R v Tully

1. to have a sexual attraction to young girls;
2. to act on his sexual attraction to young girls; and

1. to take advantage of his parents' friendships with other families to gain access to young girls.

3. The accused opposes the application. As I understand it, the parties agree that the only basis upon which a joint trial of all 23 offences can take place is if the prosecution's application is successful, otherwise separate trials will be required with respect to the 8 different complainants.

4. The application is governed by the provisions of the Evidence Act 2011 (ACT) (the EA 2011).

5. The touchstone of admissibility of evidence is relevance:

55 Relevant Evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to -

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to present evidence.

56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

6. The tendency rule is set out in s 97 of the EA 2011:

97 The tendency rule

(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 present the evidence gave reasonable notice in writing to each other party of the party's intention to present the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

7. Further restrictions on tendency and coincidence evidence adduced by the prosecution are found in s 101 of the EA 2011:

1. Further restrictions on tendency evidence and coincidence evidence presented by prosecution

(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented 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.

(3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.

8. The tendency notice refers to 31 "incidents", and gives notice of the prosecution's intention to call evidence of the accused's conduct alleged with regard to each of these incidents as tendency evidence, to prove one or more of the alleged tendencies, at his trial. Some incidents as outlined in the tendency notice relate to a count on the indictment. Some incidents incorporate more than one count. Finally, some incidents are not reflected in any charge against the accused, and these I will refer to as uncharged acts.

9. On a day between 1 April 1992 and 1 April 1993, A, then 7-8 years old, was at the accused's house. During the night she and B slept on the fold-out couch in the library. At some point the accused walked into the room moved up her nightie, took off her underpants and put his mouth on her vagina and licked it.

10. On a night between 1 April 1992 and 31 December 1994, A, then 7-9 years old, was at the accused's house. She was sitting on the fold-out couch in the library with B when the accused walked into the room and started talking with the girls. The accused sat on the couch between both girls, pulled his pants down to expose his erect penis and placed A hand on it moving it up and down. A removed her hand from his penis.

11. On a day between 1 April 1992 and 31 December 1996, A then 7-11 years old, was at the accused's house. As she walked through the house looking for B she saw the accused in the library. The accused took her into a bathroom and closed and locked the door. He placed bath towels on the floor and told her to lay down on them. He removed her pants and underpants and knelt down and put his mouth on her vagina and licked it. He then pulled down his pants and lay on top of her inserting his penis into her vagina. At about this time B walked past the bathroom door calling out A's name but the accused put his hand over A's mouth.

12. Between 1989 and 31 March 1997, A, then 4-11 years old, was at the accused's house playing. The accused lifted her up from behind and put his hand between her legs and rubbed her vagina outside her underpants.

13. On a day between 1 January 1998 and 27 June 2000, JA then 7-9 years old, was playing with other children near a shed at the accused's house. The accused gave her a 'piggy back' ride. During the 'piggy back' ride he reached behind his back and put it underneath her dress and put his thumb on her vagina over her underpants. He then moved her underpants to the side and put his thumb on her vagina for a short period of time.

14. On a night between 1 December 1999 and 27 June 2000, C, then 9 years old, was at the Majura Community Centre. Also present was her younger cousin, D and the accused. At some point the accused was leaving and asked C and D to walk him to the car park to say goodbye. He got into the driver's seat of his white Subaru Impreza car and, while the driver's door was open, pulled C towards him and kissed her on the mouth.

15. On a day between 1993 and 2000, C, then 3-10 years old, was at the accused's house. C and D were in the shearing shed playing with the gym equipment when the accused sat her on his lap and inserted his finger into her vagina.

16. On a night between 1 May 1998 and 30 June 1998, E, then 9 years old, was at the accused's house watching television with other children. The accused walked into the room and sat next to her. The accused picked E up and put her on his lap. He put a blanket over their laps and put his hand under the blanket and fondled her vagina, rubbing his fingers back and forth, over her underpants. Later, the accused walked out of the room and asked E to go to his bedroom. Inside the bedroom the accused shut the door and reached underneath E dress and removed her underpants. He touched her vagina, rubbing his fingers back and forth, for a few seconds. He then undid his boxer shorts and asked E to touch his penis. He took her hand and pressed it against his penis. He then told her to lie on the bed on her back with her legs spread apart. He lay on top of her and pressed his penis against her vagina.

