The Queen v Hampton - [2017] NTSC 87

CITATION: The Queen v Hampton [2017] NTSC 87
PARTIES:THE QUEEN

v
HAMPTON, Graham David

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21608932
DELIVERED ON:  7 December 2017
DELIVERED AT:  Darwin
HEARING DATES:  21 and 22 September 2017
JUDGMENT OF:  KELLY J
CATCHWORDS:

CRIMINAL LAW – Jurisdiction, practice and procedure – Information, indictment or presentment – Indictments – Severance – Multiple complainants – Application for separate trials - Evidence of complaints cross-admissible as tendency evidence – Application refused – Criminal Code Act 1983 (NT) ss 341, 341A

EVIDENCE – Admissibility and relevance – Tendency – Probative value – Whether significant probative value outweighs any prejudicial effect to defendant – Whether probative value undermined by possibility of collusion – Possibility that similarities in complainants’ evidence the result of contamination – Whether similarities unduly elevate the probative value of the evidence – Evidence admissible – Evidence (National Uniform Legislation) Act 2011 (NT) ss 97, 101
Criminal Code Act 1983 (NT) ss 341, 341A
Evidence (National Uniform Legislation) Act 2011 (NT) ss 97, 101
Hughes v The Queen [2017] HCA 20, referred to
REPRESENTATION:
Counsel:
Crown:S Tasneem
Hampton:S Karpeles
Solicitors:
Crown:Office of the Director of Public Prosecutions
Hampton:Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Kel1718
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
AT ALICE SPRINGS

The Queen v Hampton [2017] NTSC 87

No. 21608932
BETWEEN:

THE QUEEN

AND:

GRAHAM DAVID HAMPTON

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 7 December 2017)

The accused is charged with:
(a)one count of gross indecency with his step-daughter, AS when she was aged between 10 and 11 (Count 1);
(b)one count of unlawful sexual intercourse with AS (digital-vaginal penetration) when she was under the age of 16 (Count 2);
(c)one count of unlawful sexual intercourse with AS (penile-oral penetration) when she was under the age of 16 (Count 3);
(d)one count of exposing AS to an indecent act by him when she was aged under 16 (Count 4);
(e)one count of maintaining an unlawful sexual relationship with another step-daughter (AN) who was under the age of 16 (Count 5);
(f)in the alternative to count 5:
(i)   one count of indecent dealing with AN, who was then under the age of 16 (Count 6);
(ii)    one count of unlawful sexual intercourse with AN (digital-vaginal penetration) when she was under the age of 16 (Count 7);
(iii) one count of exposing AN to an indecent book when she was under the age of 16 (Count 8); and
(iv)   one other count of unlawful sexual intercourse with AN (digital-vaginal penetration) when she was under the age of 16 (Count 9).
The complainants are the two step-daughters of the accused.
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 tendency evidence is said to relate to the following facts in issue:
(a)whether between 1 January 1993 and 31 December 1998, the accused carried out acts of sexual misconduct upon his stepdaughter AS by engaging in sexual intercourse with the complainant in the form of digital penetration and fellatio, as well as indecently dealing with the complainant and exposing her to indecent acts as alleged in counts 1 to 4 of the indictment; and
(b)whether between 1 July 1998 and 1 December 2001, the accused maintained a sexual relationship with AN by engaging in sexual intercourse with the complainant in the form of digital penetration, as well as indecently dealing with the complainant and exposing her to an indecent magazine as particularised in the alternative counts 6 to 9 of the indictment.
The notice advised that the tendencies sought to be proved were:
(a)the tendency of the accused to act in a particular way, namely:
i.    to use his role as their step-father to access his under-aged step-daughters;
ii.   to touch sexually or perform sexual acts upon his under-aged step-daughters as they lay in bed or in their bedroom;
iii.     to expose his under-aged step-daughters to indecent acts or material; and
iv.   to threaten harm should the complainants tell anybody; and
(b)to have a particular state of mind, namely:
i.    a sexual interest in his under-aged step-daughters upon which the accused was prepared to act; and
ii.   a willingness to act upon that interest for his own gratification.
The notice sets out in a table the evidence sought to be relied on to prove these tendencies. Essentially the Crown seeks to rely on the evidence of each complainant in relation to the counts on the indictment to establish these tendencies and contends that the tendencies sought to be established make it more likely that the alleged conduct in relation to the other complainant occurred.
The defence objects to the reception of this tendency evidence, and has applied for the charges in relation to the two step-daughters to be tried separately.
Section 341A of the Criminal Code 1983 (NT) provides:
(1)Despite any rule of law to the contrary, 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.
(2)The presumption is not rebutted merely because:
(a)evidence on one charge is not admissible on another charge; or
(b)there is a possibility that evidence may be the result of collusion or suggestion.
This provision must be given full effect. Nevertheless, whether the evidence under consideration is cross-admissible will be a very relevant consideration in determining whether there should be separate trials, and the question of whether there may have been collusion or suggestion is relevant to the question of whether the evidence is cross-admissible.

