The Queen v CK - [2019] NTSC 15

CITATION:The Queen v CK [2019] NTSC 15
PARTIES:The Queen
v

CK

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21744083
DELIVERED:  12 March 2019
HEARING DATE:  7 March 2019
JUDGMENT OF:  Kelly J

REPRESENTATION:
Counsel:
Crown:D Dalrymple
Accused:I Read SC
Solicitors:
Crown:Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:  Kel1903
Number of pages:  10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v CK [2019] NTSC 15

(21744083)

BETWEEN:

THE QUEEN

AND:

CK

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 12 March 2019)

The accused is charged with six counts of indecent dealing. There are three different complainants. The Crown seeks to adduce the following evidence from one of the complainants, DSM.
DSM: And then so I was sitting in there by myself and her Dad came same in and I started talking to him cause he (inaudible) just talk and stuff. And then he came over to me and he tried to lift my pants up and I like moved back but he gets really angry easily and MK says that her Dad hits girls and stuff so I didn’t want to do anything to make him angry at me so I just moved back and then he tried to lift my pants up and he said “So sexy” and he was grabbing my thighs and I pushed him away and then he went outside and then ten minutes later he came in again and he was like, “Help me hand the washing out”. And I said “No I don’t want to” and then he got really angry so I got up and went outside and as we were hanging the washing out I tried to stay on the other side of the washing line and then when we finished there was like three more shirts left so I just went to walk away and then he grabbed me from behind and he was holding me really tight and I couldn’t get out of it. So then I just like kind of like pushed him away. And then I walked back inside and MM came over and he tried to come in again but then he seen MM so he went out.
…………
POLICE OFFICER: Okay and so you said from the part, then after that you said he gets angry easily and then he hits girls, you were told that he hits girls?
DSM: Yeah, that’s like
POLICE OFFICER: So tell me more about him getting angry and that you were told he hits girls?
DSM: Well like MK said her Dad was like a big fighter or something. I don’t know if she over exaggerates to make herself cool or not but he says that like he always gets in fights and he always wins says that he doesn’t care if he hits girls and whenever I’m like at his house he gets really angry sometimes and likes drinks. Like goes psycho. So I don’t want to do anything cause he gets really angry and it’s really scary.
The defence objects to the underlined part of this evidence being led.
The defence submits that the evidence is irrelevant in that it could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding,[1] namely whether the accused indecently dealt with the complainants in the ways alleged.
The Crown submits that a failure by DSM to “call out” the alleged offending behaviour outlined in the first paragraph above (and perhaps other alleged offending behaviour) at the time when it occurred is an issue of significance in the case. This is particularly so, the Crown submits, as the defence case appears to be that DSM used the opportunity of finding out that another complainant was saying that the accused had touched her, to make false or exaggerated claims against the accused in order to extract herself from the friendship group around the accused’s daughter, MK.
I agree. The fact that DSM failed to “call out” the offending behaviour at the time could rationally affect the jury’s assessment of the likelihood that DSM made up the allegations from this motive, and hence whether the touching occurred. It follows that an explanation for that failure could indirectly affect the assessment of the likelihood that the touching occurred. I conclude that the evidence is relevant. Therefore, the evidence is admissible[2] unless one or more of the exclusionary rules apply.
At one point the defence contended that the evidence is hearsay and therefore prima facie inadmissible.[3] This contention was rightly abandoned. The evidence is in two parts. The evidence about the accused getting really angry sometimes, going psycho, being really scary and drinking, purports to be based on DSM’s own observations when she was at the house. Although the reference to hitting girls (or not caring if he hits girls) is based on what DSM was told by MK, it is not sought to be led for a hearsay purpose, but to explain DSM’s state of mind in order to offer an explanation of her failure to “call out” the offending behaviour on the spot.
The defence submitted that evidence of the accused’s propensity to “hit women” and get angry is plainly evidence of bad character, and that evidence of bad character is generally inadmissible because it is unfairly prejudicial. It is only admissible in certain recognised circumstances,[4] none of which apply in this case.
That submission conflates two related issues: whether the evidence is admissible and whether, if admissible, it should nevertheless be excluded.
There is no exclusionary rule excluding evidence of bad character. The prosecution cannot:
adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.[5]
In many cases, evidence of bad character will simply be irrelevant to any issue in the case and so not admissible under s 56 of the Evidence (National Uniform Legislation) Act (“UEA”). Where it is directly or indirectly relevant to an issue in the proceeding (as here), the question is whether it should be excluded on either mandatory or discretionary grounds.[6]
