R v Wong, Zany

Lynn H lived in Clarke Road, Hornsby with her husband Steve in 2001. The accused phoned her and asked if she loved him because she cooked food for him and hosted him by having lunch with him. She responded, "No you are my friend. Why would I love you?" He asked about her relationship with her husband particularly in bed time. He told her the size of his penis, and that during this telephone conversation with her, his underpants were getting wet. There was more than one phone call after this fashion.

One day he arrived unannounced at her door, he said he was unwell and asked her to cook a meal. She let him in by pressing a button that automatically opened the door. The accused rushed in, hugged her, she pushed him away, he kissed her, she tried to struggle. Her young daughter who had been asleep woke and came to her mother's side crying loudly. He pushed her from the living room into a small second bedroom, the struggle continued, he suddenly released her, looked unhappy and left.

A couple of weeks later the accused and his wife visited the complainant's home for a card game. Lynn H was in the kitchen preparing food for her visitors. The accused entered her kitchen and touched her breasts and buttock. She hit him with her fist and told him to stop doing that kind of thing.

A half hour later the same day he returned to the kitchen where she was alone and did the same thing.

A week later she was again hosting the accused and his wife at another card game. On this occasion she was in the laundry cutting Durian. He grabbed her left breast and right buttock, again she hit him with her fist. The following day she rang him and told him he should not be doing this sort of thing as she wanted to maintain the friendly relationship between the two families.

PS is currently aged twenty. In 2002 she was thirteen. Her family and his family, that is the accused's family, regularly visited each other. PS enjoyed looking after the accused's children. On one occasion when she was in Year 7 she remained at the accused's premises overnight after a family visit to help with his children. She was putting one of the sons to bed when the accused walked in and sat beside her on the bed.

He grabbed her, pulled her backwards so that she was lying on the bed, pulled her pyjama pants down, put his hand inside her underwear saying "it's going to be okay, it's going to be okay". He placed a finger into her vagina and manipulated it in and out. She tried to pull his hand away and said to him, "get off me, get off me". She told him to stop and he did not. She was crying. He reached around her shoulders and touched her breasts on the outside of her t'shirt. He was cupping her breasts with his hand, groping it and touching her nipple.

His son woke up and the accused released her. She went to the bathroom where she stayed for a while to get away from him. A week later the accused rang her mobile phone saying "Don't you like me? Why don't you like me? Do you love me?" He told her that he loved her. He asked if she liked what happened last time and do you ever think about what I did to you?

A couple of months later on someone's birthday the two families went to a restaurant. PS saw that the accused's two year old daughter was falling asleep. PS offered to take her to the accused's car in the parking lot and watch the child there. She did take the child to the car and put the two year old in a car seat and sat herself in the front passenger seat. Some 15 to 20 minutes later the accused entered the car, sitting in the driver's seat. He put his hand on her lap and began rubbing her right leg. She said, "No leave me alone. No don't. Leave me alone. Go away." The two year old woke, the accused left the car taking his daughter back to the restaurant.

A couple of years later, 2004, she was in Year 9, now aged 15. She was at home. The accused, uninvited and unannounced, came to the front door asking to use the bathroom. The complainant let him in, told him to come in and leave quickly. On entering the premises however the accused went to the kitchen. PS followed and asked what he was doing as he did not have to go through the kitchen to use the bathroom. The accused placed a hand on each of her shoulders. She tried to push him away and said, "Let go, let go". He pushed her into the laundry and against a washing machine. She was scared she would be hit so she stopped struggling. With his right hand he commenced rubbing against her vagina in an up and down motion. He pushed her to the ground so that she was sitting; he squatted, put a finger inside her vagina manipulating it up and down. With his other hand he took his penis from his pants, grabbed her hand and placed the palm of her hand on his penis. He put his other hand behind her head trying to force her head towards his penis. He told her to put her mouth on it saying, "It's okay, you'll like it." His other hand was still down her pants and his finger was still in her vagina. PS was crying saying, "Stop it, stop it". She was not consenting to either act and did not want either to be happening. The accused stood up, walked to the fridge where he paused for a time and then walked out.

Yin C is married. The accused was then a friend of the complainant's husband. In 2007 the accused and his family visited Y C's place and all made their way to a local swimming pool. The accused said to Yin C, "Your body is beautiful, let me hold you." She replied, "Don't do like that, it's not appropriate because you have three children."

