The King v LJ
[2023] NTSC 17
•24 February 2023
CITATION:The King v LJ [2023] NTSC 17
PARTIES:THE KING
v
LJ
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NOs:22125925, 22106784
DELIVERED: 24 February 2023
HEARING DATE: 7 December 2022
JUDGMENT OF: Brownhill J
CATCHWORDS:
EVIDENCE – Admissibility and relevance – Application to adduce evidence of sexual activities of complainants – Sexual Offences (Evidence and Procedure) Act (NT) s 4 – whether evidence is substantially relevant – whether evidence is substantially contemporaneous with charged offences – where evidence is directly relevant to the reliability of the complainants’ testimony – where evidence is highly probative of complainants’ credibility – probative value of the evidence need not outweigh the complainants’ distress etc. – application granted
CRIMINAL LAW – Jurisdiction, practice and procedure – Joinder of charges – 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 – Evidence (National Uniform Legislation) Act (NT) ss 97, 97A, 101 – whether evidence of charged acts and uncharged acts cross-admissible as tendency evidence – where charged acts are child sexual offences – evidence of all charged and uncharged acts 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 – where charged acts are sexual offences – evidence cross-admissible between counts for tendency purposes – potential prejudice may be addressed by a proper direction to the jury – application dismissed
BD v The Queen [2017] NTCCA 2; HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; Saoud v The Queen [2014] NSWCCA 136; Taylor v The Queen [2020] NSWCCA 355; The Queen v AW [2018] NTSC 29; The Queen v Bauer (2018) 266 CLR 56; The Queen v GH (No 2) [2018] NTSC 23; The Queen v Lisoff [1999] NSWCCA 364; The Queen v LM [2017] NTSC 81, applied.
Abbott (a Pseudonym) v The Queen [2017] NSWCCA 149; Baker (a Psuedonym) v The Queen [2015] VSCA 323; BC v The Queen [2019] NSWCCA 111; BP v The Queen [2010] NSWCCA 303; De Jesus v The Queen (1986) 61 ALJR 1; Donohoe v The Queen [2017] NSWCCA 174; Dun (a Pseudonym) v The Queen [2021] VSCA 286; El-Haddad v The Queen (2015) 88 NSWLR 93; GBF v The Queen [2010] VSCA 135; H Lundbeck A/S v Sandoz Pty Ltd (2022) 96 ALJR 208; HG v The Queen (1999) 197 CLR 414; Hoyle v The Queen (2018) 339 FLR 11; Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109; Packett v The King (1937) 58 CLR 190; Sutton v The Queen (1984) 152 CLR 528; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; The Queen v Cranston (1988) 1 Qd R 159; The Queen v KRA [1998] 2 VR 708; The Queen v Madrill (2013) 275 FLR 449; The Queen v McGoldrick (unreported, NSWCCA, 28 April 1998); The Queen v O’Brien [2017] NTSC 34; The Queen v PJMS [2011] NTSC 48; The Queen v RCA [2022] NTSC 6; The Queen v RPS (unreported, NSWCCA, 13 August 1997); The Queen v SF [2021] NTSC 91; The Queen v Starkey [1988] 2 Qd R 294; The Queen v TJB [1998] 4 VR 621; Western Bank Ltd v Schindler [1977] Ch 1, referred to.
Criminal Code 1983 (NT) ss 127, 132, 192, 309, 336, 341, 341A.
Criminal Procedure Act 2009 (Vic) s 342.
Evidence (National Uniform Legislation) Act 2011 (NT) ss 3, 41, 55, 97, 97A, 101, 103, 222.
Evidence (National Uniform Legislation) Amendment Act 2021 (NT).
Sexual Offences (Evidence and Procedure) Act 1983 (NT) ss 3, 4.Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2021).
S Odgers, Uniform Evidence Law (LawBook, 16th ed, 2021).REPRESENTATION:
Counsel:
Crown:A Moen
Accused:P Crean
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Territory Criminal Lawyers
Judgment category classification: B
Judgment ID Number: Bro2302
Number of pages: 44
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v LJ [2023] NTSC 17
Nos. 22125925, 22106784
BETWEEN:
THE KING
AND:
LJ
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 24 February 2023)
The issues in this matter were whether the accused should have leave to cross-examine two of the three complainants about aspects of their sexual history, whether the charges in the indictment in relation to the three complainants were improperly joined, whether evidence of the charged acts by the accused towards any one complainant should be cross-admitted as tendency evidence in relation to the charges in respect of the other two complainants, and whether the indictment should be severed and separate trials conducted.
On 7 December 2022, I granted leave pursuant to s 4 of the Sexual Offences (Evidence and Procedure) Act 1983 (NT) (‘SOEPA’) to cross-examine the two complainants, ruled that the proposed tendency evidence was admissible and dismissed the application to sever the indictment and have separate trials. I indicated that I would publish my reasons in due course. These are my reasons.
Charges
The accused is charged by an indictment dated 28 November 2022 with seven counts in relation to conduct against three complainants. In relation to the first complainant (‘CD’), the charges are one count of exposing a child under the age of 16 to an indecent act, contrary to s 132(2)(b) of the Criminal Code 1983 (NT) (‘Criminal Code’) (Count 1), and three counts of sexual intercourse without consent, contrary to s 192(3) of the Criminal Code (Counts 2, 3 and 4). Count 1 is alleged to have occurred between 1 January and 31 December 2004. Counts 2, 3 and 4 are alleged to have occurred between 1 August 2008 and 15 May 2009. In relation to the second complainant (‘TD’), the charge is one count of exposing a child under the age of 16 years to an indecent act, contrary to s 132(2)(b) of the Criminal Code (Count 5). Count 5 is alleged to have occurred between 1 August and 30 September 2012. In relation to the third complainant (‘SJ’), the charges are one count of exposing a child under the age of 16 years to an indecent act, contrary to s 132(2)(b) of the Criminal Code (Count 6), and one count of committing an act of gross indecency on a child under the age of 16 years, aggravated by the circumstance that SJ was then under the accused’s care, contrary to s 127(1)(b) of the Criminal Code (Count 7). Counts 6 and 7 are alleged to have occurred on 24 August 2021.
Crown case
The Crown case is that the accused is the ‘biological half-uncle’ of CD and TD, and SJ is his biological daughter.
Offending against CD
Between 1 January and 31 December 2004, when CD was 11 or 12 years old, she had a sleepover at the accused’s house. Sometime in the morning, the accused went into the room where CD was sleeping. He was carrying his son and his penis was exposed. He lay next to CD, putting his son on the bed. He began masturbating. He did this for almost a minute before picking his son up and walking out of the room. This is the subject of Count 1.
