THE STATE OF WESTERN AUSTRALIA AND CJF
[2011] WADC 4
•19 JANUARY 2011
[2011] WADC 4
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CRIMINAL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : SLEIGHT DCJ | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
CJF
Catchwords:
Application by the State to lead propensity and relationship evidence - Evidence of prior sexual penetration outside the jurisdiction of the court - Evidence of overtly sexual behaviour towards the complainant - Evidence of non-overtly sexual behaviour towards the complainant - Rulings turn on the nature of the evidence to be presented
Legislation:
Evidence Act 1906, s 31A
Result:
Various rulings
[2011] WADC 4
Representation:
Counsel:
| State of Western Australia | : | Mr B Hollingsworth |
| Accused | : | Mr I D Hope |
Solicitors:
| State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Ian Hope |
Case(s) referred to in judgment(s):
Buiks v State of Western Australia [2008] WASCA 194
Buttsworth v The Queen (2004) 29 WAR 1
Dair v State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A
Crim R 482
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31
WAR 122
DTS v The Queen [2008] NSWCCA 329
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
Horsman v The State of Western Australia [2008] WASCA 190
Mansell v State of Western Australia [2009] WASCA 140
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim
R 457
Pfennig v R [1995] HCA 7; (1995) 182 CLR 461
PIM v The State of Western Australia [2009] WASCA 131; (2009)
196 A Crim R 516
R v ATR [2008] QCA 385
R v McKenzie-McHarg [2008] VSCA 206
R v S, PC [2008] SASC 285; (2008) 102 SASR 199
R v UC [2008] QCA 194
The State of Western Australia v Atherton [2009] WASCA 148
Upton v The State of Western Australia [2008] WASCA 54
Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171
[2011] WADC 4
SLEIGHT DCJ: The accused is charged with the following:
1. Two counts of indecently dealing with a child who he then knew to be his de facto child and who was a child under the age 16 years. 2. Four counts of sexually penetrating a child who he then knew to be his de facto child, and who was a child under the age of 16 years.
The State's application before me is pursuant to s 98 of the Criminal Procedure Act 2004 whereby the State seeks a direction as to the admissibility of certain items of evidence. Most of the evidence is propensity or relationship evidence as defined in s 31A of the Evidence Act 1906.
The accused's trial is to be held at a later date.
Summary of allegations
The State's case can be summarised as follows:
1. The complainant was born in 1996 (which presently makes her aged 14). The complainant is the child of Mrs F who is married to the accused. The accused is the complainant's stepfather.
2. There are two biological children of the marriage of the accused and Mrs F. Both of these children are younger than the complainant, being born in 2005 and 2008 respectively.
3. In December 2005 (when the complainant was aged 9) the family moved from Canberra to Perth. They did so by driving a vehicle across the Nullarbor Plain. The vehicle in which they were travelling broke down at the Nullarbor Roadhouse located in South Australia.
4. It is alleged that whilst the accused was working on the vehicle at night, in the presence of the complainant, the accused pushed the complainant onto the back seat of the vehicle, pulled her pants down and then sexually penetrated the complainant with his penis (the Nullarbor incident). There is no charge in relation to the Nullarbor incident as the alleged offence took place in South Australia and is therefore outside the jurisdiction of the courts in Western Australia.
[2011] WADC 4
5. At the time of the Nullarbor incident, the mother of the complainant was in a nearby motel unit preparing a meal for the family.
6. The complainant says that as a result of this incident she was bleeding from the vagina. The mother of the complainant, Mrs F says that the accused mentioned to her that the complainant was bleeding from the vagina. At the time Mrs F said she assumed that her daughter may have been getting her period. The evidence of the complainant is that her periods did not start until about 12 months later.
7. The complainant alleges that the accused sexually assaulted her numerous times. The complainant participated in a visually recorded interview on 5 January 2010 and made two written statements dated 27 August 2010 and 13 December 2010. In her written statement of 27 August 2010, the complainant states that she estimates the accused sexually assaulted her a further 10 times after the Nullarbor incident. She says these further incidents started happening about six months after the Nullarbor incident. In her later statement dated 13 December 2010, the complainant says the accused sexually touched her 'once every couple of weeks'. The complainant says that most of the incidents occurred in her bedroom or in her brother's bedroom. She alleges the accused would rub his hands over her body and used his penis to have sex with her. The complainant says the accused would come to her bed in the night, touch her, do sexual things to her and then fall asleep.
8. The complainant alleges that the accused told her not to tell anyone and if she did, he threatened to kill her mother and her brother.
9. The complainant states that one night she had set up a tent in the backyard of the family home and she slept the night in the tent. A friend had been in the tent earlier, but had gone home. The complainant alleges the accused came into the tent and in doing so woke up the complainant who was asleep. It is alleged the accused touched the complainant on the breasts and vagina with his hand. The accused then left the tent and returned a short time later in an intoxicated state. He took the complainant's pants down and sexually penetrated her with his penis. It is alleged that the next day the accused told the complainant not to say anything
[2011] WADC 4
because otherwise her brother would be killed. The allegations of this incident are the subject of counts 1, 2 and 3 on the indictment. It is alleged the offences occurred sometime between 1 April 2008 and 22 July 2009.
10. The complainant says she recalls another incident when the accused came into her room, grabbed her by the ankle and pulled her onto the bed. The complainant says that she laid on the bed looking at the accused and he said 'stop looking dumb' and started hitting her. The complainant says that the accused hit her around her abdomen, arms and around her elbow area. She says that he then pulled her pants down and inserted his penis in her vagina. The alleged act of sexual penetration constitutes count 4 on the indictment. The alleged offence is said to have occurred between July 2009 and 19 November 2009.
11. The complainant describes an incident when she alleges the accused came into her bedroom. The accused laid down next to her on a double bed in the bedroom and placed his finger in her vagina for about half an hour. He then laid on top of her and penetrated her vagina with his penis. After the accused had finished he returned to his bedroom. These allegations constitute counts 5 and 6 on the indictment. It is alleged they occurred sometime between 31 October 2009 and 17 November 2009.
13. On 17 November 2009 the Department of Child Protection (DCP) received complaints that the accused was sexually abusing the complainant and instituted an inquiry. Although the complainant was questioned about such matters, she made no allegations.
14. The complainant says that the first person she complained to was a babysitter, Ms W (who was aged 16). This occurred on 24 December 2009. The complainant's evidence was that she had a bruise on her ankle. Ms W asked the complainant whether the accused had caused the bruising. The complainant did not tell her anything, but the complainant says Ms W guessed something had happened and reported it to the complainant's mother. The complainant told her mother that the allegations (being a reference to the inquiry made by DCP) were correct and this led to her mother referring the matter to the police.
| 5 | The State seeks to lead evidence under s 31A of the Evidence Act of the Nullarbor incident and various other items of evidence which will be |
[2011] WADC 4
described later in this decision, which the State alleges demonstrate that the accused had an abnormal relationship with the complainant based upon a sexual attraction for the complainant.
