The Queen v Young - [2021] NTSC 66

CITATION:The Queen v Young [2021] NTSC 66
PARTIES:THE QUEEN

v
YOUNG, Brian

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction
FILE NO:22041031
DELIVERED:  2 September 2021
HEARING DATES:  24 August 2021 and 2 September 2021
JUDGMENT OF:  Mildren AJ
REPRESENTATION:
Counsel:
Crown:D Porceddu
Accused:M Aust
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification:    C
Judgment ID Number:  Mil20570
Number of pages:  20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Young [2021] NTSC 66

No. 22041031
BETWEEN:

THE QUEEN

AND:

BRIAN YOUNG

CORAM: Mildren AJ

REASONS FOR JUDGMENT
(Delivered 2 September 2021)

This is an application, firstly, to lead tendency evidence by the Crown, pursuant to a notice given under s 97(1)(a) of the Evidence National Uniform Legislation Act dated 15 August 2021.
The accused is charged with one count of having had sexual intercourse without consent with the complainant in September 1997. There is little doubt that sexual intercourse took place between the accused and the complainant. The defence case is that it did not take place on the occasion which the complainant alleges it took place.
The other issues are whether, assuming it did take place on that occasion, the Crown can prove that the accused intended or was reckless as to whether or not the complainant consented to the intercourse.
The Crown has raised the possibility that there may be a question of mistake of fact raised, but that does not seem to be something that is intended to be raised by the accused's counsel.
The Crown case is that at the time the accused was aged 23 and the complainant was aged 21. The accused was the partner of the complainant's niece, LR, who was living with the accused at 12 Lander Court, Alice Springs. The complainant was visiting relatives, including LR, at their home. During the afternoon or evening, the adults at the residence, which included WC and YR, became variously intoxicated. The complainant in her statement says that she became significantly intoxicated.
During the evening, the complainant alleges that the accused showed sexual interest in the complainant by pinching her and winking at her, and that this was not reciprocated. Her statement goes on to say that, during the night, when everyone was asleep, the accused dragged the complainant out of bed and out of the house. She said that she held onto the doorframe of the laundry door, to prevent him from getting her outside, but she was overpowered by him.
She says that the accused forced her into the back seat of a car parked in the yard and that he then forced himself upon her and had sexual intercourse with her without her consent. She says that she fought and kicked during this incident, but was overpowered. She says that the accused swore at her and, when he tried to pull her pants down, he pushed them down with his foot.
She claims that he ejaculated into her vagina and pulled up his pants and went inside the house. She says that she then dressed herself and went to her cousin’s house. She says she felt sick and shame from the ordeal, and did not make a complaint to anyone.
She says that she later fell pregnant and it has been subsequently proved that the accused is the father of her child. As I understand it, the accused intends to argue that the events that are contained in that statement are all untrue, that no such thing happened on that occasion. But, there was consensual intercourse, as I understand it, at around about that time, on two other occasions.
The Crown intends to lead evidence of a number of assaults and other matters as tendency evidence. The tendencies which the Crown seek to prove, as set out in the tendency notice are:
a.To have a particular state of mind, namely to believe that he is entitled to enforce his will or express his anger against women of whom he is either in a relationship, or with whom he wants to be intimate, using violence.
b.To act in a particular way, namely, to use violence against women with whom he is in a relationship or with whom he wants to be intimate, to coerce them into doing what he wants them to do.
c.To act in a particular way, namely, to drag or attempt to drag women with whom he is in a relationship, or with whom he wants to be intimate, by their hair or clothing into places he wishes them to be, against their will.
d.To act in a particular way, namely, to have sexual intercourse with women who he is either in a relationship with, or with whom he wants to be intimate, against their will.