The tendency notice

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.
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen:[1]
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)
It seems to me that if the Crown proves that the accused had the tendencies set out in the tendency notice, the existence of that tendency does have significant probative value in establishing the facts in issue. If the jury is convinced that the accused had a sexual interest in his under-aged step-daughters upon which he was prepared to act, and a tendency to touch sexually or perform sexual acts upon his under-aged step-daughters as they lay in bed or in their bedroom, then that could rationally affect, to a significant degree, the jury’s assessment of the probability that he had that state of mind and acted in that way on the occasions the subject of the particular charges.
The first question, therefore, is whether the evidence which the Crown wishes to adduce is apt to prove that the accused had the alleged tendencies. In my view it is. The complainants are both step-daughters of the accused. It is anticipated that the evidence of AS will be to the following effect.
(a)When she was 10 or 11 years old when she was asleep, the accused woke her by touching her on her breast and then put his hand inside her shorts and touched her vagina. He then threatened her, saying he would kill her mum or her siblings if she said anything.
(b)When she was 13 or 14 years old the accused went into her bedroom as she lay in bed, put his hand under the blanket, touched her vagina and inserted his finger into her vagina.
(c)When she was between 13 and 15 years old, the accused touched her vagina, inserted his finger into her vagina, then made her rub his penis and insert his penis into her mouth. He did this about 30 times during this period.
(d)When she was between 13 and 15 years old, the accused exposed his penis to her in the kitchen while her mother was cooking breakfast.
It is anticipated that AN will give evidence to the following effect.
(a)When she was about 12 years old, she and her mother and the accused were staying at the Yeperenye Hostel in Alice Springs. Her mother was taken to hospital to have a baby, she and the accused stayed at the hostel. While the mother was in hospital, she was woken by the accused rubbing her breast. She asked, “What are you doing?” and the accused replied, “I’m just feeling it.”
(b)When she was about 13 years old she was sleeping in the same bed as her mother. Some time during the night her mother left the room and the accused put his hand down the front of her pants, touched her on the vagina and inserted his finger into her vagina. He threatened her, saying, “Shut your mouth or I’ll hurt your mother.”
(c)When she was about 15 years old, the accused went into her bedroom and apologised for his previous conduct towards her. He showed her a pornographic magazine with pictures of people in a variety of sexual positions. Then he touched her breasts, rubbed her nipples, moved his hand down to her vagina and inserted his fingers into her vagina.
(d)When she was between 12 and 15 years old, the accused engaged in sexual conduct towards her almost every day, sometimes up to three times a night whenever her mother was asleep or out of the house. He threatened that it would be worse if she told anyone, that he would rape her or kill her mother.
This evidence is capable of establishing that the accused had a sexual interest in his under-aged step-daughters upon which he was prepared to act for his own gratification; and that he had a tendency to act in the ways set out in the tendency notice. Accordingly, that evidence does have significant probative value in establishing the facts in issue: it could rationally affect, to a significant degree, the jury’s assessment of the probability that he had that state of mind and acted in that way on the occasions the subject of the charges.
The next step is to perform the balancing act required by s 101. In criminal cases, under UEA s 101(2), tendency evidence cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. The potential for prejudice to the accused by the admission of tendency evidence was also explained in Hughes v The Queen:[2]
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.
Determining whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant entails making an assessment of the probative value of the evidence and identifying its potential prejudicial effect.
The defendant submits that the probative value of the evidence is significantly undermined by the possibility of collusion between the complainants. I disagree.
Evidence was adduced on the voir dire from AS, AN and TH, a cousin of AS and AN to whom AN made disclosures of being abused by the accused. That evidence, and a time-line of alleged complaints helpfully provided by defence counsel in written submissions reveals the following material facts.
(a)AN and AS did not live together growing up. AS was raised by her grandmother. AN was raised by her aunt but went to live with her mother and the accused for a time. AS and AN saw each other from time to time at family gatherings but not on a regular basis.
(b)AN says that she disclosed the abuse to two friends on separate occasions in 1999 and 2000, but those two friends do not recall the complaints.
(c)Another friend, TH, gave evidence that when they were 11 years old AN told her the accused had done some bad things to her. She gave no details and TH did not ask her for any. AN was upset and crying.
(d)Two other friends say that AN disclosed the abuse to them in 2003 but without providing details.
