The Queen v CC - [2021] NTSC 41

CITATION:The Queen v CC [2021] NTSC 41
PARTIES:THE QUEEN
v

CC

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21933393
DELIVERED:  12 May 2021
HEARING DATE:  31 March 2021
JUDGMENT OF:  Southwood J
CATCHWORDS:

EVIDENCE – Criminal law – Sexual intercourse without consent – Indecent dealing with children under 16 years – Admissibility – Tendency evidence – Whether uncharged unlawful sexual acts by the accused are admissible – Whether tendency evidence has significant probative value – Whether probative value is outweighed by danger of unfair prejudice – Certain specific evidence admissible – Admissible for indecent dealing charges only
Criminal Code 1983 (NT) s 127, s 132, s 192
Evidence (National Uniform Legislation) Act 2011 (NT) s 101
Hughes v The Queen [2017] HCA 20, referred to
REPRESENTATION:
Counsel:
Crown:C Ingles
Accused:T Collins
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Central Australian Aboriginal Legal Aid Service
Judgment category classification:    B
Judgment ID Number:  Sou2104
Number of pages:  23

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The Queen v CC [2021] NTSC 41

No. 21933393
BETWEEN:

THE QUEEN

Crown

AND:

CC

Accused

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 12 May 2021)
Introduction

The accused is to stand trial on the following six counts on an indictment dated 26 March 2021. He was arraigned at the start of a voir dire on 31 March 2021 which was conducted before a jury was empanelled and pleaded not guilty to all six counts on the indictment.
Count 1 charges that contrary to s 132(2)(b) of the Criminal Code 1983 (NT) between 31 December 1999 and 1 January 2001 at Alice Springs the accused exposed PP, a child who was four or five years of age, to an indecent act by the accused.
Count 2 charges that contrary to s 132(2)(b) of the Criminal Code between 31 December 1999 and 1 January 2001 at Alice Springs the accused exposed OO, a child who was two or three years of age, to an indecent act by the accused.
Count 3 charges that contrary to s 192(3) of the Criminal Code between 24 January 2005 and 13 October 2006 at Alice Springs the accused had sexual intercourse with KK without her consent, knowing about or being reckless as to the lack of consent.
In the alternative to count 3, count 4 charges that contrary to s 127(1)(a) of the Criminal Code between 24 January 2005 and 13 October 2006 at Alice Springs the accused had sexual intercourse with KK, a child who was 12 or 13 years of age.
Count 5 charges that contrary to s 192(3) of the Criminal Code between 24 January 2005 and 13 October 2006 at Alice Springs the accused had sexual intercourse with KK without her consent, knowing about or being reckless as to the lack of consent. I note that if the offending occurred after 16 June 2006, the complainant would be 14 years old.
In the alternative to count 5, count 6 charges that contrary to s 127(1)(a) of the Criminal Code between 24 January 2005 and 13 October 2006 at Alice Springs the accused had sexual intercourse with KK, a child who was 12 or 13 years of age.
Essentially, the indictment charges that on one occasion between 31 December 1999 and 1 January 2001 the accused indecently exposed himself to the two boys, on another occasion between 24 January 2005 and 13 October 2006 the accused engaged in digital/vaginal sexual intercourse with KK, and on a further occasion between 24 January 2005 and 13 October 2006 the accused had penile/vaginal sexual intercourse with KK; that is, it is alleged that between 31 December 1999 and 13 October 2006 there were three occasions on which the accused engaged in unlawful sexual conduct with children.
The Crown seeks to prove its case against the accused, in part, by tendering and relying on certain tendency evidence. On 29 March 2021, in accordance with the requirements of the Evidence (National Uniform Legislation) Act 2011 (NT), the Crown filed and served a tendency notice which specifies the tendency evidence it seeks to lead and the use it wishes to make of the evidence. The tendency evidence includes the evidence of GG and AA about uncharged unlawful sexual acts the accused is alleged to have engaged in with them between 1980 and 1982 and in 2015 respectively.
The accused objects to the tender of the evidence of AA and GG. The voir dire was confined to determining the accused’s objections to their evidence only because the admissibility of their evidence and their availability was relevant to how soon the trial of the accused could proceed.
On 11 May 2021, I ruled that:
(1)The evidence of GG is inadmissible.
(2)Save for certain specific evidence of AA, the evidence of AA is inadmissible.
(3)The following evidence of AA is admissible:
The accused was at his dug out house next to the Church in Coober Pedy and took his clothes off and was dancing while exposing his penis to a group of five children [including AA who was 6 years old] in a full house until being confronted by two adults.
