The King v Kenafake
[2023] NTSC 37
•21 April 2023
CITATION:The King v Kenafake [2023] NTSC 37
PARTIES:THE KING
v
KENAFAKE, Dontay
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22128185 and 22134624
DELIVERED: 21 April 2023
HEARING DATE: 3 April 2023
JUDGMENT OF: Hiley AJ
CATCHWORDS:
CRIMINAL LAW – Jurisdiction, practice and procedure – Joinder of charges – Criminal Code (NT) s 309(1) - whether charges form part of a series of offences of the same or similar conduct – where legal character and components of the offences have significant degree of similarity – where the offences are sufficiently similar in fact – charges properly joined.
EVIDENCE – Admissibility and relevance – Tendency evidence - Evidence (National Uniform Legislation) Act (NT) ss 97A, 101, 101(2) – child sexual offences - whether evidence from and in relation to each complainant may be used as tendency evidence in support of the charges involving the other complainant – evidence of each of the acts alleged has significant probative value in relation to all charges – probative value outweighs any danger of unfair prejudice to the accused – evidence admitted as tendency evidence.
CRIMINAL LAW – Jurisdiction, practice and procedure – Application to sever indictment – evidence cross-admissible between counts for tendency purposes – potential prejudice may be addressed by a proper direction to the jury – application dismissed.
HML v The Queen (2008) 235 CLR 334; The King v LJ [2023] NTSC 17; The Queen v O’Brien [2017] NTSC 34, applied.
Marcus White (Pseudonym) v R1 [2022] VSCA 27; The Queen v TJB [1998] 4 VR 621; The Queen v CC [2021] NTSC 41, distinguished.
De Jesus v The Queen (1986) 61 ALJR 1; Hughes v The Queen (2017) 263 CLR 338; Sutton v The Queen (1984) 152 CLR 528; The Queen v AH (1997) 42 NSWLR 702; The Queen v Bauer (2018) 266 CLR 56; The Queen v Lisoff [1999] NSWCCA 364; The Queen v LM [2017] NTSC 81; The Queen v Cranston (1988) 1 Qd R 159, referred to.
Criminal Code 1983 (NT) ss 309, 309(1), 309(1A).
Evidence (National Uniform Legislation) Act 2011 (NT) ss 97A, 97A(2), 97A(4), 97A(5), 97(1)(b), 101, 101(2).
Evidence (National Uniform Legislation) Amendment Act 2021 (NT).
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2021).
REPRESENTATION:
Counsel:
Crown:S Ledek with B Stone
Accused:B Wild with J Meaney
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Territory Criminal Lawyers
Judgment category classification: C
Judgment ID Number: Hil2301
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Kenafake [2023] NTSC 37
No. 22128185 and 22134624
BETWEEN:
THE KING
AND:
DONTAY KENAFAKE
CORAM: HILEY AJ
REASONS FOR JUDGMENT
(Delivered 21 April 2023)
By Tendency Notice dated 31 March 2023, the Crown applied to adduce evidence from and in relation to each of the complainants (DC and OD) and use that evidence as tendency evidence in support of the charges involving the other complainant.
The Notice asserted that the evidence shows a tendency of the accused to:
(a)have a particular state of mind, namely a sexual interest in female children to whom he has access via family connections; and
(b)act in a particular way, namely:
(i) sexually engaged [sic] with pre-pubescent female children whom he was able to access via the family relationship and associated physical proximity;
(ii) to act as the above-mentioned when there were other family members in the same house or in the vicinity and therefore a risk of discovery; and
(iii) to act as the above-mentioned under the cover of a blanket in front of a television screen whilst a [sic] watching a film.
Counsel for the accused had indicated that the accused would be seeking severance of the charges involving DC from those involving OD. Counsel later indicated that the accused would also be challenging the joinder of the counts involving both complainants in the single indictment.
I heard submissions on the morning set down for the commencement of the trial. I upheld the Crown’s application to use the evidence of and in relation to each complainant on a tendency basis, and rejected the challenge to joinder and the application for severance. Counsel for the accused had rightly considered that the success of the application for severance would largely depend upon my ruling on the tendency issue.
