The Queen v Twentyman
[2021] NTSC 48
•25 June 2021
CITATION:The Queen v Twentyman [2021] NTSC 48
PARTIES:THE QUEEN
v
TWENTYMAN, Travers
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22022514
DELIVERED: 25 June 2021
HEARING DATE: 13 May 2021
JUDGMENT OF: Brownhill J
CATCHWORDS:
EVIDENCE – Admissibility and relevance – Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 137 – Complainant’s police interview – Statement that accused ‘bashed’ his girlfriend – Whether relevant – Whether use of evidence at trial unfair – Whether evidence has significant probative value – Whether probative value of the evidence substantially outweighs any potential prejudicial effect on the accused – Evidence admissible.
CA v The Queen [2017] NSWCCA 324; Gilbert v The Queen (2000) 201 CLR 414; HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; KTR v The Queen [2010] NSWCCA 271; Roach v The Queen (2011) 242 CLR 610; The Queen v AW [2018] NTSC 29; The Queen v Grant (2016) 262 A Crim R 348, referred to.
Criminal Code 1983 (NT) ss 127(1), 132(2)(a).
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 137.
REPRESENTATION:
Counsel:
Crown:V Engel
Accused:M Hubber
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Hubber Legal
Judgment category classification: B
Judgment ID Number: Bro2113
Number of pages: 10
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Twentyman [2021] NTSC 48
No. 22022514
BETWEEN:
THE QUEEN
AND:
TRAVERS TWENTYMAN
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 25 June 2021)
These are the reasons for my decision made on 13 May 2021 regarding the conduct of a trial which was then yet to commence. The reasons are expressed in language attributable to the date of the decision, not the date of delivery of the reasons.
The accused is charged with four counts involving a child who was between 9 and 11 years old at the relevant times. The first is a count of indecent dealing with a child under the age of 16 contrary to s 132(2)(a) of the Criminal Code 1983 (NT) (‘the Code’). The second, third and fourth counts are acts of gross indecency with a child under the age of 16 contrary to s 127(1) of the Code.
The complainant’s evidence in chief at the trial is to be by way of the recorded statement that she gave to police. The admissibility of parts of that statement require determination as a preliminary issue in advance of the trial.
The Crown’s case is that, when the complainant was around 9 or 10 years of age, her father would take her and her younger sister to the accused’s home on weekends. The accused and the complainant’s father were best friends. At the time of the first alleged offending, the accused lived on a rural property with his then de facto partner (‘RC’) and their two young children. The second and third counts are also alleged to have occurred at this residence. The accused and RC later had a third child, and subsequently moved to a residence in Karama. The fourth alleged offence is said to have occurred at the Karama residence. The Crown’s case is that, during the visits, the adults would consume alcohol, the complainant, her father and her sister would spend the night at the accused’s home, and the complainant’s father would commonly fall asleep after drinking. On an occasion when the complainant was 9 or 10 years old, the complainant’s father was asleep in the lounge room. While he was asleep the accused is alleged to have asked the complainant for a hug, pulled her into an embrace, told her he was going to teach her how to kiss, and then kissed her on the lips three times, placing his tongue in her mouth (count 1). On another occasion around the same time, when the complainant was sleeping on a mattress on the floor of the accused’s and RC’s bedroom with her father and sister, the accused is alleged to have laid down next to the complainant (she was lying on the edge of the mattress), placed his hand under her t-shirt and cupped her breasts and nipples (count 2). When the complainant was 10 years old, and she and the accused were driving back to the accused’s home from the hospital after RC was admitted due to complications from the birth of their third child, the accused is alleged to have stopped the car on the side of the road, pulled his erect penis out of his pants, asked the complainant to touch it and, when she refused to do so he asked the complainant to put it away (count 3). Further, on an occasion when the complainant was 10 or 11 years old, the accused is alleged to have approached the complainant, who had fallen asleep on the lounge, from behind, put his hand down her t-shirt, cupped her breasts and nipples, then put his hand down her underpants and touched her vulva near her clitoris (count 4).
