The Queen v AW [2018] NTSC 29

Application to sever indictment - offences form part of "a series of offences of the same or a similar character" - evidence cross-admissible between counts for tendency purposes - potential prejudice may be addressed by an orthodox direction to the jury - application dismissed.

Evidence (National Uniform Legislation) Act 2011 (NT) ss 97, 101

DSJ & Anor v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349, Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, Gilbert v The Queen (2000) 201 CLR 414, HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334, Hughes v The Queen [2017] HCA 20, IMM v The Queen (2016) 257 CLR 300, R v AH (1997) 42 NSWLR 702, R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451, R v Lock (1997) 91 A Crim R 356, R v Lockyer (1996) 89 A Crim R 457, R v Mokbel (2009) 26 VR 618, R v PJMS [2011] NTSC 48, R v Zhang [2005] NSWCCA 437; (2005) 227 ALR 311, Reza v Summerhill Orchards Ltd [2013] VSCA 17; (2013) 37 VR 204, considered.

S Odgers, Uniform Evidence Law, Thompson Law Book Co, Looseleaf Service.

Plaintiff: Office of the Director of Public Prosecutions

Defendant: North Australian Aboriginal Justice Agency

The Queen v AW [2018] NTSC 29

[1] The accused is charged by indictment dated 16 April 2018 with five sexual offences.

[2] Three offences relate to the first complainant and are alleged to have been committed between October 1980 and October 1983 when she was under the age of 12. Two offences relate to the second complainant and are alleged to have been committed between May 1982 and May 1983 when she was under the age of 12.

[3] Two related issues have arisen for determination prior to trial. They are:

• (a) whether certain evidence identified by the Crown is admissible for tendency purposes; and
• (b) whether the indictment should be severed and the charges relating to the first and second complainants tried separately.

[4] The Crown has given Notice dated 16 April 2018 advising its intention to adduce tendency evidence pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act (NT) ("ENULA").

[5] The Notice provides that the tendencies on the part of the accused sought to be proved are:

• (a) a tendency to engage in sexual misconduct with female children under 12 years of age to whom he had access by his family connections; and

• (b) a sexual interest in female children under 12 years of age upon which he was prepared to act.

[6] The Crown says that evidence from the second complainant in relation to the acts alleged to have been committed against her is cross-admissible for tendency purposes in the proof of each of the counts relating to the first complainant; and that evidence from the first complainant in relation to the acts alleged to have been committed against her is cross-admissible for the same purposes in each of the counts relating to the second complainant. The Crown also asserts that evidence of various uncharged acts which it alleges were committed by the accused against the first complainant is cross-admissible for the same purposes in each of the counts relating to the second complainant. In other words, the Crown contends that the evidence from each complainant is mutually admissible to prove the tendencies alleged.

[7] The conduct described the tendency notice may be summarised as follows:

• (a) Count 1 - the accused used the first complainant's hand to masturbate his penis, and then pushed his penis on the outside of her vagina until he ejaculated.

• (b) Count 2 - the accused put his penis into the first complainant's vagina.

• (c) Count 3 - the accused dragged the first complainant into his bedroom for the purpose of abusing her, and covered her mouth and told her to be quiet when the first complainant's mother came into the house.

• (d) Count 4 - the accused touched the second complainant's breasts and vagina, then put his penis between her legs and simulated sexual intercourse until he ejaculated.

• (e) Count 5 - the accused touched the second complainant's breasts and vagina.

• (f) Uncharged acts against the first complainant between October 1980 and October 1983 - the accused would play with the first complainant's vagina and sometimes make her suck his penis; the accused would poke his penis in and out of the first complainant's vagina area until he ejaculated; and the accused would make the first complainant watch pornographic movies.

[8] Section 97 of the ENULA provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value. It provides (excluding the Note):

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

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

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

1. The Dictionary in the ENULA defines "probative value" of evidence to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The use of "significant" as a qualifier in this context connotes something more than mere relevance, but something less than a substantial degree of relevance.[1] This resolves to a judicial evaluation of whether the hypothetical jury would rationally think it likely that the evidence is important in relation to the determination of the fact(s) in issue.[2]
2. The High Court has recently given consideration to the matter in Hughes v The Queen.[3] The majority made the following observations (footnotes omitted):

40. ... The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford : "the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged". The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

41 The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as "underlying unity", "pattern of conduct" or "modus operandi". In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

[11] Against that background, it falls to consider the nature of the tendency evidence sought to be adduced in this case; and the probative value of that evidence for tendency purposes - either by itself or having regard to other evidence to be adduced.

