State of Tasmania v KLS
[2022] TASSC 71
•18 October 2022
[2022] TASSC 71
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | State of Tasmania v KLS [2022] TASSC 71 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| KLS | |
| FILE NO: | 439/2020 |
| DELIVERED ON: | 18 October 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 1 September 2022 |
| JUDGMENT OF: | Wood J |
| CATCHWORDS: |
Criminal law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Particular purpose – Sexual offences – Agreed conduct the subject of a plea of guilty sought to be admitted as tendency evidence – Post- dated alleged conduct by approximately 10 years – Significant probative value in common features involving female children and familial relations – Prejudice because relates to biological daughter able to be addressed.
Evidence Act 2001 (Tas) ss 97(1), 101(2).
Aust Dig Criminal Law [2788]
REPRESENTATION:
Counsel:
Accused: K Baumeler Respondent: L Pennington
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2022] TASSC 71 |
| Number of paragraphs: | 40 |
Serial No 71/2022 File No 439/2020
STATE OF TASMANIA v KLS
| EDITED REASONS FOR RULING | WOOD J |
| (delivered orally 18 October 2022) |
1 This is a ruling in advance of a trial with respect to evidence the State seeks to lead as evidence of a tendency showing a sexual interest with respect to female children and a tendency to act on that sexual interest.
2 The accused is charged on indictment with two counts of persistent sexual abuse of a child, contrary to s 125A of the Criminal Code. In relation to count 1, it is alleged that he maintained a sexual relationship with a child between on or about 1 January 2002 and 31 December 2007. The complainant, referred to as NP, was his sister by adoption. The State alleges seven specified occasions of unlawful sexual acts involving the crimes of an indecent act with a child or young person and indecent assault. He has pleaded not guilty to count 1 and the trial will proceed next sittings. In relation to count 2, it is alleged that the accused maintained a sexual relationship with a child between on or about 15 October 2016 and 1 February 2019. The child is his biological daughter. He has pleaded guilty to this count.
3 At the trial of the accused on count 1, the Crown intends to lead evidence of the facts asserted by the State on his plea of guilty to count 2. These facts involve five specific occasions of unlawful sexual acts involving crimes of rape by oral penetration and indecent assault. This is the substantial and most contentious evidence sought to be admitted for a tendency purpose.
4 The State seeks to adduce another piece of evidence on the accused's trial for a tendency purpose. This is evidence of an uncharged act referred to in a witness's statement in the trial Crown papers with respect to count 1 and involves the accused trying to kiss her during a game of chasings.
5 The defence objects to the evidence sought to be admitted for the reasons that it does not qualify as sufficiently probative to be admitted and it ought to be excluded because of its prejudicial effect.
| 6 | Section 97(1) of the Evidence Act 2001 provides: "97 Tendency rule | |
|
(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."
It can be seen that evidence is not admissible to prove a tendency to act in a particular way or have a particular state of mind unless, as required by subs (b), the evidence will have significant probative value.
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7 Furthermore, such evidence cannot be used against a defendant unless the probative value of the evidence substantially outweighs any prejudicial effect: s 101(2).
8 I begin by summarising some of the key legal principles. Tendency evidence will have "significant probative value" if it can be characterised as "important" and "of consequence" in establishing one or more of the disputed facts. The significance of the evidence must be assessed in the context of the nature of the facts in issue: IMM v The Queen [2016] HCA 14, 257 CLR 300 at [46]; R v Bauer [2018] HCA 40, 266 CLR 56 at [58]–[60].
9 In assessing probative value, the evidence must be taken at its highest. The credibility or reliability of the evidence, or the witness who gave the evidence, is irrelevant. The relevant question is could the evidence rationally affect the probability of a fact in issue: Brown v Tasmania [2019] TASCCA 4, 31 Tas R 288 at [55]. Generally, and in this instance, the Crown does not need to prove the tendency beyond reasonable doubt: Bauer at [86].
10 In sexual offence cases where there are multiple complainants, there must be some common feature of or about the offending that demonstrates the accused acted in a particular way, proof of which increases the likelihood that the complainant's account is true: McPhillamy v The Queen [2018] HCA 52, 361 ALR 13.
11 I focus first on the evidence of the facts of count 2, to which the accused has pleaded guilty. The State asserts the evidence relating to count 2 is admissible upon the trial of count 1 as tendency evidence. The tendency notice provided to the defence outlines the asserted tendency. In summary, the State asserts the accused has a tendency to sexually assault female children in their early teen years to whom he has access due to familial relationships, and who are present with him at his residence. He does so when those children are removed from the immediate presence of other adults, but in circumstances where there is a risk of detection.
