The Queen v Lake (No 2) - [2021] NTSC 67

CITATION:The Queen v Lake (No 2) [2021] NTSC 67
PARTIES:THE QUEEN

v
LAKE, Michael Robert

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21135811
DELIVERED:  1 September 2021
HEARING DATE:  30 August 2021
JUDGMENT OF:  Kelly J

CATCHWORDS:
CRIMINAL LAW – PRACTICE AND PROCEDURE – application to sever counts on the indictment – Criminal Code s 341A – presumption in favour of joint trials of sexual offences – evidence on all counts cross-admissible – application refused
EVIDENCE – Evidence (National Uniform Legislation) Act ss 97, 97A and 101(2) – whether evidence of charged acts and uncharged acts admissible as tendency evidence – some charged acts are child sexual offences, others not – held – evidence of all charged and uncharged acts has significant probative value in relation to all charges – probative value outweighs any danger of unfair prejudice to the accused – evidence admitted as tendency evidence
EVIDENCE – evidence of charged and uncharged acts admitted as context or relationship evidence – relevant to credit of complainant – relevant to credit of accused
EVIDENCE – Evidence (National Uniform Legislation) Act ss 98 and 101(2) – complainant told police that accused had taken sexually explicit photographs of her – complainant’s mother found sexually explicit photographs of complainant in possession of the accused years later – highly unlikely that these two facts would occur by coincidence – held – evidence has significant probative value – probative value outweighs any danger of unfair prejudice to the accused – evidence admitted as coincidence evidence
Criminal Code 1983 (NT) s 341A
Evidence (National Uniform Legislation) Act 2011 (NT) s 97, s 97A, s 98, s 101
Sexual Offences (Evidence and Procedure) Act1983 (NT) s 3
Barr v The Queen [2004] NTCCA 1; 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] HCA 52; Nguyen v The Queen [2020] HCA 23; The Queen v AW [2018] NTSC 29; The Queen v JRW [2014] NTSC 52; The Queen v JRW [2014] NTSC 52; The Queen v ML [2019] NTSC 56; R v Grant [2016] NTSC 54; R v Lisoff [1999] NSWCCA 364, referred to
REPRESENTATION:
Counsel:
Crown:V Engel
Accused:P Bellach
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:
Judgment category classification:    B
Judgment ID Number:  Kel2116
Number of pages:  29

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Lake (No 2) [2021] NTSC 67
No. 21135811

BETWEEN:

THE QUEEN

Crown

AND:

MICHAEL ROBERT LAKE

Accused

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 1 September 2021)

