Supreme Court of the Australian Capital Territory s1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v QI

Citation: [2016] ACTSC 21

Hearing Date(s): 28 January 2016

Decision Date: 17 February 2016

Before: Burns J

Decision: See [40]-[41]

Catchwords: CRIMINAL LAW – Particular offences – indecency in the presence of a young person under the age of 16 years – engaging in sexual intercourse with a person under the age of 16 years. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit relationship and or context evidence – where acts are not obviously sexual in nature – evidence of sexualised conversations initiated by accused – evidence the accused would confide in the complainant – evidence to show nature of the relationship – to contextualise delay in reporting – application allowed in part. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit tendency evidence – to have a sexual attraction to the complainant – to engage in sexualised conversation with the complainant – to engage in sexual conduct with the complainant – to normalise sexual interaction through the use of pornography – application allowed in part.

Legislation Cited: Evidence Act 2011 (ACT) ss 55, 56, 97, 101, 137

Cases Cited: MM v The Queen [2012] ACTCA 44 Rodden v The Queen [2008] NSWCCA 53; (2008) 182 A Crim R 227

Texts Cited: J D Heydon, LexisNexis Butterworths, Cross on Evidence (Australian Edition), vol 1 (at Service 185) [2105]

Parties: The Queen (Crown) QI (Accused)

Representation: Counsel Ms P Burgoyne-Scutts (Crown) Mr M Kukulies-Smith (Accused)

Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) File Number(s): SCC 191 of 2015

BURNS J:

1. The accused is charged with 2 counts of committing an act of indecency in the presence of a young person under the age of 16 years, and 4 counts of engaging in sexual intercourse with a person under the age of 16 years. He has pleaded not guilty to these charges, and his trial is listed to commence on 29 March 2016. I have before me two applications by the Crown in these proceedings. The first is an application lodged on 25 November 2015 seeking orders that the Crown be permitted to lead “evidence of the relationship between the accused and the complainant” at his trial. On 9 November 2015 the Chief Justice listed this application before me for hearing on 28 January 2016. The second application was lodged on 27 January 2016, returnable on 28 January 2016, seeking orders that the Crown be permitted to adduce tendency evidence at the trial of the accused.

Background to the charges 2. In order to properly understand these applications it is necessary to briefly outline the nature of the Crown case against the accused as set out in the Crown’s Case Statement. The Crown alleges that the complainant, MI, met the accused when her sister, TI started dating him in approximately 2004. The accused and TI subsequently married. In 2007 the complainant’s parents separated and her father moved out of the matrimonial home at Monash and went to live with his parents in Chifley. In 2009 the complainant moved to the Chifley address too. During 2008 and 2009 it is alleged that the accused and TI would go to the Monash address approximately once a week. The accused would play basketball with the complainant and generally spend time with her.

3. It is alleged that the accused would often speak to the complainant in a hushed tone, indicating that what they spoke about was a secret. He would speak to the complainant about his drug and alcohol use and other aspects of his personal life. The Crown alleges that this had the effect of encouraging the complainant to confide in him. It is alleged that MI often exchanged text messages and phone calls with the accused. This contact was kept secret between the two of them and included discussions about their personal lives.

4. The Crown alleges that in early 2009 the accused gave MI a lift in his car. At this time MI was 14 years old. They were alone in the car when, it is said, the following conversation occurred:

Accused: “You would give really good head.” MI: “Why?” Accused: “Because you have a small mouth and it would be tight.” 5. This conversation is the basis of Count 1 on the indictment, a charge of committing an act of indecency.

6. It is alleged that in late September 2009, MI asked the accused to purchase some alcohol for her. The accused told MI that she would have to accompany him when he made the purchase. At that time MI was 14 years old. It is alleged that on 30 September 2009 the accused collected MI from the Chifley address and told her that they would purchase the alcohol at Gungahlin as he needed to collect something

2 from his house in Casey. During the drive from Chifley to Gungahlin it is alleged that the accused and MI spoke about MI skipping school and consuming alcohol at the Woden bus interchange. The accused asked MI if she was taking any drugs, and said that if she was going to take drugs she should purchase them from him rather than elsewhere.

7. The accused parked the car outside a liquor shop in Gungahlin. MI asked the accused to purchase a case of “Smirnoff Double Blacks”. When the accused returned to the car he had the “Smirnoff Double Blacks” as well as a four pack of premixed alcoholic lemon vodka Ruskies. The accused declined to take the $80.00 MI offered him for the purchase of the “Smirnoff Double Blacks”.

