R v PJ [2008] ACTSC 100

3. On 12 August 2008 the accused was arraigned before me and entered "not guilty" pleas to each of the six counts on an indictment dated 3 April 2008. Those were that:

... between the 24__th of September 1975 and the 14th of February 1977 at Canberra in the Australian Capital Territory [PJ] attempted to carnally know [M], a girl under the age of 10 years of age, to wit four or five years of age.

SECOND COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [M], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [M].

THIRD COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [M], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [M].

FOURTH COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] attempted to carnally know [M], a girl under the age of 10 years of age, to wit aged four or five years of age.

FIFTH COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [M], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [M].

SIXTH COUNT

AND FURTHER THAT between the 24th of September 1975 and the 14th of February 1977 at Canberra aforesaid [PJ] assaulted [M], a girl aged under 16 years of age, to wit, four or five years of age, and at the time of such assault, committed an act of indecency upon [M].

4. Those allegations relate to two specific instances. The first is alleged to have occurred in 1975 or 1976. The second allegedly occurred towards the end of the period specified in the charges. The complainant was born on 25 September 1971.

5. The complainant's grandmother was the mother by adoption of the accused. The accused was regarded by the complainant as an uncle. He was about 13 years older than she was. The complainant frequently visited her grandmother.

6. When the complainant was about four or five years of age, she states, she was left with the accused whilst her mother took her grandmother for weekly medical appointments.

7. On one such occasion, towards the beginning of the period of time specified the accused directed her to lay on the kitchen table. He undressed her, kissed her and then thrust his erect penis towards her vagina, attempting to insert it. He then desisted from this as it was unsuccessful and performed oral sex upon her. He then instructed her to take his penis into her mouth. He continued to thrust his penis in and out of her mouth until he ejaculated.

8. That allegation has resulted in the first three counts in the indictment.

9. It is the complainant's allegation that this kind of conduct occurred on approximately 10 occasions until 1977 when her brother was born and she was no longer left with the accused. The last such occasion is represented by the final three counts in the indictment.

10. The prosecution seeks to adduce from the complainant evidence of those other acts occurring in the period between the two incidents the subject of the indictment.

11. The prosecution acknowledges that leave is required to adduce such evidence.

12. Ms Jones, for the applicant, suggests that the evidence passes the threshold test of relevance (see s 56 of the Evidence Act). That is certainly the case. It is relevant to establish that the accused behaved as alleged on the two occasions, the subject of the charges, to prove that he had habitually done so. That, of course, does not suffice to permit the leading of such evidence. It is usually excluded on the grounds of unfair prejudice. The case of an habitual thief, charged with larceny, is an obvious example. At common law, such evidence might be adduced by way of "similar fact" evidence to identify the accused as the perpetrator of the criminal conduct in issue. That would not be of relevance here as, if there was criminal conduct, the accused is clearly identified as its perpetrator.

13. The evidence to be adduced tends to show that the accused had a disposition to engage in conduct such as the criminal conduct in issue. Evidence adduced to show that the accused had a disposition to engage in conduct such as the criminal conduct in issue has generally been rejected as inadmissible.

14. In Boardman v Director of Public Prosecutions [1975] AC 421, 438 Lord Morris of Borth-y-Gest cited with approval Lord Herschell LC, in Makin v Attorney-General for NSW [1984] AC 57, 56, who had stated the rule as follows:

It is undoubtedly not competent for the prosecution to adduce evidence tending to shew [sic] that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew [sic] the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

15. In the present case, if the accused committed the acts complained of on either occasion, it could not seriously be suggested that the acts were innocent or unintended. Consent is not relevant so that no defence is likely which could be rebutted by evidence of repetition of the acts in question.

16. Further, though there is no explanation for the course of conduct alleged inconsistent with guilt, the evidence of that course of conduct rests on the same foundation of credibility as the six counts in the indictment. If the complainant's credibility was to be diminished in respect of the six counts in the indictment, it would be equally diminished in relation to the course of conduct.

17. The test for admissibility of such evidence is onerous. That was explained as necessary in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 483 because of the "prejudicial capacity of a high order" of such evidence. The objective of the exclusionary rule is to preclude the impermissible line of reasoning that the accused had a (relevant) criminal disposition or propensity so that he (or she) was the more likely to have committed the crime charged. In the present case, the only justification for the admission of the evidence on the issue as to whether the charged acts took place could be to explain why no precise details thereof, if otherwise to be expected, can be given. The evidence of uncharged acts may be said to explain acquiescence in relation to the events alleged in the last three counts. However, the age and relationship of the complainant to the accused would explain that acquiescence without proof of the uncharged acts.