The accused is charged with 11 counts of sexual offences against his step-daughter, KW, between 2006 and 2010 when she was aged between 13 and 18. (Five of those counts are charged in the alternative).
The Crown allegations against the accused are, in summary, that between the ages of 13 and 18, the accused would sexually abuse KW on a regular basis touching and licking her vagina and taking sexually explicit photographs of her. When KW was about 13 or 14, she told her mother that the accused had been “touching her” and taking photographs of her “rude parts”. However, following her mother’s reaction (including her mother telling her that the allegation would destroy the family) KW withdrew the allegation and said that she had been lying. It is alleged that the abuse continued until KW was 18, often in the main bedroom of the family home, and that from time to time the accused would pick KW up from school before school ended and take her home to perform these assaults.
The final occasion was on 6 October 2010. It is alleged that on that date KW went back to the family home with the accused, and that the accused performed oral sex on KW in the usual way. He also took sexualised photographs of her.
On that occasion, it is alleged, the two were arguing. KW became distressed and was crying. She threatened to tell her mum and the police about what had been happening. The accused made verbal threats against KW and then grabbed her by the throat and further assaulted her. That day, after encouragement from a friend, KW reported to police the abuse that had occurred that day and over the preceding years. During her disclosures, she gave police the pair of blue underpants she had been wearing that day and told police that on every occasion when the accused had assaulted her over the years, he had something like a hand towel between his legs or in front of his knees on which she had sometimes observed semen afterwards. (Police located a maroon coloured hand towel similar to that described by KW when they searched the house after KW’s disclosures. Subsequent forensic analysis revealed what was statistically likely to be the accused’s DNA on the underpants.)
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 and notice under UEA s 98 of its intention to adduce coincidence evidence. The Crown intend to rely on the same evidence as context evidence.
Defence counsel has objected to the tendency evidence, coincidence evidence and context evidence. The defence has also objected to the Crown tendering some indecent photographs of KW taken by the accused in the six months after she turned 18; to evidence of a pretext phone call made to the accused by KW’s mother; and to evidence of a Valentine’s Day card the accused sent to KW in February 2010, when KW was 17.
Severance application
The defence has applied to sever counts 1 to 4 on the indictment from counts 5 to 11, on the ground that counts 1 to 4 are child sexual offences, alleged to have been committed before KW turned 16, and counts 5 to 11 are not. Counts 5 to 11 are alleged to have been committed when KW was 16 to 18 years old. (All 11 counts are alleged to have been committed when the accused was still in a domestic relationship with KW’s mother, KW was still at school and under the parental authority of the accused as her step-father, though by the time of the last counts she was living with her father and simply spending time with her mother and step-father.)
Section 341(1) and (1A) of the Criminal Code 1983 (NT) provides:
(1)   Where before a trial or at any time during a trial the court is of opinion that the accused person may be prejudiced or embarrassed in his defence by reason of his being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any offence or offences charged in an indictment the court may order a separate trial of any count or counts in the indictment.
(1A) Subsection (1) applies subject to section 341A.
Section 341A 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.[1]
The presumption in s 341A is rebuttable and, although the presumption is not rebutted merely because the evidence in one charge is admissible on another charge, whether the evidence is cross-admissible is a relevant factor in determining whether to order separate trials. If the evidence on the various charges is cross-admissible, that is a factor that points strongly to the conclusion that the charges should be tried together. As Grant CJ said in The Queen v AW:[2]
The dominant consideration remains ensuring that the accused is not deprived by prejudice of a fair trial. 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”.
The evidence in relation to the various charges on the indictment could be cross-admissible on a tendency or coincidence basis, as context evidence, or because it is relevant on another basis.
One clear basis on which the evidence on counts 1 to 4 is relevant to counts 5 to 11 is in relation to the issue of consent. Defence counsel has said that there will not be any dispute that some form of sexual activity occurred between the accused and KW after she turned 16. The sexualised photographs of KW taken by the accused and which also feature the accused’s hand/s and penis, make that obvious. The accused also admitted in the pretext phone call that he had taken those photographs. There was also an ambiguous admission to some form of sexual contact – although the accused said it was all consensual.
In her interview with police, KW said that the sexual activity that day (6 October 2010) was non-consensual but she didn’t know how to stop it.[3] She said:
I tried, I did try to leave and get away from it when I was 16, and I moved out of home to Victoria and lived there for a year, but I ended up having to come back because of school ... and other stuff and I knew that it would start happening again, and it makes me feel really disgusting, helpless when he threatens me like I can’t do anything to stop it, so I just have to go along with it, makes me feel so dirty and disgusting. It just makes me … like … believe all the shit that he tells me and I’ve known him since I was a kid you know so, it’s so hard.
KW also gave evidence about physical abuse – beatings and harsh physical punishments meted out by the accused to her and her brother when they were children. She said the beatings and punishments started to slow down as the sexual abuse increased.
KW said that when the accused first started sexually assaulting her, she didn’t know it was wrong.
He made it seem like this is what you do. Like sexual things. That it was OK to do these things with him. That it was OK him showing me his penis.[4]
A number of times she described things the accused did and said, “He made it all seem so normal but told me not to tell anyone about it and that it was our secret.”[5] She said she only found out later, when they had sex education lessons at school, that this behaviour wasn’t right and that he shouldn’t be doing those things to her. It made her feel really disgusting.
In describing some of the abuse, KW described it as “the same thing, the same routine”. She said:
He would either say to me, “You know the drill, let’s go,” or tell me to take my pants off. On this occasion I can’t recall exactly the way he asked me. I have blocked out so much and it happened so often.[6]
…

I felt I had no option but to do what he said. It had been going on for so long now and I believed the threats to be real and that I had no alternative.[7]

