The Queen v Visagie
[2022] NTSC 71
•29 August 2022
CITATION: The Queen v Visagie [2022] NTSC 71
PARTIES: THE QUEEN
v
VISAGIE, Anthony
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21943088
DELIVERED: 29 August 2022
HEARING DATE: 28 July 2022
JUDGMENT OF: Reeves J
CATCHWORDS:
EVIDENCE – Admissibility – Evidence (National Uniform Legislation) Act 2011 (NT) ss 66, 108(3), 135 and 137 – Recorded conversation – Child complainant – Whether evidence admissible as complaint evidence – Whether probative value is outweighed by danger of “unfair prejudice” – Evidence partially admissible.
Statutes referred to:
Evidence (National Uniform Legislation) Act 2011 (NT) ss 55, 56, 66, 66(2), 97(1)(a), 97(1)(b), 97A(2), 108(3), 135, 137.
Cases referred to:
Allen v The Queen [2020] NSWCCA 173; Armstrong v The Queen [2017] NSWCCA 323; BC v The Queen [2019] NSWCCA 111; CA v The Queen [2017] NSWCCA 324; DAO v The Queen (2011) 81 NSWLR 568; De Jesus v The Queen (1986) 61 ALJR 1; Evans v The Queen (2007) 235 CLR 521; Festa v The Queen (2001) 208 CLR 593; Gilbert v The Queen (2000) 201 CLR 414; HML v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Lynch v The Queen [2020] NTCCA 6; Papakosmas v The Queen (1999) 196 CLR 297; Patel v The Queen (2012) 247 CLR 531; Pfennig v The Queen 182 CLR 461; [1995] HCA 7; R v Bauer (A Pseudonym) (2018) 266 CLR 56; R v Gibson [2021] NTSC 28. R v O’Brien [2017] NTSC 34; R v PWD (2010) 205 A Crim R 75; R v SK; SK v R [2011] NSWCCA 292; R v TJB (1998) 4 VR 621; R v Visagie (2021) NTSC 73; RH v The Queen (2014) 241 A Crim R 1; Sokolowskyj v The Queen (2014) 239 A Crim R 528; Taylor v The Queen [2020] NSWCCA 355.
REPRESENTATION:
Counsel:
Crown:V Engel
Accused:J Tippett QC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Ward Keller
Judgment category classification: B
Judgment ID Number: Ree2204
Number of pages: 32
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Visagie [2022] NTSC 71
No. 21943088
BETWEEN:
THE QUEEN
AND:
ANTHONY VISAGIE
CORAM: REEVES J
REASONS FOR RULING
(Delivered 29 August 2022)
Introduction
This ruling concerns the admissibility of a recording made in November 2019 of a conversation between the complainant, a six-year-old girl, and her parents following a disclosure that she had made to them some weeks earlier which eventually led to the two counts with which the accused has been charged.
Those counts are that:
Count 1
Between 1 January 2019 and 20 October 2019 at Darwin in the Northern Territory of Australia, the accused attempted to procure a child under the age of 16 years, namely the complainant, NE, to engage in an act of gross indecency.
AND THAT the attempt to procure NE to engage in an act of gross indecency involved the following circumstance of aggravation, namely, that the accused was an adult.
Count 2
Between 1 January 2019 and 20 October 2019 at Darwin in the Northern Territory of Australia, the accused indecently dealt with NE, a child under the age of 16 years.
AND THAT the indecent dealing involved the following circumstance of aggravation, namely, that NE was under the age of 10 years, namely 6 years old.
The Crown contends that the recording is admissible as complaint evidence under sections 66 and 108(3) of the Evidence (National Uniform Legislation) Act 2011 (NT) (‘the ENULA’). On the other hand, the accused contends that the probative value of the recording, as evidence, is outweighed by the danger of “unfair prejudice” to him relying upon sections 135 and 137 of the ENULA.
The Factual Context
The alleged offending occurred between 01 January 2019 and 20 October 2019 in the following circumstances (extracted from the Crown Case outline):
(a)During the period 01/01/19 to 20/10/19 (“the 2019 timeframe”) CS, the wife of the accused, was a RAAF employee living in a unit in Darwin (“the unit”). The accused spent part of the 2019 timeframe in Sydney and part of it living in Darwin with CS.
(b)CS had worked previously with a Navy employee DE (“the father”) who was living in Darwin during the 2019 timeframe with his wife DE (“the mother”) and their two daughters: TE and NE (“the children”). DE, the mother, worked part-time at Coles during the 2019 timeframe. During the same period, TE turned eight years of age (in May 2019) and NE turned six years of age (in June 2019).
(c) Prior to the 2019 timeframe, CS and the accused had met with the father and the mother socially and they reached an arrangement whereby the accused would, on occasions, look after the children at the unit when their father and mother were working or otherwise needed child-minding assistance.
(d) The children were minded by the accused on numerous occasions, sometimes for some hours during the day and sometimes overnight. On many occasions CS was not present at the unit when the accused was looking after them.