8. The accused drove to his home in Casey. MI recognised the house as the home of the accused and her sister, TI. The accused took MI to the living room and they sat on the sofa. The accused showed MI some different items and described what drugs they were and how much they were worth. The accused then gave MI one of the lemon Ruski drinks which he had opened in the kitchen. The accused then suggested that they play a computer game, which MI agreed to do. The first game lasted only a few minutes and the accused won. The accused then suggested that they play a drinking game, and that whoever lost the computer game was to have a shot of Absinthe. MI agreed. The accused and MI then played another computer game and MI again lost. She walked to the kitchen where there was a bottle of Absinthe and a shot glass on the sink. Either the accused or MI poured a shot of Absinthe, which MI drank. The accused and MI continued to play the computer game, and every time MI lost she drank a shot of Absinthe. She also continued to drink the Ruski during the games.

9. After some time the accused left the living room and returned with a DVD which he commenced to play. The title of the DVD was “Pirates featuring Jessie Jane”. The accused sat in the corner of the sofa with his legs on it. He pulled MI towards him by her hips so she was sitting between his legs with her back against his groin area. The movie was a pornographic movie which depicted people having sexual intercourse. They watched the movie for approximately 10 minutes. This is the basis of Count 2 on the indictment, an allegation of an act of indecency. After 10 minutes the accused left the living room, returning naked from the waist down. The accused spoke to MI about the previous conversation concerning oral sex. The accused ran towards MI, shaking his hips from side to side. He shook his erect penis in MI’s face before putting it in her mouth. This is the basis of Count 3 on the indictment, an allegation of engaging in sexual intercourse with a person under the age of 16 years.

10. The accused thrust his hips a number of times towards MI’s face before removing his penis from her mouth. The accused said that it was “good experience” for MI and that he was “teaching” her. He pushed MI back onto the sofa and started to undress her, including removing her shorts. MI said “What about [TI]?”, and the accused replied “Don’t worry about [TI], I still love her.” It is alleged that the accused then moved his body so that he was on top of MI with his penis level with her face and his head over her vagina. He inserted his penis into MI’s mouth. This is the basis of Count 4 on the indictment, a charge of sexual intercourse with a person under the age of 16 years. At the same time he used his tongue on the outside of MI’s vagina. This is the basis of Count 5 on the indictment, a charge of sexual intercourse with a person under the age of 16 years.

3 11. It is alleged that a short time later the accused turned his body around, and lay on top of MI and inserted his penis into her vagina. A short time later he removed his penis. MI was unable to tell if he had ejaculated or if he had used a condom. MI went to the bathroom and vomited in the toilet. She accidentally broke the toilet roll holder while she was there. The accused gave her a glass of water before driving her to the McDonald’s Gold Creek drive through. During the drive the accused said “Don’t tell anyone or I could get into a lot of trouble. I could go to jail and lose [TI].” The accused also asked MI if she was on the contraceptive pill, and when she said she was not he said “I’ll take you to the doctors and put you on it.” The accused then drove MI to the Chifley address.

12. The Crown alleges that the next day, 1 October 2009, the accused collected MI from her home in Chifley and drove her to the Queanbeyan GP Super Clinic where she saw a doctor who prescribed her the contraceptive pill. He then drove MI back to her home in Chifley.

13. It is alleged that subsequently MI complained to friends about these events, and in 2010 made a number of diary entries recording her feelings towards the accused. It is further alleged that in about June 2014 MI told her father about these events. The Crown alleges that MI’s father and the accused then had the following conversation:

MI’s father: “Can you explain the situation?” Accused: “I don’t remember, but if [MI] says it happened then yeah it happened. Back then I was very heavily into the gear. I don’t remember everything that happened. I was taking a lot of drugs at the time and I can’t really remember what happened.” 14. At the end of July 2014 MI spoke to the police about these events. On 9 January 2015 police executed a search warrant at an address where the accused was residing. During the course of the search warrant the accused made admissions to having seen and owning the pornographic film “Pirates”.

The context/relationship application 15. In her statement dated 1 October 2014, MI described playing basketball “one-on-one” with the accused at her address at Monash on regular occasions in late 2008 and early 2009. She said that when they were playing one-on-one the accused would get really close to her when she had the ball and he was defending. He would press his whole body up against her. When he did this she could feel his penis against her lower back and sometimes her shoulder. She said that the accused would press his whole body including his hips against her. She felt this was unusual because she had never had anyone press up against her as close as that when playing basketball. She did not say anything to the accused about it because she would not have felt comfortable talking to him about it. I will refer to this as the basketball allegations. The Crown proposes leading this as context or relationship evidence “to show the sexualised contact initiated by the accused towards the complainant prior to the charged acts”.

