R v AR

District Court of NSW|2019-02-25|Before: Mr J

Admissibility of tendency evidence

AR (the 'accused') appeared before Gosford District Court for trial on 25 February 2019.
He was arraigned on an indictment containing 4 counts as follows: Count 1 between the 7th day of August 2010 and the 2nd day of December 2011, in Lake Munmorah in the State of New South Wales, did have sexual intercourse with EB, a person then under the age of 10 years, namely 7 or 8 years of age, and at the time EB was under the authority of AR. S 66A(2) Crimes Act 1900 Count 2 between the 7th day of August 2010 and the 2nd day of December 2011, in Lake Munmorah in the State of New South Wales, did have sexual intercourse with EB, a person then under the age of 10 years, namely 7 or 8 years of age, and at the time EB was under the authority of AR. S 66A(2) Crimes Act 1900 in the ALTERNATIVE to count 2 that between the 7th day of August 2010 and the 2nd day of December 2011, in Lake Munmorah in the State of New South Wales, did attempt to have sexual intercourse with EB a person then under the age of 10 years, namely 7 or 8 years. S 66B Crimes Act 1900 Count 4 on the 3rd day of July 2013, at Earlwood in the State of New South Wales, did assault KR and at the time of such an assault committed an act of indecency on KR, a child then under the age of 16 years, namely 4 years. S 61M(2) Crimes Act 1900
The accused pleaded not guilty to all counts.
The Crown presented a joint indictment containing allegations in relation to both EB and KR in circumstances where the Crown had served a tendency notice.
Before a jury was empanelled Mr O'Sullivan who appears on behalf of the accused sought separate trials on the basis that the tendency evidence was inadmissible.

The Crown case a trial

The accused is the father of KR (born in 2009) and the stepfather of EB (born in 2003).

Allegations concerning EB

Between 2009-2011 the accused was in a de facto relationship with EB's mother MB. He was 26 or 27 years old. At one stage, they lived together at Lake Munmorah.
On one occasion whilst living at Lake Munmorah when EB was 7 or 8 years old it is alleged she was told by the accused to go into his room. Once inside the room she was told to get undressed and get onto the accused's bed. The complainant complied with this request.
It is alleged the accused laid on top of EB and forced her legs apart. He then digitally penetrated EB's vagina (count 1).
He then tried to insert his penis into EB's vagina (count 2, alternative count 3). EB told the accused to stop as it was hurting. He stopped and she left the bedroom.
EB later disclosed that this was not an isolated event and that the accused would assault her nearly every night for a period of 2 years and when her mother was absent from the house.
The conduct only ceased when her mother left the accused in 2011.
The allegations were first disclosed to EB's mother on 24 November 2016 when EB was 13 years old. Police were then notified.
EB participated in a JIRT record of interview on 10 January 2017.EB was 13 years old at the time of this interview.
EB participated in a 2nd record of interview on 18 January 2017 in relation to things her brother ZB had disclosed police.
EB participated in a 3rd record of interview on 30 November 2017 to clarify the degree of penetration that occurred during the alleged incident.

Allegations concerning KR

The accused had been in a relationship with KR's mother between 2008 and 2009. They separated when KR was approximately 10 weeks old. After the separation the accused had access visits to KR.
During an access visit on 3 July 2013 when KR was 4 years of age it is alleged the accused took KR into his bedroom and told KR to take her pants and underwear off.
The accused then removed his pants and underwear. It is alleged the accused then told KR to climb on top of his body until she was lying on his stomach. He then put his hands on her back and began to rub his penis against the outside of her vagina. After he stopped he gave KR a lolly.
KR made a complaint of sexual conduct (although not specifically this allegation) to her mother when her mother collected her on the same day. Since 3 July 2013 KR has not visited the accused.
KR was 1st interviewed by police on 4 July 2013. No disclosure was made.
A 2nd interview was conducted on 11 July 2013. Again, no disclosure was made.
On 7 December 2017 KR (now 8 years old) participated in a 3rd interview with police where a disclosure was made of alleged sexual misconduct as outlined above.
The accused was notified of the allegations on 21 May 2018.