(e) There were three bedrooms in the unit, one of which was a spare bedroom where the children would sleep if they stayed overnight (“the spare bedroom”).
(f) In the course of looking after the children, the accused would often arrange for them to shower in the bathroom and would then play games with them as part of a process of dressing and settling them after their shower. One of those games involved unrolling the children from within a towel onto the bed whilst they were naked.
The particular conduct constituting the offending to which the two counts relate is described in the Crown Case outline in the following terms:
Count 1
On at least one occasion, the accused and NE were together in the spare bedroom when:
·the accused exposed his erect penis to her and asked her to touch it;
·NE did not do so.
NE thought this was “gross and rude”, but did not speak about the behaviour to her sister, nor report it to her parents at that stage.
Count 2
On at least one occasion, the accused and NE were together in the spare bedroom, when:
·the accused exposed his erect penis to her and asked her to touch it;
·NE did so.
The accused was laying down and his penis was sticking up. In the course of either one, or more, of those occasions NE touched the accused’s penis both on the top and on the side.
As already mentioned, NE disclosed brief details of the accused’s conduct to her parents during a family holiday to Singapore which occurred between 20 October 2019 and 25 October 2019. According to the Crown Case outline, that disclosure occurred in the following circumstances: “During the holiday, at a time when the father had come out of the bathroom and had removed his towel, NE said to her mother: ‘I touched [the accused’s] one of those’”.
Three weeks after their return to Darwin, on 15 November 2019, the father and mother spoke to NE about the statement she had made to them in Singapore. In response NE said “yeah, I touched him here”, at the same time pulling down her pants and pointing to her crotch area. The mother then had a conversation with NE which the father recorded on a mobile phone. That recording is the central focus of this ruling.
The Recording
The transcript of the recording comprises 11 pages. It includes a conversation between NE and her parents and a subsequent conversation with her older sister, TE. The Crown does not seek to tender that part of the recording containing the latter conversation unless the accused requires it to do so. During the voir dire hearing, four parts of the conversation with NE were the subject of particular attention. In addition, the accused’s counsel referred to some of the introductory passages of the transcript. Excluding the conversation with TE and the other sections of the transcript which are not relevant for present purposes, the five remaining parts of the transcripts are as follows:
Introduction
DE:talk to you from what happened with [the accused].
NE:inaudible
DE:that’s a (inaudible). Please don’t do that, darling.
NE:can I do it (inaudible)?
DE:no you cant.
NE: no it’s a lie.
DE:yeah, darling. You don’t do that.
NE: Why?
DE:Because its not very nice.
NE: but why is it (inaudible)?
Part A – “he just does it at random times”
DE:OK. So did [the accused] touch you there?
NE:no
DE:So you know how you said you touched [the accused]? What were you doing before that happened? Were you playing a game? Or were you…? What were you doing?
NE:He just does it at random times.
DE:Oh. OK. Can you think of one time where it happened?
NE:Um. Its always at [the accused’s]. That’s the place it always happens.
DE:Always at [the accused’s] house?
NE: Yeah.
DE:Oh. OK. Is that when you have a sleep over at his house? Or?
NE:Sometimes play… actually always plays and sometimes sleepovers.
DE:Oh. OK.
NE:Plays and sleepovers.
DE:Oh. OK. So what does he say?
NE:He always does this.
DE:Oh. OK. Is TE ever there when it happens?
NE:Yeah.
DE:Does she see it happen? Or is she off doing something else?
NE: I don’t know.
DE:Oh. OK. Does he ask TE to do it?
NE: No.
DE:mmm. OK
Part B – I touch his “poop”
NE:Sometimes I think its really really gross.
DE:oh. OK. (inaudible – possibly “oh you think its gross”)
NE:Sometimes I just cuddle him
DE:mmmm
NE:that’s what I always do
DE:ok
NE:Sometimes I think its really gross.
DE:ok. Well maybe if you think somethings really gross, you shouldn’t do it.
NE: yeah
DE:yeah?
NE:I touch his poop.
DE:yeah, that’s really gross, isn’t it?
NE:And really smelly and disgusting.
DE:it is.
NE: the smell.
DE:gross. Yeah.
NE: But luckily it wasn’t around here.
……………………….
Part C – “he always does it when CS’s at work”
DE:Does it ever happen when CS’s there?
NE: No.
DE:mmm. OK
NE: Because [the accused] thinks it’s really really rude once she’s around.
DE:oh
NE: and we do really rude stuff.
DE:Oh. Ok (inaudible)
NE: She… I mean, he always does it when CS’s at work.
DE:Oh, ok. And does he tell you not to tell anybody? Or?
NE: yeah.
DE:What did he say?
NE: He says “don’t tell anyone”
DE:Oh. OK.
NE: and I don’t want to tell anyone.
DE:OK. But maybe you should tell mum and dad these things, yeah?
NE: Yeah. I’ll say it next time I visit.
DE:Ok. You do that.
NE: plus, I wonder when he’s coming back?
DE:I don’t know, darling.
NE: you give him a little call?
DE:nope. I’m ok
……………..
