The Queen v EG
[2020] NTSC 14
•19 March 2020
CITATION:The Queen v EG [2020] NTSC 14
PARTIES: THE QUEEN
v
EG
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NOS:21926528 and 21926529
DELIVERED: 19 March 2020
HEARING DATE: 16 March 2020
JUDGMENT OF: Mildren AJ
CITATIONS
McPhillamy v The Queen [2018] HCA 52; (2018) 361 ALR 13; Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338; (2017) 92 ALJR 92; R v Bauer [2018] HCA 40; (2018) 266 CLR 56.
REPRESENTATION:
Counsel:
Crown:J Ibbotson
Accused:J Adams
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification: C
Judgment ID Number: Mil20560
Number of pages: 14
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v EG [2020] NTSC 14
Nos. 21926528 & 21926529
BETWEEN:
THE QUEEN
AND:
EG
CORAM: MILDREN AJ
REASONS FOR RULING
(Delivered 19 March 2020)
The accused is charged with one Count of indecent dealing with GR, a child under the age of 16 years, and five Counts of committing an act of gross indecency against GR, a child under the age of 16 years. Counts 1, 2, 3 and 4 all allegedly occurred between 1 January 2012 and 31 December 2013 at Darwin in the Northern Territory. Counts 5 and 6 allegedly occurred between 1 December 2013 and 31 January 2014 at Croker Island in the Northern Territory.
The accused is further charged with performing an act of gross indecency upon TT without TT’s consent and knowing or being reckless as to that person’s lack of consent: Count 7. This offence allegedly occurred at Darwin between 1 January 2012 and 31 December 2014.
The Crown has filed and served a Tendency Notice and a Coincidence Notice. There is no dispute that the Notices complied with the Notice requirements of ss. 97 and 98 of the Evidence (National Uniform Legislation) Act 2011 (NT) (the Act).
Crown case
At an unknown time between 2012 and 2013, RT, the mother of GR, brought the accused to her home in a Darwin suburb where she introduced the accused to GR and her other four children. At that time GR was aged between 9 and 10 years. Subsequently, the accused, who was then aged between 48 and 49 years, commenced to live with RT and her children as RT’s partner and her children’s step-father.
Count 1
A couple of days after the accused moved in, but at an unknown time and date, the accused sat next to GR on the couch in the lounge room. As GR stood up to leave, the accused reached out and grabbed her arm, pulling her into a sitting position on his lap. He then kissed her and attempted to push his tongue into her mouth but could not do so because GR kept her mouth shut. As GR climbed off the accused’s lap, he told her not to tell anyone and to stay quiet.
Count 2
A few days later, GR heard RT leave to go to work. Shortly thereafter, the accused entered GR’s bedroom and climbed into the bed beside her. The accused took hold of GR’s shoulder, pulling her closer to his body. She felt his penis against her back. The accused proceeded to rub his exposed penis against GR’s clothed lower back and lower buttocks area in a side to side and circular motion and then push it against her anal area. A few minutes later the accused left the bedroom. Later that morning, at about 7am, the accused returned to the room to wake GR up for school.
Count 3
On another occasion at an unknown date between 2012 and 2013, GR was asleep on the floor of the lounge room. That night, GR was in the accused’s care because her mother was out. At some time later in the night, GR awoke to the accused climbing under the sheet she was sleeping under and he lay down behind her. GR felt the accused rubbing his penis against her clothed buttock area in an up-down then circular motion. He then took hold of GR’s shoulders, turning her over onto her side to face him. Whilst holding his penis in his hand, the accused rubbed his exposed penis against the lower part of GR’s stomach, her genital area and the top of her thighs. When he was rubbing his penis against her genital area, the accused kissed her on the mouth and tried to insert his tongue into her closed mouth. GR stood up. The accused asked: “Where are you going”? She replied: “To the boys’ room”. The accused asked: “Why?” GR quickly moved to her brothers’ bedroom where she slept the remaining night.
Count 4
At an unknown date in 2013, GR was asleep in her bedroom on her single bed. Her mother was sleeping on the floor. GR heard the door to the bedroom open then felt the accused slowly climb onto her bed and lay down beside her. She felt the accused rub his exposed penis against her buttocks area, then run his hand up inside her shirt and unclip her bra. He the squeezed and rubbed her breasts with his hand whilst rubbing his penis in an up and down, across and then circular motion against her clothed buttocks and anus area.