The relevant law - tendency evidence

Section 97 (1), Evidence Act provides as follows: "(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value."
Section 101 (2), Evidence Act provides as follows: "(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant."

The tendency notice (voir dire exhibit A3, A4)

Mr O'Sullivan conceded on behalf of the accused that reasonable notice in writing had been provided to the accused of the Crown's intention to adduce the tendency evidence.
The tendency notice identifies the tendency sought to be established by the Crown as follows: "(a) the tendency of the accused to have a particular state of mind, namely a sexual interest in EB and KR; (b) his tendency to act on that sexual interest-namely a tendency to engage in sexual touching or activity with prepubescent female children with whom he has a parental relationship notwithstanding the risk of detection because of the presence of other persons in the home."
The Crown seeks to rely upon the following evidence as tendency evidence: 1. The evidence of each of the complainant's on the indictment as tendency evidence in respect of the counts relating to the other complainant. In summary, it is contended that the evidence in respect of each count on the indictment is cross admissible as tendency evidence. 2. In relation to counts 1-3 concerning EB: 1. the Crown seeks to rely upon the evidence of each count as tendency evidence in respect of the other two counts on the indictment relating to EB; 2. the Crown seeks to rely upon the evidence of other uncharged acts of the accused that are contained in the evidence of EB and ZB as tendency evidence in respect of the three counts on the indictment relating to EB. 1. In relation to count 4 concerning KR: 1. the Crown seeks to rely upon the evidence of other uncharged acts of the accused (as described by KR to witnesses that are contained in the evidence of CR and BK) as tendency evidence in respect of count 4 on the indictment relating to KR.
The fact in issue in the trial is the occurrence of the relevant events the subject of each count on the indictment.
Mr O'Sullivan submitted on behalf of the accused, inter alia, that the tendency evidence sought to be relied upon by the Crown either did not have "significant probative value" (section 97 (1), Evidence Act) it being general propensity evidence or, should the court find the evidence has "significant probative value" it was unfairly prejudicial (section 101 (2), Evidence Act) (see Defence written submissions-voir dire exhibit B).

Section 97 -"Significant probative value"

"Probative value" is defined in the dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of fact in issue".
In R v LN; R v AW (No 1) [2017] NSWSC 119 Johnson J observed as follows at 85: "With respect to the concept of "significant probative value", the word "significant" means important or of consequence - it requires more than mere relevance: R v Lockyer (1996) 89 A Crim R 457; Hughes v R [2015] NSWCCA 330 at [163]. The evidence must be influential in the context of fact finding: IMM v The Queen at 314 [46]. As the terms of s.97(1)(b) make clear, an assessment of whether the evidence has "significant probative value" is not confined to the evidence itself, but is to be made having regard to all the evidence sought to be adduced by the tendering party (the Crown): BC v R [2015] NSWCCA 327 at [82]-[83]. What must be assessed is the role that the evidence, if accepted, would play in the resolution of the disputed fact - its capacity to contribute to that resolution: DSJ v R; NS v R [2012] NSWCCA 9; 84 NSWLR 758 at 774 [72]; BC v R at [83]. Further at [83]: "In considering the probative value of evidence under s.97(1)(b), an assumption of the jury's acceptance of the evidence must be made. No question of the credibility or reliability of the evidence can arise: IMM v The Queen [2016] HCA 14; 257 CLR 300 at 315 [52]."
Recently in The Queen v Bauer 2018 HCA 40 the High Court clarified the approach to be taken in relation to tendency evidence sought to be adduced in trials.

Cross admissibility of charged acts (multiple complainants)

In relation to the question of cross admissibility of each complainant's evidence in relation to counts concerning the other complainant the court in The Queen v Bauer stated as follows at [58]: "In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true."(footnotes deleted).

