. J--- claims he and brother R---, upgraded the garage of the home they were then living in at P--- St, Fairfield to provide a bedroom for themselves, moved out of the house to flee the sexual appetite of the accused.

11. The Crown case is all these sexual activities of the father were done while the mother was asleep or nursing a new borne baby in the marital bedroom, on shift work, or otherwise away from the home. It is the Crown case the mother, Tanya, discovered the sexual interference, initially of her daughter Trish, when she entered the girls’ bedroom in the early hours of a morning to discover the accused partially unclothed, hiding behind the bedroom door saying “This is not what you think it is.” She contacted Lifeline and the Fairfield Police. Tanya’s account is that the response of both organisations was that she should go to Community Health clinic and have them checked out. Tanya claims she was told that having the children medically examined or going through court would be too traumatic for them, but rather they should be taken to counselling. Tanya’s account is she told her husband she wanted him gone, but at a family conference the children agreed he should not be asked to leave, but he had to go to Community Health to receive counselling, and there was to be no more violence from him towards the children or his wife in future.

12. Initially, the mother had not realised more than one child had been the subject of the accused’s sexual activities. But within a week or so, she found that “boys” and Linda had been involved sexually with the accused, and that at his insistence J--- and R--- would have sex with Trish and Linda.

13. The Crown case is the accused demonstrated violence towards each of the complainants generally and particularly in respect of demanding and enforcing sexual favours to himself.

14. It is of some relevance to note G---, when aged 34 in June 1993 died of a drug overdose.

Section 293 Criminal Procedure Act 1985 application

15. Defence counsel seeks to cross-examine the complainant, Trish, who is presently being cross-examined, upon material appearing in Kim’s statement to police on 11 May 2009 (Exh VD 8). I should note there is an earlier statement from Kim dated 15 November 2001. (Exh VD 3).

16. The material sought to be cross-examined upon is material I shall refer to generally as “paragraph 6”:

6, When I was about five or six, my family lived in Glenfield in a flat near Glenfield Train Station. I remember one time I was at home in a room with Trish and Linda. I clearly remember Trish jumping up on the dressing table. She spread her legs apart and showed me her vagina. Trish and Linda started egging me on to have penis-vaginal sex with them. Linda said things like, “come on, stick your dick in here (indicating Trish’s vagina) because that’s what dad does to us”. I think I approached her and showed them my penis. I think we mutually touched each others’ genitalia but there was no penetration.

17. The defence argues it would be unfairly prejudiced if counsel was not permitted to raise this material in cross-examination. Notwithstanding obvious areas of prejudice to the defence if the material is admitted, Mr Gordon makes argument of unfair prejudice to the accused in the event the material is not available for cross-examination.

18. He argues, two areas of potential loss relate to loss of other areas that the defence can point to in the complainants’ lives that may well account for any guilt and fear each may be experiencing; and other areas that may well explain alternate inappropriate boundaries of sexual behaviour within the family. Mr Gordon has foreshadowed he seeks to cross-examine each of the complainants on the paragraph 6 material. As I understand the defence thesis, assume the jury were of a view any shame and/or fear referred to in the evidence, of say, Trish, existed, it could be explained away by the material in paragraph 6 of Kim’s statement.

19. There is no material in Trish’s statements to police, or evidence in the first trial consistent with, or covering the account given by Kim in paragraph 6. Nor has she been made aware, so far as I am aware, of the contents of paragraph 6. So far as I am aware it is not a topic previously canvassed with Trish. In those circumstances, one cannot predict what answers she may give. No doubt the Crown may expect/hope she gives evidence consistent with Kim’s account. However, one cannot rule out the possibility she may give inconsistent evidence. While it is purely speculative, if she failed to support Kim’s account, that failure may potentially reflect upon her credit, or Kim’s, or both.

20. For example, on the Crown case, and indeed in Trish’s evidence, the assertion is that the children did not talk among themselves about what their father was doing to them. There is material in paragraph 6 contrary to that assertion.

21. I am satisfied the complainant Trish may have taken part in the sexual activity described by Kim in paragraph 6. I am satisfied the accused may be unfairly prejudiced if the complainant, Trish, could not be cross-examined upon the sexual activity alleged in paragraph 6. The unfairness arises from the loss of the potential to attack the complainants’ credit, to explain away any sense of shame or guilt the jury may find this complainant experienced or experiences, and to point to the potential for other areas of sexual misbehaviour referred to by her in evidence to be telescoped into some concocted account being given by all the complainants against their father.

22. The Crown sought to have me satisfy myself the evidence would pass the test set out in subsection 293 (4) Criminal Procedure Act. Does the probative value of the evidence outweigh any distress, humiliation or embarrassment the complainant may suffer as a result of its admission? The starting point is to recognise the entire hearing is in camera. Thus any distress, humiliation and/or embarrassment that may arise, arises in circumstances where issues raised in paragraph 6 will be canvassed only before a closed group of persons.

23. The decision I am making applies only to Trish. I have limited it to her alone, because I have not had any opportunity to assess the character or sensitivities of Linda or Kim. Any decision I made now in respect of either of them would necessarily have an element of speculation in it.

24. Trish presents as a strong, seasoned and mature aged woman who has worked on fishing boats and on the land. While, as it seems to me, she may be finding the giving of evidence in this case trying, she appears to be bearing up strongly, sometimes argumentatively or combatively with defence counsel. Answers have been required of her in respect of numerous unpleasant allegations thus far raised, none of which appears to have caused her any outward emotional distress. That, of course, is not to say her giving evidence is not distressing for her. Her initial embarrassment or sensitivity to deposing to a jury of 12 and courtroom of others appears to have dissipated or been numbed. Again, that is not to say she does not continue to experience embarrassment. I do not perceive on the material in paragraph 6, material that would extend the embarrassment, distress, or for that matter any humiliation she may presently be experiencing in giving evidence.

25. On the other hand, the probative value of the evidence, as it relates to the matters discussed above, from the defence perspective is important. The probative value of the evidence, as it touches those matters, outweighs any distress, humiliation or embarrassment she may suffer as a consequence of its admission.

26. Finally, and for more abundant caution, I test the proposed evidence against s.135 Evidence Act. There is no potential for s. 135 (b) or (c) to apply. Can the contents of paragraph 6 be unfairly prejudicial to a party? I do not see the Crown case in any way being unfairly prejudiced by it. Indeed, my concern as expressed during submissions was that it is capable of impacting adversely to the defence. But the defence seeks to have it in. In those circumstances, prejudice to the defence, if there be any, can hardly be “unfair”. At the end of the day, Mr Gordon seeks to have it in. He knows, better than I do, what use he will put the material to. I have to rely upon his judgment and selection of tactics when presenting the defence case. I am comforted in doing that in circumstances where counsel has the experience and seniority Mr Gordon possesses.

27. The defence may seek to adduce evidence of the conversations and acts referred to in paragraph 6. Likewise the prosecution may re-examine on any evidence so adduced.