The Queen v LM
[2017] NTSC 81
•13 November 2017
CITATION:The Queen v LM [2017] NTSC 81
PARTIES:THE QUEEN
v
LM
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21614443
DELIVERED ON: 13 November 2017
DELIVERED AT: Darwin
HEARING DATE: 19 and 20 June 2017
JUDGMENT OF: Grant CJ
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – TENDENCY EVIDENCE
Evidence of conduct on the part of the accused said to establish a tendency to have a sexual interest in young female relatives and a preparedness to act on that interest – must satisfy the requirements of ss 97 and 101 of the Evidence (National Uniform Legislation) Act 2011 (NT) (“ENULA”) – could evidence rationally affect to a significant degree the assessment of the probability of a fact in issue – if so, does the probative value of that evidence substantially outweigh any prejudicial effect it may have on the accused –complainant’s uncorroborated evidence in relation to a separate act of sexual misconduct by the accused against that same complainant did not have the requisite degree of probative value for tendency purposes – evidence in relation to the accused’s cultural authority not probative of tendency – evidence did not have significant probative value within the meaning of s 97 of the ENULA – evidence inadmissible for tendency purposes.
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – RELATIONSHIP EVIDENCE
Whether context or relationship evidence admissible – in order for context or 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 that relationship – without the evidence the jury would be called upon to decide the case without an understanding of the nature and progression of the relationship – probative value of the evidence not outweighed by the danger of unfair prejudice to the accused – any unfair prejudice to the accused may be ameliorated by appropriate directions to the jury – evidence admissible as relationship or context evidence.
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JURISDICTION, PRACTICE AND PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT
Application to sever indictment – offences form part of “a series of offences of the same or a similar character” – evidence cross-admissible between counts for context or relationship purposes – potential prejudice may be addressed by an orthodox direction to the jury – application dismissed.
Criminal Code (NT) ss 309, 341, 341A
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 97, 101, 135, 137Conway v R (2000) 172 ALR 185, De Jesus v The Queen (1986) 61 ALJR 1, DSJ v Director of Public Prosecutions (Cth) (2012) 215 A Crim R 349, Dupas v The Queen (2010) 241 CLR 237, FDP v R (2008) 74 NSWLR 645, Gilbert v The Queen (2000) 201 CLR 414, HML v The Queen (2008) 235 CLR 334, Hughes v The Queen [2017] HCA 20, IMM v The Queen (2016) 257 CLR 300, Packett v The King(1937) 58 CLR 190, R v AH (1997) 42 NSWLR 702, R v Christou [1997] AC 117 at 129, R v Cornwell (2003) 57 NSWLR 82, R v Ford (2009) 201 A Crim R 451, R v Johnston [2016] NTSC 57, R v KRA [1999] 2 VR 708 at 715, R v Lock (1997) 91 A Crim R 356, R v Lockyer (1996) 89 A Crim R 457, R v Mokbel (2009) 26 VR 618, R v PJMS [2011] NTSC 48, R v Quach(2002) 137 A Crim R 345, R v Zhang (2005) 227 ALR 311 , Reza v Summerhill Orchards Ltd (2013) 37 VR 204, Sutton v The Queen (1984) 152 CLR 528, considered.
S Odgers, Uniform Evidence Law, Thompson Law Book Co, Looseleaf Service.
REPRESENTATION:
Counsel:
Plaintiff:M Chalmers
Defendant:J Franz
Solicitors:
Plaintiff:Office of the Director of Public Prosecutions
Defendant:Darwin Family Law
Judgment category classification: B
Judgment ID Number: GRA1714
Number of pages: 27
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v LM [2017] NTSC 81
No. 21614443
BETWEEN:
THE QUEEN
AND:
LM
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 13 November 2017)
The accused is charged by indictment dated 19 June 2017 with five sexual offences.
The offences all relate to the same complainant.
The first four offences are alleged to have occurred at various times between May 2002 and May 2011 when the complainant was a child under the age of 16 years.
The first four offences, in the order in which they are charged, are that:
(a)the accused unlawfully exposed the complainant to an indecent act at some time when she was between six and nine years of age;
(b)the accused intentionally and unlawfully exposed the complainant to an indecent film or videotape at some time when she was between six and nine years of age;
(c)the accused unlawfully and indecently dealt with the complainant at some time between May 2006 and May 2008 when she was a child under his care; and
(d)the accused exposed the complainant to an indecent act by himself at some time between May 2010 and May 2011 when she was a child under the age of 16 years.