During the following week he rang three or four times to her mobile but she did not take the calls. Later on the same day she rang him and told him she was very angry. He asked to meet her, she told him she was shopping. She did some errands and returned to her home. Within moments of her arrival there was a knock on the door. She was expecting someone else, opened the door to see the accused there. She said, "What's the matter with you? I told you I was at the shopping centre." He replied, "Where's your bedroom?". She said she did not have a bedroom as she lived with a friend. She told him he had a family and should not behave like that. He said he was going. She opened the door, he came up behind her and with one hand held her tight and with the other touched - on the facts as I read them- her vagina; but on the facts as I took them from the Crown - her breasts. So I am not quite sure which it is. She told him not to do that, he kissed her, apologised and left.

Count 6 is an alternate to Count 5, likewise Count 9 is an alternate to Count 8. Counts 2 and 3 are said to have occurred at the same venue on the same day about half an hour apart. Thus the ten counts in the indictment represent criminal allegations occurring on seven different days against three female complainants, one being a young under sixteen year old and two being adult woman. Lynn H makes four allegations against the accused. PS makes three and Yin C makes one.

The defence case is that none of this occurred, that none of these events contained in the indictment occurred at all.

There were five matters relied on by the Crown as demonstrating tendency. It will be noted I have re-cast them slightly as I review them now. 1. Selection by the accused of female acquaintances of some years standing who all belong to a small Burmese Chinese community in North Western Sydney. 22. Clearly that applies to each charge. 2. Use of mobile phone to contact complainant during which inappropriate sexual suggestive material was canvassed by him. 23. Each complainant was so contacted. This criteria could be linked to four of the seven occasions when offences are alleged to have occurred namely Counts 1, 2 and 3, 7 and 10. 3. Episodes of uninvited and unannounced attendance at residence/location of each complainant. It was a feature that could be linked to four of the seven occasions when offences are alleged to have occurred, Count 1, 7, 8 and 10.

4. In the course of an assault the accused focused on the complainant's breasts. This occurred to each complainant. It was a feature that could be linked to four of the seven occasions when offences are alleged to have occurred, 2 and 3, 5 and 6, 8 and 10.

5. In the course of the assault, the accused focused on the complainant's vagina. This was a feature that occurred on two and possibly three of the seven occasions when offences are alleged to have occurred, namely, counts 5 and 6, 8 and 9 and 10 (?). The Law

A party is entitled to lead evidence of conduct of persons to prove that a person has a tendency to act in a particular way or to have a particular state of mind (Evidence Act s 98) provided two conditions are filled. The first is that a reasonable notice in writing of the intention of leading such evidence is given to the party (s 97). In this case the Crown has given reasonable notice to the accused that it intends to do so (s 97 Evidence Act).

Secondly, in a criminal trial, the court must be satisfied the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have upon the accused (s 101 Evidence Act). Thus, two issues remain to be resolved in respect of the claimed tendency evidence: (a) does it qualify as tendency evidence, and (b) if so, does its probative value substantially outweigh any prejudicial effect it may have upon the accused.

I turn to the first issue. Tendency evidence must show that a person has a tendency to act in a particular way. It is a circumstance which must provide an irrefutable link in the process of proving the accused did in fact behave in that particular or peculiar way on the occasion in question. When the tendency is demonstrated to be present, it is of such a character, a personal trade mark, that leads to an inference that the contested essential element or elements have been proved beyond a reasonable doubt, or at least some part of them have.

A jury would be directed by me that it would have to be satisfied beyond reasonable doubt that the claimed tendency evidence was true, and did in fact demonstrate a hallmark tendency of the accused. It would be told that it could only use the tendency evidence on those occasions in the indictment where the conduct alleged was in conformity with that tendency. As the indictment presently stands, there is only one claimed tendency that would be applicable to all ten counts over all seven occasions of the alleged offensive conduct, namely, his selection of Burmese-Chinese female acquaintance of some years standing.

27. In respect of all other traits of tendency, it would be necessary to direct the jury in respect of each charge, that one or more nominated tendencies would not apply to that charge. In such circumstances, even in the presence of a printed supplement to written instructions, there is a real danger of the jury being unable to put to one side the directed absence of a tendency for a charge, for example, the use of a mobile phone when considering count 4.

The complainant in count 4 had received a mobile phone call qualifying as containing inappropriate sexually suggestive material, but it is difficult to see that call or calls as playing any part in the Crown case in count 4. It may play a case in the earlier counts.

