R v Taylor No. DCCRM-99-311 Judgment No. D123
[1999] SADC 123
•8 September 1999
R v Graeme Taylor
SADC 123
Judge Sulan
Criminal
RELATING TO P.37 OF TRANSCRIPT
HIS HONOUR: The accused, Graeme Taylor, is charged with three counts of unlawful sexual intercourse with a person under 12. The three counts allege two incidents of the accused allegedly having Jessica Rose Gerstlauer, his stepdaughter, perform an act of fellatio on him, and one count alleges an act of anal intercourse with Jessica Rose Gerstlauer.
The incidents are alleged to have taken place between 1 November 1998 and 11 December 1998, although on the material that has been provided, it appears that the prosecution can be even more specific about two of the incidents having taken place on 20 November or thereabouts in 1998.
The principal witness for the prosecution is Jessica Gerstlauer, who is the daughter of Ella Maarit Halme and, as I have mentioned, the step-daughter of the accused. Jessica was born on 13 June 1990.
The allegations relate to incidents at Iron Knob on or about 20 November and another incident between that date and 11 December 1998, the date upon which Ms Halme and Jessica left Iron Knob. Jessica was interviewed on 18 December 1998 and the interview forms the basis of the evidence that the prosecution seeks to lead. The evidence which is sought to be led includes evidence of alleged sexual abuse of which Jessica speaks which occurred in Western Australia prior to the family moving to Iron Knob.
The first incident in Western Australia allegedly occurred between 14 July and 23 July 1998, after an argument, as a result of which Mrs Halme left the house. Jessica described the incident at p.7 through to p.9 of the interview. I do not want to go into too much detail at this stage, but I should just indicate what she told the interviewer. At p.7 she said:
“One night when my mum and dad were having this huge argument like they always do, violent argument, Dad had been drinking.”
And she nominates that as the occasion :
“He had been drinking and I was asleep but he came and laid on my bed and I woke up, and he said to me, can he come and stay in my bed for the night, and I said ‘No, I will go in your bed because it was bigger’. Then I was laying there for a while and he said I will show you what I do to Mum and pulled my pants off and then took his pants off and started rubbing his dick on my fanny”.
She said that he ejaculated and grabbed a tissue from the side of the bed and wiped himself. She then said she rolled over and tried to get to sleep and that the accused then told her to suck his dick or he would put it in her. She said that she just spun out but she did as she was told. She observed just prior to that, the accused had been reading a pornographic magazine.
Mrs Halme provided a number of statements. She said in her statement of 31 May 1999 that there had been an argument, that the accused forced her to leave the house, that he had been drinking, and she returned to the house just before sunrise the next day. She went into the bedroom. She saw the accused and Jessica. There was a candle lit and there were a couple of pornographic magazines next to the bed. She spoke to the accused about them, and the accused said that Jessica did not see them. She said in her statement that about two weeks later, the accused asked to speak to her, and they went out into the yard. There was a discussion in which she alleges the accused said “I touched Jessie”. He went on to say “I made her suck my cock and she was good, but hated it, and vomited”. Ms Halme spoke to him about it several times, and he admitted that he had had sexual contact with Jessica.
Jessica also speaks of other acts of fellatio over a period of three months. She alleges that these acts took place over a period of about three months.
The accused has filed a rule 9 notice and has sought that the evidence of the Western Australian incidents be excluded. Ground one of the rule 9 notice seeks an order that the allegations made by Jessica Rose Gerstlauer, of sexual assault by the accused in Western Australia, be excluded. Ground three seeks an order that the allegations of Ella Maarit Halme, of observing pornographic material in the possession of the accused in about July 1998, be excluded. Mr Algie, on behalf of the accused, submitted that the evidence is not admissible because it is irrelevant. He relied on the judgment of Gaudron J in Gipp v R (1998) 155 ALR p.15.
I observe that Gaudron J's judgment in Gipp's case is a minority judgment. Her Honour’s view was not supported by other members of the court. I will come back to Gipp's judgment in a little more detail later in these reasons. Mr Algie further argued that the evidence is inadmissible because it does not support the contention that the accused had a sexual interest, or guilty passion for Jessica. He submitted that the judgment in R v Corrigan, judgment number 6684, of the Court of Criminal Appeal, in which the Chief Justice wrote the lead judgment, is distinguishable, because in Corrigan's case, there was a lengthy delay, or lengthy period of time, between the first act and the second act. Mr Algie submitted that was a significant matter. Might I say I do not accept Mr Algie's submission in that regard. Although the lengthy delay was a matter that was mentioned by the learned Chief Justice when discussing the question of guilty passion, the Chief Justice was making the point that there had been a lengthy period of time between the first incident and the incidents charged and during that period of time the accused and the alleged victim had not been together. In my view, if they had been together, and there had been other acts in the period, the evidence would have been admissible. It may have been different if they had a long time together on other occasions and nothing had occurred. Mr Algie argued that Corrigan's case is distinguishable from the case at bar. Mr Algie further argued that if the evidence is relevant, it is so prejudicial that it ought to be excluded on the grounds that its prejudicial effect far outweighs its probative value.
