The Queen v Faustmann - [2020] NTSC 8

CITATION:The Queen v Faustmann [2020] NTSC 8
PARTIES:THE QUEEN

v
FAUSTMANN, Phoenix

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21927400
DELIVERED:  19 February 2020
HEARING DATE:  6 February 2020
JUDGMENT OF:  Kelly J

CATCHWORDS:
EVIDENCE – Admissibility and relevance – Evidence (National Uniform Legislation) Act 2011 (NT) s 97 and s 101 - Tendency evidence – Whether tendency evidence has significant probative value – whether probative value of the evidence substantially outweighs any potential prejudicial effect on the accused - Evidence admissible
Evidence (National Uniform Legislation) Act 2011 (NT) s 97, s 101

HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; McPhillamy v The Queen (2018) 361 ALR 13; R v Bauer (2018) 92 ALJR 846; R v Lisoff [1999] NSWCCA 364; The Queen v AW [2018] NTSC 29, applied
REPRESENTATION:
Counsel:
Crown:T McNamee
Accused:P Maley
Solicitors:
Crown:Director of Public Prosecutions
Accused:Maleys Barristers & Solicitors
Judgment category classification:    B
Judgment ID Number:  Kel2001
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Faustmann [2020] NTSC 8

No 21927400

BETWEEN:

THE QUEEN

AND:

PHOENIX FAUSTMANN

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 19 February 2020)

