R v TL
[2015] ACTSC 265
•1 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v TL |
Citation: | [2015] ACTSC 265 |
Hearing Date: | 24 August 2015 |
DecisionDate: | 1 September 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, 10 and 17 to establish that the accused had a tendency to have a sexual interest in the complainant and to act on that sexual interest. Incident 15 is excluded pursuant to s 137 of the Evidence Act 2011 (ACT). The Crown will be permitted to lead context or relationship evidence of incidents 11, 12, 13, 14 and 16. |
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 97, 101 Evidence Act 1995 (Cth) |
Parties: | The Queen (Crown) TL (Accused) |
Representation: | Counsel Ms S Jowitt (Crown) Ms T Warwick (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) F Wilson (Accused) | |
File Number: | SCC 100 of 2015 |
BURNS J:
The accused is awaiting trial on 2 counts of sexual intercourse with a young person, and 8 counts of committing an act of indecency on a young person. The complainant with respect to each of the charges is BC who was aged between 9 and 12 years of age at the time of the alleged offences.
By an application dated 29 July 2015 the Crown seeks orders that it be permitted to adduce tendency evidence at the trial of the accused. The evidence which the Crown proposes to lead as tendency evidence is outlined as incidents 1 to 17 in a Notice of Intention to Adduce Tendency Evidence dated 25 May 2015 (the Notice). The tendencies which the Crown would seek to prove by adducing this evidence, as amended by the Crown, are:
(a)a tendency to have a particular state of mind, being a sexual interest in BC;
(b)a tendency to act in a particular way, being a tendency to act on his sexual interest in BC; and
(c)a tendency to act in a particular way, being to touch BC in sexual ways.
The Notice of Intention to Adduce Tendency Evidence
Incident 1, which is the basis of Count 1 on the indictment, alleges that in March 2012 the accused asked BC to tickle his back and his tummy. She did so and then the accused forced her to rub his penis, which became erect. It is alleged that this offence occurred between 1 March 2012 and 31 March 2012 at [redacted for legal reasons].
Incident 2, which is the basis of Count 2 on the indictment, alleges that immediately following incident 1 the accused engaged in a digital penetration of the complainant’s vagina.
Incident 3, which is the basis of Count 4 on the indictment, alleges that on or about 13 September 2013 the accused made BC tickle his back, and then put his tongue into her mouth and kissed her. It is alleged that this offence occurred at [redacted for legal reasons].
Incident 4, which is the basis of Count 5 on the indictment, alleges that immediately following incident 3 the accused removed the underpants of BC and touched her vagina.
Incident 5, which is the basis of Count 3 on the indictment, alleges that immediately following incident 4 the accused inserted a vibrator into BC’s vagina.
Incident 6, which is the basis of Count 6 on the indictment, alleges that immediately following incident 5 the accused made BC touch his penis.
Incident 7, which is the basis of Count 7 on the indictment, alleges that between 29 April 2014 and 24 June 2014 the accused entered BC’s bedroom while she was watching the movie “Frozen” and tried to kiss her.
Incident 8, which is the basis of Count 8 on the indictment, alleges that immediately after incident 7 the accused took BC into the bathroom. Both BC and the accused were fully clothed. He picked her up and moved her up and down so that her vagina rubbed against his erect penis.
Incident 9, which is the basis of Count 9 on the indictment, alleges that between 1 December 2014 and 21 December 2014 the accused entered the swimming pool at [redacted for legal reasons] with a BC and MC. The accused held BC and moved her swimming costume to one side and touched her vagina.
Incident 10, which is the basis of Count 10 on the indictment, alleges that immediately after incident 9 the accused took his penis out of his swimming trunks and rubbed it against BC’s vagina.
Incident 11 relates to uncharged conduct, and alleges that on several occasions between late 2009 and December 2014 at [redacted for legal reasons] the accused touched BC’s vagina.
Incident 12 also relates to uncharged conduct, and alleges that on several occasions between late 2009 and December 2014 at [redacted for legal reasons] the accused inserted his finger into BC’s vagina. Often during this act it is alleged that the accused would make threats to BC, including threats to kill her sister or her cousin.
