The Queen v RCA
[2022] NTSC 6
•24 January 2022
CITATION:The Queen v RCA [2022] NTSC 6
PARTIES:THE QUEEN
v
RCA
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:9801690
DELIVERED: 24 January 2022
HEARING DATE: 20 December 2021
JUDGMENT OF: Brownhill J
CATCHWORDS:
CRIMINAL PROCEDURE — Stay of proceedings — Inherent power to prevent abuse of process – whether extreme circumstances give rise to a fundamental defect requiring a permanent stay – whether material witnesses or particular evidentiary material being unavailable results in an unfair trial – Longman direction as a means of mitigating impacts of delay –circumstances are not extreme and are commonly encountered in cases of alleged historic offending – application for stay dismissed
EVIDENCE – Admissibility and relevance – Evidence (National Uniform Legislation) Act ss 97, 97A, 101, 135, 137 – whether evidence of charged acts and uncharged acts admissible as tendency evidence – where charged acts are child sexual offences –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
Dietrich v The Queen (1992) 177 CLR 292; Dupas v The Queen (2010) 241 CLR 237; HML v The Queen; SB v The Queen;OAE v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; Longman v The Queen (1989) 168 CLR 79; The Queen v Bauer (2018) 266 CLR 56; The Queen v Glennon (1992) 173 CLR 592; The Queen v Grant [2016] NTSC 54; The Queen v Lisoff [1999] NSWCCA 364; The Queen v Page (No 1) [2021] NTSC 2; The Queen v SF [2021] NTSC 91, applied.
Barton v The Queen (1980) 147 CLR 75; BC v The Queen [2019] NSWCCA 111; Gilbert v The Queen (2000) 201 CLR 414; Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23; Orsto v Grotherr (2015) 249 A Crim R 518; Police (SA) v Sherlock (2009) 103 SASR 147; Stringer v The Queen (2000) 116 A Crim R 198; The Queen v AW [2018] NTSC 29; The Queen v Duncan (2015) 34 NTLR 201; The Queen v Kelly [2000] 1 QB 198; The Queen v Madrill (2013) 275 FLR 449; The Queen v O’Brien [2017] NTSC 34; The Queen v RCA [2021] NTSC 54; Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290, referred to.
Criminal Code 1983 (NT) ss 129(1)(b), 129(2), 132(2)(a), 132(3).
Evidence (National Uniform Legislation) Act 2011 (NT) ss 3, 97, 97A, 101, 135, 137.
Evidence (National Uniform Legislation) Amendment Act 2021 (NT).Explanatory Statement to the Evidence (National Uniform Legislation) Amendment Bill 2020.
Hansard, Legislative Assembly of the Northern Territory, 12 November 2020, pp 500-501.
Judicial College of Victoria, Victorian Criminal Charge Book.
Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (2021).
S Odgers, Uniform Evidence Law (LawBook, 16th ed, 2021).REPRESENTATION:
Counsel:
Crown:M Chalmers SC
Accused:Self-represented
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Self-represented
Judgment category classification: B
Judgment ID Number: Bro2202
Number of pages: 26
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v RCA [2022] NTSC 6
No. 9801690
BETWEEN:
THE QUEEN
AND:
RCA
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 24 January 2022)
The issues in this matter are whether the proceedings should be permanently stayed because the length of time that has elapsed since the alleged offending means the accused cannot have a fair trial, and whether evidence of the charged acts and other conduct by the accused towards the complainants should be admitted as tendency evidence at the trial.
Background
The accused is charged by an indictment dated 9 August 2019 with three counts of aggravated indecent dealing with a child under the age of 12, contrary to s 132(2)(a) and (3) of the Criminal Code 1983 (NT) (‘Criminal Code’) and two counts of acts of aggravated gross indecency with a child under the age of 14, contrary to s 129(1)(b) and (2) of the Criminal Code. The first four counts relate to the same child (‘MR’), who is alleged to have been six to seven years old at the time of the offending. The fifth count relates to another child, who is alleged to have been five to six years old at the time of the offending. The offending is alleged to have occurred between 31 December 1996 and 1 January 1998.