GR tried to slowly move away from the accused pretending that she was just waking up. After a few minutes the accused stopped and left the room.
The following morning GR told her mother that “someone came into the room last night and unclipped my bra and then went out”. That day, RT confronted the accused and asked him what he had done to GR. After initially denying doing anything to her, he apologised to RT for what he had done to GR, without telling her what he had done, and asked to be forgiven. RT felt that she could not report the matter to the police as she was then pregnant with the accused’s child.
Count 5
At an unknown date in January 2014, RT, her children and the accused, went to Croker Island and were staying at GR’s grandparents’ home there. At some time unknown, GR was sitting on a couch in the lounge room watching a movie with her two younger brothers. The accused came into the room and sat next to GR, who tried to move away along the couch. The accused reached his arm around her body, preventing her from moving further. He leant over and whispered in her ear, “Oh here, watch this”, whilst trying to get her to watch something on his mobile phone. GR refused to look, stood up and asked one of her brothers to move off a chair. He did so and she sat down on it. The accused then left the room.
Later that day, at an unknown time, RT left the house to play cards with people next door, leaving the accused to care for GR and her brothers. GR went to use the toilet at the end of the hall near the laundry, turning on the lights as she went. The accused followed her and grabbed her by the hand just before she reached the toilet. He pushed GR’s face up against the wall of the hallway. He pushed his penis up against her anal area and used his hand to rub his exposed penis in an up-down and across motion against her clothed buttock and anal areas. GR pulled away and ran next door where she spent the rest of the evening with her mother.
Count 6
At an unknown time in January 2014, GR was in the kitchen of her grandparents’ home on Croker Island eating when the accused entered and pushed her up against the kitchen bench, forcing her to lean over the kitchen bench. He then pushed his penis in an up-down and circular motion against her buttock and anal areas.
GR then fled the house. She ran to a shop where her grandparents were working.
In July 2019, GR participated in a child forensic interview with the police where she particularised the events.
Count 7
At an unknown time in 2012, the complainant TT met the accused through her aunty, RT. After that time, TT was residing with the accused and RT at their home in Darwin.
At an unknown time between 2012 and 2014, the accused and RT were drinking out in the front of their home from the evening until the early hours of the morning. TT was with them, but not drinking, until an unknown time early in the morning when she went to bed, shutting the door behind her. The accused and RT went to sleep in another room.
Later in the afternoon that same day, TT was still asleep on a mattress in the bedroom. She awoke to feel the accused lying on top of her with his penis pushing up against her anus and her pants pulled halfway down her legs. The accused attempted to push his penis into her anus. When she turned her head to face him, she saw the accused staring at her, holding his exposed penis in his hand, trying to push it into her. She pushed and kicked the accused, screaming at him to get out. The accused stood up, pulled his pants up and said: “I thought you wanted this”. He then walked out of the room to RT’s bedroom.
TT immediately pulled her pants up and went out to the front of the house, crying. She called her friend CW who attended to comfort her but she did not tell CW what had occurred. Later the same day, she complained to her boyfriend.
Fearful for herself and the other children in the house, TT commenced locking the bedroom doors at night to prevent the accused entering. A week or two after the assault, the accused became angry at TT for locking the children’s bedroom doors and demanded that RT tell her off. RT took TT outside and asked her what was wrong and why she was locking the doors. TT told her that “he tried to get into my pants while you were sleeping in the next room”.
RT went back inside and demanded that the accused come out and speak with TT and herself. She confronted the accused about the allegation and asked if it was true. The accused initially denied it but ultimately said to TT: “Yes I did. I’m sorry for doing it”. In response to a question of why he had done it, the accused said that it was because of the way TT dresses around the house with short shorts.
At the time the accused was aged between 48 and 50 years of age and TT was aged between 17 and 18 years old.
At 9.03am on 12 July 2019, the accused was arrested and subsequently participated in an electronic record of interview during which it is alleged that he made certain admissions in relation to both complainants’ allegations.
The Tendency Notice
The Crown intends to submit at the trial that the tendency evidence is relevant to prove whether or not the conduct alleged occurred. The tendency sought to be proved is the tendency of the accused to:
(a)act in a particular way, namely:
i) to indecently touch young females when an opportunity arose, in order to obtain sexual gratification for himself;
ii) to make indecent bodily movements to young females when an opportunity arose, in order to obtain sexual gratification for himself.