17. On a night between 1 May 1998 and 30 June 1998, E, then 9 years old, was at the accused's house to celebrate the Queen's Birthday. There was a bonfire in a paddock near the shearing shed. At some point her mother told her to get her brother who was at the bonfire. The accused accompanied E and gave her a 'piggy back' ride to the shearing shed. When they reached the shearing shed he put her on the ground and walked her to the corner of the shed. He reached underneath her skirt and pulled down her underpants. He knelt down and put his mouth on her vagina and licked it. A short time later they walked out of the shearing shed and told E's brother he was wanted at the house.

18. On a day between 1 May 1998 and 30 June 1998, E, then 9 years old, was in the accused's bedroom. He kissed her on the mouth and lifted up her shirt and fondled her breasts. He said, referring to her breasts, "They're still little but they will grow".

19. On a day between 1 September 1999 and 1 March 2000, E, then 11-12 years old, was being driven home by the accused after a camping trip. The accused tried to touch her vagina, however, she yelled at him to stop.

20. On a night between 1992 and 2000, E, then 3-12 years old, was asleep in the accused's bedroom. At some point the accused took off her underpants.

21. On a day between 25 December 1997 and 24 December 1999, F, then 10-11 years old, was at the accused's house playing with B and G. At some point the accused invited her to look at some kittens. She followed the accused into a spare bedroom. The bedroom door was pushed almost closed and the accused then put his hand underneath her dress and rubbed her back. He moved to her other side and again put his hand underneath her dress and briefly brushed her vagina, outside her underwear, before again rubbing her back.

22. On a day between 15 July 1998 and 24 March 2000, F, then 10-11 years old, was in the accused's house watching television. There were also other children in the room. The accused walked into the room and sat closely next to her. He put his hand on her thigh before moving it slowly to her crotch and stopped at her jeans zip.

23. On a day between 14 October 1999 and 13 October 2000, H, then 6 years old, was at the accused's house. She was lying on the floor of the laundry with the accused. The accused pulled down the top of her dress and touched her nipples. He then pulled down his pants exposing his penis and made her touch it. As some point B walked past the laundry and the accused covered H's mouth as his sister walked past.

24. On a day between 14 October 1999 and 13 October 2000, H, then 6 years old, was at the shearing shed with the accused. She was lying on the shearing shed floor. The accused took off her underpants and spat saliva on her vagina before inserting his penis into her vagina. She felt extreme pain and began to bleed from her vagina. The accused told his sister, I, who was nearby the shed to "get undies". I left and returned a short time later with a pair of underpants. The accused wiped the blood from H's vaginal area with a piece of wool and gave her the fresh underpants which she put on.

25. On a day between 1997 and 2000, H, then 3-7 years old, was lying on a towel in the accused's bathroom. The accused was lying on top of her touching her nipples. He touched her vagina and made her lick his penis. At some point there was a knock on the bathroom door and the accused got off her and went out of the bathroom before returning a short time later. H left the bathroom by the window.

26. On a day between 1997 and 2000, H, then 3-7 years old, was in a shed lying on one of the dog's beds. The accused inserted his finger into her vagina. Afterwards H played on the swing.

27. On a day between 1997 and 2000, H, then 3-7 years old, was in the library of the accused's house with I and J. The accused walked into the library wearing a dressing gown. He crouched in front of H and tried to get her to touch his penis but she refused. She could see his penis through a gap in the dressing gown.

28. On a day between 1997 and 2000, H, then 3-7 years old, was in the accused's bedroom with the accused. The accused touched her nipples and made her hold his penis. He inserted his finger into her vagina and told her to lick his penis.

29. On a night between 10 October 2000 and 9 October 2002, K, then 12-13 years old, was at home with other people, including the accused, for a movie night. At some point the accused took her into the bathroom and lifted up her shirt exposing her breasts. He put his hand on her breasts and fondled and kissed them for several minutes. Afterwards the accused and K left the bathroom separately.