The accused denied any sexual or improper contact with the complainant.
The challenged evidence
In her police interview that took place on 29 July 2019 when the complainant was 21 years old, the complainant said the following about the accused:
I remember that he used to beat his girlfriend so it was sort of quite uncomfortable being around him, like he wasn’t the type of person you would really want to, um, get on the wrong side of but at the same time he was very charming, like he was very good on the outside like talking so it was so weird to me as a child knowing that his girlfriend had bruises and broken ribs but then he had all these friends and even me like I’m like, oh, he’s a nice guy.
In addition, RC (the ‘girlfriend’ referred to by the complainant) had given a written statement to police in which she gave various evidence about the accused committing acts of violence against her, and locking her or keeping her confined in a bedroom of their home on several occasions.
Defence argued that this evidence (‘the challenged evidence’) was irrelevant or, in the alternative, should be excluded pursuant to s 137 of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘ENULA’) on the basis that it was highly prejudicial and of little probative value.
The Crown agreed not to press the words ‘and broken ribs’ in the complainant’s police interview on the basis that the complainant could not have been aware of such an injury from her own observations. However, the Crown pressed the rest of the section of the police interview and RC’s evidence, arguing that it was relevant as context evidence, namely to ensure that the complainant’s evidence about the accused’s conduct was put into the proper context, referred to by the Crown as ‘the dynamic in the household’, without which the jury might experience doubt as to the alleged circumstances of the offending.
The Crown sought for the challenged evidence to be admitted to be used for three specific purposes, namely:
(a)to explain the complainant’s attitude to the accused, in particular her response to the alleged conduct (that is, not making a complaint about it until many years later) and her behaviour towards the accused both during the offending and when she had some interaction with the accused on subsequent occasions;
(b)to explain the accused’s behaviour during and after the offending, particularly his state of mind in brazenly committing the offending in the presence of other adults and children; and
(c)to explain the observations made by RC, namely her capacity to observe the alleged offending in circumstances where her statement was that she never saw the accused doing anything improper with the complainant.
Relevance: Section 55, ENULA
The essential fact in issue is whether the accused committed the acts as alleged by the complainant. It is an ‘oath on oath’ case.
Evidence is relevant in a proceeding if it is evidence that, if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s 55, ENULA).
In my view, the challenged evidence could rationally affect the jury’s assessment of the probability of the accused having acted as the complainant says he did. Rationally, the challenged evidence has the capacity to bear on the jury’s assessment of the likelihood that the accused did touch or otherwise deal with the complainant in the manner alleged in circumstances where the complainant’s father and RC were present at the residence at the times the subject of counts 1, 2 and 4. It also has the capacity to bear on the jury’s understanding of why the complainant did not make a complaint about the offending until much later, and why her perceived response to seeing the accused again some years after the alleged offending was ordinary and did not involve any complaint. The challenged evidence explains what might otherwise appear surprising or implausible, namely: (i) that the accused would act as alleged, and have the state of mind to do so; (ii) that the complainant would act as she did, and have the state of mind to do so; and (iii) that RC would make the observations that she made. Ultimately, the challenged evidence bears on the credibility of the complainant.
In my view, the challenged evidence is relevant.
Probative Value: Section 137, ENULA
If relevance is established, ‘context evidence’ may still be excluded from criminal proceedings under s 137 of the ENULA if its probative value is outweighed by the danger of unfair prejudice to the accused. By s 137, the court must refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.
This involves a balancing exercise of assessing and weighing the probative value of the evidence against any prejudicial effect it may have. When undertaking this balancing exercise, the dominant consideration is to ensure that the accused is not deprived by prejudice of a fair trial.[1]
Probative value
The ‘probative value’ of evidence refers to the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue (Dictionary, ENULA).