Between 1 August 2008 and 15 May 2009, when CD was between 15 and 16 years old, the accused took her and her siblings to an area of bushland in the Borroloola area. He drove them there in his car. On arrival he told all the children to get out of the car, except CD. He asked CD to help him find something he lost under the back seat of the car. CD moved to a position where she could see the footwell under the seat. The accused stood at the door of the car, pulled down CD’s shorts and underwear and pushed his penis into her vagina. He said ‘shhh’. The accused pushed his penis in and out of CD’s vagina, pulled it out and masturbated until he ejaculated on the ground. This is the subject of Count 2.
Between 1 August 2008 and 15 May 2009, the accused and CD were at the family’s Station. CD went to the shed to get something from the freezer. The accused followed her into the shed. He grabbed at CD over her clothing, held her by the shirt and lifted her up onto the freezer. He lay her down on her back, pulled her shorts and underwear down and pushed his penis into her vagina. He moved his penis in and out of her vagina for about two minutes, pulled it out and masturbated until he ejaculated. This is the subject of Count 3.
Between 1 August 2008 and 15 May 2009, CD was staying at the accused’s house with other family members. She was sleeping on the lounge room floor. Late one evening, she woke up to the feeling of someone rubbing the inside of her pants and underwear. She felt two fingers inserted into her vagina. She looked up to see the accused. She kicked him and left the house. This is the subject of Count 4.
On 9 September 2016, CD provided a statement to Police in Queensland. That statement covered alleged sexual offending against her by the accused as well as by his brother (‘CJ’).
Offending against TD
On occasions between December 2009 and July 2015, the accused would visit family at a house in a camp in Borroloola. He stayed in a caravan at the back of the house. TD was told by her aunt on a number of occasions to get cigarettes from the accused. On occasions when she did so, the accused exposed his penis to her through the leg of his shorts and put the cigarettes near his penis. The accused would tell TD to grab his penis. When she refused, he would masturbate in front of her. On other occasions, the accused would take TD’s hand and wrap it around his penis. This conduct is not the subject of any charge. Between 1 August and 30 September 2012, TD was told to get cigarettes from the accused in the caravan. TD went to the caravan and asked the accused for cigarettes. He put a packet of cigarettes near his penis. TD took some cigarettes from the pack, but did not touch his penis. This is the subject of Count 5.
On 2 August 2018, TD provided a statement to Police about the accused offending against her. TD had previously provided a statement to Police about CJ sexually offending against her.
On 25 January 2019, the accused voluntarily attended a Police station and participated in an electronically recorded interview. He denied allegations in relation to TD and then suspended the interview.
Offending against SJ
On 24 August 2021, SJ and the accused were living together in Moulden. At about 11.00am on that day, the accused and SJ were at home alone. SJ was lying on the bed in the lounge room watching TV. The accused took his shorts off and exposed his genitals to SJ. He began playing with his testicles. He used his hands to wave his testicles in circles. This is the subject of Count 6.
The accused tried taking off SJ’s clothes but she did not allow him to. He touched SJ and grabbed her jaw. He tried putting his testicles in her mouth, but he did not succeed. His testicles touched SJ on the lips. SJ tried to push the accused away. He then got in the shower. This is the subject of Count 7.
SJ videoed the accused engaging in what appears to be masturbation (Count 6) and sent the footage to her cousin (‘MR’). SJ engaged in some text exchanges with MR around the time she sent the videos. She told MR the accused had been sexually offending against her. MR phoned her mother (‘KT’) to report the situation. KT told MR to report it to a mentor at school. MR spoke to a mentorship manager (‘KD’) and a school based constable. The constable took screenshots of the text exchanges between MR and SJ. Police went to SJ’s home and spoke with her. They took her to the Police Station. Detectives sought to question her but she was reluctant to speak with them. After a female detective attended, SJ made some disclosures and showed the videos. On 25 August 2021, she participated in a child forensic interview. On the same day, a crime scene examination was conducted at the accused’s and SJ’s home.
On 22 February 2021, the accused was arrested in relation to the alleged offending against CD and TD. On 24 August 2021, he was arrested in relation to the offending against SJ.
The accused denies any sexual activity with the complainants.
The trial is listed for 10 days commencing on 11 September 2023.
Leave to cross-examine CD and TD about their sexual history
The Defence sought leave pursuant to s 4(1)(b) of the SOEPA to cross-examine CD and TD in relation to their sexual activities with other persons, as follows:
(a)in relation to CD – her sexual activities with:
(i) CJ – CD’s statement to Police described numerous instances of sexual offending against her by CJ, between October or November 2007 and May 2009;
(ii) the accused’s other brother (‘RJ’) – family members gave statements to Police attributing CD’s 2008 pregnancy to RJ, who committed suicide after that time; and
(iii) a young man CD liked who lived nearby at the time (‘FG’) – CD’s statement to Police and medical records indicated that, in 2008 when CD got pregnant and had an abortion, she told her family and medical staff that the father was FG, which she did because she was too scared to tell them that the father was CJ; and
(b)in relation to TD – her sexual activities with:
(i) CJ – TD’s statements to Police described a number of instances of sexual offending against her by CJ, between 2012 or 2013 and the first part of 2014; and
(ii) TD’s aunt’s partner (‘LC’) – TD’s statements to Police described a number of instances of sexual offending by LC against her, between 2007 or 2008 and August 2014.
The Defence says this evidence is relevant because it demonstrates that significant and repeated sexual activity may have occurred with CD and TD which was substantially contemporaneous with the alleged offending by the accused, potentially giving rise to doubt about the ability of CD and TD to give reliable and credible accounts as to who engaged in sexual activity with them and when, or about the honesty of CD and TD where they may have bore grievances against the accused and CJ for physical beatings.
Section 4(1) provides that leave is not to be granted unless the Court is satisfied that the evidence sought to be elicited has substantial relevance to the facts in issue. Section 4(2) provides that, for the purposes of s 4(1)(b), evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities with any other person shall not be regarded: (a) as having substantial relevance to the facts in issue by reason only of an inference it may raise as to general disposition; or (b) as being proper matter for cross-examination as to credit, in the absence of special circumstances by reason of which it would be likely materially to impair the confidence in the reliability of the evidence of the complainant. Section 4(3) provides that, for the purposes of s 4(1)(b), evidence of an act or event that is substantially contemporaneous with an offence with which a defendant is charged, or that is part of a sequence of acts or events that explain the circumstances in which the alleged offence was committed, shall be regarded as having substantial relevance to the facts in issue.
