HIS HONOUR: WQ was arraigned last Tuesday on five counts on an indictment alleging sexual assaults against three different complainants.
Counts 1 and 2 concern the complainant DM and were allegations of sexual intercourse with a child under the age of 10 years. Counts 3 and 4 were counts of sexual intercourse with a child under the age of 10 years, MM, who was the sister of DM. Count 5 was an allegation of indecent assault upon the complainant KB.
Application had been made by Notice of Motion that an order be given for separate trials in respect of each complainant. For that purpose the day before the trial actually started we conducted a voir dire examination and the three complainants gave evidence. Principally the issue addressed in the course of a voir dire examination and the examination of the complainants concerned the potential, or "real risk" as it is sometimes described, of contamination or concoction in the context of the prosecution wish to rely upon "tendency" reasoning (s 97 Evidence Act 1995).
It became self-evident as the voir dire proceeded, having regard to evidence given by each of the complainants, that the only sensible way that the trial could proceed in order that all relevant matters be aired, particularly in the context of suggestions of "contamination" and the like, was for the trial to proceed in respect of the five counts as one trial and not as separate trials in relation to each complainant. This realisation came to counsel for the accused during the course of the voir dire and ultimately he withdrew his application for separate trials.
One of the issues I was required to address if I was to determine that it should be separate trials was whether the Crown could rely upon evidence from one complainant as evidence of tendency and proof of guilt of the accused in respect of allegations made by other complainants and vice versa.
Because it was seen as appropriate that the counts be heard together by the accused the urgency for me to determine the tendency issue, if I might describe it as that, fell away. There is a transcript of those proceedings that I need not dwell upon.
I am at the moment in another trial involving an accused charged with sexual assault and the complainant is in the middle of her evidence. I commenced that trial yesterday whilst the jury in Mr Q's trial was deliberating upon its verdicts in relation to the counts in the indictment.
The jury have since returned a verdict of guilty in respect to count 3, but verdicts of not guilty in relation to counts 1, 2, 4 and 5.
In considering the issue of tendency, initially I had available to me the evidence of the complainants on the voir dire, as well as a Crown case statement and some other material. As I understood it, on the Monday that the voir dire was conducted when it became apparent that it would proceed as a joint trial irrespective of whether the Crown was permitted to rely upon tendency reasoning, it was agreed that I could reflect upon the issue of tendency at a later time when I heard all the evidence in the case.
Towards the end of the Crown case the issue of tendency came back to our attention. I heard submissions from the learned Crown Prosecutor in the context of some observations I made for the benefit of the parties on Friday afternoon (Friday 5 February 2016) after I had sent the jury home for the day. I ruled on Monday morning that tendency evidence was not available in proof of guilt of the accused in respect of each of the counts relating to each complainant.
The 'tendency notice' which is at the centre of the application of the accused for separate trials initially, but is very much at the centre of the basis upon which the Crown sought to rely upon tendency reasoning and the objection of the accused, was served upon the accused in circumstances where no issue was taken as to relevant reasonable time for "notice".
The particular matters identified by the Crown as being relevant to the issue of tendency, if I can quote from the 'tendency notice', were as follows:
"The tendency sought to be proved is the (the accused's) tendency to act in a particular way and to have a particular state of mind, namely he has a sexual attraction to young children of the age of nine and ten years and is prepared to act upon that attraction for the purposes of his own sexual gratification.
The Crown relies upon the following pattern of behaviour in order to prove the tendency:
1. His sexual attraction to young children between the ages of seven and nine years.
2. He sexually abuses young children in his house.
3. He sexually abuses young children when they are on sleepovers at his house.
4. He sexually abuses children in his house when no other responsible adult person is immediately present.
5. He puts his penis in the anus of young children.
6. He engineers situations to be alone with young children in order to facilitate his sexual abuse of them."
I pause for a moment to say that, as it transpired in the trial, it became very clear that a number of the matters that were identified as showing a "pattern of behaviour" did not apply in respect of some of the complainants. It became quite clear on the basis of the evidence that the character of the allegation against the accused relating to KB was very different, as the pleading in the indictment makes clear, to the character of the allegations relating to the charges concerning DM and MM as an example.