Part D – “I don’t like kissing him on the lips”
DE:yep. So is there anything else that happens?
NE: with [the accused] ?
DE:yeah. That you want to tell me about?
NE:I didn’t like cuddling him, as well. And I don’t like kissing him on the lips.
DE:OK.
NE: because I think it’s really gross. And I don’t really like his spikey beard.
DE:Alright. And does he want you to kiss him on the lips?
NE: Yeah.
DE:oh. Ok.
NE: I kiss him right up here on his forehead
DE:OK.
NE: That’s where I kiss him.
DE:Oh. Ok. (inaudible)
NE: not on his lips.
DE:that’s alright.
NE: and you told me not to kiss someone on the lips.
DE:yeah. No, just on the cheeks. And the forehead.
NE: like that?
DE:yes.
NE:or you can do it up here (kiss sound) (inaudible)
DE:yes
NE: (inaudible)
DE:there’s nothing else you want to tell me about it?
NE: nup
DE:no? OK.
…………………………..
The first police interview
Immediately after making the recording the mother and the father went to the Palmerston Police station and reported what NE had told them. A short time later, on 20 November 2019, all four members of the family participated in video recorded interviews with police.
In her interview conducted by Federal Agent Sinead Done (Exhibit P5) NE said, among other things, that on more than one occasion the accused had asked her to touch his penis but that she did not “ “really do so”, or “didn’t do it” ”. She made statements to this effect at numerous points throughout the interview, of which the following are examples:
At pages 7 to 8
DONE: ……Okay, so it’s really important that I find out a little bit more about when he’s asked you to touch his bits when it’s private so can you tell me, have you ever actually touched his private bits?
NE:Not really.
DONE:Okay.
NE:Just for a little while.
DONE:Okay. So can you remember any time when that happened?
NE:Can’t really.
DONE:Really? What was happening around the time, like what – so this has happened one time or more than one time?
NE:More than once.
At pages 9 to 10
DONE:Okay, that’s alright. So what words did he use to ask you?
NE:He said this ‘Can you please touch my private part’.
DONE:And then what happened?
NE:I don’t really do it.
DONE:Okay.
NE:He thinks it feels nice.
DONE:He thinks it feels nice?
NE:Yeah.
DONE:How do you know that?
NE:Because he told me.
DONE:Okay. So after he asked you to touch his private parts, you said you didn’t really do it so what actually happened?
NE:I didn’t do it.
DONE:Okay. And then what happened?
NE:We kept on playing.
At page 11
DONE:Yep. Yep?
NE:And put his pyjana out.
DONE:Okay. And what did it look like?
NE:My dad’s.
DONE:Okay. Alright. And at some time he’s told you that it feels nice?
NE:Yeah.
DONE:Yep, okay. So then once he’s pulled his pyjana out, what, what happened?
NE:I don’t touch it.
DONE:You didn’t touch it?
NE:Yeah.
During that interview NE also said that she could not remember the disclosure she made to her parents in Singapore and she indicated that she did not remember the recorded conversation with her parents when she was “back here in Australia”. She did so in the following terms:
At pages 3 to 4
DONE:Excellent, excellent. Well I heard that when you were in the accommodation where you were staying over there that you ran in and you told your mum and dad about someone here in Australia that asked you to do something. Did you tell them something about that?
NE:I can’t remember.
DONE:You can’t remember, okay. So I heard that when you got back here in Australia mum and dad asked you about an adult that you might’ve talked to them about before and they maybe made a little recording. Do you remember that?
NE:(no audible response) (shaking head)
At this juncture I interpose to note that, in his statement to police (exhibit P4), NE’s father provided an explanation for her being unaware of the recording. He said (at [12]):
DE and I then had another conversation with NE. I made a recording using my mobile phone. I placed my mobile phone on the back of the couch before DE called NE over. I don't think she would have realised she was being recorded because the cover was still over the top of the screen.
The second police interview
On 15 September 2020, NE had a conference with a Crown prosecutor during which she made a fresh disclosure. This led to her second video-recorded police interview (exhibit P6) which occurred on 3 November 2020. During that interview she said that, on more than one occasion, she had in fact touched the accused’s penis at his request, as follows:
At page 5
DONE: Okay. Alright. So tell me exactly what happened when you touched it.
NE: It felt kind of weird.
DONE: Hmm-mm. And what else?
NE: And I didn’t really like it.
DONE: Hmm-mm. What actually happened when you touched it?
NE: I didn’t like it.
DONE: You didn’t like it.
NE: And when he pulled it out it like stuck up when he lay down.
DONE: Okay. And then what was the very next thing that happened?
NE: I normally went away.
…………………………
DONE: No, okay. So tell me – so you touching it, did that happen one time or more than one time?
NE: More.
……………………….
At pages 6 to 7
DONE: Okay. And what did you use to touch it?
NE: My hand.
DONE: Your hand. And what happened when you touched it with your hand?
NE: I didn’t – it felt kind of weird.
DONE: Yeah. What else did it fell like?
NE: Don’t know
…………………………………………
DONE: How did you touch it with your hand?