(b)have a particular state of mind, namely:
a sexual and emotional attraction to young females.
The submission of the Crown
The Crown submitted that there are similarities between Counts 1 and 3 in that on both of those occasions the accused kissed GR on the lips and attempted to force his tongue into her mouth.
In relation to all of the Counts, the Crown submitted that the accused used his position of trust as the step-father or uncle of the complainants to engage in sexually predatory conduct with the complainants in the home or place at which the complainants were residing and in circumstances where there was a risk of detection by either RT or other family members in order to satisfy his interest in young females.
In relation to Counts 2-6, and Count 7, it was submitted that there were common features of the offending in that the complainant allegedly positioned himself behind the complainants and then rubbed his penis in and around their buttocks or anal areas, and in the case of TT, used his hand to try to push his penis into the anal area.
The submission of the accused
Counsel for the accused submitted that the first tendency alleged was so general as to have no significant probative value, as it goes no further than establishing an attraction to young girls, and is therefore propensity reasoning.
As to the second tendency, it was submitted that the rubbing of a penis on buttocks is in no way unique or individual. It was put that the bodily movement relied upon was so widely stated that it had no significant probative value.
In support of these arguments, counsel relied upon a passage in McPhillamy v The Queen[1] in which the plurality observed that the evidence of two of the complainants in that matter established no more than that a decade before the subject events, the appellant had sexually offended against each of them; and that proof of such offending was not capable of affecting the assessment of the likelihood that the appellant had committed the offences against a third complainant to a significant extent. I will return to this submission later.
It was put that the state of mind alleged, namely an emotional or sexual attraction to young females, was so widely stated as to have no significant probative value.
It was further put that the conduct relied upon in Count 1 was of such a different nature to that sought to be relied upon in Counts 2-7 as to have no significant probative value.
Consideration
Aside from relevance, the first question to be decided is whether the evidence either by itself or having regard to other evidence to be adduced at the trial, taking the Crown case at its highest, has significant probative value: s. 97(1) (b) of the Act. As said by the plurality in Hughes v TheQueen[2] the assessment of the probative value of tendency evidence requires the Court to determine the extent to which the evidence is capable of proving the tendency alleged, and assuming that the evidence has the capacity to do so, the Court must then assess the extent to which proof of the tendency makes more likely the facts making up the charged offence or offences.
So far as Counts 2-6 are concerned, as the Crown has pointed out, the facts relating to the tendency to make indecent bodily movements to young females is particularly strong, not only because of the fact that the alleged offences occurred in the circumstances which are described above, but also because of the similarity of the offending behaviour in each case. In my opinion, the facts alleged have significant probative value to prove that tendency and to prove that the accused had a tendency to have the state of mind alleged. As was pointed out in the joint judgment of each of the Justices of the High Court in R v Bauer[3] :
Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so joined together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act…
Although similarity of the conduct alleged is not necessary where there is a single complainant[4], the fact that there is similarity in the conduct alleged significantly increases the probative value of the evidence. So far as any prejudice to the accused is concerned, any prejudice could be overcome by appropriate instructions to the jury.
Accordingly I admitted the evidence in relation to Counts 2-6 to prove the tendencies referred to above.
The charge in Count 1 is of a different character. Whether or not the acts complained of amount to an offence or not is a question for the jury. I will assume for these purposes that the jury will so find that the charge is proved. It is at the very least misconduct relevant to showing that the accused had a sexual interest in the complainant, GR. It bears more of a similarity to Count 3 than to the other Counts. It would, even at common law, be admissible as relationship evidence. However except for Count 3, I do not think that the facts in relation to Count 1 have significant probative value for the purposes of s. 97(1) of the Act, but in my opinion it had significant probative value in relation to Counts 1 and 3. I considered that any prejudice could be overcome by appropriate instructions to the jury. I therefore admitted the evidence to prove that the accused had a tendency to touch young females when an opportunity arose in order to obtain sexual gratification for himself, but only in relation to Counts 1 and 3, and to prove the state of mind alleged.
So far as Count 7 is concerned, this involves a different, older complainant, TT. The background facts are similar. The offending is alleged to have occurred in circumstances where TT was living with the accused and his partner RT and her family in the family home at Darwin. The alleged offending occurred close in time to the offending involving the complaint, GR. The accused was TT’s uncle, and he held a position of trust towards her. The offending occurred in the family home at a time when there was a significant risk that the accused would be discovered.