The Crown case is that the accused was a friend of the mother of the two complainants and regularly visited their home at their mother’s invitation. The accused befriended the complainants, often put them to bed at night and fulfilled a paternal sort of role for a time. The complainants shared a bedroom and slept in bunk beds. The allegations comprising the counts are as follows:
(a)Count 1: The accused put the complainants to bed when their mother was elsewhere in the house. After asking her if he could, the accused kissed MR and inserted his tongue into her mouth. He rubbed her chest area over her clothes and touched her shoulders and leg area.
(b)Count 2: The accused and MR were sitting on the lounge. He took hold of her shoulders, rubbed her chest on top of her clothes and kissed her, putting his tongue into her mouth.
(c)Count 3: The accused put the complainants to bed when their mother was elsewhere in the house. MR was sitting up in bed. The accused put his hand up MR’s nightie and put his finger inside her pants.
(d)Count 4: The accused put the complainants to bed when their mother was elsewhere in the house. MR was lying in bed and the accused tried to kiss her on the lips, held her legs and put them around his neck. He tried to kiss her vagina and put his hands into her underpants. He pulled down her underpants and kissed her on the vagina.
(e)Count 5: The accused and AMF were sitting on the lounge while her mother was in the kitchen. The accused asked AMF if she wanted to see how married people kiss. The accused took hold of AMF, put her on top of his stomach, kissed AMF or caused her to kiss him, putting his tongue into her mouth. He told her to keep it a secret.
AMF complained to her mother and was not believed. AMF complained to her grandmother and was believed. The grandmother confronted the mother and the accused was told not to put the complainants to bed anymore.
The matter was reported to Police in 1997 and the accused was formally interviewed. He admitted some of the alleged conduct and gave what the Crown alleges are implausible or false explanations. The Crown says he admitted kissing the complainants, but denied any sexual impropriety. He said that MR initiated a passionate kiss and MR initiated putting her legs around his neck. Child welfare officers conducted a concurrent investigation and the complainants and various witnesses were spoken to. A criminal prosecution was recommended but, for reasons unknown, did not proceed.
AMF raised the matter as an adult and the accused was investigated by Police and charged.
The accused denies the charges.
The trial is listed for five days in 2022.
Stay application
On 10 November 2021, the accused filed a document headed ‘Submission on Application for Summary Dismissal’. The accused sought effectively a permanent stay of the proceedings because of: (i) his inability to have a fair trial due to the length of time that has elapsed since the alleged offending, in which time he says the complainants have been able to ‘perfect, alter, modify or pollute their version of events’; and (ii) his inability to secure legal representation.
As to the second matter, the accused’s application for a stay of the proceedings on this basis was heard by Barr J and determined on 29 July 2021.[1] His Honour refused the application. As there was no evidence before me of any different circumstances which would require reconsideration of that issue, I determined not to entertain it further.
As to the first matter, the accused relied on various clauses of the United Nations International Covenant on Civil and Political Rights relating to a trial without undue delay. That Covenant is not binding on, nor does it create any legal rights or interests enforceable in, this Court as a matter of domestic law.[2]
This Court may, however, grant a stay of proceedings in the exercise of its inherent jurisdiction to prevent an unfair criminal trial. In the Northern Territory, the right to a fair trial derives from the common law, as modified by statute.
The Court’s jurisdiction to grant a permanent stay of proceedings involves the exercise of a discretion, but the circumstances will usually have to be extreme before such relief is given. In The Queen v Glennon,[3] Mason CJ and Toohey J held that ‘a permanent stay will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’. That statement was adopted by the High Court in Dupas v The Queen.[4]
Various categories of cases exist in which the grant of a stay may be appropriate. Generally speaking, they comprise cases in which, because of the procedure adopted or evidence proffered, the resulting judgment will necessarily be unsafe or unsatisfactory, or where commencing or maintaining the prosecution itself would be unfair, such as where the prosecution has acted improperly, the prosecution was brought to harass or for other extraneous reasons, the deliberate destruction of evidence occurred, or the concealment of the names of material witnesses occurred.[5]
Here, there is no suggestion that an unfair trial will result because material witnesses or particular evidentiary material has become unavailable. Even if it had, it is well established that a permanent stay should not be granted only for that reason.[6]
The accused’s submission that the complainant’s evidence is unreliable because they have had 20 years to ‘perfect, alter, modify or pollute’ their version of events is not a matter which gives rise to an unfair trial. In all trials of charges of sexual offending, the credibility of the complainant(s) is a matter for the jury to determine on the basis of the whole of the evidence. Trials of charges of historic sexual offending are not unusual and, generally speaking, the assessment of the credibility of the complainant(s) is no different in those trials from trials of charges of recent sexual offending.