12 The State alleges, in relation to count 1, that at the time of the unlawful sexual activity, the complainant, NP, was between 11 and 15 years old. The accused was living at the home of the complainant's adopted parents. She was 17 years younger than the accused. The alleged offending occurred when the complainant was alone with the accused in a shed in which the accused was living at the property, or within the family home. The offending consisted of conduct including directing the complainant to touch him on the penis and masturbate him to ejaculation, kissing (or attempting to kiss) her on the lips, or touching her body both over and under her clothing. While the offending occurred on a regular basis, the complainant has specified seven identifiable occasions when the accused engaged in this conduct. On a number of occasions, the accused would remove the complainant from the presence of others, or not allow others to enter the area of the shed, while the offending occurred. The accused would take the complainant to the shed for the purported purpose of "doing exercises".
13 The detail of allegations relating to count 2 is outlined in the Crown statement of facts filed with the Court. These facts are not disputed. As mentioned, they relate to the accused's biological daughter and involve five specific occasions involving oral rape and indecent assault. The conduct occurred during a period from 15 October 2016 to 1 February 2019, when the complainant was 11 to 13 years of age. The defendant and the complainant's mother were separated and during that period shared custody of their children. The sexual abuse occurred when the complainant and her siblings would stay with the accused from Thursdays after school to Sunday evenings.
14 The issue at trial will be whether the accused committed unlawful sexual acts upon the complainant, NP. It is submitted the reliability and credibility of NP will be a critical issue on the trial.
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15 The high probative value said to arise from the evidence on count 2 is in establishing the accused has a tendency to be sexually attracted towards female children and a willingness to act on it in particular ways. This is said to be highly probative of the facts in issue, namely whether the accused did sexually assault the complainant, NP, as described, and whether her evidence is credible and reliable.
16 An inclination on the part of an adult to engage in sexual conduct with underage females is a matter outside ordinary human experience. In Hughes v The Queen [2017] HCA 20, 263 CLR 338 at [40] it was said:
"Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded."
17 Crown counsel, Ms Pennington, has identified features of the offending with respect to counts 1 and 2 which are common to both. I accept these common features imbue the evidence with significant probative value. Not only did the accused have a sexual interest in a particular class of person, but there is probative force in the manner and circumstances in which it is alleged that he acted upon that sexual interest. These common features of offending are as follows:
• Directing the complainants to stimulate his penis (whether it be manually or orally); • Family environment settings and a familial relationship between the accused and the complainants; • The circumstances in which the conduct occurred, whereby the children were removed from the presence of other adults but not so much that they were isolated from others entirely; • Subterfuge by the accused such that the sexual nature of the activity with the children was disguised as another task which allowed the accused the opportunity to carry out his sexual assaults because the children were compelled to carry out those tasks. For instance, in count 1, completing "exercises", and in count 2, assisting the accused's pain by sleeping with him, which masked the true sexual nature of the actions; and • Repeated conduct by the accused with respect to each complainant which developed into a pattern. 18 In assessing the probative value of this evidence as tendency evidence, it is useful to consider where the jury would be without it in this case. There would be a vacuum so that notions and expectations the jury, naturally, would have about behaviour and propositions that the defence might advance would be unassailed. These would include notions such as that the conduct as relied upon in count 1 was unusual, or that it was implausible that people generally would act in that way because of matters such as the family relationships and setting, or because of risk of detection. See Hughes v The Queen at [57] and [59]–[60].
19 The fact that the evidence of the alleged tendency post-dates the crime under consideration does not mean that it can be dismissed as not having significant probative value: RH v R [2014] NSWCCA 71, 241 A Crim R 1 at [125]–[130], nor does the fact of a temporal gap of some 10 years. Rather, consideration of probative value of the evidence is a case-by-case exercise. In a case where there has been a gap in time between asserted acts of sexual assault, the court would have regard to whether this was explicable given lack of opportunity to offend in the intervening period and matters of that nature: TB v R [2019] NSWCCA 224 at [102]–[103]. Ultimately, the question in this case is whether the tendency evidence is capable of affecting the assessment of the likelihood that the accused committed the offences against NP to a significant extent. Common features of the offending
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linking the two together will usually be necessary: McPhillamy v The Queen at [31]-[33]. Again, in
this context, the Crown relies upon the common features identified.20 Turning to the witness to be called on the trial and the evidence proposed to be led from her that the accused kissed her during a game of chasings, the further details are in her statement at page 112 of the Crown papers. The accused was "chasing us" around, referring to the witness and NP, "trying to kiss both of us". He held the witness down on the parents' bed and forced his lips onto her lips. The witness was around 10 or 11 years of age. No one else was in the room, and she was trying to push him away and telling him to stop.
