The Queen v Ian Harold King
[2013] ACTCA 23
•20 May 2013
THE QUEEN v IAN HAROLD KING
[2013] ACTCA 23 (20 May 2013)
EVIDENCE – similar facts – sexual offences –tendency and coincidence evidence – whether relevant to the issue of abuse of position of authority or trust
CRIMINAL LAW – engaging in sexual intercourse without consent – committing acts of indecency without consent – consent alleged to have been negated by abuse of position of authority or trust – abuse in the context of s 92P(1)(h) (now 67(1)(h)) of the Crimes Act 1900
APPEAL – appeal from order for separate trials following ruling against the admission of tendency and coincidence evidence
WORDS AND PHRASES – “abuse of position of authority … or … trust”
Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc (1981) 148 CLR 170
AW v The Queen [2009] NSWCCA 1
Dao v The Queen (2011) 81 NSWLR 568
Gillard v The Queen [2013] ACTCA 17
In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318
McNamara v R (1978) 20 ALR 98 Phillips v R (2006) 225 CLR 303
R v Fletcher (2005) 156 A Crim R 308
R v Lockyer (1996) 89 A Crim R 457
Crimes Act 1900 (ACT) s 92P(1)(h) (now 67(1)(h))
Evidence Act 2011 (ACT) ss 97, 98
Supreme Court Act 1993 (ACT) s 37E(4)
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 71 – 2012
No. SCC 164 of 2009
Judges: Higgins CJ, Katzmann J & Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 20 May 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 71 – 2012
) No. SCC 164 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE QUEEN
Appellant
AND:IAN HAROLD KING
Respondent
ORDER
Judges: Higgins CJ, Katzmann J & Nield AJ
Date: 29 April 2013
Place: Canberra
THE COURT ORDERS THAT:
Leave to appeal be granted.
The appeal be allowed.
The orders made on 10 December 2012 be set aside.
The proceeding be remitted to the Supreme Court for the applications by the Crown to lead tendency and coincidence evidence to be determined according to law, with any subsequent application to sever the indictment to be dealt with in the light of those determinations.
IN THE SUPREME COURT OF THE ) No. ACTCA 71 – 2012
) No. SCC 164 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:THE QUEEN
Appellant
AND:IAN HAROLD KING
Respondent
Judges: Higgins CJ, Katzmann J & Nield AJ
Date: 20 May 2013
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
Ian Harold King is charged with three counts of engaging in sexual intercourse without consent and five counts of committing acts of indecency without consent, in each case knowing or being recklessly indifferent as to whether the complainants consented. The conduct in question allegedly occurred at different times over a nine-year period between 1 April 1989 and 1 July 1998 and involves five complainants. The complainants were then young men in their mid to late teens, enthusiastic cricketers keen to improve their skills. The accused was a man in his forties, a cricket coach and a former player of some repute. The Crown case is that at all relevant times the accused was the complainants’ cricket coach and mentor and that he used that position to facilitate sexual contact with the complainants and to procure their consent to the activities the subject of the charges.
The eight counts are included in the one indictment. When the indictment was presented, the accused pleaded not guilty to all charges.
By notices dated 20 July 2012 the Crown informed the accused that it intended to lead tendency and coincidence evidence and then applied to the Court for orders permitting it to do so. The accused opposed the applications. At about the same time the accused applied for the counts relevant to each complainant to be tried separately. The parties agreed that if the Crown’s application failed, then the accused’s application should succeed.
On 10 December 2012 the trial judge refused the Crown’s application and, accordingly, made the order for separate trials. The Crown wants to appeal the decision. As the order is interlocutory, the leave of the Court is required: Supreme Court Act 1993 (ACT), s 37E(4). The Crown applied for leave and the Chief Justice referred the leave application to this Court so that, if leave were granted, the appeal could be determined at the same time.
The indictment the Crown presented is in the following terms:
FIRST COUNT THAT between the 1st day of April 1989 and the 30th day of September 1989 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon T, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
SECOND COUNT AND FURTHER THAT between the 1st day of January 1990 and the 31st day of December 1990 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged in sexual intercourse with T, without consent, knowing that he did not consent or being reckless as to whether he consented to the sexual intercourse.