(4)The above evidence of AA is only to be used for proof of counts 1 and 2 on the indictment.
Following are my reasons for decision.
The Crown case
The Crown case is as follows.
The accused is the step-father of the three complainants named on the indictment. He is the brother of GG and the grandfather of AA. The accused was born on 16 November 1965. He was 15 years of age when he first engaged in the alleged offending against GG, 35 to 40 years of age when he engaged in the alleged offending pleaded on the indictment, and 49 to 50 years of age when he engaged in the alleged offending against AA and other children in South Australia.
Between 2000 and 2007, QQ was in a relationship with the accused. When they first got together, they were living between [redacted] and Alice Springs. At the time, PP and OO were living with QQ, as was the accused’s daughter from time to time.
In 2000, the blended family moved into a new house at Injartnama. QQ had an evening routine for her two young boys of dinner, bath and bed. PP was aged between four to five years, and OO was aged between two to three years at the time of the offending alleged in counts 1 and 2 on the indictment.
One night between 31 December 1999 and 1 January 2001, the two boys had been put to bed by their mother and she was in bed with the accused. The accused said that he had to go to the toilet and left the bedroom. A little while later, QQ heard the two boys making a noise and laughing. She got up and saw the accused with his shirt up and pants down with his hips shaking, wiggling his penis in front of the boys.
QQ pushed past the accused to check on the boys and settle them down. She did not report the incident to police and remained in a relationship with him.
In December 2002, the accused, QQ, PP, OO, KK (QQ’s daughter), DD and EE moved into a house in [redacted] Braitling. KK primarily lived with her grandparents in a home on [redacted], but went to her mother’s house on weekends.
The accused and QQ had a bus which they used to drive the children around. When KK was in the bus the accused would make her sit in the front with him and touch her body without her consent. He would place his fingers between her legs when she had shorts on and would regularly expose his penis to her and the children.
On 25 January 2005, KK started year 7 at Anzac Hill High School in Alice Springs. She was 12 years old. She turned 13 on 16 June 2005. One night, she was left at home to look after her younger brothers while her mother went out. Her youngest brother, EE, was 21 months old. There were also a number of other cousins she was looking after.
After her mother and aunties left to go out, the accused exposed his penis to all the children including KK.
KK was woken from her sleep when she felt someone touching her body, including her legs, vagina and breasts. After she woke up, she saw the accused at the foot of her bed. He asked her if she wanted “a root” and she said no. The accused then pulled her shorts down. He held KK down on the bed with one hand, placed his other hand under her shorts and inserted a finger or fingers into her vagina. KK was sleeping in shorts and a singlet.
KK’s mother also went out the following night and once again she was left at home to babysit her little brothers. KK went to sleep in her mother’s bed, with her baby brother, EE. She was woken by someone trying to roll her over and she ended up on her back. The room was illuminated by a television and she saw the accused standing beside her. She tried to roll towards her brother but the accused pushed her onto her back. He pulled her shorts down, she pulled her shorts up and he pulled them down again. The accused lay on top of her. She tried to push him off but he pinned her shoulders down. He put his penis inside her vagina at least twice and did not stop until she kicked him. After that, he pulled his pants up and left the room. KK had her brother next to her the whole time. She started crying. She then got up, pulled her shorts up and went into the lounge room away from the accused.
KK told her aunty, NN, that the accused had sexually assaulted her. NN told QQ, QQ asked her daughter what had happened, and KK confirmed the accused had penetrated her ‘private areas’. QQ made a statement to police on 19 September 2018. KK made a statement to police on 18 December 2018.
At 9.40 am on 6 September 2019, the accused was arrested at Harts Range and taken to the Alice Springs Watch House.
In 1980, the accused was living with his mother, FF, step-father BB and a number of siblings including his half-sister GG.
GG remembers that the accused started sexually abusing her after her sister, II, passed away in a motor vehicle accident at Congress Farm in 1979. She was around five years of age when the alleged sexual abuse started. The accused was 15 years of age.
