CRIMINAL LAW - EVIDENCE - TENDENCY EVIDENCE- JURISDICTION, PRACTICE AND PROCEDURE - alleged sexual offences against multiple children - tendency evidence admissible in relation charges relating to each single complainant - tendency evidence admissible as between complainants

Crimes Act 1900 (ACT), s 316

Evidence Act 2011 (ACT), ss 55, 97, 97(1)(b), 101, 101(2)

HML v The Queen [2008] HCA 16; 235 CLR 334

Hughes v The Queen [2017] HCA 20; 344 ALR 187

McPhillamy v The Queen [2018] HCA 52; 361 ALR 31

R v Bauer (a pseudonym) [2018] HCA 40; 359 ALR 359

1. Mr Chute is the subject of a special hearing under s 316 of the Crimes Act 1900 (ACT) which is listed to commence on 18 March 2019. He faces 16 counts relating to six complainants.

2. The Crown has sought to adduce tendency evidence described as incidents 1 to 16 which are described in an Amended Notice of Intention to Adduce Tendency Evidence dated 28 September 2017.

3. Each of the incidents corresponds to a count on the indictment. I have anonymised the names of the complainants. The charges on the indictment may be summarised as follows:

(a) counts one to four relate to the Complainant 1;

(b) counts five to eight relate to the Complainant 2;

(c) counts nine and 10 relate to the Complainant 3;

(d) counts 11 to 13 relate to the Complainant 4;

(e) count 14 relates to the Complainant 5; and

(f) counts 15 and 16 relate to the Complainant 6.

4. Where there are multiple incidents involving a single complainant, the Crown seeks to have that evidence admissible as tendency evidence in relation to each other charge relating to that complainant. Further, the Crown seeks to have the evidence in relation to each complainant admissible as tendency evidence in relation to each other complainant.

5. The tendency sought to be proved by the Crown is a tendency:

To have a sexual interest in young boys attending the college at which the accused taught and to use his position as a teacher at the college to obtain access to young boys in order to opportunistically engage in sexual activities with them.

6. If such a tendency was established, it would clearly be relevant evidence under the Evidence Act 2011 (ACT), s 55. Given that no relevant admissions have been made it is most likely that the issue at trial will be whether the events happened at all. It is in relation to that issue that the tendency evidence will be relevant.

7. For the purposes of s 97 of the Evidence Act there is no doubt that the Crown has given reasonable notice of its intention to present the evidence. Therefore, the issues are:

(a) Will the evidence, either by itself or having regard to other evidence to be presented, have significant probative value: s 97(1)(b)?

(b) Does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the defendant: s 101(2)?

8. The incidents the subject of the charges can, for present purposes, be summarised as follows:

9. Count 1 - "patting dog incident" (1980): During 1980, Complainant 1 was in Year 4 and nine or 10 years old. This was an incident when Complainant 1 was patting the Labrador that belonged to the accused. The accused approached him from behind and put his hands down Complainant 1's pants and fondled his genitals over his underwear.

10. Count 2 - "Chapel incident" (1980): This was an incident when the accused put his hand over Complainant 1's genitals over the top of his pants. The accused moved his hands until Complainant 1 became aroused. Complainant 1 jumped up and then sat back down again, saying nothing. The accused took Complainant 1's left hand and put it on his own lap, holding it there until the accused became aroused.

11. Count 3 -"chores incident" (1981): During 1981, Complainant 1 was in Year 5 and 10 or 11 years old. Complainant 1 was doing chores for the accused. The accused put his hands over his shoulders and into Complainant 1's shorts and underwear, touching Complainant 1's genitals.

12. Count 4 - "handball incident" (1981): Complainant 1 and his friends were playing handball with other students at recess or lunch. At one point the accused got the ball which had gone out of play and spoke to the students. The accused grabbed Complainant 1, turning him round with his left hand, putting his right hand down Complainant 1's pants and grabbing Complainant 1's penis before letting go and giving Complainant 1 the ball.

13. Count 5 - "cassette tape incident" (1985): The accused was Complainant 2's religious studies teacher in Year 7 when Complainant 2 was 12 or 13 years old. The accused lent Complainant 2 a Billy Connolly cassette. A few days later when Complainant 2 returned the cassette the accused gave him a bear hug and placed his hands inside Complainant 2's pants, holding his genitals.

14. Count 6 - "classroom incident" (1985): On another school day in 1985, Complainant 2 was seated in a classroom at a desk when the accused walked around the classroom between the desks and lent against Complainant 2 and rubbed his genitals against Complainant 2's arms and elbow.