I do not regard this evidence as evidence that relates to or tends to establish the fact that either CD or TD were ‘accustomed to engage in sexual activities with any other person’ within s 4(2) of the SOEPA. The parties did not demur from that view.
It has been accepted that s 4(1)(b) applies to both consensual and non-consensual sexual activities.[1]
Section 55 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’) defines evidence as relevant where ‘if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’. The requirement in the SOEPA that the evidence have ‘substantial’ relevance is more onerous and requires, firstly, that the evidence of sexual activity could be reasonably regarded as important to the outcome of the proceedings and, secondly, that the evidence would have ‘a real, persuasive bearing’ on the reliability of the witness or some part of his or her testimony.[2]
The accused denied that any form of indecent or sexual acts by him to or upon CD and TD occurred. It follows that facts in issue in the proceeding are whether any of the indecent or sexual acts alleged to have been done by the accused to CD and TD were done by him. The first question is whether, if the evidence of the sexual activities by CD or TD with CJ, RJ, FG or LC is accepted, it could rationally affect (directly or indirectly) the assessment of the probability of these facts in issue.
Potentially, the evidence raises the possibility that sexual offending was committed against CD by CJ and/or RJ, the accused’s brothers, and raises the possibility that, at the relevant times, rather than complaining about sexual offending against her by the accused, CJ or RJ, CD attributed her pregnancy to consensual sexual intercourse with FG. CD’s statement to Police contains language which could be construed to indicate difficulties with her recollection of sexual offending against her or when such offending occurred. It also contains similarities between her descriptions of sexual offending by CJ and by the accused. It also contains descriptions of sexual offending by CJ and the accused which are proximate in time, location or both.
Similarly, the evidence raises the possibility that sexual offending was committed against TD by CJ, the accused’s brother, and/or LC, the accused’s brother in law. TD’s statement corroborates CD’s allegations as regards one of Counts 2 to 4, but TD was not told by CD that what TD saw was a rape until many years later. TD’s statement also refers to CJ offering cigarettes for sexual activity and to the accused placing cigarettes near his penis and masturbating. TD’s statement from 2016 refers to sexual offending against her and CD by CJ and LC, but makes no mention of sexual offending against her by the accused. She did not refer to that until her statement from 2018, where she also described other offending against her by LC and CJ, which she says she recalled after ‘back flashes and memories’ arose. Both CD’s and TD’s statements describe a fluid and dynamic household in which people came and went all the time, as well as maltreatment, including beatings, by the accused, CJ and other members of the family whilst in their care.
The above evidence could rationally affect the assessment of the probability that:
(a)either CD or TD has honestly but mistakenly confused or misremembered her recollections about either the identity of the perpetrator or the timing of incidents in making the allegations of sexual offending against her by the accused;
(b)CD gave a prior inconsistent statement about the identity of the father of her pregnancy in 2008, saying that it was the result of consensual sex with FG;
(c)the two complainants colluded to fabricate their evidence about offending against them by the accused and CJ because of some motive to lie, namely a grievance against the accused or his family due to maltreatment by the accused or his family;
(d)TD witnessed an instance of offending against CD (which is what she told Police), including by reference to inconsistencies between CD’s description of the offending and TD’s description of what she saw; and
(e)the alleged offending occurred, including by reference to any inconsistencies between CD’s and TD’s in court evidence and statements given by them to Police.
The Crown argued that the sexual activity between CD and CJ, RJ and FG was not ‘substantially contemporaneous’ with the offences with which the accused is charged. The term ‘substantially contemporaneous’ is not defined in the SOEPA. It has its ordinary meaning. That conveys that the acts or events need not be precisely contemporaneous, ie occurring at precisely the same time. In The Queen v Starkey,[3] Williams J of the Queensland Court of Criminal Appeal upheld a decision of the trial judge excluding evidence of a conversation that took place some hours before an alleged rape in which the complainant referred to her sexual activity, at least partly on the basis that the conversation was not ‘substantially contemporaneous’ with the alleged offence, within the meaning of the Queensland equivalent of s 4 of the SOEPA. In The Queen v GH (No 2), Grant CJ upheld (at [35]) a submission of the Crown (at [13]) that evidence of sexual abuse which occurred in the three years prior to the alleged offending, in the context of alleged offending occurring almost 20 years before the trial, was substantially contemporaneous with the alleged offending, within s 4(3) of the SOEPA. His Honour observed that the occurrence of the episodes of sexual abuse and the temporal nexus between those episodes and the alleged conduct remained to be established on the evidence, but potentially at least, the material had high probative value (noting there was expert evidence to the effect that the prior sexual abuse may have affected the complainant’s capacity to remember events properly). It is apparent that the term ‘substantially contemporaneous’ in s 4(3) requires some temporal nexus with the alleged offending, the extent of which depends on the circumstances of the particular case.
CD told Police that she was first raped by CJ between the end of 2007 and when she first fell pregnant (which medical records show occurred in early August 2008) and that she was last raped by him on 15 May 2009, that she was raped by him so many times she has trouble remembering specific incidents, and that she told the nurse who administered the pregnancy test on 26 August 2008, and her family, that the pregnancy was the result of consensual sexual intercourse with FG, when in fact it was a consequence of a rape by CJ. Statements from various of CD’s family members say that they understood the pregnancy was the result of a sexual relationship with RJ or FG.
The alleged offending against CD by the accused is said to have occurred between 1 January 2004 and 31 December 2004 (Count 1), between 1 August 2008 and 15 May 2009 (Counts 2 and 3), and between 1 January and 15 May 2009 (Count 4). The sexual acts between CD and CJ therefore occurred before, up to and during the periods in which the alleged offences the subject of Counts 2, 3 and 4 are said to have occurred. So too, the event of the pregnancy. Those sexual acts, and the pregnancy and its attribution to FG or RJ, were, in the circumstances of this case, substantially contemporaneous with an offence with which the accused is charged. Consequently, by s 4(3) of the SOEPA, they are taken to have substantial relevance to the facts in issue.
TD told Police that she was sexually abused by the accused between the ages of 10 (2007) and 17 (2014). She told Police that sexual offending against her by CJ occurred when she was 15 or 16 (2013) and in 2014, and that sexual offending against her by LC occurred in 2007 or 2008 and 2014. Count 5 is alleged to have occurred between August and September 2012. Again, in the circumstances of this case, the sexual activity between TD and CJ and LC was substantially contemporaneous with the offence with which the accused is charged. Consequently, by s 4(3) of the SOEPA, they are taken to have substantial relevance to the facts in issue.
Those matters are directly relevant to the reliability of CD’s and TD’s testimony that it was the accused who sexually offended against them, because the other episodes of sexual offending occurred at relatively the same time, involved family members who occupied positions of trust, and occurred in a dynamic and transient household over 13 years ago. Potentially at least, the evidence has a high probative value.