1. There can be no doubt that the evidence of each complainant, if it is accepted, would clearly demonstrate that the accused had a sexual interest in young girls in the family home, and that the accused was prepared to act on that interest. The evidence in question is of frank sexual misconduct, which bears no explanation other than the gratification of sexual interest. As is apparent from the decision of the High Court in Hughes[4], there does not need to be a striking similarity or a distinct modus operandi for the evidence to have significant probative value. It is not necessary that the incidents must show a pattern of behaviour on the part of the accused which involves one specific type of conduct, or the same specific conduct in respect of each complainant. As the Court of Criminal Appeal observed in BD v The Queen:[5]

To take another example, it is clear that "evidence that showed that [an accused] had a sexual interest in, and attraction to, adolescent boys [would have] probative value in respect of an allegation that he had sexually abused another adolescent boy" [Dao v R [2011] NSWCCA 63; (2011) 278 ALR 765 at [187]]. In the application of that principle, evidence of grooming behaviours in the nature of minor sexual touching and fondling of one adolescent may have significant probative value as tendency evidence informing the question whether an accused engaged in a sexual act with another adolescent, even where there is a lack of similarity between the sexual acts with the different adolescents [R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75 at [86]- [88]]. The grooming behaviours in question in both Dao and PWD involved actual sexual misconduct with children, and by that character supported tendency reasoning. As Simpson J observed in Dao, "[e]vidence of more serious [sexual] conduct may support allegations of less serious [sexual] conduct just as evidence of less serious [sexual] conduct may support allegations of more serious [sexual] conduct", despite the wide variety in the accused's sexual behaviour [Dao v R [2011] NSWCCA 63; (2011) 278 ALR 765 at [187] (Spigelman CJ, Allsop P, Kirby and Schmidt JJ agreeing)].

[13] Even in the absence of that requirement, the acts alleged in this case demonstrate a substantial degree of commonality. The alleged victims were of similar age; the circumstances in which they took place were similar; there was some similarity in the conduct; and the accused was at about the same age over the relevant period. Subject to the issue of possible collusion (discussed further below), the evidence identified in the Crown's tendency notice has significant probative value within the meaning of s 97 of the ENULA for the purposes for which the Crown would seek to adduce it.

[14] It falls then to consider whether the probative value of the tendency evidence "substantially outweighs" any prejudicial effect within the meaning of s 101 of the ENULA. That section provides, so far as is relevant for these purposes, that tendency evidence cannot be used against a defendant unless its probative value substantially outweighs any prejudicial effect.

1. There will be prejudicial effect in the relevant sense if by admission of the tendency evidence the accused is deprived of a fair trial. Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. The accused will be deprived of a fair trial if there is a real risk that the evidence will be misused by the jury in some unfair way.[6] A mere possibility is not enough; there must be a real risk of unfair prejudice by reason of the admission of the evidence.[7] In addition, the risk of prejudice must be referable to the use of the material for tendency purposes. While there is some overlap between the assessment of that risk and the risk of prejudice for determining whether to order severance, different considerations may arise. The question of severance is dealt with further below.
2. The risk of unfair or improper use of the evidence for tendency purposes in this matter is that the jury may reason that because the accused conducted himself in a certain manner with one complainant he must necessarily have conducted himself in the same manner with the other complainant. Putting it another way, the danger of unfair prejudice is the risk that knowing of the alleged criminal conduct of the accused concerning one complainant, the jury might be diverted from a proper consideration of the evidence concerning the other complainant and simply assume the accused's guilt.[8]
3. The risk that the jury may be emotionally affected or may use the evidence improperly can be accommodated by suitable directions.[9] The relevant directions in relation to tendency evidence would include the caution that the evidence cannot be used to conclude simply that the accused is the sort of person who is more likely to commit this kind of offence; that the tendency evidence may only be taken into account if the Crown proves to the requisite standard that the acts said to demonstrate the tendency actually took place; and that the tendency evidence may only be taken into account if the Crown has also proved that it may be inferred or concluded from those acts that the accused did in fact have the tendency asserted by the Crown. It is only if those matters are satisfied that the jury may use the tendency evidence in assessing whether the charge(s) contained in the indictment have been proved beyond reasonable doubt.

[18] Ranged against that, the probative force of the tendency evidence in the Crown case would be to provide, in the context of sexual offences of the same or similar character, corroborating evidence from each complainant to address any defence contention that the other complainant has fabricated that evidence. That corroboration, if accepted by the jury, would reveal a pattern of conduct that might suggest as a matter of common sense and experience the objective improbability of fabrication.