The law
The common law test of admissibility of evidence which tends to prove propensity or disposition is that it ought not to be admitted if there is a rational view of the evidence which when considered with other relevant evidence is inconsistent with the guilt of the accused. This common law test has been replaced in Western Australia by the statutory test in s 31A of the Evidence Act: Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122 [102] - [130]; Di Lena v The State of Western Australia [2006] WASCA 162; (2006) 165 A Crim R 482 [44] - [73]; Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [26], and Dair v State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413.
Section 31A provides as follows:
(1) In this section – 'propensity evidence' means –
(a) similar fact evidence or other evidence of the conduct of the accused person; or (b) evidence of the character or reputation of the accused person or a tendency that the accused person has or had; - 'relationship evidence' means evidence of the attitude or conduct of the accused person towards another person , or class of persons, over a period of time.
(2) Propensity evidence or relationship evidence is admissible in
proceedings for an offence if the court considers –
(a)
that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)
that the probative value 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."
[2011] WADC 4
(3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The wording of the definitions of 'propensity evidence' and 'relationship evidence' are extremely wide. Propensity evidence not only includes similar fact evidence, but 'other evidence of conduct of the accused person'. Accordingly, it goes much wider than the common law definition of 'similar fact evidence'. Likewise the definition of relationship evidence is considerably wider than what relationship evidence meant at common law: Donaldson's case [117] (Roberts-Smith JA).
The first criterion of the admissibility of propensity evidence and relationship evidence contained in s 31A(2)(a) is the evidence must have significant probative value.
The definition of 'significant probative value' was considered by Steytler P in Dair's case. In Dair's case Steytler P said as follows:
Before evidence can have significant probative value it must be such as could rationally affect the assessment of the probability of the relevant fact in issue to a significant extent, i.e. more is required than mere relevance.
After referring to a decision of Haydon J in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 175 - 176 Steytler P went on to state as follows:
Haydon J suggested that significant probative value is something more than mere relevance but something less than a substantial degree of relevance and that it is a probative value which is important or of consequence. He makes the point that the significance of the probative value of tendency evidence must depend upon the nature of the facts in issue to which it is relevant and the significance or importance at which that evidence may have in establishing the facts.
The decision of Steytler P in Dair's case has been cited with approval in subsequent Court of Appeal decisions such as Horsman v The State of Western Australia [2008] WASCA 190; Buiks v State of Western Australia [2008] WASCA 194; Mansell v State of Western Australia [2009] WASCA 140 and The State of Western Australia v Atherton [2009] WASCA 148.
It is not always easy to apply the definition to an evidentiary circumstance. I believe assistance is provided by other dicta.
[2011] WADC 4
In Dair's case Heenan AJA stated as follows [267]:
For the propensity evidence to be admissible, it must 'have significant probative value' thereby emphasising that a merely tenuous, oblique or remote probative potential of the evidence would be insufficient to justify admission.
In Buik's case Murray AJA stated as follows [139]:
The first test of the admission of the evidence is that, in the context of the case, having regard to the whole of the evidence adduced or to be adduced, it has significant probative value. The evidence must be more than merely relevant to the proof of a fact in issue. It must be of such substance and weight that it points strongly to the existence of the relevant fact in issue.
Propensity evidence is potentially significantly probative if it tends to show the accused is likely to commit the crime he or she is charged. The probative force of propensity evidence, assessed by reference to objective probabilities, derives, directly or indirectly, from propensity reasoning: see Noto's case at [24]. Whether propensity evidence is significantly probative will depend upon the circumstances. Often this will involve a consideration of the similarities between the circumstances of the propensity evidence and the charged offences to see if there is any similarity or underlying pattern.
It is clear that relationship evidence is not automatically significantly probative. It is not enough to simply say the jury should be made aware of the full details of the relationship between the accused and a complainant. Evidence of the details of the relationship must have significant probative value. This may arise in many ways but alleged inappropriate conduct to be significantly probative is generally held relevant for one of the following reasons (see Buttsworth v The Queen (2004) 29 WAR 1 [15] – [23] (Murray, Templeman, Wheeler, Miller and McKechnie JJ)):
(1)
the evidence may tend to show a sexual interest in the complainant by the accused of an inappropriate or unlawful nature which provided a motivation, in the form of sexual gratification, for the commission of the alleged offences; or
(2)
the evidence may tend to show that the nature of the relationship is such that the will of the complainant may be overborne; or
[2011] WADC 4
(3) the evidence may tend to show that the relationship is such that the silence of the complainant may be bought or achieved by threats or warnings that to reveal the conduct of the accused will result in harm to the complainant, the accused or some other loved one; or (4) the evidence may tend to show an opportunity for the
commission of the offence or offences charged.When evidence bears these or similar characteristics of relevance it can generally be said the evidence is significantly probative. This is because the evidence offers, potentially, to the plausibility and cogency of the evidence of the complainant and/or the likelihood of the accused committing the offence or offences charged (see Buttsworth [16]). Without this evidence, often the essential background to the charged matters cannot be understood: Upton v The State of Western Australia [2008] WASCA 54 [58].
The second criterion of admissibility of propensity evidence and relationship evidence contained in s 31A(2)(b) is whether the probative value 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.
The risk of an unfair trial is a risk that the jury might uncritically overvalue the probative effect of the evidence or misuse the evidence and conclude that the accused must have committed the offences as charged simply because he has committed other offences or has done other discreditable things rather than confining the use of the evidence to a process of dispassionate logical reasoning (Donaldson's case [127] (Roberts-Smith JA)).
In Dair's case Steytler P at [63] referred to Geoffrey Flatman QC and Dr Mirko Bagaric, 'Non-similar Fact Propensity Evidence: Admissibility, Dangers and Jury Directions' (2001) 75 Australian Law Journal 190, 199 that identified three areas of possible prejudice against an accused where similar fact evidence is admitted into evidence. These three areas of possible prejudice also potentially apply to propensity evidence and relationship evidence admitted under s 31A and can create a risk of an unfair trial. The three areas are as follows:
[2011] WADC 4
1. The jury may attach too much weight to the evidence, that is, over-estimate its cogency.
2. The jury might have a tendency to punish the accused for past misconduct by finding him guilty of the offences charged. This might be due to a bias against the accused leading to sentiments of revulsion and condemnation which might deflect the jury from a rational, dispassionate assessment of the evidence.
3. The jury might be distracted from its principal task by concentrating on resolving whether the accused committed the prior uncharged acts.