The fifth offence charged is that the accused had sexual intercourse with the complainant without her consent in January 2016, at a time when she was a young adult.
Three related issues have arisen for determination prior to trial. They are:
(a)whether certain evidence identified by the Crown is admissible for tendency purposes;
(b)whether the offence charged in count 5 should be severed from the indictment and tried separately; and
(c)whether the evidence to be led by the Crown to prove counts 1 to 4 is relevant and admissible as context or relationship evidence concerning the offence charged in count 5.
The tendency notice
The Crown has given Notice dated 24 May 2017 advising its intention to adduce tendency evidence pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act (NT) (“ENULA”).
The Notice provides that the tendency evidence relates to: whether the events charged in counts 1 to 4 occurred; and whether the sexual intercourse alleged in count 5 was without consent.
The Notice provides further that the tendencies sought to be proved on the part of the accused are:
(a)a tendency to act in a particular way, namely to seek and engage in sexual activity with young female relatives (exploiting his cultural position of authority); and
(b)a tendency to have a particular state of mind, namely a belief in an entitlement to sexual contact with young female relatives.
The Notice tabulates the tendency evidence in the following terms (redacted to remove the name of the complainant).
Conduct
Date & Time
Circumstances
Exposed his penis to [the complainant] aged 13-14 saying, “Do you want this”.
Between 24 May 2010 and 23 May 2011.
[The complainant] is a young female relative with whom it is inappropriate for the accused to have sexual contact – additionally this was on a family fishing trip at an outstation – opportunistic conduct away from other family.
Had sexual intercourse with [the complainant]. On or about 9 January 2016.
[The complainant] is a young female relative with whom it is inappropriate for the accused to have sexual contact.
Asked [the complainant] to tell [another young female] that he wanted to have sex with her.
On or about 9 January 2016.
In a vehicle with [the complainant] after having had sexual intercourse with her.
Suggested to [the complainant] that they have sexual intercourse again.
On or about 15 January 2016.
In a hotel room with [the complainant].
The Notice goes on to advise that the evidence of those matters is proposed to be adduced variously from the complainant, the complainant’s aunt, and the other young female referred to in the third episode of conduct in the table above.
The complainant’s evidence is intended to describe the conduct alleged in each episode in the table.
The aunt’s evidence is intended to describe the relationship between the complainant and the accused. That evidence would be to the effect that the accused is the complainant’s great-uncle (and grandfather in the Aboriginal way), as well as being a “policeman” for cultural matters in the community and a custodian of cultural and sacred sites and ceremonial practices. Members of the extended family go to the accused to discuss cultural and family matters, and to seek direction in relation to visiting sacred sites and the conduct of ceremonies.
The other young female’s evidence is intended to confirm that the complainant told her of the request which is referred to in the third episode identified in the table.
A number of observations may be made in relation to the conduct sought to be relied upon for tendency purposes. They are:
(a)The conduct identified in the first episode in the table is the conduct charged in count 4 on the indictment, and is said to be admissible for tendency purposes in the proof of each of the other counts.
(b)The conduct identified in the second episode in the table is the conduct charged in count 5 on the indictment, and is also said to be admissible for tendency purposes in the proof of each of the other counts.
(c)The conduct identified in the third episode in the table occurred on the same evening as and shortly following the conduct charged in count 5, and is said to be admissible for tendency purposes in the proof of all counts.
(d)The conduct identified in the fourth episode in the table occurred approximately a week after the conduct charged in count 5, postdates all the offences charged, and is also said to be admissible for tendency purposes in the proof of all counts.
Section 97 of the ENULA provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value. It provides:
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 adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Subsection (1)(a) does not apply if:
(a)the evidence is adduced in accordance with any directions made by the court under section 100; or
(b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Note for section 97
The tendency rule is subject to specific exceptions concerning character of and expert opinion about accused persons (sections 110 and 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
The Dictionary in the ENULA defines “probative value” of evidence to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The use of “significant” as a qualifier in this context connotes something more than mere relevance, but something less than a substantial degree of relevance.[1] This resolves to a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[2]
The High Court has recently given consideration to the matter in Hughes v The Queen.[3] The majority made the following observations:
40. … The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford : "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
41 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.