THIRD COUNT AND FURTHER THAT between the 1st day of September 1993 and the 31st day of January 1994 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged in sexual intercourse with J, without consent, knowing that he did not consent or being reckless as to whether he consented to the sexual intercourse.
FOURTH COUNT AND FURTHER THAT between the 1st day of September 1993 and the 31st day of January 1994 at Canberra in the Australian Capital Territory IAN HAROLD KING engaged in sexual intercourse with J, without consent, knowing that he did not consent or being reckless as to whether he consented to the sexual intercourse.
FIFTH COUNT AND FURTHER THAT between the 1st day of December 1997 and the 31st day of March 1998 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon M, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
SIXTH COUNT AND FURTHER THAT between the 31st day of March 1998 and the 1st day of May 1998 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon M, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
SEVENTH COUNT AND FURTHER THAT between the 26th day of December 1997 and the 31st day of January 1998 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon P, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
EIGHTH COUNT AND FURTHER THAT between the 1st day of January 1998 and the 1st day of July 1998 at Canberra in the Australian Capital Territory IAN HAROLD KING committed an act of indecency upon A, without consent, knowing that he did not consent or being reckless as to whether he consented to the act of indecency.
The accused does not dispute that he engaged in the various sexual acts with which he is charged. He disputes, however, that those acts were non-consensual. On this question the Crown case is that, if the complainants did consent, consent was negated by the operation of s 92P(1)(h) of the Crimes Act 1900 (ACT) (now s 67(1)(h)). The section relevantly provides:
(1)For the purposes of sections 92D [sexual intercourse without consent], paragraph 92E(3)(b), section 92J [act of indecency without consent] and paragraph 92K(3)(b) and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused—
…
(h) by the abuse by the other person of his position of authority over, or professional or other trust in relation to, the person;
…
(2)A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.
(3)Where it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in paragraphs (1)(a) to (j) (inclusive), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.
The substantive issue on this application and the prospective appeal is whether the trial judge erred in his interpretation of s 92P(1)(h) and, in particular, the word “abuse”.
The trial judge held that on the facts set out in the tendency notice there could be no finding that the accused abused any position of authority over, or trust in relation to, the complainants because there was no allegation that he did “some act connected with his position calculated to deprive the apparent consent of the complainants of any reality”, such as by offering to ensure their selection or by threatening to block their selection in return for sexual favours.
The Crown contends that the trial judge erred by imposing “a superadded requirement” that the accused “did some act connected with his position calculated to deprive the apparent consent of the complainants of any reality”. The Crown submits that in order to negate consent it merely had to prove that the accused was in a position of authority over, or trust in relation to, the complainants and that the complainants’ consent was obtained through abuse of that position. The Crown submits that the trial judge’s imposition of the “superadded requirement” resulted in the order for separate trials so that that order was infected by error. If leave is granted and the appeal allowed, the Crown asks that the proceeding be remitted to the Supreme Court for the application to lead the evidence to be determined according to law, with any subsequent application to sever the indictment being dealt with in the light of that determination.
The accused did not attempt to justify the alleged error. Rather, he submitted that the case is not one which is appropriate for a grant of leave.
At the conclusion of the hearing on 29 April 2013 we held that leave should be granted, the appeal allowed and the matter remitted to the Supreme Court. We indicated that we would give our reasons later in the week. These are our reasons.
The application to lead tendency evidence
By its notice the Crown indicated its intention to prove that the accused has a tendency to act in particular ways, namely:
(a)to use his role as a cricket coach to develop a close relationship with young males by positioning himself as a mentor;
(b)to use this close relationship to groom the young males;
(c)to use his role as a cricket coach to introduce sexual topics into conversations with young males;
(d)to buy gifts for young males as a means of grooming them to engage in sexual activity;
(e)to attempt to normalise sexual contact with young males, in order to develop sexual contact;
(f)to use pornography to normalise sexual contact with young males;
(g)to relate sexual performance to cricket performance; and
(h)to perform sexual acts on young males.
In the same notice the Crown indicated its intention to lead evidence that the accused had a tendency to have the following particular states of mind:
(a)to be attracted to young males to whom he acted as a cricket coach; and
(b)to use his position of trust to facilitate sexual contact with young males he coached.
