R v TK
[2015] ACTSC 11
•9 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TK |
Citation: | [2015] ACTSC 11 |
Hearing Date: | 27 October 2014 |
DecisionDate: | 9 February 2015 |
Before: | Burns J |
Decision: | The Crown will be permitted to lead tendency evidence of incidents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13 as tendency evidence to establish that the accused had a tendency to be sexually attracted to the complainant. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways |
Legislation Cited: | Evidence Act 2011 (ACT) ss 56, 97, 101 Evidence Act 1995 (Cth) |
Cases Cited: | R v Ford (2001) A Crim R 451 R v Johnston [2012] ACTSC 89 |
Parties: | The Queen (Crown) TK (Defendant) |
Representation: | Counsel Mr Thomas (Crown) Mr Whybrow (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Defendant) | |
File Number: | SCC 51 of 2014 |
Burns J:
The accused is charged with eight counts of committing an act of indecency on ST. Five of those offences are alleged to have occurred between 1 January 1993 and 31 January 1996, one between December 1993 and January 1996, one between 1 September 1996 and 22 August 1997, and one between 1 November 2001 and 22 August 2002. To each of these charges he has pleaded not guilty and his trial is due to take place in March this year.
The Crown has given notice that it proposes leading tendency evidence at the accused’s trial to establish that, at the relevant times, the accused had a tendency to have a particular state of mind, being:
1. to have a sexual attraction to [ST].
2.to seek sexual gratification without regard for the presence of family and family friends.
The Crown also proposes leading this evidence to establish that the accused had a tendency to act in particular ways, namely:
1(a) to engage in sexual activity with [ST]
1(b) to touch the genitals, breasts or bottom of [ST].
The Crown proposes leading evidence relevant to each charge as tendency evidence with respect to each of the other charges. In addition, it proposes leading evidence of five “uncharged acts” as tendency evidence with respect to all charges. In the alternative, if the Crown is not permitted to lead the proposed evidence as tendency evidence, it proposes leading it as relationship evidence.
The accused was the step-father of the complainant at the time of these alleged events. The complainant was born in 1986, meaning that she was between 6 and 9 years old when it is alleged the earliest six offences occurred, was 10 years old when the second last is said to have occurred, and was 15 when the last is said to have occurred.
The tendency notice
The tendency notice identifies 13 incidents the Crown proposes to lead as tendency evidence:
Incident 1 (Count 1)
(Relevant to tendency 1, 1(a) and 1(b))
(a) Substance of the evidence:
On a night between January 1993 and January 1996 the complainant (then 6-9 years old) was sleeping in her parent’s (sic) bed. At some point the complainant woke up to the accused tickling her stomach. Her mother was still asleep. The accused moved his hand and tickled near the top of her underpants before moving his hand inside her underpants and rubbing her genitalia. The complainant tried to move her legs but was unable to because the accused had his leg on top of her legs. The accused removed his hand from her underpants and continued tickling her stomach. After a short time the accused put his fingers in his mouth and then put his hand inside the complainant’s underpants and rubbed her genitalia. The complainant felt the accused’s wet finger and pain and pressure around her vagina. The complainant tried to move and the accused pulled his hand out of her underpants and lifted his leg off her legs. The complainant rolled over so that she was facing away from him.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between January 1993 and January 1996 at [xxxx]
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 2 (Counts (sic) 2)
(Relevant to tendency1 (sic), 1(a) and 1(b))
(a) Substance of the evidence:
On another date over a Christmas period between December 1993 and January 1996 the family and some of their extended family went for a picnic/BBQ at Weston Park, ACT. The park had a maze, a train ride and other play equipment for children. At some point the complainant (then 7-9 years old) wanted to go through the maze and the accused stated that he would go with her. The accused gave the complainant a ‘piggy back’ ride. After some time the complainant began to slip down the accused’s back. The accused reached behind his back and pressed his finger against the complainant’s genitalia. The complainant felt a sharp pain in her genitalia and pulled herself up. The accused stopped to talk to some people and the complainant asked to get down.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between December 1993 and January 1996 at Weston Park, Yarralumla, ACT.