Likewise, the unannounced arrival of the accused plays no part in counts 2, 3, 4 and 5, yet in respect of the two complainants covered by these charges there had been an unannounced arrival. In Lynn H's case it occurred on the occasion of the first offence, but plays no part in counts 2, 3 and 4 where the families were meeting anyway to play a game of cards.

In the case of PS, it may be argued, it plays a part in count 7 because the accused goes to his car where the complainant is alone, unannounced. But frankly, while that may be a surprise to the complainant, it hardly carries the hallmark quality it carries in counts 8 and 10. In respect of count 5 it plays no part. Indeed, it is not until count 8 that this complainant really experiences the home invasion hallmark. In reality, the unexpected arrival would only qualify as tendency in two of the seven occasions, but there is a real risk that a jury would be unable to isolate its operation only to two counts - 8 and 10, particularly when those directions would be accompanied by a multitude of directions in respect of the other features of tendency.

The Crown fairly drew my attention to AE v R [2008] NSWCCA 52, where the court made observations as to the availability of touching in the area of the breasts and digital penetration of the vagina, noting that the similarities which the first instance judge has identified were in reality unremarkable circumstances common to sexual offending against children.

At least two of the claimed tendencies identified by the Crown - assaults focusing on breasts which relate to four of the seven charges, and assaults focusing on the vagina relating to three of the seven charges - would qualify as unremarkable circumstances of sexual offending against women. In discussing whether the claimed tendency qualifies as hallmark behaviour demonstrating tendency, I have already recognised potential areas of danger that may need to be addressed in directions to avoid potential unfair prejudice.

As I continue to consider the test in s 101 Evidence Act 1995, I remind myself that the jury would also need to be warned against the fallacious line of reasoning that because they are satisfied beyond reasonable doubt that the accused committed an earlier offence, or was guilty of one piece of misconduct, he is therefore the sort of person who would be likely to offend again, or earlier, depending upon the order in which the jury considers each of the ten counts. This warning is made the more difficult because some counts will, on the Crown case, have more or different tendency features than others that the Crown will call in aid.

There is a third danger which I confess I had found myself falling into. In sexual assault cases, what is known as a Murray direction is frequently called for. That is, that the complainant's evidence must be scrutinised with great care in circumstances where she is the sole witness to alleged criminal offending. The corollary to that direction, relied upon by the Crown, is that tendency evidence boosts the credibility of a complainant by acting as some sort of corroborative evidence for her account, but that approach appears to be one disapproved of by the majority of judges in Hock v The Queen (1988) 165 CLR 292. There the majority said, "6. Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence of one happening admissible in proof of the others, similar evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association or as corroboration, but the better view would seem to be that it is relevant to prove the commission of the disputed acts . Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. So much is clear from the well known passage in the speech of Lord Wilberforce in Boardman at p 444, 'This probative force is derived, if at all, from the circumstances that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true or all have arisen from a cause common to the witnesses or from pure coincidence', per Mason CJ, Wilson and Gaudron JJ." (My emphasis)

There is a final area which is of concern to me. It is an area that is also of concern in considering the application for severance, namely, the possibility of concoction. There is a useful distinction made by the majority in Hock to illustrate the threshold point at which concoction is to be evaluated. The court is not concerned with a probability or real chance of concoction, a possibility of concoction is enough to impact upon both similar fact and severance charges. See Hock v The Queen at para 9.

In her interview with police on 17 June 2009 (voir dire ex 1 tab 4) Yin C tells police of conversations she had with others "about that problem", Q 221 to 253. Concoction can be deliberate or it can manifest itself as contamination, as one account from one complainant or parts of one account morph into the account given by another complainant. Features which may have borne some similarity may be converted to features having striking similarity.

In this case the opportunity for concoction and contamination is exacerbated by the events leading up to and the conduct of an apology ceremony. That was an event that happened on the evening of 24 May. At 6.15pm that evening about thirty or perhaps more Burmese-Chinese community members attended the home of Peter K---. The organisation of this apology ceremony has seen various persons, including four alleged complainants, discuss the facts and circumstances, both original accounts and hearsay versions of those accounts for some period of time between March 2009 and 24 May when the ceremony was held. I have no doubt it has also been the discussion among all members of that group since the apology. See, for example, Winton C, ex 1 tab 14, Myint T voir dire ex 1 tab 15, Richard W voir dire ex 1 tab 16, Kevin S ex 1 tab 17, Kyaw H (who hosted the meeting) voir dire ex 1 tab 18.