Assuming that tendency evidence is relevant, it is only admissible in exceptional circumstances. Section 97 of the Evidence Act 2011 (ACT) relevantly provides:
97 The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless –
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
Further restrictions are imposed by s 101(2). Even if the evidence has significant probative value, it cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect.
There were therefore three issues the trial judge had to decide: first, whether the evidence was relevant; secondly, if so, whether either by itself or having regard to other evidence the Crown intends to call, the evidence would have significant probative value; thirdly, whether the probative value of the evidence substantially outweighed any prejudicial effect.
Evidence is relevant if, were it accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: Evidence Act, s 55(1). Here, the fact in issue was whether the accused used his position of authority over, or trust in relation to the complainants to facilitate sexual contact with them and, as the Crown put it, “to obtain their ‘consent’ to sexual acts”. The evidence would be relevant if it could rationally affect (directly or indirectly) the assessment of the probability that he did. The “probative value” of evidence refers to the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: Evidence Act, Dictionary. “Significant probative value” does not mean “substantial probative value”; something less will suffice: R v Lockyer (1996) 89 A Crim R 457; AW v The Queen [2009] NSWCCA 1. If the evidence was relevant, it would then have been necessary to determine the impact that the evidence could rationally have on the issue of whether the accused used his position in the way the Crown asserts and to weigh that impact against any prejudice that the admission of the evidence would have on the accused.
The trial judge held that the evidence was not relevant to an issue in the trial, in particular that it was not relevant to whether the accused abused his position so as to negate consent. In these circumstances, he did not go on to consider whether the requirements in ss 97 and 101 had been satisfied. To understand why he reached this conclusion it is convenient to set out several passages from his Honour’s reasons:
[37] …The section may be interpreted in two ways. First, it may be interpreted as negating actual consent where one of the circumstances in the section is made out. In other words, it would act so as to deem there to have been no consent when, in fact, the complainant had consented. Secondly, it may be interpreted as a legislative recognition of the common law principle that consent must be real consent as opposed to submission brought about, for example, by threats of violence.
[38] In elucidating the legislative intention behind s 92P(1)(h) it is important to recognise that the section requires the Crown to prove that the consent of the complainant was caused not just by the accused’s occupation of a position of trust in relation to, or authority over, the complainant, but by abuse of that position. The use of the word “abuse” appears to have been a deliberate choice by the drafter, so as to avoid the suggestion that consent was negated simply by reason of an accused holding such a position. In order to negate consent under s 92P(1)(h) it is not sufficient for the Crown to establish that an accused held such a position, and/or even that the holding of such a position caused the consent. The Crown must also prove that the accused abused that position. Where an offender abuses his or her position and is aware that this abuse has caused the consent of the complainant to the act of intercourse or the indecent act, as the case may be, s 92P(3) deems the offender to have known that the complainant was not consenting.
[39] It is important to recognise that the act of sexual intercourse or indecency relevant to s 92P(1)(h) cannot be the conduct that constitutes the abuse of an offender’s position for the purposes of the section. This is because s 92P(1) only operates where there has been apparent consent by a complainant to the act of sexual intercourse or the indecent act, and logically that apparent consent must either precede or at least be concomitant with the act … The acts or circumstances establishing that abuse must be found elsewhere.
[40] If the very act which is effectively proscribed by s 92P(1)(h) (being the particular act of sexual intercourse or the particular indecent act) cannot be the basis of an allegation of abuse of position for the purposes of the section, this strongly suggests that consensual acts of sexual intercourse are not intended to be the basis of an allegation of abuse of position at all. It would be anomalous if second or subsequent consensual sexual acts between a complainant and a person in a position of authority or trust attracted the operation of s 92P(1)(h), whereas the first such act did not. This, in turn, strongly supports the proposition that s 92P (1) (h) is not intended to legislatively negate real consent, but instead is directed towards confirming the necessity for there to be real consent.
[41] It would have been easy for the legislature to have created an offence similar to those found in NSW, Victoria and Western Australia to which reference has been made. Consent is irrelevant to those offences. That was not the approach taken in this Territory. Consensual sexual acts between an individual and another with respect to whom he or she has a position of authority or trust is lawful, except where consent to those acts is caused by abuse of the position of authority or trust. Section 92P (1)(h) requires a casual connection between abuse of the position of trust or authority and consent to sexual acts. This strongly suggests that the nature of the abuse intended by the legislature must be such as to deprive apparent consent of any reality.