On the first occasion, the accused lay on his back on the bathroom floor, held her above him and pulled her down onto his erect penis. She remembers her vagina hurting. This happened regularly in the bathroom.
The accused also showed GG explicit sexual pictures and would make her pose naked in sexual poses. He would also lay on the bathroom floor and make her touch his erect penis. She remembers seeing him ejaculate. He masturbated himself sometimes, and other times forced her to do so. On one occasion, her brother HH walked into the bathroom while she and the accused were in the bathroom, following which the accused was given a severe beating by his father.
The site of the abuse eventually moved to the accused’s bedroom. He would put GG on the top bunk and touch her genitals and perform oral sex on her.
One time while camping in the backyard, the accused told GG to play ‘hide the blanket’ and when she got under the blanket she was faced with his erect penis. He forced her to masturbate him until ejaculation. The abuse stopped after a few years when the accused got a girlfriend.
In 2015, the accused lived in Coober Pedy. On one occasion, a number of children were at the accused’s house in Coober Pedy when, with his clothes off, he exposed his penis to the children, including AA. AA’s mother and another adult “growled” at him for doing so. AA was six years of age when this occurred and the accused was 49 years of age.
On a second occasion on or about 20 July 2015, a number of children were at JJ’s house in Coober Pedy, when the accused again exposed his penis to a group of children including AA. He took his clothes off, and while dancing, exposed his penis. He then put pornography on the television. JJ walked in while this was occurring and AA told her that the accused was watching “dirty things” and JJ “growled” at him.
On another occasion, the accused told AA to play puzzles with him. A number of the other children were in a room. The accused then asked AA to go outside and do “dirty things”. She said no, so he dragged her away from the house towards a nearby church. He pulled her legs and she fell over and hit her head on a rock. He then went inside the house and locked her out. AA walked to her Aunty MM’s house and the police were called.
The amended tendency evidence notice
The amended tendency notice relied on by the Crown states that the tendency sought to be proved is the tendency of the accused to:
(a)act in a particular way, namely:
(i)   Expose children under the age of 13 years he is living or staying with to sexualised material, behaviour and speech in the home environment.
(ii)    Engage in sexualised misconduct with female children at or under the age of 13 years.
(iii) Use his family relationships to access female children for the purpose of committing sexual acts against them.
(iv) Engage in opportunistic sexualised behaviour in front of children when there is a high risk of detection by other people.
(b)have a particular state of mind, namely:
(i)   An intention to expose young children to sexualised material, behaviour and speech.
(ii)    A sexual interest in female children upon which he is prepared to act.
The tendency notice states that the facts in issue to which the tendency evidence relates are:
A.Whether the accused engaged in digital/vaginal penetration of his step-daughter KK, aged between 12 to 13 years of age.
B.Whether the accused engaged in penile/vaginal penetration of his step-daughter KK, aged between 12 to 13 years of age.
The conduct of which evidence is sought to be led and the particulars of the date, time and place and the circumstances in which the conduct occurred, and the name of each person who saw, heard or otherwise perceived the conduct are set out in a schedule which forms part of the tendency evidence notice and in a witness statement and the transcripts of forensic interviews attached to the notice.
So far as the above tendencies are concerned, it is to be noted that: (a) there is no evidence that the accused exposed any of the complainants named on the indictment to any sexualised material; (b) there is no evidence that the accused exposed either of the two boys to sexualised speech; (c) there is no detailed evidence that the accused exposed KK to a significant amount of sexualised speech, and the evidence so far as she is concerned does not exclude the possibility that the accused simply spoke in the way that he normally spoke; (d) there is no specific evidence of the accused using his family relationships to access the children, the facts of the matter are simply that he had access to children who were members of his extended family; and (e) there is no evidence that the accused had an intention to expose the child complainants who are named on the indictment to any sexualised material or speech.