The following further principles emerge from the decision of Steytler P in Dair's case [64] – [67]:
1. When considering the issues raised by s 31A(2)(b) the court will take into account any directions that might be given to the jury in an attempt to overcome the prejudice that might be created by the evidence. 2. If the evidence is admissible on the basis of propensity evidence only, then a standard propensity warning may not be required (this follows the judgment of McLure JA in Noto [27]). 3. Having assessed the risk of an unfair trial, the court must turn its attention to the conclusion that fair-minded people would draw from a comparison between the probative value of the evidence against the risk of an unfair trial. 4. Fair-minded people are those members of the public who are not lawyers but have informed themselves of at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. 5. It is not easy to compare the probative value with the degree of risk of an unfair trial. This is particularly so because the risk of the jury misusing the evidence may increase proportionately with the probative value.
In relation to this last point I believe it is instructive to consider the cautionary words of McHugh J in Pfennig v R [1995] HCA 7; (1995) 182 CLR 461 (529):
[2011] WADC 4
If the risk of an unfair trial is very high, the probative value of the evidence disclosing criminal propensity might need to be so cogent that it makes the guilt of the accused a virtual certainty.
The difficulty in applying the tests of admissibility under s 31A is demonstrated by the outcome in the Court of Appeal decision of Dair. Steytler P concluded that the propensity evidence in that case was significantly probative but ought to have been excluded because it did not satisfy the criterion of s 31A(2)(b); Miller JA concluded the evidence was admissible as it satisfied both criteria under s 31A and Heenan AJA concluded the evidence was not significantly probative, but if it had been, it would have satisfied the criterion of s 31A(2)(b).
The Nullarbor incident
The most significant item of evidence that the State seeks to lead in this prosecution is the evidence of the Nullarbor incident.
The accused objects to this evidence on the grounds that it was too remote in time, the nature of the allegations are dissimilar to that of the charges against the accused and there is a risk that the jury may seek to punish the accused for the Nullarbor incident by convicting him of the charges on the indictment.
The first thing to consider is whether the evidence falls within the definition of 'propensity evidence' or 'relationship evidence'.
In my opinion the Nullarbor evidence clearly falls within the definition of propensity evidence. It is at the very least 'other evidence of the conduct of the accused person'. I believe it also falls within the definition of 'relationship evidence'. With other evidence of the complainant that the accused regularly sexually abused the complainant, it is evidence of the conduct of the accused towards the complainant over a period of time.
In my opinion the evidence is significantly probative of the guilt of the accused of the offences with which he is charged because it is evidence of the start of an abnormal sexual attraction of the accused towards the complainant. It tends to show a willingness to give effect to this abnormal sexual attraction by engaging in sexual acts with his stepdaughter, even when the mother is in relatively close vicinity.
| 29 | Although the Nullarbor incident occurred some 2 to 2 1/2 years before the first alleged offence on the indictment, in my opinion even a single act of sexual penetration of a child remains significantly probative |
[2011] WADC 4
of an allegation of an offence occurring some years later against the same child. Such an abnormal attraction to a child sexually is likely to remain relevant for a considerable period of time. A similar view was taken by Hayne J in HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 wherein he stated [109]:
In cases of the present kind, evidence of other sexual conduct which would constitute an offence by the accused against the complainant shows that the accused had then demonstrated a sexual interest in the complainant, and had been willing to give effect to that interest by doing those other acts. The strength of the connection between the offences being tried and the other acts will be affected by the temporal proximity of one to the other and the frequency of occurrence of the other acts. Generally speaking, however, there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried (my emphasis).
There were differences in the circumstances between the Nullarbor incident and the counts on the indictment. The principle differences are that:
(a) the incidents for which the accused has been charged occurred sometime later in time; and (b) the incidents for which the accused has been charged occurred in the family home.
However, notwithstanding the differences, in my opinion the evidence suggests an underlying pattern of abnormal sexual attraction to the complainant and a willingness to engage in sexual activities even when the mother of the child is in relatively close vicinity. Further, in any event the complainant's evidence of other sexual activities starting about six months after the Nullarbor incident provides a temporal link between the Nullarbor incident and the first charge on the indictment so that the difference in time becomes less significant.
Accordingly, I am satisfied that the criterion set out in s 31A(2)(a) has been satisfied.
The second question to consider is whether the probative value 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.
[2011] WADC 4
As mentioned above it is a relevant consideration to take into account that the jury might have a tendency to punish the accused for past misconduct by finding him guilty of the offences charged, and also it is a relevant consideration to take into account that uncharged acts might distract the jury from its principal task.
However, in this case I conclude that the Nullarbor incident is important evidence that the jury should hear. Firstly, it is evidence which is contextual. The obvious question to ask when one is informed of alleged ongoing sexual abuse is 'when did this first start?' Also, in my opinion, a child is likely to remember the first occasion. To deny the jury evidence of the first alleged occasion would in my opinion unfairly deny the jury of the full context of the allegations.
Secondly, in my opinion the Nullarbor incident is cogent evidence of the accused having an abnormal sexual attraction to a young child, the complainant and a willingness to give expression to that attraction by engaging in sexual activities with the child.
Taking into account the relevant principles as I have mentioned earlier in this decision, I conclude that the probative value 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.
Accordingly, I rule that the evidence is admissible.
Other items of evidence
There are a considerable number of other items of evidence that the State seeks to lead as circumstantial evidence suggesting that the accused had a sexual interest in the complainant. Initially counsel for the accused only objected to some of these items but during the course of submissions it appeared that the accused did not concede any of the items and I should proceed on the basis that all items were objected to by the accused.
Evidence of a sexual interest by an accused person in the complainant is relevant circumstantial evidence increasing the probability that the accused committed the alleged offences: HML v The Queen (Gleeson CJ [2] and Hayne J (Gummow and Kirby JJ) [103]). Each individual strand of evidence upon which the State relies to establish the sexual interest to be admissible must meet the criteria of s 31A. However, it must be emphasised that when considering the question of whether the evidence is significantly probative the evidence is not
[2011] WADC 4
examined in isolation. The wording of s 31A(2)(a) makes this clear. The subsection provides that the issue of whether propensity evidence or relationship evidence is significantly probative is to be based upon either the evidence itself or having regard to other evidence adduced or to be adduced.
Counsel for the State referred to the decision of PIM v The State of Western Australia [2009] WASCA 131; (2009) 196 A Crim R 516 where it was accepted that relationship evidence tendered in that case, suggestive of a sexual attraction by the accused to the complainant, was admissible under s 31A. The items of evidence were summarised in the decision of Pullin AJ at [111] – [112] as follows:
(a) The 'pants off' episode The complainant gave evidence that when she went to sleep on 21 February 2003, she had her pyjama pants on. She said that she woke in the morning to find that they had been removed. The inference was open that it was the appellant who removed them.