It has long been the case that, in cases involving allegations of historic offending, the trial judge may be obliged to direct the jury as to the forensic disadvantage faced by the accused because of delay between the alleged offending and the trial. Such a direction, called a ‘Longman direction’ following the decision of the High Court in Longman v The Queen,[7] includes specific reference to various kinds of forensic disadvantage. Some examples are the loss of a chance to:[8] (i) explore the circumstances of the alleged offending in detail; (ii) identify the occasion of the allegations with specificity; (iii) make any defence other than a simple denial; (iv) establish an alibi; (v) call evidence contradicting the broader evidence of the complainant; (vi) obtain documents that may have assisted; and (vii) test events that may have affected the complainant’s recollection or reliability. Also included is the exacerbation of these difficulties where the complainant’s recollections are weakened by the delay.
The accused must satisfy the trial judge that a Longman direction is warranted due to significant forensic disadvantage. If that is done, a direction will be given, and courts are generally to proceed on the basis that the jury will follow directions given by the trial judge.[9] Giving a Longman direction is patently something the trial judge can do to relieve against the impact upon the trial of the delay between the alleged offending and the trial.
The accused has not pointed to anything which takes this case outside the circumstances commonly encountered in cases of alleged historic offending against children and characterises it as an ‘extreme case’. In particular, a prior Police investigation which did not result in charges laid at that time does not do so. If anything, it may reduce the forensic disadvantage to the accused because records are likely to be available of what the complainants and witnesses said at that time.
For these reasons, delivered ex tempore on the date of hearing, I dismissed the accused’s application for a stay.
Tendency evidence
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. In broad terms, the proposed tendency evidence comprises, firstly, evidence to be led in support of each of the charged acts and, secondly, evidence of other conduct (‘uncharged acts’) involving kissing and touching the complainants when putting them to bed, licking MR on the cheek, when putting the complainants to bed, lifting their nighties while they were lying in bed and blowing raspberries on their stomachs, and putting AMF on his lap and smacking her bare bottom with an implement. The evidence of the uncharged acts is contained in admissions made by the accused in his Police interview and statements from a friend of the complainant’s mother and the complainant’s grandmother, now deceased.
Proposed tendency evidence
The Crown contends that the proposed tendency evidence relates to the central facts in issue in the proceeding, namely whether the accused indecently dealt with MR and AMF as alleged, and to rebut any explanation the accused may give that the alleged conduct was initiated by MR or AMF or was unavoidable or unintended by the accused.
The tendency notice states that the tendency sought to be proved is the tendency of the accused to act in a particular way, namely to engage in sexualised conduct with children under the age of 16 at their home and in his care, in circumstances where there was a significant risk he might be caught by their mother or other adults in the house.
Legal principles
Under s 97 of the UEA, 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. ‘Probative value’ means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[10]
Since the Crown filed its tendency notice, s 97A has been introduced into the UEA. By s 222 of the UEA, s 97A applies in relation to a proceeding in which the hearing commenced after 1 April 2021, when the Evidence (National Uniform Legislation) Amendment Act 2021 (NT) commenced. There is no definition in the UEA of when the hearing in a proceeding is taken to have commenced. For the purposes of ss 97A and 222, the hearing of a criminal proceeding in this Court may be taken to have commenced when the accused is first arraigned by the Court on the indictment with which he or she is charged.[11] In the present case, the accused had not been arraigned before 1 April 2021. Section 97A therefore applies.
Under s 97A of the UEA, 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), or was prepared to act on such sexual interest, is presumed to have significant probative value for the purposes of ss 97(1) and 101(2) (s 97A(1)-(3)).
The charges on the indictment are child sexual offences within the meaning of s 97A (s 97A(6)).
The presumption of significant probative value in s 97A(2) will apply unless the Court is satisfied that there are sufficient grounds to determine that the tendency evidence does not have significant probative value (s 97A(4)), which is to be determined by not taking into account the matters listed in s 97A(5) unless the Court considers there are exceptional circumstances which warrant taking one or more of those matters into account (s 97A(5)).