18. The contention of the prosecution echoes the obiter dictum of Callinan J in Tully v R [2006] HCA 56; (2006) 231 ALR 712, 747, where, though the evidence was rejected, the charged acts, if proved, would have revealed an ongoing course of conduct without reference to the uncharged acts. His Honour said:

The position may, for example, be different if there is only one or a small number of offences charged and:

"... a truthful complainant is likely to be disbelieved if relationship evidence is excluded and in consequence the jury derive the impression that the complainant is saying that the accused molested him or her out of the blue (see R v GAE [2000] VSCA 18; (2000) 1 VR 198 at 206 [22])."

19. The most recent discussion by the High Court of this issue is, as both counsel agreed, to be found in HML v The Queen [2008] HCA 16; (2008) 82 ALJR 723.

20. That matter involved three appeals from South Australia in child sexual abuse cases. In each case the child complainant gave evidence of other similar but uncharged acts. In the first case no issue was taken with the admission of that evidence. The complaint was that the accused had not been permitted to lead evidence that no charges had been laid in Victoria where the uncharged acts had allegedly occurred.

21. In the second case the additional evidence related to other sexual conduct, only some of which was criminal, towards the complainant, the daughter of the accused.

22. The third case related to evidence of uncharged sexual offences against the complainant. The question was as to the standard of proof of such acts.

23. Without going into a detailed analysis of each judgment, the majority affirms the proposition that such evidence is relevant and admissible, not merely to show "context" or "background" or merely to bolster credibility but, more relevantly, to prove an illicit sexual interest in a relationship with the complainant that makes it more likely that the charged conduct occurred. Even so, it is emphasised that the jury should be warned not to reason from the uncharged acts that the accused possessed a criminal propensity and should be directed that an uncharged act could not be relied upon in aid of the prosecution case if not proved beyond reasonable doubt.

24. I would adopt, with respect, the analysis of factors favouring admission or exclusion summarised by Kirby J, at 741 to 744 (supra). I set them out (as did Ms Jones in her submissions):

Admissibility of relationship evidence

[56] Factors favouring admission: I accept that, as a matter of legal principle or policy, several considerations tend to support the reception of evidence by complainants of alleged acts of sexual abuse different from, and additional to, those identified in the charges preferred against the accused by the prosecution:

(1) Although criminal trials address specific charges alleged in an information or indictment, the experience of the courts shows that sexual abuse of young persons is often, or typically, manifested in multiple and repeated incidents over a period of time. It is commonly impracticable, or even impossible, to include them all among the formal charges. The repeated character of the events may render them individually unmemorable either to the complainant or to the accused. A court process directed to eliciting a truthful description of what has happened to a complainant will take account of such practical considerations;

(2) Where sexual assault cases are not prosecuted under the new provisions establishing "relationship crimes", a practice is often observed by prosecutors of charging the first, or earliest, alleged incident of a sexual offence remembered by the complainant and also the most recent incident that can be described. Others may be included because of special features in the facts or surrounding circumstances which are said to trigger the memory of the complainant and to permit particularity. However, almost inevitably, and whatever the wishes and precautions of lawyers, evidence may emerge of other incidents not made the subject of charges. This may be due to factual links between such incidents and the matters charged, or because such incidents are allegedly remembered whilst the complainant's evidence is being adduced. Alternatively, the complainant, unaware of (or impatient with) the conventions of the criminal trial, may assert that many other similar instances occurred, leaving it to the trial judge to deal with the admissibility of such evidence and with the directions that should then be given. Attempts to quarantine the charged acts may, in practice, be both artificial and futile;

(3) From the point of view of the complainant, and respecting his or her entitlement to provide a truthful version of what is recalled, it is important for legal procedure to facilitate, so far as basic principle permits, the giving of a "fair and coherent account" of what has allegedly occurred resulting in the criminal prosecution;