I ruled that the Crown could lead and use the evidence of and in relation to each complainant as tendency evidence as evidence in the charges concerning the other complainant. In particular, the Crown could use that evidence to seek to prove that the accused had a tendency to:
(a)have a particular state of mind, namely a sexual interest in female children to whom he had access via family connections; and
(b)act in a particular way, namely to:
(i) sexually engage with female children whom he was able to access via their family relationship and associated physical proximity;
(ii) so act even when there were other family members present in the same house or in the vicinity and thus a risk of discovery; and
(iii) so act under the cover of a blanket in front of a television screen during or after watching a film or video with the child.
These are my reasons for those rulings.
Relevant circumstances.
Counts 1 and 2 allege that late on the evening of 4 September or early 5 September, the accused indecently dealt with DC by placing his hand inside her shorts and putting it around his penis (Count 1) and then touching her on the vagina outside of her underpants with his fingers. DC was born on 24 December 2004 and so was 12 years old at the time of that alleged offending. That offending is said to have occurred in the lounge room of TA’s home in Katherine, under a blanket on a mattress where DC and the accused were sleeping. They had fallen asleep after they, and a younger girl DS, had been watching a movie on the television.
Counts 3, 4 and 5 relate to OD, a much younger child, born on 15 August 2012. They allege that sometime between 31 July 2017 and 16 August 2019, the accused rubbed OD on the vagina first outside and then inside her underpants (count 3), placed her hand around his penis and had her rub it up and down several times (count 4), and placed his penis into her anus (count 5). That offending is also said to have occurred in the lounge room of TA’s home in Katherine, under a blanket on a couch where OD and the accused was sitting. That offending is said to have occurred sometime in the afternoon and while, or shortly after, the accused was playing a videogame. There were other children in the room.
Unlike counts 1 and 2 where a complaint about the offending the subject of count 1 was made very shortly after that alleged offending, OD did not tell anyone about what she says happened to her until June 2021. Consequently, there was some uncertainty about the date when that offending could have occurred. However it is very likely that that offending, if it occurred, occurred sometime during the five weeks or so while the accused was living in TA’s house, namely sometime between about 31 July on 4 September 2017. It was common ground that the accused was moved out of TA’s house on 5 September 2017, and the accused maintained in his record of interview of 16 September 2021 that he never went back inside the house after that.
Needless to say there were a number of similarities in the circumstances pertaining to each complainant. The offending alleged in count 1 is very similar to that alleged in count 4, and that alleged in count 2 is very similar to that alleged in count 3. All of the offending, sexual in nature against a child, is said to have occurred in the lounge room of TA’s house in Katherine where the accused had been staying. TA, who was an auntie of the accused and a senior relative of each of the complainants, allowed other family members to stay in her house at various times. On all occasions, the offending is said to have occurred when the child was visiting at that house in the company of other family members, and when the child was sitting or lying next to the accused under the cover of a blanket which the accused was sharing with the complainant. All of the offending is said to have occurred while another child was in the room, if not asleep probably preoccupied by watching the television or playing a videogame.
Some of the main points made on behalf of the accused related to the ages of the accused and each of the complainants. Two main contentions were that:
(a)Unlike many cases, the accused himself was a child (born 16 November 2000) and accordingly:
(i) he did not fall within the category of a mature adult male who might be seen to be taking advantage of vulnerable children; and
(ii) there was no significant or relevant age difference between him and DC, she being a bit less than four years younger than him.
(b)OD was very young probably only five or six.
Counsel contended that the conduct alleged by DC is not demonstrative of an unnatural attraction towards children, and did not demonstrate a paedophilic tendency. This is because DC was (12 and) only four years younger than him.
This could not be said in relation to OD, who was only about five or six at the time when he was said to have offended against her. Counsel contended that the jury would be extremely concerned about his alleged offending against OD, partly because of the age difference but also because of her allegation of rape. It involved un-natural sexual acts. However the offending against DC would not be regarded as so serious.
Counsel relied heavily on these differences to argue that:
(a)The charges relating to DC should not have been joined with the charges relating to OD – they do not form “part of a series of offences that are the same or similar character” as required by s 309(1) of the Criminal Code; and
(b)The accused would not get a fair trial because the jury would be so disgusted by the allegations involving the five or six year old that it would not fairly judge the other charges involving DC. This would amount to prejudice that could not be cured by the judge’s directions.