Consideration

The Crown submitted that there were a number of common features of the alleged offending: 1. The complainant in each case was pre-pubescent, specifically aged between 4 and 8 years of age. 2. In each case the accused had a parental relationship with the complainant (either biological father or step-father role). 3. In each case the alleged sexual conduct occurred at the home of the accused. 4. In each case the alleged sexual conduct occurred at a time when the mother of the child was absent from the premises and the accused was the sole parent at the location. 5. In each case the alleged sexual conduct occurred at a time when there were other children present in the premises and there was a risk of detection. 6. In each case the complainant described the accused requesting or directing the removal of items of clothing as part of the sexual conduct. 7. In each case the sexual conduct involved the accused lying in his own bed with the complainant (either atop or underneath her). 8. In each case the complainant described some form of sexual contact between the penis of the accused and her vagina.
Mr O'Sullivan on behalf of the accused submitted that the phrase "common feature" ought to be given a narrow meaning. Here it was submitted that what is demonstrated is "generalised commonality". I do not agree. I am satisfied that the evidence of each complainant does demonstrate features that link them together, namely, that a person that was in a parental role in respect of each of them, asked each of them to undress and then engaged in penile vaginal contact at a time when each complainant was prepubescent. I am satisfied that the proposed tendency evidence does have significant probative value in proving each of the charged acts.
Mr O'Sullivan further submitted on behalf of the accused that, should the Court find the evidence has significant probative value, that the jury may have regard to the tendency evidence in an impermissible way resulting in the probative value not substantially outweighing the prejudicial effect (s101(2), Evidence Act).
Specifically, it was submitted that because of the generalised common features, there is a danger the jury may misuse the evidence as general propensity evidence diverting them from a proper consideration of the evidence to an assumption of guilt. The specific prejudice identified was that the jury may regard the accused as a "sexual deviant" and for that reason it is likely he committed the charged acts. Also,the jury may be so emotionally affected by the tendency evidence that they would disregard the accused's account notwithstanding jury directions.
In Hughes v R [2015] NSWCCA 330 the Court (Beazley P, Schmidt and Button JJ) outlined the relevant principles in relation to a consideration of section 101(2) as follows at [190]: "The determination to be made under s 101(2) requires the trial judge to engage in a balancing exercise. As explained by this Court in Ceissman v R [2015] NSWCCA 74 at [36], in relation to coincidence evidence, although the same principles apply in respect of tendency evidence: The question [under s 101(2)] requires an evaluation of the probative value of the evidence balanced against an evaluation of its potential prejudicial effect. Both evaluations are to be undertaken by the trial judge on the basis of the information available at the time its admission is determined. The first evaluation (of probative value) is to be made on the assumption that the evidence said to constitute coincidence evidence is accepted by the tribunal of fact: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228."
The Court further stated as follows at [192]-[193]: "In Sokolowskyj, the Court (Hoeben CJ at CL Adams and Hall JJ agreeing) held, at [47], that "[t]he concept of 'prejudicial effect' is understood in substantially the same way as 'unfair prejudice'", as the latter term is used in s 137, namely, that there is a risk that the evidence will be misused by the jury in an unfair manner: see also Gardiner at [57]; Ford at [55]. The question for determination under s 101(2) is whether probative effect outweighs that prejudicial effect. The section calls for a determination of the "prejudicial effect" the evidence "may have on the defendant" (emphasis added). In DAO, Simpson J considered, at [171], that such terminology meant that: "… it is legitimate and appropriate for the judge to take into account the ameliorating effect of any directions that may be available to reduce the prejudicial effect." See also R v Ngatikaura [2006] NSWCCA 161; 161 A Crim R 329 at [32]. This observation in DAO is to the same effect as observations made in Sokolowskyj. It is a function of the trial judge in a jury trial to give such directions in order to ensure a fair trial."
In determining whether the probative value of the evidence substantially outweighs any prejudicial effect, I am satisfied that the evidence of each complainant will be highly probative in relation to the proof of the allegations concerning the other complainant. In assessing the prejudicial effect, I have taken into account the ability of the court to appropriately direct the jury in relation to how the tendency evidence may and may not be used.
Having considered those matters, I am satisfied that the probative value of the evidence substantially outweighs each of the potential prejudices identified on behalf of the accused having regard to the directions that will be given to the jury.
Accordingly, the evidence in respect of each of EB and KR concerning the counts on the indictment is cross admissible.