30. On a night between 1998 and 2003, K, then 9-14 years old, was lying with the accused in a paddock at his house. The accused was talking about the star constellations. The accused lay on top of her and had penile-vaginal sexual intercourse. Afterwards as K walked back to the main house she heard people calling her name. Her mother asked her where she had been and she started crying because she was afraid. She told her mother that the accused had been telling her about the star constellations. However, the accused entered the main house through his bedroom and came out of his room claiming to have been asleep.

31. On a day between 1998 and 2003, K, then 9-14 years old, was at L's house in Ngunnawal. Also present was the accused. The accused took her to an area under the garage roof and rubbed his penis against her vagina. He tried to insert his penis into her vagina but she told him it hurt so he stopped.

32. On a day between 1998 and 2003, K, then 9-14 years old, was lying on the shearing shed floor. The accused stood naked in front of her before lying on top of her and had penile-vaginal sex with her.

33. On a day between 25 May 1991 and 24 May 1992, M, then 4 years old, was at home with other people, including the accused. The children were playing a game of 'hide and seek' in the backyard and the accused was supervising them. When it was M's turn to seek the accused took her into the living room to help her count to one hundred while the other children hid. Inside the living room the accused told her to lie on the floor. He pulled down her shorts and underpants. He unbuckled his belt and pulled down his jeans exposing his penis. He lay next to her and tickled her around her arms and stomach. He then inserted his index and middle fingers inside her vagina. He then lay on top of her and inserted his penis into her vagina.

34. On a day between 25 May 1991 and 24 May 1992, M, then 4 years old, was at the accused's house sitting on his lap watching television. There were also other children in the room. The accused pulled her underpants to the side and inserted two fingers into her vagina.

35. On a day between 25 May 1991 and 24 May 1992, M, then 4 years old, was at the accused's house watching a movie with other children. The accused took her into his bedroom and lay her on the floor. He pulled down her underpants and inserted two fingers into her vagina. He then put his mouth on her vagina and licked it. During this the accused told her to be quiet because it was a 'quiet game'. Afterwards she returned to the lounge room and continued watching the movie.

36. On a day between 31 August 1991 and 1 March 1992, N, then 9 years old, was at the accused's house sitting on a bed in his parent's room watching a movie. At some point she walked out of the bedroom into the hallway and saw the accused playing a guitar. The accused took her out of the house to the 'Rosebud' shed. Inside the shed the accused lay her on a mattress and put her hand on his jeans but over his penis. He then reached between her legs and put his hand down her underpants and touched her vagina, masturbating her. He then turned her mover and placed her on all hours - with her bottom facing him. He pulled her underpants down and rubbed his penis up and down her bottom. While this was happening someone ran past the shed window. The accused picked her up and moved quickly to the right hand side of the shed and said "shhh". A short time later he took her back to the house where she continued to watch the movie.

37. On a day between 1998 and 2000, O, then 8-9 years old, was at L's house in Ngunnawal. Also present was the accused. The accused put his hand down her underpants and touched her vagina.

38. On two days between 1995 and 2000, P, then 7-12 years old, was alone with the accused at his house. The accused put his hand under her dress and into her underpants and touched her vagina. This occurred on two occasions.

39. On a day between 1996 and 2000, Q, then 8-12 years old, and R, who was about the same age, were at the accused's house swimming at the dam. As they were walking back to the house outside B's bedroom they saw B, A, N (all then 6-18 years old) getting changed. Also in the bedroom was the accused.

40. It is quite clear that the evidence the prosecution seeks to lead is relevant to proving either the charges themselves, or that he possessed one or more of the alleged tendencies at the relevant times. It is also obvious that proof that the accused possessed one or more of the alleged tendencies is relevant to proving that the accused did the acts alleged. By virtue of s 56 of the EA 2011, the evidence is therefore admissible unless some other provision of that Act makes it inadmissible.

41. Section 97 of the EA 2011 provides that tendency evidence is only admissible where the court thinks that the evidence, either by itself or having regard to other evidence to be presented by the party adducing the evidence, has significant probative value. The phrase "probative value" is defined in the dictionary to the EA 2011 as meaning, with regard to evidence, the extent to which the evidence could rationally effect the assessment of the probability of the existence of a fact in issue.