Against that background, it falls to consider the nature of the tendency evidence sought to be adduced in this case; and the probative value of that evidence for tendency purposes – either by itself or having regard to other evidence to be adduced.
In the ordinary course, tendency evidence adduced or sought to be adduced in the trial of child sexual offences takes the form of conduct in relation to someone other than the complainant (whether charged or uncharged), which tends to prove that the accused is a person who is sexually interested in children and who has a tendency to act on that interest. In the trial of sexual offences involving adult complainants, tendency evidence ordinarily takes the form of charged or uncharged conduct towards another person or persons which demonstrates a tendency on the part of the accused to act in a particular way (in some circumstances, even where there is an absence of similarity in the acts which evidence the tendency). That is not the nature of the evidence sought to be adduced for tendency purposes in the present case.
The conduct identified in the first two episodes in the tendency notice is the conduct forming the basis for the charges in counts 4 and 5. The complainant will give evidence of that conduct at trial in direct proof of each of those counts. It is quite another matter, however, to suggest that evidence from the complainant to the effect that the accused exposed himself to her when she was about 13 or 14 years of age strongly suggests a tendency which makes it more likely to a significant extent (either by itself or in combination with other evidence), that the accused exposed her to a pornographic film while he touched his penis when she was about six years of age (counts 1 and 2), that the accused held her against a wall and rubbed his penis against her when she was 10 or 11 years of age (count 3), or that the accused had non-consensual sexual intercourse with her when she was 19 years of age (count 5).
Similar considerations arise in relation to the contention that the accused having non-consensual sexual intercourse with the complainant when she was 19 years of age strongly suggests a tendency which makes it more likely to a significant extent that he committed the acts when she was between the ages of six and 14 for which he is charged.
The essence of the Crown’s assertion in this respect is that evidence of one count concerning the complainant is admissible for tendency purposes in respect of each of the other counts concerning that same complainant. That assertion draws attention to the determination in IMM v The Queen to the effect that evidence from a complainant of conduct of a sexual kind on the part of an accused will generally be relevant for tendency purposes only to the extent that it is capable of supporting the credibility of the complainant’s account.[4] In the application of that test, a complainant’s uncorroborated evidence in relation to a separate act of sexual misconduct by an accused against that same complainant is unlikely to have the requisite degree of probative value for tendency purposes in proving the act which has been charged.
It may be noticed in this respect that the relevant discussion in IMM is limited to “a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts”.[5] That description notwithstanding, it is difficult to see why the same analysis would not also apply to evidence of conduct of a sexual kind from another charged act. The operative question remains whether evidence of that kind from the complainant suggests a tendency which strongly supports the credibility of her account in relation to the perpetration of a sexual offence against her by the accused on another occasion. In these circumstances it does not.
The same conclusion may be drawn in relation to the conduct identified in the third and fourth episodes in the tendency notice. Both involve evidence from the complainant concerning conduct which is said to demonstrate a sexual interest in young female relatives and a tendency to act on that interest.
Although the Crown proposes to call evidence from the other young female in respect of whom the request referred to in the third episode was made, that evidence is only to the effect that the complainant told her the accused had made the request. The complainant remains the source of the assertion, and for that reason it does not have the capacity to strongly support the credibility of her account in relation to the offences charged.
Nor could the evidence be said to be significantly probative for tendency purposes of the question whether the events alleged to have taken place when the complainant was aged between six and 14 did in fact occur, or the question whether the sexual intercourse alleged in count five was without consent. While the account given by the complainant to the other young female might in some circumstances be admissible as “complaint” evidence, is not admissible in support of tendency reasoning. (The admissibility of the material as “complaint” evidence is discussed further below in the context of the application for severance.)
There is a further issue arising from the conduct identified in episode four of the tendency notice. As already observed, that conduct is said to have taken place approximately a week after the conduct charged in count 5. It is not readily apparent that conduct which postdates all of the acts charged can be probative in establishing that an accused had a particular tendency at the time the acts were committed. An invitation to engage in further sexual activity at some later time is not necessarily probative for tendency purposes in determining whether the sexual intercourse charged took place with or without consent. It is unnecessary to decide that matter in the present case given the conclusion already reached on other grounds in relation to the lack of probative force of that evidence for tendency purposes.