16. In the same statement, MI refers to the accused talking to her about personal matters in the absence of TI. In particular, she said:

[The accused] would talk about things like how he had a really ‘loose’ weekend. He would talk generally about his party life and drug use. ...

4 When [the accused] would tell the stories he would lower the tone of his voice making it obvious that he was trying to avoid anyone else listing to what he was saying to me. I remember that [the accused] would look behind him to see if anyone was around before he would say these things to me. ... When he told the stories it opened me up a little bit and I became more comfortable talking to [the accused]. I showed a lot of interest in what he would tell me so he would keep telling me things. 17. The Crown proposes leading this evidence to “show the nature of the relationship between the complainant and the accused” and “to contextualise the delay in reporting”.

18. As I have already noted at [4] above, the Crown alleges that the accused engaged in a discussion of oral sex with MI in early 2009. The Crown proposes leading this evidence as context or relationship evidence to demonstrate the “sexualised conversations initiated by the accused towards the complainant prior to the charged acts”.

19. In her statement dated 1 October 2014, MI recollected a number conversation, possibly during the same car trip as the conversation concerning oral sex, in which the accused asked her whether she had ever watched “porn”. She told the accused that she had not. He then told her about a “pirate” themed pornographic movie that he was really enjoying at the time as it starred a hot porn star called “Jessie Jane”. The Crown proposes leading this evidence as context or relationship evidence “to show the sexualised conversations initiated by the accused towards the complainant prior to the charged acts”.

20. In the same statement, MI said that from 2009 when she was 14 years old onwards the accused would sometimes ask her about her sex life. There was one occasion where she said that the accused asked her whether she had lost her virginity, although she could not remember when or where this occurred. She said that when the accused made these comments, he would not dwell on it, but would make the comment and then move on. The Crown submits that this evidence is admissible as context or relationship evidence as demonstrating “the sexualised conversations initiated by the accused towards the complainant prior to the charged acts”.

Consideration: Relationship Evidence 21. To say, as the Crown does, that the evidence reveals the relationship between the accused and the complainant does not make the evidence admissible. To be admissible, the evidence must be relevant: s 56 of the Evidence Act 2011 (ACT) (the Evidence Act). To be relevant it must be capable of rationally affecting, either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: s 55 of the Evidence Act. As the learned author of Cross on Evidence (Australian Edition) says, at [21050]: “But it is not enough for the evidence to show a relationship. It must be evidence from which a relevant inference can be drawn”.

22. The accused has made no admissions, so it must be assumed that everything is in issue: the charges against the accused do not require the Crown to prove lack of consent by the complainant, so the real issue at the accused’s trial is likely to be whether the acts alleged by the Crown occurred.

23. To be admissible, the relationship evidence which the Crown proposes to lead must enable a jury to make a rational inference from the evidence affecting their assessment

5 of whether the acts alleged by the Crown as constituting the charges against the accused occurred.

24. The obvious inference which the jury could be asked to make with respect to the alleged discussion of oral sex by the accused, his reference to pornographic movies, and his enquiries of the complainant about her sexual activities is that they reveal a sexual interest, or “guilty passion”, on the part of the accused towards the complainant. In Rodden v The Queen (2008) 182 A Crim R 227, Hall J (With whom Beazley JA and Fullerton J agreed) said, at [39]:

Such evidence, it was submitted, was directly relevant to proof of the offences charged, in that it bolstered the complainant’s credibility insofar as her account was more likely to be true, given what was said to be the appellant’s sexual interest in her: R v Hartley [1941] 1 KB J; R v AH (1997) 42 NSWLR 702; 98 A Crim R 71; Qualtieri v The Queen (2006) 171 A Crim R 463. 25. Such evidence may also allow the jury to infer that the accused had a motive to act as the Crown alleged, being his sexual interest in the complainant. A person who has a motive to act as the Crown alleges is more likely to have acted in that way than someone who lacks that motive. The authorities are divided over whether evidence establishing a sexual interest on the part of the accused towards a complainant is inherently tendency evidence, or whether it may be admissible as evidence of motive for a non-tendency purpose. As a matter of logic I see no reason for such evidence to be described as inherently tendency evidence. Much depends on how the jury is asked to use the evidence, and the reasoning process they are asked to apply. The fact that an accused has a motive to commit an offence is a circumstance which taken together with other evidence, may enable a jury to conclude that the accused is guilty of a charged offence. This does not involve tendency reasoning. Where it is alleged, however, that the same conduct which reveals motive also may establish that the accused has a tendency or propensity to act in a particular way, or to have a particular state of mind, the finding of fact that the accused has such a tendency is a necessary step in the process of reasoning employed to prove guilt. Where the prosecution proposes using the evidence as evidence of motive only, and not as tendency evidence, the presiding judge will need to warn the jury not to use the evidence as evidence of propensity.

