R v Williams

Allegations

1. Mr Williams was born in 1971. The counts cover the period February 1990 to June 2007. It is alleged that in 1990 Mr Williams then aged 19, physically, indecently and sexually assaulted his younger brother George, a pseudonym, who was then aged 14 (Counts 1,2 & 3). It is also alleged that in 1992 Mr Williams had unlawful sexual intercourse with Susan, a pseudonym, then aged 14 (Counts 5, 6, 7 & 8). It is further alleged that Mr Williams indecently assaulted and had unlawful sexual intercourse with Lisa, a pseudonym, then aged between 12 and 14 (Counts 9 to 16). The indictment sets out the various counts which invoke sections 59(1), 61E(1), 61D(1), 61I, 61J(1) 61M(1) 66C(1) and 66C(2) Crimes Act 1900, as they applied at the various times. A summary of the allegations is set out in the Crown Case Statement: Voir dire exhibit A, tab 3.

The test

1. The Evidence Act 1995 sets out the statutory tests of admissibility of tendency. In matters such as this four questions arise: 1. Is the proposed evidence is relevant? s55. That is, if accepted, could the evidence objected to rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding? 2. Does the proposed evidence establish that the accused has a tendency to act in a particular way or to have a particular state of mind? s 97. 3. Does the proposed evidence have significant probative value? s 97(1)(b). 4. Does the probative value of the proposed evidence substantially outweigh any prejudicial effect it may have on the accused? s 101.
2. When considering the defined term "probative value", the critical word is could; putting focus on the capability of the evidence: Shamouil v R [2006] NSWCCA 112; (2006) 66 NSWLR 228 at [61]; emphasis in original.
3. The term "significant" requires something more than mere relevance, but something less than a 'substantial' degree. 'Important' or 'of consequence' are terms often adopted: Lockyer v R (1996) 89 A Crim R 457.
4. Section 97(1) requires that the evidence show 'a tendency to act in a particular way'. It is not strictly necessary that the evidence show "underlying unity", "a modus operandi" or a "pattern of conduct;" however the extent and nature of any similarity or its absence remains a relevant consideration.
5. Any determination about the admissibility and probative value of the tendency evidence must take the evidence at its highest without consideration of its credibility and reliability: IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300, at [52].
6. There is little doubt about the probative force of multiple allegations of a sexual nature. For evidence of the offending against one complainant to be significantly probative however, the logic of probability reasoning requires some common feature, or features, of or about the offending, that links the respective complaints: The Queen v Bauer (a pseudonym) [2018] HCA 40, at [58].
7. That common feature or features must demonstrate a tendency in the alleged behaviour of the accused to act in particular way or have a particular state of mind; proof of which increases the likelihood that the account under consideration is true or correct. The evidence must have; the capacity to support an inference of guilt of the accused on the count charged and for a jury to treat it of importance, because its shows that the accused was more likely to act, to a significant extent, in a particular way and/or have a relevant state of mind on the particular occasion that is the subject of the charge or charges.
8. The mere fact that an accused may be proved to have committed an offence against one complainant is ordinarily not significantly probative of their having committed an offence against a complainant or other complainants. However, proof of an accused's commission of a sexual offence against a complainant on one occasion can make it more likely that the accused committed another, generally similar sexual offence, against the complainant or other complainants on another occasion.
9. Even if tendency evidence has significant probative value, it cannot be used against a defendant in a criminal trial, unless its probative value substantially outweighs its prejudicial effect on the defendant: s 101(2). I must evaluate and balance those competing factors. Again, any evaluation of probative value is to be made on the assumption that the evidence said to constitute tendency evidence will be accepted by the jury. Evaluating any potential 'prejudicial effect' involves consideration of any risk that the evidence will be misused by the jury in an unfair manner. Reasoning prejudice or emotional prejudice must be both considered.
10. It is both legitimate and appropriate that I take into account the ameliorating effect of any judicial directions that may be given to a jury designed to reduce any risk of prejudice. In most cases it is presumed a jury will act in accordance those directions:

Evidence

1. The accused is charged with a number of counts against three children. The statements (tendered as VD exhibit A, tabs (a) to (f)) and a table attached to the submissions of Mr Khan who appears for the accused (MFI 1, Annexure A - included below) reveals these features of the proposed evidence: 1. In 1990 the accused made sexual demands of his younger brother George then aged 14. There was then forced anal intercourse. A lubricant was used. There was violence and threat of greater violence. 2. In 1991-1992 the accused formed a sexual "relationship" with Susan then aged 12. He had intercourse with her without asking or consideration of her age. He continued this sexual 'relationship" for about a year. A pregnancy resulted. There were acts of forced anal intercourse. 3. In 2002 the accused formed a sexual "relationship" with Lisa then aged 13. There was penile vaginal sex without consideration for her age and forced anal intercourse. The "relationship' continued for some years including after the complainant turned 16, including a pregnancy when she was 14 and two more pregnancies when she was an adult.

MFI 1 - Annexure A: R v Williams - table of similarities for tendency / sep trial argument "Lisa" "Susan" "George" 8 Counts 5 Counts 3 Counts 9-16 4-8 1-3 Particulars of Evidence Male / Female Female Female Male Age at time of offences 14-21 12-14 6- 14 Age difference with accused 17 years 7 years 5 years Time period over which offending occurs 2002 - 2007 Jan 1991 - Dec 1992 Feb 1990 - Dec 1990 Location where offending occurs In the home at various addresses in Yass & Goulburn In the home and car at locations in Tolland , Wagga Wagga In the home at Tolland ,Wagga Wagga. Relationship Daughter of girlfriend - becomes his partner Neighbour Younger brother Vulnerability of complainant Child of single mother Child of single mother Younger brother Threats made Re disclosure Yes Yes Yes Act on threats with violence No No Yes Violence generally, as part of relationship No No Yes Anal Yes Yes Yes Pregnancy - SW allegedly the father Yes Yes No Using oil / shampoo or other liquids in sex acts No No Yes Ingratiate self by buying gifts for victim Yes Yes No Sex in his car No Yes No Unprotected Sex Yes Yes Yes