She described fearing being beaten if she did not comply and also threats to kill her and her family if she told anyone.
Without this evidence of continued sexual abuse, physical beatings and threats over the years since KW was about 12, the jury would be asked to assess the evidence of the later counts, in which defence counsel will say the defence case is that KW consented, in a vacuum. They would be deprived of knowledge of the context in which the later sexual activity, after KW turned 16, took place. The evidence of the prior alleged sexual abuse – the evidence of counts 1 to 4 – is highly relevant to that key issue of consent on counts 5 to 11.
At the hearing of the voir dire, defence counsel conceded that the evidence of counts 1 to 4 had “some relevance” to the consent issue on counts 5 to 11. However, defence counsel argued that the converse is not true and that the evidence on counts 5 to 11, which are alleged to have occurred when KW was 16 to 18, are not relevant and so not admissible in relation to the earlier counts, 1 to 4, when she was 13 to 15.
Tendency evidence
The Crown contends that the evidence of the later offences is relevant to the earlier counts on the basis of the tendency notice.
The tendency notice advises that the tendencies sought to be proved are the tendency of the accused:
(a)to have a particular state of mind, namely:
(i)   a sexual interest in his step-daughter, KW,
(ii)     an infatuation with his step-daughter, KW.
(b)to act in a particular way, namely:
(i)   to give effect to his sexual interest in his step-daughter, KW by engaging in sexual activity with her;
(ii)     to engage in sexual activity with KW in the following way:
·in family home or residence,
·creating opportunities such as taking her out of school,
·by performing cunnilingus on her,
·using a hand towel to ejaculate into, and
·by taking sexualised images of her.
(iii)   to take sexually explicit photographs of his step-daughter, KW,
(iv)   to retain sexually explicit photographs of his step-daughter, KW,
(v)     to threaten to share sexually explicit photographs of his step-daughter, KW, to ensure compliance,
(vi)   to use threats of violence, and violence to ensure compliance from his step-daughter, KW.
The conduct about which evidence is sought to be adduced is set out in a table in the tendency notice. Essentially, it is the conduct the subject of the current charges as well as some similar, uncharged acts that are said to have occurred when the family was living in Brisbane and three additional matters: sending a Valentine’s Day card in February 2010; infatuated conduct and possessiveness in 2007; and keeping a pair of the complainant’s underpants in a toolbox together with pornography magazines.
The tendency evidence is said to be relevant to:
(a)the nature of the relationship between the complainant and the accused;
(b)whether the accused had a sexual interest in the complainant;
(c)whether the accused was engaged in a sexual relationship with the complainant;
(d)whether the accused took sexualised images of the complainant; and
(e)whether the accused committed the charged acts.
The defence objects to this evidence being adduced as tendency evidence.
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.
Under UEA s 97A, in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute a child sexual offence is a fact in issue, evidence that the defendant had a sexual interest in a child or children (including the complainant) is presumed to have significant probative value for the purposes of ss 97(1) and 101(2). Counts 1 to 4 on the indictment are child sexual offences within the meaning of s 97A: counts 5 to 11 are not. Further, the uncharged acts which are alleged to have occurred in Brisbane fall within the definition of child sexual offences.
There is no dispute about the adequacy of the notice. The question, therefore, is whether the evidence set out in the tendency notice has significant probative value in relation to the issues specified in the notice. 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:[8]
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:[9]
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.
Pursuant to UEA s 97A, the evidence in relation to each of counts 1 to 4 is presumed to have significant probative value in relation to each of the other of those counts,[10] and the uncharged acts is presumed to have significant probative value in relation to those charges, subject to the court’s discretion to decide otherwise.[11] It has not been contended that there is a basis for deciding that such evidence does not have significant probative value in relation to those counts.
In relation to counts 5 to 11, 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.[12] Nor is it permissible to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination.[13]
In my view, on the assumption that the jury accepts the evidence, the evidence set out in the tendency notice strongly supports proof of a tendency in the accused to have a sexual interest in KW which he was prepared to act upon; to engage in the sexual activities with KW listed in the tendency notice; to take and retain sexually explicit photographs of her; and to use threats of violence to ensure compliance. Other than three items of evidence – sending a Valentine’s Day card in February 2010; infatuated conduct and possessiveness in 2007; and keeping a pair of the complainant’s underpants in a toolbox together with pornography magazines – the evidence in the tendency notice consists of specific instances of such conduct and is strongly probative of the existence of the specified tendencies.
Further, those tendencies (other than the tendency to have the state of mind of infatuation with KW), if established, significantly increase the likelihood that the accused had that state of mind and acted on it at the times relevant to all of the charges on the indictment – i.e. that he committed the offences with which he is charged.