Section 97A gives no express indication of what might constitute ‘sufficient grounds’ or ‘exceptional circumstances’.
So far as I am aware, there has not been any decision of this Court which has given consideration to the meaning of those phrases in s 97A(4) and (5).
While the Explanatory Statement to the Bill which introduced s 97A into the UEA,[12] gives no indication of what is meant, the Second Reading Speech to that Bill is of some assistance.[13] In that Speech, the Attorney-General indicated that the Bill was to amend the UEA in response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse to lower the threshold for the admissibility of tendency and coincidence evidence in criminal cases involving child sexual abuse. The Bill was a model Bill agreed to by all uniform evidence legislation jurisdictions, with the aim of ensuring all relevant evidence is put before the court in child sexual offence proceedings. The rebuttable presumption in s 97A(2) means that ordinarily evidence about a defendant’s sexual interest in a child or children or about the defendant acting on a sexual interest in a child or children is presumed to meet the threshold of significant probative value. The presumption is based on the Royal Commission’s findings that the then current test ‘is too strict’[14] in prosecutions of sexual offences against children and that sexual interest in children and/or a willingness to act on that interest will often have a high probative value in relation to child sexual offences. It is intended that tendency evidence will generally have significant probative value, even with no similarities beyond that the incidences involved ‘acts of child sexual abuse’. The discretion to determine that the presumption is rebutted should be considered in light of the objective of the reform, which is to facilitate greater admission of tendency evidence in child sexual offence proceedings. As regards the exceptional circumstances allowing the listed matters in s 97A(5) to be taken into account, those matters have historically prevented evidence about a defendant’s tendency to have sexual interest in a specific child or children from being considered by the court. Section 97A(5) is to ensure that courts do not rebut the presumption on the basis of misconceptions that have historically prevented evidence about a defendant’s tendency to have a sexual interest in a specific child, or in children generally, or a tendency to act upon such an interest, from being seen to have significant probative value. These misconceptions were refuted by the Royal Commission. By way of example, s 97A(5) states that differences in the personal characteristics of the subject of the tendency sexual interest or act, such as the subject’s age, sex or gender should not ordinarily be considered. This is because the two required similarities are already present, namely offending of a sexual nature and offending against a child.
In other contexts, the following has been said about the phrase ‘exceptional circumstances’:[15]
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
In another context, it has also been held that ‘exceptional circumstances’:[16]
(a)can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors;
(b)can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional;
(c)determinations require the court to keep in mind the rationale of the particular statutory provision within which the phrase appears; and
(d)determinations require a careful consideration of the facts of the individual case.
Bearing in mind the intention of the provision, as disclosed by its terms and the Second Reading Speech, the analysis required of the court by s 97A has been said to be as follows:[17]
(1)Consider whether any of the listed matters apply in the particular circumstances of the case.
(2)Take into account the findings of the Royal Commission regarding any misconceptions about such a listed matter when assessing the probative value of the tendency evidence.
(3)Decide whether any of the listed matters are considered, individually or in combination with other matters, ‘exceptional’ (in the sense that it does have a bearing on the probative value of the tendency evidence).
(4)Disregard any listed matter that does not have such a bearing on the probative value of the tendency evidence.
(5)Take into account any listed matter that does, whether considered individually or in combination with other listed matters, have a bearing on the probative value of the tendency evidence.
(6)Take into account any other matters than those listed that the court considers relevant to the question of whether the court is satisfied that there are sufficient grounds to determine that the tendency evidence does not have significant probative value.
(7)Decide whether there are sufficient grounds to determine that the tendency evidence does not have significant probative value.
(8)If the court is not satisfied that there are sufficient grounds to determine that the tendency evidence does not have significant probative value, find that the court thinks that the evidence will have significant probative value for the purposes of ss 97(1)(b) and 101(2).
The potential probative value of tendency evidence was explained by the High Court in Hughes v The Queen, as follows:[18]
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:[19]
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.
I agree with the observation of Kelly J in The Queen v Page (No 1) [2021] NTSC 2 at [10] that ‘significance’ means something in between mere relevance and a substantial degree of relevance.