In support of that argument, Mr Algie submitted that there was a significant time difference between the Western Australian incidents and the incidents at Iron Knob. He said that the incidents at Iron Knob were over a relatively short period of approximately six weeks or even less.
He also argued that the effect of allowing the evidence to be led would be to try the accused in respect of matters which occurred in Western Australia, matters which are not justiciable in South Australia. Mr Algie did not suggest that the evidence was not admissible for that reason. He suggested that was a factor that I ought to take into account in determining whether to exercise my discretion. He submitted that the jury is likely to focus on the events in Western Australia when the substantial matters for their consideration are the events which took place at Iron Knob in South Australia. He also submitted that the defence may well be prejudiced if the Western Australian evidence is led, because they do not know the detail of the Western Australian investigations into the allegations made about events in Western Australia.
I comment, in passing, that I was informed by Ms McDonald that the prosecution have provided to the defence all the material that the South Australian prosecution is aware which exists in Western Australia. In any event, it is not clear to me how there is prejudice. The allegations as to the Western Australian incident relate to the evidence of Jessica about those incidents. Both Jessica and Ms Halme are proposed to be called as witnesses in this case. There is no suggestion, on any of the material I have seen or anything that was put to me by Mr Algie, that there may be any other witnesses who could assist the defence in respect of those incidents.
Ms McDonald submitted that the evidence is both relevant and admissible. She submitted that there are a number of bases upon which the evidence should be admitted. Firstly, she said that the evidence supports the proposition that the accused had shown and continued to show a sexual interest in this seven year old girl, and that it demonstrates what has been referred to in a number of authorities as 'a guilty passion'.
In that regard, I refer to the judgment of the learned Chief Justice in the case of Corrigan. His Honour there was dealing with evidence which was led by the prosecution about an incident at a party in December 1996. The incidents with which the accused was charged occurred in June 1997. At that party the accused kissed the victim in a specific manner. The Chief Justice said at p.5 of the judgment :
“In my opinion, the evidence was relevant. If accepted by the jury, the evidence, especially the evidence of what the appellant said at the time of this second kiss, strongly suggested that the appellant was strongly attracted to K. It further indicated the appellant was willing to make an uninvited sexual advance to K. I say that because what the appellant said on each occasion according to K disclosed an attraction to K. What he said on the second occasion disclosed a wish to have sexual intercourse with her. While the first kiss could be regarded as a spur of the moment thing, the second incident does not have that character. On that occasion, according to K, the appellant walked into the bathroom without knocking in which she was preparing to have a shower. He did not withdraw upon finding her there, but made a sexual advance. I consider that the evidence of these incidents, if accepted, does more than show a propensity to make advances to young women. I consider that the evidence was capable of leading to a conclusion that the appellant was attracted to K, in particular, that he was willing to allow that attraction to effect his behaviour and that he was prepared to make an uninvited sexual advance to K.”
Evidence of this nature was discussed in the case of Gipp, to which I have earlier referred. I do not need to go into the factual details of Gipp, other than to say that it was evidence of earlier incidents in a case of a sexual nature. I refer, in particular, to the joint judgment of McHugh and Hayne JJ at p.34 para.72 where their Honours said :
“Counsel for the appellant did not object to this evidence. It was admissible to show the relationship which existed between the parties and explained why the complainant so readily complied with the various demands of the appellant. Without evidence of the background, and the continuing nature of the conduct of the appellant, the evidence of the complainant may have seemed unreal and unintelligible. Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described.”
Further at p.73 their Honours said :
“Knowing that this was not the first time the complainant and the appellant had engaged in sexual activity helps to explain the complainant's lack of apparent surprise at being called into the bedroom to gratify the appellant's sexual desires and her matter of fact accounting of the incident. The regularity with which the incidents such as this occurred also helps to explain a failure to mention the incident to her mother and the appellant's confidence, manifested by the admission of any threat or inducement that the complainant would regard the incident as nothing unusual.”
Then later at para.74 :
“The evidence tendered was general in its nature and, as the above passage makes clear, was admitted for the limited purpose of making the circumstances of the specific offences more intelligible. It was admissible because it was evidence as to acts so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances.”
Then at para.76 :
“If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned judge would have been entitled to direct the jury that if they found one or more of those incidents proved they could use such a finding, or findings, as proof of guilty passion in support of the charges in the indictment.”