21 This is said to be the same game of chasings as one of the specified occasions of unlawful sexual conduct involving NP when the accused tried to kiss her. If it is, the evidence that the accused was "chasing us" and "trying to kiss both of us" is evidence that would be admissible for a non- tendency purpose. It would be evidence of the incident rather than of a tendency. Further, it may be argued that the evidence of trying to kiss the witness is admissible for a non-tendency purpose as evidence of the accused's state of mind during the same incident. The Crown papers, however, do not make it clear whether it is the same game of chasings, and whether it is remains to be seen at the trial. For the purpose of this ruling, I will assume it is not admissible for a non-tendency purpose. My ruling is as to the admissibility of evidence of trying to kiss the witness for a tendency purpose.
22 As tendency evidence, I consider that it has significant probative value with respect to all specified occasions the subject of count 1. It can be regarded as an opportunistic sexual act committed under the guise of a game; evidence the accused acted on a sexual interest in female children; and evidence that he acted upon that interest in a family setting when adults were not present but were, it would appear, nearby.
23 The evidence of trying to kiss the witness is of a lesser gravity than the conduct the subject of count 1. Any risk of the jury misusing the evidence can be addressed by an appropriate direction, both confining its use and stipulating permissible pathways in terms of its use. I am satisfied in relation to the evidence of the witness that it has significant probative value and that its probative value substantially outweighs any prejudicial effect.
24 In relation to the Crown facts with respect to count 2 as tendency evidence, I conclude as follows. The evidence has high probative value with respect to the issues that will arise at trial with respect to count 1. The reliability and credibility of the complainant will undoubtedly be a critical issue at the trial. Absent the tendency evidence, the inherently unusual attraction of an adult male to a young girl with whom he has a familial relationship and, even more unusually, the willingness to act on that inclination, as well as the risk assumed by the accused in carrying out the sexual acts, would count against the complainant's credibility and reliability.
25 The submission by defence counsel, Ms Baumeler, that in contemporary society, juries would be well aware there are individuals who have such an attraction and are prepared to act on it is accepted. Such an attraction and preparedness exists but is nonetheless exceptional, and an assumption of a risk of discovery by an individual would be contrary to ordinary expectations and thus regarded as implausible.
26 In the context of a question of whether a particular individual acted as alleged, the imputed conduct is exceptional and appears improbable. In a criminal trial, absent evidence of the tendency of an individual, this inherent improbability and implausibility of an attraction and preparedness to act is able to thrive. Borrowing from the words of the majority in Hughes v The Queen at [59]-[60], the force of the evidence of tendency is that in the case of this particular accused, the allegations about his conduct should not be rejected as unworthy of belief because, having regard to ordinary human experience, the complainant's account appeared improbable.
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27 Evidence that goes to establishing the accused has a tendency to have a sexual attraction towards female children and a willingness to act on it is highly probative of the issues of whether the accused did sexually assault the complainant as described, and whether her evidence is credible and reliable. Because of the aforementioned features of the conduct common to counts 1 and 2, the evidence is imbued with importance and significant probative value. A close consideration of the evidence of the conduct on each of the counts supports this conclusion. The accused's sexual interest in children and propensity to act upon that interest at a later time makes more likely the existence of that interest and propensity to act upon it at an earlier time.
28 The factual dissimilarities in the mode of assaults and what can be seen as a later escalation in the conduct do not detract from the probative force of the later conduct. Also, the lapse of years between the offending alleged in relation to NP and the later conduct does not detract from the probative value of that later conduct as evidence of the accused's sexual interest and his tendency to act on that interest.
29 Speaking generally, the risk that the jury may give the evidence disproportionate weight is addressed by the usual jury direction with regard to tendency evidence. This direction will caution against concluding that the evidence of tendency proves that the conduct with respect to count 1 occurred and against reasoning from guilt of one count to guilt of another. The direction may highlight the competing contentions of the State and the accused with regard to the tendency evidence.