Defence counsel contended that the evidence in relation to counts 5 to 11 does not have significant probative value in relation to counts 1 to 4 – the child sexual offences. He contended that there is a significant difference between someone having a sexual interest in a 16 or 18 year old and being prepared to act on it, and having the same tendency towards a child under the age of 16 when that conduct is unlawful. Defence counsel relied heavily on a ruling by the trial judge in an earlier trial of this matter in which the jury had to be discharged. In that ruling, the trial judge said:[14]
In my view the items of evidence set out in the table at paragraph 5 of the Tendency Notice, which include a series of uncharged acts before KW turned 16, strongly supports the tendency sought to be proved. Although it is a closely run argument, I am not satisfied the sexual activity between the accused and the complainant after the complainant turned 16 possesses the significant probative value required. Alternatively, if it does properly meet the threshold for admissible tendency evidence, it should in any event be excluded under s 101(2) of the UEA.
…
The alleged sexual misconduct is demonstrative of sexual interest. It was alleged to have occurred in the immediate prior period, at the most one to two years before the offending covered in the period contained in the indictment. It covers multiple acts of a similar character to those alleged in the charges. The probative value of the evidence was not weakened by virtue of any claim of remoteness from the facts in issue. The evidence outlined in the Tendency Notice, save for the last item of misconduct by taking indecent photos between 17 May 2010 and 6 October 2010, will be admitted as tendency evidence. The probative value of the evidence substantially outweighs its prejudicial effect in the relevant sense. I would not exclude the evidence under s 101(2) of the UEA.
The evidence admitted as tendency evidence may also be used as context evidence and relationship evidence as some evidence of how the relationship between the complainant and the accused was conducted at the time, and to allow KW to give a complete account.
The Crown also sought to lead evidence of a continuing sexual relationship between the accused and the complainant after the complainant turned 16. The last item of evidence in paragraph 5 of the Tendency Notice, taking indecent photographs of the complainant, occurred when the complainant was 18. The Crown argues that the conduct towards the complainant shares distinct similarities to conduct that forms part of the charged acts, namely similar sexual conduct as well as taking photos of the complainant for the accused’s sexual gratification. The Crown submits the evidence, especially given the existence of indecent photographs, is highly probative of the accused’s sexual interest in the complainant. Further, that it demonstrates an ongoing sexual interest which is accompanied by a willingness to act on the sexual interest. The evidence therefore has the capacity when taken with the other evidence to prove the charges and rebut any defence case based on a denial on the part of the accused of ever having a sexual interest in the complainant and/or of the complainant fabricating the allegations.
At the age of 17, the evidence suggests KW moved to Victoria with her boyfriend’s family. Both before she left and after her return to Darwin it is alleged the accused continued to engage in sexual activity with her. As the complainant had turned 16, the charge of maintaining a sexual relationship with a child, or offences defined by reference to the age of consent, were irrelevant. It is not suggested on the Crown case that the sexual activity between the accused and KW after KW turned 16 was non-consensual. It may be put that KW acquiesced in a sexual activity with the accused after being groomed for many years previously. While I agree the proposed evidence is evidence capable of at least in part proving the tendency alleged, I am not satisfied the post-offending conduct after the complainant turned 16 possesses significant probative value with respect to the charged acts.
…
Although the sexual activity between the accused and the complainant after the complainant turned 16 may assist in proving sexual interest on the part of the accused at around that age, the inference to be drawn is far weaker in respect of the offending that is alleged when the complainant was 14 or 15 years of age, or younger. Although aspects of IMM v The Queen (“IMM”) have been largely qualified by Bauer, the temporal nexus between the acts comprising the tendency and the charged acts is still a relevant factor with which to assess the strength of the proposed tendency evidence. In IMM, it was considered that one uncharged act, remote in time and of a different gravity could not support the tendency alleged. It may be remembered the uncharged act in IMM took place ‘towards or at the end of the offending period’. Here, the alleged tendency is outside the period of the charged conduct; in some instances, two years after the last of the charged conduct. Aside from the complainant being interstate for a period of months, which in the circumstances may be considered a neutral factor, there is evidence of an ongoing sexual interest and preparedness to act on it after the complainant turned 16. While this may be considered a factor favouring reception of the evidence, there are difficulties in my view with respect to determining how far back proper inferences can be drawn from the later conduct in proof of the charged acts.
Although it is not necessary for the acts comprising the alleged tendency to be criminal acts, the fact that there has been consensual sexual activity between the complainant and the accused for up to two years does in my view change the quality or character of the proposed evidence. Even though it may well be, as the Crown submits, that the complainant acquiesced in the activity, there is a sharp distinction between a person being prepared to act on their sexual interest when the object of their interest is under 16 as against when they are lawfully able to consent or are an adult.