The alleged sexual offending including charged and uncharged acts can be grouped into three categories:
(1)alleged offending against the accused’s step-sister in the family home in Alice Springs between 1980 and 1982;
(2)alleged offending against the two boys and KK in the family home from 2000 to 2006, which is the subject of the counts on the indictment; and
(3)alleged offending against the accused’s granddaughter in his home or JJ’s home in Coober Pedy in 2015.
Crown submissions
The Crown submits that the evidence of GG, KK and AA reveals that the accused had a similar modus operandi for his alleged offending in that the accused used his family relationships to gain access to the complainants while they were in his or their family residence. The alleged offending was opportunistic, but often involved a high level of risk of detection. He was detected by others in all three groups of alleged offending conduct: in Group 1, by his brother HH; in Group 2, by QQ; in Group 3, by the adults at JJ’s home. The accused aimed to create an atmosphere in the home where sexualised conduct by adults in front of children was normalised, through exposing his penis and dancing or wiggling around in a ‘joking’ fashion on a regular basis, having pornography displayed to them either through television or print mediums, and speaking in a crass, sexualised manner, like asking if they want a ‘root’ or talking about his granddaughter ‘rooting’ her mother or father.
The Crown ultimately would ask the jury to find that the accused had a tendency to: (a) expose children of both genders under the age of 13 years with whom he is living or staying to sexualised material, behaviour and speech in the home environment; (b) to engage in sexual misconduct with female children at or under the age of 13 years; (c) to use his family relationships to access female children for the purpose of committing sexual acts against them; (d) to engage in opportunistic sexualised behaviour where there is a high risk of detection by other people; (e) to have a sexual interest towards female children upon which he is prepared to act; and (f) to have an intention to expose young children to sexualised material, behaviour and speech.
The Crown submits that the jury will be asked to use that evidence: (a) to infer that the counts pleaded on the indictment did occur (the ultimate fact in issue); (b) to rebut any suggestion that the exposure of the accused’s penis to the two boys (counts 1 and 2) was not indecent, but rather an innocent joke; and (c) to demonstrate that the accused did not accidentally touch KK in her private areas (in the uncharged acts), but rather that it was in the broader context of grooming behaviour because of his tendency to have a sexual interest in female children upon which he was prepared to act.
For these reasons, the Crown submits that the evidence of GG, KK and AA has significant probative value when looking at what would be the ultimate facts in issue at the trial.
The alleged tendencies of the accused and the facts sought to be proven with the use of the evidence of GG and AA outlined in the Crown’s submissions go somewhat beyond the contents of the notice of tendency evidence. However, counsel for the defence did not object to the Court dealing with any additional matters raised in the Crown’s submissions. When making the rulings I did on 11 May 2021, I took into account all such matters raised by the Crown.
Significant probative value
As counsel for the defence correctly submitted, the assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters:[1]
(1)the extent to which the evidence supports the tendency; and
(2)the extent to which the tendency makes more likely the facts of the relevant 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.[2] Whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of each case.[3] A tendency expressed at a high level of generality might mean that all the tendency evidence provides is significant support for that tendency. But it may also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.[4]
A number of the accused’s tendencies which are said to arise from the evidence of GG and AA are expressed at a level of generality. It is important to note that the indictment concerns a single incident of indecent exposure to two boys aged between two and five years of age and two acts of sexual intercourse with a pubescent child in her early teens. Whereas, GG was between five and seven years of age at the time of the alleged offending against her and AA was six years of age. Further, the accused was 15 years of age when he is alleged to have started sexually assaulting GG whereas he was a mature adult when he is alleged to have engaged in all other offending. On the whole of the evidence, his primary sexual interest seems to have been in very young children.
The evidence of QQ