30 Having spoken generally, I turn now to the discrete issues of prejudice that have been raised by Ms Baumeler. The first is that undue weight may be given to evidence that is presented to the jury in the form of agreed facts relating to the conduct in count 2. It is pointed out that the document setting out agreed facts would become an exhibit and so would go into the jury room for the purpose of deliberations. This is fully addressed by the response of Ms Pennington that she would be content to read the agreed facts to the jury but not insist that a document recording those facts be tendered as an exhibit and go into the jury room. The jury would have access to the transcript as they would to any other evidence if the jury wished to be reminded of the agreed facts. This stance would mean the agreed facts would not take on a prominence or an elevated status above other evidence.
31 The defence has also highlighted that the conduct in count 2 is more serious than the count 1 conduct, and that the count 2 conduct concerns the accused's biological daughter. Ms Baumeler has characterised this as "significant prejudice" to the accused in that the jury might well reason that if the accused was prepared to sexually abuse his daughter, he would not hesitate to act in a similar way towards someone with whom he does not have that biological relationship. It is submitted that the admitted conduct towards his biological daughter is naturally going to engender a strong emotional reaction from the jury and will likely cloud their ability to assess the evidence impartially. I consider this submission raises a valid concern about prejudice that may be difficult to overcome by a direction.
32 Ms Pennington submits the evidence that the complainant was the accused's biological daughter is relevant to his state of mind and the issue of the temporal gap. Consideration was given to whether evidence of the conduct could be led without specific reference to the fact that the complainant was the accused's biological daughter. It was argued for the Crown that the accused's familial circumstances in the intervening period of approximately 10 years has relevance to the fact that there was no suggestion of offending in that period. The accused had four children in that time and was residing with the children's mother and the children as a family unit. It is also submitted that sanitising the evidence of the relationship would have the effect of clouding the evidence of matters such as the custody arrangements at the time of offending, absence of the children's mother, and the occasional presence of cousins at the premises where the offending occurred.
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33 I am left with a particular concern that the jury, upon learning that the complainant in count 2 was the accused's biological daughter and that he has admitted to incestuous acts, will be so appalled and find that conduct so abhorrent or perverse that it may obscure their objective consideration of the evidence on count 1. My conclusion is that the accused's parental role is important in order to make sense of the circumstances in which the offending occurred but that it need not be spelt out that the accused was the complainant's biological father, as opposed to a parental role such as her step-father. I am conscious that abuse by a person in a role such as a step-father will attract very strong adverse feelings, but I consider that the level of response that that will attract can be adequately dealt with by a direction.
34 In reaching this conclusion, that the biological relationship need not be spelt out, I note the tendency notice identifies a family relationship rather than a biological relationship as a common feature; it is the family connection that is relied upon as the common feature and as an aspect of the tendency. At this stage, based on the issues of the trial as they currently present, the detail of a biological relationship is not required.
35 Having said that, the biological relationship may become relevant if the temporal gap assumes prominence and if it becomes necessary to step out the chronology of the intervening period and the accused's family circumstances during that time.
36 I suggest the following example of a description of the facts that avoids reference to a biological relationship which might be part of the agreed facts with respect to count 2. It might be said that the accused, the complainant's mother, the complainant, and her siblings belonged to the same family unit. There could be a reference to the timing of when the accused and the complainant's mother had separated, and a reference to the complainant's age. Further, it might be said that "in his parental role", the accused had regular contact with the complainant and her siblings, and reference the arrangements that were in place at the relevant time.
37 I invite counsel to consider this suggestion in their preparation of the agreed facts. If agreement cannot be reached, or counsel seek to make submissions as to the detail of the agreed facts or, indeed, advance additional reasons as to why an agreed fact in this form is inadequate, then the matter can be relisted. Assuming the concern I have identified can be accommodated in the way I have suggested so there is no reference to the complainant being the accused's biological daughter, I reach the following conclusion.
38 The evidence of tendency is admissible. The evidence has significant probative value, and its probative value substantially outweighs any prejudicial effect it may have on the defendant. There is a risk the jury may give the tendency evidence too much weight or that they could misuse it, however, I am satisfied that usual jury directions tailored to this case would appropriately address that risk and ensure the jury use the evidence in a way that is permissible.
39 I add that this may be an appropriate case for the jury to be given a direction about the use of tendency evidence at the time the agreed facts are read. I note, a direction could also be given close in time to the witness's evidence about the game of chasings. As the trial judge, I invite those submissions both as to timing and the content of the direction.
40 I have considered the exclusionary provisions in ss 135 and 137 and I am satisfied they do not apply. This is not a case where these sections, properly applied, lead to a refusal to admit evidence.
[Note: At trial, agreed facts were read on count 2 which did not refer to the biological relationship. A jury direction about the use of the tendency evidence was given by Wood J both at the time the agreed facts were read and during her Honour's summing up.]
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