Cross-examination as to credibility is permissible if the evidence could substantially affect the assessment of the credibility of the witness (s 103(1), ENULA). That the evidence could substantially affect the assessment of the credibility of CD and TD is why it has the high probative value referred to above.
The Crown argued that a factor which the Court should take into account is that cross-examination on these matters could be expected to be distressing, embarrassing and humiliating for CD and TD. The Defence argued that a factor which the Court should take into account is the need for the accused to fully answer and defend these serious charges, in the interests of justice. Unlike s 342 of the Criminal Procedure Act 2009 (Vic) referred to in The Queen v GH (No 2), s 4 of the SOEPA does not expressly require, for leave to be granted to cross-examine a complainant, that the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination, in view of the age of the complainant and the number and nature of the questions the complainant is likely to be asked. Nor does s 4 expressly require, unlike s 342 of the Victorian legislation, the Court to be satisfied it is in the interests of justice to allow the cross-examination, having regard to (amongst other things) the right of the accused to fully answer and defend the charges. The parties submitted that the complainant’s distress, etc and the accused’s right to defend the charges are factors implicit in the exercise of the Court’s discretion in the grant of leave under s 4. It was not put by the parties (rightly) that the probative value of the evidence must outweigh the complainant’s distress, etc as required by the Victorian legislation. To imply such a test into s 4 would be ‘an insertion which is “too big, or too much at variance with the language in fact used by the legislature”’.[4] If these matters are factors to be taken into account in deciding whether to grant leave under s 4 of the SOEPA, it is in the interests of justice to permit the accused to elicit the evidence having, as it does, high probative value, in answer to the serious charges against him, despite the likelihood that the cross-examination may be distressing, embarrassing and/or humiliating for CD and TD.
It is noted that the constraints in s 41 of the ENULA regarding improper questions, specifically, questions which are unduly harassing, offensive, humiliating or repetitive, will operate to protect CD and TD at least to some extent from distress, embarrassment and humiliation they may experience from the cross-examination.
For the above reasons, the Defence was granted leave pursuant to s 4 of the SOEPA to cross-examine:
(a)CD in relation to her sexual activities with CJ, RJ and FG; and
(b)TD in relation to her sexual activities with CJ and LC.
The leave granted extended to cross-examination about the matters identified in the Defence’s document headed ‘Reference points relied on s 4 Sexual Offences (Evidence and Procedure) Act 1983’.
The leave granted extended to cross-examination for the purposes of:
(a)establishing that either complainant has honestly but mistakenly confused or misremembered her recollections about either the identity of the perpetrator or the timing of incidents in making the allegations of sexual offending against her by the accused;
(b)establishing that CD gave a prior inconsistent statement about the identity of the father of her pregnancy in 2008, saying that it was the result of consensual sex with FG;
(c)establishing that the two complainants colluded to fabricate their evidence about offending against them by the accused and/or CJ because of some motive to lie, namely a grievance against the accused, CJ or his family generally due to maltreatment by the accused, CJ or his family generally;
(d)demonstrating, through TD, inconsistencies between the charged incidents described by CD and the description of any of those which TD says she witnessed; and
(e)demonstrating inconsistencies between any in court evidence given by CD or TD about those sexual activities and statements given to Police by, respectively, CD or TD about them.
The orders granting leave provided that the cross-examination will be conducted in accordance with the constraints in s 41 of the ENULA and improper questions, specifically questions which are unduly harassing, offensive, humiliating or repetitive will be disallowed.
The orders granting leave provided that the leave does not permit cross-examination which puts to CD or TD that another witness (named or unnamed) has told Police that CD was engaging in sexual activity with a particular person. That order was made because puttage stating that another witness has said something is oppressive and unfair.
Joinder of the charges in the indictment
The Defence argued that Counts 5 (in relation to TD), 6 and 7 (in relation to SJ) were not properly joined in the indictment pursuant to s 309 of the Criminal Code.
Section 309(1) 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.
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.[5] 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.[6]
I was invited by the Defence not to follow The Queen v LM, particularly Grant CJ’s construction of the word ‘series’ in s 309. No authority propounding some different construction was identified. I consider his Honour’s construction to be consistent with the terms of the legislation and authority, and correct, and I adopt it.
In The Queen v LM, Grant CJ held (at [37]) that five counts, two of exposing the complainant to an indecent act when she was under 16 years of age, one of exposing the complainant to an indecent film when she was between 6 and 9 years of age, one of indecently dealing with the complainant when she was a child in his care, and one of having sexual intercourse with her without her consent when she was a young adult, had a threshold nexus or similarity given that each was allegedly committed against the same victim and as part of what might generally be described as a course of conduct, formed part of a series of incidents involving the accused’s dealings with the complainant, and the character and components of each charge were similar and connected as each episode of offending involved alleged sexual misconduct perpetrated against the complainant. His Honour held (at [38]) that the fact that the conduct in the fifth count took place when the complainant was a young adult did not deprive it of the requisite similarity for the purposes of s 309. His Honour held there was a real and substantial connection between the character and components of the offences because the complainant’s evidence, if accepted, would have been that the accused dealt with her in a way that was sexually inappropriate during her childhood in circumstances where there was a particular relationship between them.
In Sutton v The Queen,[7] the High Court held that one count of attempted rape and seven counts of rape of three women alleged to have been committed within a six week period were properly joined in the one information. Brennan J observed (at 541) that, if the Crown case was accepted, the accused had committed three sets of sexual offences against three young girls in a particular area of suburban Adelaide, in each case by use of force and without the consent of the victim, so there was a sufficient connection among the alleged offences to treat them as a series.
In De Jesus v The Queen,[8] the High Court held that one count of unlawful detention and one count of rape committed against one complainant, and one count of deprivation of liberty, one count of indecent assault and one count of rape against another complainant, committed about one month apart, were properly joined in the one indictment. Dawson J held (at 9) that the offences of rape were of the same kind and that other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape, and there was a sufficient similarity in fact to constitute them a series, in that the Crown alleged that each offence occurred in the early hours of the morning after the attendance of the accused at the same nightclub.
In this case, Counts 1, 5 and 6 on the indictment comprise the same charge (exposing a child to an indecent act). Counts 2, 3 and 4 comprise the same charge (sexual intercourse without consent). Count 7 comprises a different charge (committing an act of indecency on a child). Each of Counts 1, 5, 6 and 7 have the common element of indecency. All seven counts comprise sexual offending against a child. There is clearly a significant degree of similarity as regards the legal character and components of the offences.