(b) Indecent request The complainant gave evidence that when staying at the appellant's home, the appellant asked the complainant whether he could 'see your vagina' and said 'show me like your vagina or your breast or else'.
(c) Hands down pants The complainant gave evidence that when the appellant would come over to her house, he would sometimes try to put his hands down her pants.
(d) The Vaseline incident The complainant gave evidence that the appellant asked her to buy Vaseline and when she asked him what it was for, he said 'its because I want to get excited for you'.
(e) The shower incident The complainant gave evidence that when the appellant was having a shower on one occasion, the appellant asked whether she wanted to come in and join him in the shower.
Other incidents were as follows:
[2011] WADC 4
(f) The incident where the appellant showed the complainant a Playboy magazine The complainant gave evidence that she was shown a Playboy magazine. This was evidence deliberately elicited from the complainant in cross-examination. The appellant also gave evidence about this. In effect, counsel for the appellant wanted the evidence in to support his claim that this was the only thing he did which amounted to the 'ungodly' actions he was referring to and apologising for in his letters.
(g) Threat after shower On the occasion when the complainant said the appellant asked if she would join him in the shower, her mother arrived home at that moment and the appellant threatened her that he would put a gun down her throat if she told her mother.
(h) On an occasion when the appellant was reading a magazine which she described as 'yucky' and 'gross', the appellant said 'if you don't look at it with me I'll hurt you' (AB 137). This appears to relate to count 3. Other evidence given by the complainant in relation to this was that the appellant said 'If you tell your mum … I'll shoot you in the head' (ts 43). (i) The belt incident
The complainant gave evidence about being struck with a belt.
It was submitted that this amounted to an assault.
Counsel for the State also referred to a review of a number of cases by Buss AJ in PIM's case at [246] – [281] including R v UC [2008] QCA 194; R v McKenzie-McHarg [2008] VSCA 206; R v S, PC [2008] SASC 285; (2008) 102 SASR 199; R v ATR [2008] QCA 385, and DTS v The Queen [2008] NSWCCA 329. I do not propose to set out in detail the relationship evidence led in those cases. However I think it is correct to observe that the relationship evidence in PIM's case, and the relationship evidence in the cases cited by Buss AJ, generally (but not always) was of a nature involving quite overt sexual acts such as touching of the breasts or genital areas, touching on the bottom with remarks about sex, sending sexual messages, taking naked photos of the complainant, and showing the complainant pornographic images. The items of evidence which the State seeks to lead in this case are generally of a less sexually overt nature.
I will now examine each of the disputed items of evidence.
[2011] WADC 4
Evidence relating to the accused being in the complainant's bedroom
The State seeks to lead evidence of the accused being in the complainant's bedroom on a regular basis. This evidence is particularised as follows:
(a) Evidence of Mrs F (the complainant's mother):
(i) Frequently she observed the accused laying on the complainant's bed with the complainant. (ii) Detailed evidence concerning the accused being in the complainant's bedroom. This evidence includes on regular occasions the accused would go into the complainant's bedroom and lay on her bed. Between April 2008 and 22 July 2009 the accused would go to the complainant's bed five to six days of the week. When questioned about this he would say he could not sleep or the complainant had a nightmare. If challenged he would get angry with Mrs F. (b) Ms L, (the sister of Mrs F and aunt of the complainant) Her evidence is that when she was visiting the house she saw the accused leave the room one morning.
(c) Ms A, (sister of the accused) Her evidence is that she observed the accused enter the complainant's bedroom and later he was found asleep on the complainant's bed.
The relevance of this proposed evidence must be considered in the context of the complainant's evidence. The complainant's evidence is that:
(1) most of the sexual acts occurred in her bedroom or in her
brother's bedroom; and(2) the accused would come to the complainant's bed in the
night and touch her and do other sexual acts; and(3) counts 4, 5 and 6 on the indictment occurred in the
complainant's bedroom.
| 46 | In my opinion the evidence of Mrs F, Ms L and Ms A of occasions that the accused either went into or came out of the complainant's bedroom is both propensity evidence and relationship evidence. |
[2011] WADC 4
The evidence is significantly probative of the allegations contained in counts 4, 5 and 6 on the indictment. The evidence demonstrates that the accused had a propensity to go to the complainant's bedroom and is generally supportive of the alleged conduct of the accused as described by the complainant of the accused regularly visiting the complainant in her bedroom. In my opinion a jury could reasonably infer his conduct was abnormal and part of the evidence suggestive of a sexual interest in the child. Further, the evidence of his visits to the bedroom at night confirms he had an opportunity to commit offences in the bedroom as alleged.
Further, I conclude that the risk that this evidence will be incorrectly used by the jury so as to create an unfair trial is minimal. I am satisfied that the probative value 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.
Accordingly, I rule that the evidence that the State proposes to lead as to the accused's visits to the complainant's bedroom is admissible.
Evidence of inappropriate physical conduct
The State seeks to lead evidence of what is broadly described in the written submissions as 'inappropriate physical contact'. The evidence the State seeks to lead is as follows:
(a) Evidence of Mrs F (the complainant's mother)
(i)
The complainant was overly affectionate towards the accused and would sit on his lap.
(ii)
The complainant and the accused were often under a blanket watching television, sometimes cuddling.
(iii)
The complainant always sat on his lap, even when there were spare seats.
(iv)
The accused would always go into the bathroom when the complainant was having a bath. A couple of times he had shaved her legs for her when she was in the bath.
(v)
When the accused was having a shower the complainant would jump in as he was jumping out. Both were not wearing any clothes. The door was open.
(b) Evidence of Ms W (a 16-year-old babysitter)
[2011] WADC 4
(i) The accused was observed slapping the complainant's backside while she did the dishes.
(c) Evidence of Ms A
(i) The complainant always sat on the accused's knee. (ii) inappropriate cuddling occurred between the accused and the complainant like partners would.
The evidence of intimate physical conduct can be suggestive of a sexual interest in a child if the nature of the physical conduct is inappropriate.
In my opinion the evidence of Mrs F of the accused going into the bathroom when the complainant was having a bath is relationship evidence capable of an inference that the accused was inappropriately physically familiar with the complainant as a result of a sexual attraction in her. This is particularly so in relation to the evidence that the accused would go into the bathroom when the complainant was having a bath and on a couple of occasions the accused shaved the legs of the complainant. Counsel for the accused, who conceded very little in his submissions, conceded that the shaving of the legs was inappropriate behaviour.
The evidence in my opinion also fulfils the criteria of s 31A(2)(a). The evidence has significant probative value of a sexual interest by the accused in the complainant and therefore of the commission of the alleged offences.