As can be seen from the extract quoted above, the ruling made at the first trial was based on an assumption, then made by all parties for the purposes of the trial (including the voir dire) that the sexual activity between the accused and KW after KW turned 16 was consensual. Hence, the “sharp distinction” drawn “between a person being prepared to act on their sexual interest when the object of their interest is under 16 as against when they are lawfully able to consent or are an adult”.
Circumstances have materially changed since the first trial judge made that ruling. First and foremost, a fresh indictment has been filed which includes counts 5 to 11 – the conduct after KW turned 16 – alleging that the sexual activity was non-consensual and, hence, unlawful. That erodes considerably the basis for any such “sharp distinction”. It is not nearly such a long bow to draw to suggest that a person who has a demonstrated tendency to engage in unlawful sexual activities with their step-daughter aged 16 to 18 might have been prepared to do so when she was 13 to 15.
Secondly, the tendency notice has been redrafted to make it much more detailed and specific, emphasising the continuing nature of the conduct complained of, including the modus operandi: picking KW up from school or otherwise being in the house alone during the day; the place in which the abuse took place; the form of the abuse (cunnilingus); the use of the hand towel; the taking of sexualised images; and the threats to ensure compliance and silence. Counsel for the Crown submitted that the greater specificity of the alleged tendencies increases the probative value of the evidence. She pointed out that in McPhillamy v The Queen,[15] the alleged tendency was held to have been improperly admitted at least partly because it was expressed with a high level of generality.[16] (In that case it was unnecessary to decide whether a tendency described with greater specificity and detail would have had significant probative value because that was not the case at trial.[17]) I agree that in this case, the greater specificity of the tendencies described in the tendency notice as compared to the tendency notice in the first trial adds significantly to the probative value of the evidence of the post age 16 conduct in relation to the child sexual offences in counts 1 to 4, in particular by emphasising the continuing nature of the conduct by reason of the similarity in the details of the alleged offending throughout the period when the abuse is said to have occurred. In my view, the evidence in relation to the post age 16 conduct does have significant probative value in relation to counts 1 to 4.
In relation to the tendency evidence consisting of evidence of the charged conduct, including the photographs, and the uncharged acts in Brisbane, I am satisfied that the threshold test in s 97 has been met. That evidence does have significant probative value in relation to all of the charges on the indictment.
Dealing with the three different pieces of evidence in the tendency notice, in my view, the evidence of keeping KW’s underpants in a toolbox with pornographic magazines is also capable of supporting the pleaded tendencies – specifically the tendency to have a sexual interest in KW. And, as already explained, that tendency does significantly increase the likelihood that the accused committed the charged offences.
I also consider that KW’s evidence that the accused engaged in infatuated conduct and possessiveness in 2007 is capable of supporting the pleaded tendency to have a state of mind of an infatuation with KW. The evidence of the Valentine’s Day card sent in 2010 is likewise capable of supporting the pleaded tendency – albeit not strongly.
However, I do not think that a tendency to have a state of mind of infatuation with KW significantly increases the likelihood that the accused committed the charged offences. It may do so to a slight degree, but such a state of mind is qualitatively different from the state of mind of having a sexual interest in KW which clearly and obviously makes it more likely that he acted on that interest by committing the charged offences. I do not think that the evidence of the Valentine’s Day card and the infatuated conduct and possessiveness in 2007 has significant probative value in relation to the charges on the indictment.
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 outweighs the danger of unfair prejudice to the defendant. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the defendant. Recent amendments to the UEA have changed the test under s 101(2): no longer is the requirement for admissibility that the probative value of the evidence substantially outweigh its prejudicial effect; it need only outweigh the danger of unfair prejudice to the defendant.
When undertaking this balancing exercise, the dominant consideration is to ensure that the defendant is not deprived by prejudice of a fair trial.[18] 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.”[19] 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:[20]
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.
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.[21]
In this case, the defence contends that there is a real 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. Specifically, there will be no real contest that some sexual activity took place between the accused and KW after she turned 16: the issue will be whether or not KW consented. Defence counsel contends that the idea of a 38 to 40-year-old step-father having sexual relations with his school aged step-daughter, even if it not illegal, is so repugnant, so taboo, that the jury is likely to be substantially prejudiced against the accused and so give the evidence of the admitted sexual activity between 16 and 18 far greater weight than it deserves when assessing the evidence in relation to the earlier charges. In the voir dire for the first trial, the trial judge accepted a submission along those lines, saying:
If I have been in error in my assessment of this part of the proposed evidence I would in any event conclude under s 101(2) of the UEA that its probative value does not substantially outweigh any prejudicial effect. In this particular matter it is likely that the revulsion that a jury would feel when told the accused was conducting a consensual sexual relationship with his step daughter when she was 16-18 years old would be overwhelming. In my view such revulsion and a natural abhorrence to such activity could not be corrected by direction. The probative value of the proposed evidence could not be said to be so strong as to ‘substantially outweigh’ the effect such evidence would have. In my view the same evidence should not be permitted to be lead as relationship evidence. Its potential use as relationship evidence cannot be readily differentiated from tendency evidence in this particular case.[22]
Again, the landscape has changed since this ruling was made. First, the change in the nature of the charges, now that it has been alleged that the post age 16 sexual activity was not consensual, and the change in the way the tendency notice has been pleaded, emphasising the continuing nature of the accused’s activities and the similarity in the accused’s continuing modus operandi, has considerably increased the probative value of the evidence of the post age 16 offences, as explained above.
Second, the test in s 101(2) has changed: to be admissible, the probative value of the tendency evidence need only outweigh the danger of unfair prejudice to the defendant, not necessarily substantially outweigh it. Further, the evidence will be that the accused engaged in unlawful sexual activity with his step-daughter from the age of 13 to 18. Given that context, I do not think that the evidence of the unlawful sexual activity when KW was aged 16 to 18 is likely to inspire more revulsion and abhorrence than the evidence of unlawful sexual activity when she was aged 13 to 15; and the jury will be given appropriate directions which, in my view, will be sufficient to cure any such potential misuse of the evidence. The evidence set out in the tendency notice (other than the two items already excluded) satisfies the test in s 101(2) in relation to all of the counts on the indictment. The evidence has substantial probative value which outweighs any danger of unfair prejudice to the accused.
Context evidence
The same evidence is relevant and admissible as context and relationship evidence. Grant CJ said in R v Grant:[23]
In order for “relationship” evidence to be relevant it must be shown that the evidence would make the complainant’s version of the particular incident subject to the charge more capable of belief when seen in the context of the relationship.
As explained at [11] to [17] above, the evidence on counts 1 to 4 (as well as the evidence of the uncharged acts in Brisbane when KW was under 16) are relevant to the issue of consent in counts 5 to 11.
Further, the evidence of all of the charges and the uncharged acts is relevant to KW’s credit, to explain why she did not complain at an earlier time – and why, having complained at age 13 and recanted, she did not re-state her complaint. KW’s evidence includes evidence of early “normalisation” of the abuse; injunctions not to tell or there would be “consequences”; beatings inflicted as punishment for bad behaviour; her fear that she would be beaten if she failed to comply or if she told; and specific threats said to have been made by the accused. All of this provides context for the jury to assess submissions which may be made by the defence as to inferences they should draw from KW’s failure to complain of the abuse at an earlier time.
Matters specific to the photographs
KW’s evidence is that the accused took numerous explicitly sexualised photographs of her over the years including photographs of himself sexually abusing her. Both KW and her mother have given statements to the effect that when KW was about 13, she complained to her mother that KW had touched her and that he had taken photographs of her “rude parts” – but withdrew the allegations after experiencing her mother’s reaction.
The accused took part in an electronically recorded interview with police on 7 October 2010, at which time he denied he had ever taken naked photographs of KW. In that interview the accused denied that he had sexually abused KW and accused KW of stealing, lying, being uncontrollable and enjoying upsetting people, being “the worst attention seeker”, partying, wagging school, drinking and doing drugs, being rude and having no boundaries. He said that she was “a compulsive liar” – “a pathological liar”. He accused her of having made false allegations of sexual misconduct against him twice in the past. The recording of that interview will be played to the jury.
In mid-2015, KW’s mother found a folder in the accused’s backpack in which there were naked photographs of KW and photographs of KW’s genitals with the accused’s hands and penis in various positions. These were taken in the main bedroom of the home shared by the accused and KW’s mother, the place where KW said much of the abuse had taken place. She took these to the police in 2016. It has subsequently been ascertained, from the fact that the photographs show a tattoo that KW got on her 18^th birthday, that these photographs were taken in the six months after KW turned 18 (between KW’s birthday in May 2010 and 6 October 2010, the day KW reported the alleged offences to the police).
The defence has objected to these photographs being adduced in evidence as tendency evidence, coincidence evidence or otherwise.
The Crown has served a coincidence evidence notice pursuant to UEA s 98. Section 98 provides that evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally, unless the party seeking to adduce the evidence gives reasonable notice to the other party and the court thinks the evidence will have significant probative value. There is no objection to the adequacy of the notice.

