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District Court 25 February 2019

R v Johnston (a pseudonym)

[2019] NSWDC 61

Sexual offences
INTERLOCUTORY ORDERS SEPARATE TRIALS ADMISSIBILITY OF TENDENCY EVIDENCE CROSS ADMISSIBILITY APPLICATION OF HIGH COURT AUTHORITY

Citation: R v Johnston (a pseudonym) [2019] NSWDC 61
Court: District Court of NSW
Date: 25 February 2019
Judge: Haesler SC DCJ

Background

The accused (referred to by the pseudonym Johnston) was arraigned on 11 counts of sexual offences against three complainants, identified by pseudonyms as Christine White, Monika Brown, and Natalie Green. Christine was Johnston's stepdaughter; Monika was a child he met through a family friendship at a caravan park; and Natalie was the daughter of his subsequent partner. The offences were alleged to have occurred between 2008 and 2017, when the complainants ranged in age from seven to sixteen.

The 11 counts fell into two distinct groups. Counts 1 to 6 concerned Christine and included four allegations of sexual intercourse with a child under ten and two acts of indecency, with Counts 1 to 5 involving alleged penile and digital penetration and oral intercourse when Christine was seven. Counts 7 to 11 concerned Monika and Natalie, and involved allegations of inappropriate touching and indecent assault against girls aged twelve to sixteen.

Before trial, the Crown sought to admit tendency evidence from each complainant as cross-admissible across all counts. The defence responded with an application to separate the trials by complainant. Both applications came before Haesler SC DCJ on 22 February 2019.

Legal Issues

  • Whether the evidence of each complainant was cross-admissible as tendency evidence across all 11 counts under ss 97 and 101 of the Evidence Act 1995
  • Whether tendency evidence of Johnston's alleged sexual interest in Christine was significantly probative of the counts concerning Monika and Natalie
  • Whether, even if substantially probative, the tendency evidence from Counts 1 to 5 should be excluded due to the risk of reasoning and emotional prejudice
  • Whether Counts 1 to 6 should be tried separately from Counts 7 to 11

Decision

Issue 1: Tendency evidence for Counts 6 to 11 (Monika and Natalie)

The court found that the allegations relating to Monika and Natalie shared sufficient common features to support admission of their evidence as cross-admissible tendency evidence. Each alleged incident involved Johnston having established a relationship of trust with the child's carer, being alone with the child, and progressing from proximity to increasingly intimate touching, often accompanied by comments about the child's appearance or body (at [41]-[43]). The probative value was found to be high, and the risk of prejudice manageable through strong jury directions (at [47]). The court noted, however, that the tendency notice as drafted was too broad and would require revision (at [48]).

Issue 2: Tendency evidence from Christine's allegations (Counts 1 to 5) in the trial of Counts 7 to 11

The court held that the allegations in Counts 1 to 5 were of a fundamentally different type and order of seriousness from those in Counts 6 to 11. Counts 1 to 5 involved repeated sexual intercourse with a seven-year-old, including penile and digital penetration and oral intercourse, in circumstances only peripherally similar to the later allegations against older children (at [49]-[51]). The court reasoned that while a sexual interest in children may be enduring, the manner in which an accused acts on that interest must show some consistency before tendency evidence meets the threshold of significant probative value (at [52]). A tendency to indecently touch pre-teens is not the same as a tendency to engage in penetrative sexual intercourse with a seven-year-old (at [53]-[54]).

Issue 3: Prejudice as an independent basis for exclusion

The court found that even if the evidence from Counts 1 to 5 were substantially probative of Counts 7 to 11, the risk of both reasoning prejudice and emotional prejudice from placing allegations of sexual intercourse with a child under ten before a jury considering indecent touching of children over twelve was sufficient independently to require exclusion (at [55]).

Issue 4: Separate trials

Because the Christine evidence was not admissible in the Monika and Natalie trial, the court found no utility in hearing all counts together and a real risk of prejudice if they proceeded jointly (at [59]-[60]). Counts 1 to 6 were ordered to be heard separately from Counts 7 to 11. The court also noted that tendency evidence from Christine's allegations remains admissible within the trial of Counts 1 to 6, and adjourned for a future date any application for Christine's evidence to be admitted in the second trial, depending on the outcome of the first (at [62]-[64]).

Orders Made

  • Counts 1 to 6 to be tried separately from Counts 7 to 11
  • Tendency evidence allowed in the trial of Counts 1 to 6

Key Takeaways

  • Where allegations against different complainants differ significantly in type and seriousness, the court will scrutinise whether the accused's manner of acting on an alleged sexual tendency is consistent enough across counts to meet the threshold of significant probative value under s 97(1)(b) of the Evidence Act 1995 (at [52]-[54]).

  • Placing evidence of penetrative sexual offences against a very young child before a jury considering indecent touching of older children carries a risk of reasoning and emotional prejudice sufficient to ground exclusion even where some probative value exists (at [55]).

  • The District Court confirmed the principle drawn from The Queen v Bauer that, in single-complainant cases, evidence of one sexual offence against that complainant is ordinarily significantly probative of another offence against the same complainant without requiring particular features of the offending to be identified (at [39]-[40]).

  • A tendency notice must be particularised with sufficient specificity to allow a court to assess not only that the accused had a sexual interest in children, but how that interest was made manifest through conduct. A tendency expressed at a high level of generality will not satisfy the admissibility threshold, consistent with the reasoning in McPhillamy v The Queen (at [35]-[36]).

  • Separation of trials is appropriate where tendency evidence from one group of counts is not admissible in the trial of another group, removing any utility in joint hearing and creating a real risk of prejudice to the accused (at [59]-[61]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1987
- Evidence Act 1995

Cases
- Festa v The Queen (2001) 208 CLR 593
- GSH v R; R v GSH [2009] NSWCCA 214
- Hughes v The Queen (2017) 92 ALJR 52; 344 ALR 187; [2017] HCA 20
- IMM V The Queen (2016) 257 CLR 300
- McPhillamy v The Queen [2018] HCA 52
- The Queen v Bauer (a pseudonym) [2018] HCA 40
- The Queen v Dickman [2017] HCA 24