The Queen v Doyle - [2021] NTSC 49

CITATION:The Queen v Doyle [2021] NTSC 49
PARTIES:THE QUEEN

v
DOYLE, Jason Anthony

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21925942
DELIVERED:  28 June 2021
HEARING DATE:  20 May 2021
JUDGMENT OF:  Kelly J

REPRESENTATION:
Counsel:
Crown:T McNamee
Accused:J Nottle with T Gray
Solicitors:
Crown:Director of Public Prosecutions
Accused:Grays Legal NT
Judgment category classification:    C
Judgment ID Number:  Kel2110
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Doyle [2021] NTSC 49

No. 21925942

BETWEEN:

THE QUEEN

AND:

JASON ANTHONY DOYLE

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 28 June 2021)

The accused is charged with indecent dealing with PTC, an 8 year old girl. The accused pleaded not guilty and was tried before a jury in November 2020. The jury was unable to reach a verdict and was discharged on 6 November 2020. The matter has been relisted for trial starting on 11 June 2021.
The Crown case
The Crown case against the accused is that, when the complainant and her brother were at his house for a playdate with the accused’s children, he asked the complainant to help him clean the fish tank in the kitchen and when that task was completed, he said to her, “Don’t tell anyone what I’m about to do.” Then he stood behind her, put his arms over her shoulders from behind, moved her shorts and underwear aside and touched her on the outside of her vagina.
In addition to the evidence which has already been led from the complainant, and pre-recorded, the Crown intends to adduce evidence from the complainant’s mother, from the acting school principal of the school attended by the complainant, Rachel Webb and from Andrea Palmer.
The defence has objected to the evidence sought to be led from the acting principal, Rachel Webb, and from Andrea Palmer. (No objection has been made to the evidence of the mother.)
Evidence of Rachel Webb
Rachel Webb made a statement to police in which she said that on the school Sports Day in May 2019 she was walking around with the year 3 and 4 girls which included the complainant and the accused’s daughter. The two girls were friends. The kids were getting ready to take part in their events. They were all lined up and waiting. The parents usually stand off to the sides and watch. However, the accused was sitting in line with the girls, that is, with his daughter and the complainant.
She noticed the two girls “climbing all over” the accused and said he was sitting next to the girls, playing with them and “constantly touching” them (ie the complainant and his daughter). She also mentioned them swinging off his arms while they were standing on the sidelines.
She called the girls over and asked them to line up and get ready for their events. Each time she did so, the accused would follow “very confidently”. Usually other parents would encourage their children to go line up and they would remain on the side.
In her statement Ms Webb also described things she witnessed on another day – the fun run day at school. The fun run started at 1.30 pm but the accused arrived at around 12.00 and was sitting amongst all the kids with the girls (ie the complainant and his daughter).
Ms Webb told the accused that the fun run would start in an hour. He asked if he could just go and hang out with the kids and she told him he couldn’t. He asked if he could take the kids for lunch and she told him he could take his own kids to lunch which he did.
When he returned, he was again “hanging out” with the girls (ie the complainant and his daughter), letting them climb all over him and he had them on his back.
After the fun run, she saw him squatting down and giving Eskimo kisses to the complainant (ie rubbing their noses together).
In her statement, Ms Webb expressed a number of opinions to the effect that the behaviour she had witnessed was “unusual and inappropriate” and “felt out of place”; that she thought, “That’s not right,” and “You don’t do that with other people’s kids.” Quite properly, the Crown do not intend to lead any opinion evidence of this kind from Ms Webb, simply evidence of what she observed.
The Crown submits that this evidence is relevant as “context” evidence for a number of purposes.
The previous physical contact by the accused with the complainant puts the current alleged offence into context in that it demonstrates that it was not an isolated, random physical act coming out of the blue; but rather a gradual progression of physical contact with the complainant as the accused established a rapport with her.
It demonstrates that the accused had in fact built up a rapport, familiarity and trust with the complainant and puts in context the fact that she happily and comfortably accepted the invitation of the accused to help him clean the fish tank which entailed them being alone in the kitchen together without the other children being present.
It has the capacity to explain what the jury might otherwise think was her inexplicable reluctance to provide details to her mother because she didn’t want to get the accused into trouble; and to explain why she did not express or demonstrate distress immediately after the alleged incident or run off to her father’s nearby home to complain.
It corroborates part of the complainant’s evidence about these events and therefore her account of the nature of the relationship before the incident which may negative a different account of that relationship put forward by the accused. The Crown does not know what the accused may say about that relationship as the accused has not given an account in an interview with police and did not give evidence at the first trial of this matter.[1]
The defence contends that the evidence of Ms Webb is not relevant to a fact in issue in the trial as it is not contested that there was “a degree of familiarity” between the accused and the complainant prior to the alleged offence. However, when questioned on the hearing of the voir dire, defence counsel conceded that the precise degree of “familiarity” and the precise nature of the previous physical contact was not agreed. I consider, therefore, that the evidence has relevance in the manner and for the purposes contended by the Crown.