The two or more events of which evidence will be adduced, and which it is said are unlikely to have occurred co-incidentally are:
(a)that in 2015, KW’s mother found 17 printed sexualised photographs of KW in the accused’s possession; and
(b)that on 6 October 2010, KW disclosed to police that the accused had been taking sexualised photographs of her since about 2006.
Defence counsel objects that the photographs are not relevant and so are not admissible in relation to counts 5 to 11 because there will be no contest that some sexual activity took place between the accused and KW after she turned 16: the only issue will be consent, and the photographs are not relevant to that issue. The Crown contended that while there may have been something in this submission if the facts of counts 5 to 11 had been formally admitted, other than lack of consent, that is not the case; the Crown is obliged to prove all of the elements of each of the charged offences. I agree.
It remains to be ascertained whether the photographs should be admitted as coincidence evidence in relation to all of the charges on the indictment.
In my view, the photographs, in conjunction with the other evidence referred to above, are highly probative as coincidence evidence on the question of KW’s credit. KW told her mother when she was 13 that the accused had touched her and had taken photographs of her rude parts – and then retracted that accusation on being confronted by her mother’s reaction. Later, on 6 October 2010, KW told the police that the accused had been taking sexualised photographs of her since 2006 (and had done so that same day). Then, in 2015, her mother found naked photographs of KW being touched in a sexual way by the accused, in the accused’s backpack.
In my view, it is highly improbable that KW would tell police in 2010 that the accused had taken sexually explicit photographs of her and that, years later, sexually explicit photographs of her, taken by the accused, would be found in the accused’s backpack, if the her statement to police was untrue. It is likewise highly improbable that a 13-year-old child would tell her mother that the accused had touched her and taken photographs of her rude parts and that, years later, photographs of her genitalia being touched by the accused, taken by the accused, would be found in the accused’s backpack, if the child’s statement at age 13 was untrue. This coincidence evidence assumes a higher degree of importance given the lengths the accused went to in the 2010 interview with police to paint KW as a compulsive and pathological liar.
Defence counsel submitted that the probative value of the photographs taken at age 18 for this coincidence purpose was reduced when the jury came to assess the evidence in relation to counts 1 to 4 which are said to have occurred when KW was aged 13 to 15. I disagree. What are the odds that a 13-year-old would make up a story about her step-father taking photographs of her genitals being manipulated by the step-father and that exact thing happening many years later? The proposed coincidence evidence has significant probative values and so meets the threshold test in s 98.
Balanced against that, for the purpose of s 101(2), is the potential prejudice to the defendant arising from the natural disgust the jury may feel at the fact that the accused had taken photographs of his 18-year-old step-daughter’s genitals and give disproportionate weight to the evidence. While there may be a possibility that the jury may have a reaction of revulsion and disgust to the idea that a step-father would take such photographs, they will be given appropriate warnings, and it is to be presumed that jurors will heed such warnings.[24] In any event, I do not think that the level of disgust experienced by a jury hearing that the accused had taken such photographs of his step-daughter at age 18, is likely to be any greater (if as great) as the level of disgust they are likely to feel at the evidence to be given by KW that he did so when she was aged 13 to 17.
In my view the probative value of this evidence is very high, for the reasons outlined above, and its probative value well and truly outweighs any danger of unfair prejudice to the accused. The test in s 101(2) is satisfied.
The defence objection to the receipt of the photographs as tendency evidence is on the same basis as the objection to receipt of the other evidence in relation to counts 5 to 11 as tendency evidence. That objection has been dealt with above.
Given the accused’s denial in the police interview on 7 October 2010 that he had ever taken naked photographs of KW, in my view, the photographs are also relevant to the issue of the accused’s credit, and perhaps as Edwards lies, evidencing consciousness of guilt. (The Crown has foreshadowed relying on some of the statements made by the accused in the police interview as Edwards lies but has not specified precisely which statements will be so relied on.)
The pretext phone call
Some time after the photographs were given to the police and the investigation reopened, KW’s mother telephoned the accused in a pretext call organized by police. In that phone call, the accused admitted that he had taken the photographs of KW which KW’s mother found in 2015 and also made some other remarks which could be construed as admissions. The defence does not object to those parts of the phone call going into evidence. However, the defence has objected to those parts of the call in which the mother puts allegations to the accused and which do not result in admissions being made. Defence counsel relied on Barr v The Queen[25] to support the contention that such passages in a police interview are inadmissible and contended that the same principles would apply to a pretext phone call. These objections to the pretext phone call were not finally dealt with on the voir dire. It was agreed that counsel would liaise with a view to settling between them which parts of the pretext call would be tendered in light of Barr v The Queen and taking into account the effect, if any, of the decision of the High Court in Nguyen v The Queen[26] on that authority, and that any residual disagreement would be dealt with by the trial judge.
RULINGS:
1.The application to sever counts 1 to 4 from counts 5 to 11 is refused.
2.The evidence in the tendency notice, other than the evidence that the accused engaged in infatuated conduct and possessiveness in 2007 and the evidence of the Valentine’s Day card sent in 2010, will be admitted as tendency evidence.
3.The same evidence will be admitted as context evidence.
4.The evidence set out in the coincidence notice will be admitted as coincidence evidence.
------------------------