Counsel relied upon three main authorities, two from the Victorian Court of Criminal Appeal, the other a recent decision of Southwood J in R v CC[1]. In my view these three authorities are readily distinguishable from the present circumstances.
Joinder.
Section 309(1) of the Criminal Code provides that charges for more than one offence may be joined in the same indictment against the same person (relevantly) if those charges ‘are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose’. Section 309(1A) provides that, to avoid doubt, charges for more than one offence may be joined even if the offences are alleged to have been committed against different persons.
This provision was recently considered and applied by Brownhill J in The King v LJ[2] (LJ) from [42] to [56]. At [44] her Honour observed:
[44] The meaning of the word ‘series’ in this context has been said to be somewhat vague, but connotes some connection between the crimes; relates more to the legal character or components of the offences than to the facts alleged by the prosecution in each particular instance; and requires some nexus or similarity between the offences which in all the circumstances of the case enables them to be described as a series.[3] It has also been said that whether charges are or form part of a series of offences of the same or similar character calls for the exercise of some judgement.[4]
LJ involved three complainants whose ages ranged from 11 to 16 and offending, all of a sexual nature, between 2004 and 2021. Brownhill J also considered and applied the decision of Grant CJ in The Queen v LM which concerned several charges of sexual offending against a complainant when she was aged between six and nine years of age and also a charge concerning offending when she was a young adult. Her Honour also considered and applied decisions of the High Court in Sutton and De Jesus, also cases involving sexual misconduct against several complainants. Her Honour concluded there was some significant similarity between the mode of the alleged sexual offending as against each complainant, and was satisfied that the seven counts on the indictment were, or formed part of, a series of offences of the same or similar character within the meaning of s 309(1) of the Criminal Code.
Counsel sought to distinguish LJ and those other authorities because of the distinctions summarised in [11] above. I reject that contention. The main focus of s 309 is the nature of the offending, not the age of the accused or the differences between his age and that of the complainant.
Counsel also relied on White v The King[5] where the Victorian Court of Appeal held that charges of sexual offending by the accused against his 9-11 year old sister PS should not have been joined with charges of sexual offending against his 14-15 year old girlfriend.
(a)However, the main reason stated by the Court was that there was a clear distinction between sexual offending against his 9-11 year old sister PS (incestuous in nature accompanied by a degree of compulsion) and that against his 14-15 year old girlfriend (consensual sexual activity with a child under 16 who was not a relative).
(b)Further, the two sets of offending were temporally disconnected having occurred some five years apart.
That case is clearly distinguishable from the present case which clearly involves similar offending in similar circumstances and most likely within a month or so.
Tendency and severance.
Defence counsel conceded, rightly, that if I allowed the tendency application the severance application should fail.
It was also common ground that s 97A of the Evidence (National Uniform Legislation) Act (ENULA) applies. It, and similar provisions elsewhere in Australia, came into effect in 2021, and applies specifically to proceedings involving child sexual offences. At the same time, s 101(2) was amended to remove the word “substantially” before the words “outweighs the danger of unfair prejudice to the defendant”.
Probative value
It is common ground that the tendency evidence sought to be led by the Crown falls within the scope of s 97A(2), and thus the presumption that the tendency evidence will have significant probative value for the purposes of ss 97(1)(b) and 101(2). However s 97A(4) permits the Court to determine that the tendency evidence does not have sufficient significant probative value if it is satisfied that there are sufficient grounds to do so. Section 97A(5) limits the breadth of s 97A(4) by identifying a number of circumstances that are not to be taken into account for the purposes of that section, unless the Court considers there are exceptional circumstances in relation to those matters.
Defence counsel accepted that s 97A(5) is very wide and applies to the present circumstances. Although this was the case, counsel pointed out that one matter not listed is the age of the accused. Counsel submitted that “the sexual interest a 16 year old may have in a 12 (nearly 13) year old female is not necessarily demonstrative of an unnatural sexual interest in a child.” Counsel also contended that the differences noted in subsections (a) and (c) of s 97A(5), coupled with the fact that the accused was only 16 at the time, constitute “exceptional circumstances” which the Court should consider in rebutting the presumption.