e.To act in a particular way, namely, to engage in violence against women with whom he is in a relationship or with whom he wishes to be intimate, to enforce his will or express his emotions, in the view of witnesses.
It is put that the issues in the case, to which the tendency reasoning applies, are whether the accused intended to have sexual intercourse with the complainant without her consent, or whether he foresaw the possibility that she was not consenting and proceeded regardless; whether the credibility of the complainant, as to the allegation, of both the uncharged and charged acts against her is enhanced having regard to the accused’s prior conduct; or whether, in relation to the charged act, having regards to the accused’s use of violence the complainant consented to the sexual penetration.
It is not alleged that the accused bashed the complainant on the occasion, that he punched her or kicked her, that he threw anything at her, or that she sustained any physical injuries as a result of the alleged rape. There is an allegation, which I characterise as a vague allegation, that, at some stage, he grabbed her by the hair. I say it is vague because it is the result of a leading question by the detective to a person whom I understand to be Aboriginal.
It is my experience that hair-pulling is very common amongst Aboriginal people when they get involved in disputes, particularly in the Alice Springs area. I have been sitting in Alice Springs for over 30 years. I would hate to even part-estimate the number of times I have heard of confrontations between Aboriginal men and Aboriginal women or, for that matter, between two Aboriginal women, where, during the course of the confrontation, hair was being pulled. There is nothing particularly unusual about that, in my opinion.
The motive for the alleged offending would appear to have been sexual desire for the complainant. At the time of the alleged offence, the accused had no prior convictions for sexual offending, nor for assaulting females. The Crown seeks to rely on two matters where the accused was subsequently convicted of aggravated assault on females and these subsequent convictions related to events which occurred before the alleged offending.
The first of these matters involved an assault on his then wife, LR, on 28 November 1996. In brief, this assault was violent and included grabbing the wife by the jaw, pushing her head against a brick wall, and punching her on the nose, causing her to fall to the ground where she apparently hurt her right eye. He then struck her again to the face, causing her to fall down again.
This assault was against a different victim in entirely different circumstances to the alleged rape. The motive for the assault was a jealousy argument and it was not sexually motivated, in the sense that it was a prelude to forced sexual intercourse with LR.
The next matter is assault again against LR. This assault occurred during the evening of 12 March 1997. On this occasion, the accused was intoxicated and came home and made his way to the bedroom, where the victim was sleeping. He became angry with her and argued with her. The argument appears to have been that the accused was angry because she “just takes off all the time.”
During the argument, the accused attempted to kick her, grabbed her by the hair when she went into the yard after calling the police, dragged her to the ground, and then punched her twice to the back of the head. Again, this assault was quite different from the circumstances of the alleged rape. The motive for the assault was not sexually motivated, in the sense that it was a prelude to sexual intercourse.
The remaining matters all occurred after the alleged rape in the case. The next matter is the aggravated assault on his then-girlfriend, KO, on 5 February 2001. The assault occurred in the context of an argument. During the assault, the accused kicked a plastic chair at her and struck her with a dog collar. Again, the circumstances of this assault are very different from the alleged rape and involved a different victim.
There is another proved aggravated assault on 16 April 2001, involving KO. This involved grabbing her by the front of her T-shirt and slapping her to the face. The circumstances of that case bear no relationship to the alleged rape.
The next matter is also an aggravated assault against KO on 30 May 2001. The assault involved grabbing her T-shirt, pushing her up against the wall of the house, threatening her with a clenched fist, grabbing her with both arms, forcing her into the bedroom and throwing her to the floor. He then sat on her for some ten minutes.
