Tasmania v L [2004] TASSC 86

Evidence Act 2001 (Tas), ss98, 101(2).

Hoch v R [1988] HCA 50; (1988) 165 CLR 292; R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433; P v R [2002] TASSC 61, followed.

Judgment Number: [2004] TASSC 86

1 These are my reasons for a ruling that I gave during the trial of the prisoner on 11 August 2004.

2 The prisoner was charged on a single indictment with one count of maintaining a sexual relationship with a young person under the age of 17 years, and with three counts of aggravated sexual assault. By the first count it was alleged that he maintained a sexual relationship with his eldest daughter ("A") over a period of some 5 years. By the other counts, it was alleged that he assaulted his youngest daughter ("B") three times in late 2002. The prisoner pleaded not guilty to all four charges before Evans J on 26 April 2004. An application was made to sever the indictment, so that the charge concerning A would be tried separately from the charges concerning B. Evans J received evidence on the voir dire, and subsequently refused the severance application. A new trial commenced before me on 5 August. Both counsel told me that the decision not to sever the indictment had been made by Evans J under the Criminal Code, s361A(1), with the result that, by virtue of s361A(2), that decision had the same status for the purposes of the new trial as if it had been made by me during that new trial. A new jury was empanelled and the trial of all four counts began.

3 Before Evans J, the Crown contended that A and B had each been sexually abused by their father; that there were striking similarities between the evidence of each of them that was so strong that those similarities could not be the result of a series of coincidences; that there was no reasonable explanation for the similarities between the events described by A and B, such as concoction or contamination, that was consistent with their father's innocence; and that the evidence of each complainant was therefore admissible in relation to the charge or charges concerning the other complainant: Evidence Act 2001, ss98, 101(2); Hoch v R [1988] HCA 50; (1988) 165 CLR 292.

4 The decision of Evans J not to sever the indictment was based on findings as to the correctness of those contentions. When a trial concerning the alleged sexual abuse of two or more complainants proceeds after the refusal of such a severance application, evidence may be adduced that makes it necessary for the trial judge to reconsider the admissibility of coincidence evidence under s98 and, if necessary, abort the trial: P v R [2002] TASSC 61. On the fourth day of the trial before me, upon defence counsel tendering a letter as an exhibit, I took the view that the question of the admissibility of the coincidence evidence might warrant reconsideration, and invited submissions from counsel. Mr Richardson submitted that reconsideration of the matter was warranted since the evidence before me more strongly suggested concoction or contamination of the complainants' evidence than had the evidence before Evans J; that the evidence of each complainant was not admissible in relation to the charge or charges concerning the other; and that the trial should be aborted. The Crown prosecutor, Mr Perks, made submissions to the opposite effect in all respects. Mr Perks did not take any point as to Mr Richardson having cross-examined witnesses in relation to two letters on the voir dire before Evans J without tendering them, tendering them on the trial, and then relying partly upon them for a submission that the coincidence evidence was inadmissible. It is therefore not appropriate for me to consider whether a trial judge has a discretion not to reconsider the admissibility of coincidence evidence, or not to abort a trial, in such circumstances. After taking time to consider the submissions of counsel, I rejected Mr Richardson's submissions. These are my reasons for rejecting them.

5 In my view the accounts given by the two complainants of their sexual abuse by the prisoner, their father, contained a number of striking similarities that could not be explained by mere coincidence. Their accounts were similar in the following respects:

(i) Each complainant gave evidence that the first sexual approach by the prisoner occurred when she was about 12 or 13 years old.

(ii) Each complainant gave evidence that the first sexual approach by the prisoner occurred in her bedroom, at night, when she was alone, after she had gone to bed for the night.

(iii) Each complainant said that acts of sexual abuse occurred in the family home when their brother was in the house, but in his bedroom.

(iv) Each complainant gave evidence that the prisoner got her to look at pornographic magazines. B said that, before the first sexual assault upon her, the prisoner had asked her to bring him a particular shirt from his bedroom, and that she had seen a pornographic magazine underneath it. On the occasion of the first sexual assault, he had asked her whether she had seen that magazine. He had later shown her a magazine containing photos depicting women masturbating with vegetables. A gave evidence of sexual abuse over a period of five years or more, including numerous acts of vaginal sexual intercourse in the latter part of that period. When giving evidence as to the years prior to the commencement of vaginal sexual intercourse, she said that her father got her to read pornographic magazines almost every time he "touched" her.

(v) Each complainant said that the prisoner had inserted a finger in her vagina. B described three occasions when she said he had done this. Some of A's evidence as to what the prisoner had done was somewhat ambiguous, but she stated unequivocally that he had inserted his finger on the last occasion that he sexually assaulted her.

(vi) Each complainant gave evidence of the prisoner either asking her to masturbate him or getting her to masturbate him. B said that he asked on one occasion, and that she refused. A gave evidence of him getting her to do so on the second occasion that he sexually abused her.

(vii) Each complainant gave evidence that the prisoner ejaculated in front of her. A said that he did so on every occasion except for two occasions when he used condoms and ejaculated inside her. B said that he did so on all three of the occasions she described.