[42] I will venture an example. The fact that an individual occupies a position of authority, such as a teacher, may make that person attractive to a student, and may cause the student to consent to a sexual act with their teacher. In that case the complainant’s consent to the sexual act may be said to have been caused by the teacher’s position of authority. Undoubtedly, many in the community would consider participation in such an act on the part of the teacher inappropriate and may also refer to it as an abuse of his or her position, but s 92P(l)(h) would not operate so as to potentially make the act criminal. On the other hand, if the teacher offered to give the student an unwarranted higher grade, or threatened to give an unwarranted lower grade in order to induce the student to consent to a sexual act, this would constitute abuse of the teachers position of authority over the student.
…
[44] On the facts outlined in the tendency notice I can see no merit in the proposition that the proposed tendency evidence is relevant to determining whether the accused abused his position, as that word is properly understood in s 92P(1)(h), such that any apparent consent is negated by that provision. In the example that I gave earlier, many people would consider that a teacher who had sexual relations with their student (albeit one over the age of consent) was abusing their position of trust. When used in this sense, abuse connotes a moral judgment, the formation of which is not dependent upon the issues of the capacity of the student to consent or the reality of that consent. Such a judgment would provide a very uncertain foundation for criminal liability.
[45] I do not think that the legislature intended the word “abuse” to be construed in this way. The nature of the abuse intended is such as to deprive any ostensible consent of any force or value, such as some threat or inducement which the accused is capable of carrying into effect because of his position of authority or trust.
[46] Whether the facts as set out in the tendency notice support a finding that the accused was in a position of authority or trust with respect to the complainants is debatable. But on those facts there could be no finding that the accused abused any such position, in the sense that he did some act connected with his position calculated to deprive the apparent consent of the complainants of any reality. It is not suggested, for example, that if he had any power over selection of players within the club or in representative teams (which is not clearly alleged in the notice), he induced the complainants to engage in sexual acts by offering to ensure their selection, or threatening to block their selection, as the case may be.
These passages reveal that his Honour misinterpreted what was required by s 92P(1)(h) and so asked himself the wrong question. The relevant question under s 92P(1)(h) was not whether the facts set out in the tendency notice could lead to a finding that “the accused did an act connected with his position of authority or trust calculated to deprive the apparent consent of the complainants of any reality”. The relevant question was whether the facts set out in the notice could lead to a finding that the accused abused his position by engaging in sexual acts with the complainants. To “abuse” a position means no more than to misuse it, in other words, to use it for an improper purpose. His Honour’s conclusion that something more is required is incorrect.
After his Honour’s judgment was published, this Court published its judgment in Gillard v The Queen [2013] ACTCA 17 (“Gillard”). In that case his Honour’s interpretation of the meaning of abuse in the context of para (h) was emphatically rejected. Mr Archer, who appeared for the appellant in Gillard and who appears for the accused in the present case, argued that for consent to be negated by an abuse of trust an accused had to have done something in reliance on the relationship beyond simply engaging in sexual activity, such as by offering a threat or a bribe: Gillard at [88], [91]. The Court held at [93]:
We accept that a threat or a bribe relevant to the relationship concerned would be likely to constitute an abuse of authority or trust placed in an accused. We also consider that an explicit reminder to a complainant about the nature of that relationship would be likely to support a claim that an apparent consent to sexual activity was obtained through an abuse of the position of authority or trust. However, we are not satisfied that s 67(1)(h) requires anything in the nature of an explicit invoking of the relationship in order that an abuse for the purposes of that provision can be made out. We see no reason why the abuse may not be implied in the exchanges between the parties, or simply implicit in the relationship, especially where it has been the basis for prior sexual activity of a similar kind. It will depend in each case on the particular facts and the circumstances in which the act is committed. Whether an accused was in a position of authority or trust, and whether any particular “consent” was obtained through an abuse of that position, are questions of fact that are properly left to a jury.
It necessarily follows from the judgment in Gillard, as Mr Archer accepted, that in the present case the trial judge’s decision that the evidence was irrelevant was reached by an erroneous interpretation of s 92P(1)(h) or, put another way, by the application of the wrong legal test.