When the victim later attempted to leave the room, he grabbed her and made her lie down with him by wrapping his arms around her. Again, it seems to have nothing to do with any sexual assault, and the assault is very different to the circumstances of the alleged rape.
The next matter involved convictions for four counts of sexual intercourse without consent against yet another victim, MH, on 7 and 8 October 2004. There were counts of aggravated assault as well. There were two separate occasions involved and the victim was a different victim to the victim in this case.
The rapes included both anal and vaginal penetration. The victim was living with the accused as his partner. The assault began with allegations of infidelity which the accused made against the victim.
The rapes involved serious violence against the victim, including choking her, kneeling on her back, chasing her out of the house, standing over her in a threatening manner, punching her in the head, and pulling and dragging her by the hair. This was a very serious matter which resulted in a sentence of imprisonment for 9 years in total for all of the offending, with a non-parole period of 6 years, backdated to 8 October 2004. Again, the rapes and assaults on this occasion bear no resemblance to the alleged offending and were motivated by a desire to punish the victim.
There is then a long gap of 14 years between that offending and the next offence relied upon, which occurred on 21 June 2018. The gap can be explained, in part, because the accused, although released on parole, breached his parole and was required to serve the whole of his sentence. This would account for 9 years, plus the time he spent in custody for about 15 months on other unrelated matters, and there also appears to be a period of his being released on parole for what appears to have been, at the most, 4 months.
The offending on 21 June 2018 involved yet another female partner, LJ, during which there was a drunken argument, which resulted in the defendant hitting her to the face, causing her to fall and hit her head on a gutter, and then stomping on her head with his foot.
The next matter occurred on 9 April 2019 and it involved the victim, LJ, again. The aggression started as a result of a request by the victim to travel to Western Australia to visit her mother. This angered the accused and he threatened her with black magic. He chased her out of the house, he grabbed her by the hair and pulled her to the ground, causing her to hit her head on the cement guttering.
The next matter involved LJ again on 21 October 2020. He had driven the victim to the Congress Clinic to pick up some medication for her. When she got out of the car, he got angry and demanded that she get back in. She continued to walk towards the doors of the clinic. Then he got out of the car and he grabbed her by the hair and shirt collar and dragged her back to the car, whilst yelling profanities at her.
What this offending undoubtedly shows is that the accused is a person of bad character, and it shows that, when he gets angry with his partner for some reason, he is prone to using excessive violence. What it does not show is that he is prone to using rape on his partner, with the exception of the one case to which I mentioned, involving MH. The assault in that case began with allegations which the accused made against the victim of infidelity. Other than the fact that he, amongst other things, dragged her by the hair, there is not much in the way of a connection between the manner of the rapes and the alleged offending in this case. In fact, it is quite a different case entirely. It involved his partner. It involved a period of in excess of 24 hours, from what I can gather, in which there were four rapes involving two separate occasions and where the rapes include both vaginal and anal penetration. The level of violence in that case was very serious.
This contrasts with the case at hand in a number of respects. There was considerably less violence. There was no choking, kneeling on her back, punching her in the head, although there was pulling and, on the Crown case, dragging her by the hair.
Then, there is the long gap of 14 years between that offending and the next offence relied upon, which I have already mentioned. It seems to me that none of these cases are really relevant to what the jury is required to decide in this case.
In the case of R v Bauer,[1] the High Court had to deal with an appeal relating to tendency evidence, in relation to charged and uncharged sexual acts. The Court delivered a joint judgement of Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. One of the things that the Court was attempting to do was to deal with differences of opinion that had arisen, particularly in state courts, about tendency evidence, following earlier rulings by the court, particularly in IMM v R and the case of Hughes.[2] At page 82, par [48], the Court said this:
Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her, (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.
That is relevant to the uncharged act in this case. But the problem with the uncharged act – which I’ll come to separately – is its vagueness. Dealing further with what the court said in Bauer, at [58]:
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
The difficulty is to find, in any of these cases that are referred to in the tendency notice, that link which gives the offending significant probative value. In this case, apart from the allegation of dragging the victim by the hair, there is no common feature about the offending involving different victims that increases the likelihood that the complainant’s account of the offending in this case is true. Therefore, I find that none of prior aggravated assaults, whether considered individually or together, have significant probative value. Further, I consider the offending is irrelevant. It throws no light on the circumstances of the offending in this case.
So far as the alleged uncharged act is concerned, although that allegedly involved the same victim as in this case, the evidence in that case does not show that the accused – or for that matter, anybody else – actually had sexual intercourse with the complainant or, for that matter, even attempted to do so. There were a number of other people, according to the complainant's statement, who were in the vicinity. The accused was only one such person. There was a person, according to her, that spoke to her on two occasions that she went to the toilet, and, from what I can understand from her statement, invited her on at least one of those occasions to, “Come here”, whatever that may mean.
According to her statement she was really heavily intoxicated, and she woke up on the ground with her legs apart and her pants – and I gather, her underwear – pulled down off one leg. She was, as I understand it, lying on her back. She looked around and saw a number of men that she did not know, including the accused. The only thing she says about the accused is that he was pulling his pants up and he then came over to her and helped her up.
There was no allegation from her that she knows that somebody sexually penetrated her. On the contrary, she is not sure whether that happened or not. There is some evidence from her that she felt as though something had happened to her vagina, although that is very vague, and she thought at the time that, perhaps, she may have peed herself. All in all, the evidence is just too vague to be able to say that it shows any attempt by the accused to have any sexual connection with her, no matter what it was. There is no other evidence to support an inference that the accused had sexual intercourse with her, or indecently assaulted her, against her will.
I do not consider that it goes beyond, at the most, a suspicion that the accused may have done something to her. I do not consider the uncharged act has significant probative value.
I therefore refuse leave to the Crown to call any of the tendency evidence.
So far as the defence application is concerned, the matter is far more complicated than I originally anticipated. The defence case, as I now understand it to be, is that the defendant intends to challenge the account that has been put forward by the complainant and to suggest to her that there was no sexual intercourse at all on that occasion. The defendant intends to put to the complainant that there were two other occasions of consensual sex and he says he is in a position to particularise those times as being at about the same time as the alleged offending.
What is then going to be put is that the complainant's present partner is a violent and controlling partner who has assaulted the complainant in the past and has been the subject of a domestic violence order, which he has breached. It will be put that he has been challenging her fidelity and wants to know who the father of her child is. It is suggested by the defence that this puts context into why she made the complaint to her present partner and then gave a different version to the psychologist, Mr Forbes. The allegations that she made to Mr Forbes involved something quite different. There was certainly no mention of the accused. Her complaint related to multiple rapes committed upon her by members of her family. I note in this respect that there is no suggestion, so far as I am aware, that the accused is related to her.