Submissions

1. Ms Keay, Crown prosecutor, spoke to a number of authorities: RH v R [2014] NSWCCA 71 at [88] - [130]; DPP v RDT v R [2018] NSWCCA 293 at [36]; TB v R [2019] NSWCCA 224 at [87] to [105]; SK v R [2011] NSWCCA 292 at [39] - [43]; DJW v R [2015] NSWCCA 164 and BC v R [2015] NSWCCA 327 at [99] to [101].
2. Ms Keay submitted that a trial of each count with each other allegation being cross-admissible as evidence in the others was the only option available to properly present the prosecution case. She conceded there were some complexities in this course. There were solid links between the allegations made by George and Susan in 1990 -1991, but the links between Lisa and George were not as immediately obvious. However there were many links between Susan and Lisa. By reference to TB v R [2019] NSWCCA 224, at [97] to [103], she sought, as the Court of Criminal Appeal did there, to distinguish McPhillamy v The Queen [2018] HCA 52. She asked me to look beyond the mere fact there was a 10 year temporal gap in alleged offending and focus on how the accused's sexual interest took form, and the similarities between the accused's alleged approaches to each complainant. While the coercive acts differed between George and the two girls, the effect on each complainant was the same - compliance with the accused's sexual desires.
3. She stressed each complainant involved the accused's exploitation of 'relationship' and submitted that differences in gender or the exact nature of the relationship did not diminish the probative power of that aspect of the evidence. So far as the cross-admissibility of the anal intercourse allegations she accepted that the acts themselves as described were generally similar to many such allegations but, she said, the probative value arose here from each allegation by each complainant, independently taking advantage of a relationship formed with a child (Lisa and Susan) or existing sibling relationship (George).
4. She said that one potential complication could be removed as evidence about Mr Williams's sexual activity with his brother, when the accused was below the age of legal liability, would not be led at trial to prove any tendency, avoiding the need for direction envisaged in DS v R [2018] NSWCCA 195 and BC v R [2019] NSWCCA 111. Evidence about these earlier events would be raised only to give context to the allegations in the counts and explain George's responses to the events that counts 1 to 3. She also noted that no reliance would be placed on the accused's sexual interest in Lisa after she turned 16, with the focus of the evidence restricted to those acts to which she says she did not consent. She accepted that careful direction would be needed to avoid tendency reasoning attaching to these aspects of the Crown case, but that such a direction were not beyond the capacity of a judge to craft, or a jury to understand and obey.
5. Mr Khan, for accused, provided comprehensive written submissions, including the table of similarities and differences set out above. He said a review of each allegation showed few "linking features", other than they were allegations of other sexual assaults on children. That would, he suggested, leave only insinuations, not evidence, upon which a jury could act. Such insinuations would, he suggested, give rise to a significant risk a jury, even one properly instructed, would give disproportionate weight to that aspect of the evidence rather than focus on what was alleged by each complainant in each count. He then took me to particular differences between the allegations made by each complainant.
6. Mr Khan put particular focus on the dissimilarities between the allegations by George and Lisa over 10 years later, citing McPhillamy v The Queen; DPP v RDT and BC v R. This matter, he said, shares in common with McPhillamy the following: 1. There is no evidence the alleged tendency has manifested itself during the decade after the allegations relating to Susan and George. 2. Mr Williams made no admissions of any ongoing sexual interest (of the kind contained in the Crown Tendency Notice) between 1992 and 2002; and no such ongoing propensity is accepted by him. 3. There is no evidence that in the decade after the allegations relating to Susan and George, that Mr Williams has acted upon a sexual interest in children aged between 12 & 14 and, in particular, acted upon it in the particular ways as enumerated in the Tendency Notice at 10.2.
7. He submitted that there was no "relationship" between George and the accused, unlike with Susan and Lisa. At best, as brothers they were relatives in regular close proximity. He also highlighted the differences between a same sex sibling relationship and a domestic sexual relationship with a person of the opposite sex, even if that person was a child and, in Susan's case, the daughter of person he was also in a relationship with. These differences, he said, weakened any probative value sought to be gained by the Crown using the term 'relationship' to describe them all. A jury, he submitted, would be more inclined to prejudice by such labelling and in combination this would led to irredeemable prejudice to the accused. That prejudice would be further exacerbated by any evidence relating to the accused's relationship with Lisa; because there was a 17 year age gap between them.
8. He submitted that the asserted probative value to Lisa's evidence, from Susan and George, established no more than that more than a decade before the allegations relating to Lisa, the accused sexually offended against them.
9. In relation to the test in s101 he drew strength for his submissions from what fell from Hughes, at [17] "The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years."

