District Court New South Wales Medium Neutral Citation: R v Johnston (a pseudonym) [2019] NSWDC 61 Hearing dates: 25 February 2019 Date of orders: 25 February 2019 Decision date: 25 February 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Separate trials Counts 1 to 6 and 7 to 11. Tendency evidence allowed Counts 1 to 6. Catchwords: Interlocutory orders - separate trials - admissibility of tendency evidence – cross admissibility - application of High Court Authority Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1987 Evidence Act 1995 Cases Cited: 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 Category: Procedural and other rulings Parties: Phillip Johnston (Offender) Director of Public Prosecutions Representation: Counsel: Mr D Coyne (for the offender) Ms N Keay (for the Director of Public Prosecutions) Solicitors: Ms A Fisher (for the offender) Ms J Azad (for the Director of Public Prosecutions) File Number(s): 2017/00187461 Publication restriction: No publication of any information that might identify child complainants inluding the identity of the defendant.. Each is to be referred to by a pseudonym which will not be their real initials. The Offender is referred to in this judgment by a pseudonym. Judgment Introduction 1. Phillip Johnston, a pseudonym, was arraigned and pleaded not guilty to 11 offences. Each Count involved an allegation of sexual contact with a child, charged pursuant to either s 66A Crimes Act 1900 - sexual intercourse with a child under 10, or, assault and commit an act of indecency on a child under 16: s 61M(2) Crimes Act 1900. In advance of trial I ordered that six of those Counts be heard separately to the remainder. These are my reasons for that decision. Background 1. Three complainants were nominated in the initial indictment; Christine White, Monika Brown and Natalie Green. Counts one to six involve the complainant Christine White; There are four sexual intercourse Counts and two act of indecency Counts. The offences were said to have occurred between August 2008 and August 2012 when Christine was aged between seven and 10 years. 2. Counts seven, and eight involved allegations of acts of indecency on Monika Brown. These offences were said to have occurred in 2012 and 2013, when Monika was aged 12. 3. Counts nine and 10 allege assaults with acts indecency between August 2015 and April 2017 on Natalie Green, who was then aged 14. 4. An Amended Notice of the Prosecution's intention to adduce evidence of tendency, dated 20 February 2017, was served on the Solicitors for the Accused. The Notice related to evidence proposed to be led from each complainant, Christine, Monika and Natalie, as being cross-admissible in the trials relating to each of the 11 Counts. 5. The tendency sought to be proved was:- 1. Phillip Johnston's tendency to have a particular state of mind, namely a sexual interest in girls under the age of 16: and 2. His tendency to express that sexual interest verbally in girls including comments such as "I love you" and "I love your body" and "you are so sexy". 3. His tendency to act in accordance with that sexual interest in the following ways: 1. form relationships with the carers of girls under the age of 16; 2. having established relationships of trust with carers of girls under the age of 16, creating opportunities to indecently touch those girls including: 1. sitting closely with girls; 2. massaging their bodies; 3. indecently assaulting the girls during massages; and 4. indecently assaulting the girls such as by putting his hands in their pants or flicking towels at their buttocks. 1. Having established relationships of trust with the carers of girls under the age of 16. creating opportunities to be alone with those girls and indecently and sexually assaulting those girls including by the following acts: 1. digital penetration 2. masturbation of his penis 3. fellatio 4. penile – vaginal sex 5. cunnilingus 6. kissing 7. massaging breasts 8. touching inner thighs and genital areas 1. A sexual attraction to Christine, Monika, and Natalie and the tendency to act in accordance with that attraction. 1. Material from the prosecution brief was attached to the notice: a copy of which is marked tendency voir dire Exhibit A. That material it is said support the proposed tendency in each trial; making the evidence in each trial cross-admissible as between the Counts relating to an individual complainant and in the allegations made by each complaint. A Crown case statement summarising the prosecution allegations was tendered as Exhibit C. The application was supported by Crown written submissions: MFI 1. 2. A cross application was filed by the Solicitor for the Accused seeking separation of the trials as between each of the complainants; Christine, Monika, and Natalie. That is; that Counts 1 to 6 be put on a separate indictment, Counts 7 and 8 be placed on a separate indictment and Counts 9, 10 and 11 be placed on a separate indictment. 3. The Notice of Motion seeking separate trials and supporting material was tendered as Exhibit B. A table noting matters of similarity and difference as between the Counts and complainants was tendered as Exhibit D. I also had the benefit of Defence Counsel's written submissions: MFI 2. 