KJS v R

Judgment 1HOEBEN CJ at CL: Introduction The appellant, pursuant to s5(1)(a) of the Criminal Appeal Act 1912, appeals against his conviction with respect to two offences of which he was found guilty by a jury. Each of the offences alleges a sexual assault upon his natural daughter, ISS: (i) Aggravated indecent assault between 26 September 2003 and 25 September 2004. (ii) Aggravated sexual intercourse without consent between 1 January and 31 January 2008. The circumstance of aggravation in both counts was that the complainant was under the authority of the appellant. 2The trial was heard before Judge Murrell SC and a jury from 19 March to 23 March 2012. The jury retired to consider its verdict on the afternoon of 23 March 2012, returning the following afternoon with verdicts of guilty to both counts. On 17 August 2012 the appellant was sentenced to imprisonment with a non-parole period of 4 ½ years and a balance of term of 6 years which was partially accumulated on another sentence. No appeal has been brought in respect of sentence. 3The appellant had previously been convicted of murdering his wife. That matter was the subject of an unsuccessful appeal to this Court in KJS v R [2013] NSWCCA 132. Crown case at trial 4ISS was one of three children born to the appellant and his wife. ISS was born in 1991. Her sister, S, and brother, J, were both younger than she by about 7 and 9 years respectively. The family lived at various locations in Western Sydney, including St Johns Park, Edensor Park and Fairfield. 5To establish the overall context of the charged offences, evidence was placed before the jury about other sexual acts which occurred before count 1, and between counts 1 and 2. It is the admission of this evidence about which the appellant complains. 6The context evidence related to the appellant getting into the bath with ISS and washing her back when she was 11, getting into the shower on occasions thereafter and washing her; there were then other indecent and/or sexual assaults in similar terms to the two charged events and finally attempted indecent and/or sexual assaults where no actual assault took place because the complainant would tell him loudly to get out of the room. 7When asked about an incident in relation to a bath when she was living at St Johns Park, ISS said: "I was in year 6 and I had been upset about a boy and I had gone to my father for advice and then after that I had entered the bathroom and I had proceeded to have just a normal bath. I am not sure how long after my father came in and had gotten undressed and had got into the bath tab with me and just made it look - it seemed like it was normal, there was nothing wrong and then proceeded to talk to me normally about this particular boy at the time - yeah; I had my back facing him and I was facing the wall and he was behind me and he was just washing my back." 8ISS said that there were numerous other incidents thereafter while she was in year 6 in 2003 when she was either having a shower or a bath and the appellant would just come in and wash her body and make it seem normal. At that time he said to her "Just don't mention this to your mum. It'll be kind of like daddy and daughter's little secret". She said initially he was just coming in and washing her body but then he started touching her chest more. 9ISS described the incident in count 1 at St Johns Park as follows: "I remember being in my bedroom and I was in year 7. I recall being in my room and I remember it was daytime, I don't think anybody was home. I think I was reading and KJS had some how gotten me on the floor and he proceeded to undo my pants and pull them down, he had my arms down on the ground with his arms so that I couldn't push him off - he then pulled his pants down and his undies down and he put his penis on the top part of my vagina and he proceeded to thrust. I said that it really hurt and I asked him to stop and all he said was "Just wait, just wait" that's all he kept saying was "just wait", and then he stopped." 10She said that once he stopped, he pulled his pants up so he could ejaculate. She said that she lay there crying as he left and all he said was "sorry". She then got up and grabbed a pair of scissors and started cutting near her wrists because "I didn't want to be there or here and I just hated everything about my life". 11When asked if anything else of a sexual nature happened between her and her father while at St Johns Park, ISS said: "It was very repetitive ... on the occasion that he would come in at night time and, or when nobody was home. The touching was very frequent." She said that he would always try to touch her chest and vagina. 