In my opinion the evidence may create a prejudice against the accused in that the jury might be distracted from its principal task by concentrating unduly whether the accused had acted inappropriately in the bathroom as alleged. This distraction might occur as people may have different views about nakedness in the home and appropriate bathing habits in a family setting. However, notwithstanding these risks, I conclude that fair-minded people will think that the public interest in adducing all relevant evidence of a physical attraction between the accused and the complainant must have priority over the risk of an unfair trial.
The evidence of the accused and the complainant jumping in and out of the shower naked in each other's presence is of a different nature. There is not the same intimacy as the bath allegations. In my opinion such behaviour is not significantly probative of the commission of the alleged offences. Even if the evidence of these shower incidents was
[2011] WADC 4
significantly probative, it is likely to be an issue which is unduly distracting to the jury. The jury would need to decide not only if the acts occurred but if the acts were manifestations of a sexual interest. This is likely to be a complex issue given the various attitudes that prevail in relation to nakedness in the family environment. In my opinion the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
The other evidence of physical conduct which the State seeks to lead to establish a sexual attraction is not clearly of an inappropriate nature. Evidence of the complainant sitting on the accused's lap, watching television and sometimes cuddling, and the accused slapping the complainant on the backside are all examples of equivocal conduct. It would be a regrettable consequence of s 31A if such equivocal conduct was admitted into evidence on the basis it was suggestive of a sexual interest. The admission of such evidence for this purpose is likely to make stepfathers (or even biological fathers) concerned about showing affection to children in case it is misinterpreted.
In my opinion the evidence of these other physical acts is not significantly probative of a sexual attraction and therefore is not admissible under s 31A for this purpose.
In the alternative, in my opinion the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. I believe there is a significant risk that the jury would become distracted by this evidence and the task of evaluating whether the conduct was inappropriate or not.
Accordingly, I rule the evidence the State seeks to lead of other physical conduct as evidence of a sexual interest by the complainant in the accused is inadmissible. However that is not the end of the matter. In my opinion the evidence is admissible to establish that the accused and the complainant had a close relationship. In my opinion the evidence used for this purpose is significantly probative of the commission of the alleged offences as it is more likely the complainant would be compliant to the sexual advances of the accused in such circumstances. The evidence tends to rebut any suggestion that the complainant would not have allowed the accused to come into her bedroom or had an animosity
[2011] WADC 4
towards the accused which made it likely that she would have protested if he had sexually interfered with her. The admissibility of the evidence for this purpose is not dependent on any suggestion that the physical contact was excessive or inappropriate. Used for this purpose I conclude the evidence fulfils the criteria of s 31A. It will be necessary for the trial judge to give a direction to the jury as to the purpose for which the evidence can be used: Noto's case at [22].
I conclude that the expression of opinion of Mrs F that the accused was 'overly affectionate' and the evidence of Ms A that the accused inappropriately cuddled the complainant as if they were 'like partners' is inadmissible. The evidence of the witnesses in this regard is opinion evidence only. This does not prevent them from giving evidence describing the actual physical contacts for the purpose of establishing a close relationship.
Alleged undue attention shown by the accused towards the complainant (including gift buying) and an alleged preoccupation by the accused with the complainant's appearance
The State seeks to lead evidence of alleged undue attention by the accused towards the complainant and also an alleged preoccupation by the accused with the complainant's appearance.
This evidence is particularised as follows:
Undue attention towards her and preoccupation with her appearance
(see also gift buying):
a. The complainant: i. The accused stayed with her and paid her the most attention out of the children.
ii. The accused forcing the complainant to use the Ab King Pro.
iii. The accused not wanting the complainant to associate with boys.
b. Mrs F:
i.
The accused paid the complainant more attention than the other children.
ii.
The accused forcing the complainant to use the Ab King Pro.
[2011] WADC 4
c. Ms W:
i.
This witness felt weird about relationship and the accused paid the complainant too much attention.
ii.
The accused paid the complainant more attention than his actual son.
d. Ms L:
i.
The accused forced the complainant to use the Ab King Pro.
ii.
The accused had knowledge of and made comments regarding the complainant's bra size. (If the complainant came out with a size 12A cup, he would say in front of people to go and pull on the right bra size).
e. Ms A:
i.
A comment to the complainant that her skirt was too short and the accused said it was fine.
ii.
The accused forced the complainant to use the Ab King Pro.
iii.
A camping trip in which the complainant and the accused left immediately to go shopping and the accused bought her a short skirt and then for the rest of the trip spent it in the tent together, some of it alone.
f. Ms NF (sister of the accused):
i.
The complainant was not going to school due to her interaction with the accused.
ii.
The accused and the complainant were regularly messaging each other at school.
Gift buying, in particular inappropriate clothing:
The significance of this evidence is compounded by the accused seldom buying any gifts for his wife or the other children and the nature of the clothes that he bought her. The clothes he had her wear suggest a sexualising of the complainant and an attempt to dress her beyond her age. Evidence of this nature is routinely led in child sex cases.
a. The complainant:
i.
The accused has often purchased the complainant gifts. He has purchased a lap top computer, a trampoline , a bed
[2011] WADC 4
and clothing. These gifts were not bought as Christmas or
birthday presents.ii. The complainant recalls the accused buying clothes that made her look older, which included short skirts and a g-string.
b. Mrs F:
i. The accused purchased a laptop, miniskirts and lingerie for the complainant. c. Ms A:
i. The accused spoilt the complainant with gifts. ii. The complainant received a laptop and Mrs F never got one. iii. The accused bought the complainant short skirts and revealing tops. d. Ms NF:
i. the accused purchased a laptop for the complainant.
The 'Ab King Pro' referred to in the above items of evidence is a physical exercise apparatus. The evidence of Mrs F concerning the Ab King Pro at page 157 [41] of the Brief for Prosecution is as follows:
C [the accused] has always put pressure on B [the complainant] to lose weight. He thought she was fat even though she wasn't. He would make her use an Ab King Pro in his presence. He bought the Ab King Pro.
The evidence of the complainant which is at page 148 [66] of the Brief for Prosecution is as follows:
C [the accused] used to call me fat and used to get me to do 100 sit-ups on the Ab King Pro. He would try to get mum to do the same. He would try to get me to do this every day. C [the accused] did not use the Ab King Pro.
The evidence is only relevant if it is suggestive of a sexual interest in the complainant. In my opinion it is not significantly probative of a sexual interest to encourage a young person to engage in daily exercise and accordingly does not fulfil the criteria of s 31A(2)(a). Even if it is significantly probative, the issue of whether the accused was excessively requesting or insisting on the use of the Ab King Pro is likely to be a distracting issue for the jury to its principal task and in my opinion the
[2011] WADC 4
probative value of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Accordingly, I rule that the evidence relating to the Ab King Pro is
inadmissible.
The evidence of the complainant that the accused did not want her to associate with boys is contained in pars 77 and 78 of a written statement made by the complainant on 13 December 2010. The evidence is as follows
C [the accused] never let me go out at all. It was rare I got to go out.