The probative effect of the challenged evidence is set out at paragraph [13] above.
Defence argued that the probative value of the challenged evidence is limited because, in her police interview, the complainant gave a number of reasons for not making a complaint at an earlier point in time, and her fear of the accused was not one of them.
In response, the Crown argued that the complainant may have acted (or failed to act) for reasons that she did not articulate. The Crown argued her failure to articulate fear of the accused in her police interview would not prevent the jury from finding on the evidence that she did fear the accused and that this was a reason for not making a complaint.
So much may be accepted. In addition, the challenged evidence has relevance not only in relation to the complainant’s delay in making a complaint, but also in relation to the probability of the accused having acted as alleged, and in relation to RC’s observations of his conduct.
Defence argued that the challenged evidence has little probative value unless and until the matters that the challenged evidence were said to explain were put in issue by Defence cross-examining her about them. It was said that, if Defence challenged the complainant about her failure to make a complaint at the time, her delay in making a complaint, or her perceived ‘ordinary’ response on seeing the accused again years after the alleged offending, the challenged evidence could then be elicited in re-examination in response to the Defence’s challenge.
The Crown argued that there was a global challenge to the complainant’s credibility, so it did not matter whether the complainant’s evidence was challenged directly in cross-examination.
I accept that the probative value of the challenged evidence is that it explains what might otherwise seem inexplicable or fanciful. I consider that it has significant probative value.
Prejudicial effect
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.’[2] In other words, evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted.[3] Something more is required, such as the possibility that the challenged evidence may be misused by the jury in some respect.[4] For example, the jury may be influenced to convict as punishment for conduct other than that charged, may overestimate the probative value of the challenged evidence and give it disproportionate weight, or may be distracted from the central issues in the trial, say, by an emotional or irrational response to the evidence.
Defence argued that the challenged evidence would be likely to provoke in the minds of the jury feelings of abhorrence against the accused, leading them to convict as punishment for that conduct rather than the charged conduct. It is difficult to accept this argument when the charges against the accused are charges of indecent dealing and acts of gross indecency with a child aged between 9 and 11 years. That is, the evidence they will hear in relation to the charges is, in my view, more likely to evoke feelings of abhorrence in them than the challenged evidence.
Defence also argued that the jury would likely use the challenged evidence to engage in impermissible propensity reasoning, namely that the accused is more likely to have committed the charged offending because he committed acts of violence against his girlfriend. Given that there is little to no similarity between the acts of violence against RC and the charged offending, the risk of such reasoning is minimal.[5]
In my view, any risk of prejudice can be sufficiently ameliorated by firm directions to the jury that they must not use the challenged evidence, if they accept it, as establishing a tendency on the part of the accused to commit offences of the type charged, must not substitute the challenged evidence for the evidence of the specific allegations contained in the indictment, and must not punish the accused for other acts attributed to him by finding him guilty of the charges on the indictment. That, it seems to me, constitutes directions which would obviate any risk of unfair prejudice to the accused.[6]
Disposition
The challenged evidence is relevant within s 55 of the ENULA. Its probative value is not outweighed by the danger of unfair prejudice to the accused within s 137 of the ENULAA. It may be admitted as context evidence for the limited purposes as described above.
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[1]The Queen v AW [2018] NTSC 29 at [30].
[2]HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.
[3]The Queen v Grant (2016) 262 A Crim R 348 at [61] per Grant CJ.
[4]See CA v The Queen [2017] NSWCCA 324 at [89].
[5]KTR v The Queen [2010] NSWCCA 271 at [107] per McClelland CJ at CL (Simpson and Fullerton JJ relevantly agreeing).
[6] See Roach v The Queen (2011) 242 CLR 610 at [48]-[49] per French CJ, Hayne, Crennan and Kiefel JJ; Gilbert v The Queen (2000) 201 CLR 414 at [13] per Gleeson CJ and Gummow J, at [31]-[32] per McHugh J.
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