NE: Like I think I came out from the side and top like this way.
DONE: Okay. So you said that like it was sticking up when he lay down.
NE: Yes.
DONE: Yeah. So if this pencil –
NE: Was his.
DONE: Yeah, can you show me what you did with your hand.
NE: This.
DONE: Okay. And then what made you stop touching it? What happened when you stopped it?
NE: I just ran out of the room.
DONE: Okay.
NE: After I touched it.
At pages 10 to 11
DONE: Right. Okay. Alright, so you’ve told me about touching it. So you told me about that one time where he lay down and he lay down and he pulled it out, his pyjana, and that it stuck up.
NE: Hmm-mm.
DONE: And that you touched it from the top with your hand, is that right?
NE: Hmm-mm.
DONE: Yep. But there were other times that he asked you to touch and sometimes you touched from the top and sometimes from the side just randomly.
NE: Yeah.
…………………………………..
DONE: Yep. So you told me about that time that Luke was lying down. Those other times that you touched it, was he always lying down or was he sometimes in another position?
NE: Always lying down.
The contentions
As already mentioned, the Crown sought to tender the recording of the conversation with NE as complaint evidence contending that it comprised evidence of a direct complaint relating to count 2, where the allegation was that NE touched the accused's penis at his request, and as evidence of sexual conduct which supported count 1, where the allegation was that the accused made such a request of NE but that she did not comply with it.
Claiming that the "spontaneous disclosure" in Singapore was very brief the Crown contended that the recording was the most detailed and contemporaneous disclosure by NE relative to the time when the offending took place. It contended that the recording provided details as to what happened, when and where it happened, and who was present at the time of the offending.
As to the apparent inconsistencies between the Singapore disclosure, the statements made in the recording, and those made during the first and second interviews with police the Crown contended that NE's various statements should be viewed through the prism of a very young child with undeveloped language skills explaining a phenomenon of which she had no or little experience. It contended that various statements NE made during the recording such as "he just does it random times" and "I touch is poop" must be viewed in this context.
It also contended that the probative value of the recording must be considered in the light of all the other evidence expected to be led in the Crown case. That included NE’s two interviews with police. In this respect it contended that, if the jury did not have the recording before it, then it would be left with "an unfair chronology" of NE's accounts of the accused's conduct.
In assessing the probative value of the recording it contended that the Court must take the evidence at its highest without regard to any questions as to its credibility or reliability.
As for the risk of unfair prejudice the Crown contended that evidence does not meet that criterion merely because it makes it more likely that the accused will be convicted. Instead, it contended, there must be some real risk that the evidence would be misused by the jury in some unfair way that is "logically unconnected with the purpose of its tender".
It contended that this assessment must be made having regard to the fact that the trial judge would give the jury appropriate directions as to the proper use of the evidence and that the jury would follow those directions. In this respect it contended that the observations of Brownhill J at [62] of the ruling made earlier in this matter were in error and should not be followed.[1]
In response the accused pointed to a number of features of the evidence which, he claimed, affected its probative value. They included claims that the recording: did not record any spontaneous complaint; that it resulted from leading questions e.g. those in the introductory section; and that it did not evidence any visual and non-verbal cues, particularly as to what NE was doing with her hands during the recording.
He also contended that the recording was vague and contained many “inaudible’ notations. In particular he claimed that, in the course of the recording: NE gave no description of the body part that she alleged she had touched; that where NE used the word "gross" it was not connected with any touching; that the word "poop" (in part B) was ambiguous; and that there was no detail as to what activity "it" (in part A) referred to.
Further, he contended that the recording did not corroborate either of the counts because it did not record any complaints about conduct consistent with either of them, namely a request or requests by the accused that he be touched and either compliance, or non-compliance, by NE with those requests.
As to unfair prejudice the accused contended that, in the absence of any specific allegations of that kind in the recording, the jury may use it to "fill the vacuum". In this sense he contended that there was a risk the jury would not approach the evidence contained in the recording in a logical fashion. He also contended that unfairness arose from the fact that he could not effectively cross-examine NE because she stated in her first police interview that she did not remember the recording being made.
Finally the accused contended that the unfair prejudice that arose could not be ameliorated by a direction to the jury. On this aspect he placed particular reliance on the observations of Brownhill J at [62] of the recent ruling in this matter.[2] He also relied on the fact that the Crown had not provided any form of direction that would achieve that outcome.
Consideration
As already mentioned, the Crown contended that the recording provided two kinds, or categories, of evidence: evidence of a direct complaint by NE relating to count 2; and evidence of sexual conduct on the part of the accused which supported count 1. During the voir dire hearing both counsel accepted that parts A to C inclusive of the transcript of the recording comprised the former kind or category and part D the latter.
As also already mentioned, the Crown contended that the recording was admissible as complaint evidence under sections 66 and 108(3) of the ENULA. However, despite these two provisions being identified, no submissions were made by either party with respect to the latter. It is therefore difficult, if not impossible, to discern how that provision applies, specifically as to which of the sets of circumstances identified in subsection (3)(a) or (b) may arise at the trial of this matter.
