R v TK (No 2)
[2015] ACTSC 87
•14 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TK (No 2) |
Citation: | [2015] ACTSC 87 |
Hearing Date(s): | 13 April 2015 |
DecisionDate: | 14 April 2015 |
Before: | Refshauge J |
Decision: | 1. The application for the vacation of the trial date is dismissed. 2. The evidence of Dr Bragg is not be admitted in the trial. 3. Statements were made of ongoing sexual touching of the complainant by TK in her statement. These are, it is accepted, admissible, and I will admit them. 4. The statement made by the complainant that TK touched her on the bottom "all the time" when the family lived in Wanniassa is inadmissible under s 137 of the Evidence Act 2011. 5. Evidence of the complainant being uncomfortable when TK tried to cuddle her, would pull away from him and that the complainant "wanted to stay [at her aunt’s house] a lot when she was 10 to 13" cannot be led in-chief from the complainant, but may be led in re‑examination, or in other evidence, if made relevant by any such cross‑examination. 6. Evidence of strict discipline of the complainant by TK, including corporal punishment and an incident of forcing her to eat food from the floor is not admissible in the complainant’s evidence‑in‑chief, but may become admissible in re‑examination or in other evidence, if cross‑examination of the complainant raises issues that makes them relevant. This matter can be re-agitated, if necessary, during the course of the trial. 7. Evidence from the complainant’s mother of the relationship between the complainant and the Accused is context evidence of a usual kind and is admissible. 8. Evidence from the complainant’s mother of her relationship with the Accused, including that they fought a lot at home, is not evidence of the relationship between the complainant and the Accused and therefore is not admissible unless cross‑examination makes it relevant. 9. The first complaint, made to the complainant’s grandmother, is admissible as complaint evidence. 10. The second complaint is admissible as complaint evidence. 11. The third complaint is not admissible. Should an issue arise during the trial that suggests that the complainant’s credibility is damaged by the failure to complain to her mother and that no one else told her mother, this ruling may be revisited. 12. BM may give her evidence by video link but not by audio link only. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – TRIAL – 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 – Admissibility and relevancy – Expert evidence – Late service of an expert report – Risk of a miscarriage of justice – Relationship evidence – Evidence may become relevant following cross-examination – Complaint evidence – Exception to the hearsay rule – ‘fresh in the memory’ – Evidence by audio-visual link |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 32, 60, 63, 66, 71, 136, 137 |
Cases Cited: | B v The Queen (1992) 175 CLR 599 Brodie v Streeter (2003) 180 FLR 176. |
Texts Cited: | New Zealand Law Reform Commission, in its report, Evidence: Evidence Code and Commentary, Report No 55 (1999) vol 2, 67 |
Parties: | The Queen (Crown) TK (Accused) |
Representation: | Counsel Ms M Jones (Crown) Mr S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich and Associates (Accused) | |
File Number(s): | SCC 51 of 2014 |
Refshauge J:
TK, the accused, has been charged with seven offences of committing an act of indecency on a young person, over varying periods of time, when she was under the age of 10 years and then under the age of 16 years.
These are what is sometimes termed ‘historical sex offences’ as the offences are said to have been committed between 1992 and 2002, the majority in the earlier period. The complainant who was born in 1986, is 28 years old.
The complainant initially spoke to New South Wales police in 2006 but they established that the majority of the incidents disclosed by the complainant happened in the Australian Capital Territory and the matter was referred to the Australian Federal Police. By this time, however, a statement dated 30 August 2006 had been taken from the complainant but which had been completed over a period of time.
The matter was further investigated by Australian Federal Police and, on 20 November 2013, summonses were issued to TK charging him with the relevant offences. TK was committed for trial to this Court on 13 March 2014.
On 27 October 2014, an application was made by the Crown for leave to admit certain evidence as tendency evidence. That application was granted in part on 9 February 2015: R v TK [2015] ACTSC 11.