I disagree. Although most tendency cases involve adult offenders, I see no reason to distinguish those cases from the present, just because the accused was 16 years of age. Although a youth, he was still of an age old enough to know what he was doing and indeed old enough to participate in consensual sexual activity with another person of the same or older age.
Further, many of the matters identified in s 97A(5) are matters that would normally support the ordering of tendency evidence in any event, and are present in this case. These include:
(a)the similarity between the sexual interest alleged - a sexual interest in female children to whom he has access via family connections - and his actions – s 97A(5)(c);
(b)the similar circumstances in which the sexual interest or acts occurred – s 97A(5)(b) - in the lounge room of TA, under a blanket when the accused was close to the complainant;
(c)similar relationships between the accused and each of the complainants – family members in a cousin type relationship – s 97A(5)(d);
(d)the period of time between the events – s 97A(e); and
(e)some of the acts shared distinctive features - placing the complainant’s hands around his penis (counts 1 and 4); and touching the complainant on the vagina (counts 2 and 3) – s 97A(5)(f).
As the prosecutor pointed out there are strong similarities in the nature of the offending alleged against each complainant. As already mentioned, the offending occurred in the lounge room of a relative’s house which the complainant was visiting and under the cover of a blanket whilst the complainant was sitting or lying next to the accused. Further, the offending the subject of counts 1 and 4 was very similar, as was the offending subject of counts 2 and 3.
Using the language used by the High Court in Hughes:
(a)the evidence of each complainant, by itself or together with other evidence, strongly supports proof of a tendency; and
(b)the tendency strongly supports the proof of a fact that makes up the offences charged.
In my view, even without the presumption created by s 97A, the evidence does have significant probative value.
Prejudice
The effect of requirements in provisions such as s 101(2) of the ENULA to consider any “prejudicial effect” that particular evidence may have on the defendant, has been considered in numerous cases including HML v The Queen.[6]
In the context of the admission of tendency evidence, Grant CJ summarised the relevant principles in R v O’Brien.[7]
[39] There will be prejudicial effect in the relevant sense if by admission of the tendency evidence the accused is deprived of a fair trial. Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. The accused shall be deprived of a fair trial if there is a real risk that the evidence will be misused by the jury in some unfair way.[8] A mere possibility is not enough; it must be a real risk of unfair prejudice by reason of the admission of the evidence.[9] In addition, the risk of prejudice must be referable to the use of the material for tendency purposes. …
[40] The risk of unfair or improper use of the evidence for tendency purposes in this matter is that the jury may reason that because the accused conducted himself in a certain matter with one complainant he must necessarily have conducted himself in the same manner with the other complainant. Putting it another way, the danger of unfair prejudice is the risk that knowing of the alleged criminal conduct of the accused concerning one complainant, the jury might be diverted from a proper consideration of the evidence concerning the other complainant and simply assume the accused’s guilt.[10]
…
[42] The risk that the jury may be emotionally affect it or make use of the evidence improperly can be accommodated by suitable directions. …
[43] The relevant directions in relation to tendency evidence would include the caution that the evidence cannot be used to conclude simply that the accused is the sort of person who is more likely to commit this kind of offence; that the tendency evidence may only be taken into account if the Crown proves to the requisite standard that the acts said to demonstrate the tendency actually took place; and that the tendency evidence may only be taken into account if the Crown has also proved that it may be inferred or concluded from those acts that the accused did in fact have the tendency asserted by the Crown. It is only if those matters are satisfied that the jury may use the tendency evidence in assessing whether the charge(s) contained in the indictment have been proved beyond reasonable doubt.