As for section 66, it is the language of that provision that is pertinent not any pre-existing common law concepts.[3] Adopting that approach, because NE is to be called to give evidence at the trial and she is the source of all of the representations contained in the recording, the only factor bearing upon its admissibility is, in the terms of subsection 66(2) whether: “when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation”.
Since the representations were made soon after the period during which the offending is alleged to have occurred, namely 1 January 2019 to 20 October 2019, they comfortably meet that criterion, at least with respect to the first category of evidence described above. I will return to the second category, namely part D, later in these reasons.
Section 135 of the ENULA provides for the discretionary exclusion of evidence, in all proceedings, where its probative value is “substantially outweighed” by, among other things, the danger of it being unfairly prejudicial to a party. In contrast, section 137, upon which the accused placed primary reliance, contains a mandatory exclusion which applies to criminal proceedings if the “probative value [of the evidence] is outweighed by the danger of unfair prejudice to the defendant”. In contrast to other provisions of the ENULA, section 137 does not specify any degree, such as “significant”, for the probative value of the evidence, nor with respect to the weighing exercise, such as “substantially outweighed”.
The latter provision therefore dictates an assessment of the probative value of the evidence concerned, followed by an assessment of the danger of it giving rise to unfair prejudice to the accused and, finally, the balancing of those two factors to determine whether one outweighs the other.[4] In Pfennig v The Queen,[5] McHugh J described this weighing exercise in the following terms:
….. the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term “outweigh” suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. ……………….If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charged before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
When assessing the probative value of evidence the High Court illuminated several pertinent principles in IMM. First, that assessment is to be undertaken by reference to the provisions of the ENULA, not the common-law rules of evidence.[6] Secondly, the threshold question is whether the evidence is relevant within the terms of section 55 of the ENULA.[7]
Thirdly, the words “could rationally affect… the assessment of the probability of the existence of a fact in issue in the proceeding” in that section are directed to the capability of the evidence and do not incorporate any consideration of its credibility or reliability. That approach is reinforced by the words “if it were accepted”.[8]
Fourthly, however, evidence which is “inherently incredible, fanciful or preposterous” will not have that character essentially because it has no capacity to affect the existence of a fact in issue and is therefore irrelevant.[9]
Fifthly, relevant evidence is necessarily probative and is admissible under section 56 of the ENULA unless it is excluded by a provision such as section 137.[10]
Sixthly, while the nature of the enquiry to determine relevance and probative value is essentially the same its purpose differs. With respect to the former it is directed to “whether the evidence is capable of the effect described at all”, while with respect to the latter it is directed to “the extent of that possible effect”.[11]
Seventhly, and most importantly in this matter, in conducting the latter assessment, the evidence must be taken at its highest excluding any consideration of credibility or reliability.[12]
The relevance of the recording, at least with respect to parts A to C of the transcript, has already been discussed. As to the extent to which that evidence is capable of having the effect identified above, taken at its highest, I consider the following matters are pertinent.
First, as already noted, the representations were made soon after the period of the alleged offending. Secondly, they formed part of the chronology of complaints made by NE after the period of the alleged offending including the Singapore disclosure made about three weeks earlier; and the two police interviews, one made about five days later; and the other about a year later. Thirdly, setting aside the differences that appear in those four sets of representations, the content of the recording broadly relates to the conduct the subject of the two counts against the accused.
The last of these matters effectively controverts all of the contentions put by the accused with respect to this question of probative value. That is so because all of his concerns, including those with respect to the leading nature of the questions asked by the mother during the recording, the absence of any visual cues and the ambiguities and inconsistencies arguably present in some of the answers that NE gave, go to the credibility or reliability of the evidence, rather than its probative value. As was made clear in IMM, these matters are not to be considered in assessing the probative value of evidence and instead it is to be taken at its highest.
Finally in this respect, it is significant that the accused did not seek to contend that the representations made by NE in the recording fell within the fundamental exception identified in IMM, namely that they were “inherently incredible, fanciful or preposterous”.
For these reasons, taken at its highest, I consider the probative value of the first category of evidence described above to be high.
However I do not consider the same can be said of the second category, namely the evidence comprising part D. First, on its face, that evidence is not complaint evidence as such because it does not contain a complaint about the conduct the subject of either of the two counts. Instead it is more akin to tendency evidence of the kind that was considered in IMM, namely conduct of the accused showing a sexual interest in the complainant.[13]
In this respect it is important to note that no attempt was made by the Crown to comply with the provisions of the ENULA relating to this kind of evidence, particularly the notice provisions of section 97(1)(a), or to contend that the evidence had “significant” probative value for the purposes of section 97(1)(b), or, in conjunction with the latter, to rely upon the presumption contained in section 97A(2).