The evidence from the complainant’s aunt has no bearing on the question of the accused’s tendencies. It is directed only to the question whether the accused occupied a position of cultural authority. Again, the evidence that he exploited that authority or had a tendency to exploit that authority for the purpose of engaging in sexual activity with young female relatives is sourced only from the complainant.
The aunt’s evidence in relation to the accused’s cultural authority does not supplement or complement the complainant’s evidence in a manner which strongly supports proof of the tendencies asserted, such that those tendencies in turn strongly support proof that the accused committed the acts described in the counts charged. While the question of the accused’s cultural authority may be admissible for context or relationship purposes, is not admissible in support of tendency reasoning. (The admissibility of the material as context or relationship evidence is also discussed further below in the context of the application for severance.)
The evidence specified in the tendency notice is not admissible to prove that the accused had a tendency to act in the manner asserted in the notice, or had the particular state of mind that is asserted in the notice. The evidence does not, either by itself or having regard to the other evidence to be adduced by the Crown, have significant probative value for tendency purposes. Having made that finding, it is unnecessary to go on to consider the question posed by s 101 of the ENULA of whether the probative value of that evidence if used for the purposes of tendency reasoning would substantially outweigh the prejudicial effect it may have on the accused.
The application for severance and the context/relationship evidence
The defence makes the application for the severance of the indictment so as to require the offence charged in count 5 to be tried separately to the offences charged in counts 1 to 4. That application is made on two bases.
The first ground asserted is that the offence charged in count 5 is not properly joined in the same indictment as the offences charged in counts 1 to 4. That assertion is made on the basis that the joinder does not comply with s 309 of the Criminal Code (NT), in that those charges are not founded on the same facts, do not form part of a series of offences of the same or similar character, and are not a series of offences committed in the prosecution of a single purpose.
The second ground for severance asserted is the exercise of the discretion pursuant to s 341 of the Criminal Code, on the basis that the accused may otherwise be prejudiced in the conduct of his defence.
Section 309 of the Criminal Code is a statutory adoption of the common law principle under which charges could be joined in the same indictment if they formed part of “a series of offences of the same or a similar character”.[6] The section provides:
Circumstances in which more than one charge may be joined against the one person
(1) Charges for more than one offence may be joined in the same indictment against the same person, whether he is being proceeded against separately or with another or others, if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.
(1A) To avoid doubt, charges for more than one offence may be joined in the same indictment even if the offences are alleged to have been committed against different persons.
(2) Charges of stealing any property or, alternatively, of receiving the same property knowing or believing it to have been stolen may be joined in the same indictment.
It is obviously not asserted by the Crown that the charges are founded on the same facts. The meaning of the word “series” in this context has been said to be somewhat vague, but connotes some connection between the crimes;[7] relates more to the legal character or components of the offences than to the facts alleged by the prosecution in each particular instance;[8] and requires some nexus or similarity between the offences which in all the circumstances of the case enables them to be described as a series.[9]
The counts have a threshold nexus or similarity given that each offence is allegedly committed against the same victim and as part of what might generally be described as a course of conduct. Although the evidence in support of each count may not possess sufficient probative value to be cross-admissible for tendency purposes, the offences as charged do form part of a series of incidents involving the accused’s dealings with the complainant. In addition, the character and components of each charge are both similar and connected. Each episode involves alleged sexual misconduct perpetrated against the complainant.
Neither the fact that the conduct the subject of count 5 took place when the complainant was a young adult rather than a child, nor the defence’s assertion of consensual intercourse on that occasion, deprives it of the requisite similarity for the purposes of s 309 of the Criminal Code. In addition, and for the reasons discussed further below when dealing with the admissibility of the context/relationship evidence, there is a real and substantial connection between the character and components of the offences charged in counts 1 to 4 and the offence charged in count 5.
It follows that the joinder of all counts on the one indictment was permissible. That leaves the question whether the joint trial of those counts would give rise to prejudice in the relevant sense. It is necessary for that purpose to consider the operation of s 341 of the Criminal Code. That section provides:
Separate trials where 2 or more charges against the same person
(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 of the Criminal Code was inserted in 2014 to provide:
Presumption of joint trial of sexual offences
(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.