26. Relationship evidence will also be admissible to enable a jury to understand conduct on the part of the complainant or the accused that would otherwise appear inexplicable or unlikely. For example, a history of sexual conduct by an accused toward a child complainant may help a jury understand why the complainant did not make an immediate complaint about particular sexual conduct by an accused. Without such evidence, it may also appear to the jury that an allegation of sexual misconduct by an accused, coming “out of the blue”, is unlikely to be true.

27. Where relationship evidence is demonstrated to be relevant, it may nevertheless be excluded if its probative value is outweighed by the danger of unfair prejudice to the accused: s 137 of the Evidence Act.

28. In the present case, the allegation that the accused would press his body against that of the complainant while they were playing basketball is capable of raising an inference that the accused had a sexual interest in the complainant. Having said that, I am satisfied that the probative value of the evidence is low. The acts alleged by the Crown are equivocal, and not obviously sexual in nature. The danger of unfair prejudice to the

6 accused, by the jury misusing the evidence or giving it undue weight, exceeds its probative value and the evidence will not be admitted.

29. The proposed evidence about secret discussions between the accused and the complainant is relevant not to establish a sexual interest in the complainant on the part of the accused, but to make explicable the complainant’s evidence that in late September 2009 she requested the accused to purchase some alcohol for her, that she accompanied him on the journey to purchase alcohol on 30 September 2009, and that she subsequently consumed alcohol with him at his home in Casey. Without the evidence of prior discussions between the accused and the complainant about drugs and alcohol, and evidence of the prior offer by the accused to supply the complainant with drugs, the complainant’s approach to the accused to ask him to purchase alcohol for her, and the accused’s willingness to comply, would seem curious, if not improbable. There can be no doubt that there is a danger of unfair prejudice to the accused if the evidence is admitted, as the evidence portrays him as a person of bad character who is willing to supply alcohol and drugs to children. This danger can, to a certain degree, be ameliorated by appropriate directions to the jury, but it cannot be removed entirely. The evidence has substantial probative value, as it explains conduct by the complainant and the accused immediately prior to, and intimately connected with, the alleged offences. As I said in MM v The Queen [2012] ACTCA 44, at [62], the “effect of s 137 is not to exclude evidence because it is prejudicial. The section requires a balance to be taken between the prejudicial effect and the probative value of the evidence. No matter how great the prejudicial effect of the evidence, the section does not mandate its exclusion if its probative value is greater”.

30. I am satisfied that the probative value of this evidence exceeds the danger of unfair prejudice to the accused if it is admitted. The evidence will be admitted.

31. The discussion of oral sex set out at [4] above is unequivocally sexual, and is capable of raising an inference that the accused was demonstrating a sexual attraction to the complainant. As I have noted, evidence of sexual attraction by the accused towards the complainant is cogent evidence of motive to commit the alleged offences, and may also bolster the credit of the complainant. I am satisfied that the probative value of this evidence exceeds the danger of unfair prejudice to the accused if it is admitted. The evidence will be admitted.

32. I make the same comments and finding as at [31] above, with respect to the proposed Crown evidence of discussions between the accused and the complainant about the pornographic movie and the questions directed to the complainant by the accused about her sexual experiences. This evidence will also be admitted.

The tendency application 33. By an application dated 27 January 2016 the Crown seeks orders that it be permitted to adduce evidence outlined as Incidents 1 to 5 in the Notice of Intention to Adduce Tendency Evidence dated 27 January 2016 (the Notice) as tendency evidence pursuant to s 97 of the Evidence Act to prove that the accused had a tendency to have a particular state of mind, and to act in particular ways namely:

(a) to have a sexual attraction to MI;

(b) to engage in sexualised conversation with MI;

(c) to engage in sexual conduct with MI; and

7 (d) to normalise sexual interaction through the use of pornography.