Finally I note in the transcript of the apology itself there is ample acknowledgment of past discussion among those present of the perceived sins of the accused. Recognising as I do the possibility of concoction (not deliberate concoction) but concoction nonetheless, and taking into account with other problems I have referred to, there is only one potential feature that really remains for consideration. It would appear to be indisputable on the Crown case, and incapable of concoction or contamination, that the accused targeted Burmese-Chinese female acquaintances of long standing. To assess its probative value as a hallmark tendency pointing as a modus operandi of his offending conduct, it needs to be understood that it serves to confirm an important quality of the complainant in each case, namely, her ethnicity. But as to whether he committed an act of indecency by kissing her or by touching her breasts or by touching her vagina, or whether he committed an act of sexual intercourse by digitally penetrating her, such a tendency is useless.

Further, one of the complainants is aged under sixteen. Such a fact is likely to unfairly prejudice consideration of his case, if the jury was entitled to rely upon tendency in the case of the adult woman, for example, counts 1, 2, 3, 4 and 10. In those circumstances, I have decided that although relevant in proving the guilt of the accused, at least in respect of the ethnicity of the complainant, that tendency feature has insufficient probative value against the potential for harm to him in respect of the two adult complainants.

The Crown would have been entitled to rely upon three propositions as supporting an all encompassing indictment, namely that the accused was said to be involved in each offence charged, the tendency evidence it was seeking to rely upon was relevant to be used in respect of each offence charged relating to each complainant. And finally the apology was one made simultaneously to each complainant in the one apology ceremony.

For reasons I have given the tendency evidence threat no longer binds all charges together. While it is the alleged sexual predatory conduct of the accused that is the subject of each charge, it is conduct that appears compartmentalised in three stages- Stage 1 being comprised of four alleged offences against Lynn H during 2001; Stage 2 comprised of three alleged offences against PS during 2002, 2004 and stage 3 comprised of an alleged offence against Yin C in 2007.

Apart from the accused and the ethnicity none of these stages share any other common link such as venue or event or presence of another of the complainants. I have already referred to the prejudice PS's presence on an indictment brings to those making findings of fact in respect of the other two complainants.

Of course the presence of as many as three complainants evidencing as many as eight sexual assaults has its own prejudicial impact. I have referred to the possibility of concoction and have found that a possibility of concoction is real. That is at a point higher than the threshold point. It is the impact both severally and jointly of all of these matters that persuades me the indictment must be severed.

I turn however to consider the Crown's last argument in support of an unsevered indictment, namely the apology ceremony. As matters presently stand and for reasons I shall shortly give, I intend to allow evidence for the apology ceremony insofar as it relates to or constitutes an admission adverse to the accused made by him in respect of each complainant. The Crown's argument was that the accused himself made the apologies simultaneously to all three and by that conduct gave a unity to the prosecution of all three complainants.

There is a nice symmetry to this argument but symmetry is not always indicative of logic. The apology ceremony came about through an influx of a number of forces including discussions among elders, discovery of alleged victims by other community members and co-operation on the Crown case by the accused. He was not the architect of the apology ceremony. He was however a major participant in the apology, although not in the ceremony.

Even if the Crown position were true that the apology gave a unity to the prosecution of all charges, that unity is not a necessary or essential commodity for the proper and fair presentation of the allegations against him and evidence and support of those allegations.

The apology in respect of Lynn H could not be evidence in respect of charges against the other two complainants. There is a real danger it may be seen to be such because all three were seated next to each other and the required obeisance was made to each consecutively and within a short period of time. Indeed that part of the ceremony formed its own particular section.

To sever the indictment is not to lose the relevant apology, assuming it to be admissible, in separate trials of the allegation of each complainant.

In all the circumstances then I shall order the charges relating to each complainant will be tried separately from charges relating to the other two.

The apology ceremony witness Winton C is the husband of one of the complainants. In May 2009 his wife recounted allegations she was making against the accused of him indecently assaulting her. The accused's wife rang Mr C indicating that "they" would like to ask the Burmese community for forgiveness. By this time allegations of indecent dealing had spread wider than Winton C's wife to include the other two complainants.

Kevin S is the father of one of the complainants. On the Crown case in May 2009 he became aware of allegations being made by his daughter against the accused of indecent assaults. He was aware that at least one complainant had been advised to go to police. Kevin S believed the best way forward in the Burmese culture was for the accused to apologise. If that was done then maybe the community would forgive. It was agreed among others that an apology ceremony should be arranged.