The defence contends that the evidence should be excluded under UEA s 137 as its probative value is outweighed by the danger of unfair prejudice to the accused. If the court is satisfied that such is the case, exclusion under s 137 is mandatory.
The defence submits that the evidence has limited probative value because:
(a)the link between the evidence and DSM’s behavior is remote and tangential;
(b)the evidence is not required to explain the way DSM responds to the accused in relation to Count 1; and
(c)the evidence is limited in nature in that it only relates to one allegation.
I do not agree that the link between the evidence and DSM’s behaviour is remote and tangential. Her statement attributes a direct causal link between what she has observed and heard about the accused and the fact that she did nothing other than “move back” in response to an attempt by the accused to lift her pants:
[H]e tried to lift my pants up and I like moved back but he gets really angry easily and MK says that her Dad hits girls and stuff so I didn’t want to do anything to make him angry at me so I just moved back ...
I am not sure that the probative value of the evidence is limited to one allegation. Certainly DSM initially refers to it in connection with the allegation that the accused tried to lift her pants up, but it has potentially wider application, and in the underlined parts of the second paragraph quoted in para [1] above seems to be expressed as being more widely applicable to her responses to the accused’s behaviour in general – as common sense would dictate it would be if true.
So I don’t want to do anything cause he gets really angry and it’s really scary.
The third reason why the defence submits the evidence is of limited probative value requires further analysis. The defence submits that the evidence is not required to explain the way DSM responds to the accused in relation to Count 1 (ie the attempt to lift the pants). In written submissions on the question of relevance, counsel submitted:
The way DSM responds to the accused is not inconsistent with someone who has been indecently dealt with in that way and does not require evidence of the accused’s disposition to be included.
It seems to me that the probative value of the evidence sought to be adduced will depend to a large degree on the case to be made by the defence. If defence counsel intends submitting to the jury that they should infer that DSM’s allegations are made up on the basis that the alleged behavior is said to have taken place with other people nearby in the house, and that she could have “called out” the offending behavior and did not, then DSM’s explanation of why she did not do so would have, if not substantial, at least significant probative value. At the other extreme, if defence counsel explicitly eschews such reasoning to the jury and says essentially what is in the defence submissions on this issue, namely: “the way DSM responds to the accused is not inconsistent with someone who has been indecently dealt with in that way”, then it seems to me that the probative value of the evidence, though not negligible, would be slight. If the defence intends to adopt the intermediate position of simply not mentioning the failure to “call out” the behavior of the accused as leading to any inferences at all, then I think it would be reasonable to assess the probative value of the evidence as having an intermediate value. In oral submissions, defence counsel, although not obliged to commit the defence to a particular course, indicated that it was likely the defence would be adopting an intermediate position.
The defence submits that the danger of unfair prejudice to the accused if the evidence is admitted is high: that there is a real risk that the evidence will be misused by the jury in some unfair way. The defence identifies the following potential ways in which the evidence may be misused unfairly.
(a)It may be misused by the jury as impermissible propensity evidence – ie the fact that the accused is a person of violent/criminal disposition makes it more likely that he committed the offences in question.
(b)The jury may infer that the evidence undermines the accused’s credibility, or alternatively, bolsters the complainant’s credibility.
(c)The evidence is likely to invoke feelings of disgust towards the accused, and ultimately divert the jury away from its proper function.
I consider that the risk of the unsophisticated impermissible propensity reasoning referred to is not great among jurors of average intelligence and can be overcome by giving a suitable warning.
I do not think there is a very high risk that jurors will infer that the accused is a dishonest witness from evidence that he has a tendency to be angry – or even “psycho” – or to hit girls. The characteristics involved (honesty and anger – and even physical aggression) have no logical correlation.
So far as the “danger” of bolstering the credibility of DSM is concerned, to a limited extent and in a very specific way, that is the legitimate purpose for which is sought to be adduced – to provide an explanation for DSM’s failure to “call out” the accused which might otherwise be thought to reflect badly on the credibility of her accusations.