Admissibility of charged and uncharged acts from a single complainant

In relation to the question of admissibility of charged and uncharged acts from a single complainant the court in The Queen v Bauer stated as follows at [48]: "Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes. As the trial judge in substance observed, it has long been the law that a complainant's evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts. In HML, Kiefel J (as her Honour then was) explained its significance thus: "'[R]elationship evidence' refers to all the conduct of a sexual kind that has taken place between the accused and the complainant. It encompasses sexual conduct which is an offence, often referred to as 'uncharged acts', and misconduct which may not be an offence. ... Clearly, relationship evidence is relevant as showing the sexual interest of the accused in, or the 'guilty passion' for, the complainant. Its relevance in this regard has been acknowledged by judges of this Court and by judges of State courts. There can be little doubt about its probative force. It may reveal a tendency in the accused, sometimes described as a motive. Where the relationship evidence shows that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed. It may be concluded that the accused is prepared to act upon the tendency to an extent that it may be inferred that the accused will continue to do so. The evidence may then render more probable the commission of the offences charged." (emphasis added; footnotes omitted)"
The court in The Queen v Bauer continued as follows at [51]: "The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. As Hayne J (with whom Gummow and Kirby JJ agreed) concluded in HML: "Generally speaking ... 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." And the fact of itself that evidence of uncharged acts is given by a complainant does not mean that it lacks significant probative value. Although there is a lack of independence in the sense that the evidence of uncharged acts depends on the complainant's account, once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused's guilt of the charged offences."

Consideration

In circumstances where the court is required to identify the "significant probative value" of the proposed tendency evidence, each of the uncharged acts to be considered by the court was particularised by the Crown (see Exhibit C).
I propose to address each of the categories of uncharged acts separately.