On the Crown case Kevin S rang the accused and spoke to him. He said, "You know I'm calling you. What you did to my daughter and the rest of the people, you know you are guilty". The accused said, "Yes". Mr S said, "You must have to apologise to my daughter and the rest of the people. If you agree with that I organise a meeting". The accused said, "Okay I agree to the meeting". Mr S would also give evidence for the Crown that in Burmese culture, we never bend our knee to other people, only to holy monks, teachers, parents, elders or when we are praying to Buddha. Otherwise we never bend down on our knees to other people, especially ladies, never.

The accused kneeling to the complainants would be understood by all as an admission by him of improper conduct towards each complainant.

At the apology ceremony itself, some thirty adults were gathered in the home of one of the members of the community. The apology took two forms. Really it took three forms. I will come to the third later. A formal document was prepared. It was written in Burmese script. The accused is not the author of it. It has been translated. A photocopy of the original and certified translation are to be found in Voir Dire Exhibit 1, tab 9. At least two other translations are available.

The most favourable for the Crown makes reference to apologising for having committed "indecent physical abuse". A translation from the DVD reading of the same part of this Burmese script speaks of "misconduct and misbehaviour" and having "physically insulted" the relevant complainants.

The second form of the apology has the accused saying, "I make obeisance, please forgive me" to each of the complainants and then prostrates himself before each woman who sits barefoot in front of him. Each prostration before a complainant is not completed until it has been done a third time.

There is a third act of humiliation said to be part of the ceremony of apology. Neither side has thought to include that. It would have inadmissible because it involved the accused wife participating with him in the act of obeisance.

The Crown seeks to have the DVD of the whole ceremony played. For reasons I gave during argument I will not allow that. The presiding figure at this ceremony is the husband of one of the complainants. Another prominent figure is the father of another complainant. A third significant participator is the father of the accused. All make comments prejudicial to the accused's case based upon hearsay or vague comments of admission of a prejudicial nature said to have been made by the accused.

The ambience of the ceremony is hostile to the accused and prejudicial to his case. It is a matter for the Crown but I have indicated I will permit still photographs taken from the DVD of the signing by the accused of the original of Voir Dire Exhibit 1, tab 9, and a still or stills of the various acts of obeisance before the complainant who is the alleged victim in the charges before the court.

In the translation of the DVD on page 8 of Voir Dire Exhibit 4A is a speech by the accused made at his request. It certainly was made voluntarily, where he thanks the assembled personage for forgiving him. On one view the statement may be seen a self serving. On another view it would also be seen as containing admissions. I am satisfied it was an attempt by the accused to ingratiate himself with those present with a view to restoring him and his family into their society. I have no doubt that speech was made in circumstances where he was emotionally aroused, was motivated by a desire to restore his family and himself into the good graces of the community.

In such circumstances he may have said things in a way he would not have said them had he been less emotional. I have indicated to the parties I do not intend to permit the Crown to lead that conversation in chief unless some issue arises in the trial requiring me to admit it or portions of it to restore some balance in the evidence.

I am satisfied the accused participation in the apology was voluntary. The evidence is he was asked if he agreed some days before it occurred and he did. He and his family were there to participate. I am satisfied his participation was entered into knowing that he would have to acknowledge the allegations being made by his accusers and that he was willing to acknowledge them.

I am satisfied his will in making those acknowledgments was not overborne. I accept he may have felt the ceremony to be unsavoury, embarrassing, humiliating and difficult to endure. I am satisfied that he was willing to participate in an apology ceremony notwithstanding the unsavoury, embarrassing, humiliation and difficult nature of it.

I am satisfied the document, Voir Dire Exhibit 1, tab 9, is an accurate and reliable reproduction of what he signed and by that signature what he intended to acknowledge before the persons present.

I am satisfied a jury could be satisfied the content of the document is an accurate overview of his conduct towards each complainant.

The evidence coming from the DVD which I have indicated sufficiently establishes the accused's apology for, and how he did so, and how he entered into that apology is to be admitted. The evidence of the significance of the ceremony as referred to by Kevin S or others, will also be admitted subject to any matters not yet raised by the defence.

The formal orders I make are these: The Crown application to lead evidence of co-incidence is rejected. The Crown application to lead evidence of tendency is rejected. The defence application for severance of the counts on the indictment is granted so that each indictment presented arising from the original indictment will refer to one complainant only. Portions of the apology ceremony as set out in my judgment as admissible will be admitted in the form in which I have indicated. The remainder of the apology ceremony is excluded subject to the Crown or defence having leave to apply for further portions to be admitted to redress balance, give further explanation or for some other reason that makes sense at that point in the trial.

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