If accepted by the jury, the evidence of QQ was as follows.
On this particular night the boys had gone to bed as normal and I was in bed with [the accused]. He said that he had to go to the toilet and got out of bed and left the room. ...the boys’ room was at the opposite side of the lounge room to ours. A little while later I heard the boys making a noise and laughing.
I got out of bed because I was angry and went to growl at the boys. When I walked through our bedroom door I saw [the accused] standing in the doorway of the boys’ bedroom. He had his back to me so he did not notice me coming. I could see that he had his shirt pulled up and his pants pulled down to his knees. I could see his bum so I knew that he wasn’t wearing any underwear.
I could see him shaking his hips about so it looked like he was waving his dick at the boys. I couldn’t see the boys from where I was but I could hear them laughing at him and being silly.
He just stood there and looked shocked and he very quickly dropped his shirt down and pulled his pants up.
...he said that he was just showing them something to do with his penis.
The evidence of KK
The evidence of KK is contained in a recorded forensic interview which was conducted by police on 16 December 2018. That is 13 years after the two incidents of sexual intercourse are said to have occurred. KK was born on 19 June 1992. She was about 26 years of age when she was interviewed. There is some confusion in her evidence about the date when the two acts of sexual intercourse are said to have taken place. Initially, she said that she was 14 years of age when she was sexually assaulted by the accused. She then said that the alleged offending occurred in 2008 because she had her daughter in 2009. If the incidents occurred in 2008 she would be about 16 years of age. She then said that she was sexually assaulted when she was attending Anzac Hill High School in Alice Springs. Records which have been obtained by the Crown show that KK attended Anzac Hill High School between 25 January 2005 and 12 October 2005. From 1 January to 19 June 2005, she would have been 12 years of age, and from 19 June 2005 to 12 October 2005, she would have been 13 years of age.
Her evidence about the counts on the indictment which are alleged to have occurred between 25 January 2005 and 13 October 2006 and the tendency evidence which the Crown seeks to lead from her has been accurately summarised in the notice of tendency evidence as follows.
The accused was the complainant’s step-father at the time. The accused and the complainant were home looking after the smaller children. She was asleep and felt the accused’s hands all over her body including her breasts and genital area. He asked if she wanted “a root” and she said, “No”. The accused put one of his hands into her pants and digitally penetrated her.
[On another occasion] the accused and the complainant were at home looking after the smaller children. The complainant was asleep with her infant brother in her mother’s bed. The accused got onto the bed, lay on her and using his body weight penetrated her vaginally with his penis. He only stopped when she kicked him [in the testicles].
The accused was at home with the complainant and her brothers and he exposed his penis to all of the children, being DD, EE, PP and OO.
The accused would put his fingers between the complainant’s legs while driving the complainant and her brothers around in a bus.
There is also evidence in the transcript of KK’s forensic interview that the accused had sexual intercourse with her on a number of occasions and that he had a practice of exposing himself in the middle of the house.
The evidence of GG
If accepted by a jury, the evidence of GG establishes that between 1 January 1980 and 31 December 1982, at the age of 15 to 17 years, the accused engaged in penile/vaginal sexual intercourse in the bathroom with his sister, who was aged between four and seven years of age, by holding her above him while he lay on his back and forcing her onto his erect penis. On other occasions, the accused would lie on his back in the bathroom, make himself erect and make his sister touch his erect penis until he ejaculated. On one of these occasions, while he was erect in the presence of his sister, his brother HH entered the bathroom and saw what was happening. On other occasions, the accused would take his sister into his bedroom and touch her genitals and perform oral sex on her. On a single occasion, the accused played a game of hide under the blanket with his sister. When she went under the blanket she found that the accused’s erect penis was facing her and he forced her to masturbate him. Other children and adults were around at the time. The accused also exposed GG to sexually explicit print pornography and made her pose in sexually explicit ways.
This evidence demonstrates that between 1980 and 1982, at the age of 15 to 17 years, the accused had a sexual interest in a female child aged four to seven years of age who was a member of his family upon which he was prepared to act and did act. The fact that he was caught engaging in sexual conduct with his sister on one occasion by his brother does not establish a tendency to engage in high risk sexual activity. However, the fact that the accused engaged in the game of “hide under the blanket” in the presence of other family including children and adults does so.
The evidence of GG and the tendency referred to above does not make it more likely that the accused indecently exposed himself to the two young boys as charged in counts 1 and 2 on the indictment. There is an 18 to 20 year gap between the alleged offending involving GG and the offending involving the two boys. There is no evidence to suggest that between 1982 and 31 December 1999 the accused engaged in any sexual misconduct. The complainants in counts 1 and 2 are young boys, not young girls. The alleged conduct involving the two boys was a single incident which involved no contact with the boys. The accused simply stood in the doorway of the boys’ bedroom with his pants pulled down to his knees, waving his penis and shaking his hips. There is a significant difference in the conduct of a 15 to 17-year-old boy and a mature man. The fact that the accused was discovered by QQ and there was a high risk of being discovered does not significantly increase the probative value of the evidence of GG.