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 3 (Count 3)
(Relevant to tendency 1 and 1(a))
(a) Substance of the evidence:
On another night between January 1993 and January 1996 the complainant was asleep in her parent’s (sic) bed. The complainant was lying next to the accused who was in the middle of the bed and her mother was on the other side. During the night the complainant woke up facing the accused. The accused grabbed her hand and put it on his erect penis and held it there. After a short time he moved his hand away and the complainant pulled her hand away. However, the accused grabbed her hand and put it back on his penis. At some point the accused ejaculated on her hand. The accused released his grip of the complainant’s hand and fell asleep. The complainant rolled over so that she wasn’t facing the accused and also fell asleep.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between January 1993 and January 1996 at [xxxx].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 4 (Count 4)
(Relevant to tendency 1 and 1(a) and 1(b))
(a) Substance of the evidence:
Later on the night in which Incident 3 occurred or on another occasion between January 1993 and January 1996, the complainant woke to the accused tickling her stomach. He lifted up her top and used his hand to touch her breasts. The accused flicked the complainant’s nipple a number of times and giggled quietly.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between January 1993 and January 1996 at [xxxx]
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 5 (Count 5)
(Relevant to tendency 1, 1(a) and 1(b))
(a) Substance of the evidence:
Later that night or on another occasion between January 1993 and January 1996, the accused slid his hand inside the complainant’s underpants and rubbed her genitalia with his fingers. The complainant tried to move her legs but was unable to because the accused had his leg on top of her legs. The accused put his finger on the lower part of her genitalia causing her pain. The accused then put his finger in his mouth before again putting his finger on the lower part of her genitalia. The complainant again felt pain. At some point the accused removed his hand and pulled the complainant’s nightie down. Afterwards, the complainant rolled away from the accused and began to cry quietly.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between January 1993 and January 1996 at [xxxx].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 6 (Count 6)
(Relevant to tendency 1, 1(a) and 1(b))
(a) Substance of the evidence:
On another night during the period January 1993 and January 1996, the complainant was lying in her parent’s (sic) bed with her mother and the accused. As she was falling asleep the accused slid his hand inside her underpants and rubbed her genitalia. She tried to move her leg but couldn’t because the accused had his leg on top of her legs. The complainant began to cry quietly and the accused stopped and withdrew his hand from her underpants. The complainant rolled over so that her back was to the accused and eventually fell asleep facing an alarm clock with red arms.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between January 1993 and January 1996 at [xxxx].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 7 (Count 7)
(Relevant to tendency 1 1(a) (sic), 1(b) and 1(b) (sic))
(a) Substance of the evidence:
On a night between September 1996 and August 1997 the complainant (then 10 years old) was asleep in the top bunk of her bed. She was sharing the bedroom with [AB] who was about 1 year old. During the night the complainant woke to find the accused lying on his side in the bed facing her. He said, “Sorry for waking you, I should go back to my own bed”. The complainant did not reply. The accused then put his hand underneath her clothing and put his fingers on her genitalia. A short time later the accused removed his hand from her underpants and left the room.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between September 1996 and August 1997 at [xxxx].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 8 (Count 8)
(Relevant to tendency 1, 2, 1(a) and 1(b))
(a) Substance of the evidence:
On a date between November 2001 and August 2002 the complainant (then 15 years old) was home with her parents and siblings. Also present was Belinda Nunn and her husband who were staying for dinner. At some point the complainant, who was wearing a tight fitting singlet top, was standing in the doorway dividing the lounge room and front entrance. As the adults were walking outside to smoke cigarettes the accused grabbed and squeezed the complainant’s breast and said, “Oh your boobs are growing”..
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between November 2001 and August 2002 at [yyyy].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 9 (uncharged act)
(Relevant to tendency 1, 1(a) and 1(b))
(a) Substance of the evidence:
During the 1992-1993 Christmas holidays the family travelled to Moruya and stayed in [address redacted] NSW. On a night during this period the complainant (then 6 years old) was sleeping in her parent’s (sic) bed in-between her mother and the accused. The complainant’s mother and the accused regularly slept naked. At some point during the night the complainant, lying on her side facing her mother, was woken by the accused rubbing his penis against her lower back. He had his arm around her upper body across her chest cuddling her. Sometime later the complainant fell asleep.back (sic) and touched her between her chest and inner thighs over her underwear. He took her hand and forced her to rub her vagina. He then grabbed her hand and moved it to his erect penis making her stroke it. She rolled away from the accused.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
During the 1992-1993 Christmas holidays at [address redacted], NSW.