If I went to see my friends C would ask if there would be any guys there.
If there was going to be he would freak about it and say no straight away.Given the continuous nature of the alleged sexual abuse, I conclude that the accused's reaction to the complainant meeting with boys is relationship evidence significantly probative of the commission of the alleged offences. I believe the evidence tends to show behaviour towards the complainant which goes beyond simply the protective role of a parent. The evidence suggests the accused would never allow her to mix with boys. This type of behaviour on the part of the accused is suggestive of him being jealous and wanting to keep the complainant for himself. I conclude that with the other evidence of the complainant as to the continuous nature of the abuse, the evidence is significantly probative of the accused committing the alleged offences. Further, I conclude the probative value 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.
In relation to the evidence of purchasing adult type clothing it is common practice for young girls to wear adult style clothing such as short skirts and tops. In my opinion the purchase of such clothing is equivocal and is not significantly probative of any sexual interest. In any event it is based upon subjective judgments by the witnesses that the clothing was adult-like and inappropriate. In light of the equivocal nature of the evidence and the risk of the jury becoming distracted by the issue, I am not satisfied that it meets the criteria of s 31A(2)(a) and s 31A(2)(b).
[2011] WADC 4
However I take a different view in relation to the evidence that the accused purchased for the complainant a g-string and the accused commented about the complainant's bra size. In my opinion this evidence is capable of supporting a suggestion that the accused was trying to sexualise the child because of his sexual interest in her. In my opinion it is significantly probative of the accused having a sexual interest in the child and therefore significantly probative of the commission of the alleged offences. Further, I believe the probative value 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.
The evidence of the complainant, Mrs F and Ms W that the accused paid more attention to the complainant, and the evidence of Ms A that the accused spoilt the complainant with gifts, is in my opinion inadmissible evidence under s 31A. The State seeks to lead the evidence as relationship evidence supporting an inference that the accused had a sexual interest in the complainant. Although the evidence is capable of such interpretation it is not compelling evidence of a sexual interest. The alleged conduct is not overtly sexual in nature. As such its cogency is limited. The evidence of the complainant, Mrs F and Ms W that the accused showed more attention to the complainant and the evidence of Ms A of spoiling the complainant are subjective assessments of limited reliability. The evidence is potentially explainable on the basis that the complainant was older than the other children or that the accused was seeking to promote a father/daughter relationship with his stepdaughter. In my opinion the evidence is not significantly probative of a sexual interest in the complainant.
In any event, in my opinion there is a risk that the leading of this evidence to establish a sexual interest is likely to be unduly distracting to the jury and potentially could convert a significant portion of the trial to an audit of the accused's attention to and gift buying for the complainant compared with other family members. In my opinion the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
In relation to the proposed evidence of Ms A as to the camping trip there was no evidence that anything sexually improper happened in the tent. In my view, the evidence fails to have any significant probative value and even if it did the risk that the jury may pay too much attention
[2011] WADC 4
to this item of evidence or give it too much weight leads me to the
conclusion that the criteria in s 31A(2)(b) has not been satisfied.
Likewise the evidence of Ms NF of the reason the complainant missed school and of regular text messaging lacks cogency in terms of suggesting a sexual interest. The evidence is based upon value judgments by Ms NF. There is no direct evidence of the contents of the messages or the number of messages. I am not satisfied the evidence has significant probative value or meets the criteria of s 31A(2)(b).
Alleged inappropriate comments or other behaviour of the accused towards the complainant
The State also seeks to lead further evidence which the State has particularised in the written submissions as follows:
Inappropriate comments or other behaviour of the accused towards the complainant:
a. The complainant:
i. The accused walked around naked all the time. ii. The accused turned the complainant against her mother. iii. The accused told the complainant to have a pregnancy test. b. Mrs F:
i.
The accused allowed the complainant to follow him to the toilet and went to the toilet in full view of her.
c. Ms W:
i.
The accused accused the complainant of looking up pornography.
d. Ms L:
i. The accused walked around the house naked. e. Ms A:
i.
The complainant would always follow the accused to the toilet and he wouldn't close the door; the accused would follow her to the toilet.
f. Ms NF:
[2011] WADC 4
i. The accused sucking a long balloon and referring to a head job when interacting with the complainant.
ii. The complainant wanted to be a stripper and the accused did not care that she did.
Firstly, the evidence of the complainant that the accused suggested to her that she should have a pregnancy test is highly relevant given that he is alleged to have had regular sexual intercourse with the complainant. In my view the evidence has significant probative value of the alleged sexual acts occurring which constitute each of the counts on the indictment and the probative value of the evidence compared with 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.
I conclude that the evidence of the accused walking about the home naked is inadmissible. There is no evidence that the nakedness was directed at the complainant. People have different views about the appropriateness of nakedness in their own home in front of children. I do not believe it is significantly probative of the accused having a sexual interest in the complainant but in any event I conclude that the issue is likely to be distracting to the jury from its principal task and I am not satisfied that s 31A(2)(b) has been satisfied.
However, the evidence of the accused going to the toilet in view of the complainant and also following the complainant to the toilet is less clear. The fact that Ms A says in her evidence that the accused would not close the door does not suggest there was an act of intimacy with the complainant but a practice which might be viewed as lacking in privacy or modesty. The evidence does not involve overt acts of sexual behaviour. I conclude it is not significantly probative of commission of the alleged offences. In doing so, I draw a distinction with the accused's behaviour in going to the bathroom with the complainant. The visits to the bathroom were coupled with the evidence of the accused on a number of occasions shaving the complainant's legs in the bath. As stated earlier in this decision, I concluded that this evidence of shaving the complainant is relationship evidence capable of an inference that the accused was inappropriately physically familiar with the complainant as a result of a sexual attraction. Even if the evidence of the accused's toilet behaviour was significantly probative, it is likely to be an issue which is unduly distracting to the jury. The jury would need to decide not only if the acts occurred but if the acts were manifestations of a sexual interest. This is likely to be a complex issue distracting the jury from its principal task.
[2011] WADC 4
In my opinion the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
In my opinion the evidence of the complainant that the accused turned the complainant against her mother is inadmissible. Firstly, it is a subjective assessment by the complainant. Secondly, it is only tenuously relevant as to whether the accused was sexually abusing the complainant. I conclude it is not significantly probative and nor does it fulfil the criterion of s 31A(2)(b).
The next item of evidence to consider is the evidence of Ms W of the accused accusing the complainant of looking up pornography. There is no evidence in the Brief for Prosecution as to whether the complainant was using the internet to look up pornography. If she was then the accused's comments were entirely appropriate. In such circumstances I do not believe the evidence is significantly probative of any offence. On the other hand if the complainant was not looking up pornography, then the accused by accusing the complainant of doing so, given her age, can be viewed as sexualising the child. In my opinion to sexualise a child complainant in such a way is significantly probative of a sexual interest. However, in the absence of any evidence whether the complainant was using the computer to look at pornography, the evidence of the alleged comment by the accused has no probative value as to the commission of the charged offences.