(viii) Each complainant gave evidence of the prisoner making instructive comments at times when he was sexually abusing her. A gave evidence of an occasion when he said that it was better for her to learn from him than from someone else. B gave evidence of him saying that he was showing her a different way of doing things, pointing out her clitoris while rubbing it, and telling her that "you can masturbate with all sorts of things".

(ix) Each complainant gave evidence of the prisoner telling her not to tell anyone about his activities.

6 Because of these striking similarities between the accounts of the two girls, the evidence of each was admissible in relation to the charge or charges concerning the other if, but only if, there was no reasonable explanation for the similarities between the events they described, such as concoction or contamination, that was consistent with the prisoner's innocence: Evidence Act, ss98, 101(2); Hoch v R (supra); R v OGD (No 2) [2000] NSWCCA 404; (2000) 50 NSWLR 433; R v Robertson (1997) 91 A Crim R 388. Those authorities establish that the focus of an enquiry as to concoction is on the factual, as distinct from theoretical, possibility of concoction, and that it is necessary for the trial judge to assess the reliability and credibility of the witnesses.

7 The two complainants had every opportunity to concoct false allegations. They were sisters. They were close. They have lived in the same household all their lives. They no doubt had many opportunities to speak privately at all material times. It is therefore necessary to consider whether there was any real likelihood of concoction or contamination on the part of either of them.

8 The evidence of the complainants and their mother was that, within the household, the prisoner's abusive activities were disclosed only in two conversations, and only to a limited extent. The first conversation was between the two complainants. According to A, B said that the prisoner "had been touching her" and "would get her to wank him" whereupon she said that it would get worse and that the same thing had been happening to her. According to B, she told A only that the prisoner had been sexually molesting her, whereupon A said that it happened to her too, and that it gets worse. The second conversation occurred immediately after that one. The two girls decided that B should tell their mother what the prisoner had done to her. They both went to see her. According to each of them, no details were disclosed in that conversation as to the prisoner's physical acts or the surrounding circumstances. However the complainants' mother's evidence was that B said the prisoner had "masturbated in front of her and tried to get her to masturbate him". Each complainant gave evidence to the effect that she had not said more about the acts of sexual abuse because she did not like to talk about the subject.

9 Each complainant has given a number of accounts of the prisoner's activities to police officers and in the witness box since his arrest on 3 December 2002. Not surprisingly, there are inconsistencies amongst the various accounts given by A, inconsistencies amongst the various accounts given by B, inconsistencies between A and B, inconsistencies between their evidence and that of other witnesses, and important points omitted from some accounts but not others. Generally speaking, I think such features of the complainants' evidence, in the circumstances, were not so extreme as to suggest more than a theoretical possibility that the evidence of either complainant was the product of concoction or contamination. Each gave her evidence in a credible manner. Many small details gave the account of each girl the ring of truth, in my view.

10 The complainants' allegations came to the attention of the police as a result of B speaking to a school counsellor. On 3 December 2002, police officers attended her school and obtained a statement from her there. Police officers visited the family home, and took the prisoner away. He told the family that he was being arrested as a result of unpaid fines. Police officers thereafter went to the home, spoke to A, and obtained a statement from her. B did not mention pornography in her first statement, but A did. Both girls were taken into care for a few days. They apparently remained together. They evidently had ample opportunity to speak to one another privately. Subsequently, B made a second statement to the police in which she did mention pornography. Mr Richardson cross-examined B about pornography not having been mentioned by her until her second statement. She said that the making of her first statement was something that was sprung on her at school; that she had not had time to think about anything that had happened; that she did not speak to her sister about mentioning pornographic magazines; that that was not something that one really wanted to talk about; and that she remembered about the pornographic magazines some time after having given her first statement to the police. I consider that explanation to be plausible. I see no reason to doubt its truthfulness.

11 The letters tendered by Mr Richardson as exhibits on the trial, together with evidence given in relation to them, tended to cast doubt upon the complainants' credibility. For the significance of the letters to be understood, I must first explain the relevant aspects of the Crown case. The Crown case was essentially as follows. The prisoner commenced his sexual abuse of A in 1997. She told no-one anything about it until her conversation with B, which was in November 2002. Prior to that conversation, she wrote the prisoner a letter, saying that she was leaving home, but she did not give him that letter, and instead hid it in her bedroom. The letter included a reference to her having lost her virginity to her father. A sister of the complainants found the letter, read it, and gave it to their mother, who initially said nothing to anyone about it. By this time the prisoner had commenced sexually abusing B. After he had sexually assaulted her on two occasions, B spoke first to A and then to her mother in the two conversations that I have referred to. The mother took no action. The sexual abuse of A and B continued. B disclosed it to a school counsellor, and the police were therefore notified. B had not been told of the letter written and hidden by A.