It also became clear that whilst the accused under a general proposition, having regard to the Crown case, "abused" young children in his house, in respect of all complainants there were many distinctions surrounding the circumstances of each allegation by each complainant.
Some of the matters identified in the particulars of "pattern of behaviour" in my view were not established in the evidence. Whilst it was true that KB, MM and DM were relevantly proposing to sleepover at the accused's house, only the allegations of MM concern any connection with the fact of a "sleepover". As it turned out MM was not 'sleeping over' at the accused's house in the way that that word is understood. It turned out as the evidence transpired that the relevant events giving rise to counts 3 and 4 on the 26th and 27 November arose from what was said to be some difficulty had by MM's mother that required her to bring her children 'holus-bolus' over to the home of the accused and his wife totally unexpected and sleep the night at the accused's house.
The sexual assaults alleged by KB and DM had nothing to do with being asleep in the house. They involved conduct towards the complainants whilst they were in the house playing what appears to be some sort of electronic equipment in the form of an Xbox or something similar, usually in the presence of the accused's son, during the daytime.
The allegation of the accused putting his penis in the anus of young children only related to counts 1 and 3, as was self-evident by the way the Crown pleaded his case.
In my view, having regard to for example counts 3 and 4, there was no evidence that the accused had engineered a situation to be alone with that particular complainant. She was sleeping in the bed of the accused's daughter in circumstances that involved no "engineering" on his part.
I can determine no evidence of the accused 'engineering situations' to be alone with KB and DM. In the context of the facts, as I understood the cases, the accused 'could' have been alone with those respective complainants but not by reason of any proven or even suggested "engineering" on his part.
Furthermore, the allegation that the accused sexually abused children in his house when no other responsible adult person was immediately present fell away to a large extent. It certainly was untrue in relation to MM, and there is a question mark as to whether it applied in respect of the incidents involving DM and KB. Even if they were alone in the house, so to speak, with no responsible adults immediately present, it seems as though based upon the evidence that I heard, that other people were present in the house or on the property.
The evidence of KB was somewhat vague as to where the wife of the accused was at the relevant time. I note on his account of his stay at the accused's house, which only happened on one occasion, it must have occurred, the alleged offence, on a Saturday. I heard no evidence from the accused's wife that she worked on Saturdays.
Be that as it may, when one has regard to what was particularised as "the pattern of behaviour", there was not in fact the pattern of behaviour common across the counts as particularised in the 'notice'.
I am appreciative of the factors the authorities make clear that underlying unity, or striking similarity, words that arose in relation to common law "similar fact" evidence, do not necessarily require to be shown in order that tendency evidence should be admissible. However, dissimilarities in the circumstances in which alleged offences occur are matters to be taken into account obviously in determining whether the evidence has "significant probative value".
As I discussed with the learned Crown and counsel for the accused, it appeared to me in the context of the character of the particular sexual assaults alleged that the only two counts that could have in all the circumstances a "similarity" in conjunction with other features as to suggest what was said to be the particular tendency, that is "to act upon an attraction for the purposes of his own sexual gratification", appeared to be counts 1 and 3. Although I accept in their relationship to counts 1 and 3, counts 2 to 4 could be connected in that respect.
Ultimately when one analysed the circumstances, what the Crown was essentially left with was the accused allegedly committing sexual assaults upon young children, that he knew, in his home of a particular character in each count. This is in circumstances where as I said earlier there was to be found in my view a real risk of contamination of recollection.
The evidence was unequivocal that the first complaint ever made to anybody was to a friend of MM and DM, the elder sister of KB, who told police a few months after the event that he had been told by MM that the accused had been sexually assaulting her and DM.