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
[KW]
Incident 10 (uncharged act)
(Relevant to tendency 1, 2, 1(a) and 1(b))
(a) Substance of the evidence:
Often when the complainant was a child the accused would pick her up and put his hands around her genital or breast area. When the complainant was sitting on his lap he would often have his hand close to her genital area.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
During the time of his marriage to [the complainant’s mother] and with other family members and friends of the family being present.
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
[KW]
Incident 11 (uncharged act)
(Relevant to tendency 1, 1(a) and 1(b))
(a) Substance of the evidence:
On an occasion between 1993 and 1996 the complainant fell asleep on the couch. At some point she woke when the accused sat next to her and put his jacket over her. As she was falling asleep the accused started rubbing her genitalia underneath the jacket.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1993 and 1996 at [xxxx].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
Incident 12 (uncharged act)
(Relevant to tendency 1, 2, 1(a) and 1(b))
(a) Substance of the evidence:
In about 1996 or 1997 when the complainant’s body had begun to develop Ms Nunn noticed the accused being sexually inappropriate towards the complainant including grabbing her breasts as she walked past or grabbing her bottom or sitting her on his lap and stoking her thigh.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
During the time of his marriage to [the complainant’s mother] and with other family members being present.
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
[BH]
Incident 13 (uncharged act)
(Relevant to tendency 1, 1(a) and 1(b))
(a) Substance of the evidence:
On another occasion between 1997 and 1998 the complainant was painting her toenails in front of the TV. The accused began to playfully push her until she fell onto her bottom. The accused got on top of her and tickled. He said, “I’ll do something you don’t like in a minute” and poked her genitalia with his finger. The accused laughed and the complainant got up and went to her bedroom.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
Between 1997 and 1998 at either [xxxx] or [zzzz].
(b)(ii) The names and addresses of each person who saw, heard or otherwise perceived the conduct:
[ST]
The relevant legislation
The evidence the Crown proposes to lead as tendency evidence is clearly relevant to prove that the accused had the tendencies alleged against him. Proof of those tendencies is equally clearly relevant to establishing, by way of tendency reasoning, that he committed the alleged offences. As such, subject to the application of the provisions of the Evidence Act2011 (ACT) governing the admissibility of tendency evidence, the evidence the Crown proposes leading is admissible: s 56 Evidence Act.
The “tendency rule” is set out in s 97(1) of the Evidence Act:
97The 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:
(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 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.
A further restriction on the admission of such evidence is found in s 101:
101Further 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 section 97 (The tendency rule) and section 98 (The coincidence rule).
(2)Tendency evidence about a defendant [ or an accused], or coincidence evidence about a defendant [or an accused], that is presented by the prosecution cannot be used against the defendant [or an accused] unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant [or the accused].
(3)This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant [or the accused].
(4)This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence adduced by the defendant [or the accused].
Consideration
The accused, without conceding that the Crown’s application to lead tendency evidence should be granted, accepted that some of the incidents alleged by the Crown possessed a degree of similarity, particularly those alleging offences in the bed of the accused and the complainant’s mother, but submitted that the remaining incidents lacked the degree of similarity that would give them significant probative value as tendency evidence. He further submitted that the evidence of the uncharged incidents should not be admitted as context or relationship evidence because it lacked probative value and was highly prejudicial.
Neither s 97 nor s 101 of the Evidence Act require proposed tendency evidence to be “strikingly similar” to the conduct which is the basis of a charge. As Campbell JA said in R v Ford (2001) A Crim R 451:
All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged.
To prove that a person has a tendency to act in a particular way, or to have a particular state of mind, will, however, almost inevitably require proof of a degree of similarity between incidents.
Tendency evidence will usually be led to establish one of two general propositions:
(a)first, that the accused did those acts alleged to constitute the charges; or
(b)secondly, where the doing of the acts is not in question but the identity of the offender is, that it was the accused and not someone else who committed the offences.
In each of these scenarios, the proposed tendency evidence must establish some trait in the accused that makes it significantly more likely that he is the offender, or that he did the acts alleged to constitute the offence. It seems quite clear that the present case falls within the first of those scenarios; there is no issue of identification of an alleged offender, the issue is whether the incidents as described by the complainant occurred at all.