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.[20] 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.[21] This includes assessing the significance of the possibility of collusion or concoction which ‘should be left to an occasion when it is raised in a concrete factual setting’.[22]
Section 101(2) of the UEA restricts the admissibility of tendency evidence unless the probative value of it outweighs the danger of unfair prejudice to the accused. This involves a balancing exercise assessing and weighing the probative value of the evidence against any potential prejudicial effect it may have on the accused. 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 accused is not deprived by prejudice of a fair trial.[23] 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.’[24] 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:[25]
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.[26]
There is no dispute about the adequacy of the notice. The questions, therefore, are: (a) whether the proposed tendency evidence is caught by the presumption in s 97A(2), i.e. whether it comprises ‘evidence about the sexual interest the [accused] has or had in children’ or ‘evidence about the [accused] acting on a sexual interest [he] has or had in children’; (b) whether any of the matters listed in s 97A(5) may be applicable; (c) whether there are exceptional circumstances which warrant taking into account one or more of such matters; (d) whether, taking into account or not taking into account those matters as required, the proposed tendency evidence does not have significant probative value; and (e) whether the probative value of the proposed tendency evidence outweighs its prejudice to the accused.
Charged acts
The conduct comprising each charged act is clear evidence about the accused acting on a sexual interest in children and so is caught by the presumption in s 97A. It therefore is presumed to have significant probative value. The only basis for concluding otherwise pressed by the accused was that evidence of his conduct could not establish a particular state of mind held by him. Such a submission is contrary to the well-accepted capacity of a jury to draw an inference about a person’s state of mind from their conduct and surrounding circumstances, which is a common path of reasoning engaged in by juries. It is also not uncommon for a jury that finds beyond reasonable doubt that a person committed one of the charged acts to be permitted to use that found conduct as tendency evidence to reason towards a finding that the accused had a particular tendency which makes it more likely that the accused committed one or more of the other charged acts. I do not consider that there are exceptional circumstances which warrant taking into account any of the matters listed in s 97A(5), which have little application to the charged acts in any event. There is no basis on which to conclude that there are sufficient grounds to be satisfied that the charged acts do not have significant probative value.[27] They are therefore presumed to have significant probative value pursuant to s 97A.
Further, the significant probative value of the evidence of each charged act as tendency evidence in relation to each other charged act outweighs, in accordance with s 101(2), any danger of unfair prejudice to the accused.
The conduct comprising each charged act is admissible as tendency evidence to establish that the accused had the tendency to engage in sexualised conduct with children under 16 years at their home and in his care in circumstances where there was a significant risk he might be caught by adults in the house, and that the tendency makes more likely that the accused committed the alleged offending.
Uncharged acts
The other proposed tendency evidence comprises the following uncharged acts:
(a)A specific instance of tongue kissing MR whilst the accused was putting her to bed. The kiss lasted for 2-3 seconds, in which his lips were open and MR’s tongue went into his mouth. In his interview with Police in 1998, the accused described the kiss as involving ‘raw passion’ and he said MR was ‘bloody good at it’.
(b)Unspecified instances of kissing and touching MR and AMF when putting them to bed, in which the accused would ask to use his tongue, he would kiss them on the lips and do ‘big smoochie’ kisses, and once he licked MR on the cheek.
(c)Unspecified instances of the accused putting MR and AMF to bed, taking ‘a long time’ to do so, in which he lifted the nightie of MR or AMF, exposed their stomach and blew ‘raspberries’ on it.
(d)A specific instance of putting AMF over his lap and smacking her bare bottom a number of times with an implement.
The proposed tendency evidence in paragraph (a) above clearly falls within the terms of s 97A(2) and is, in effect, of a similar character to the evidence of the conduct the subject of Counts 1, 2 and 5. It is admissible for the same reasons as set out above regarding the charged acts.
The character of the proposed tendency evidence in paragraphs (b), (c) and (d) above, particularly (c) and (d), is less clear. Taken in isolation, such evidence would probably not be ‘tendency evidence about the defendant acting on a sexual interest the defendant has or had in children’ within s 97A(2)(b) because it may be seen, largely, as non-sexualised conduct in which a father might have engaged with daughters of that age.