4. The trial was listed at Wollongong District Court for Monday, 25 February 2019. A jury panel had been summonsed. A readiness hearing was held on Tuesday, 19 February 2019. In order to avoid delaying the commencement of the trials, and consequent disruption of an extremely busy list, the pre-trial matters were listed for hearing on Friday, 22 February 2019. They were listed as part of Wollongong District Court's usual Friday list – completion of a jury trial; mentions forthcoming short matters; severity appeal hearings; and three sentence hearings. 5. I was also asked to deal with a number of matters relating to leave to issue subpoenas, particularly those that raised potential issues relating to disclosure of confidential counselling communications: see Chapter 6, Part 2A, Division 2 Criminal Procedure Act 1987: See separate judgements. Considerable expedition was therefore required in resolving these matters. 6. At the conclusion of Counsel's succinct submissions I indicated that Counts 1 to 6 on the present indictment must be heard separately from Counts 7 to 11. I indicated, very briefly, my concerns so far as the admissibility of tendency evidence from Monika and Natalie in the trials relating to Christine and with the breadth of the tendency sought to be put to the jury, as particularised in the Amended Tendency Notice: Exhibit A. I indicated that those concerns relate to the tests set out in both section 97 and 101 Evidence Act 1995. Of particular concern to me was the nature of the allegations in Count 1 to 5 (Christine's allegations from when she was aged 7) and the circumstances alleged in relation to them. 7. I also indicated that should the Crown wish to rely upon evidence of tendency in the trial of Counts 1 to 6, I would allow evidence in relation to one Count to be used so far as each of the others for a tendency purpose: subject to those matters being better and more narrowly particularised, and after dealing with any objection as to specificity. 8. I also indicated that subject to similar and better particulars being provided by the Crown in relation to the remaining Counts, that the evidence relating to complainants Monika and Natalie should be cross admissible, of course allowing for appropriate challenge and objection. I also indicated I would consider a fresh application so far as the proposed second trial is concerned relating to admissibility of evidence of Christine; depending of course on the result of that trial, which I understand is to proceed first. I also indicated that as soon as practicable I would deliver reasons for those determinations. The Allegations 1. Christine was Johnston's stepdaughter. In 2017 when she was 15, she complained Johnston had regularly sexually or indecently assaulted her from when she was 7 years old. She particularised three incidents but also said she had a general recollection of other touchings and incidents, including Johnston coming into her bedroom in the early morning and placing his hands into her pyjamas and touching her vagina. On other occasions he would put his hands down her pants and touch her then walk away pretending nothing had happened. 2. The specific allegations in proposed Counts 1, 2 and 3 concern an incident where it is alleged Johnston contrived to be home alone with Christine, who was then aged 7. She says Johnston made her masturbate his penis. He then forced it into her mouth. He then inserted his finger into her vagina, before telling her to go and play, "as if nothing had happened." 3. The second allegation is said to have occurred some time later but when Christine was still aged 7. Again she recalls being alone with Johnston in the adult's bedroom. While she was lying on the bed Johnston had penile vaginal intercourse with her. He then performed cunnilingus on her. He threatened her and told her not to tell: proposed Counts 4 and 5. 4. Count 6 is said to have occurred after Johnston and Christine's mother separated. Christine was then 10 or 11 and staying at the Accused's home. It is alleged Johnston leant over and stuck his pierced tongue into her mouth, moving it around. She told him to stop and he moved away. 5. Monika and her family would holiday at a South Coast caravan park. So too would Johnston and his extended family. The families became friends. Monika alleges that one evening in January 2012, when she was 12, after dinner, she was walking in the caravan park She met the Accused and two of his children. When they were out of sight of her caravan Johnston put his arm around her shoulders making her feel uncomfortable. He kissed her forehead. Keeping his arm over her he walked her back to his caravan annex where he offered her an alcoholic drink. He then used her phone to zoom in on views of her breasts, saying "you're so sexy" and "I wish you were mine." There was then a wrestle as Monika sought to get her phone back, during which, Johnston squeezed her breasts: proposed Count 7. He then ran his hands over her thighs: proposed Count 8. Johnston continued to make comments about the complainant's body. 6. After Johnston and Christine's mother separated he lived with and remarried Natalie's mother. Natalie complains that on occasions Johnston would rub her thigh, walk in while she was in the bathroom and flick a tea towel at her buttocks. Proposed Count 9 is an allegation that when Natalie was 14 the Accused sat next to her on a lounge while she was watching television. He placed his hand on her knee and moved it up her leg. She closed her legs but he continued to rub her inner thigh. 