(e)AS disclosed the fact of the abuse to her then partner in 2001 before she became aware that AN had claimed she had been abused. (She did not find that out until 2009 – 2010.) However, she did not provide any details.
(f)In about 2009 – 2011, it seems that AN disclosed the abuse to a number of friends. AS was present on one of those occasions and said that the same thing had happened to her. No details were given by either AN or AS. (Accounts vary as to who was present and when these disclosures occurred.)
(g)In 2014, AN had a conversation with TH in a car outside AN’s flat. AS joined them for the last part of the conversation. The evidence of AN, AS and TH differs somewhat.
(i) AS agreed that she recalled a conversation in a car at AN’s house in Eastside with TH, AN and herself. She could not remember when it occurred. She said she did not think they had been drinking, her memory of the event was “a bit cloudy” and she could not remember any details of the conversation. It was the second time AN had said something to her about being sexually abused by the accused. She could not remember if she had said anything at the time. She agreed it was possible she had said the same thing had happened to her but was clear that she did not provide any details “because I wouldn’t use any description to it”.
(ii) AN agreed that she recalled a conversation taking place in a car outside her house at Eastside between her and AS and TH. She could not remember when it took place but said it was after an incident in which she was taken to hospital after cutting her wrists. She said the three of them had been drinking before the conversation. She agreed that she had become upset and emotional and went to the car with TH for some privacy to talk about what had happened to her. She did not tell TH how she had been sexually abused by the accused. She just said she was abused and she was sick of living. She could not remember telling TH how the accused touched her on her private parts and her breast. She could not remember telling TH that he told her to touch his penis. She thought she could remember telling TH that the accused used to threaten her that if she told anybody about what was going on he would hurt her or her mother or family. She remembered telling TH that these things happened out at the block but she could not remember any other details. The conversation went on for maybe half an hour. Then AS got in the car. She did not remember telling AS the same things she had told TH when AS got into the car. When asked if AS told her the same thing had happened to her, she replied, “Not that I can recall.” She said she did not recall AS telling her any details of any sexual abuse by the accused.
(iii) TH said that she and AN were in the car in front of AN’s unit. She agreed that she, AN and AS had been drinking together beforehand. She agreed that AN had become quite emotional and the two of them went out to the car for privacy so they could speak. She could not remember how long the conversation lasted. She said it took place about three and a half years ago. She said AN told her that the accused had “kind of touched her tits and her private area down there” and pointed at her vagina. She said AN told her the accused had asked her to touch or hold his penis but she did not say whether or not she had done so. She agreed that AN told her that the accused would threaten her that if she disclosed this to anyone he would hurt her or her family. She also agreed that AN had told her that the sexual abuse would happen out at the block, where the accused was living with AN and AS’s mother. She said AN told her that it happened any time AN’s mother was asleep and that it would happen in her bed. She said that AS came in at the end of the conversation and that AN went right back to the start and told AS everything she had told TH. Then AS said the same thing had happened to her but did not provide any detail. She said that was the first time AS had said anything to her about being sexually abused and the first time she had had a conversation on the subject with AN in the presence of AS.
There is no evidence that AS and AN colluded to invent a story of abuse by the accused. Each independently disclosed the fact of abuse having occurred, without giving details, to someone else before either of them found out about the allegations made by the other.
On one version of the evidence (that given by TH) AS was told of some of the details of what was done to AN by the accused before AS told her story to police. Defence counsel submits that this could have contaminated the details of the account given by AS. However:
(a)AS strongly denied that her account of what the accused did to her was influenced in any way by anything she had heard about what happened to AN;
(b)both AS and AN were adamant that they remembered the abuse clearly despite the elapse of time because they were traumatic experiences that were deeply etched in their memories;
(c)the details which TH says were provided by AN were of quite a general/generic nature; and
(d)in any event, even if one were to suppose that AS’s recollection of some of the details could have been contaminated by learning of details of what had happened to AN, the mere evidence of sexual abuse having occurred (without the details) is capable of establishing the major tendencies sought to be proved by the Crown – ie the tendency of the accused to use his role as their step-father to access his under-aged step-daughters and to touch sexually or perform sexual acts upon them, and to have a particular state of mind, namely a sexual interest in his under-aged step-daughters on which he was prepared to act for his own gratification.