In relation to the evidence concerning the accused's alleged comment about a 'head job' in the presence of the complainant, I conclude the evidence is admissible. The evidence of Ms NF is that on one occasion she observed the accused lying on the floor close to the complainant. Ms NF observed the accused sucking on a balloon and saying something about a head job. Ms NF then said something like 'What?', and the accused replied 'Oh nothing'. The accused's counsel objects to this evidence on the basis that the witness did not hear exactly what was said and is speculating about what was said. However I believe it is sufficient that Ms NF observed the accused sucking on a balloon and she heard the accused use the words 'head job' in the presence of the complainant.
I conclude that this evidence is relevant as evidence suggesting the accused was sexualising a young child and suggests sexual intimacy with her. I believe this evidence is significantly probative of a sexual interest in the complainant and also meets the criteria of s 31A(2)(b).
[2011] WADC 4
In relation to the evidence that the complainant was heard to say one day that she wanted to be a stripper I conclude this evidence is inadmissible. The comment was made by the complainant, not in the presence of the accused and therefore not encouraged or prompted by the accused. In my opinion it is neither propensity evidence or relationship evidence within the meaning of s 31A. Even if it was, it is neither significantly probative and nor does it meet the criteria of s 31A(2)(b).
Intimacy between the accused and Mrs F
The State seeks to lead evidence of the lack of intimacy between the accused and his wife Mrs F.
This evidence is particularised as follows:
Intimacy between the accused and F:
a. Mrs F: i. She was rarely intimate with the accused.
b. Ms A:
i. She rarely saw the accused and Mrs F cuddle in the same way that the complainant and the accused did.
The State seeks to lead this evidence as being circumstantial evidence that the accused was engaging in sexual activities with the complainant and this led to a lack of sexual interest in or intimacy with his wife. However, the deteriorating state of a marriage and reduced sexual activity within a marriage can be due to all sorts of reasons. The evidence is in my opinion significantly probative as it is consistent with the accused having a sexual interest in someone else, that is the complainant. However, in my view, the issue is likely to be unduly distracting to a jury. It might lead to potentially lengthy evidence analysing the nature of the accused's relationship with his wife over many years. I conclude that the probative value of the evidence compared to the risk of an unfair trial is such that fair-minded people would not think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
Accordingly, the evidence is in my opinion inadmissible.
[2011] WADC 4
Evidence of threats made after sexual penetration concluded and the impact of them
The State seeks to lead evidence in relation to threats made by the accused to the complainant and acts of alleged violence by the accused against the complainant. This evidence is particularised as follows:
a. Complainant:
i. Threatened to kill mother and brother if she told. ii.
Threatened to kill the complainant's brother the day after the tent incident.
iii.
Why the complainant did not scream out, how she would deal with the situation and that she is afraid of the accused.
Violence to complainant:
a. Complainant:
i. The accused and her used to play fight and he was a bit rough. b. Ms L:
i. Witnessed the accused kick the complainant out of the blue. c. Ms A:
i. The accused was aggressive to the complainant one minute and very affectionate the next. d. Ms NF:
i. The accused thumping the complainant regularly. ii. The accused was either too dominant or too nice.
In my opinion the evidence of threats made to the complainant is relevant evidence as to why the complainant was compliant with the continuing acts of sexual abuse and did not complain to anyone over the period of the sexual abuse. This type of evidence is frequently admitted in trials of this nature. In my opinion it meets the criteria of s 31A.
| 89 | The other evidence of violence between the accused and the complainant is to be assessed in the context of the alleged threats. |
[2011] WADC 4
The complainant's evidence at page 152 [21] of the Brief for Prosecution is as follows:
It didn't occur to me to scream out. I was concentrating on surviving, to get through it and get out of it. Screaming would have made it worse because he was very violent and screaming would have made him hit me.
Later at [23] the complainant said she was afraid of the accused.
In my opinion the evidence of the accused's violence towards the complainant and her perception that he played 'a bit rough' gives credibility to the complainant's evidence that she was afraid of him and it therefore is relevant. In my opinion it is relationship evidence within the meaning of s 31A that is significantly probative of the alleged sexual acts occurring continuously as alleged by the complainant without her protesting. Although there is a risk to the jury that it may become distracted by this evidence, I conclude that the probative value 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.
However, the evidence of Ms NF that the accused was either too dominant or too nice is opinion evidence that is inadmissible.
Evidence that the accused told by others long ago that his behaviour was inappropriate
The State wishes to adduce evidence that following investigations by the Department of Child Protection the accused was warned by his wife and others about the inappropriateness of his behaviour in the manner in which he openly showed affection towards the complainant and also went to her bedroom on a regular basis. It is submitted that the accused's failure to respond to warnings is not consistent with an innocent person or a person who is bothered about further propagating these legitimate concerns voiced by various people. The State submits that the accused's failure to respond to the warnings is admissible evidence independently of s 31A.
In my opinion the evidence is irrelevant. The accused's lack of response is equally explainable on the basis that he was not sexually interfering with his stepdaughter and he believed the concerns of others were irrelevant and not a matter which required him to change his behaviour. Even accepting the interpretation of the evidence as suggested by the State, I do not believe the lack of response by the accused to the
[2011] WADC 4
concerns expressed by others is relevant as to whether he committed the
alleged offences. In my opinion the evidence is inadmissible.
Summary
A summary of my rulings is contained in the annexure to this
decision.
The directions hearing was argued before me on the papers making up the Brief for Prosecution, together with some additional disclosure of the evidence of Ms NF concerning inappropriate comments. Accordingly, my rulings are based upon the predictive evidence of the State witnesses. However, it should be remembered that during the course of the trial evidentiary issues might arise due to the cross-examination by the accused's counsel or evidence being led by the accused. Such issues may give rise to a situation where rulings made by me as to admissibility will no longer be applicable.
[2011] WADC 4
SLEIGHT DCJ
ANNEXURE
| 1. | Nullarbor incident | Admissible |
| 2. | Evidence relating to the accused being in the complainant's bedroom |
(a) Evidence of Mrs F (the complainant's mother): Admissible (i) Frequently she observed the accused laying on the complainant's bed with the complainant.
(ii) Detailed evidence concerning the accused being in the complainant's bedroom. This evidence includes on regular occasions the accused would go into the complainant's bedroom and lay on her bed. Between April 2008 and 22 July 2009 the accused would go to the complainant's bed five to six days of the week. When questioned about this he would say he could not sleep or the complainant had a nightmare. If challenged he would get angry with Mrs F.