The accused is charged with three counts of indecent dealing against two different victims. Both complainants were under ten years of age. One was eight or nine and the other seven. All three offences are alleged to have occurred in the home of the child in question, while the accused was visiting. In each case, the alleged offending consisted of touching the complainant’s vagina on the outside of the child’s clothing.
Count 1 (the alleged offending against the child ST) is said to have occurred at night in the child’s bedroom while she was asleep. The accused was staying with the family, sleeping on the couch. The accused is said to have put his hand inside her shorts and touched her vagina on the outside of her underwear. He desisted when she woke and he left the bedroom. The next day he asked her if she was all right and she said, “I’m fine.”
Counts 2 and 3 (the alleged offending against the child MB) is said to have taken place on the couch in the child’s home while the accused was visiting. The accused is said to have placed the child on his lap and used his index finger to poke and touch the child on the vagina on the outside of her pyjamas. The mother had been in the kitchen cooking dinner. She saw MB sitting on the accused’s lap with the accused’s arms around the child’s body and his hands between her legs. The child looked unhappy and the mother told her to sit somewhere else. The accused hugged the child higher on her body and tickled her and told the mother, “No, she’s all right.” After dinner the accused is said to have sat next to the child on the couch while she was watching TV and again used his fingers to touch her vagina over her pyjamas.
The Crown has given notice under s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (“UEA”) of its intention to adduce tendency evidence.
The notice advises that the tendencies sought to be proved are the tendency of the accused:
(a)to act in a particular way, namely:
(i)to indecently touch his friends’ daughters under the age of ten years at their residences;
(ii)to indecently touch his friends’ daughters under the age of ten years in circumstances when family are present in the residence but occupied or elsewhere in the residence and there is a risk of detection; and
(b)to have a particular state of mind, namely a sexual interest in female children under the age of ten years and a preparedness to act on that interest by engaging in indecent touching notwithstanding the risk of detection.
The conduct about which evidence is sought to be adduced is the conduct the subject of the current charges as well as evidence from one of the children of uncharged acts. The evidence of the child MB is that the accused “always” touches her on the vagina when he visits them at home.
The tendency evidence is said to be relevant to “whether the conduct occurred and in the circumstances as described by the complainants”.
The defence objects to the evidence being adduced as tendency evidence, and has applied for an order severing count 1 from counts 2 and 3 and for separate trials.
If an accused person is charged with more than one sexual offence in the same indictment, it is presumed that the charges are to be tried together.[1] This presumption is not rebutted merely because evidence on one charge is not admissible on another charge, or there is a possibility that the evidence may be the result of collusion or suggestion.[2] However, the court retains a discretion to order separate trials where the accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence on the same indictment or for any other reason it is desirable that different charges be tried separately.[3] The question of whether the evidence on the different charges is cross-admissible is relevant to the exercise of this discretion.
The onus is on the person making the application to sever to satisfy the trial judge “that it is both desirable and practical to do so in order to ensure a fair trial”.[4]
I am advised that there are common witnesses to all the counts on the indictment. They provide evidence of complaint. If the counts were severed those witnesses would have to be called twice. The Crown submits that that would not be either practical or desirable.
Defence counsel concedes that if the evidence of the two girls is cross-admissible as tendency evidence, the severance application must fail.
Under UEA s 97 evidence of the conduct of a person is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind unless the appropriate notice has been given and the court thinks that the evidence will (either by itself or having regard to other evidence to be adduced) have significant probative value.
There is no dispute about the adequacy of the notice. The question, therefore, is whether the evidence has significant probative value in relation to the issues set out above. Significance means something in between mere relevance, and a substantial degree of relevance.
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[5]
The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. ... The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. (citations omitted)
Assessing the probative value of proposed tendency evidence is therefore a two stage process. As the plurality said in Hughes:[6]
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The first question is the extent to which the evidence sought to be adduced tends to establish that the accused had the tendency to act in the way asserted in the notice. The assessment of the probative value of the evidence is to be determined by a trial judge on the assumption that the jury will accept the evidence. This does not involve any assessment of the credibility or reliability of the evidence except in an extreme case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury and so does not meet the criterion of relevance.[7]
This includes assessing the significance of the possibility of collusion or concoction which “should be left to an occasion when it is raised in a concrete factual setting”.[8]
In my view, on the assumption that the jury accepts the evidence, the evidence set out in the tendency notice is not only capable of supporting, but in fact strongly supports, proof of a tendency in the accused to indecently touch his friends’ young daughters when he visits their homes, and to do so when family are present in the house but occupied or elsewhere, and also to have the alleged state of mind, that is a sexual interest in female children under ten.
Putting to one side for the time being the question of cross-admissibility of the evidence, and dealing with the evidence of the child MB in relation to counts 2 and 3 and the uncharged acts, the evidence relating to that child, if accepted, would establish that the accused had a tendency to indecently deal with that child and to have a sexual interest in that child. The Full Court of the High Court in R v Bauer (a pseudonym)[9] said:[10]
Henceforth, it should be understood that a complainant’s evidence of an accused’s uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
…
In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.[11]
The Court in Bauer went on to approve the following statement from the judgment of Hayne J in HML v The Queen:[12]
Generally speaking ... there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried.
Their Honours concluded:
And the fact of itself that evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant’s account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused’s guilt of the charged offences.