(4) The law has an important obligation to protect truthful complainants about sexual abuse. It is an appreciation of the significance of this consideration that led Lord Hope of Craighead to observe in R v A (No 2) that "the balance between the rights of the defendant and those of the complainant is in need of adjustment if [complainants] are to be given the protection under the law to which they are entitled against conduct which the law says is criminal conduct". This observation has particular force where the abuse has allegedly been suffered by children as a result of the conduct of family members who owe the child special duties of trust and protection;

(5) Self-evidently, sexual assault against children is a very serious crime both in terms of its incidence in our society and in its impact on the victim, the victim's family and the community. There is compelling evidence of historical "under-enforcement" in this area. The increase in prosecutions for offences of the present kind observed by the courts in recent years is, in part, a reflection of changing community, police and prosecutorial attitudes. These developments ought not to be permitted to be frustrated by unjustifiably restrictive court procedures; and

(6) The retention of jury trial for most contested allegations of such offences in Australia suggests a continuing acceptance of the need to entrust decision-making in such cases to "the ordinary experiences of ordinary people". Juries resolve disputed issues and distinguish false or unproved accusations from those which they consider to have been proved to the requisite standard by applying their collective experience of life and of their fellow human beings. In recent years, the House of Lords, in Director of Public Prosecutions v P and R v H_, has demonstrated a greater willingness to trust juries with sensitive evidence than, for example, was apparent in the earlier case of_ R v Boardman_. Thus, Lord Griffiths, in the case of_ H_, suggested that a "less restrictive form" of the rules excluding relevant evidence was appropriate given today's "better educated and more literate juries". So far as the common law of Australia is concerned, the result may also be a greater willingness in this country to permit jury access to relevant but sensitive, and potentially prejudicial, evidence. The fact that potential prejudice may be susceptible of limitation through careful directions and warnings is an additional factor that tends to favour reposing greater trust in juries in cases such as the present._

[57] Factors favouring exclusion: As against the foregoing considerations, a number of others need to be kept in mind:

(1) In general, criminal trials of serious offences in Australia observe an accusatorial form. As a matter of law, the accused is ordinarily entitled to put the prosecution to proof of its allegations. In the usual case, it is essential that an accused person should be informed in advance of the trial not just of the "legal nature of the offence with which he is charged but also of the particular act, manner or thing alleged as the foundation of the charge". In Australia, this has led to rules of law and practice requiring a high degree of specificity of accusations and of criminal charges. To the extent that uncharged accusations or generalised "relationship evidence" intrude upon such a trial, they have a tendency to impair the right of the accused to know in advance, and to prepare to test and to meet, the particular charges alleged. This, in turn, has the tendency to endanger a fundamental feature of the criminal trial;

(2) From the viewpoint of the accused, the foregoing elements of the criminal trial afford important protections. They permit the accused to prepare for the trial; to test the accusations; to assemble a defence; and (if so decided) to gather rebutting, alibi and other evidence. They also permit the accused to object to evidence as it is tendered where it is not relevant to the issues for trial, as those issues are defined by the information or the indictment, supplemented perhaps by particulars. To the extent that a complainant introduces other accusations and allegations that are not contained in the charges or particulars, serious prejudice may sometimes arise which it is difficult, or impossible, to cure on the run in the course of the trial;

(3) Although the foregoing features of the accusatorial trial are particularly important in common law countries, it is arguable that a clear delimitation of criminal accusations before the beginning of any trial is a universal requirement of international human rights law. Thus, Art 14 of the International Covenant on Civil and Political Rights states a number of basic rights by reference to the "determination of any criminal charge" against a person. The determination of a "criminal charge" apparently postulates a degree of particularity and notice to the person accused of the exact allegation that is made;

(4) Whilst proper attention must be addressed to the protection of complainants, so that they may place relevant testimony before the trial without artificial or irrational impediments, it is the accused, and not the complainant, who is on trial. Ordinarily, in cases involving allegations of repeated child sexual assault, the accused faces, if convicted, serious (commonly custodial) punishment. It is therefore the duty of courts, and of prosecutors, to ensure the fairness of the trial, especially so because accusations of criminal offences against children are specially likely to arouse feelings of prejudice and revulsion in the community which will normally be shared by jurors;

(5) Uncontested evidence sometimes later proves that accusations earlier made to police about a sexual assault are false, resulting in the initial conviction of an innocent person. Cases also arise where such accusations are withdrawn and disclaimed after the accused has been convicted. It is not correct to assume that all such accusations are accurate and reliable; and

(6) Although criminal appeals are necessarily conducted on the assumption that the jury understand and observe directions given to them about the law, there are risks, once certain evidence becomes known to the jury, that they may treat that evidence as disclosing a general disposition on the part of the accused to act as alleged in the charges. To the extent that the common law retreats from rules withholding particular evidence from the jury, and to the extent that the law permits the jury to receive and consider such evidence although not the subject of any charge, there may be a commensurate need to enlarge the judicial obligation to direct and warn the jury about the dangers of pure propensity reasoning.