42. In BP v R; R v BP [2010] NSWCCA 303, Hodgson JA, with whom Price and Fullerton JJ agreed, said (at [107]-[111]):

To be admissible as tendency evidence, the evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of a fact in issue to a significant extent, meaning (at least) an extent greater than required for mere relevance: Zaknic Pty Limited v Svelte Corporation Pty Limited [1995] FCA 1739; (1995) 61 FCR 171 at 175-6, R v Ford [2009] NSWCCA 306 at [50] and [51], R v PWD [2010] NSWCCA 209 at [66]. The question of probative value (and also the possibility of prejudicial effect) must be assessed having regard to the issues in the case: PWD at [63].

It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.

The possibility of prejudicial effect with which s 101 if concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to "some irrational, emotional or illogical response" or "giving the evidence more weight than it truly deserves": R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]. An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at [94]- [95]. If the evidence passes the s 101 test, it will a fortiori not be excluded under s 137: Ford at [59].

One matter that powerfully affects both the probative value of tendency evidence and the possibility of prejudicial effect is the risk of concoction or contamination of evidence. If the evidence of tendency from different witnesses is reasonably capable of explanation on the basis of concoction, then it will not have the necessary probative value: Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292. However, this will be so only if there is a real chance rather than a merely speculative chance of concoction: R v Colby [1999] NSWCCA 261 at [111], R v OGC (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433 at [74], [112]. The onus is on the Crown to negate the "real chance" of concoction: OGD at [74], R v F [2002] NSWCCA 125; (2002) 129 A Crim R 126 at [48].

Relevant to consideration of concoction are the factors mentioned in Hoch at 297, namely relationship, opportunity and motive. One of these on its own is not sufficient to base a finding of a real possibility of concoction: R v RN [2005] NSWCCA 412 at [15], OGD at [111]-[112].

43. In 2011, the accused participated in two taped records of interview with the police during which he denied all of the allegations, and denied ever being alone with any of the complainants. As such, the significant issue at trial will be whether these incidents ever occurred. If the prosecution establishes that the accused had, at the relevant times, a tendency to be sexually attracted to female children, and a tendency to act upon that attraction, that would constitute cogent evidence supporting the allegations made against him. Both the tendency to be sexually attracted to female children and the tendency to act on that attraction, are sufficiently extraordinary to possess significant probative value in assessing whether an accused has committed an alleged sexual offence on a female child: R v Johnston (2012) 6 ACTLR 297.

44. However, in assessing the probative value of proposed tendency evidence, the court should consider the possibility of concoction or contamination of the evidence. In AE v R [2008] NSWCCA 52, the Court said (per Bell JA, Hulme and Latham JJ at [44]):

If the possibility of joint concoction cannot be excluded the evidence does not possess the same probative value since there exists another explanation for the circumstance that each complainant has made like allegations. Hoch was concerned with the admission of similar fact evidence under the common law and propounded the "no other rational view" test that was adopted in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 482-483 per Mason CJ, Deanne J and Dawson J. This is not the test for the admission of tendency or coincidence evidence under the Act; R v Ellis [2003] NSWCCA 319. However, it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence. To the extent that his Honour did so, it was an error to find that there was no possibility of joint concoction: The complainants were sisters and were in contact with one another at the time each made her complaint. Insofar as the Judge assessed the probative value of PNE's allegations as being substantial in proof of the allegation that the appellant assaulted CNE his Honour erred.

45. In the present case, the accused submits that there is a real possibility that the allegations against him (which also constitute the proposed tendency evidence) are the product of collusion or have been contaminated by collusion. The prosecution concedes, as it must, that the opportunity for collusion exists with regard to at least some of the complainants. The complainants M and N are sisters, as are C and E. The complainants A and H are cousins. As such, the opportunity for concoction or contamination exists, at least between those complainants who are related to each other.

46. The fact that the evidence permits of the opportunity for some of the complainants to have concocted their allegations is not the end of the matter. What the prosecution must disprove is not opportunity for concoction, but the real chance or real possibility of concoction: BP v R; R v BP at [110]-[111], see [39] of these reasons.