During the course of argument, counsel for the Crown drew attention to the legislative intention and purpose of s 341A of the Criminal Code. Those purposes include: to ensure that the jury is provided with the full picture of the facts and circumstances surrounding the allegations, rather than an artificial and individualised context for each episode of alleged offending; to avoid complainants in sexual assault cases being required to give evidence and submit to cross-examination on multiple occasions; and to reduce costs, save time, and conserve legal and judicial resources.
While s 341A of the Criminal Code clearly establishes a presumption of joint trials in relation to sexual offences charged in the same indictment, and provides expressly that a lack of cross-admissibility or the possibility of collusion will not of themselves be sufficient to rebut the presumption, it does not abrogate the Court’s discretion to sever the indictment and order separate trials where there is a real risk of prejudice that cannot be allayed by directions from the trial judge.
The dominant consideration remains ensuring that an 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”.[10] Similarly, the loss by an accused of the strategic advantage of conducting his or her defence to a particular count in isolation does not of itself constitute prejudice in the material sense. Something more is required, such as the misuse of evidence on one charge to support a conviction for another charge for which it would be inadmissible.
That consideration focuses attention on the relationship between the evidence to be received in relation to counts 1 to 4, and the facts alleged in count 5. If the evidence in relation to counts 1 to 4 is irrelevant to the proof of the allegation contained in count 5, there is a greater risk of misuse.
For the reasons already discussed, the evidence to be adduced by the Crown in seeking to prove count 4 is not probative for tendency purposes in relation to the other counts, including count 5. The Crown has not suggested that the evidence it seeks to adduce to prove counts 1 to 3 is probative for tendency purposes in relation to count 5. However, a finding that the evidence is inadmissible for tendency purposes does not preclude its admissibility for a non-tendency purpose. The admissibility of evidence for non-tendency purposes is governed by the general test of relevance in s 55 of the ENULA, and the discretions and obligations contained in Part 3.11 of the ENULA (particularly ss 135 and 137).[11]
One non-tendency purpose commonly arising in sexual offence cases is context or relationship evidence that is not relied on for a tendency inference or tendency reasoning.In HML v The Queen various members of the High Court observed that evidence of other conduct by an accused may, depending upon the circumstances, be admissible for non-tendency purposes, including:[12]
(a)as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct, and to explain the offences charged;
(b)to overcome a false impression that the event was an isolated one, or that the offence happened “out of the blue”, where the acts are closely and inextricably mixed up with the history of the offence;
(c)to assess the credibility of a complainant’s evidence; and
(d)to ensure that the jury is not required to decide issues in a vacuum, and to negative issues concerning lawfulness (such as the question of consent in relation to count 5).
In order for context or 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 that relationship. In a general sense, the evidence in relation to each charge provides essential background to the other charges, and avoids the jury having to decide the matter in an artificial and individualised context for each episode of alleged offending.
So far as the application for severance in particular is concerned, the evidence to be led by the Crown to prove the offences charged in counts 1 to 4, if accepted, is manifestly relevant in the assessment of the evidence concerning count 5. It has the clear potential to inform the assessment of the credibility and coherence of the complainant’s evidence. It also provides a history and context against which the jury may assess the complainant’s evidence in relation to consent.
The complainant’s evidence, if accepted, will be that the accused dealt with her in a way that was sexually inappropriate during her childhood in circumstances where there was a particular relationship between them. That evidence might inform the jury's consideration about whether or not there was genuine consent in respect of the dealing said to constitute count 5; about why there might have been some delay in complaint and in detailing the entirety of the dealings when the complaint was initially made; and about whether this particular interaction came “out of the blue”. These are purposes for which context and relationship evidence is routinely and properly received.
The aunt’s evidence concerning the accused’s cultural authority is also relevant and admissible for context and relationship purposes for the same reasons. It is important in the jury’s deliberations concerning the issue of consent, and generally important for context purposes.
Conversely, evidence from the complainant to the effect that the accused asked her to tell the other young female that he wanted to have sex with her is not relevant and admissible for context or relationship purposes. It sheds no light on the question of consent and, without more, does not inform an assessment of the coherence and credibility of the complainant’s evidence. That conclusion is subject to one qualification.