12 A photocopy of A's undelivered letter was tendered on the trial. Apparently the original had been lost or misplaced within the office of the Director of Public Prosecutions. There was evidence that the original had been folded into four, and that A had written "Dad" on the outside of the folded document. Mr Richardson cross-examined B in relation to two other letters on the voir dire before Evans J, but did not tender them at that time. He produced them again during the trial before me, again cross-examined B about them, and tendered them. B gave evidence that she had written one of them, which she had signed, but denied having written the other, which was incomplete, unsigned and crumpled. The completed letter was addressed "Dear family". In it, she had written that she was leaving home because the prisoner had been "sexually malestering [sic]" her. It had been folded into four, and she had written "Dear family" on the outside of the folded document. The incomplete document, which was addressed "Dear Family", said that the writer had left home "because dad has been sexually malestering [sic] me and I know he has done to [A] for quite some years". There was no reference to A in the completed document. The handwriting of the incomplete document looks very like B's writing in the completed document. It might very well be identical. However her mother gave evidence on the trial that the handwriting on the incomplete document was similar to B's handwriting but not quite the same. It was just after she gave that evidence that Mr Richardson tendered the incomplete document. I took the view that it was admissible because, although B had denied it was in her handwriting, it was open to the jury to conclude that she had in fact written it.

13 The prisoner had earlier given evidence on a voir dire that he had found the two documents on the top of some rubbish in a wheelie bin after having been arrested and bailed and having returned to the family home, which the rest of the family had temporarily vacated. I have no reason to doubt or disbelieve him.

14 In my view, it follows that each of the following propositions is likely to be true:

(a) B wrote the incomplete letter, but decided to start a fresh letter and not to mention A in it.

(b) B lied on oath when she said that the incomplete letter was not written by her.

(c) A and B had an arrangement that they would each write a letter about leaving home, in which their father's sexual abuse was disclosed, and wrote their letters pursuant to that arrangement.

(d) A and B dishonestly concealed their arrangement about writing the letters.

(e) Alternatively to (c) and (d), B learned of A's letter, decided to copy it, and dishonestly denied knowledge of its contents.

(f) Whatever use B had planned to make of her letter, she abandoned her plan and threw it away before learning that the police had become involved.

15 These possibilities might have been more significant if the complainants had had a strong motive to make false allegations against their father. It was submitted that they had motives to try to get him out of the family home as a result of his strictness as a parent, and as a result of tension in their parents' relationship resulting from an allegation that he had been having an affair with their aunt. There was a body of evidence that the prisoner was quite strict about each complainant's social activities, but the evidence did not suggest that this resulted in greater tension than one would ordinarily encounter between teenage daughters and their parents. On the contrary, there was evidence that B and the prisoner shared an interest in a sport; that his daughters would willingly accompany him to such places as the beach or his sporting club; and that they were at ease in his presence, to such an extent that they both modelled a dress that he had brought home on the night before he was arrested. There was also evidence that A had borrowed money from him to buy a car shortly before he was arrested. There was certainly tension between the prisoner and the complainants' mother as the result of the allegation that he had been having an affair with her sister-in-law, but that tension had existed since his return from prison in or about October 2001 and was much more the mother's problem than the complainants'. In Hoch (supra), there was evidence that one of the complainants had an antipathy towards the accused which might have been unrelated to any sexual act. In this case there is nothing to suggest any antipathy towards the prisoner on the part of either complainant, unrelated to sexual abuse, of such a degree as to lead to the making of a false complaint or the concoction of a false account of sexual abuse. Indeed the evidence suggests no strong motive for the complainants each to write a letter about leaving home other than sexual abuse by their father.

16 Whilst the evidence concerning the letters might raise doubts as to the general credibility of the complainants, particularly B, I think its relevance to the question of concoction is peripheral at best. B told her mother that her father had sexually molested her, and later said something to a school counsellor which resulted in the police being contacted. I do not see how the information that she began writing a letter to her family about sexual molestation that included a reference to A, wrote a completed letter to her family mentioning the sexual molestation but not mentioning A, threw both letters away, and then falsely denied having written the uncompleted document, tends to suggest that the allegations she made first to her mother, then apparently to a school counsellor, and then to the police, are the product of a conspiracy or concoction. When she threw the letters away prior to her father's arrest she almost certainly could not have known that her evidence might be more valuable if she and A had not discussed their experiences or allegations. She may have some childish reason for covering up some aspects of her letter-writing activities. However, in all the circumstances, and particularly in the absence of any evidence suggesting a sufficient motive for the complainants to invent false allegations of sexual abuse, I am not persuaded that the evidence concerning the letters suggests any real likelihood that either of the complainants would have taken advantage of their undoubted opportunity to concoct false allegations. Generally speaking, I considered them to be credible and reliable witnesses.

17 I turn to the question of contamination, as distinct from concoction. Contamination occurs when the memory of an honest witness is made inaccurate as a result of exposure to information concerning another complainant. The proposition that either of these complainants had not been sexually abused, but heard something about the other being sexually abused, and formed a false belief that she herself had been sexually abused, is simply fanciful in my view. They both seem to be intelligent and sensible teenage girls.

18 For these reasons I concluded that there was no real likelihood that the similarities between the accounts of the two complainants were the result of concoction, contamination, or any other explanation consistent with the innocence of the prisoner. I therefore rejected Mr Richardson's submissions.