Count 1 is alleged to have been committed when CD was 11 years old. Each other count is alleged to have been committed when the complainant was aged 15 or 16. The age of the complainants across Counts 2, 3, 4, 5, 6 and 7 is a very significant factual similarity, particularly given the sexual nature of the alleged offending.
There are three complainants – the accused’s two nieces (who are sisters) and his daughter. The Defence sought to draw a distinction between the relationship between the accused and his nieces, and the relationship between the accused and his daughter, on the bases of the biological distinction and that, at the time of the alleged offending, he had care of his daughter, but was merely a visitor to the home in which his nieces were cared for. The Crown pointed out in response that the accused is not only the biological half-brother of CD’s and TD’s mother, but also the biological brother of their legal guardian, the woman who stepped into the shoes of their mother in 2002 after their mother passed away.
CD’s statement to Police says that when she was living in Darwin from 2002, she, TD and her brother would sometimes sleep over at the accused’s and his de facto partner’s house, and this was the location of the alleged offending the subject of Count 1. It also says that from 2006, CD and her siblings moved to a Station near Borroloola with her grandfather, his de facto partner and their five adult children (who include the accused), and that they all lived in a big bus, with a bush kitchen and a couple of bedrooms next to the bus. It says people came and went all the time. That Station was the location of the alleged offending the subject of Counts 2 and 3. The statement says that in 2009, CD, her siblings, her grandfather, his de facto partner, and the five (adult) children moved back to Darwin, and CD was then staying with the accused and his de facto partner at their house. It also says that they all stayed in that house. That house was the location of the alleged offending the subject of Count 4. The statement says that, after they visited her grandfather in hospital at the time he died, they all ‘went home’ to the accused’s house. This evidence, if accepted, shows that the accused and CD and TD did live in the same house from time to time, and that he was amongst the adult family members who were responsible or cared for CD and TD. The evidence regarding SJ is that, at the time of the alleged offending, SJ was in the care of the accused and they lived together. While there is a biological distinction between the relationship between the accused and his daughter, and the accused and his nieces, and the degree of care and responsibility of the accused for SJ may be greater than that of the accused for CD and TD, I do not consider either distinction to be material, given that the base allegation is of sexual misconduct against children to whom the accused is related.
The period between when Count 1 is alleged to have been committed and when Counts 6 and 7 are alleged to have been committed is 17 years. Count 1 is alleged to have been committed in 2004. Counts 2, 3 and 4 are alleged to have been committed between August 2008 and May 2009. Count 5 is alleged to have been committed in 2012. Counts 6 and 7 are alleged to have been committed in 2021. The gaps in time are four to five years between Count 1 and Counts 2, 3 and 4; three to four years between them and Count 5; and nine years between it and Counts 6 and 7. These are undoubtedly significant periods of time.
The Defence submitted that there were significant differences in the age gaps between the accused and the complainants, particularly SJ, at the time of the offending. The accused was 23 at the time of the alleged offending the subject of Count 1, 27-28 at the time of the alleged offending the subject of Counts 2, 3 and 4, 31 at the time of the alleged offending the subject of Count 5, and 40 at the time of the alleged offending the subject of Counts 6 and 7. Why that was a material distinction was not explained.
The Defence also argued that the alleged offending, particularly in respect of Counts 6 and 7, was markedly different to the alleged offending the subject of the other counts. The Crown pointed out that the alleged offending in both Counts 1 (against CD) and 6 (against SJ) involves the accused exposing his genitals and masturbating in the presence of, and close to, the complainant. Further, the alleged offending in Count 5 (against TD) involves the accused exposing his genitals to the complainant, who also alleges (as uncharged acts) that when she refused to touch his penis when she was asked to get cigarettes from him, he would masturbate in front of her. There is, therefore, some significant similarity between the mode of the alleged sexual offending as against each complainant.
Taking all of these matters into account, I am satisfied that the seven counts on the indictment are, or form part of, a series of offences of the same or similar character within the meaning of s 309(1) of the Criminal Code.
Tendency evidence
The Crown gave notice under s 97(1) of the ENULA of its intention to adduce tendency evidence. In broad terms, the proposed tendency evidence comprised, firstly, evidence to be led in support of each of the charged acts and, secondly, evidence of other conduct (‘uncharged acts’) involving TD of a similar nature to Count 5.
Proposed tendency evidence
The Crown contended that the proposed tendency evidence relates to the central facts in issue in the proceeding, namely whether the accused sexually offended against CD, TD and SJ as alleged.
The tendency notice stated that the tendencies sought to be proved are the tendency of the accused to have a sexual interest in the complainants, to have a sexual interest in female relatives under or around the age of 16, and to act in a particular way, namely to act upon his sexual interest in his female relatives (namely the complainants) and engage or attempt to engage in sexual activity with them for his own sexual gratification.
Legal principles
Under s 97 of the ENULA, evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless the appropriate notice has been given and the Court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value. ‘Probative value’ means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[9]
With effect from 1 April 2021, s 97A was introduced into the ENULA. By s 222 of the ENULA, s 97A applies in relation to a proceeding in which the hearing commenced after 1 April 2021, when the Evidence (National Uniform Legislation) Amendment Act 2021 (NT) commenced. There is no definition in the ENULA of when the hearing in a proceeding is taken to have commenced. For the purposes of ss 97A and 222, the hearing of a criminal proceeding in this Court may be taken to have commenced when the accused is first arraigned by the Court on the indictment with which he or she is charged.[10] In the present case, the accused had not been arraigned before 1 April 2021. Section 97A therefore applies.
Under s 97A of the ENULA, in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue, evidence that the defendant had a sexual interest in a child or children (including the complainant), or was prepared to act on such sexual interest, is presumed to have significant probative value for the purposes of ss 97(1) and 101(2) (s 97A(1)-(3)).
The charges on the indictment are child sexual offences within the meaning of s 97A (s 97A(6)).
The presumption of significant probative value in s 97A(2) will apply unless the Court is satisfied that there are sufficient grounds to determine that the tendency evidence does not have significant probative value (s 97A(4)), which is to be determined by not taking into account the matters listed in s 97A(5), unless the Court considers there are exceptional circumstances which warrant taking one or more of those matters into account (s 97A(5)).
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen, as follows:[11]
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence.