I find the evidence of GG and the tendency referred to above is relevant to counts 4 to 6 on the indictment but it is not important evidence which makes it significantly more likely that the accused engaged in two acts of sexual intercourse with KK in 2005. There is a gap of 23 to 25 years between the alleged offending involving GG and the alleged offending involving KK. There is a significant age difference between GG and KK. One child is prepubescent the other is pubescent. Children of four to seven years of age are significantly different to children of 12 to 13 years of age. The fact that a person has a sexual interest in a four to seven year old child does not make it significantly more likely that 23 to 25 years later the person has a sexual interest in a 12 to 13-year-old child. There is a significant difference between the conduct of a 15 to 17-year-old boy and the conduct of a mature man. The only alleged sexual misconduct between 1982 and 2005 is the single occasion on which the accused is said to have exposed himself to the two boys and that was significantly different conduct to the conduct involving KK which is charged in counts 4 to 6 on the indictment. The risk of the accused being discovered engaging in the alleged acts of sexual intercourse with KK was not great as her mother and aunt were not present in the home when the alleged offending occurred.
The evidence of AA
If accepted by the jury, the evidence of AA establishes that between 1 January 2015 and 26 August 2015 at his dug out house next to the church at Coober Pedy, the accused took his clothes off and exposed his penis while dancing in front of a group of five children, including AA who was six years old at the time. On another occasion, being an occasion of AA’s birthday party at a relative’s dug out house next to the church in Coober Pedy, the accused showed a group of children pornography on television, and on another occasion, he exposed the children to pornography in books while exposing his penis. On a further occasion, he dragged AA from a house in Coober Pedy, used indecent language and said “let’s do dirty things”. AA said, “No”. He also said he was going to show her his “dirty part”. He then dragged her by the legs in such a manner that she hit her head on a rock.
On the same occasion that he dragged AA by the legs, it is alleged that the accused said to her that he was going to find another “Kunga”. He found LL who was the eldest (there is some evidence to the effect that LL may have been 10 years of age at this time). LL said that she did not want to do “dirty things” and he said, “Come on let’s do it” and he “done it to her”. The accused kissed LL, pushed her down and “he was putting his thing on there ...in here”. However, it is unclear from her child forensic interview if AA actually saw what it is alleged the accused did to LL, or her Nana told her what had happened. As a result, the Crown has fairly conceded that, given its current state, AA’s evidence about LL is not admissible. I have informed the Crown that they are of course free to make a subsequent application to tender the evidence about LL if the situation can be clarified.
The following evidence of AA (which is summarised in the schedule in the notice of tendency evidence):
The accused was at his dug out house next to the Church in Coober Pedy and took his clothes off and was dancing while exposing his penis to a group of five children [including AA who was 6 years old] in a full house until being confronted by two adults.
is strikingly similar to the evidence of QQ about the accused indecently exposing himself to her two sons and to some of the evidence of KK. Along with the evidence of KK about the accused exposing himself to DD, EE, PP and OO, the above evidence of AA shows that the accused had a tendency to expose his penis to young children who are in his house. The evidence of AA and KK is also capable of rebutting any suggestion by the defence that the exposure of the accused’s penis to the two boys was not indecent but was an innocent joke. It is important evidence which makes it significantly more likely that the accused indecently exposed himself to the two boys. I also find that the probative value of that evidence substantially outweighs any prejudicial effect it may have on the defence case. It does so despite the lapse of 15 years since the accused is alleged to have exposed himself to the two boys.
Otherwise the evidence of AA does not make it significantly more likely that the accused committed any of the counts charged on the indictment. The other occasions of alleged sexual conduct by the accused which are spoken about by AA do not have a striking similarity to the offences charged on the indictment. Ten years have elapsed since the offender committed the latest of the offences charged on the indictment and there is no evidence of any intervening sexual misconduct by the accused. There is a significant difference in age between KK and AA. Sexual interest in a six-year-old child is different to sexual interest in a 12 to 13-year-old child. That is, a sexual interest in girls in their early teens is different to a sexual interest in much younger children. There is no evidence that the accused’s alleged sexual interest in teenage girls had manifested itself in the decade prior to the incidents AA spoke about, nor is there any evidence that such an interest of the accused emerged in 2015.
None of the evidence of either GG or AA demonstrates that the accused had an interest in pubescent girls who were in their early teenage years either before or after he is alleged to have engaged in sexual intercourse with KK.
Section 101 of the Evidence (National Uniform Legislation) Act
If I am wrong about the lack of probative value of the evidence of GG and AA, it is also my opinion that the probative value of the evidence of GG and AA does not outweigh the danger of unfair prejudice to the accused. The evidence of GG and AA concerning children of such a young age is evidence which is likely to stir very powerful emotions in a jury and there is a real danger that the evidence would outweigh any proper consideration of the evidence of KK about what she says the accused did to her and would distract the members of the jury from the essential issues at the trial. There is a real danger that the jury would too readily accept the prosecution evidence about the counts on the indictment.

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[1] Hughes v The Queen [2017] HCA 20 at [41] per Kiefel CJ, Bell, Keane and Edelman JJ.

[2] Hughes v The Queen [2017] HCA 20 at [41] per Kiefel CJ, Bell, Keane and Edelman JJ.

[3] Hughes v The Queen [2017] HCA 20 at [40] per Kiefel CJ, Bell, Keane and Edelman JJ.

[4] Hughes v The Queen [2017] HCA 20 at [64] per Kiefel CJ, Bell, Keane and Edelman JJ.