That some time on 3 July 2013 the accused undid his zipper and put his penis in the mouth of KR and had her suck it
The evidence relied upon is as follows: 1. statement of CR para [28],[29],[30],[31],[46],[47] and [52]; 2. statement of BK para [6] and [9]; 3. Record of interview KR 7.12.17.
CR is KR's mother. She states that after collecting KR from the accused's house on 3 July 2013 and whilst they were driving home KR said, "I put daddy's bum in my mouth"[par 28]. She asked KR "does daddy have the same bum as you?". KR replied "no. Daddy has a long one." She then asked KR "did Ashley put daddy's bum in her mouth to?". KR responded saying "no she didn't, just I".[par 29].
CR asked KR, "Did you see daddy's bum?". She replied, "No, he just undid his zipper."[par 30]
Also during the drive KR said, "it has milk in it". CR thought this appeared to be a reference to the discussion about "Daddy's bum".[par 31]
I note at the outset that the complainant does not at any time give evidence of this incident. She is specifically asked as follows (ROI 7.12.17); "someone told me, you said some things, I think this was when you were a little bit younger, around the time that this may have happened, when you went home and spoke to Mum. And you said something similar to, "I put Daddy's bum in my mouth". Can you tell me more about that?
The complainant replied "I don't remember about that"(QA 210-211, ROI 7.12.17 (Exhibit A).
Since 3 July 2013 CR has documented the following disclosures on her mobile phone.
1/1/2014 CR said to KR "I thought you were getting dressed?" She was still in underwear in her room.KR replied, "I was, but Lilly (her doll) just wants to suck me". CR responded saying "pardon?". KR responded, "suck me, like that" (at the same time KR tries to suck CR's foot and then puts Lilly in between her legs), before saying "she likes it!". [par46]
22/1/14 CR asked KR "what are you doing walking around in your undies?" (they were at home). KR responded saying "I just wanna cause Zebby's gonna suck me. CR said, "what do you mean?", to which KR responded with "Because Lilly and Zebby wanna suck me". CR said again "what do you mean?" And KR responded with "cause they want to! They like it!". [par 47]
5/8/2015 After bringing cereal home, KR told CR that her dad gave her fruit loops and showed his private parts and there was milk in there and after he gave her a lolly. KR said "I sucked it" and "he made me take my pants and undies off". This was recorded by BK on his mobile phone. [par 52]
BK is the partner of KR's mother. In September 2014 he had a conversation with KR in relation to breakfast cereal. He told KR he liked fruit loops. KR responded, "that's what I had when I stayed at my dad's house. That's what he gave me after we were naked and I sucked milk from his bum".[par 6]
On 5 August 2015 he was at the shops with KR looking for cereal when KR told him that her dad gave her fruit loops and showed his private parts and there was milk in there and after he gave her a lolly. KR said "I sucked it" and "he made me take my pants and undies off". This was recorded on BK's mobile phone.[par 9]
In relation to the complaint allegedly made on 3 July 2013 the Crown seeks to rely upon that evidence as tendency evidence to demonstrate a sexual interest in KR and a tendency to act on that sexual interest. Although the complainant no longer has a memory of this incident, the Crown submits that the complaint has "significant probative value" as being an uncharged act that demonstrates the relevant tendency asserted by the Crown.
The Crown submitted that by virtue of s66, Evidence Act the complaint evidence is admissible as to the truth of the asserted fact. Also, in determining the "significant probative value" of the evidence the Court must take the evidence at its highest.
Mr O'Sullivan conceded that this evidence was admissible as context evidence but not as tendency evidence. It was submitted on behalf of the accused that the court could not draw an inference from the complaint that the disclosure actually meant "penis in mouth". On that basis, it was submitted that the court would not be satisfied that this evidence has "significant probative value". It was further submitted that the court could take into account that not long after the complaint was allegedly made KR spoke to police and no disclosure is made.
I am satisfied that the complaint allegedly made by KR on 3 July 2013 is capable of constituting a complaint of and uncharged sexual act in circumstances where the evidence is required to be considered having regard to all the evidence sought to be adduced by the Crown.
In particular, it can be considered in combination with the complaint made on 5 August 2015 to both CR and BK when the complainant disclosed that her dad showed her his private parts and then she said "I sucked it". I am further satisfied that it does have "significant probative value" on the basis that it would be influential in the context of fact-finding as it is capable of establishing a sexual interest in the complainant KR.
In relation to each of the alleged incidents outlined in the statement of CR at paragraphs [46] and [47] I am not satisfied that this evidence has "significant probative value" in circumstances where the evidence does not suggest that this conduct relates to any preceding event or events involving the accused. For that reason, I do not consider this evidence is relevant. Accordingly, this evidence is inadmissible.
In relation to the evidence of CR [52] and BK [6] and [9] I am satisfied that the evidence of complaint is capable of constituting a complaint of an uncharged sexual act. I am further satisfied it does have "significant probative value" on the basis that it would be influential in the context of fact-finding as it is capable of establishing a sexual interest in the complainant.
Mr O'Sullivan further submitted that the probative value of the evidence did not substantially outweighs any prejudicial effect it may have on the accused (see section 101(2), Evidence Act). The specific prejudice identified has previously been outlined.
In determining whether the probative value of this evidence substantially outweighs any prejudicial effect, I am satisfied that the evidence in relation to the uncharged acts is highly probative in establishing a sexual interest in KR.
In considering the prejudicial effect of the evidence, I have taken into account that the evidence will be before the jury as context evidence. I have also taken into account the ability of the court to appropriately direct the jury in relation to how the tendency evidence may and may not be used. Having considered those matters, I am satisfied that the probative value of the tendency evidence substantially outweighs any prejudicial effect.
Accordingly, the following evidence is admissible as tendency evidence: 1. the statement of CR par [28]-[31] and [52]; and 2. the statement of BK par [6] and [9]