So the defence case is that the defendant has, in effect, made all this up, as I understand it, either to justify how it was that she became pregnant to the accused and had a son by him – which she did not want to tell her present partner, or, for that matter, her own son about, and that her account is totally unreliable. I think that, in a nutshell, is what the defendant’s case is about on this issue.
Mr Porceddu submitted that the question of pressure being put on the complainant by her son or by her present partner is not supported by their statements to a significant degree. But the evidence shows that the complainant knew a long, long time ago – or at least was aware of rumours a long, long time ago – that the accused was the father of her son and that she herself believed that.
There is evidence that the complainant consulted a psychologist, Simon Forbes, on 8 April 2020. According to his statutory declaration:
… she disclosed that she had been sexually abused by multiple uncles when she was about 22 years old on a number of occasions. She said that the rapes had resulted in the birth of her child Tristan who was now 21 years old. She did not tell me the names of the offenders.
In a consultation with Mr Forbes on 21 May 2020, the complainant said:
… she was worried about what to tell Tristan about her report and the rapes. She stated she had a lot of anxiety about the perpetrators of the rapes coming to her home for retribution for reporting the incidents.
On 28 May 2020, the complainant told Mr Forbes that she:
… went to the police station and told police that she had been raped by her uncles a number of times… she never disclosed to me the names of the perpetrator or perpetrators.
On 23 September 2020 she told Mr Forbes that “she was worried about Tristan becoming angry with the perpetrator and worried about the perpetrator attacking her and her family”.
On 18 December 2020, Mr Forbes called the complainant who said that “she was relieved because DNA results had come back showing that the perpetrator had been identified through forensic testing to be the father of Tristan”.
Counsel of the accused seeks leave to cross-examine Mr Forbes about the allegations, and also for leave to cross-examine the complainant about the alleged sexual assault by her uncles.
So far as questions directed to Mr Forbes are concerned about his communications with the complainant, there is no doubt that the communication between the complainant and Mr Forbes is a confidential communication and it is privileged under s 56B of the Evidence Act 1939 (NT). As such, it is not admissible as evidence at the hearing of a charge or at trial except with leave of the court under section 56E of that Act.
Section 56E of the Act provides:
(1)A court must not give leave to adduce or produce evidence of a confidential communication unless satisfied:
(a)that the evidence will, either by itself or together with other evidence that has been or will be adduced or produced, have substantial probative value in respect of a fact in issue; and
(b)that other evidence of a similar or greater probative value in respect of the matters to which the confidential communication relates is not available; and
(c)that the public interest in preserving the confidentiality of confidential communications and protecting the victim from harm is substantially outweighed by the public interest in admitting into evidence information, or the contents of a document or record, that is of substantial probative value.
(2)Without limiting the matters the court may take into account for the purposes of subsection (1)(c), the court must take into account the likelihood, nature and extent of the harm that could be caused to the victim if the evidence is adduced or produced.
(3)In giving leave to adduce or produce evidence of a confidential communication, the court may:
(a)allow evidence of part only of the confidential communication to be adduced or produced; or
(b)specify the manner in which the evidence is to be adduced or produced.
(4)The court must state its reasons for giving or refusing to give leave to adduce or produce evidence of a confidential communication.
The purpose of the evidence seems to be, as I understand it, to put all of the various complaints about it into context and to show that the complaints are inherently inconsistent. In particular, that she had the opportunity to tell Mr Forbes the truth of the matter. If there had, in fact, been a rape by the accused, she did not do so. She did not even say that they had had sexual intercourse when at that stage, on the defence case, she must have known and did know that the accused was the father of her child, notwithstanding this was not proven by DNA evidence until sometime later. It certainly goes to her credit and it goes to the very issue of whether or not the sexual intercourse took place as alleged. I therefore consider it does have substantial probative value.
I am satisfied in terms of section 56E(1)(b) that there is no other evidence relating to the matters to which the confidential communications relates, other then, possibly, the evidence of the complainant herself. At this stage it is not known what she may say about it. She may admit what she told Mr Forbes, which may make it unnecessary to cross-examine Mr Forbes. She may deny it. The confidential communication is one between her and Mr Forbes. There is no other evidence of it available.
I am also satisfied that the public interest in admitting the evidence substantially outweighs the public interest in preserving the confidentiality of the communications between her and Mr Forbes and that the evidence is of substantial probative value. I am not satisfied that the complainant would suffer any harm, other than embarrassment, in permitting the evidence to be admitted. The evidence will not become public knowledge and will be heard in closed court. It is not likely to be extensive. There is no evidence that her PTSD will become worse as a result. So far as section 56E(3)(a) is concerned, the evidence will be limited to what she told Mr Forbes set out in the passages referred to above.
Leave is therefore granted.
Leave is also required to cross-examine the complainant about whether or not she had in fact been sexually abused by persons other than the accused, as she told Mr Forbes, pursuant to section 4(1)(b) of the Sexual Offences (Evidence and Procedure) Act 1983 (NT).
As that evidence has substantial probative value for the same reasons as the evidence of what she told Mr Forbes, it will be admitted into evidence and leave is granted to cross-examine the complainant about that allegation accordingly.
A further question has arisen as to whether the Crown should be permitted to lead the evidence of the uncharged act as relationship evidence or context evidence. It is difficult to see how it could be either because the time and date when this is said to have occurred is not even approximately specified and it has no bearing or relevance to the charge. Counsel for the Crown is concerned that the complainant may raise it when questioned about the allegations she made to Mr Forbes. If the complainant does make reference to it, I will decide then whether to admit it or not on that basis. As the evidence is to be pre-recorded, if I rule it out, the recording can be suitably edited.

-------------------------------------

[1] [2018] HCA 40; 266 CLR 56.

[2] Ibid, at [47].