The Queen v KH (No 3)
[2015] ACTSC 412
•9 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v KH (No 3) |
Citation: | [2015] ACTSC 412 |
Hearing Date: | 8 December 2015 |
DecisionDate: | 9 December 2015 |
Before: | Walmsley AJ |
Decision: | See [16], [23] and [24] |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – act of indecency upon a person above the age 10 years but under the age of 16 years – sexual intercourse with a person of or above the age of 10 years but under the age of 16 years – act of indecency upon a person under the age of 10 years – sexual intercourse with a person under the age of 10 years – criminal trial – jury EVIDENCE – Tendency evidence – context evidence – prejudice outweighed by probative value |
Legislation Cited: | s 137 of the Evidence Act 2011 (ACT) |
Cases Cited: | HML v The Queen [2008] 235 CLR 334 KTR v The Queen [2010] NSWCCA 271 MM v The Queen [2012] ACTCA 44 R v KH (No 2) [2015] ACTSC 348 R v MBO [2011] QCA 280 R v Yates [2002] NSWCCA 520 RWC v The Queen [2010] NSWCCA 332 |
Parties: | The Queen (Crown) KH (Defendant) |
Representation: | Counsel Ms S McMurray (Crown) Mr R Thomas (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) GJB Law (Defendant) | |
File Number: | SCC 7B of 2014 |
WALMSLEY AJ:
Yesterday, I heard argument on whether the Crown ought be permitted to adduce evidence of any of 11 alleged incidents as tendency evidence or context evidence.
The indictment contains 13 counts. I will summarise them by reference to Burns J's judgment of 24 November in R v KH (No 2) [2015] ACTSC 348.
There are six counts of attempting an act of indecency on LC, being a person of above the age of 10 years but under the age of 16 years, one count of engaging in sexual intercourse with LC, being a person of or above the age of 10 years but under the age of 16 years, five counts of committing an act of indecency on MC, being a person under the age of 10 years, and one count of committing an act of indecency upon KC, being a person under the age of 10 years.
There was a considerable time between when the last of the offences is said to have occurred and when police first received complaints. The 11 alleged incidents I will summarise from the document called Further Notice of Intention to Adduce Tendency Evidence. (I will refer to the mother of the complainants as QQ, as did Burns J in his decision. I will not refer otherwise to the complainants except as a son or a daughter of QQ.)
Incident one. On a date in 1991, the accused dragged QQ into the children's bedroom by the hair to show them their “slut of a mother”.
Incident two. During 1991, QQ was sleeping in her daughter's bed with a daughter. During the night, the accused turned on the light and dragged QQ out of the bed by her hair, over her daughter. He dragged her out of the room and into the other children's bedroom. He then dragged her into the master bedroom.
Incident three. During 1991, QQ was sleeping with a daughter in the daughter's bed in a bedroom with her brother. During the night the accused entered the room and dragged QQ out of the bed by the hair. He then dragged her into the other daughter's bedroom and said, "Look at your slut of a mother", before dragging her into the master bedroom.
Incident four. On a date in 1991, a daughter returned home from school to find her mother crying in the lounge room. QQ stated that she had had an argument with the accused and he had slammed her head into a wall and she had passed out. Later, QQ developed a black eye.
Incident five. Between June 1991 and May 1992, the accused brought home a hitchhiker. The accused and QQ argued that night. The hitchhiker looked in on the children. The following morning the hitchhiker left. QQ developed a black eye.
Incident six. Between 1992 and 1993, the accused and QQ were arguing. The accused grabbed QQ by the hair and dragged her through the house.
Incident seven. Between 1992 and 1993, the accused was in the lounge room with QQ's son. His pants were pulled down to his ankles and he was bent over. At some point QQ entered the lounge room and asked what was going on. The accused and QQ argued. Later that night, QQ recommenced arguing with the accused as to what he had been doing with her son in the lounge room earlier. The accused pushed QQ into the son's bedroom and onto his bed, breaking it. He then began striking QQ. Her son was present during that assault.
Incident eight. During 1992 or 1993, the accused caught one of QQ's daughters carrying jeans in her school bag to change into out of shorts the accused had insisted she wear. The accused flogged the daughter with his belt. QQ yelled at him to stop, but the accused said the daughter needed discipline.