The trial was then listed to commence on 30 March 2015. Due to court commitments the trial date had to be vacated and the trial was then relisted to commence on 13 April 2015. Again because of court commitments, although the jury was empanelled on that day, the completion of a prior trial meant that the trial could not commence until 14 April 2015.
On 13 April 2015, I was advised that an urgent application was to be made to vacate the trial date. With the co-operation of court staff, the application was listed to be heard for about half an hour at 9.15 am to accommodate the other needs for the courtroom and the prior trial.
I heard some initial submissions and formed a tentative view that, with certain directions and co-operation between the parties, it was not likely that I would vacate the trial date but I listed the matter for further hearing later that day before making a final decision.
The exigencies of the earlier trial meant that this could not actually take place until 5:00 pm, although requiring the rescheduling of a civil matter for which I was required to give directions at 4.30 pm. That civil matter was re-listed the next day and I heard the application to completion. Again with the co-operation of court staff, I completed the hearing shortly before 7:00 pm.
The application showed how, in an age where criminal litigation is becoming more complex and the evidentiary rulings required in trials are more fraught, a degree of pre-trial case management may be desirable to address the kind of issues that had to be addressed here. These could sensibly have been addressed a long time before the day before the trial.
That may also mean, however, that trials, especially of sexual offences, may need a day set aside at the beginning of the trial, before the jury is empanelled, to deal with issues of relationship or context evidence, complaint evidence and disclosure, so that proper time is given to these matters before the Crown is required to open to the jury, thus ensuring that a full picture can be given without the risk of later problems if evidence has to be excluded.
I note that the other material said to have been sought by TK but not disclosed by the Crown, and which formed part of the application to vacate the trial date, was, between the initial hearing of the application and the final hearing, duly made available and thus that matter no longer impeded the hearing of the trial.
Having heard the application to completion I consider that the case for vacation of the trial date has not been made out and, in terms, that application is dismissed.
Nevertheless, there were issues that had to be considered and I have done so. These will result in directions about evidence which will hopefully ensure that the trial proceeds smoothly. I will deal with the various issues sequentially.
(1) Expert Evidence
One of the significant factors leading to the application to vacate the trial date was the late service of a report by Dr Judith Bragg, a medical practitioner at the Child at Risk Health Unit of ACT Health. She reported from the research literature and her experience on issues concerning the delay in a complainant in sexual offence matters, disclosing the alleged offences, whether that was usual in the case of alleged sexual abuse of children, the reasons for that, including whether there are specific features or qualities of the relationship between such complainants and their abusers, and whether there are behavioural indications in children who have been sexually abused.
The report was general, in the sense that it did not arise from the clinical examination of the complainant. That, of course, did not make it inadmissible. See MA v The Queen (2013) 226 A Crim R 575. The report dated 17 March 2015 was, however, delivered to TK's lawyers on 19 March 2015. The trial had, at that stage, been listed to commence on 30 March 2015. When it was mentioned at callover on 23 March 2015, for the purpose of setting a new date as referred to above, however, no complaint was made about the late service of the report, nor about any need, unable to be accommodated in the time frame now being set, for the obtaining by TK's lawyers of their own report on these issues. As I pointed out in R v Bui (2011) 5 ACTLR 230 at 238-240; [36]-[43]. In particular, I said (at 239; [41]):
The prosecution is now clearly under a duty of common law to disclose material in its possession and that, of course, includes the investigative agencies such as the police, as well as the director and his or her staff, completely and in a timely fashion.
There was no explanation of why the report of Dr Bragg was obtained and served so late. It must be accepted that human experience means that not every item of preparation will be identified at an early time. The diminution of resources to public sector agencies means that there is always pressure on public officials, such as prosecutors, and few have the luxury of a leisurely preparation of trials many months prior to the trial date. The pendency of the trial clearly sharpens the mind and raises issues that may not have been earlier identified.