12When the family moved to Edensor Park she said that her mother would rarely be home at night due to commitments with the Southern Districts Football Association and would often not be home until 1am, 2am or even 3am. By this time ISS said that the appellant would come in, or try to come into her room, almost every night when her mother was not home or while she was asleep. She said that as time progressed, she became a very light sleeper to the point that before she moved to Fairfield West, she could barely sleep. When she woke up to him trying to come into her room, she would say "Get out" and if her mother were home she would say it loud enough to try and wake her up and to scare her father who was worried about anyone else finding out. 13On the occasions he did come into her room, she said: "He'd really try hard to sneak in and on the times that I had woken up while he was sneaking in he would say "I'm trying to find my work clothes in the basket" or "I'm turning off your radio" or some excuse, and then on times when I was still asleep I would wake up and I'd have the blankets off and he was trying to get my pants off me but slow enough that I, that I wouldn't wake up and see. ... He would pull his pants down and lay on top of me so not, so that I couldn't, I was restricted in my movements. And he would press his penis on my vagina where I'm supposed to urinate and thrust - and thrust continuously until he was finished." 14When the mother was home, ISS said that she would tell her father to "Get out" loudly in the hope that her mother would hear. She said that her father would tell her to be quiet and then leave without doing anything of a sexual nature. ISS said that as she grew up, she understood what her father was doing and got into the habit of making New Year's resolutions that she would not let it happen again. In particular, in December 2007 when she was sixteen she said that she was more determined than ever to not let it happen again but it did in January. 15In relation to that occasion (which constituted count 2) ISS said: "He had come into my room and again proceeded to, proceeded to take off my clothing and he had taken off his pants. He put his penis on my vagina again but this time it was further down. ... It hurt a lot, a lot more than usual. He was dry and he kept trying to push through and he told me that once it gets through it won't hurt any more." She said that he "tried to put it in this hole but it was really hard". She said that his penis had gone past the outer lips of her vagina and penetrated. ISS said that she had struggled and pleaded with him to stop and leave her alone saying "Get off" and "Leave me alone". The appellant's case 16The appellant denied any sexual interaction with ISS. In cross-examination of ISS it was suggested that she left home on 31 July 2008 after a physical fight with her mother. It was suggested that the argument was triggered by her continuing to see her boyfriend against the express instructions of her parents. It was put to ISS that when her father told her that he could no longer "stick up" for her with her mother, she threatened to "destroy" her parents. 17The appellant gave evidence and was cross-examined. He said that during the years 2003 - 2008 he worked fulltime as a plumber, typically leaving home for work at about 6am. His late wife was very involved in district soccer at the time, although her principal commitments in that regard were confined to the first couple of months of each season. The appellant denied the charged incidents and denied any sexual activity of any nature with his daughter. He told the jury that he had spoken to his daughter on 31 July 2008 to tell her he could no longer take her part against her mother and that in response, she had threatened to destroy him. 18The context evidence was the subject of an application to the trial judge on 19 March 2012 after the jury had been empanelled, but before the Crown case had been opened. Objection was taken to the Crown's intention to lead the relationship evidence and her Honour ruled that the evidence was admissible. 19Her Honour's reasons were as follows: "4. The Crown seeks to tender the evidence of relationship and context, first, to establish that neither the first nor the second charged incident was an isolated incident. That is, it followed from conduct of a sexualised nature and represented, in each case, some escalation of the preceding conduct. The charged incidents are quite dramatic allegations and, if left in isolation, each might appear implausible. A second purpose of the tender of relationship and context evidence is to establish the gradual escalation of sexualised behaviour. This could be characterised as an overbearing of the complainant or a grooming over a long period of time, which is relevant to the complainant's acquiescence and lack of complaint, albeit the complainant says that, towards the end of the period, i.e., towards January 2008, she increasingly resisted and verbalised her lack of consent to the interaction." 20In relation to prejudice, her Honour said: "6. I accept that this material is, inherently, extremely prejudicial. It is also very relevant. I will permit the material to be led in a brief and un-colourful fashion, on the basis that I hope will give appropriate directions to remove any prejudice." Grounds of appeal and submissions 21The appellant advances a single ground of appeal: Her Honour erred in admitting into evidence the "relationship" or "context" evidence. 