That evidence might conceivably be seen as favourable to the defence case, and there may be forensic reasons why defence counsel might wish to have it before the jury. As matters presently stand, however, the defence has sought to have evidence of that request ruled inadmissible. Should that position change, and should the defence seek to elicit that evidence from either the complainant or the other young female during the course of cross-examination, it would be improper to do so in a manner which suggested that the complainant had withheld that detail during the course of her evidence-in-chief, or in a manner which suggested some inconsistency between what the complainant says she told the other young female and the evidence given by that other young female.
For those reasons, the complainant’s evidence in relation to each count is relevant and probative in the proceeding as context or relationship evidence concerning each other count because, if accepted, it could rationally affect, indirectly, various facts in issue. So far as the application for severance is concerned, that evidence will be germane in particular to the jury’s assessment of the issue of consent arising in relation to count 5. The aunt’s evidence is relevant and probative as context or relationship evidence concerning all the counts charged on the indictment.
That leaves the question whether the probative value of that evidence as context or relationship evidence is outweighed by the danger of unfair prejudice to the defendant. On the respective positions adopted by the parties, that is largely the same question which presents under s 341 of the Criminal Code in determining whether the joint trial of count 5 with the other four counts would give rise to prejudice in the relevant sense.
It may be observed at the outset that all five counts involve a single complainant, and the particular concerns that arise in cases involving multiple complainants where the evidence is not mutually admissible for propensity or tendency purposes do not arise here.
The exercise of the discretion under s 341 of the Criminal Code will be guided by a number of considerations, including:[13]
(a)the degree of interrelationship between the facts giving rise to the counts, and in particular whether the evidence is cross-admissible between counts for a legitimate purpose;
(b)whether any potential prejudice may be allayed by proper directions to the jury; and
(c)the impact on both the complainant and the accused of ordering multiple trials.
For the reasons already discussed, the complainant’s evidence in relation to counts 1 to 4, and her evidence generally in relation to her interactions with the accused when she was growing up, is relevant and probative as context and relationship evidence, including in relation to count 5.
The risk that the jury may be emotionally affected or may use the evidence improperly can also be accommodated by suitable directions.[14] As Gleeson CJ and Gummow J observed in Gilbert:[15]
The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.
The relevant directions in the present case would include that evidence in relation to one count cannot be used to engage in tendency reasoning in the proof of any other count; that the Crown case is based in essence on the evidence of a single witness, requiring particular scrutiny of that witness’s evidence; and that the task is to be approached in a logical and rational manner unaffected by sympathy or emotion.
The fact that the offences alleged in this case are sexual in nature, and include conduct when the complainant was a child, is not sufficient in itself to give rise to irremediable prejudice. Each of the offences has the potential to arouse strong emotions or excite revulsion in the jury. There is no suggestion by counsel for the accused that each count must properly be tried separately for that reason. This acknowledges implicitly that the potential for reaction of that kind on the part of the jury may be addressed by appropriate direction.
The same considerations necessarily apply in relation to any charges involving child sexual abuse. On the modern approach, that is not a proper basis in and of itself to order the severance of the indictment.
The particular prejudice said by the defence to arise in this case is of the nature discussed in R v Johnston.[16] In that matter, counts 1 to 7 on the indictment related to offences allegedly committed when the complainant was under the age of 16, and counts 8 and 9 related to offences allegedly committed after that time. It was the accused’s defence to counts 1 to 7 that the conduct charged did not occur. It was the accused’s defence to counts 8 and 9 that the sexual intercourse was consensual. The complainant in that case was the accused’s niece.
Counsel for the accused in the present case has indicated that the accused’s defence will be put on the same basis. That is, the conduct charged in counts 1 to 4 did not occur, and the sexual intercourse charged in count 5 was consensual.
In Johnston, severance was ordered on the basis that the accused’s account of consensual sexual intercourse would prejudice the accused’s defence of counts 1 to 7. The trial judge considered that members of the jury might be repelled by the accused’s admission to having consensual sexual intercourse with a far younger blood relative, and there was a high risk the evidence would be misused.