I agree that there is a danger that the evidence may invoke negative feelings about the accused in members of the jury (I hesitate to put it as high a “disgust”) which may have a tendency to divert the jury away from its proper function. That danger ought to be able to be at least ameliorated by the giving of an appropriate direction.
The question is whether the probative value of the evidence is outweighed by the danger that the jury might use the evidence in one of these ways that is unfairly prejudicial to the accused. For the reasons just explained I consider the danger of misuse of the evidence to be slight to moderate. Therefore, whether that outweighs the probative value of the evidence, thus requiring mandatory exclusion, depends upon the probative value of the evidence which in turn depends upon the case to be made by the defence at trial – in particular what inferences, if any, the defence intends asking the jury to draw from DSM’s failure to “call out” the alleged offending behaviour.
Defence counsel, while not obliged to disclose the defence strategy, gave an indication in a general sense of the kind of submissions intended to be made which led me to conclude that the probative value of the evidence fell in the intermediate range between significant and slight. This needs to be balanced against the possible prejudicial effect of the evidence already identified.
In written submissions, the Crown asserted that the accused is in fact a person who has a criminal history that includes violent offending against women. As there is no evidence that DSM was aware of that criminal history, that fact is irrelevant to any issue in the proceeding. It may however, mean that if the evidence of what MK told DSM about her father hitting girls is allowed to be given, that may affect the accused’s decision whether to give evidence. Defence counsel indicated that he is unlikely to give evidence in any case but that option remains open to him.
The Crown properly accepts that it may be unfair and prejudicial to the accused if the evidence objected to is put to the jury on the basis that they can accept that evidence as being true information about the accused. The Crown submits that the risk that the jury may misuse the evidence could be overcome by statement by the prosecutor to the jury that a history of violence to women forms no part of the Crown case against the accused. In fact the direction which would be given to the jury would be that there is no evidence that the accused has any history of violence towards women and that a statement by DSM that MK told her the accused “hit women” is not (and cannot be) evidence that he has ever done so. That would be in addition to the warning against propensity reasoning. This does not apply to the evidence of DSM that she has witnessed the accused becoming angry and “psycho”.[7]
The Crown proposes as an alternative to exclusion under UEA s 137, a limitation on the use of the evidence pursuant to s 136. The Crown contends that the jury could be directed that the evidence may not be used to conclude that any of the information about the accused attributed to MK was true, and that they should not engage in a chain of propensity reasoning.[8]
Conclusion
It seems to me that the two kinds of evidence in issue fall on the opposite sides of the line when the balancing exercise has been conducted. There are two different categories of evidence:
(a)the evidence of what DSM saw and heard – namely that the accused becomes angry, or “psycho”; and
(b)the hearsay evidence that MK said her father likes to fight, that he wins and that he does not care if he hits women.
The probative value of both categories is significant, though not as significant as it might be if the defence case was likely to place greater emphasis on the failure by DSM to “call out” the alleged offending behaviour. It seems to me that the potential prejudicial effect of the evidence that the accused was prone to become angry is not zero but negligible and does not outweigh its probative value. On the other hand, the potential prejudicial effect of evidence of what MK told DSM, while not substantial, is significant, and in my opinion does outweigh the probative value of the evidence. Accordingly, the evidence that MK said her father likes to fight, that he wins and that he does not care if he hits girls will be excluded pursuant to UEA s 137. The evidence of DSM that she witnessed the accused becoming angry or “psycho” will not be excluded.

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[1] Section 55 Evidence (National Uniform Legislation) Act (“UEA”)

[2] UEA s 56

[3] UEA s 59

[4] For example, if good character is raised by the defendant and leave is granted UEA s 110(2)-(3)

[5] Makin v Attorney-General for New South Wales [1894] AC 57 at 65; see also Melbourne v R [1999] HCA 32; 198 CLR 1; 164 ALR 465 at [39]

[6] Where the only relevance is to establish a propensity in the accused, the conditions for admissibility in UEA ss 97 and 101 must be met. That is not the case here.

[7] Should this evidence be adduced, out of an abundance of caution, in case displaying anger be seen as akin to bad character, a warning against propensity reasoning would be appropriate.

[8] An order under s 136 would be necessary because, otherwise the effect of s 60 is that the first hand hearsay statements attributed to MK would otherwise be admissible as evidence of the truth of what MK asserted.