Assessing the probative value of proposed tendency evidence is therefore a two stage process. As the plurality said in Hughes:[12]
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent.[13] A ‘significant’ probative value is a probative value which is important or of consequence.[14] The term ‘significant’ connotes something more than mere relevance but less than a substantial degree of relevance, and requires a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[15] The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence.[16] This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[17] Nor does it involve assessing the significance of the possibility of collusion or concoction which ‘should be left to an occasion when it is raised in a concrete factual setting’.[18]
Significant probative value
The conduct comprising each charged act is clear evidence about the accused having and acting on a sexual interest in the complainants, his female relatives under or around the age of 16 (ie, children), and so is caught by the presumption in s 97A. So too is the conduct comprising the uncharged acts against TD. The proposed tendency evidence therefore is presumed to have significant probative value. The Defence conceded (rightly) that, by virtue of the presumption in s 97A(2), the proposed tendency evidence has significant probative value.
It is not necessary that the conduct relied on as tendency evidence be strikingly or even closely similar conduct to, or that it have an underlying unity with, the charged conduct.[19] However, the closer the degree of similarity, the more significant and more probative the evidence is likely to be, because the specificity of the tendency directly informs the strength of the inferential mode of reasoning.[20] Similarity may be supplied as much by the circumstances in which particular conduct occurred as by the similarity of the conduct itself, such that, even if the conduct is not necessarily similar or particularly so, a close similarity of circumstances in which the relevant conduct occurred may render the tendency evidence of ‘significant probative value’.[21]
As regards the charged acts, the similarities in the nature of the alleged offending, the complainants (particularly their ages at the time of the offending), and the relationships between the accused and the complainants referred to in paragraphs [52] to [55] above demonstrate that: (a) the proposed tendency evidence is highly probative of proof of the alleged tendencies; and (b) the alleged tendencies are highly probative of the facts that the accused committed the alleged offending. The same conclusions apply to the uncharged acts. In The Queen v Bauer,[22] the High Court observed (at [55]) that a high probative value is ordinarily to be attributed to a complainant’s evidence of uncharged sexual acts. In BP v The Queen,[23] Hodgson JA (Price and Fullerton JJ agreeing) observed that it is unusual for a parent or grandparent to commit sexual acts against their children or grandchildren, and such acts would, to a very significant extent, rationally affect the assessment of the probability of the appellant having an unusual sexual interest in his daughter and granddaughters and having a tendency to give effect to that interest by assaulting them, and the existence of those tendencies in turn would to a very significant extent rationally affect the assessment of the probability of the commission of the offences charged. I consider the same observation applies to an uncle or parent in relation to his nieces and daughter.
Further, there is sufficient proximity in time between the uncharged acts and the alleged sexual offending, and sufficient similarity between the circumstances of the uncharged conduct of the accused and the circumstances of the conduct of the alleged offending, as well as the complainants’ ages at the time, to provide a linkage between the uncharged acts and the alleged offending, such that the evidence shows more than a mere disposition to commit crimes of the kind in question.[24] Consequently, all of the proposed tendency evidence has high probative value.[25]
Danger of unfair prejudice to the accused
Section 101(2) of the ENULA restricts the admissibility of tendency evidence unless the probative value of it outweighs the danger of unfair prejudice to the accused. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused. Recent amendments to the ENULA have changed the test under s 101(2): no longer is the requirement for admissibility that the probative value of the evidence substantially outweighs its prejudicial effect; it need only outweigh the danger of unfair prejudice to the defendant.
When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[26] The notion of prejudice in this general context ‘… means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.’[27] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.
The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial such as this:[28]
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
The test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[29]
The Defence argued that there is a real risk that the proposed tendency evidence may provoke an irrational, emotional or illogical response in the jury, namely that they may be inclined to punish the accused for an abhorrent sexual interest in the complainants and female relatives under or around the age of 16, rather than confining their attention to the question of whether the prosecution has established the elements of each offence beyond reasonable doubt. It was also argued that the jury will give the evidence more weight than it deserves by thinking someone with the alleged tendencies will yield to them whenever the opportunity arises.
The issue here is the risk of prejudice from the admission of the evidence for tendency purposes. Whether or not the evidence about each charge is admissible as tendency evidence, the jury will hear that evidence. Even if separate trials are ordered (see below), it should not be assumed that the proposed tendency evidence in relation to the charges against the other complainants would be lost, because the evidence supporting the other charges could be called to establish a tendency that was relevant to any charge being tried.[30] Any risk of an irrational, emotional or illogical response to the evidence in the jury will largely arise from the evidence itself, regardless of whether it is admissible to establish the alleged tendencies. Permitting the jury to use the evidence to find the existence of the alleged tendencies does not add significantly to any risk of an irrational, emotional or illogical response to the evidence which, if it is accepted, is likely to be seen as abhorrent offending.[31]
The risk that the jury will give the proposed tendency evidence more weight than it deserves arises whenever tendency evidence is admissible. 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.[32] 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.[33]
Given the high probative value of the tendency evidence, I do not accept that the probative value of the proposed tendency evidence is outweighed by the danger of unfair prejudice to the accused.
Severance and separate trials
The Defence applied pursuant to s 341 of the Criminal Code for an order that Counts 5, 6 and 7 be severed from the indictment, and Count 7 be severed from Counts 5 and 6, such that there are three separate trials, one for the alleged offending against each complainant; or, alternatively, that Counts 6 and 7 be severed from the indictment, such that there are two separate trials, one for the alleged offending against CD and TD, and one for the alleged offending against SJ.
Section 341(1) provides that the Court may order a separate trial of any count or counts in the indictment where the Court is of the opinion that the accused may be (relevantly) prejudiced in his defence by reason of being charged with more than one offence in the same indictment. Section 341(1) applies subject to s 341A.
Section 341A(1) provides that, despite any rule of law to the contrary, if an accused is charged with more than one sexual offence in the same indictment, it is presumed that the charges are to be tried together. Section 341A(2) provides that the presumption is not rebutted merely because: (a) evidence on one charge is not admissible on another charge; or (b) there is a possibility that evidence may be the result of collusion or suggestion. The term ‘sexual offence’ is defined by reference to s 3 of the SOEPA and includes, relevantly, the offences the subject of each count in the indictment. The Defence conceded that the presumption in s 341A(1) applies in this case.
The purposes of s 341A include: to ensure that the jury is provided with the full picture of the facts and circumstances surrounding the allegations, rather than an artificial and individualised context for each episode of alleged offending; to avoid complainants in sexual assault cases being required to give evidence and submit to cross-examination on multiple occasions; and to reduce costs, save time and conserve legal and judicial resources.[34] The presumption in s 341A does not abrogate the Court’s discretion to sever the indictment and order separate trials where there is a real risk of prejudice that cannot be allayed by directions from the trial judge.[35] The dominant consideration remains ensuring that an accused is not deprived by prejudice of a fair trial and the notion of prejudice is similar to that referred to in paragraph [73] above.[36] Further, the loss by an accused of the strategic advantage of conducting his or her defence in each trial in isolation does not of itself constitute prejudice in the material sense.[37]
The exercise of the discretion to sever charges will be guided by a number of considerations, including: (a) the degree of interrelationship between the facts giving rise to the counts, and in particular whether the evidence is cross-admissible between counts for a legitimate purpose; (b) whether any potential prejudice may be allayed by proper directions to the jury; and (c) the impact on both the complainant and the accused of ordering multiple trials.[38] As set out above in relation to the joinder of the counts in the indictment, there is a significant degree of interrelationship between the facts giving rise to the counts, most particularly as to Counts 1 to 5.