15. Count 7 - "pie wagon incident" (1986): During 1986, Complainant 2 was in Year 8 and 13 or 14 years old. The accused invited several boys to work on a pie wagon during a rugby union carnival. Whilst in the pie wagon, the accused grabbed Complainant 2 in a bear hug and placed his hands down Complainant 2's pants before fondling his genitals for a few minutes. This occurred a few times throughout the day.

16. Count 8 - "private dinner incident" (1987): Complainant 2 was in Year 9 and 14 or 15 years old. He had limited contact with the accused. Shortly prior to leaving the school to move to Canberra Grammar, the accused took Complainant 2 out to dinner. On returning to the school, the accused stopped behind Complainant 2, placed his hands down Complainant 2's pants and fondled his penis. Complainant 2 told him that he could not keep doing that and the accused removed his hands from Complainant 2's pants.

17. Count 9 - "cassock incident" (1979): Complainant 3 was in Year 7 and 12 or 13 years old. The accused taught Complainant 3 and would wear a cassock over his clothing. On at least 12 occasions, Complainant 3 saw that the accused was not wearing pants or underwear underneath his cassock. The accused approached Complainant 3 while he was sitting at his desk, lent over him, placed an arm around his shoulder and rubbed his erect penis against Complainant 3's shoulder and upper arm.

18. Count 10 - "theatre night incident" (1979): On another occasion, Complainant 3 attended a theatre night at Marist College. The accused sat next to Complainant 3, placed his hand on his upper thigh before putting it underneath the waistband of Complainant 3's jeans and underwear and fondling his penis.

19. Count 11 - "being caught incident" (1981): Complainant 4 was aged 12 or 13 years and was in Year 7. The accused was his form master and religious teacher. Complainant 4 confessed to the accused that his mother had caught him masturbating and had told him that it was filthy and dirty. The accused then touched Complainant 4's genitals on the outside of his clothing causing him to get an erection and telling him that it was all right to do so.

20. Count 12 - "oral sex incident" (1981): On another occasion, Complainant 4 was in the accused's dormitory room and the accused made him perform oral sex on him. Complainant 4 did not want to do it, however, the accused hit him across the head with a large purple Bible.

21. Count 13 - "intercourse incident" (1981): On another occasion later that year, the accused took Complainant 4 into his office where he had penile-anal intercourse with him.

22. Count 14 - "runaway incident" (1979): Complainant 5 was in fourth form (Year 10) in 1979. On the night before the incident, Complainant 5 had run away from home and slept in the school chapel. The accused woke him up telling him that he wanted to have a meeting with him the next day. The next day Complainant 5 went to his office, the accused placed his hand on his leg and then further up to his penis before he massaged it. All the while the accused asked him questions as if nothing unusual was happening.

23. Count 15 - "father won't know" (1976): Complainant 6 was in Year 6. On a number of occasions when Complainant 6 was in the accused's office, the accused would fondle Complainant 6's genitalia over his shorts. On one occasion when he was called to the accused's office and this occurred, Complainant 6 said that his father would not like his behaviour and the accused said that his father was never going to know.

24. Count 16 - "disciplinary treatment" (1976): On one occasion when Complainant 6 was in the accused's office for disciplinary reasons, he was required to stand on tiptoes and bend over to touch his hands to his feet whilst spreading his legs. The accused placed his hands on the inside of his legs and touched or fondled his genitals as well as touching his bottom. He would then hit Complainant 6 with a leather strap across the back of his knees. On the charged occasion, Complainant 6 explained his injuries to his mother as being sporting related.

Tendency reasoning for charges relating to a single complainant

25. So far as the evidence in support of each of the incidents is sought to be relied upon as tendency evidence in relation to other incidents involving the same complainant, in my view the evidence is of significant probative value. I reach that conclusion having regard to the following passage in R v Bauer (a pseudonym) [2018] HCA 40; 359 ALR 359 at [50]- [51]:

50. Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.

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.

(Footnotes omitted.)

26. Having regard to the fact that evidence in support of the charges will be led in any event, there is no relevant prejudicial effect of that evidence for the purposes of s 101. For that reason, I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect that it may have on the defendant.

27. That leaves the issue of whether the evidence of acts in relation to each complainant may be used to support the existence of the asserted tendency in relation to charges against other complainants.

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.

29. In the present case each alleged incident falls in the period 1976-1987. There is no significant gap in the period of alleged offending: cf McPhillamy v The Queen [2018] HCA 52; 361 ALR 13. In each case the complainant is a young student at the school (between Year 4 and Year 10) with which the accused at or before the time of the alleged offending had a teacher-pupil relationship. In each incident the accused has used the contact with the student to opportunistically engage in a sexual act involving the student.