As has now been firmly established, in order for the evidence in relation to the other Counts to have significant probative value where there are multiple complainants, there must ordinarily be some feature of or about the offending which links the offending against both complainants together. Aside from the background matters already referred to, there is, in the case involving TT, a similarity in the manner in which the offending occurred, namely, entering TT’s bedroom whilst she was asleep and using his penis in TT’s anal area. In my opinion, taken as a whole, the evidence of each of the offences in Counts 2-7 demonstrated a common feature of a man of mature years having a sexual interest in young females and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. I considered that the evidence relating to each of these Counts has significant probative value in proof of each other charged offence in Counts 2-7. So far as reliance was placed by counsel for the accused on the passage in McPhillamy v The Queen[5] is concerned, that was a case where the allegations made by the complainants B and C were 10 years earlier than the allegations made by A and in vastly different circumstances, and the situation here is distinguishable on that basis. So far as any prejudice to the accused is concerned, I considered that this could be overcome by appropriate instructions to the jury. Accordingly, I admitted the evidence in relation to Counts 2-7 to prove the tendency to make indecent bodily movements to young females when an opportunity arose in order to obtain sexual gratification for himself and to prove that he had a sexual and emotional attraction to young females.
Counsel for the accused raised the possibility of concoction between the complainants. The basis of this submission is that there is some evidence that the complainants had been discussing the offending between themselves, and some background evidence that at the time when the complaints were made to the authorities, there was a custody dispute between the accused and RT. However, as was pointed out in R v Bauer[6] unless the risk of contamination or concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability, and therefore the assessment of those matters must be left to the jury. Clearly the evidence relied upon by counsel for the accused did not fall into the category of being so great that the jury could not rationally accept the evidence.
Counsel for the accused also sought an order for separate trials in relation to Count 7. He conceded however that if the evidence relating to Count 7 was cross-admissible as tendency evidence, there was no basis for ordering separate trials. Accordingly, that application was refused.
Counsel for the accused also objected to evidence of an alleged uncharged act made by TT. In her recorded statement with the police, TT said after she had complained about the matters relating to Count 7 to her aunt, and the accused had admitted it to RT in her presence and said that “he was never gonna do it again.. the following week he tried to come into my room and he would do little things like- and I just felt so uncomfortable”. Later in the interview, she was asked by the interviewing officer about what happened the following week when the accused came into her room and TT said:
He just came in and like (inaudible) he was putting a bed sheet over me but he would just do little- like touch my hand and caress it and I just feel so uncomfortable living in that house anymore”.[7]
The basis of the objection was that it was highly prejudicial because the jury might think that the accused offended against TT more than once. It was put that the allegation was too vague to show any underlying sexual interest in TT.
It was submitted by the Crown that the evidence was not being led as an uncharged act, and further that it was not being led for a tendency purpose. It was relevant to show that the accused was prepared to go into her bedroom uninvited to gain her attention and to show that he had a sexual interest in TT. It was relevant only to Count 7. In my opinion, the Crown’s submission is correct. The fact that the evidence relates to a period of time subsequent to the offending in relation to Count 7 does not mean that it is irrelevant if it illustrates a sexual interest in the child, TT. It is sufficiently close in point of time to the events which make up the charge in Count 7 and shows a continuing interest in the child of a sexual nature in that he not only pulled the sheet over her, but “caressed” her on the hand. I ruled that the evidence was admissible for that purpose.
The Crown also sought to rely upon a Coincidence Notice which sought to prove the same things as were alleged in the Tendency Notice. It is difficult to see why the Crown needed to do this. Once the evidence was admitted for tendency purposes, the Coincidence Notice adds little or nothing to the Crown case. After discussion with the prosecutor, it appeared to me that the Coincidence Notice was not being pressed, so I have not ruled on it.
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[1][2018] HCA 52; (2018) 361 ALR 13 at [32].
[2][2017] HCA 20; (2017) 263 CLR 338; (2017) 92 ALJR 92 at [41].
[3][2018] HCA 40; (2018) 266 CLR 56 at [50].
[4]Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338 at [39].
[5] [2018] HCA 52; (2018) 361 ALR 13 at [32].
[6][2018] HCA 40; (2018) 266 CLR 56 at [69].
[7] P2 on the voir dire, p 9.
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