Defence counsel submitted that, even if the evidence is relevant, its probative value is very low and is outweighed by the potential prejudice to the accused. Accordingly, the evidence should be excluded under the Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) s 137 which provides:
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The probative value is said to be very low because to a large extent, this evidence simply repeats things which the complainant has already said in her pre-recorded evidence. I do not think this necessarily renders the probative value of the evidence “very low”. One of the potential uses of the evidence identified by the Crown is to corroborate the complainant’s evidence in relation to these matters and to negative any different account of the nature of the prior relationship that might be given by the accused.
The potential prejudice to the accused identified by defence counsel is that there is a real risk that the jury might misuse the evidence and put it into the category of what might amount to tendency evidence or evidence of grooming behaviour when in reality the conduct was entirely innocent.
That submission conflates two separate concepts – a possibility that the jury may use the evidence as tendency evidence and a possibility that the jury might construe the accused’s conduct as grooming when it was entirely innocent.
I do not think there is a real risk that the jury might misuse the evidence as tendency evidence. The Crown is quite properly not seeking to rely on the evidence as tendency evidence; the physical contact described by Ms Webb is of a different kind to that alleged in the charge on the indictment; none of the contact described by Ms Webb can be described as sexual in nature; and nor is it particularly discreditable. If there were such a risk, in my view it could adequately be overcome by an appropriate warning against propensity reasoning.[2]
Turning to the contention that the jury might “misuse” the evidence as evidence of “grooming”, defence counsel properly conceded that if there was evidence that the accused had “groomed” the complainant, that would be admissible, but contended that the interactions between the accused and the complainant did not amount to grooming and were, in fact, entirely innocent.
“Grooming” is not a technical legal term. The evidence is what it is. One of the reasons why the Crown wants to call this evidence from Ms Webb is that the Crown asserts that the previous physical contact by the accused with the complainant shows that the current alleged offence was not an isolated, physical act coming out of the blue, but should be seen in the context of a gradual progression of physical contact as the accused established a rapport with the complainant. Defence counsel asserts that the evidence is “capable of an innocent explanation” and therefore cannot be used in this way.
The defence contention appears to be taken from the pre-uniform evidence act cases on the admissibility of tendency evidence – as in the following example from HML v The Queen.[3] In analysing the judgment in Pfennig v The Queen[4] Gleeson CJ quoted the following passage from the plurality judgment:[5]
In other words, for propensity or similar fact evidence to be admissible, the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged.
and said:
The reference to “its having some innocent explanation” was elliptical. The question was whether, when the propensity evidence was taken into account, there was no reasonable view of the totality of the evidence other than as supporting, with the degree of strength described in other passages, an inference that the accused was guilty of murder.
As explained above, the evidence of Ms Webb is not being adduced as tendency evidence.
In a related submission, defence counsel also contended that the evidence of Ms Webb should not be admitted because the authorities that refer to context or relationship evidence, are of an entirely different character from the evidence of Ms Webb. Context evidence, it was contended, usually consists of uncharged conduct which is of either a similar character, or alternatively, of a character which has no innocent explanation. “Context” evidence and relationship evidence may sometimes be of this nature, but there is no reason why it must necessarily be so. In Wilson v The Queen[6] Menzies J said:
Any jury called upon to decide whether they were convinced beyond reasonable doubt that the appellant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them that the wife, in the course of a quarrel, should charge her husband with a desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of a mischance. To shut the jury off from any event throwing light upon the relationship between the husband and the wife would require them to decide the case as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my view, the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.
It stands to reason that if the relationship between the husband and the wife in Wilson v The Queen had been a loving and caring one, evidence of that fact would likewise have been admissible for the same reason. It is not only evidence of the kind described by defence counsel that is admissible; provided evidence of past dealings between the accused and the complainant is pertinent to an issue which the jury had to decide, it can properly be admitted, and, in my view, the evidence of Ms Webb about her observations of physical contact between the accused and the complainant is pertinent for the reasons advanced by the Crown. It will be a matter for the jury what inferences they draw from that evidence whether that contended for by the Crown or the defence contention that the interactions were entirely innocent. Provided they eschew propensity reasoning, the jury will be entitled to draw the inference contended for by the Crown if they find it compelling, and, if they do, this will not be a misuse of the evidence, and hence not prejudicial in the relevant sense. Prejudice means the danger of improper use of the evidence.[7]