(footnotes omitted)

25. Self-evidently, all the factors favouring admission are present in the scenario the prosecution proposes to rely upon.

26. It is necessary, however, carefully to consider those factors which would favour exclusion. The generality of the "other act" evidence makes it more difficult for an accused to meet those further accusations. To offer rebuttal or alibi evidence would be impossible, save by denial. Indeed, that is the first complaint made by Mr Thomas on behalf of the accused. For this Territory, the reference by Kirby J to Article 14 of the International Covenant on Civil and Political Rights is supported by s 22 of the Human Rights Act 2004 (ACT).

27. In the present case, as I have noted, the "other act" evidence relies on the same factual foundation as the evidence of the charged acts. The allegations both as to charged acts and uncharged acts rest wholly and solely on the word of the complainant. There is, therefore, no risk of unfair prejudice from allegations of other discreditable conduct which may arise from other incidents not apparently resting upon the same evidentiary foundation (c.f. Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292).

28. The evidence of the uncharged acts, if accepted, would tend to show that on the last occasion of sexual misconduct alleged, it was not an isolated incident but part of and illustrative of a course of conduct. That is a legitimate purpose of such evidence.

29. It may be contrasted with evidence of a sexual assault committed in different circumstances and at a different time. Evidence, for example, that an accused aged 16 had sexual relations with a 14 year old girl, would be merely prejudicial and not particularly useful to prove an accusation such as the present.

30. HML v The Queen (supra) was, of course, not decided in the context of the Evidence Act. The question arises whether, even if appropriately admissible under the general law, the evidence now proposed is such as to satisfy the relevant provisions of the Evidence Act.

31. Mr Thomas, for the accused, pointed to ss 97 and 101 of the Evidence Act. Relevantly, s 97(1)(b) provides:

(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, if:

(b) the court thinks that the evidence would not, 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.

32. Section 101(2) provides, for a criminal proceeding, a further restriction:

(2) Tendency 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.

33. The proposed evidence thus must satisfy the two tests of substantial probative value and of probative value substantially outweighing the prejudicial effect of that evidence, otherwise it must be excluded.

34. Mr Thomas first submits that the evidence as disclosed lacks sufficient specificity to enable those tests to be satisfied.

35. However, the quality of the proposed evidence, though lacking specific dates and times and specific acts committed on specific occasions, is no less specific in those respects than the evidence admitted in HML v The Queen (supra) and in cases specifically involving the Evidence Act, such as Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463 and KJR v The Queen [2007] NSWCCA 165; (2007) 173 A Crim R 226.

37. I do accept, as was accepted by Rothman J in KJR v The Queen (supra), that "significant" probative value is more than merely satisfying the test of relevance. The evidence must be seen to have a real and important role to play in the prosecution case so that it would, without that evidence, be less persuasive. It does not have to be essential to the prosecution case.

38. In the present case, evidence that the accused followed a similar pattern of behaviour on other occasions and when similarly placed in charge of the complainant would answer a question that must arise. Namely, that, if it is to be accepted that the accused acted as alleged on the two occasions charged, why would he so act on those occasions and not on others when he was similarly placed? To omit reference to the gap in between, making no allegations of misconduct occurring in the interim, risks an assumption that misrepresents the truth of the matter as the prosecution would put it.

39. The hub of the issue, however, is s 101 of the Evidence Act. Is the prejudicial effect of that evidence outweighed by the "significant" probative value of the evidence? That the evidence may be characterised as propensity evidence is undoubted. That it is given in the context of substantial delay in complaint is also significant. That delay might well require a Longman warning (see Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79). That warning, it should be stressed, is not based on the particular status of complainants in sexual assault matters, but rather on the prejudicial effect of delay in bringing forward allegations of criminal behaviour (or, indeed, of a civil wrong - see Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541). It remains a discretionary judgment for a trial judge to make having regard to the alleged circumstances.