22The appellant submitted that the asserted "relationship evidence" relating to events before those in count 1 was so different to that conduct that the only context which it could provide was that the appellant had an inappropriate sexual interest in ISS. He submitted that the allegations regarding washing his daughter in the bath while naked suggested a level of inappropriateness but did not otherwise demonstrate attempts at sexual conduct. 23The appellant submitted that in relation to the pre-count 1 "relationship" evidence relied upon, none of it explained why ISS did not complain about the attempted sexual intercourse to her mother. He submitted that it followed that the evidence was not relevant for that purpose. 24The appellant submitted that the "relationship" evidence did not demonstrate some level of grooming. He submitted that there was a significant disconnect between the type of behaviour alleged to have occurred in the bath and shower and the very explicit and violent activity described in counts 1 and 2. 25The appellant submitted that it was difficult to identify the effect of such evidence and that it would always be available to some extent as context. He submitted that despite this, on the facts of this case, the impugned evidence was principally and in effect, evidence of his asserted inappropriate sexual interest in his daughter. In those circumstances, the appellant submitted that its admissibility should have been assessed in accordance with sections 97 and 101 of the Evidence Act 1995. The appellant relied upon the analysis of McClellan CJ at CL (with whom Hidden and Fullerton JJ agreed) in DJV v R [2008] NSWCCA 272. 26He submitted that even if that were not the case, its probative value was outweighed by its unfair prejudice and it should have been excluded pursuant to s137 of the Evidence Act. The appellant submitted that the evidence was so unfairly prejudicial that even though her Honour gave the appropriate directions, they would not have been sufficient to overcome that prejudice. 27In relation to uncharged events said to have occurred between counts 1 and 2, the appellant noted that these involved explicit acts like those involved in the two counts and the evidence was that they increased in regularity to the point that they occurred almost every night. The appellant submitted that these allegations lacked both specificity as to time and detail and in some cases, nothing in the bedroom in fact occurred. 28The appellant accepted that the uncharged acts which were closer in time to the events said to have occurred in count 2, had more indicia of context evidence. He submitted, however, that the suggestion that they were occurring almost every night, made them overwhelming in nature. He submitted that while they were in part capable of being used as context evidence, they were clearly also being used as evidence of a tendency on his part to sexually assault his daughter. He submitted that in those circumstances they should have been dealt with pursuant to ss97 and 101 of the Evidence Act. 29In the alternative, the appellant submitted that the allegations, particularly those to the effect that these events were occurring almost every night, carried with them such unfair prejudice that the jury was bound to convict, particularly when not directed that they would have to find beyond reasonable doubt that these events occurred before using them in their reasoning as to his guilt upon the two counts. In that regard, the evidence should have been excluded pursuant to s137 Evidence Act 1995. 30The appellant submitted that in relation to those occasions when it was alleged he entered the room but did nothing because the complainant told him to leave in a loud voice, no real purpose was served with respect to the issues at trial. He submitted that their real function was as evidence of his inappropriate sexual interest and his tendency, if not thwarted, to attempt to sexually assault ISS. Consideration 31The appellant's submission should not be accepted. 32There are two sexual acts set out on the indictment. The Crown case was that these incidents were not isolated but occurred against a much more extensive background of sexualised touching, extending from when ISS was in year 6 at school and aged about 11, up to when she was aged 16 and the events in count 2 occurred. 33In that regard, the evidence led as to context evidence was relatively confined. It comprised touching while bathing, incidents of simulated intercourse, usually at night, which then escalated to actual intercourse. The temporal framework was quite clearly defined and could not have prejudiced the appellant in the conduct of his defence. 