However, the term ‘tendency evidence’ is defined to mean evidence of a kind referred to in s 97(1) that a party seeks to have adduced for the purpose referred to in that section.[28] Section 97(1) provides that evidence is not admissible to prove that a person has or had a tendency unless (relevantly) 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. Thus, the probative value of tendency evidence is to be considered by reference to the evidence by itself and when taken together with other evidence to be adduced by the relevant party, here the Crown. The presumption in s 97A(2) is as to the probative value of tendency evidence. A constructional choice is presented by s 97A(2)(a) and (b). That is, in determining whether evidence is tendency evidence about the sexual interest of the defendant in children, or about the defendant acting on a sexual interest in children, is that assessment to be made solely by considering each piece of evidence individually and in isolation, or also when taken together with other evidence to be adduced by the relevant party? Given the legislative objective of s 97A, and the consideration together with other evidence of the probative value of tendency evidence referred to in s 97, which is the primary provision dealing with the admissibility of tendency evidence generally, the appropriate construction is that the assessment of the character of particular evidence required by s 97A(2)(a) and (b) may be undertaken by reference to that particular evidence either by itself or having regard to other evidence to be adduced by the relevant party.
When one takes into account the evidence to be adduced about the charged acts, and the uncharged act in paragraph [47](a) above, the proposed tendency evidence in paragraphs [47](b), (c) and (d) can be seen as tendency evidence about the accused acting on a sexual interest he has or had in children, within s 97A(2)(b). Consequently, the proposed tendency evidence in paragraphs [47](b), (c) and (d) is presumed to have significant probative value.
I do not consider that there are exceptional circumstances which warrant taking into account any of the matters listed in s 97A(5), which have little application to the uncharged acts in any event. While some of the uncharged acts relate only to MR or AMF, s 97(3) applies the presumption in s 97(2) whether or not the act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child, or children generally.
I do not accept that there are sufficient grounds to be satisfied that the evidence of the uncharged acts does not have significant probative value within s 97A(4). When considered together with the evidence about the charged acts and the uncharged act in paragraph [47](a) above, the evidence of the other uncharged acts does support the tendency to a significant degree, and that tendency does make more likely, to a significant degree, the facts making up the charged offences.
In The Queen v Bauer,[29] the High Court observed (at [55]) that a high probative value is ordinarily to be attributed to a complainant’s evidence of uncharged sexual acts. Further, there is sufficient proximity in time between the uncharged acts and the alleged sexual offending and sufficient similarity between the conduct of the accused and the circumstances of that conduct (putting MR and AMF to bed, kissing them, lifting their nighties and touching them on their bare skin) and their very young ages at the time, to provide a linkage between the uncharged acts and the alleged offending, such that the evidence shows more than a mere disposition to commit crimes of the kind in question.[30]
The proposed tendency evidence in paragraphs [47](b), (c) and (d) is presumed to have significant probative value pursuant to s 97A.
Further, the significant probative value of the evidence of the uncharged acts as tendency evidence outweighs, in accordance with s 101(2), any danger of unfair prejudice to the accused.
The conduct comprising each uncharged act is admissible as tendency evidence to establish that the accused had the tendency to engage in sexualised conduct with children under 16 years at their home and in his care in circumstances where there was a significant risk he might be caught by adults in the house, and that the tendency makes more likely that the accused committed the alleged offending.
Context evidence
The same evidence is relevant and admissible as context and relationship evidence. As Grant CJ said in The Queen v Grant:[31]
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.
The evidence on Counts 1 to 5, as well as the evidence of the uncharged acts, which comprise evidence about the relationship between the accused and the complainants and his and their conduct within it, could rationally affect (directly or indirectly) the assessment of the probability of the existence of the ultimate facts in issue, namely whether the accused committed the charged conduct. The context of the relationship would make the complainants’ version of the accused’s conduct more capable of belief. It is also the case that, without that evidence, the jury would be called upon to decide the case with the false impression that the events were isolated and happened ‘out of the blue’. The evidence will bear upon the credibility of the complainants’ evidence, which might otherwise seem inexplicable or fanciful.
In my view, the probative value of this evidence is high, for the reasons outlined above, and its probative value significantly outweighs any danger of unfair prejudice to the accused. The test in s 137 is satisfied.
Determination
The accused’s application for a stay of proceedings is dismissed.
The evidence referred to in the tendency notice is admissible as tendency evidence for the purpose of establishing the tendency referred to in the notice.