There was a minimal explanation, also, of why the accused's lawyers did not raise the issue of the late service of the report at the callover and, in particular, acceded to the setting of the hearing date. Counsel and his instructor were, at the time, engaged in an earlier trial. They, too, were under pressure and it is a counsel of perfection who expect them to be able to address the consequences of late disclosure fully and shortly after that disclosure.
Nevertheless, neither party's lawyers have provided proper explanations as to why the matter was not properly addressed so that the trial date, which in itself is a precious commodity for the courts, was not wasted by its vacation should I decide that.
The question then is whether the report was served so late, and the opportunity of TK's lawyers to obtain their own expert advice on it so compromised, that it demands that it be excluded from the trial.
The evidence in it is important. The New Zealand Law Reform Commission, in its report, Evidence: Evidence Code and Commentary, Report No 55 (1999) vol 2, 67 [C110] – [C111], said, in a passage cited with approval in MA v The Queen at [23].
Rather, the purpose of the evidence is educative: to impart specialised knowledge the jury may not otherwise have, in order to help the jury understand the evidence of and about the complainant, and therefore be better able to evaluate it.
Part of that purpose is to correct erroneous beliefs that juries may otherwise hold intuitively. That is why such evidence is sometimes called ‘counter-intuitive evidence’: it is offered to show that behaviour a jury might think is inconsistent with claims of sexual abuse is not or may not be so; that children who have been sexually abused have behaved in ways similar to that described of the complainant; and that therefore the complainant’s behaviour neither proves nor disproves that he or she has been sexually abused. The purpose of such evidence is to restore a complainant’s credibility from a debit balance because of jury misapprehension, back to a zero or neutral balance. This is similar to the use of expert evidence to dispel myths and misconceptions about the behaviour of battered women.
It is clearly admissible. Neither of these matters is, however, determinative.
The question is whether the late service of the report, with the consequential inability of TK's lawyers to obtain their own report, requires it to be excluded.
Remedies usually applied in cases such as this are to grant an adjournment or to stay the proceedings. If the evidence were to be critical to the case of the Crown an adjournment may be appropriate. If the delay occasioned by any such adjournment is such that the delay in bringing the accused to trial is oppressive a stay may be appropriate, though the bar to such a remedy is high, as held in Jago v District Court of New South Wales (1989) 168 CLR 23.
The test is, it seems to me, whether there will be a miscarriage of justice. See R v Solomon (2005) 92 SASR 331 at 358-9; [115].
The evidence of Dr Bragg could be quite powerful. Some of the effect of it will be dealt with, in any event, should delay by raised by TK's counsel, in the direction that must be given under s 71 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
It seems to me, however, that the inability of TK's lawyers to challenge the evidence properly by having their own expert review the report and, if appropriate, give other evidence, does risk a miscarriage of justice.
I am also mindful that timely and proper disclosure of expert evidence is a matter of significance. Traditionally, the defence has not been required to disclose its expert reports at all, much less in a timely fashion. Recently, there is a move to require defence disclosure of expert reports. That suggestion, supported by the prosecutors, means that it is proper for the prosecution to meet its obligations more assiduously in this regard.
In all the circumstances, I rule that the evidence of Dr Bragg not be admitted in the trial.
Relationship Evidence
Relevant evidence, sometimes call context evidence, is evidence of misconduct of a kind which is not used to prove a tendency of an accused to think or act in a way that is encompassed within the offences charged or evidence of such a coincidence in the happening of an event very similar to the alleged offences, or to an alleged offence, that makes the happening of the alleged offence more likely.
It can be used for various purposes, such as to rebut good character, R v OGD (No 2) (2000) 50 NSWLR 433, or to prove the state of mind of another person, R v Fordham (1997) 98 A Crim R 359.
More usually, in cases involving sexual offences, it is used to show the relationship between a complainant and an accused. The purpose is to place the specific acts in the context of the complainant’s overall allegations against the accused, so as to assist the jury to understand the circumstances. Simply to prove a relationship between the complainant and the accused is not sufficient: R v ATM [2000] NSWCCA 475. There must be more than that.