In The Queen v TJB,[39] Callaway JA (Phillips CJ and Buchanan JA agreeing) observed that the following principles guide the exercise of the discretion to sever charges:
(a)An indictment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so. In that respect, sexual offences are not different from other offences.
(b)One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to tendency evidence and again is not peculiar to trials of sexual offences.
(c)It is usually to be assumed that the jury will comply with any directions they are given by the judge. A fair minded lay observer takes that very factor into account in considering whether a trial is fair.
(d)There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion.
(e)There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another, but either the Crown does not rely on it for that purpose or the judge rules that it is inadmissible because of prejudice.
The Defence argued that, if the indictment is not severed as proposed, there is a real risk of prejudice of the kinds referred to in paragraph [76] above. In making this argument, the Defence relied on observations in two cases about sexual offences being likely to arouse prejudice against the accused which is unlikely to be ameliorated by directions to the jury.
The first was the observation by Gibbs J in De Jesus v The Queen that:[40]
Sexual cases, however, are peculiarly likely to arouse prejudice against which direction to the jury is unlikely to guard.
This observation should not be taken, out of context, to mean that a trial on multiple counts of sexual offences is likely to result in prejudice to the accused which cannot be ameliorated by directions to the jury, such that there should be separate trials. Before the above observation, Gibbs J referred to his observation in Sutton (at 531) that charges of multiple sexual offences should not be tried together if the evidence on one count is not admissible on another count, and to Brennan J’s observation (at 541-542) that, if offences of a similar character are tried together, a risk of prejudice can arise from the adverse effect which evidence of implication in one of the offences is likely to have on the jury’s mind in deciding guilt on the other offences, and where that evidence is not admissible towards proof of guilt of the other offence, some step must be taken to protect the accused from that risk, such as a direction to the jury, which may or may not be sufficient to guard against the risk. Gibbs J then said that Brennan J’s general statement was not limited to sexual cases and he agreed with it. Then followed the observation set out above. Gibbs J then said that, for that reason, he adhered to the view he expressed in Sutton. It may be seen that the prejudice to which Gibbs J was referring is the prejudice which arises where evidence on one count is not admissible towards proof of guilt on other counts.
Given the above ruling on tendency evidence, that prejudice is not present in this case. The cross-admissibility of evidence on counts relating to different complainants often determines that a joint trial is appropriate.[41]
The second was the observation of Callaway JA in TJB (at 629) that:
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.
The reference to ‘young children’ must be understood in the context of the facts of that case, where the three complainants (who were the accused’s stepdaughter and natural son and daughter) were aged between 5 and 11, 8 and 12, and 6 and 10 years old respectively. Here, the complainants were aged 11 to 12 in relation to Count 1, and 15 to 16 in relation to Counts 2 to 7. The indictment does not charge the accused with sexual offences against ‘young children’. In TJB, the accused’s convictions were overturned on appeal because the offences were ones that arouse strong emotions or excite revulsion, and the trial judge had refused to sever the indictment but later ruled the evidence in relation to each charge was not mutually admissible.[42]
It has been held that Callaway JA’s observation is not authority for a general proposition that there is an unacceptable risk of prejudice in conducting a joint trial involving more than one complainant in respect of allegations of sexual offences against young children.[43] It has also been held that:[44]
Whilst the Court [in TJB] suggested that such a risk [ie an unacceptable risk of prejudice] will often be found in cases of offences ‘of an unnatural character or offences that arouse strong emotions or excite revulsion’, it should not, we think, be forgotten that the [introduction of the Victorian equivalent of s 341A of the Criminal Code was] specifically directed towards the joint trial of ‘sexual offences’ and that the experience of this Court is that a large number of such offences tried in this State are offences which involve young children and, consequently, excite emotion and revulsion. Indeed it is difficult to imagine any such case which would not do so. Nor, in our view, should it be lightly assumed that juries are incapable of following instructions given to them by the judge in such cases. … In our opinion, the presumption in favour of trying jointly sexual offences, contained in [the equivalent of s 341A] is predicated upon the assumption that juries will heed appropriate warnings given to them by the trial judge.
There will, no doubt, be some cases where the perceived prejudice to the accused will be so great that the trial judge will consider that no judicial direction will overcome that prejudice and that circumstance will play a dominant role in the exercise of his discretion, notwithstanding the legislative policy expressed in the [equivalent to s 341A]. Each case will necessarily depend upon its own facts and, as in the case of all discretionary exercises, rarely will a decision in one case provide a precedent for another.
It has also been held that:[45]
Ordinarily, in a multi-complainant sexual offence case, the jury can be directed either that they may take the evidence given by one complainant into account as tendency evidence in determining whether the Crown has established the offences alleged to have been committed against another complainant, or that they are to put the evidence of one complainant completely out of mind as they consider whether the Crown has established guilt in relation to the offences alleged to have been committed against the other complainant. In such cases, the mere fact that there are two complainants is not ordinarily regarded as sufficient reason to sever the indictment.
Defence also argued that the jury are likely to be confused by evidence from three complainants about the different allegations on each count in the indictment, which relate to different locations and different sexual behaviour over a lengthy period of time. On the contrary, those differences are more likely to permit the jury to rationally deal with the evidence of each complainant about each distinct count without being confused about which evidence relates to which count.
It was also argued that the jury would likely be overwhelmed and confused by the directions the Court would need to give. I reject this submission. Directions as set out in paragraph [78] above, along with a direction that the jury must decide the facts impartially and dispassionately, without letting feelings of antagonism or emotion sway their judgment, are commonly given in cases involving multiple charges and a single complainant. That these directions would be given in this proceeding involving three complainants would not render them confusing or overwhelming.
In this case, the alleged offending is against three complainants who were each aged 15 to 16 or, in relation to one count, aged 11 to 12, and who were the accused’s nieces and daughter. They were not ‘young children’, but the offending is such that might arouse prejudice because it comprises sexual offending against children with those familial connections to the accused. There is certainly a real risk of prejudice to the accused because the evidence of each complainant is likely to arouse strong emotions or excite revulsion. Such emotional response will, to some degree, be present on any individual trial if the indictment were to be severed. It may be heightened because there are three complainants rather than one (or two, on the Defence’s alternative application), but that prejudice is not so great that no judicial direction will overcome it.