Even if these difficulties were to be set aside, having regard to the following factors, I consider that evidence to be of low probative value. First the representations concerned came solely from NE, the complainant, and they do not possess the kind of special feature identified in IMM,[14] which might otherwise have served to rehabilitate their probative value. Secondly, and relatedly, it is not apparent from their content when, in the chronology of events, the accused’s interest in NE emerged and how closely, if at all, the accused’s interest was connected with the conduct the subject of the two counts. Thirdly, while it may be inferred that it was manifested by a request on his part for NE to kiss him on the lips, the foundation for such an inference is tenuous. That is so because the representations do not evidence such a request. Rather they are relevantly confined to NE’s affirmative response to the following question: “All right. And does he want you to kiss him on the lips?”
For these reasons I consider that the evidence comprising part D of the transcript of the recording has low probative value.
Having assessed the probative value of the evidence I turn next to the question of “unfair prejudice”. That term refers to evidence that is “unfair because there is a real risk that [it] will be misused by the jury in some unfair way”. That unfairness may arise where there is a “danger that the factfinder may use the evidence to make a decision on an improper, perhaps emotional, basis, that is, on a basis logically unconnected with the issues in the case” [15].
Or, as expressed by the Australian Law Reform Commission in its Interim Report, where the “evidence… appeals to the fact-finder’s sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action [that] may cause the fact-finder to base his decision on something other than the established propositions in the case”.[16] Thus, the unfairness in question may arise in sexual offence cases where the evidence concerns “prior illegal acts by the accused, especially where the charges relate to alleged sexual acts”.[17]
It also occurred in quite different circumstances in Patel v The Queen (‘Patel’).[18] There it arose from the fact that the jury was confronted with a significant quantity of prejudicial evidence that became irrelevant after the narrowing of the Crown’s case.[19]
It often arises where tendency evidence is adduced by the prosecution. In Hughes v The Queen (‘Hughes’),[20] the majority (Kiefel CJ, Bell, Keane and Edelman JJ) essayed the various ways in which that may occur in the following terms:[21]
…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.
However, it is important to note that evidence is not unfairly prejudicial “merely because it makes it more likely that the defendant will be convicted”.[22] Put differently “all admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility”.[23]
There are mixed views in the authorities on the ameliorating effect that jury directions may have on the prejudicial effect of such evidence. In Patel the majority did not consider that the “careful and succinct” directions the trial judge gave to the jury overcame that prejudicial effect.[24] On the other hand, in BC v The Queen,[25] the New South Wales Court of Criminal Appeal endorsed the following observations of Simpson J in DAO v The Queen:[26]
[I]t is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect.
The Court added “that approach has regularly been applied” and cited, as examples, a series of New South Wales decisions.[27]
More recently in Allen v The Queen (‘Allen’) the members of the Court were divided as to whether jury directions could have ameliorated the prejudice that presented in that case.[28] Bell P referred to a number of decisions,[29] which discussed “the well-established expectation that a jury will follow a judge’s instructions” including the High Court decision in Gilbert v The Queen.[30] His Honour then concluded that any prejudice associated with “evidence of bad character or tendency that derived from the fact that the applicant was a registrable person” was capable of “being addressed through clear or, to use the trial judge’s word, “powerful” directions to the jury”.[31] Ultimately, his Honour determined the appeal in the appellant’s favour because he considered that the trial judge had not given the jury the “powerful” directions he had contemplated.
Nonetheless in the concluding paragraphs of his judgement, his Honour referred to the dissenting judgement of Button J (see below) and observed:[32]
I do, however, acknowledge the considerable force in the observations of Button J and the wisdom of his Honour’s reflection that “judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice.”
The other member of the majority in Allen, Davies J, agreed with the President observing that “I do not consider that it can be said that no direction could have cured the danger from the counts being tried together”.[33]
However, as alluded to above, the third member of the Court, Button J, was of a different opinion. While accepting that juries “generally follow directions given to them by trial judges, and that that obedience will often solve problems of prejudice against an accused person”, his Honour considered that proposition “has its limits”.[34] To illuminate those limits, his Honour proceeded to list seven circumstances where “the practical operation of the criminal justice system demonstrate[d] [their] existence”.[35]
Notably, the first of those concerned section 137 of the ENULA, the existence of which, in his Honour’s view, demonstrated that “Parliament and the criminal justice system proceed upon the proposition that juries will not always obey all directions that they are given about any and all evidence.” He added that “[t]he effect of the provision is that, sometimes, evidence that is relevant and probative – perhaps highly probative – is nevertheless excluded”.[36]
After describing those seven circumstances his Honour concluded:[37]
No doubt there are many other circumstances in which the criminal justice system implicitly evaluates directions to be inadequate to cure prejudice. I have recounted seven of them, not to cavil with the general proposition that jurors are understood to obey judicial directions. Rather, I do so simply to show that the practical reality of human nature, and the way in which the criminal justice system reflects it in its actual operation, readily demonstrate that judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice. They are not.