7. Proposed Count 10 is an allegation that when Natalie was 15 or 16 the Accused came up behind her while she was writing at the kitchen table. He placed his hand under her t-shirt and bra and rubbed her breasts for some minutes. He then hugged her and said, "I love you and I love your body." 8. Count 11 is said to have occurred when Natalie was 16. Again, it is said Johnston sat on a lounge next to Natalie while she was watching television. He first put his hand on her knee for 10 minutes before massaging her inner thigh. He then moved first his fingers and then his hand onto her vagina. Submissions 1. The Crown submit that the evidence of each complainant is cross-admissible in the trial involving the other. The evidence they say is relevant as it has a "strong capacity" to rationally affect the jury's assessment of facts in issue: did the Accused indecently or sexually assault each complainant, as alleged. 2. It is said that a common thread runs through each set of allegations: the Accused formed relationships of trust with the children's carers (mothers or family); each act occurred in the absence of those carers, where Johnston had contrived to be alone with the complainant; the Accused expressed a sexual interest in Monika and Natalie (while Christine was too young to recall any such expressions); both Monika and Natalie complain the touching become more and more intimate; none of the allegations are isolated. Of particular importance in the Crown case is the time frame, with the Accused moving from one complainant to the next. 3. It is submitted the proposed tendency evidence will have substantive probative value – as on the Crown case so far as each complainant is concerned, the Accused expressed and then acted on his sexual interest in young girls. Further, addressing the test in s 101 Evidence Act 1985, it is submitted that tendency evidence would be neither overwhelming nor confusing. 4. In response Mr Coyne, in his table (Exhibit D), highlights a number of differences, particularly between Counts 1 to 5 concerning Christine, and the remaining Counts in the proposed Indictment. He noted the temporal differences; the differences between the allegations and the nature and seriousness of the crimes alleged in Counts 1 to 5, so far as Christine is concerned. 5. Mr Coyne drew my attention to evidence that might support a possibility that Monika and Natalie's mother may have colluded. However, when his attention was drawn to what fell from the High Court in IMM V The Queen (2016) 257 CLR 300 and The Queen v Bauer (a pseudonym) [2018] HCA 40 at [69], he conceded that this was a jury, not an admissibility, point. Guidance of the High Court 1. In a series of recent decisions the High Court has visited and revisited ss 97 and 101 Evidence Act 1995 and offered considerable guidance as to how trial judges are to approach their task of assessing admissibility: IMM V The Queen; Hughes v The Queen (2017) 92 ALJR 52; 344 ALR 187; [2017] HCA 20; The Queen v Bauer (a pseudonym); McPhillamy v The Queen [2018] HCA 52. 2. An 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 make more likely the facts making up the charged offence: Hughes at [41]. 3. Assessment of the probative value of tendency evidence requires a judge to determine the extent to which the evidence is capable of proving the tendency. 4. Assuming the evidence has the capacity to do so, the judge must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. 5. The tendency may be to have a particular state of mind and/or to act in a particular way. A mature man's sexual interest in young girls is a tendency to have a particular state of mind. Here the evidence of Christine, Monika and Natalie was capable of establishing that the Accused had such an interest. The evidence on the voir dire, if accepted, indicates this interest was enduring. 6. Here proof of Johnston's sexual interest in young girls meets the basal test of relevance. The question is whether it is capable of meeting the requirement of significant probative value for admission as tendency evidence. 7. As was noted in McPhillamy; "…generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value:" joint judgment at [27]. 8. The tendency on which the prosecution relies must be given some specificity so as to enable a determination to be made as to whether, and in particular how the sexual interest was made manifest. 