As the High Court said in B v The Queen (1992) 175 CLR 599 at 610, it can be admitted because it "constitutes part of the essential background against which both the daughters and the applicant's evidence of the alleged offences necessarily fell to be evaluated". Thus, it may explain a statement or event that would otherwise appear curious or unlikely, to reinforce the plausibility of the evidence to overcome a misleading impression that the conduct said to constitute the offence was an isolated incident, to show the continuing nature of the conduct, or to show why a complainant did not resist or rebut an accused or show distress or resentment. See HML v The Queen (2008) 235 CLR 334.
In this case, there were a number of items that were suggested to be admissible on this basis. A number were the subject of objection by Mr S Whybrow, counsel for TK.
I shall deal with each of them:
(a) Statements were made of ongoing sexual touching of the complainant by TK in her statement. These are, it is accepted, admissible, and I will admit them.
(b) A statement was made by the complainant shortly before the trial that TK touched her on the bottom "all the time" when the family lived in Wanniassa. It seems to me that this is so general a comment, with the possibility of a more innocuous interpretation, that its unfair prejudice outweighs its probative value. It is inadmissible under s 137 of the Evidence Act 2011 (ACT).
(c) Evidence of the complainant being uncomfortable when TK tried to cuddle her and would pull away from him and that the complainant "wanted to stay a lot [at her aunt’s house] when she was 10 to 13". Items of evidence will only be relevant if the cross‑examination of the complainant makes them so. In my view, they cannot be led in-chief from the complainant, but may be led in re‑examination, or in other evidence, if made relevant by any such cross‑examination;
(d) Evidence of strict discipline of the complainant by TK, including corporal punishment and an incident of forcing her to eat food from the floor. Again, these are not admissible in the complainant’s evidence‑in‑chief, in my view, but may become relevant, and therefore admissible, in re‑examination or in other evidence, if cross‑examination of the complainant raises issues that makes them relevant. In that sense, this issue can be re-agitated, if necessary, during the course of the trial;
(e) Evidence from the complainant’s mother of the relationship between the complainant and the accused. This evidence is relationship or context evidence of a usual kind and is admissible;
(f) Evidence from the complainant’s mother of her relationship with the Accused, including that they fought a lot at home. Unless cross‑examination makes this admissible, it is not evidence of the relationship between the complainant and the Accused and so is not otherwise admissible.
Complainant Evidence
Section 66(2) of the Evidence Act renders evidence of a complaint made by a complainant admissible in circumstances set out in the section. This is explained to a degree by s 66(3). Those subsections provide:
66 Exception—criminal proceedings if maker available
(2) If the person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) the person; or
(b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the happening of the asserted fact was fresh in the memory of the person who made the representation.
(3) In deciding whether the happening of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a) the nature of the event concerned; and
(b) the age and health of the person; and
(c) the time between the happening of the asserted fact and the making of the representation.
Sometimes such evidence is limited under s 136 of the Evidence Act as to the use to which the evidence may be put. Otherwise, under s 60, it may be used as evidence of the facts asserted.
There were really three complaints made that were put before me for consideration. Significantly, not all of them are complaints which the complainant can recall and of which she will give evidence. They may, nevertheless, be admissible under s 66 of the Evidence Act as the complainant will be called to give evidence in this trial.
The first complaint was made to the complainant’s grandmother when the complainant was about seven, soon after the incidents. There was no objection to the admission of that evidence; it may be admitted as complaint evidence.
The next complaint that I consider was made on 6 April 2003. It was also made to the complainant’s mother and led to the complainant being medically examined by a general practitioner. She told the medical practitioner of "sexual interferences from stepfather - aged eight to 10".