Determination

1. The evidence proposed from each complainant meets the basal test of relevance.
2. Taken as a whole, the evidence of each alleged sexual offence and the uncharged acts sought to be relied on by the prosecution demonstrate common features of, or about, the alleged offending which link each of the complainants' allegations. Those features include: 1. The accused having a sexual interest in each child. 2. That sexual interest in children manifested when each was aged between 12 & 14. 3. The particular way the accused acted on that sexual interest by: 1. Taking advantage of situations where he was alone with them to engage in sexual acts. 2. Creating situations where he was alone with them. 3. Engaging with them in sexual acts despite the risk of detection such as by family members coming home or entering the room. 4. Threatening them not to disclose the sexual relationship. 5. Engaging in forced acts of anal intercourse with them and so far as Susan and Lisa were concerned doing so after he had previously agreed or not objected to penile vaginal intercourse with him. 6. So far as Susan and Lisa were concerned engaging in unprotected sexual intercourse with them despite the risk of pregnancy. 1. That in relation to each complainant that he took advantage of an existing, or established a, relationship and then acted on one particular and specific interest - forced anal intercourse with each child.
3. The differences between what is alleged by George and Lisa separated by a ten year period could weaken the probative value of the evidence to some extent because direct linkages cannot be made. However, despite any differences, the probative value of the evidence to fall from each complainant still has significance; consistently with Hughes, close similarity of circumstances is not required. Further, the evidence from Susan provides a linkage between the other two complainants.
4. A jury is entitled to have regard to all the evidence before it (my emphasis). The accused's state of mind in 1990-1991 and how he acted on it then is evidence with the capacity to significant probative value in proving his state of mind and how he acted on it after 2002.
5. If accepted, those matters demonstrate the accused had a tendency to act in a particular way. If accepted, they increase the likelihood that each complainant's account of an offence the subject of a count is true.
6. Care must also be taken as Lisa's allegation is said to have occurred over ten years after those relating to George and Susan. Mr Khan suggests that such a delay means any manifestation of a sexual interest in another child so much later would have very low probative value. I cannot accept that proposition. Such are the similarities between the allegations made by Susan and Lisa the temporal gap does not and cannot undermine what, if accepted, is an underlying pattern of behaviour by the accused. The lapse of years between the offending alleged is not of itself a reason that in principle detracts from the probative value of each complainants evidence as to the accused's state of mind, nor as to their evidence as to his tendency to act on that state of mind: TB v R, at [103].
7. I accept that care must also be taken given the forced anal intercourse allegations share features in common with many such allegations. If I focused just on the suggested similarities in the conduct that would not necessarily be determinative of the probative value of the evidence. But, as Basten JA noted in DPP v RDT [2018] NSW CCA 293 at [36]: "The reasoning in particular cases will depend upon the nature of the alleged offending and the nature of the tendency evidence. Where the underlying propensity is accepted by the accused as operating over an extended period, its probative value is likely to be significant, even if the occasions upon which he acted upon the propensity were few and far between."
8. Applying those cautions I am required to determine the extent to which the evidence is capable of proving the tendency and if I find the evidence has the capacity to do so I must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. Here, the various factors set out above demonstrate that, in the present case, the tendency evidence has significant probative value.
9. I can comfortably conclude that each complainant's evidence of the charged and uncharged sexual acts sought to be admitted and made cross-admissible under headings (d) and (e) of the tendency notice may be of significant probative value in the proof of other charged sexual acts. If accepted, that combined evidence has the capacity to establish the existence of a sexual attraction of the accused to each complainant, and a willingness to act on it in the manner alleged and specified in the tendency notice. Accordingly, the evidence has the capacity to eliminate doubts that might otherwise attend a complainant's evidence of a charged act.
10. The proposed evidence allows a conclusion that not only did the accused have a sexual interest in each complainant; he also had a tendency to act upon it by committing sexual offences against them. It also has the capacity to allow the jury to conclude that the accused was prepared to act upon that tendency. The evidence may then render more probable the commission of the offences charged in the current Indictment.
11. The proposed evidence will have prejudicial effect but any unfairness arising from; the jury engaging in propensity reasoning, deciding on emotion not fact or failing to consider the elements of each count can be addressed by judicial direction.
12. Those directions, in addition to the usual cautions about propensity and bad character reasoning, must include a clear instruction that any indecent or sexual acts committed between the accused and George are admitted only and solely for the purpose of giving context to the allegations set out in counts 1 and 3. Further, the jury must be informed that evidence of a sexual interest in Lisa, and acting on that interest that arose after she turned 16 cannot be used for a tendency purposes.

Orders

1. The probative value of the proposed evidence substantially outweighs any prejudicial effect and must be admitted.
2. I propose to direct the jury that evidence of one count if accepted can be used in proof of the other counts for a tendency purpose in the manner suggested in the Crown's Tendency Notice.
3. I propose to direct the jury that evidence of those uncharged acts relied on to establish tendency, if accepted, can be used in proof of counts in the indictment for a tendency purpose.
4. The application for separate trials is refused.

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: 11 February 2021