No other kind of potential prejudice to the accused was relied upon by counsel for the defendant. Counsel for the defendant fairly conceded that, but for the evidence of TH, he would not be pressing the application for separate trials. He conceded that the evidence was clear that both complainants complained to third parties of having been sexually abused by the accused before either of them were aware of the allegations of the other; that some of the tendencies alleged in the tendency notice would be established by the evidence of abuse having occurred without reference to the detail; and that, therefore, the only possibility of contamination raised on the evidence was in relation to the details said to have been communicated by AN to TH and AS in the car. Further, counsel (again fairly) conceded that this possibility of contamination was one way only – ie from AN to AS.
Counsel for the defendant pointed to similarities between the complaints made by the two complainants: that the abuse happened “at the block” (although not every time); that it involved touching on the breasts and the vagina; that the accused asked them to touch his penis; and that the accused made threats to stop each complainant from telling. It was contended that the number of similarities between the two accounts might elevate the probative value of the evidence in the mind of the jury, yet these similarities might be a result of (perhaps unconscious) contamination of AS’s evidence by what she heard from AN in the car, as this conversation took place before AS had provided any details of the abuse she says the accused inflicted on her.
In my view, the apprehended prejudice is not great. The similarities in the descriptions of the abuse are not striking or peculiar and are unlikely to unduly elevate the probative value of the evidence in the mind of the jury beyond the probative effect of the tendencies sought to be established. Touching of breasts and vagina and having the complainants touch the accused’s penis is almost the definition of sexual abuse: it is almost generic, if one can use that term about sexual abuse. The making of threats to secure silence might be considered a somewhat more unusual feature – but not greatly so. In any event, there is no evidence that AN shared details of the threats, just that the accused threatened if she told anyone he would hurt her or her family. The fact that the abuse is said to have happened “at the block” in both cases is unsurprising given that that was where the accused lived with the complainants’ mother. Defence counsel will no doubt submit to the jury with some force that they should treat AS’s evidence with caution because of the possibility that her evidence has been contaminated by hearing the complaints of AN before providing any details herself, and appropriate directions will be given in summing up drawing this possibility to the attention of the jury.
On the other hand, I consider the tendency evidence to be highly probative for the reasons set out above. I consider that its probative value substantially outweighs any prejudicial effect it may have on the defendant.
I therefore consider that the evidence of the two complainants is cross-admissible as tendency evidence and I decline to order separate trials.

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[1] [2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ

[2] Ibid at [17]