47. A useful case in considering what is meant by a real chance or possibility of concoction is Hoch v R [1988] HCA 50; (1988) 165 CLR 292. There the accused was employed part time as a recreation officer at an institution caring for young boys. Three boys who were resident at the institution alleged Hoch had sexually assaulted them. He was charged with three offences of indecent dealings with a boy under the age of 14. Two of the complainants were brothers, and the first was a friend of one of the brothers. There was evidence that the complainants had antipathy to the complainant unrelated to any alleged sexual acts. An application by Hoch for separate trials was refused. At trial Hoch was convicted. An appeal to the Court of Criminal Appeal was dismissed. On appeal in the High Court, the plurality judgment (Mason CJ, Wilson and Gaudron JJ) noted that the evidence on each charge had been admitted with respect to each other charge as similar fact evidence. After referring to the observations of Lord Wilberforce in R v Boardman [1975] AC 421, the plurality expressed the view that the possibility of concoction, as opposed to a probability or real chance, was sufficient to render such evidence inadmissible. In that regard, their Honours differed from the minority (Brennan and Dawson JJ) in that the latter referred to the question being whether the evidence raised a "real chance" of concoction. However, the plurality went on to consider the circumstances in which the possibility of concoction may be said to arise (at 297):

Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible.

48. In the present case C and E, M and N, and A and H have a relevant relationship, and some of them, at least, had opportunity to collude about their allegations. However, there is no suggestion of a motive on behalf of any of the complainants to collude in making false allegations against the accused. In his interview with police, the accused distanced himself from any significant contact with the complainants. He referred to a family law disagreement he was having with a third party, S, over him having access to their child. In the course of those proceedings S has alleged that the accused has sexually abused children, and has sought affidavits from at least some of the complainants in these matters to support her claim in the family law proceedings. None of the complainants have provided affidavits. The evidence also establishes that S left the ACT region in 2002 and moved to Western Australia. The family law proceedings between the accused and S provides no motive for the complainants to lie about the accused, and the evidence suggests little, if any, opportunity for the complainants to have colluded with S.

49. In the absence of any motive for the complainants to concoct their separate allegations against the accused, the respondent has established that the evidence it proposes to rely upon has significant probative value.

THE SECTION 101 TEST

50. Even if proposed tendency evidence has significant probative value it is not to be admitted if the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the accused: s 101 EA 2011.

51. If the prosecution is completely successful with respect to the present application the trial of the accused promises to be a complex affair. The prosecution will call some eleven witnesses testifying to sexual improprieties by the accused. Three of those witnesses will give evidence of uncharged acts only. In total there are eight alleged incidents about which the prosecution proposes to adduce evidence that are not the subject of charges. In my opinion, there is a very real danger that a jury may simply have regard to the number of incidents alleged against the accused and reason that he must be guilty.

52. Further, it is clear that the ability of the accused to deal with the uncharged incidents at trial will be compromised by the lack of reasonable specificity as to when those incidents occurred. Also, any attempt by the accused to deal with the uncharged incidents at trial runs the risk of deflecting the jury's focus away from the charged acts.

53. If the prosecution seeks to proceed on the present indictment, it should only be permitted to do so if it is restricted to calling evidence of those incidents that give rise to charges. The potential prejudicial value of the evidence of the uncharged acts, in the particular circumstances of the case, exceeds its probative value.

54. I am satisfied that the prosecution should be permitted to lead tendency evidence to prove that, at the relevant times, the accused had a tendency to have a particular state of mind, being a sexual attraction to young girls, and a tendency to act upon his sexual attraction to young girls.

55. I do not believe that the evidence discussed above is cogent enough to support the third tendency sought, being a tendency of the accused to take advantage of his parents' friendships with other families to gain access to young girls. The prosecution will accordingly not be permitted to lead tendency evidence to that effect.

56. The evidence the prosecution will be permitted to lead to prove the first and second tendencies will be restricted to evidence of the incidents giving rise to the counts on the indictment, and the prosecution will not be permitted to lead evidence of the uncharged acts.

57. As the accused will likely stand trial within the next year, it is appropriate that the publication of these reasons to the public generally be prohibited pending the trial.

I certify that the preceding fifty seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the Applicant: ACT Director of Public Prosecutions