While the latest incident, the subject of a charge, was said to have occurred between 11 December 2001 and 22 August 2002, this is not an incident which the complainant herself can recall, and evidence of it will be given by another witness. Otherwise, the most recent incident is said to have occurred in 1996 or 1997. The issue here is whether the incident or incidents the subject of the complaint were "fresh in the memory" of the complainant. That is to say, were they sufficiently contemporaneously or otherwise significant, such that the legislation renders them admissible.
It is clear from the legislation, as explained in R v XY (2010) 79 NSWLR 629, that "fresh in memory" does mean necessarily "recent" or "immediate". Section 66(3) of the Evidence Act makes it clear that this is only one factor, and other matters are to be considered as well and the temporal connection is not determinative. In that case, the complaint was made in 2009 of events that were said to have occurred between 2003 and 2005. That, however, cannot be said to mark out the temporal limits of such admissible complaint.
Later, in LMD v The Queen [2012] VSCA 164 at [25], the Victorian Court of Appeal admitted complaint evidence made 10 years after the alleged sexual abuse based on the complainant’s "reaction to the approaches made by her boyfriend when sexual intercourse between them was contemplated". This clearly showed that the trauma of the abuse rendered it still fresh in her memory.
In Clay v The Queen [2014] VSCA 269 at [50], a period of 20 years was taken to have been "far beyond what the legislature could ever have contemplated" when it enacted s 66(3) of the Evidence Act.
In this case, however, I cannot ignore the fact that the complainant is unable to recall the most recent events leading to a count on the indictment, namely, in 2001 or 2002.
On the other hand, the alleged abuse was said to have been frequent over a period, on the complainant’s evidence, of at least five years or so, though her statement to the medical practitioner was of a shorter period. That is relevant to the consideration of the matter, even though it is not one of the matters listed in s 66(3) of the Evidence Act. That list is an inclusive not an exclusive list.
The exact nature of the offences are set out in the Case Statements. See R v Goodwin (2009) 233 FLR 473, at 478-479; [26]-[35]. They consisted of rubbing or touching the complainant’s vagina on a number of occasions and sometimes so that it hurt her, touching her breasts and masturbating and ejaculating on her hand. It seems to me that these are significant acts. The nature of the acts are likely to make them memorable to the complainant. In my view, this evidence is admissible.
The third complaint, though the second in time, is of a complaint to an aunt of the complainant. It was, at the least, coy, in the sense that it was merely a statement that “the aunt was right”, presumably about TK’s alleged abuse of the complainant.
It seems to me that this is so vague that it is not admissible to prove any particular fact. At least, a direction under s 136 of the Evidence Act would be required to limit the evidence. That will make the task of the jury very difficult when they come to distinguish between the various complaints and the directions that apply to each of them. For this reason, the unfair prejudice seems to me to outweigh the probative value of that complaint, see s 137 of the Evidence Act.
Nevertheless should there arise an issue in the trial that suggests that the complainant’s credibility is damaged by the failure to complain to her mother and that no one else told her mother, this evidence may become relevant and admissible. I can then revisit this ruling.
Video link evidence
One of the witnesses that the Crown wishes to call is another aunt of the complainant, BM, who currently suffers from pneumonia and her treating medical practitioner has indicated that she is not able to travel. She gives evidence of a complaint made to her in 1997 or 1998. This is admissible under s 66 of the Evidence Act. Arrangements have been made for BM to give her evidence by video link from the Taree Local Courthouse. An application has accordingly been made under s 32 of the Evidence (Miscellaneous Provisions) Act. That section is in the following terms:
32 Territory courts may take evidence and submissions from place other than participating State
(1) Subject to any Act or rules of court, a territory court may, on the application of a party to a proceeding before it or on its own initiative, direct that a person, whether or not a party to the proceeding, appear before, or give evidence or make a submission to, the court by audiovisual link or audio link from—
(a) a place in the ACT that is outside the courtroom or other place where the court is sitting; or
(b) a place outside the ACT but within Australia (other than a participating State).