9. The judge has to understand what the evidence is intended to show a jury about how the Accused acted on his sexual interest. An example where the evidence was not sufficient is McPhillamy. There the Court found that the complainants "B"'s and "C"'s evidence established no more than that a decade before the subject events the appellant had sexually offended against each of them. And, that proof of that offending was not capable of affecting the assessment of the likelihood that the appellant committed the offences against "A" to a significant extent. As "A"'s allegations occurred in different circumstances and 10 years later the proposed evidence showed no more than McPhillamy had offended again, and that he was the kind of person who was more likely to have committed the offences that "A" alleged. That tendency evidence did not meet the threshold requirement of s 97(1)(b) Evidence Act because of the time gap and because the tendency was expressed at a high level of generality. 10. Hughes on the other hand involved tendency evidence that was led to establish the commission of multiple offence allegations from multiple complainants, despite some dissimilarity, it was admitted. There the majority held that, taken as a whole, the evidence of each alleged sexual offences and other uncharged acts, demonstrated this common feature - that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. 11. As the Court in Bauer noted, referring to Hughes, at [58]; "In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account of the offence under consideration is true." 1. The Court in Bauer however contrasted Hughes, with a single complainant sexual offences case where the question is; can evidence that the Accused has committed one sexual offence against the complainant be significantly probative of the Accused having committed another sexual offence against that complainant? In such situations it was held that, "there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other": At [60]. 2. The Court reasoned that: "the commission of one sexual offence against a complainant, taken in conjunction with evidence of another sexual offence against the complainant suggests that the accused has a sexual interest in or sexual attraction to the complainant and a tendency to act upon it as occasion presents. That is so because, where one person is sexually attracted to another and has sought to fulfil that attraction by committing a sexual act with him or her, it is the more likely that the person will continue to seek to fulfil the attraction by committing further sexual acts with the other person as the occasion presents.": At [60]. Determination 1. The proposed Counts 6 to 11 each involve allegations Johnston engaged in inappropriate touching of a girl aged between 12 and 16. In each case he had the trust of the child's carer. In each case he was alone with the child. In most instances his actions progressed and were accompanied or preceded by comments about the child's appearance. Each prima-facie indicates a sexual interest in and attraction toward girls of that age and a willingness to act on that interest when opportunity could be taken advantage of. Each allegation involved history of and a progression of inappropriate touching. In particular, by his having established relationships of trust with carers of girls under the age of 16, creating opportunities to touch those girls, including - sitting closely with girls; kissing them; touching their breasts, and rubbing their inner thighs and genital areas. 2. The allegations if proved could, collectively, help establish that Johnston had that particular state of mind and that he acted in the particular ways alleged. 3. The evidence is relevant. The evidence would have substantial probative value if admitted both as between complainants and in support of the allegations specific to them. 4. Prejudice includes the risk that the evidence will be given too much weight by the jury (reasoning prejudice) or that it's impact may destroy the fact finders objectivity (emotional prejudice). Such prejudice could arise if the jury: 1. May wish to punish the offender for socially unattractive, emotionally charged or uncharged criminal behaviour; 2. Incorrectly assess the probative value of the evidence; 3. Otherwise use the material in a way unconnected with the issues; and 4. Use the material contrary to the judge's directions. 1. The risk of unfair prejudicial effect is that the jury might reason from the multiplicity of matters that the number and nature of allegations is such that they not examine and determine each allegation or that they might have an emotional response to the allegations and their source from three girls and conclude Johnston is generally a person of bad character. 2. Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence: Festa v The Queen (2001) 208 CLR 593 at 602-603 [22] per Gleeson CJ: The Queen v Dickman [2017] HCA 24 at [48]. 3. So far as the proposed Counts 6 to 11 are concerned, such risks will of course be there, however careful and strong directions can and will be given to ensure the jury focus on their task. The probative value of the evidence to the prosecution is high and the risk of prejudice manageable. The tendency evidence can be admitted for Counts 6 to 11. 4. That said the Notice in its terms is too broad and will need to be revised. 5. As to Counts 1 to 5 inclusive: Each allegation is of much more serious criminal activity than that alleged by Christine for Count 6 and by Monika and Natalie for Counts 7 to 11, serious though they are. Each of Counts 1 to 5 concerns a crime said to be committed against a 7 year old. Only the allegations made by Christine in Counts 1 to 5 involve acts of sexual intercourse or exposure to and touching of the Accused's penis. 