Incident 13 also relates to uncharged conduct, and alleges that on several occasions between late 2009 and December 2014 at [redacted for legal reasons] the accused put his tongue in BC’s mouth. It is alleged that often the accused would make threats to BC, saying that if she did not kiss him he would kill her cousin or he would hurt her.
Incident 14 also relates to uncharged conduct, and alleges that between late 2009 and December 2014 at [redacted for legal reasons] the accused licked BC’s vagina.
Incident 15 also relates to uncharged conduct, and alleges that on several occasions between late 2009 and December 2014 at [redacted for legal reasons] the accused licked around and in BC’s ears.
Incident 16 also relates to uncharged conduct, and alleges that on several occasions between late 2009 and December 2014 at [redacted for legal reasons] the accused made BC touch his penis. It is alleged that often during this act the accused would hurt BC if she did not do as he asked.
Incident 17 also relates to uncharged conduct and alleges that on several occasions between late 2009 and December 2014 at [redacted for legal reasons] the accused made BC tickle his back.
The relevant legislation
The present application is governed by the following provisions of the Evidence Act 2011 (ACT):
97 The tendency rule
(1) Evidence of 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 present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2) Subsection (1) (a) does not apply if –
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict tendency evidence presented by another party.
NoteThe tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
(3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.
(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.
Consideration
It has long been recognised that evidence that an accused has a sexual attraction to a particular child is evidence strongly probative of an allegation that the accused committed sexual offences concerning that child and with which the accused is charged. This has been recognised not only with respect to the admission of tendency evidence under the Evidence Act 2011 (ACT) and the Evidence Act 1995 (Cth), but also with respect to the admission of evidence of propensity under the prior rules governing similar fact evidence.
I am satisfied that the evidence of incidents 1 to 10 referred to in the Notice have significant probative value in that, if a jury was to accept that one or more of these incidents occurred, it would be entitled to find that the accused had a sexual attraction to BC, and was willing to act on that sexual attraction. This in turn would have significant probative value in determining whether the jury is satisfied that the other alleged offences occurred.
The admission of evidence as tendency evidence inevitably has a degree of prejudicial effect on an accused person. That fact, however, does not determine whether the evidence should be admitted. The test found in s 101 of the Evidence Act 2011 (ACT) is that the evidence is not to be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have.
Conclusion
With respect to incidents 1 to 10, I am satisfied that the probative value of the evidence is high and that any prejudicial effect can be appropriately dealt with by directions to the jury. As such, I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have.
The application of the tests with respect to the remaining incidents, which represent uncharged acts, is more difficult. I am not satisfied that the facts alleged with respect to incident 15 have significant probative value, and the application to admit evidence of those alleged facts as tendency evidence is refused. Similarly, that evidence does not have significant probative value as context or relationship evidence and I am satisfied that it should be excluded pursuant to the provisions of s 137 of the Evidence Act 2011 (ACT).
The evidence which the Crown would propose leading concerning incident 11 could allow a jury to conclude that the accused was sexually attracted to BC, and was willing to act on that sexual attraction. The probative value of the evidence, as tendency evidence, is diminished by the lack of specificity concerning times and dates in the evidence of the complainant. It is difficult to determine whether, for example, any of the occasions referred to by the complainant on which it is alleged that the accused touched her vagina correspond with any of the particular offences with which he is charged. I am not satisfied that the probative value of this evidence substantially outweighs any prejudicial effect it may have. In my opinion, however, whilst the evidence is not admissible as tendency evidence it is admissible as context or relationship evidence. If this evidence is accepted by the jury it would help to explain why the complainant made no immediate complaint with respect to those events which are the subject of the charges.
I have reached a similar conclusion with respect to that evidence which the Crown would propose leading concerning incidents 12, 13, 14 and 16. This evidence will not be admitted as tendency evidence, but will be admitted as context or relationship evidence.
Incident 17 will be admitted as tendency evidence. The conduct alleged in this incident is unusual, and features as part of the conduct alleged against the accused in Counts 1, 2, 3, 4, 5 and 6. I am satisfied that it has a significant probative value which substantially outweighs any prejudicial effect it may have.
The Crown conceded that the proposed tendency (c) is really a subset of proposed tendency (b). I will allow the Crown to lead tendency evidence as set out in these reasons to prove proposed tendencies (a) and (b).
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 25 October 2016 |
0
0
2