Note: The Evidence and Procedure (New Zealand) Act 1994 (Cwlth), pt 4 (Use of video links or telephones in Australian proceedings) and the Court Procedures Rules 2006, div 6.10.7 (Taking evidence from New Zealand by video link or telephone) apply to the taking of evidence and submissions by audiovisual links or audio links from New Zealand.
(2) The court may make the direction only if satisfied that—
(a) the necessary facilities are available or can reasonably be made available; and
(b) the evidence or submission can more conveniently be given or made from the place; and
(c) the making of the direction is not unfair to any party opposing the making of the direction.
(3) The court may at any time amend or revoke a direction made under this division, either on the application of a party to the proceeding or its own initiative.
(4) While a person is at a place giving evidence or making a submission, the place is taken to be part of the court.
The application is opposed. Mr Whybrow submitted that it was important for BM to appear personally, especially as her evidence was very significant and indeed, she was in the nature of a complainant, especially as to the complaint of which she gives evidence is not a complaint of which the complainant, or indeed the other child present at the time, her daughter, can give evidence. Those two were, however, young children at the time of the complaint is said to have been made in about 1997 or 1998.
A predecessor section to s 32 of the Evidence (Miscellaneous Provisions) Act, but one to the same effect, was considered by this Court in Brodie v Streeter (2003) 180 FLR 176. As in that case, there is here no real challenge to the applicability of s 32(2)(a) or (b) of the Evidence (Miscellaneous Provisions) Act. In any event, I so find.
The real question is whether such evidence being given in this way would be unfair to TK. There is, of course, a difference between evidence given in person and that given by video link. The transmission by video link was referred to by Palmer J in Holzman v New Horizons, Learning Centre (Canberra) Pty Ltd and Others (2004) 180 FLR 246. Palmer J (at 248) identified the differences as including:
[A]n artificiality of communication...and the slight but perceptible delay between commission and receipt.
These, and other matters, can clearly affect the way in which the evidence is perceived and received by the jury.
Nevertheless, complainants and vulnerable witnesses have now been giving evidence in this way for two decades in numerous English speaking countries. A research study on the effects of a part of such evidence was recently published. See Kimberley S Burrows and Martine Powell, “Prosecutor’s Perceptions of the Use of Recorded Child Witness Interviews About Abuse As Evidence in Chief” (2014) 47 ANZ Journal of Criminology 374. They noted:
While prosecutors were concerned that using video recorded evidence reduced juror’s engagement with the witness, case outcome studies have suggested that juror decision making is unaffected by the mode of evidence presentation.
Higgins CJ in Brodie v Streeter referred to decisions concerning the “right of confrontation” in so far as it required the physical presence of a witness. In that case a complainant. As his Honour commented (at [28]):
The right of the accused to face his or her accuser needs therefore to be balanced against the need to enable a complainant to give evidence free from the effects of the presence of the accused would or might have.
Those precise considerations are not present or relevant here, but the right of the Crown to present all its admissible evidence in the trial is also a factor to be considered.
I further note that, in that case, the proceedings were a committal hearing and his Honour expressly reserved his opinion on whether the same position, namely to allow for the evidence to be given in this way before a jury.
Since then, of course, it has become the fact that juries hear from children and complaint witnesses commonly through CCTV. It is now the standard procedure for giving a good deal of evidence.
I do not consider that it should be the manner of giving evidence on every occasion. It is still important for witnesses ordinarily to appear in person to give their evidence. See Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 189.
I cannot find, however, that the importance of the evidence that is proposed to be given by the witnesses will necessarily determine whether that evidence should be given via video link. Indeed the legislative provisions make it clear that in many cases the most important evidence will be given in this way.
Having considered all of these matters, I am of the view that BM may give her evidence by video link. I would not permit evidence to be given by audio link only. I will accordingly make appropriate rulings to give effect to my reasons.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 28 April 2015 |
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