That evidence is also admissible as context (relationship) evidence.
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[1]The Queen v RCA [2021] NTSC 54.
[2]Dietrich v The Queen (1992) 177 CLR 292 at 305 per Mason CJ and McHugh J.
[3](1992) 173 CLR 592 at 605, quoting Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 at [34] per Mason CJ and Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J.
[4](2010) 241 CLR 237 at [18].
[5]See Police (SA) v Sherlock (2009) 103 SASR 147 at [103]-[104] per Kourakis J.
[6]See Stringer v The Queen (2000) 116 A Crim R 198 at [11] per Grove J and the authorities there cited.
[7](1989) 168 CLR 79.
[8]See, for example, the Judicial College of Victoria ‘Criminal Charge Book’, [4.8.4]-[4.8.5]. See also the Judicial Commission of New South Wales ‘Criminal Trial Courts Bench Book’, [2-640]-[2-650].
[9]See The Queen v O’Brien [2017] NTSC 34 at [42] per Grant CJ, citing Gilbert v The Queen (2000) 201 CLR 414 at [13] per Gleeson CJ and Gummow J: ‘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.’ See also Gilbert v The Queen at [32] per McHugh J: ‘[The] fundamental assumption of the criminal jury trial requires us to proceed on the basis that the jury acted in this case on the evidence and in accordance with the trial judge’s directions…’.
[10]UEA, s 3, Dictionary, Part 1.
[11] The trial of an accused is deemed to have begun when they are called upon to plead to the indictment and say whether they are guilty or not guilty of the charges. The deeming is the combined effect of s 336(1) and (2) of the Criminal Code. Under s 336(1), ‘an accused person is to be informed in open court of the offence with which he is charged as set forth in the indictment and may be called upon to plead to the indictment and to say whether he is guilty or not guilty of the charge’. Section 336(2) then provides: ‘The trial is deemed to begin and the accused person is deemed to be brought to trial when he is so called upon.’ See The Queen v SF [2021] NTSC 91 at [3] per Barr J, citing The Queen v Madrill (2013) 275 FLR 449 at [10]-[11] per Barr J.
[12]Explanatory Statement to the Evidence (National Uniform Legislation) Amendment Bill 2020.
[13]Hansard, Legislative Assembly of the Northern Territory, 12 November 2020, pp 500-501.
[14]Ibid.
[15]The Queen v Kelly [2000] 1 QB 198 at 208 per Lord Bingham of Cornhill CJ, adopted by the Court of Criminal Appeal in The Queen v Duncan (2015) 34 NTLR 201 at [25]. See also in Orsto v Grotherr (2015) 249 A Crim R 518 at [38] per Blokland J.
[16]Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290 at [66] per Campbell JA (Tobias JA and Handley AJA agreeing), cited in Orsto v Grotherr (2015) 249 A Crim R 518 at [38] per Blokland J.
[17]S Odgers, Uniform Evidence Law (LawBook, 16th ed, 2021) 772-773, [EA.97A.150].
[18]Hughes at [16] per Kiefel CJ, Bell, Keane and Edelman JJ.
[19]Ibid at [41].
[20]IMM v The Queen (2016) 257 CLR 300 (‘IMM’) at [51]-[52], [54]; The Queen v Bauer (2018) 266 CLR 56 at [69].
[21]IMM at [38]-[39], [41], [58].
[22]IMM at [59].
[23]The Queen v AW [2018] NTSC 29 at [30].
[24] HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.
[25] Hughes at [17].
[26]The Queen v Lisoff [1999] NSWCCA 364 at [60].
[27]In The Queen v Bauer (2018) 266 CLR 56 at [60], the High Court observed that evidence that an accused has committed one sexual offence against a complainant taken in conjunction with evidence of another sexual offence against the complainant suggests that the accused has a sexual interest in or sexual attraction to the complainant and a tendency to act upon it as occasion presents, which is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with them, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents.
[28]UEA, s 3, Dictionary, Part 1.
[29](2018) 266 CLR 56.
[30]S Odgers, Uniform Evidence Law (LawBook, 16th ed, 2021) at [EA.97A.120], citing BC v The Queen [2019] NSWCCA 111 at [82].
[31] [2016] NTSC 54 at [77].
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