[1] The offences with which the accused has been charged are sexual offences. See Criminal Code s 341A(3) and s 3 of the Sexual Offences (Evidence and Procedure) Act1983 (NT).

[2] [2018] NTSC 29 at [30]

[3] CFI T13

[4] Statutory Declaration of KW dated 25 October 2010 at [25]

[5] Statutory Declaration of KW dated 25 October 2010 at [30]

[6] Statutory Declaration of KW dated 25 October 2010 at [62]

[7]Statutory Declaration of KW dated 25 October 2010 at [63]

[8][2017] HCA 20 at [16] per Kiefel CJ, Bell, Keane and Edelman JJ

[9]Ibid at [41]

[10] Section 97A(2) and (3)

[11] Section 97A(4)

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

[13] UEA s 94(4). See also IMM v The Queen (2016) 257 CLR 300 at [59]

[14] The Queen v ML [2019] NTSC 56 at [8], [14] to [17], [19] and [20]

[15] [2018] HCA 52

[16] Edelman J at [36]; the plurality at [18]

[17] Edelman J at [39]

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

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

[20] at [17]

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

[22] The Queen v ML [2019] NTSC 56 at [21]

[23] [2016] NTSC 54 at [77]

[24] The Queen v JRW [2014] NTSC 52 at [6]

[25] [2004] NTCCA 1

[26] [2020] HCA 23