34The relevance and purposes for which the Crown sought to lead this evidence are clear: (i) To demonstrate that there was a process of habituating ISS to physical contact with the appellant so that such contact seemed unremarkable. (ii) To place count 1 in its proper context so that rather than appearing to be an extraordinary assault which had suddenly occurred, it could be seen as a result of a course of conduct in which sexual touching had been established between the appellant and ISS as a normal activity and had progressed to a more serious form of indecent touching. (iii) To provide a proper basis for the jury to make an assessment of the description by ISS of count 1 and more particularly her failure to resist the appellant, to cry out for help or to otherwise express surprise at what was, viewed in isolation, an almost unbelievable anomaly in the father/daughter relationship. (iv) To place count 2 in its proper context so that, rather than appearing to be another isolated and quite extraordinary sexual attack upon ISS, the offence was seen as the continuation and culmination of a consistent course of conduct over a period of years. (v) To provide some explanation for the failure of ISS to complain about her father's conduct. Without the evidence of what could readily be considered as a slow process of habituating ISS to sexual activity, the jury might well have found it incredible that after the occurrence of count 1 (and later count 2), ISS made no complaint. 35Viewed in that way, it matters not that at least initially the conduct (i.e. bathing and touching) was different to the acts reflected in counts 1 and 2. This is particularly so when the evidence was not being led as coincidence evidence or evidence of the appellant's tendency to act in a way similar or identical to that described in the charged incidents. There was no requirement for similarity of conduct between the acts led as context evidence and the acts led as charged counts. 36It was important for the jury to be in a position to assess the evidence of the charged incidents against the broader background of the developing nature of the sexual acts. That the earliest incidents involved touching in the context of the bath or shower matters not. Its relevance was not that it showed other similar acts to the acts charged but that it showed a clear process of grooming ISS. That count 1 involved a different type of behaviour did not make inadmissible what happened before. That count 1 represented an escalation in the sexual conduct was the product of the grooming or habituation process. 37Given what had gone before (the reference to "daddy and daughter's little secret") made it more likely that ISS would accept the conduct and not tell others about it. That was part of its relevance to the Crown case and was important to the jury's understanding of the apparent acceptance by ISS of much of the conduct and her failure to complain about it before leaving home. 38There is another way of looking at the evidence which strengthens the conclusion that it was properly characterised as context evidence. Were the evidence to have been excluded, the jury would have been left with an unrealistic and entirely misleading picture of two apparently unconnected sexual assaults, separated in time by some three or so years, which occurred in startling isolation. This was in the context of an otherwise ordinary father-daughter relationship about which ISS made no complaint. That would have placed the Crown case in a position of considerable unfairness. 39The admission of the evidence as context evidence was consistent with authority. In HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; 235 CLR 334 Gleeson CJ (with whom Crennan and Kiefel JJ agreed) said: "6 Information may be relevant, and therefore potentially admissible as evidence, where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. An example is some evidence given in R v Wickham. A female complainant in a child sex abuse case gave an account, directly relevant to a charge, of a sexual encounter she had with her father when she was 14 years old. She said that her father entered her bed, and had sexual intercourse with her. After some brief conversation, they both went to sleep. The father denied that any such event occurred. There was other evidence to show a history of similar sexual activity before the occasion in question. In the absence of that evidence, the complainant's account of what otherwise would have been presented as a single, and apparently isolated, act might have been regarded by the jury as difficult to believe. The complainant expressed no surprise when her father came to her bed. She made no protest. She behaved as though this was a common occurrence. She said that, in fact, it was a common occurrence. If she had not been permitted to say that, her evidence could have appeared hard to believe. To have put her evidence forward as though she were describing an isolated incident would have been misleading, and, it might be added, unfair. Jurors are told that, in evaluating evidence, they should use their common sense and their experience of life. Whether or not expressly invited to do so, jurors are likely to assess competing versions of events or conduct by reference to their ideas of normal or predictable behaviour. In R v Boardman in a passage later cited with approval in this Court, Lord Cross of Chelsea said that there are cases in which to exclude evidence of the kind presently in question would be an affront to common sense. The law must apply a more definite test, but common sense and relevance are closely related. A jury's assessment of some kinds of evidence is likely to be based more upon common sense than upon scientific method." 