I note in relation to that aspect of the matter when interviewed in relation to the allegations, those two children spoke of sexual assaults committed upon them when they were alone. Subsequently in this trial they volunteered another sexual assault, in its terms somewhat inconsistent with earlier accounts of sexual assaults committed upon MM and DM, on this occasion in the presence of one another. In fact MM stated that she had seen such an event involving DM. That was, after some prevarication, the reason that she told the sister of KB that she and the brother had been sexually assaulted. This new information in the trial emerged in the context of MM saying that she had not been told by DM of any sexual assault committed upon him by the accused. The volunteering of information to parents followed upon KB's elder sister bringing this matter to the attention of the police.
KB of course was present at the time of this first disclosure and according to his elder sister did not disclose any wrongdoing on the part of the accused until a couple of weeks later. Given the timing component of his complaint, in her interview with the police, she had KB (her brother) complaining about an act that on his evidence in the trial could not have then occurred.
Be that as it may, the many varying circumstances in which the relevant events occurred and the character of the conduct, in conjunction with the real risk of contamination arising out of the totality of the evidence, led me to the conclusion that there was not significant probative value in the evidence such as to permit the admissibility of the evidence pursuant to s 97 of the Evidence Act.
However, I was prepared to concede that if it could be said in relation to for example count 1 and count 3, involving the two separate complainants DM and MM, that there was to be fairly considered "significant probative value" in the evidence such as to invoke the terms of s 97 of the Act, the issue of the terms of s 101 needed to be considered.
Section 101 in its terms requires the Court to not use against an accused 'tendency evidence' unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Relevant to that matter was my assessment of the probative value of the evidence and the fact that in the context of this particular trial the Court might have been left with having to give a tendency direction to the jury that had only limited application to two of the three complainants and only limited application to specific acts of the accused giving rise to counts in the indictment concerning those complainants.
Thus, if I was wrong in my determination of the assessment of the probative value of the evidence I came to the view that I could not be satisfied that the probative value of the evidence substantially outweighed any prejudicial effect. Prejudicial effect including consideration of misuse of the evidence by a jury even with appropriate direction. I concluded the tendency reasoning sought by the Crown could not be used.
I have not referred to any of the authorities that I was helpfully supplied by the learned Crown Prosecutor. There are many authorities on this particular matter. Amongst those I have considered are R v Shamouil [2006] NSWCCA 112; R v XY [2013] NSWCCA 121; Jones v The Queen [2014] NSWCCA 280; McIntosh v The Queen [2015] NSWCCA 104; Hughes v The Queen [2015] NSWCCA 330.
These authorities discuss the admissibility of tendency evidence in a range of ways. McIntosh, Hughes and Jones particularly reflecting upon the relevance of the risk of contamination or concoction to the judgment of the probative value of the evidence. The judgment of Basten JA, in the matter of McIntosh, was particularly relied upon by the Crown.
I had particular regard to what his Honour said at [42] - [48]. One of the matters that arose in relation to McIntosh, of course, was that the trial judge in making fact finding in relation to the matter concluded, bearing in mind his Honour's distinction between concoction and contamination, that there was no evidence of any relevant contamination or concoction. That is a conclusion that I could not reach given the "real risk" of contamination arising here.
The views of Basten JA I take to be in accordance with the reasoning in Shamouil and XY representing the decided view of those constituted courts (given the differing judgments in XY).
In reflection upon the relevance of "contamination" to the issues I had to decide, I note the analysis of that matter in Bellew J's judgment in Jones. Particularly his Honour's discussion of relevant issues at [84]-[90] which, as I understand it, reflects the decision of Shamouil, a decision of a five Judge bench of the Court of Criminal Appeal. To the extent that Basten JA's views in McIntosh may differ from those of the Court in Shamouil (if they do in substance) obviously I am bound by the decision in Shamouil.
There is no need for me, having regard to the facts that I found, to further analyse those judgments.
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Decision last updated: 22 February 2017