(b) Ms L (the sister of Mrs F and aunt of the
complainant):
Her evidence is that when she was visiting the
house she saw the accused leave the room one
morning.Admissible
(c) Ms A (sister of the accused): Admissible Her evidence is that she observed the accused enter the complainant's bedroom and later he was found asleep on the complainant's bed.
[2011] WADC 4
SLEIGHT DCJ
3. Evidence of inappropriate physical conduct
(a) Evidence of Mrs F (the complainant's mother):
(i) The complainant was overly affectionate Inadmissible of towards the accused and would sit on his sexual interest but lap. admissible of close
relationship
(ii) The complainant and the accused were often under a blanket watching television,
Inadmissible of
sexual interest but sometimes cuddling. admissible of close
relationship(iii) The complainant always sat on his lap, even when there were spare seats.
Inadmissible of
sexual interest but admissible of close relationship
(iv) The accused would always go into the bathroom when the complainant was having a bath. A couple of times he had shaved her legs for her when she was in the bath.
Admissible
(v) When the accused was having a shower the complainant would jump in as he was jumping out. Both were not wearing any clothes. The door was open.
Inadmissible
(b) Evidence of Ms W:
(i) The accused was observed slapping the Inadmissible complainant's backside while she did the
dishes.
[2011] WADC 4
SLEIGHT DCJ
(c) Evidence of Ms A:
(i) The complainant always sat on the accused's knee. Inadmissible of sexual interest but admissible of close relationship
(ii) Inappropriate cuddling occurred between Inadmissible the accused and the complainant like
partners would.
4. Alleged undue attention shown by the accused towards the complainant (including gift buying) and an alleged preoccupation by the accused with the complainant's appearance
Undue attention towards her and preoccupation
with her appearance (see also gift buying)
(a) The complainant:
(i) The accused stayed with her and paid her Inadmissible the most attention out of the children.
(ii) The accused forcing the complainant to use the Ab King Pro.
Inadmissible
(iii) The accused not wanting the complainant to associate with boys.
Admissible
(b) Mrs F:
(i) The accused paid the complainant more Inadmissible attention than the other children.
(ii) The accused forcing the complainant to use the Ab King Pro.
Inadmissible
[2011] WADC 4
SLEIGHT DCJ
(c) Ms W:
(i) This witness felt weird about relationship Inadmissible and the accused paid the complainant too
much attention.
(ii) The accused paid the complainant more attention than his actual son.
Inadmissible
(d) Ms L:
(i) The accused forced the complainant to Inadmissible use the Ab King Pro.
(ii) The accused had knowledge of and made Admissible comments regarding the complainant's bra size (If the complainant came out with a size 12A cup, he would say in front of people to go and pull on the right bra size).
(e) Ms A:
(i) A comment to the complainant that her Inadmissible skirt was too short and the accused said it
was fine.
(ii) The accused forced the complainant to use the Ab King Pro.
Inadmissible
(iii) A camping trip in which the complainant and the accused left immediately to go shopping and the accused bought her a short skirt and then for the rest of the trip spent it in the tent together, some of it alone.
Inadmissible
(f) Ms NF (sister of the accused):
(i) The complainant was not going to school Inadmissible due to her interaction with the accused.
[2011] WADC 4
SLEIGHT DCJ
(ii) The accused and the complainant were regularly messaging each other at school.
Inadmissible
Gift buying, in particular inappropriate clothing:
The significance of this evidence is compounded by Inadmissible the accused seldom buying any gifts for his wife or the other children and the nature of the clothes that he bought her. The clothes he had her wear suggest a sexualising of the complainant and an attempt to dress her beyond her age. Evidence of this nature is routinely led in child sex cases.
(a) The complainant:
(i) The accused has often purchased the complainant gifts. He has purchased a lap top computer, a trampoline, a bed and clothing. These gifts were not bought as Christmas or birthday presents.
Inadmissible
(ii) The complainant recalls the accused buying clothes that made her look older,
Inadmissible except
as to purchase of a
which included short skirts and a g-string. g-string
(b) Mrs F:
(i) The accused purchased a laptop, Inadmissible
mini skirts and lingerie for the complainant.
(c) Ms A:
(i) The accused spoilt the complainant with Inadmissible gifts.
(ii) The complainant received a laptop and Mrs F never got one.
Inadmissible
(iii) The accused bought the complainant short skirts and revealing tops.
Inadmissible
[2011] WADC 4
SLEIGHT DCJ
(d) Ms NF:
(i) the accused purchased a laptop for the Inadmissible complainant.
5. Alleged inappropriate comments or other
behaviour of the accused towards the complainant Inappropriate comments or other behaviour of the
accused towards the complainant:
(a) The complainant:
(i) The accused walked around naked all the Inadmissible time.
(ii) The accused turned the complainant against her mother.
Inadmissible
(iii) The accused told the complainant to have a pregnancy test.
Admissible
(b) Mrs F:
(i) The accused allowed the complainant to Inadmissible follow him to the toilet and went to the
toilet in full view of her.
(c) Ms W:
(i) The accused accused the complainant of Inadmissible looking up pornography.
(d) Ms L:
(i) The accused walked around the house Inadmissible naked.
[2011] WADC 4
SLEIGHT DCJ
(e) Ms A:
(i) The complainant would always follow the accused to the toilet and he wouldn't close the door; the accused would follow her to the toilet.
Inadmissible
(f) Ms NF:
(i) The accused sucking a long balloon and Admissible referring to a head job when interacting
with the complainant.
(ii) The complainant wanted to be a stripper Inadmissible and the accused did not care that she did.
6. Intimacy between the accused and Mrs F
(a) Mrs F:
(i) She was rarely intimate with the accused. Inadmissible
(b) Ms A:
(i) She rarely saw the accused and Mrs F Inadmissible cuddle in the same way that the
complainant and the accused did.
| 7. | Evidence of threats made after sexual | Admissible |
| penetration concluded and the impact of them |
(a) The complainant:
(i) Threatened to kill mother and brother if Admissible she told.
(ii) Threatened to kill the complainant's brother the day after the tent incident.
Admissible
[2011] WADC 4
SLEIGHT DCJ
(iii) Why the complainant did not scream out,
how she would deal with the situation
and that she is afraid of the accused.Admissible
Violence to complainant:
(b) Complainant:
(i) The accused and her used to play fight Admissible and he was a bit rough.
(c) Ms L:
(i) Witnessed the accused kick the Admissible complainant out of the blue.
(d) Ms A:
(i) The accused was aggressive to the
complainant one minute and very
affectionate the next.Admissible (e) Ms NF:
(i) The accused thumping the complainant Admissible regularly.
(ii) The accused was either too dominant or Inadmissible too nice.
| 8. | Evidence that the accused told by others long | Inadmissible |
0
18
1