R v Johnston [2016] NTSC 57

Criminal Code (NT) s 131A(2), s 131A (4), s 131A(5), s 132(2)(a), s 192(3), s 192(4), s 341, s 341A

Crimes Act 1958 (Vic)

Sexual Offences (Evidence and Procedure) Act (NT) s 3

De Jesus v R [1986] HCA 65, cited

R v TJB [1998] 4 VR 621, followed

Crown: Office of the Director of Public Prosecutions

Accused: North Australian Aboriginal Justice Agency

R v Johnston [2016] NTSC 57

[1] The accused has applied to sever counts 8 and 9 on the indictment dated 9 February 2016. The defence says that those two counts should be severed and tried separately.

[2] Count 1 on the indictment charges that contrary to s 131A(2), (4) and (5) of the Criminal Code between 1 January 1998 and 31 December 2002 at Vanderlin Island, the accused, being an adult, maintained an unlawful relationship of a sexual nature with SJ, the complainant, who was a child under the age of 16 years.

[3] Counts 2 to 7 inclusive on the indictment are pleaded in the alternative to count 1. Count 2 pleads that at some time in 1998 the accused had sexual intercourse with the complainant without her consent. Count 3 pleads that at some time in June or July 2000 the accused committed an act of gross indecency on the complainant without her consent. Count 4 pleads that sometime in June or July 2000 the accused had sexual intercourse with the complainant without her consent. Count 4 pleads that at some time in June or July 2000 the accused indecently dealt with the complainant, who was a child under the age of 16 years. Count 6 pleads that at some time in 2002 the accused committed an act of gross indecency upon the complainant. Count 7 pleads that sometime in 2002 the accused had sexual intercourse with the complainant without her consent.

[4] Count 8 pleads that at some time in October 2005 the accused had sexual intercourse with the complainant without her consent. Count 9 pleads that at some time in August 2011 the accused had sexual intercourse with the complainant without her consent.

[5] Counts 1 to 7 on the indictment relate to offences allegedly committed when the complainant was less than 16 years of age. Count 8 relates to an offence allegedly committed when the complainant was 16 years of age. Count 9 relates to an offence allegedly committed when the complainant was between 21 and 24 years of age.

[6] The defence says the accused would be prejudiced or embarrassed in his defence of counts 1 to 7 if they were tried at the same time as counts 8 and 9. This is because during his interview by police the accused said he had consensual sexual intercourse with the complainant on two occasions. This evidence is not admissible to prove counts 1 to 7. If the evidence is heard at a joint trial of all counts on the indictment, it would raise in the minds of the jurors impermissible propensity reasoning about counts 1 to 7 which could not be cured by direction.

[7] The defence submits the following facts are relevant to this application.

[8] The complainant was 11 years of age at the time count 2 is alleged to have been committed and she is the accused's niece. Counts 1 to 7 are offences of an unnatural character that arouse strong emotions. An allegation that the accused had sexual intercourse with his niece when she was 11 years of age is an allegation that most people would find repulsive.

[9] While the evidence going to counts 1 to 7 may be admissible to rebut evidence of consent in relation to any act of sexual intercourse when the complainant was an adult, the evidence would not be admissible if the accused is acquitted of those counts.

[10] The defence says that there would be prejudice and confusion in the minds of the jurors if counts 8 and 9 were tried together with counts 1 to 7 on the indictment.

[11] The defence referred the Court to a number of authorities which recognise that some sexual offences are particularly likely to arouse prejudice against which direction to a jury is unlikely to guard.

[12] In De Jesus v R,[1] Gibbs CJ said:

Sexual cases, however, are peculiarly likely to arouse prejudice against which direction to the jury is unlikely to guard.

[13] In R v TJB[2], Callaway JA stated:

At least some sexual offences, particularly those of an unnatural nature or repellent character like offences against young children, are peculiarly likely to arouse prejudice. The law cannot shut its eyes to the facts of life.

There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion.[3]

[15] The Court's power to order severances governed by s 341 and s 341A of the Criminal Code.

[16] Section 341 of the Criminal Code states:

341 Separate trials where 2 or more charges against the same person

(1) Where before a trial or at any time during a trial the court is of the opinion that the accused person may be prejudiced or embarrassed in his defence by reason of his being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any offence or offences charged in an indictment the court may order a separate trial of any count or counts in the indictment.