Finally it is worth noting that, in his dissenting decision in the subsequent judgment in Taylor v The Queen,[38] Bell P cited the judgement of Button J in Allen in the course of setting out the following principles which concerned, among other things, the efficacy of jury directions:[39]
…(xxv) acceptance of the proposition that juries generally follow directions given to them by trial judges, and that that obedience will often solve problems of prejudice against an accused person, has its limits, and judicial directions to juries are not to be thought of as an unfailing panacea for all forms of prejudice: see, for example, R v Allen [2020] NSWCCA 173 at [111] , [115] and [152] -[160] (Allen);
(xxvi) there will be cases (of which McPhillamy is an illustration) where directions to a jury, even coupled with an assumption that they will be conscientiously followed, will be incapable of overcoming or ameliorating prejudice: see, for example, Patel v R (2012) 247 CLR 531; [2012] HCA 29 at [113] , [128] and [129] ; R v GAC (2007) 178 A Crim R 408; [2007] NSWCCA 315 at [83] ; and Sokolowskyj at [48]…
Before leaving this topic it is necessary to mention the observations of Brownhill J in an earlier ruling in this proceeding.[40] That is so because those observations were the subject of debate during the voir dire hearing in this matter and they led to supplementary written submissions being provided by both counsel. However, as will appear below, in the end result, this issue is limited in its effect to the problematic second category of evidence in the recording.
In that ruling Brownhill J considered the question of “unfair prejudice” under sections 135 and 137 of the ENULA and referred to many of the authorities cited above.[41] In particular, her Honour considered a contention made by defence counsel that: “given the general abhorrence held by the community for sexual offending against young children, the risk of unfairness and/or prejudice is enhanced in this case, and such risk is unlikely to be removed by a direction to the jury”.[42]
After considering two authorities relied upon in support of this contention,[43] her Honour concluded:[44]
Notwithstanding the different legal issue in those authorities, it may be accepted that there is the potential for the jury to approach the evidence put before it with greater emotion, particularly antipathy, towards the accused and with less logic and reason, in cases involving allegations of sexual offending against young children, meaning that the risk of prejudice or unfairness to the accused is heightened. It may also be accepted that the capacity for a direction from the judge to put emotion aside and approach the evidence logically, reasonably and objectively is lessened in such cases.
As noted earlier, the Crown contended that her Honour erred in making these observations. In its written submissions on that issue the Crown relied upon many of the authorities mentioned above and several others including Bauer,[45] two further New South Wales Court of Criminal Appeal decisions[46] and three Northern Territory Supreme Court decisions.[47]
I do not consider it is necessary to review all those authorities. That is so because, as the authorities already reviewed above clearly demonstrate, the answer to that question will vary markedly depending upon the circumstances involved. They include – and I hasten to add that I do not, for a moment, suggest that the following is an exhaustive list - the nature of the offending concerned, for example: manslaughter by criminal negligence as in Patel, or child sex offending as in the present case.
They also include the object of any application involved, for example: an application to sever counts in an indictment; an application for separate trials; or an application to rely upon tendency evidence. As well they include the subject matter of the evidence in question, for example: evidence of prior offending; evidence of a sexual interest by an accused in the complainant; or evidence comprising horrifying photographs. Additionally they include the character of the asserted unfair prejudice and any applicable provisions of the ENULA, for example: the jury being confronted with a significant body of irrelevant but prejudicial evidence as in Patel or, with respect to the latter, whether it is a discretionary provision such as section 135, or a mandatory one such as section 137. Finally they include the stage at which the question arises, namely whether at the pre-trial stage, at the trial, or on appeal.
Accordingly, as Bell P observed in Allen this question concerning the efficacy of a jury direction “…..will generally fall to be assessed on a case by case basis and will be particularly affected by the degree of prejudice that is perceived to arise in the circumstances of the particular case……”.[48]
It follows that the observations of Brownhill J above about the efficacy of a jury direction are confined to the peculiar set of circumstances her Honour was called on to consider. Nonetheless, as will appear below, to the limited extent that it is relevant to the peculiar circumstances of this ruling, I do not consider that her Honour committed any error.
Turning then to the question of “unfair prejudice” in this ruling, the accused raised three aspects of the evidence contained in the recording which, he claimed, gave rise to “unfair prejudice”. First he claimed that the absence of any specific allegations pertinent to the offending in the recording may lead to the jury using it to “fill the vacuum” rather than treating it in a logical fashion. Secondly he claimed that unfair prejudice arose from the fact that he could not effectively cross-examine NE with respect to its contents because she could not remember the recording being made. Thirdly he claimed that any jury direction could not ameliorate this unfair prejudice.
Dealing first with the first category of evidence described above, namely parts A to C of the transcript of the recording, I do not consider any of these contentions has merit. That is so because, in essence, they are directed to the reliability of the evidence rather than the use, or more importantly the miss-use, the jury may make of it.
The accused did not elaborate upon what “filling the vacuum” might entail, at least with respect to this first category of evidence, or how that might give rise to unfairness of the relevant kind. In this respect, this evidence is similar in kind to the other inculpatory evidence that is to be called in the Crown case, in particular the two police interviews. It is therefore no more likely to give rise to “unfair” prejudice than that evidence. Furthermore, I consider there is some strength in the Crown’s contention that a recording of a conversation containing complaint evidence is more likely to remove unfairness. That is so because a recording will contain the complainant’s actual words thus removing any debate as to what was said, a situation which commonly arises in respect of a complainant’s unrecorded oral complaint.