Disposition
For the above reasons, I made the rulings set out at paragraph [2] above.
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[1]The Queen v GH (No 2) [2018] NTSC 23 (‘The Queen v GH (No 2)’) at [21]-[22] per Grant CJ, citing HG v The Queen (1999) 197 CLR 414 at [28]-[31] per Gleeson CJ.
[2]The Queen v GH (No 2) at [22]-[23] per Grant CJ, citing The Queen v RPS (unreported, NSWCCA, 13 August 1997) at 29-30 per Hunt CJ and The Queen v McGoldrick (unreported, NSWCCA, 28 April 1998).
[3]The Queen v Starkey [1988] 2 Qd R 294 at 303-304 per Williams J (see also at 296 per Connolly J (upholding the trial judge’s decision but without referring to ‘substantially contemporaneous’); Derrington J contra).
[4]Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [38] per French CJ, Crennan and Bell JJ, citing Western Bank Ltd v Schindler [1977] Ch 1 at 18 and Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109 at 115, cited with approval in H Lundbeck A/S v Sandoz Pty Ltd (2022) 96 ALJR 208 at [114] per Edelman J.
[5]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; De Jesus v The Queen (1986) 61 ALJR 1 at 9 per Dawson J; The Queen v PJMS [2011] NTSC 48 at [10] per Mildren J.
[6]The Queen v Cranston (1988) 1 Qd R 159 at 162 per Macrossan J.
[7] Sutton v The Queen (1984) 152 CLR 528 (‘Sutton’).
[8] De Jesus v The Queen (1986) 61 ALJR 1.
[9]ENULA, s 3, Dictionary, Part 1.
[10] The trial of an accused is deemed to have begun when they are called upon to plead to the indictment and say whether they are guilty or not guilty of the charges. The deeming is the combined effect of s 336(1) and (2) of the Criminal Code. Under s 336(1), ‘an accused person is to be informed in open court of the offence with which he is charged as set forth in the indictment and may be called upon to plead to the indictment and to say whether he is guilty or not guilty of the charge’. Section 336(2) then provides: ‘The trial is deemed to begin and the accused person is deemed to be brought to trial when he is so called upon’. See The Queen v SF [2021] NTSC 91 at [3] per Barr J, citing The Queen v Madrill (2013) 275 FLR 449 at [10]-[11] per Barr J. See also The Queen v RCA [2022] NTSC 6 at [25] per Brownhill J.
[11]Hughes v The Queen (2017) 263 CLR 338 (‘Hughes’) at [16] per Kiefel CJ, Bell, Keane and Edelman JJ (citations omitted).
[12]Ibid at [41].
[13] Ibid at [16].
[14] IMM v The Queen (2016) 257 CLR 300 at [46] per French CJ, Kiefel, Bell and Keane JJ (‘IMM’).
[15] BD v The Queen [2017] NTCCA 2 at [84] per Grant CJ, Kelly and Barr JJ.
[16]IMM at [51]-[52], [54]; The Queen v Bauer (2018) 266 CLR 56 at [69].
[17]IMM at [38]-[39], [41], [58].
[18]Ibid at [59].
[19] Hughes at [38]-[39]; Saoud v The Queen [2014] NSWCCA 136 at [39] per Basten JA (Fullerton and R A Hulme JJ agreeing).
[20] Taylor v The Queen [2020] NSWCCA 355 at [122(vii)] per Bell P and the authorities there referred to.
[21] Ibid at [122(ix)] per Bell P and the authorities there referred to.
[22]The Queen v Bauer (2018) 266 CLR 56.
[23]BP v The Queen [2010] NSWCCA 303 at [112].
[24]S Odgers, Uniform Evidence Law (LawBook, 16th ed, 2021) at [EA.97A.120], citing BC v The Queen [2019] NSWCCA 111 at [82].
[25]Hughes at [56]-[60]; Hoyle v The Queen (2018) 339 FLR 11 at [120].
[26]The Queen v AW [2018] NTSC 29 at [30] per Grant CJ.
[27] HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.
[28] Hughes at [17].
[29]The Queen v Lisoff [1999] NSWCCA 364 at [60].
[30]Hoyle v The Queen (2018) 339 FLR 11 at [96] per Murrell CJ, Burns and North JJ.
[31]In El-Haddad v The Queen (2015) 88 NSWLR 93 at [82], Leeming JA observed that s 101 applies with much greater force when the only way in which evidence is said to be relevant is because of tendency or coincidence reasoning. That is not the case here.
[32]See, for example, Judicial Commission of New South Wales, Criminal Trial Courts Bench Book at [4-227].
[33]See The Queen v Bauer (2018) 266 CLR 56 at [74] per the Court.
[34]The Queen v LM at [41] per Grant CJ.
[35]Ibid at [42].
[36]Ibid at [43]. See also The Queen v O’Brien [2017] NTSC 34 (‘O’Brien’) at [11] per Grant CJ.
[37]The Queen v LM at [43]; O’Brien at [11].
[38]The Queen v LM at [56] per Grant CJ.
[39]The Queen v TJB [1998] 4 VR 621 at 630-631 (‘TJB’).
[40] De Jesus v The Queen (1986) 61 ALJR 1 at [4].
[41]Abbott (a Pseudonym) v The Queen [2017] NSWCCA 149 at [15] per Basten JA (McCallum J agreeing); Donohoe v The Queen [2017] NSWCCA 174 at [93] per Fullerton J (Hoeben CJ at CL and Garling J agreeing).
[42]TJB at 632-633.
[43]Baker (a Psuedonym) v The Queen [2015] VSCA 323 at [69] per Redlich, McLeish JJA and Beale AJA, affirmed in Dun (a Pseudonym) v The Queen [2021] VSCA 286 at [23], [58] per Walker JA (Maxwell P and Kaye JA agreeing).
[44]The Queen v KRA [1998] 2 VR 708 at [22]-[23] per Winneke P, Brooking and Ormiston JJA, affirmed in Dun (a Pseudonym) v The Queen [2021] VSCA 286 at [21] per Walker JA (Maxwell P and Kaye JA agreeing).
[45]GBF v The Queen [2010] VSCA 135 at [52] per Nettle, Harper JJA and Hansen AJA, affirmed in Dun (a Pseudonym) v The Queen [2021] VSCA 286 at [23] per Walker JA (Maxwell P and Kaye JA agreeing).
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