The same considerations and concerns do not necessarily arise in the present case. In Johnston, the accused had made an admission to police of consensual sexual intercourse during the course of a recorded interview, and that express admission was to be put before the jury. There is no such admission in the present case. In Johnston, the accused and the complainant were blood relatives. Although the evidence in the present case will be that the accused stood in the role of a “grandfather” to the complainant in the Aboriginal way, there is no blood relationship. Nor did the evidence from the complainant’s aunt received during the course of the Basha inquiry disclose any strong and rigid taboo in the community concerning “wrong skin” relationships.
Having regard to those matters, it cannot be said that there is a high risk in the present case that the jury will misuse the evidence concerning count 5 in its consideration of the offences charged in counts 1 to 4. The situation is one that commonly presents in sexual assault cases involving a young complainant and an older defendant.
In Johnston, the court also held that evidence about the sexual offences said to have been committed by the accused when the complainant was a child would not cause prejudice to the accused’s defence of the counts involving conduct when the complainant was a young adult. The evidence concerning counts 1 to 7 was held to be cross-admissible as context or relationship evidence concerning counts 8 and 9, in that it would serve to rebut the accused’s assertion of consensual sexual intercourse after the complainant had turned 16. That is consistent with the conclusions drawn above in relation to the present case.
For these reasons, it may be concluded that the probative value of the evidence concerning counts 1 to 4 as context or relationship evidence in the proof of the offence charged in count 5 is not outweighed by the danger of unfair prejudice to the accused. Nor would the reception of that evidence for context or relationship purposes be misleading or confusing, or cause or result in undue waste of time. For those same reasons, the joint trial of count 5 with the other four counts does not give rise to prejudice in the relevant sense.
Rulings
The rulings on the preliminary issues are:-
(a)The evidence identified in the Crown’s tendency notice is inadmissible for tendency purposes.
(b)The complainant’s evidence concerning counts 1 to 4 is admissible as context or relationship evidence in the determination of each other count, including count 5.
(c)The evidence of Margaret Lindsay in relation to the accused’s cultural position and authority is admissible as context or relationship evidence concerning all the counts charged on the indictment.
(d)Evidence from the complainant and the other young female to the effect that the accused asked the complainant to tell the other young female that he wanted to have sex with her is inadmissible.
(e)The application to sever the indictment is dismissed.
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[1]S Odgers, Uniform Evidence Law, Thompson Law Book Co, Looseleaf Service, [EA.97.120]; R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356 at 361; R v AH (1997) 42 NSWLR 702.
[2] Odgers, op cit, [EA.97.120]; R v Zhang (2005) 158 A Crim R 504 at [46]; R v Ford (2009) 201 A Crim R 451 at [52]; DSJ v Director of Public Prosecutions (Cth) (2012) 215 A Crim R 349 at [67], [71], [72].
[3] [2017] HCA 20.
[4] IMM v The Queen (2016) 257 CLR 300 at [62]-[64].
[5] IMM v The Queen (2016) 257 CLR 300 at [62].
[6] First introduced in England by the Indictments Act, 1915, Schedule I, rule 3.
[7] Packett v The King(1937) 58 CLR 190 at 207; Sutton v The Queen(1984) 152 CLR 528 at 540-541.
[8] De Jesus v The Queen(1986) 61 ALJR 1 at 9.
[9] R v PJMS [2011] NTSC 48 at [10].
[10]HML v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.
[11]R v Quach (2002) 137 A Crim R 345 ; Conway v R (2000) 172 ALR 185; FDP v R (2008) 74 NSWLR 645; R v Cornwell (2003) 57 NSWLR 82; R v Lock (1997) 91 A Crim R 356.
[12]See, for example, HML v The Queen (2008) 235 CLR 334 at [6]-[7] per Gleeson CJ.
[13] R v KRA [1999] 2 VR 708 at 715; R v Christou [1997] AC 117 at 129.
[14] See, for example, Gilbert v The Queen (2000) 201 CLR 414 at 425; Reza v Summerhill Orchards Ltd (2013) 37 VR 204 at [50]; R v Mokbel (2009) 26 VR 618 at [90]; Dupas v The Queen (2010) 241 CLR 237 at [22], [26], [29], [38].
[15] Gilbert v The Queen (2000) 201 CLR 414 at 420.
[16] [2016] NTSC 57.
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