40. However, it may be accepted that, though opportunity to commit the alleged offences may be proved to have existed, in the sense that there were occasions when the complainant was, when aged four to six years left alone with the accused, the allegations otherwise depend solely on the uncorroborated word of the complainant.

41. The accused's submissions suggest that the prejudicial effect of the evidence is not only because it is incapable of meaningful cross-examination as to context, but also because its probative effect rests on two foundations that are impermissible apart from the legitimate relevance already identified. Those are, firstly, propensity reasoning and secondly, emotive effect.

42. The first is the kind of impermissible reasoning that underlies the exclusion of criminal history or adverse character evidence that suggests the accused is a person likely to engage in the conduct in question. The second is excluded because it is likely to arouse in a jury a feeling of sympathy for the complainant as the victim of ongoing sexual abuse, diverting attention from whether that abuse in fact occurred on the two occasions in question.

43. Neither of those lines of reasoning is permissible.

44. Rothman J in KJR v The Queen (supra), at 236, made it plain that, if the purpose of the evidence of uncharged acts is to prove tendency, it is not admissible by virtue of s 97 of the Evidence Act. Such evidence must have significant probative value towards proving not merely a general disposition, but, further, that the tendency was acted upon on the occasions in question. Even if that test is satisfied, s 101 must be considered.

45. In KJR v The Queen (supra) the issue was more akin to similar fact evidence showing inappropriate sexual interest by the accused in his daughters.

46. This case is more akin to Qualtieri v The Queen (supra). In that case also the evidence of uncharged acts emanated solely from the complainant. McClellan CJ at CL noted that such evidence may be tendered to prove "context". If it is, there must be a relevant issue to which it might rationally go, such as acquiescence or lack of complaint or lack of appearance of shock or surprise which may be made an issue at trial.

47. In the present case, the complainant was a child of very young age over the period of 17 months during which the offences were allegedly committed. It needs no explanation to render it credible that a child of four or five would accept the authority of a family figure, such as an uncle, and submit to the acts complained of without contemporaneous complaint.

48. Nevertheless, it may be relevant to making the circumstances surrounding the particular offences charged more intelligible, to negate a concern that it would be odd for only those two occasions to have happened, if there is evidence of opportunity on other occasions but that no sexual molestation occurred.

49. Howie J added a further consideration. At 492, his Honour warned that such evidence:

does not necessarily become admissible merely because it is said to disclose the relationship of the accused and the complainant: it must also be relevant and must not be unfairly prejudicial.

50. The kind of conduct alleged is usually secretive and often part of a continuing course of conduct. The relevance of "context evidence" his Honour explained as follows, at 493:

Context evidence in child sexual assault offences will normally come from the complainant because it is part of the narrative or the history of events surrounding the particular allegations in the counts set out in the indictment. Its relevance will only be found in the extent to which it does provide an understanding of the particular allegations before the jury. Where the complainant is alleging a history of assaults upon him or her by the accused, the evidence, or some of it, may need to be admitted because it would be impossible for the complainant to give an account of the particular allegations without referring to uncharged allegations that proceed or surround them. It would often be unrealistic for the complainant to be expected to give an account of the particular allegations as if they happened "in a vacuum".

51. On the other hand, his Honour remarked at 493-4, tendency evidence, admitted to prove the commission of the offences charged by showing that the accused had a tendency or propensity to commit sexual acts upon the complainant,

... will almost never be found in the complainant's account of his or her relationship with the accused. That is because the complainant's account of the relationship would rarely have sufficient probative value to overcome the precondition of admissibility for tendency evidence in s 97 and s 101.

1"> 52. It seems to me, therefore, that whilst the evidence of uncharged acts in the present case is admissible to establish the context in which the charged acts are alleged to have occurred, it ought not to be admitted to prove that the accused had a tendency to commit the acts charged. Hence the jury must be directed to disregard that evidence on the issue of the credibility of the complainant and on the issue as to whether it adds to the likelihood that the acts charged occurred. Nor should that evidence be used for that purpose unless the jury is also satisfied that such acts occurred to the criminal standard.

53. The application to admit the evidence as tendency evidence is, accordingly, rejected though it may, otherwise, be admissible as context evidence if so tendered.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Crown: Director of Public Prosecutions for the ACT

Solicitor for the defendant: Gordon Naylor & Associates