When the correct test is applied, it can be seen that the evidence was relevant. The Crown seeks to establish a pattern or a modus operandi of the accused using his position as a coach and/or mentor as a means of facilitating sexual contact with adolescent males. Cf. R v Fletcher (2005) 156 A Crim R 308. In relation to any one of the charges, it is open to a jury to conclude that the accused abused his position of authority or trust as a cricket coach and/or mentor by using the position as a means to ingratiate himself with young men for the purpose of gratifying his sexual appetite. Logically, if he behaved in such a way for the alleged purpose in relation to one complainant, it is likely that, if he behaved in the same way or “a strikingly similar way” (to use the old terminology) in similar circumstances in relation to another, that he did so for the same purpose. Thus, evidence in one case that he behaved in the ways set out in the tendency notice could rationally affect the assessment of the probability that he did so in the other cases.
Still, the accused opposed the grant of leave, pointing to the longstanding policy against fragmentation of criminal proceedings. In this case, however, the trial has not begun. Even so, if this were merely an attempt to appeal from a preliminary ruling on the admissibility of evidence, the application might be fraught with difficulty, not least because a ruling on evidence is not an interlocutory order (see, for example, Dao v The Queen (2011) 81 NSWLR 568 (“Dao”) at 583 [74]). But, as in Dao, this is not merely a complaint about a ruling on the admissibility of evidence. That is because the agreement between the parties means that, in both form and effect, this is also a complaint about an order for separate trials.
Nevertheless, the application concerns an interlocutory judgment on a matter of practice and procedure. Restraint is called for. A court would not interfere with such a decision absent a clear error of principle coupled with “the possibility or likelihood of substantial injustice”: In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Proprietary Limited v Philip Morris Inc (1981) 148 CLR 170 at 177; Dao at 584 [76].
It is true, as the accused emphasised, that the jurisdiction to intervene in criminal proceedings is an exceptional one. It is important, however, to understand what is meant by exceptional in this context. In McNamara v R (1978) 20 ALR 98 (a case in which leave was sought to appeal a decision to refuse to grant separate trials after the trial had begun) Brennan J (with whom Deane and Toohey JJ agreed) explained at 99:
The jurisdiction is not sterile, but it should be exercised for the purpose for which the jurisdiction is conferred: to ensure that justice is done in the conduct of criminal trials. That purpose is not achieved by intervening in the conduct of a criminal trial unless it appears that intervention is necessary to prevent a miscarriage of justice.
Intervention is not necessary to ensure the elimination of a mere possibility of improper prejudice at a trial; and that for two reasons. First, in the event of conviction, relief by way of appeal is available, when it can be shown that the possibility has become a reality in the course of the trial; and second, the securing of a fair trial is a duty which a trial judge performs by the making of orders which are, in a sense, reciprocal, and which oftentimes cannot be considered in isolation. Thus, the possibility of improper prejudice in the course of a joint trial may be eliminated by rulings on evidence, by the terms of the judge’s directions to the jury, and perhaps, by other means as the trial progresses.
These considerations lead me to regard the jurisdiction now invoked as exceptional; that is to say, it is a jurisdiction which should not be exercised unless it appears that the order appealed from will effect an injustice, and that the injustice can be avoided by the intervention of this court.
This is a case where the order appealed from was admittedly affected by a manifest error of law. If the error were allowed to stand, probative evidence of guilt might be excluded for an improper reason and the error could not be corrected on appeal were the accused to be acquitted. In all these circumstances, the intervention of this Court is necessary in order to avoid an injustice.
The accused also submitted that leave to appeal should not be granted because no question of general importance would be resolved by an appeal, the relevant question having been answered in Gillard. This is a largely opportunistic submission, as the judgment in Gillard was published while the Crown’s application in the present case was pending. In any event, it is an insufficient reason not to grant leave in the circumstances.
The accused contended that the joinder of the charges in the one indictment would not assist the Crown in any permissible way in proving the issue of lack of consent, relying on the High Court’s decision in Phillips v R (2006) 225 CLR 303 (“Phillips”). In that case the Court held that evidence that five complainants did not consent could not rationally affect the assessment of the probability that a sixth complainant did not also consent. The tendency evidence in the present case does ultimately bear on the question of absence of consent, but the purpose of the tender is not to prove that the complainants did not consent. Rather, the purpose of the tender is to prove that the accused procured their consent by abusing their trust or his authority. Phillips is distinguishable. It was not concerned with whether consent was negated by the accused’s abuse of a position of authority or trust.