6. The indecent assault, proposed Count 3, involves hand on genital area skin contact: generally such touching brings the matter into objectively the mid-range level of offending: GSH v R; R v GSH [2009] NSWCCA 214, per Latham J. There are also four allegations of sexual intercourse with a child under 10 involving penile and digital penetration of a child's vagina and oral intercourse - both fellatio and cunnilingus. Those allegations occur in situations only peripherally similar to the later allegations. 7. These first 5 Counts involve allegations that are of a different type and order of seriousness to the proposed Counts 6 to 11. The age of the child is different. There is, understandably, little evidence of the child's perception of pre-offence behaviour. 8. There is, with great respect to the Crown's submission, a potential difference in a person's state of mind between that which involves gratuitous and criminal touching of a teenager or pre-teen and repeated sexual intercourse with a child of 7. While it can be argued that a sexual interest in children is enduring, as the time frame evidence before me indicates, at least at a prima facie level, here the manner in which the accuse is alleged to have acted on that interest differs significantly as between the proposed Counts 1 to 5 and 6 to 11. How a person acts on that interest should show some consistency. 9. A person who has a tendency to indecently assault pre or early teens by touching them or kissing them may not have a tendency to digitally penetrate, or indulge in masturbation, fellatio, cunnilingus or penile vaginal sex with a 7 year old. That there are some similarities, such as relationship and each child being alone with the Accused, are also typical of this sort of both types of offending – in fact, most child sex offences. 10. The tendency evidence proposed allows for no discrimination so far as both the Accused state of mind and willingness to act on it is concerned. The evidence in relation to Counts 1 to 6 is not substantially probative of Counts 7 to 11 - relating to the complainants Monika and Natalie. 11. Even if it were substantially probative the leading of allegations of sexual intercourse with a child under 10 in a Crown case involving indecent touching of children over 12 carries such a risk of prejudice both reasoning prejudice and emotional prejudice as to require that the evidence of Counts 1 to 5 not be used against the defendant as part of the Crown's proof of Counts 7 to 11. 12. That said, the evidence in relation to Counts 1 to 5, and for simple utility Count 6, is admissible to show that Johnston had a sexual interest in Christine and that he acted on that interest. Further, evidence of other but uncharged acts of a sexual nature by Johnston toward Christine can also be used for that purpose. Separate trials 1. A trial must be fair to both the Accused and prosecution. Trials should as far as possible be conducted efficiently with minimum necessary costs. If the evidence on one Count is admissible and relevant to a determination of the other they should be heard together for the sake of simple utility. If the evidence on one Count is not admissible or relevant to determination of the other two questions have to be asked: 1. What utility is there in the Counts being heard together, and if there is such utility? 2. Is there any risk of prejudice to the Accused if the Counts are not severed? 1. Although relating to common law principles the following comments of McHugh J are opposite: "If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation. The judge must compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence is admitted. Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.": Pfennig v the Queen [1995] HCA 7; (1995) 182 CLR 461 at [40] 528-9. 1. The proposed tendency evidence from Christine White is not admissible in the trial of the Counts relating to Monika Brown and Natalie Green (with the possible exception of Count 6). The proposed tendency evidence in relation to Christine White is not admissible in the trial of the Counts relating to Monika Brown and Natalie Green. There is thus no utility in hearing all the Counts together and the risk of prejudice is real. 2. Accordingly, Counts 7 to 11 should be separated from the proposed indictment. Orders 1. Accordingly, Counts 7 to 11 should be separated from the proposed indictment. 2. Tendency evidence about the Accused's alleged sexual interest in Christine and tendency to act on that interest is admissible in the proposed trial of Counts 1 to 6. 3. Tendency evidence about the Accused's alleged sexual interest in Monika and Natalie and tendency to act on that interest is admissible in the proposed trial of counts 7 to 11. 4. The application for tendency evidence about the Accused's alleged sexual interest in Christine and tendency to act on that interest to become admissible in the proposed trial of Counts 7 to 11, is adjourned to a date to be fixed. ********** Amendments 20 March 2019 - Non publication order and name edited DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2019