Sometimes the required similarity will be found in the nature of the acts alleged in the incidents. Evidence that an accused has a modus operandi or system of offending behaviour may, if it is sufficiently uncommon, have significant probative value in establishing that the accused committed offences where the same modus operandi was used. In other cases the similarity will be found not in the nature of the acts said to have been performed, but in the identity or characteristics of the victim. For example, where an accused is alleged to have committed a sexual offence against a child, it will usually be of significant probative value to establish that the accused has demonstrated a sexual attraction to children. A person who has a sexual attraction to children is significantly more likely to engage in sexual conduct with a child than someone who does not have that attraction: see R v Johnston [2012] ACTSC 89.
Long before the introduction of the Uniform Evidence Acts, including the Evidence Act1995 (Cth) and the Evidence Act2011 (ACT), the common law permitted the Crown to lead evidence establishing that an accused had a sexual attraction to a particular child. This was often referred to as evidence of a “guilty passion” on the part of the accused. The reasoning behind the admission of such evidence was that where it was alleged that the accused had committed a sexual offence against a child complainant, evidence establishing that the accused was sexually attracted to that particular child made it significantly more likely that he had committed the charged offence. Proof that an accused was sexually attracted to a particular child complainant is, in my opinion, of greater probative value in establishing that he committed an offence against that child than proof of general sexual attraction to children.
The evidence the Crown proposes to lead with respect to incidents 1 to 8 (corresponding with Counts 1 to 8 on the indictment), if accepted by the jury, is capable of establishing that the accused was, at the relevant times, sexually attracted to the complainant ST. This evidence has significant probative value. There is no reason to believe that a jury will not accept and apply the usual directions about how such evidence may and may not be used, so there is minimal risk that the jury will misuse the evidence. I am satisfied that the probative value of the evidence significantly outweighs any prejudicial effect if may have on the accused.
Incident 9 is an uncharged act which allegedly occurred in New South Wales in the 1992-93 school holidays. This is around the same time as a number of the other alleged incidents. This evidence has significant probative value regarding the alleged tendency of the accused to be sexually attracted to ST. The probative value substantially outweighs any prejudicial effect to the accused.
Incident 10 alleges further uncharged acts of a very general description at unspecified times. It does not possess significant probative value and will not be admitted as tendency evidence. The vagueness of the allegations also means that this evidence may not be adduced as relationship or context evidence.
Incident 11 is also an allegation of an uncharged act, said to have occurred between 1993 and 1996, the same time period as the alleged offences in Counts 1, 2, 3, 4, 5 and 6. The evidence has significant probative value which substantially outweighs any prejudicial effect to the accused.
Incident 12 alleges a course of conduct of a sexual nature by the accused towards ST. Of significance is the fact that a third party is said to have witnessed this conduct. If the evidence of this third party is accepted, it will substantially support the Crown’s contention that the accused was sexually attracted to ST. The accused objects to evidence of this incident being led as it is vague in terms of the actual date of the alleged events, and is likely to enflame the jury and provoke an emotional response. As I said earlier, there is no reason to believe that the jury will fail to heed directions as to how this evidence may be used, so that the prejudicial effect of the evidence, in the context of this trial, is not likely to be significant. The Crown alleges that these events occurred within a two year period, which considerably narrows the period that the accused must address, so that the inability of the Crown to particularise the specific dates on which these events are said to have occurred does not lead to unfair prejudice to the accused. Having said that, the acts alleged against the accused vary in nature, with some acts being apparently sexual (such as the grabbing of the complainant’s breasts and bottom) and others not necessarily so (such as sitting the complainant on his lap and touching her thigh). In my opinion, evidence of the first category of act has the required probative value, while evidence of the second category does not. The Crown will be permitted to lead evidence from this witness of the first category of acts, but not of the second.
Incident 13 is also an allegation of an uncharged act, said to have occurred between 1997 and 1998. It involves an allegation of an unequivocally sexual act consciously performed by the accused. It has significant probative value, which substantially exceeds its potential prejudicial effect.
In my opinion, the Crown should be restricted to alleging only one of the proposed tendencies, namely the tendency to have a sexual attraction to ST. This is the crux of the Crown tendency case, and is the tendency that has significant probative value, and which outweighs its prejudicial effect.
Orders
The Crown will be permitted to lead tendency evidence of incidents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13 as tendency evidence to establish that the accused had a tendency to be sexually attracted to ST.
| I certify that the preceding twenty two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns Associate: Date: 9 February 2015 |