40The above analysis and statement of principle largely answer the appellant's reliance upon s137 of the Evidence Act. Section 137 requires a court to exclude evidence adduced by the prosecutor if "its probative value is outweighed by the danger of unfair prejudice" to the accused person. The unfair prejudice relied upon by the appellant was the danger that the jury would use the context evidence as establishing (to a standard lower than the criminal standard) his propensity to sexually assault his daughter and thus inevitably his guilt of the charged offences. 41The probative value of the evidence was substantial. Without it the Crown's case would, for the reasons set out by Gleeson CJ, have offended common sense. For there to have been unfair prejudice by the admission of the evidence it had to be assumed that the jury would ignore the directions given to it as to the proper approach to the consideration of the context evidence. Such an assumption is contrary to the well established tenet of the criminal justice system, i.e. that juries understand and comply with the direction of trial judges (Gilbert v R [2000] HCA 15; 109 A Crim R 580 at [31]; Glennon v R [1992] HCA 16; 173 CLR 592 at [603] and Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) [1987] HCA 56; 164 CLR 15 at [74]). There was nothing in this case to suggest that the jury would not follow directions and engage in impermissible reasoning. 42Here the jury were appropriately cautioned and directed as to the use to be made of the context evidence and no challenge is made in this appeal to those directions. There is no reason to think that the jury ignored or overlooked her Honour's clear direction. Her Honour was correct to conclude that while the context evidence carried with it some risk, it was not a risk of such a nature as to outweigh its probative value or be incapable of being addressed by appropriate direction. 43Those directions were: "40 If you accept the complainant's evidence that any or all of the other sexual incidents occurred, then that evidence can only be used in one way. And that way is to place the complainant's evidence concerning the two charges in a realistic context. The Crown says that this evidence of other sexual incidents is important to give a realistic context to the complainant's evidence about the charges for two reasons. First, if you only had the evidence about the charges and you didn't have the evidence from the complainant about these other sexual incidents, then you would be saying to yourselves: well, the charged incidents would not have occurred because these sorts of things do not just happen out of the blue. And that is one reason why the Crown has introduced this material to show that, on the complainant's version of events, it was not a case of out of the blue. The second way in which the Crown says that the other sexual incidents put the allegations about the charged incidents into context is that the evidence is relevant to explaining why the complainant did not immediately complain to someone after the two charged incidents. The Crown says that you could look at this history, if you like, of other sexual incidents as a background that shows that the complainant had been intimidated or coerced or affected psychologically, perhaps you would call it grooming, over a long period of time. Hence, when the charged incidents happened she did not immediately rush and complain because, from her perspective "that was part of normal family life". 41 Members of the jury if you accept that there was a background of other sexual incidents, that background is not evidence that either of the alleged offences occurred. It may only be used to put the complainant's allegations about the two offences that have been charged into a realistic context. For example, you must not use the evidence of other sexual incidents as tending to show that, at the time of the charged incidents, the accused had improper sexual feelings for the complainant and therefore it is more likely that he committed the offences. Nor must you reason that, because the accused may have done something wrong or another occasion, therefore it is more likely he behaved improperly on the occasions the subject of the charges. If you accept the evidence about the other sexual incidents, then the only purpose for which you may use that evidence is to put the complainant's allegations about the charges into a realistic context." 44There is another consideration which is relevant to s137 of the Evidence Act 1995. The proof of the charges against the appellant depended wholly on the evidence of ISS. If the jury did not find her a credible witness, it could not have accepted her evidence as to the charged counts. If that were the case, nothing in her evidence of other acts could have affected the assessment of her credibility. The context evidence was not such that it could have been used in substitution for the charged counts. If ISS had been assessed as unreliable for any reason - memory failure, hostility to her father, revenge etc - nothing she said about other acts could have saved the Crown case. 45This ground of appeal has not been made out. 46The order which I propose is that the appeal be dismissed. 47ADAMS J: I agree with Hoeben CJ at CL. 48R A HULME J: I agree with Hoeben CJ at CL.