That for a period of 2 years the accused engaged in regular sexual acts with EB.
The evidence relied upon is as follows: 1. Record of interview EB 10.1.17, 2. the representations made by EB in her walk through video with police; 3. record of interview ZB 12.1.17 in relation to times he would be locked out of the house (QA 42, 55-62,66-68, 72-74, 76-78) 4. the evidence of complaint by EB to LM about the accused's conduct towards her (record of interview LM QA 35,36, 62-81)
EB told police during her record of interview that the accused put his fingers in her vagina and the conduct went on for about two years being the time that her mother was in a relationship with the accused. She said the conduct occurred every night.
EB told LM that alleged sexual conduct happened on more than one occasion.
Mr O'Sullivan conceded on behalf of the accused that this evidence was admissible as context evidence and had significant probative value for the purposes of admission as tendency evidence.
However, it was submitted that the probative value did not substantially outweigh any prejudicial effect it may have on the accused (see s101(2), Evidence Act). The specific prejudice identified has been previously outlined.
In determining whether the probative value of the evidence substantially outweighs any prejudicial effect, I am satisfied that the evidence of EB in relation to other uncharged sexual acts will be highly probative in relation to proof of a sexual interest in EB.
In assessing the prejudicial effect, I have taken into account the ability of the court to appropriately direct the jury in relation to how the tendency evidence may and may not be used. Having considered those matters, I am satisfied that the probative value of the evidence substantially outweighs each of the potential prejudices identified on behalf of the accused having regard to the directions that will be given to the jury.
Accordingly, the following evidence is admissible as tendency evidence, namely, that for a period of 2 years the accused engaged in regular sexual acts with EB as disclosed in: 1. record of interview EB 10.1.17, 2. representations made by EB in her walk through video with police; 3. the evidence of complaint by EB to LM about the accused's conduct towards her (ROI QA 35,36, 62-81)
The evidence in the record of interview with ZB 12.1.17 in relation to times he would be locked out of the house (QA 42, 55-62,66-68,72-74, 76-78) is not admissible as tendency evidence but rather as general evidence of opportunity for alleged offences to be committed.

The accused lying on the lounge with his penis exposed and commenting that he had been hoping the complainant would play with it
The evidence relied upon is as follows: 1. record of interview EB 30.11.17 (QA 58-103); 2. Evidence of TS [par 5-6]
EB outlines an occasion when she was in year 3 when her friend TS was visiting that she saw the accused asleep on the lounge "and he had his penis out of his pants" (QA 62). The following morning she asked the accused whether he realised that his penis was out of his pants and he replied, "Oh yeah, I was hoping you'd come and play with it".
It was submitted on behalf of the accused that this event was of a different kind of sexual misconduct (see Sokolowsky v R [2014] NSWCCA 55) and accordingly, it did not have significant probative value for the purpose of section 97 (1), Evidence Act. Further, it was submitted that there may well be a rational alternative explanation to the conduct constituting the alleged sexualised behaviour, namely that the alleged exposure may have occurred innocently whilst the accused was sleeping prior to anyone entering the room.
It was submitted on behalf of the Crown that the words together with the conduct were capable of constituting sexual behaviour and hence, demonstrating a sexual interest in EB and a tendency to act on that sexual interest. Further, it was submitted that where the uncharged acts relate to the one complainant they do not need to be of a similar kind (see The Queen v Bauer at 48).
Having considered the evidence I am satisfied firstly, that it is capable of constituting sexualised behaviour and, secondly, to the extent that it is capable of demonstrating a sexual interest in the complainant, it does have significant probative value notwithstanding it is a different kind of sexualised behaviour. Accordingly, I am satisfied it is admissible pursuant to section 97 (1) Evidence Act.
In determining whether the probative value of the evidence substantially outweighs any prejudicial effect, I am satisfied that the evidence of EB in relation to this uncharged sexual act is capable of being highly probative in relation to proof of a sexual interest in EB.
In assessing the prejudicial effect, I have taken into account the ability of the court to appropriately direct the jury in relation to how the tendency evidence may and may not be used. Having considered those matters, I am satisfied that the probative value of the evidence substantially outweighs each of the potential prejudices identified on behalf of the accused having regard to the directions that will be given to the jury.
Accordingly, the following evidence is admissible as tendency evidence: 1. record of interview EB 30.11.17 QA 58-103; 2. Evidence of TS [par 5-6]