In summary, I consider Ms Webb’s evidence to be relevant for the purposes outlined by the Crown. I do not consider its probative value to be very low. I consider the potential for the jury to misuse the evidence as tendency evidence to be negligible and that any such risk is able to be overcome by an appropriate direction, and I do not consider the other potential risk identified by the defence amounts to prejudice in the relevant sense. I do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused and I decline to exclude it under UEA s 137.
However, I do not think that the evidence of Ms Webb about her conversation with the accused at the fun run day, in which he asked if he could “hang out” with “the kids” and take “the kids” to lunch falls into this category. It is not evidence of physical contact between the accused and the complainant, and there is no certainty who the accused was referring to when talking of “the kids”. He may simply have been referring to his own children. That evidence, it seems to me, is not relevant to any issue in the case and will not be admitted.
Defence counsel also objected to the evidence of Ms Webb on the ground that it was identification evidence and there had been no compliance with UEA s 114. UEA s 114(2) provides:
“visual identification evidence” presented by the prosecutor is not admissible unless—
(a)     an identification parade that included the defendant was held before the identification was made; or
(b)     it would not have been reasonable to have held the parade; or
(c)     the defendant refused to take part in the parade;
and the identification was made without the person who made it having been influenced to identify the defendant.
The simple answer to this contention is that the evidence of Ms Webb is not identification evidence. Identification evidence is defined in the Dictionary to the UEA as follows:
“identification evidence” means evidence that is—
(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—
(i)the offence for which the defendant is being prosecuted was committed; or
(ii)an act connected to the offence was done;
at or about the time at which the offence was committed or act was done, that is an assertion based completely or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report (whether oral or in writing) of the assertion.
Ms Webb’s evidence of her observations of the interactions between the accused and the complainant is not an assertion that the accused was (or resembled) a person who was present at or near a place where the offence was committed, or where an act related to the offence was done. It is purely and simply evidence about interactions at two earlier times. This is not a case in which identification evidence arises. It is not a case in which the identity of the offender is in issue. There is no question that the accused and the complainant were in the kitchen at the complainant’s house on a play date on the relevant date and that she was helping to clean the fish tank. The issue is whether, at that time and place, he dealt with the complainant in the way she has described. Furthermore, Ms Webb is not purporting to “identify” the accused. The tenor of her evidence is that she recognised him. She says, “I saw Mr Doyle with his daughter and PTC”.
The evidence of Andrea Palmer
The only evidence which the Crown seeks to adduce from Ms Palmer is that she took a photograph at the fun run day in which the accused can be seen in the background piggy backing the complainant. Defence counsel also objected that this was “identification evidence” and that UEA s 114 had not been complied with. However, he conceded that if PTC could identify herself in the photo and say that it is a photo of the accused giving her a piggy back ride on the fun run day, this objection could not stand and the evidence would be relevant.
However, defence counsel maintained that the evidence of the photo should be excluded pursuant to UEA s 137.
The risk of unfair prejudice identified by the defence is that the photo shows only half the picture because the accused was also giving piggy back rides to his own daughter on that day, and that the jury may be more persuaded by the photograph that the accused was trying to build a rapport with the complainant for grooming purposes, than they would if the evidence before them was simply limited to a statement of the fact that the accused gave the complainant a piggy back ride. I do not agree that there is any risk of unfair prejudice to the accused if the photograph is adduced in evidence. If the accused also gave a piggy back ride to his daughter on the same day, that fact can be put in evidence so that the jury have the whole picture.[8] Provided the complainant can identify herself in the photo and say that it is a photo of Mr Doyle giving her a piggy back, the photo will be admitted into evidence.
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[1] This is a retrial as the jury could not reach agreement on the first trial.

[2] At the trial, defence counsel specifically asked for such a warning not to be given.

[3] (2008) 235 CLR 334

[4] (1995) 182 CLR 461 at 482-483

[5] HML v The Queen (2008) 235 CLR 334 at [21]

[6] (1970) 123 CLR 334 (at 344)

[7] HML at [12]

[8] In fact no evidence that the accused also gave his daughter a piggy back on that day was called. Neither the complainant nor the accused’s daughter were asked this question. Defence counsel asked Ms Webb but she did not see the daughter being given a piggy back ride. The evidence of the complainant and the daughter was pre-recorded before the first trial at which the photo went in without objection, but there was no request to recall either of them to say that the accused had also piggy backed his daughter.