(1A) Subsection (1) applies subject to section 341A.

(2) The court may discharge a jury from giving a verdict on the count or counts directed to be tried separately.

(3) The procedure on the separate trial of a count shall be the same in all respects as if the count had been set out in a separate indictment.

(4) The court may adjourn a separate trial, remand the accused person and make such orders as to bail and as to the enlargement of notices to witnesses and otherwise as the court thinks fit.

(5) In this section adjourn includes postpone in a case where the accused person has not been called upon to plead to the indictment.

(1) Despite any rule of law to the contrary, if an accused person is charged with more than one sexual offence in the same indictment, it is presumed that the charges are to be tried together.

(2) The presumption is not rebutted merely because:

(a) evidence on one charge is not admissible on another charge; or

(b) there is a possibility that evidence may be the result of collusion or suggestion.

sexual offence, see section 3 of the Sexual Offences (Evidence and Procedure) Act.

[18] In R v TJB,[4] the Court of Appeal of Victoria considered the equivalent provisions of the Crimes Act 1958 (Vic). Callaway JA stated the provisions confer a true discretion. The Victorian equivalent of s 341A simply introduced a new element into the exercise of the discretion in the case of sexual offences. The presumption that the counts are triable together is capable of being rebutted. His Honour stated that it has never been the law that separate trials are to be ordered because the evidence of one count is inadmissible on another. The significance of evidence on one count being inadmissible on another count is that it makes it practicable to order separate trials if there is a reason to do so. The reason is not inadmissibility of the evidence, but in the case of sexual offences the prejudice to the accused coupled with a doubt about the efficacy of any warning against the misuse of evidence.

[19] It remains the primary responsibility of the trial judge to ensure so far as is possible that the accused receives a fair trial. One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence.

[20] It seems to me that the risk of prejudice to the accused for his defence to counts 1 to 7 on the indictment is unacceptable if counts 8 and 9 on the indictment are not severed. If they are not severed, there is a real risk of the jury engaging in propensity reasoning despite any directions that they might be given by the Court that it is impermissible for them to do so. This is because the accused has not simply admitted having sexual intercourse with the complainant when she was 16 years of age and when she was an adult. He has admitted to having sexual intercourse with his niece in circumstances where there is a very significant age difference between them. Many people would be repelled by this, even if the sexual intercourse was consensual.

[21] Little impracticality arises if counts 8 and 9 are severed. The evidence of most of the witnesses in relation to counts 8 and 9, in particular the two witnesses Mr Clifford McGuinness and the police officer in charge of the case, is not evidence which would be called in relation to counts 1 to 7. Their evidence only relates to counts 8 and 9 and all of the complainant's evidence can be dealt with at a single recording of her evidence. The recording can then be separated in such a way that part of the evidence can be tendered at the trial of counts 1 to 7 and part of the evidence can be tendered at the trial of counts 8 and 9. It has not been suggested that there is a crossover of evidence otherwise.

[22] Also, the whole of the recording of the evidence of the complainant can be played at the trial of counts 8 and 9 where there is some cross-admissibility because the evidence does go arguably to rebutting evidence of consent if that becomes the main issue in the trial of those counts. That is, if the accused is convicted of counts 1 to 7 on the indictment at the trial of those counts, the recording of the complainant's evidence about those counts may also be played at the trial of counts 8 and 9 to rebut any suggestion of consensual sexual intercourse.

[23] I am not, on the other hand, persuaded that the evidence about the sexual offences said to have been committed by the accused when the complainant was a child prejudices the accused in such a manner as to require severance of those counts on that basis alone. Indeed, as I have said, the evidence about counts 1 to 7 is arguably cross-admissible in relation to counts 8 and 9 and goes to rebutting the accused's evidence about the complainant and him engaging in consensual sexual intercourse on those two occasions.

[24] As I have said, the reason for severance is that the evidence of consensual sexual intercourse prejudices the accused's defence of counts 1 to 7, not the other way around. It does so because there is a high risk that that evidence may be misused.

[25] I therefore order that counts 8 and 9 be severed and tried separately to counts 1 to 7 inclusive.

[1] [1986] HCA 65 at [4].

[2] [1998] 4 VR 621, 629.

[4] [1998] 4 VR 621.