1. The extent to which the evidence might be considered corroborative requires some consideration of the possibility of concoction or collusion between the complainants. As the Crown submitted, that requires some examination of relationship, opportunity and motive. In making that assessment, mere communication does not amount to concoction or collaboration.[10] The possibility of contamination, collusion or concoction does not automatically deprive tendency evidence of significant probative value, but it is a factor which may lessen the force of that evidence for the purpose of the calculus required by s 101 of the ENULA.[11]
2. It is also not incumbent on the Crown to exclude the reasonable possibility of concoction or collusion.[12] Rather, the court looks at the capability of the tendency evidence to affect the assessment of the facts in issue. In the absence of circumstances demonstrating implausibility, uncertainty or some other factor which would deprive the evidence of its probative value, contestable matters of credibility and reliability are for the jury to determine.[13]

[21] Both complainants gave evidence during the course of the voir dire hearing. The relevant aspects of that evidence may be summarised as follows.

• (a) The accused is the first complainant's uncle. The second complainant is also related to the accused, but not to the first complainant. The first and second complainants knew of each other, but have never had any social interaction. The first complainant had previously spoken to the second complainant on a number of occasions in the course of her employment, but only in relation to the provision of services to the second complainant's children.

• (b) The first complainant told a cousin about the sexual abuse by the accused. That conversation took place "a few years ago". That was the first occasion on which the first complainant had ever told anybody about the matter. She did not go into any detail concerning the nature of the abuse on that occasion.

• (c) At some time during the course of 2016, the first complainant came to suspect that the second complainant had also been sexually abused by the accused when she was a child. She formed that suspicion on the basis that the second complainant was unwilling to allow her children to stay at their paternal grandmother's house. The grandmother was the first complainant's aunt, and the first complainant was aware that the accused spent time at the grandmother's house.

• (d) On forming that suspicion, the first complainant discussed the matter with her aunt. She did not go into any detail concerning the nature of the abuse on that occasion.

• (e) A few weeks after that discussion, the first complainant spoke again to her cousin. On that occasion she went into more detail concerning the allegations. She told her cousin where she had been living at the time the abuse is alleged to have taken place, but did not give her any details of the particular acts of abuse. The first complainant invited her cousin to pass her phone number on to the second complainant in the event she wished to discuss the matter.

• (f) A few weeks later the second complainant called the first complainant and they arranged to meet. They subsequently met for approximately one hour.

• (g) The first and second complainants did not exchange full details of the abuse during the course of that discussion. The first complainant told the second complainant that the accused had sexually abused her when she was a child. Much of the second complainant's descriptions were cast in statements such as, "he is a very bad person", "he did bad things to me when I was young", and "he wrecked my life". However, the second complainant did tell the first complainant that the accused did things to her with his "willy", and that it was an everyday routine for her. She did not give any anatomical description of what the accused did with his penis or where he placed it, or what he made her do with it. No details were given as to the frequency of the incidents or the complainants' respective ages at the time (beyond the fact that the second complainant said it occurred while she was in primary school).

• (h) That meeting took place before either complainant had made a statement to police.

• (i) The second complainant gave a statement to police concerning the allegations in October 2016. The first complainant gave a statement to police concerning the allegations in December 2016.

• (j) The first and second complainants had contact on one occasion after their first meeting. They saw each other at a restaurant or nightclub. The first complainant said something to the second complainant about the issue. The second complainant said words to the effect that she was only there to enjoy herself and that she did not want to talk about it.

[22] There was nothing in that evidence which suggested concoction or collusion, or circumstances demonstrating implausibility or uncertainty. Following receipt of that evidence, counsel for the accused did not seek to put any submission to different effect. The probative value of the tendency evidence sought to be led by the Crown substantially outweighs its prejudicial effect. It is admissible for that purpose.

[23] The defence makes the application for the severance of the indictment so as to require the offences concerning the first complainant to be tried separately to the offences concerning the second complainant.

[24] Section 309 of the Criminal Code is a statutory adoption of the common law principle under which charges could be joined in the same indictment if they formed part of "a series of offences of the same or a similar character".[14] The section provides:

Circumstances in which more than one charge may be joined against the one person

(1) Charges for more than one offence may be joined in the same indictment against the same person, whether he is being proceeded against separately or with another or others, if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.

(1A) To avoid doubt, charges for more than one offence may be joined in the same indictment even if the offences are alleged to have been committed against different persons.

(2) Charges of stealing any property or, alternatively, of receiving the same property knowing or believing it to have been stolen may be joined in the same indictment.

[25] It is not asserted by the Crown that the charges are founded on the same facts. However, s 309 of the Criminal Code also provides that charges for more than one offence may be joined in the same indictment if they form part of "a series of offences of the same or a similar character". That requires some nexus or similarity between the offences which in all the circumstances of the case enables them to be described as a "series".[15] That raises the question whether the counts in respect of both complainants may properly be described as a series of offences of the same or similar character.

[26] In the particular circumstances of this case, it may be concluded that the offences against both complainants may be described as a series of similar character. That conclusion follows from largely the same considerations canvassed above for the purpose of determining whether there was commonality between those charges for tendency purposes. The joinder of all counts on the one indictment was permissible, and nor does counsel for the accused suggest otherwise. That leaves the question whether the joint trial of those counts would give rise to prejudice in the relevant sense.