That on an occasion in the lounge room the accused rubbed EB's bottom and grabbed her vagina on the outside of her clothing.
The evidence relied upon by the Crown is as follows: 1. Record of interview ZB 12.01.17 (QA 112-189) 2. Record of interview EB 18.01.17 (QA 26-32, 34,35)
ZB outlines that he saw the accused in the lounge room touching EB. She was on his lap and telling the accused to stop (QA 118). He saw it twice and EB said it happened more than twice (QA 123).
During her record of interview on 18.1.2017 EB was asked the following questions: "QA 30 is there any times that you can remember anything happening in the lounge room of the house with[AR]? No. QA 31 no. And to say that I guess you don't remember does that mean that it didn't happen or you just don't remember if it did or it didn't? I just don't remember if it did or didn't. QA 32 okay. That's okay. Well, someone told me that there was a time where you were in the lounge room and [AR] made you sit on his lap where he touched you on the vagina. Can you tell me anything about that? No. I don't remember that happening. QA34 is there any times you can remember anything happening with [AR] on the lounge? No. QA35 and again just so I'm sort of clarifying, when you say you don't remember does that mean it didn't happen or you just don't remember? I just don't remember."
Mr O'Sullivan conceded on behalf of the accused that this evidence had significant probative value for the purposes of admission as tendency evidence. However, it was submitted that the probative value did not substantially outweigh any prejudicial effect it may have on the accused (see s101(2), Evidence Act) relying on the prejudice previously outlined.
In determining whether the probative value of the evidence substantially outweighs any prejudicial effect, I am satisfied that the evidence of ZB in relation to this uncharged sexual act is capable of being highly probative in relation to proof of a sexual interest in EB. This is particularly so because the evidence is from a person other than EB.
In assessing the prejudicial effect, I have taken into account the ability of the court to appropriately direct the jury in relation to how the tendency evidence may and may not be used. Having considered those matters, I am satisfied that the probative value of the evidence substantially outweighs each of the potential prejudices identified on behalf of the accused having regard to the directions that will be given to the jury.
Accordingly, the following evidence is admissible as tendency evidence: 1. Record of Interview with ZB 12.01.17 (QA 112-189)

5.That on occasion the accused used an object to touch EB's vagina outside her clothing.

The evidence relied upon by the Crown is as follows: 1. Record of interview with ZB 12.01.17 (QA 190-253) 2. Record of Interview with EB 18.01.17 (QA 26-31, 33-35)
ZB outlines that he saw the accused on the "big lounge" and that he used "I think a pair of tongs or something" and was just jabbing at both EB's bottom and her vagina on the outside of her clothing.
During her ROI on 18.1.2017 EB was asked the following questions: "QA33 okay. That's okay. And there was another time where someone told me there was a time where there was a big lounge on the lounge room where [AR] was seated and you was seated next to him and again where he used his hands to touch you or an object on the vagina on the outside of your clothing. What can you tell me about that? I don't remember any of that stuff happening."
Mr O'Sullivan conceded on behalf of the accused that this evidence had significant probative value for the purposes of admission as tendency evidence. However, it was submitted that the probative value did not substantially outweigh any prejudicial effect it may have on the accused (see s101(2), Evidence Act) relying on the prejudice previously outlined.
In determining whether the probative value of the evidence substantially outweighs any prejudicial effect, I am satisfied that the evidence of ZB in relation to this uncharged sexual act is capable of being highly probative in relation to proof of a sexual interest in EB. Again, this is particularly so because the evidence is from a person other than EB.
In assessing the prejudicial effect, I have taken into account the ability of the court to appropriately direct the jury in relation to how the tendency evidence may and may not be used. Having considered those matters, I am satisfied that the probative value of the evidence substantially outweighs each of the potential prejudices identified on behalf of the accused having regard to the directions that will be given to the jury.
Accordingly, the following evidence is admissible as tendency evidence: 1. Record of interview with ZB 12.01.17 (QA 190-253)