34. The Notice provides details of the 5 alleged Incidents as follows:

Incident 1 (uncharged act) Substance of the evidence: In late 2008 and early 2009 when the accused played basketball with MI, and was defending he would press his whole body against the complainant. She could feel his penis on her lower back and shoulder. The complainant would try and back away or would give the ball to the accused because it made her feel uncomfortable. Incident 2 (Count 1) Substance of the evidence: In early 2009 the accused said to the complainant “you give a really good head” (sic). When the complainant asked why, the accused replied with words to the effect of “because you have a small mouth and it would be tight”. Incident 3 (uncharged act) Substance of the evidence: In early 2009 the accused asked the complainant if she had ever watched pornography. When the complainant replied she had not, the accused told the complainant about a “pirate” themed pornographic film he was enjoying watching at that time as it starred “ Jessie Jane”. Incident 4 (uncharged act) Substance of the evidence: During 2009, when the complainant was 14 years of age, the accused would ask her about her sex life and if she had lost her virginity. Incident 5 (Counts 2 to 6) Substance of the evidence: In September 2009, the complainant was at the accused residence in Casey. They were drinking. The accused put a pornographic film on the television, which he watched with the complainant. While they were watching it the accused pulled the complainant towards him by her hips so that she was sitting between his legs with her back against his groin area. After about 10 minutes the accused left the room and then returned naked from the waist down. He ran towards the complainant shaking his hips and penis to either side. He then put his penis into the complainant’s mouth, thrusting his hips a number of times before removing his penis. The accused then again put his penis into the complainant’s mouth while he licked the outside of her vagina. After a short time he inserted his penis into the complainant’s vagina. 35. For the same reasons that I gave at [28] above, the allegation that the accused would press his body against the complainant while playing basketball, while capable of supporting a finding that the accused had a tendency to be sexually attracted to the complainant, lacks sufficient probative value to satisfy the test found in s 101 of the Evidence Act. This evidence will not be admitted as tendency evidence.

36. The evidence referred to as Incident 2 in the Notice is clearly capable of supporting a finding that the accused had a sexual interest in the complainant. I am satisfied that it has significant probative value, and that its probative value substantially outweighs any prejudicial effect it may have on the accused. This evidence will be admitted to establish that the accused had a tendency to be sexually attracted to the complainant.

8 37. The evidence referred to as Incident 3 in the Notice is also capable of supporting a finding, both by itself and having regard to the evidence the Crown proposes to lead concerning Incidents 2 and 4, that the accused had a tendency to be sexually attracted to the complainant. I am satisfied that this evidence has significant probative value, and that its probative value substantially outweighs any prejudicial effect it may have on the accused. This evidence will be admitted to establish that the accused had a tendency to be sexually attracted to the complainant.

38. The evidence referred to as Incident 4 in the Notice is also capable of supporting a finding, by itself and having regard to the evidence the Crown proposes to lead concerning Incidents 2 and 3 that the accused had a tendency to be sexually attracted to the complainant. I am satisfied that this evidence has significant probative value, and that its probative value substantially outweighs any prejudicial effect it may have on the accused. The evidence will be admitted for the purpose of establishing that the accused had a sexual interest in the complainant.

39. The events described in Incident 5 form the basis of Counts 2 to 6 on the indictment. These events are unequivocally sexual, and each such event is capable of supporting a finding that the accused had a tendency to be sexually attracted to the complainant. This evidence clearly satisfies the tests under both s 97 and s 101 of the Evidence Act. It is admissible to establish that the accused had a tendency to be sexually attracted to the complainant. As the evidence reveals sexual conduct with the complainant on one occasion only, it does not have significant probative value to establish that the accused had a tendency to engage in sexual conduct with the complainant .

Orders 40. I make the following formal orders:

(a) the Crown will be permitted to lead evidence of Incidents 2, 3 and 5 (subject to these reasons) as set out in the Notice as evidence that the accused had a tendency to be sexually attracted to the complainant;

(b) the Crown will be permitted to lead evidence of Incident 4 (subject to these reasons) as set out in the Notice for the purpose of establishing that the accused had a sexual interest in the complainant;

(c) the Crown will not be permitted to lead evidence of Incident 1 as set out in the Notice as either tendency or context/relationship evidence;

(d) the Crown will not be permitted to lead evidence as set out in the Notice that the accused had a tendency to engage in sexual conduct with the complainant;

(e) the Crown will be permitted to lead evidence of the secret discussions between the accused and the complainant (subject to these reasons) as particularised in the table annexed to the Crown’s submissions dated 25 November 2015 (the table) under the heading “secrets” as context/relationship evidence;

(f) the Crown will be permitted to lead evidence of the discussion of oral sex as set out at [4] (subject to these reasons) as context/relationship evidence;

(g) the Crown will be permitted to lead evidence about discussions between the accused and the complainant about the pornographic movie (subject to these

9 reasons) as particularised in the table under the heading “comments”, sub- heading “pornography” as context/relationship evidence; and

(h) the Crown will be permitted to lead evidence about the questions directed to the complainant by the accused about her sexual experiences (subject to these reasons) as particularised in the table under the heading “comments”, sub-heading “sex” as context/relationship evidence.

41. In light of the upcoming trial, I also make an order that publication of this decision be prohibited until a further order of the Court.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 17 February 2016