At para.78 :
“In this case the learned judge correctly directed the jury that the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges.”
In my view, their Honours have accepted that evidence of this nature can be led to show the context in which the alleged charges are made and to give an appropriate and realistic background to the incidents which are talked of. Secondly, their Honours have said that where there are incidents referred to, those may be admissible in support of what their Honours describe as a guilty passion.
Kirby J also dealt with the evidence at p.54 at para.140. His Honour said :
“Additionally, where evidence of the kind admitted in this trial is received, special care must be exercised in the use to which it is put because of its significant potential to cause prejudice to the accused. This type of evidence has been classified in various ways. It has been called dispositional, background, tendency, propensity, relationship or, in some circumstances, similar fact evidence. Although each of these terms has its own drawbacks and while each has been used differently, in my view, all are apposite to the present case. My own preference on the basis that it is harmonious with the wording in the uniform Evidence Acts is the term 'tendency evidence'. Evidence of this kind is only admissible if its probative value outweighs its prejudicial effect.”
His Honour then said:
“I accept what was recently said in this regard by the Court of Appeal in Victoria in R v Vonarx.”
He referred to a passage in that case :
“Where evidence of criminal conduct other than that which is charged is being introduced into the evidence on the trial the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged.”
In my view, His Honour, in approving the passage from Vonarx, agreed with the judgments of McHugh and Hayne JJ that evidence of that nature is admissible if it is relevant, so that the incidents charged can be assessed and evaluated within a realistic contextual setting. Therefore, three of the judges who formed the majority in Gipp accepted the proposition that that kind of evidence can be admitted so that the alleged offences can be shown in their proper context.
Callinan J also discussed tendency evidence. It is not clear that Callinan J would necessarily admit this type of evidence as evidence putting the prosecution case in context. He said that it may need to go to some additional matter such as guilty passion, intention or propensity. At p.64, para.181, his Honour said :
“I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received, it must owe its admissibility to some quite specific other purpose, including, for example, in an appropriate case, proof of a guilty passion, intention or propensity or opportunity or motive. There may also be cases in which relationship between the people may be directly relevant to an issue in a trial and, in those circumstances, admissible as such. Here, I think that the evidence is admissible as propensity evidence. The way in which the appellant approached the complainant, what he told her and how he abused her over the years were all acts sufficiently similar to the evidence of them.”
I observe that there may not be a major distinction between the way in which Callinan J approaches this kind of evidence and the way in which McHugh and Hayne JJ approach it, although I accept it is arguable that Callinan J would require something further than mere relationship evidence which puts the circumstances of the alleged offence in its context as spoken of by the majority.
Ms McDonald submitted that not only should this evidence be allowed because it puts the allegations in context but she argued that it is evidence of guilty passion. She submitted that it also explains why the child might not have complained, because the mother knew about the Western Australian incident yet nothing happened. She further submitted that the evidence is admissible because it may go to the accused's state of mind and his confidence that he had done it in Western Australia, got away with it and nothing would happen if he continued his conduct in Iron Knob. They are the bases upon which Ms McDonald put her case.
I am not convinced, at this stage, that the submission regarding the absence of complaint by the child and explanation of that has validity, although I have not yet heard the evidence. However, I am satisfied that the evidence is admissible (a) as tendency evidence as described by Kirby J and (b) as evidence of the context in which the offences took place as referred to by McHugh and Hayne JJ. I am also satisfied that it is capable of demonstrating a guilty passion. It is also capable of demonstrating the accused's state of mind as to why he might have conducted himself in this way, and it also may explain why Jessica acted in the way in which she did in submitting to him in Iron Knob. I therefore consider that the evidence is admissible and is relevant.
The question then becomes whether I should exclude it in my discretion. In my view, the evidence has significant probative value. I accept that specific directions must be given to the jury as to how it can be used. In my opinion, the evidence is admissible and I refrain from exercising my discretion to exclude it, because I consider its probative value outweighs its prejudicial effect and it, therefore, ought to be admitted. They are my rulings in relation to the Western Australian evidence.
The rule 9 notice also seeks an order that the allegations by Jessica Rose Gerstlauer, of violence by the accused, be excluded. I consider that that evidence ought to be excluded, and I will discuss with counsel some minor exception to that ruling, and the way in which that evidence might be led. But, in my view, that evidence, as provided to me in a statement of Mrs Halme, which is dated 6 September 1999, in which she outlines various acts of violence toward her, and outlines the basis of their relationship, the bulk of that statement, in my view, should not be led.
It may be that some reference to arguments and violence can be led, and I will discuss that with counsel. Perhaps we can turn to that for a moment now. I reserve the right to edit these reasons.
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