As for the accused’s contention with respect to the ameliorating effect of a jury direction, in the absence of any demonstrated “unfair” prejudice the opportunity to consider that issue does not arise.
For these reasons I do not consider that the accused has demonstrated that any relevant “unfair prejudice” is likely to arise with respect to this first category of evidence.
The second category of evidence described above is more problematic. Because of the deficiencies in that evidence highlighted earlier, it is difficult to see how the jury might reason rationally from it to conclude that [NE’s] account of the charged acts is true.[49] In the absence of such a legitimate purpose, if evidence of that character were to be placed before the jury, I consider there is a real risk that it might use it for an improper purpose, specifically that it might cause the jury to approach its deliberations with emotion rather than reason. That risk is heightened, in my view, by the nature the child sex offences with which the accused has been charged and the general abhorrence in the community of offences of that kind. In such circumstances, for the reasons expressed earlier, I do not consider a jury direction would be likely to overcome that unfair prejudice. Accordingly I consider that this real risk of unfair prejudice to the accused outweighs the low probative value of that evidence such that it is not in the interests of justice that it be admitted into evidence.
Conclusion
For these reasons I consider that the evidence contained in parts A to C inclusive of the transcript of the recording has a high probative value and its admission is unlikely to give rise to any unfair prejudice to the accused. There is therefore no basis for excluding that evidence under section 137 of the ENULA.
On the other hand I consider the evidence contained in part D of the transcript of the recording has a low probative value and its admission poses a danger of unfair prejudice to the accused. That part of the recording must therefore be excluded, “in the interests of justice,” under section 137 of the ENULA.
I so rule.
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[1] R v Visagie (2021) NTSC 73 (‘Visagie’).
[2]Ibid.
[3] See IMM v The Queen (2016) 257 CLR 300 at [71] to [72] (‘IMM’).
[4] Ibid see at [47].
[5] 182 CLR 461 at 528-529 - while these observations were directed to common law concepts they apply equally to the weighing exercise required by section 137.
[6] IMM see at [35] and [54].
[7] Ibid see at [37].
[8] Ibid see at [38] to [39], [48] and [52].
[9] Ibid see at [39] and [58].
[10] Ibid see at [40] to [42].
[11] Ibid see at [43].
[12] Ibid see at [44], [47] to [48] and [50].
[13] Ibid see at [60] to [63].
[14] Ibid see at [62] to [63]. See also R v Bauer (A Pseudonym) (2018) 266 CLR 56 at [53] (‘Bauer’).
[15] Papakosmas v The Queen (1999) 196 CLR 297 at [92] (‘Papakosmas’).
[16]Papakosmas at [92] per McHugh J quoting the Australian Law Reform Commission, Evidence, Report No 26 (Interim) (1985), vol 1, at [644]; see also HML v The Queen (2008) 235 CLR 334 at [12] per Gleeson CJ.
[17] Sokolowskyj v The Queen (2014) 239 A Crim R 528 at [54] and [56] to [57].
[18] (2012) 247 CLR 531.
[19] Ibid at [112] to [113].
[20] (2017) 263 CLR 338.
[21] Ibid at [17].
[22]Papakosmas at [91].
[23]Festa v The Queen (2001) 208 CLR 593 at [22] per Gleeson CJ; see also Evans v The Queen (2007) 235 CLR 521 at [165] per Heydon J.
[24] Patel at [113].
[25]BC v The Queen [2019] NSWCCA 111 at [88].
[26] DAO v The Queen (2011) 81 NSWLR 568 at [172].
[27]R v PWD (2010) 205 A Crim R 75 at [90]; RH v The Queen (2014) 241 A Crim R 1 at [176] and Armstrong v The Queen [2017] NSWCCA 323 at [24].
[28] Allen v The Queen [2020] NSWCCA 173.
[29]Ibid at [63] to [64].
[30] Gilbert v The Queen (2000) 201 CLR 414.
[31] Allen at [65].
[32]Ibid at [111].
[33] Ibid at [116].
[34] Ibid at [152].
[35] Ibid at [152] to [159].
[36] Ibid at [153].
[37] Ibid at [160].
[38] [2020] NSWCCA 355.
[39]Ibid at [122].
[40]Visagie.
[41]Ibid at [56]-[62].
[42]Ibid at [60].
[43]De Jesus v The Queen (1986) 61 ALJR 1; R v TJB [1998] 4 VR 621.
[44] Visagie at [62].
[45] At [72] to [74].
[46] CA v The Queen [2017] NSWCCA 324 at [105] to [106]; R v SK; SK v R [2011] NSWCCA 292.
[47] R v O’Brien [2017] NTSC 34 at [42]; Lynch v The Queen [2020] NTCCA 6 at [71] to [72]; R v Gibson [2021] NTSC 28 at [21] to [23].
[48] Allen see at [112].
[49] See IMM at [63].
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