Incident nine. During 1992 or 1993, the family attended Floriade. The accused pushed QQ's son into a pond. He then stripped him and made him walk back to the car naked.
Incident 10. During 1992 or 1993, the accused would not let QQ go to the doctor although she was covered in sores; nor would he allow her daughter to go to a doctor with her although she was very sick.
Incident 11. During 1992 or 1993, QQ went to the doctor to get some sleeping pills. When she returned, the accused argued with her for being late. When he learned she had gone to the doctor, he took the medication and threw it away. He also hit her in the face.
Tendency evidence
The tendency which is contended for by the Crown, as set out in the Notice, is as follows.
Particulars of the act and states of mind sought to be proved by the evidence are as follows:
That the accused had a tendency to have a particular state of mind, namely:
(a) to exert domination and control over the family: QQ, LC, MC and KC.
That the accused had a tendency to act in particular ways, namely:
(a) to use violence and demonstrate violence to the family to seek to control them
In my view, none of the 11 alleged incidents should be adduced as tendency evidence. All of them involve violent acts against or involving either the mother of the complainants or one of the complainants. These tendencies, if proved, are, I consider, too remote from the allegations of sexual offending and they lack the requisite probative force. Accordingly, I reject the Crown's contention that any of them ought be admitted as tendency evidence.
Context evidence
The Crown, however, also seeks to adduce evidence of those incidents as context evidence. It was argued that without evidence of that type, the jury may wonder why the mother of the complainants did not earlier complain to police or why the complainants did not earlier complain to their mother. Mr R Thomas, who appeared for the accused, submitted that I should not allow evidence in of any of the incidents. He relied on s 137 of the Evidence Act 2011 (ACT) and said that s 137 would dictate that all 11 incidents be rejected.
He submitted that any probative value of the evidence would be outweighed by the danger of unfair prejudice and it is not a case, Mr Thomas argued, where a direction by me could cure any unfairness to his client.
In my view, all 11 of the incidents show violence on the accused's part and I am satisfied that he would suffer prejudice if evidence of them is allowed. But the evidence is, I think, highly probative. I can see the evidence provides or may provide cogent reason for delays in complaining about the accused's conduct.
Evidence of violence, when it is relevant to explain delay, may be adduced: KTR v The Queen [2010] NSWCCA 271 at [99]. There it was said that evidence of violence perpetrated against the complainant was relevant because it provided a realistic context in which to understand the complainant's evidence. This evidence, or evidence of this type, it was said, may go into evidence in front of a jury, even if it is of violence, not to the complainants, but to someone in the presence of the complainants: KTR at [148].
I am told that the Crown will use the evidence only to explain why the complainants did not immediately complain, or did not complain earlier than they did.
The evidence, it seems to me, in reality, bears on the credibility of each complainant and their mother. Of course, the stated purpose for the evidence is not determinative of such an application.
In the course of hearing argument yesterday, I was referred to a decision of the Court of Appeal in MM v The Queen [2012] ACTCA 44. This, however, is not a case such as that one. There the evidence of the complainant did not lack plausibility on its own and did not need context evidence to make it plausible. Here, the evidence the Crown wishes to adduce may go in to explain and make plausible what a jury might otherwise consider implausible. See also HML v The Queen (2008) 235 CLR 334 and RWC v The Queen [2010] NSWCCA 332 at [122].
Without the evidence the Crown wishes to rely on, I can see the jury might have a false picture of what went on in the household when they were all living together: R v MBO [2011] QCA 280 at [65].
In relation to incident 7, as it has, what I consider to be, a sexual undertone, I consider that its probative value is outweighed by the danger of unfair prejudice to the accused and I would not accordingly permit that evidence in.
I do consider that all of the other incidents ought be admitted. I do not consider the undoubted probative value of those other aspects of conduct would be outweighed by the danger of unfair prejudice to the accused. The jury will be appropriately instructed. In that way, I am confident the jury will not adopt an illegitimate form of reasoning, or give the evidence undue weight: R v Yates [2002] NSWCCA 520 at [252].
Accordingly, I allow in the allegations in the Notice, except allegation 7.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley. Associate: Date:15 February 2016 |
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