30. A number of the incidents involve acts which are factually very similar involving the fondling of the complainants' genitalia from the outside of the complainant's pants (incidents 1, 2, 11, 15 and 16) or underneath the complainants' pants (incidents 3, 4, 5, 7, 8, 10 and 14).

31. Incidents 6 and 9 were somewhat different in that they are alleged to have involved touching outside of the clothing whilst the complainant and the accused were in class.

32. Incidents 12 and 13 do involve a different and more serious type of sexual activity compared to the other incidents. It is these incidents to which counsel for the accused directed most attention. The submission was that the other incidents should not be permitted to be used as tendency evidence in relation to incidents 12 and 13 and that incidents 12 and 13 should not be permitted to be used as tendency evidence in relation to the balance of charges.

33. It is convenient to first deal with those incidents other than incidents 12 and 13. It is useful to consider the two stage process articulated in Hughes v The Queen [2017] HCA 20; 344 ALR 187 at [41]. First, the extent to which the evidence supports the tendency. The tendency is a reasonably specific one. The evidence in relation to each of the incidents is strong support for the tendency when it is taken together with the other evidence that supports that tendency. Second, the existence of the tendency is one which makes it significantly more likely that the facts making up the charged offence occurred. That is because of the similarity between the events in question and the temporal proximity of the incidents. The minor differences in circumstances between the individual incidents are not such as to affect the conclusion that they demonstrate a pattern of conduct. The similarity is not only in the physical acts involved, but also the relationships between the accused and each complainant. For these reasons, I consider that the evidence has significant probative value. No submissions were made that there may be any relevant prejudicial effect upon the accused.

34. Incidents 12 and 13 require separate consideration. In relation to those incidents counsel for the accused submitted:

... the acts relied upon as counts 12 and 13 involve intrusive forms of sexual assault which distinguishes them from the type of acts referred to in counts 1-11. In these circumstances, it is submitted that a Jury notwithstanding any directions given by a Trial Judge will reason that the Accused is a perverted individual who has sexually assaulted each of the Complainant's as to counts 1-9 without properly considering the evidentiary issues upon the Accused's trial. Likewise counts 1-11 will be misused by the Jury to reason that the Accused is guilty of counts 12 and 13.

(Emphasis in original.)

35. This submission is directed to the issue raised by s 101(2). I will address first s 97.

36. I consider that the evidence of counts 12 and 13 is of significant probative value in relation to the balance of the counts and that the balance of the counts are of significant probative value in relation to counts 12 and 13. There is, in my view a sufficient link between the offending to demonstrate a tendency to act in a particular way alleged by the Crown. Whilst it can be accepted that the allegations in counts 12 and 13 are more serious and involve different types of acts from those the subject of the balance of the charges, the conduct alleged has the following common features: it occurred while the accused was a teacher at Marist College, it occurred in the period 1976 to 1987, each complainant was a student at the school between Year 4 and 10, each complainant was or had been a student of the accused and in each case the conduct alleged arose out of or was made possible by the student-teacher relationship. In my view these features are sufficient to indicate that the evidence of counts 12 and 13 and the evidence of the other charges is each significantly probative of the accused having committed the other offences.

37. So far as the s 101(2) question is concerned, I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect that it may give rise to. Most significantly, since the accused made the submission set out above, the accused has (by his guardian) elected for trial by judge alone. That means that the risk of a jury misusing the evidence has been eliminated. Second, the evidence in relation to each charge is to be given in any event. Third, I do not accept that the nature of the sexual incidents involved in counts 12 and 13 are so different from the balance of the charges as to overwhelm a finder of fact and cause some misuse of the evidence or divert the finder of fact from a proper assessment of the evidence.

38. For these reasons my ruling is: The evidence in relation to each count on the indictment may be admitted as tendency evidence in relation to each other count on the indictment.

28 March 2019 Replace "complainant A" with "Complainant 1" Paragraph: [3]

Replace "complainant B" with "Complainant 2" Paragraph: [3]

Replace "complainant C" with "Complainant 3" Paragraph: [3]

Replace "complainant D" with "Complainant 4" Paragraph: [3]

Replace "complainant E" with "Complainant 5" Paragraph: [3]

Replace "complainant F" with "Complainant 6" Paragraph: [3]

Replace "A" and "A's" with "Complainant 1" and Paragraphs: [9]-[12]

Replace "B" and "B's" with "Complainant 2" and Paragraphs: [13]-[16]

Replace "C" and "C's" with "Complainant 3" and Paragraphs: [17]-[18]

Replace "D" and "D's" with "Complainant 4" and Paragraphs: [19]-[21]

Replace "E" and "E's" with "Complainant 5" and Paragraph: [22]

Replace "F" and "F's" with "Complainant 6" and Paragraphs: [23]-[24]

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.