The application to call coincidence evidence
In its notice the Crown identified the following similarities between the events and circumstances surrounding the charges to show the unlikelihood that the events occurred coincidentally:
(a)In relation to all complainants, the accused developed a relationship with them in his capacity as a cricket coach;
(b)In relation to all complainants, the accused provided private cricket training;
(c)In relation to complainants J, M and A, private cricket training was provided at the instigation of the accused;
(d)In relation to all complainants, the accused introduced sexual topics;
(e)In relation to all complainants, the accused engaged in touching or asked them to remove clothing and related these actions to cricket training;
(f)In relation to all complainants, the accused committed sexual acts upon them when they were aged between 15 and 18 years;
(g)In relation to all complainants, the accused engaged in sexual activity with them by touching their penis or masturbating them;
(h)In relation to complainants T and J, the accused bought the complainants gifts or treated them;
(i)In relation to the complainants T and J, sexual acts by the accused progressed to fellatio; and
(j)In relation to events in Charges 2, 6 and 8, the accused exposed the complainants to pornography.
Coincidence evidence is evidence which relies on the improbability of two or more events occurring coincidentally. Section 98 of the Evidence Act imposes the same restrictions on admissibility of this evidence as s 97. Section 101(2) also applies. Once again, however, the only question his Honour considered was relevance and the same error infected his Honour’s reasoning on this question as on the question of tendency evidence. His Honour dismissed the Crown’s application because of his mistaken view about the meaning of “abuse” in s 92P(1)(h). For this reason the decision to refuse the application to lead coincidence evidence should also be set aside.
The question of discretion
The accused submitted that, despite his Honour’s errors, the Court should not disturb the orders because the same decision would be made in any event. We are not satisfied that this is so. The accused contended, in effect, that the evidence about whether he was in a position of authority or trust was tenuous in the cases of four of the five complainants because in those cases the complainants did not state that they regarded the accused as having authority over them or that they trusted him. He pointed to evidence in one case that the sexual activity occurred during the off-season and in others that the accused did not coach the relevant complainant’s team but provided private tuition, sometimes at the request of that complainant. None of these matters is persuasive.
Any failure by the complainants to positively assert that they regarded the accused as having authority over them or that they reposed their trust in him seems to us to be immaterial. Whether the relevant relationship exists, may be inferred from the evidence. A relationship between a child care worker and a toddler in his or her care, for example, is no less a relationship of trust because the toddler is unable to recognise or articulate that it is. The question of whether the accused was in a position of authority or trust is to be determined objectively having regard, amongst other things, to the circumstances in which the relationships were established. In any case, the premise for the contention that the complainants did not regard the accused as holding a position of authority or trust is false. Of the remaining four complainants one (P) states:
At that time I trusted Ian as a coach that could help me obtain my cricketing goals. The fact that Ian had been a junior ACT Representative coach with a great reputation within the ACT cricketing community and the fact that he had played for Queensland and toured England made me trust him.
Another (A) recites:
Throughout my cricket career Kingie was either coach, selector or generally involved in cricketing. Before this happened I trusted him as a cricket coach and I looked up to him… At the time Kingie was my coach and I found his persuasive manner and size was intimidating. I did not feel that I could say no to him.
In a third (M), Mr Archer conceded that it was open to a jury to conclude that at the relevant time the accused was a coach to the complainant or offered himself to him as a coach.
The evidence the Crown wants to lead is capable of persuading a jury that at the time the accused engaged in the conduct with each complainant, he was in a position of trust, if not authority, and that he abused that trust or his position. Whether the evidence has significant probative value sufficient to substantially outweigh any prejudicial effect on the accused is another question, but that is a matter for the trial judge.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 20 May 2013
Counsel for the Appellant: Mr J White
Solicitor for the Appellant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr K Archer
Solicitor for the Respondent: Aboriginal Legal Service (NSW/ACT) Limited
Date of hearing: 29 April 2013
Date of judgment: 20 May 2013
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