The accused watching EB in the bath
The evidence relied upon by the Crown is as follows: 1. statement of TS dated 20 February 2019 (para 7 and 8).
TS provides the following evidence: "I recall the times when [EB] and I had a bath. It was common at [EB]'s for [AR] to watch us in the bath. [EB] and I would be playing around and splashing each other in hindsight I feel it was inappropriate"[par 7].
The timeframe in relation to this conduct was when EB and TS were six or seven years old. "I recall when I was about 10 years of age when [EB] was still living at Lake Munmorah, [AR] still watched [EB] and I in the bath. [AR] would sit on the toilet and used it as a seat and watch us. Now that I am older, I think back to [AR] watching us at 10 years of age and I don't think it was necessary."[par 8].
The Crown sought to rely upon this evidence as tendency evidence on the basis that it was capable of establishing a sexual interest in EB.
Mr O'Sullivan submitted on behalf of the accused that there is a rational explanation available, namely that the accused was checking the children were safe.
Having considered the available evidence, in particular the age of the children at the relevant time, I am not satisfied that this evidence has significant probative value. This is particularly so because there is no alleged sexual misconduct.
Accordingly, the following evidence is inadmissible as tendency evidence: 1. statement of TS dated 20 February 2019 (par 7-8).

The accused giving EB special attention and excessive physical affection.
The evidence relied upon by the Crown is as follows: 1. statement of MB 7.2.17 [par 12]
MB provides the following evidence: "[AR] seemed to treat [EB] differently. Not that [EB] was naughty, but he seemed to put [EB] up on a pedestal and was always very attentive towards her and wanting cuddles or affection from her and he just didn't give the boys that same attention. Even his own son [BR] who was in the home with us, he didn't give him nearly as much attention as he gave [EB] and same with the boys, they were naughty, because kids will be kids, but it seemed like the boys were always getting into trouble for something and [EB] couldn't do anything wrong and I did notice he was a bit more touchy-feely with [EB], in the way of wanting cuddles all the time of getting [EB] to sit on his lap."
The Crown sought to rely upon this evidence as tendency evidence on the basis it was capable of establishing a sexual interest in EB. Having considered the available evidence, I am doubtful that this evidence is capable of establishing the tendency asserted by the Crown. Even if I was so satisfied, I am not satisfied it has significant probative value.
Accordingly, the following evidence is inadmissible as tendency evidence: 1. statement of MB 7.2.17 [par 12].
It was conceded on behalf of the accused that this evidence was admissible as context evidence.

That the accused would try to arrange for the complainant to be at home alone with him.
The evidence relied upon by the Crown is as follows: 1. statement of MB7.2.17 [par 13]
MB provides the following evidence: "whenever I went out to do the grocery shopping or had to go out of the house for anything, I always had to take [ZB] and [BR] with me and [EB] always had to stay at home with [AR]. I didn't really think anything of it time, because [EB] didn't really kick up a stink about it and [AR] would always make valid excuses for why she needed to stay home, like finishing off her homework, or her friend who lived a few doors up, [AR] would suggest [EB] stay home in case her friend turned up to play, so I just went with it and often left [EB] at home alone with [AR]."
The Crown sought to rely upon this evidence as tendency evidence on the basis it was capable of establishing a sexual interest in EB.
I am not satisfied that this evidence is capable of establishing a sexual interest in the complainant. Nor am I satisfied the evidence is context evidence. Rather, the evidence is relevant in relation to the opportunities that the accused had to be alone with the complainant and commit the alleged offences.
Accordingly, this evidence is inadmissible as both tendency evidence and context evidence.

Orders

Accordingly, my formal orders are as follows: 1. the evidence in respect of each of EB and KR concerning the counts on the indictment is cross admissible as tendency evidence. 2. the following evidence is admissible as tendency evidence 1. the statement of CR par [28]-[31] and [52]; and 2. the statement of BK par [6] and [9] 3. record of interview EB 10.1.17 relating to the evidence that for a period of 2 years the accused engaged in regular sexual acts with EB. 4. representations made by EB in her walk through video with police that the accused engaged in regular sexual acts with EB; 5. the evidence of complaint by EB to LM about the accused's conduct towards her (ROI QA 35,36, 62-81) 6. Record of interview EB 30.11.17 QA 58-103; 7. Evidence of TS [par 5-6] 8. Record of Interview ZB 12.01.17 (QA 112-189, 190-253)

Amendments 29 March 2019 - Heading following paragraph [5] - changed "... application to exclude the tendency evidence" to "... application to admit the tendency evidence" 12 February 2020 - paragraph [33] - inserted "Further at [83]:" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2020

At a glance

Court

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Before

Source

Judgment (22 paragraphs)

Parties

Cases Cited (9)