See too LJ at [72] – [79]. At [78] Brownhill J said:
[78] The risk that the jury will give the proposed tendency evidence more weight than it deserves arises whenever tendency evidence is admissible. There is Defence counsel stressed the decisions of Southwood J in R v CC and of the Victorian Court of Appeal in TJB. Both of those involved charges of sexual misconduct against young children. There is always the risk the jury will think that someone with the alleged tendencies will act on them whenever the opportunity arises. That is why the jury is commonly directed, when tendency evidence is put before the jury, that: (a) finding the accused did have the tendency the Crown alleges is not enough to prove guilt; (b) while the tendency may assist the Crown to prove the accused committed the offences, it is not enough by itself; (c) the question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges and that is the only way the accused’s tendency may be used; and (d) ultimately, they must decide whether the specific offences with which the accused has been charged have been proved, which decision must be based upon the evidence relevant to each of the charges, including the evidence of the complainant.[11] This risk can be adequately addressed by a direction which includes the elements just referred to, and makes clear that the jury cannot convict the accused of any charged act unless satisfied beyond reasonable doubt of the commission of that act.[12]
Defence counsel stressed the decisions of Southwood J in CC and of the Victorian Court of Appeal in TJB. Both of those involved charges of sexual misconduct against young children.
CC concerned the potential prejudice that might arise in a case like the present, where the evidence concerned sexual misconduct with a six year old child. His Honour concluded that that evidence only had limited probative value. His Honour also said that that evidence “is likely to stir very powerful emotions in a jury” resulting in “a real danger that the evidence would outweigh the proper consideration of the evidence” [concerning the other complainant, a 12 to 16 year old child], and would distract the members of the jury from the essential issues at the trial.”[13] His Honour referred to s 101(2) (as it then was) and concluded that the probative value of the evidence of the young children did not outweigh the danger of unfair prejudice to the accused. Accordingly he ruled the evidence of the young child inadmissible in the proceedings relating to the older complainant.
In TJB, the accused had been convicted of sexual offending against three children. The trial judge had refused to sever the indictment, but later ruled the evidence in relation to each charge was not mutually admissible. The Victorian Court of Appeal overturned the convictions on appeal because the offences were ones that arouse strong emotions or excite revulsion. At 629, Callaway JA said:
At least some sexual offences, particularly those of an unnatural nature or repellent character like offences against young children, are particularly likely to arouse prejudice. The law cannot shut its eyes to the facts of life.
Both of those cases were based upon pre-existing law which has been substantially altered by the more recent amendments to the ENULA. In particular in CC:
(a)Section 97A did not apply – with the presumption of “significant probative value”; and
(b)Section 101 required that the probative value “substantially” outweighed … prejudice. Section 101(2) now only involves a balancing exercise between the probative value of the evidence and the danger of unfair prejudice to the defendant.
Conclusions
In my view, the probative value of the evidence sought to be led as tendency evidence outweighed the danger of unfair prejudice to the accused. Accordingly the tendency evidence was permitted.
[1] R v CC [2021] NTSC 41 (‘CC’).
[2] [2023] NTSC 17.
[3] The Queen v LM [2017] NTSC 81 (‘The Queen v LM’) at [36] per Grant CJ, citing Packett v The King (1937) 58 CLR 190 at 207 per Dixon J; Sutton v The Queen (1984) 152 CLR 528 at 540-541 per Brennan J (‘Sutton’); De Jesus v The Queen (1986) 61 ALJR 1 at 9 per Dawson J (‘De Jesus’); The Queen v PJMS [2011] NTSC 48 at [10] per Mildren J.
[4] The Queen v Cranston (1988) 1 Qd R 159 at 162 per Macrossan J.
[5] Marcus White (Pseudonym) v R1 [2022] VSCA 27.
[6]HML v The Queen (2008) 235 CLR 334.
[7] [2017] NTSC 34.
[8]R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen (1999) 196 CLR 297 at [91]–[92]; Ainsworth v Burden [2005] NSWCA 174 at [99]; Gonzales v R (2007) 178 A Crim R 232 at [70]; R v Ford (2009) 201 A Crim R 451 at [56]; Doklu v R (2010) 208 A Crim R 333 at [45].
[9]R v Lisoff [1999] NSWCCA 364 at [60].
[10]R v Suteski (2002) 56 NSWLR 182 at [116]); R v AH (1997) 42 NSWLR 702 at 709; R v Watkins (2005) 153 A Crim R 434 at [49]-[50].
[11]See, for example, Judicial Commission of New South Wales, Criminal Trial Courts Bench Book at [4-227].
[12] See The Queen v Bauer (2018) 266 CLR 56 at [74] per the Court.
[13]At [60].
0
26
0