Considering next the issue of the cross-admissibility of the evidence of the charged and uncharged acts relating to the two children, the High Court has said that there need not be any striking similarities or a distinct modus operandi for tendency evidence to be significantly probative of a fact in issue.[13] Nevertheless, where the tendency evidence sought to be adduced relates to sexual misconduct with a person other than the complainant, it will usually be necessary to identify some feature which serves to link the other sexual misconduct with the alleged offending conduct.[14] As the High Court said in Bauer:[15]
If … there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
It was submitted by defence counsel that there really is no common feature between the alleged offending against the child ST and the alleged offending against MB. The alleged offending against ST consists of a single incident of touching after other people, in particular, adults had gone to sleep. Defence counsel described this as an allegation of a covert act which involved a degree of pre-meditation which is absent from the other two counts. Counts 2 and 3 (the alleged offending against MB), is said to have occurred on the couch and was described by defence counsel as “opportunistic”.
I do not agree that there is such a sharp distinction between the acts constituting the alleged offending against the two complainants. While the alleged offending in count 1 occurred at night in the child’s bedroom, there was nevertheless a risk of detection should any of the adults in the house have woken up or if the child had cried out when she woke.
Nor do I think that the allegations in count 1 could be realistically said to be significantly more pre-meditated than counts 2 and 3; or the alleged offending in count 2 and 3 significantly more opportunistic than count 1. In relation to count 2, the accused is said to have purposely sat the child on his lap and indecently dealt with her, and to have engaged in the subterfuge of shifting his embrace and tickling the child when the mother asked the child to sit elsewhere. Moreover, the allegation is that after dinner he again purposely sat next to the child on the couch to continue to indecently deal with her.
In my view, there are a number of common features to the alleged offences. First, both children are of similar age and were children of friends of the accused and the allegation is that he indecently dealt with each of them when he was visiting their home, in circumstances where other adults were present in the house. There are also physical similarities to the alleged offending: in each case the accused is said to have touched the child on the vagina on the outside of an article of clothing. In addition, there is a temporal nexus: count 1 is said to have occurred between 1 August 2018 and 20 April 2019; and counts 2 and 3 are said to have occurred on 16 July 2019.
The alleged state of mind is said to be that the accused had a sexual interest in young female children, under ten years of age. The evidence of both complainants is probative of that state of mind.
I agree that, as a matter of logic, the evidence of each child is apt to prove that the accused had the tendency to have the state of mind alleged, and a tendency to indecently touch his friends’ daughters under the age of ten years in circumstances when family are present in the residence but occupied or elsewhere in the residence and there is a risk of detection. Further, those tendencies, if established, significantly increase the likelihood that the accused had that state of mind and acted on it at the times relevant to the charges on the indictment – ie that he committed the offences with which he is charged.
I am therefore satisfied that the threshold test in s 97 has been met. The evidence sought to be adduced as tendency evidence has significant probative value.
The next step is to consider whether the evidence satisfies the requirements of UEA s 101. In a criminal trial such as this, tendency evidence is not admissible unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused.
When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[16] The notion of prejudice in this general context “… means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate.”[17] Something more is required, such as the possibility that the evidence may be misused by the jury in some respect.
The plurality in Hughes explained the kinds of potential prejudice that can arise in a criminal trial such as this:[18]
In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
As defence counsel pointed out in written submissions, the test of danger of unfair prejudice is not satisfied by the mere possibility of such prejudice. There must be a real risk of prejudice by reason of the admission of the evidence.[19]
In this case, the defence identifies the following risks of prejudice:
(a)that the jury might give the evidence more weight than it deserves;
(b)that the jury might engage in propensity reasoning; and
(c)that the jury might be influenced by an irrational or emotional response to the evidence.
Defence counsel submitted that these risks cannot, in this case, effectively be dealt with by appropriate directions from the trial judge. In written submissions, defence counsel contended that child sex matters are highly emotive and that this is the kind of case in which jury reactions to the totality of the evidence is likely to be so extreme that the directions will not eliminate or substantially reduce the risk of prejudice, and that the psychological impact of a jury hearing from two girls will be such that the accused is prejudiced. I take it that this contention is intended to serve as an explanation of both the first and third risks identified.
I do not accept this submission.
(a)So far as the risk of propensity reasoning is concerned, the use of this kind of tendency evidence involves a kind of permissible propensity reasoning. As the plurality said in Hughes:[20]
The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.
(b)I do not think the risk that the jury may engage in rank propensity reasoning is very great and, in my view, it can be adequately guarded against by the usual warnings.
(c)Nor do I think that there is any real risk that hearing evidence from two girls is likely to have a greater emotional impact than hearing from one. This alleged offending is at the lower end of the scale for sexual offending against children and I do not accept the premise that jury reactions to the totality of the evidence is likely to be extreme, let alone so extreme that the jury directions are likely to be ineffective. Nor I do see how hearing that the accused touched two girls on the vagina outside their clothing is likely to produce a highly increased emotional response in the jury, as distinct from making it more likely that the accused will be convicted if the evidence is accepted, as a result of the sort of legitimate reasoning described in Hughes. The jury will receive the usual directions and warnings relating to tendency evidence.

Balanced against this, I consider the probative value of the evidence to be very high. I consider that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. The tendency evidence specified in the notice will be admitted.
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[1] Criminal Code s 341A(1)

[2] Section 341A(2)

[3]Section 341(1). This section is expressed to be subject to s 341A. [Section 341(1A)]

[4] R v CHS (2006) 159 A Crim R 560 at 575 [73]: R v Vanko [2014] NTSC 3 at [5]

[5][2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ

[6]ibid at [41]

[7] IMM v The Queen (2016) 257 CLR 300 at [38], [39] and [41]

[8] ibid at [59]

[9](2018) 92 ALJR 846

[10] at [48]

[11] at [50]

[12]at [51]

[13]Hughes at [34], [39] to [41]

[14] McPhillamy v The Queen (2018) 361 ALR 13 at [31]

[15] at [58]

[16]The Queen v AW [2018] NTSC 29 at [30]

[17] HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ

[18] at [17]

[19]R v Lisoff [1999] NSWCCA 364 at [60]

[20] at [16]