[27] Section 341A of the Criminal Code creates the presumption of joint trials for sexual offences charged in the same indictment. It provides:

(1) Despite any rule of law to the contrary, if an accused person is charged with more than one sexual offence in the same indictment, it is presumed that the charges are to be tried together.

(2) The presumption is not rebutted merely because:

(a) evidence on one charge is not admissible on another charge; or

(b) there is a possibility that evidence may be the result of collusion or suggestion.

[28] Even prior to the introduction of the statutory presumption for joint trials in relation to sexual offences, mutual admissibility on the basis of "similar fact" evidence militated against an order for separate trials because the same evidence would be admissible in each trial in any event. Cross-admissibility removes the potential prejudice inherent in the use of evidence on one charge to support a conviction for an unrelated charge for which it would be inadmissible.

[29] For that reason, the exercise of the discretion to sever counts will be guided, where relevant, by considering whether the evidence is cross-admissible between counts (or, as in this case, between complainants).[16] The same consideration has operation in relation to mutual admissibility for tendency purposes, subject to the court's overarching discretion to sever the indictment and order separate trials where there is a real risk of some other form of prejudice that cannot be allayed by directions from the trial judge.

[30] The dominant consideration remains ensuring that an accused is not deprived by prejudice of a fair trial. The notion of prejudice in this general context "... means the danger of improper use of the evidence. It does not mean its legitimate tendency to inculpate".[17] Similarly, the loss by an accused of the strategic advantage of conducting his or her defence to a particular count in isolation does not of itself constitute prejudice in the material sense. Something more is required, such as the misuse of evidence on one charge to support a conviction for another charge for which it would be inadmissible.

[31] The prejudice said to present in this case is the risk that the jury will misuse the evidence to engage in rank propensity reasoning, or to attribute undeserved credibility to the evidence of one complainant on the basis of a positive assessment of the credibility of the other complainant, rather than on the basis of a genuine assessment of the first complainant's credibility. That potential is said to be heightened by the fact that these are sexual offences which will arouse strong emotions or excite revulsion in the jury. That is a potential which may be addressed by an orthodox direction to the jury in that respect.

[32] The rulings on the preliminary issues are:-

(a) The evidence identified in the Crown's tendency notice is mutually admissible for tendency purposes.

(b) The application to sever the indictment is dismissed.

1. [1] S Odgers, Uniform Evidence Law, Thompson Law Book Co, Looseleaf Service, [EA.97.120]; R v Lockyer (1996) 89 A Crim R 457; R v Lock (1997) 91 A Crim R 356 at 361; R v AH (1997) 42 NSWLR 702.
2. [2] Odgers, op cit, [EA.97.120]; R v Zhang [2005] NSWCCA 437; (2005) 158 A Crim R 504 at [46]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [52]; DSJ & Anor v Director of Public Prosecutions (Cth) [2012] NSWCCA 9; (2012) 215 A Crim R 349 at [67], [71], [72].
3. [3] [2017] HCA 20.
4. [4] Hughes v The Queen [2017] HCA 20 at [39].
5. [5] [2017] NTCCA 2 at [94].
6. [6] R v BD (1997) 94 A Crim R 131 at 139; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [91]-[92]; Ainsworth v Burden [2005] NSWCA 174 at [99]; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232 at [70]; R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [56]; Doklu v The Queen [2010] NSWCCA 309; (2010) 208 A Crim R 333 at [45].
7. [7] R v Lisoff [1999] NSWCCA 364 at [60].
8. [8] R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]); R v AH (1997) 42 NSWLR 702 at 709; R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434 at [49]- [50].
9. [9] See, for example, Gilbert v The Queen (2000) 201 CLR 414 at 425; Reza v Summerhill Orchards Ltd [2013] VSCA 17; (2013) 37 VR 204 at [50]; R v Mokbel (2009) 26 VR 618 at [90]; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 at [22], [26], [29], [38].
10. [10] The Queen v Niehus [2017] NTSC 82 at [27].
11. [11] IMM v The Queen (2016) 257 CLR 300 at [59].
12. [12] McIntosh v The Queen [2015] NSWCCA 184 per Basten JA at [42]-[47].
13. [13] The Queen v Niehus [2017] NTSC 82 at [17]- [19].

**[14] First introduced in England by the Indictments Act, 1915, Schedule I, rule 3.

[15] R v PJMS [2011] NTSC 48 at [10].

[16] R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375 at [27]. See also R v TJB [1998] 4 VR 621 at 630-633; GBF v The Queen [2010] VSCA 135 at [55]; The Queen v JRW [2014] NTSC 52 at [3]- [6].**

[17] HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [12] per Gleeson CJ.