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R v NPK QDCPR 69
DISTRICT COURT OF QUEENSLAND
R v NPK  QDCPR 69
Pre-trial application pursuant to s 590AA Criminal Code
District Court at Cairns
10 October 2019 ex tempore
9 October 2019
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – PREJUDICIAL EVIDENCE – where the defendant is charged with two counts of indecent treatment of a child, and one count of attempted indecent treatment of a child – where the complainant made a pretext phone call to the defendant – where the defendant applies for a ruling that the evidence of the pretext call be excluded on the basis that it is irrelevant and unfair – whether the probative force of the evidence outweighs its prejudicial effect – whether evidence of the pretext call should be excluded
Criminal Code 1899 (Qld) s 590AA
Evidence Act 1977 (Qld) s 130
R Logan for the applicant
A Dunkerton for the respondent
Philip Bovey & Company Lawyers for the applicant
Office of the Director of Public Prosecutions for the respondent
HER HONOUR: In this matter the applicant is charged with three counts on indictment: two counts of indecent treatment of a child under 16, who is a lineal descendant, under care and one count of attempted indecent treatment of a child under 16 (procure to commit), who is a lineal descendent, under care.
Counts 1 and 2 allege that on an unknown date between the 13th of May 2013 and the 1st of January 2014 the defendant unlawfully and indecently dealt with his biological daughter. At that time, she was under his care and 13 years old. Count 3 alleges that on an unknown date between the 13th of May 2013 and the 1st of January 2014 he attempted to unlawfully procure her to commit an indecent act.
The particulars of the counts are as follows.
- Count 1 is that the defendant went into the complainant’s room, lay on the bed with her and touched her breasts under her nightie.
- Count 2 is that he then touched her vaginal area under her underwear.
- Count 3 is that he then asked her to touch his penis.
There are no other allegations of discreditable conduct or uncharged conduct of a sexual nature.
In September 2018, when the complainant was 18 years old, she disclosed the offending to her mother and her two sisters.
On 4 October 2018 she made a formal statement to police. Later the same day, while at the police station, she made a pretext telephone call to the defendant. It lasted less than 10 minutes.
The prosecution proposes to adduce evidence of that pretext call.
The defendant applies for a ruling that the evidence of the pretext call be excluded from evidence on his trial on the ground that it is irrelevant and that it should be excluded pursuant to section 130 of the Evidence Act 1977 (Qld) on the ground of unfairness.
I have reached the view that the evidence is relevant and therefore admissible and that it should not be excluded. These are my reasons for that decision.
In her written statement to police, the complainant’s evidence, in summary, is this. The defendant is a devout Jehovah’s Witness, as was his wife. They had four daughters. In 2013 the defendant and his wife separated. His wife left the family home. The complainant was then aged 13 years and in year 8 at school. Shortly after the separation the oldest daughter left to live with her mother, but the complainant and her two other sisters remained living with the defendant. For religious reasons, the younger sisters were not given a choice as to who they could live with. They were going to church meetings twice a week and door knocking for the church on weekends. The mother was “disfellowshipped” from the church and was forbidden from having anything to do with the church. The defendant was distressed from the marriage breakup. He was not sleeping and was taking medication for depression.
The complainant gave a detailed description of the house and the sleeping arrangements. At the relevant time, she shared a room with her sister. Shortly after her mother left the home, one night the defendant, the complainant and one of her sisters watched a video called “Spring Break”. She said it featured women in bikinis. Later, the complainant came into her bedroom at night. She says her sister was not there. He laid next to her in bed. He started rubbing her back with his hands and then started rubbing and fondling her breasts. She rolled onto her back. His hands went down under her underwear and touched her vaginal area for 30 or 60 seconds. She froze. He asked her if she wanted to touch his penis. She does not remember whether she responded. She left the room. She does not remember where she went. She thought “Is this right? Why did he do that?” She never spoke to the defendant about it.
Two or three days later, she and the defendant were in a shopping centre and he said to her “don’t tell anyone I fondled your breasts”. She did not say anything. She says she knew that if she told anyone he would be disfellowshipped from the church and she did not want to cause any trouble. She tried to forget about it. That is all she remembers of what the defendant did to her that night.
In 2016, the complainant left the defendant’s home and moved in with her mother and older sister.
The complainant’s mother and sisters provided written statements to police. They confirmed her preliminary complaint. Their account of what the complainant told them is generally consistent with the complainant’s account.
The mother also confirms the timing of her leaving the family home, the layout of the house, and that she did not take the other girls with her when she left because the church, including her family and friends, would have shunned her and the girls.
The complainant’s sister provided a statement in which she says, amongst other things, that she remembers an occasion not long after her mother moved out when the defendant suggested that they watch the film “Spring Break”. She describes it as a movie about drugs, sex and “chicks in bikinis”. She says she was surprised as the defendant would never let them watch something like that.
She remembers the complainant being there. Both sisters left the defendant watching the film in the loungeroom. She says he fell asleep on the couch.
The pretext call between the complainant and the defendant was conducted at the police station. There is no suggestion that the evidence was obtained in circumstances which would make it unfair to use against the defendant. In the call, the following exchanges occurred.
The complainant said:
I’ve been thinking about something for the past five years.
The defendant says:
Yeah. And what’s that?
The complainant responds:
It’s I just wanted to know why you touched me inappropriately after Mum left?
The defendant responds:
Darlin’, remember you kept coming into the thing and I actually, I actually, and that was about two, two, that was about two weeks after (indistinct).
The complainant responds:
Yeah, I know, you were in a bad way.
The defendant continues:
And, no, no, no. But the thing is, the thing is I actually just woke up and I was, I was actually in the sleep then after, after that happened I actually in the morning I actually pulled you aside and said that you cannot come into my bedroom like that and I actually explained –
The complainant responded:
I do not remember that.
I remember you coming into my room.
The defendant responded:
No, no, no. Wait a second. I actually came, came in, I pulled you aside like this and I, I explained that I was asleep, I was in, in my mind I was still with your mother. I actually, I actually woke up at that same time and… I apologised.
Later, he says:
I put down orders because that was not me.
Later, he says:
You basically said to me at that difficult time that you can’t even um remember. Now you might have been just saying, or saying that, um, at that particular time.
Later, the complainant said to him:
But now I’ve had a think about it, it feels so uncomfortable to me.
In response, the defendant said:
Yes and that, that thing should never happened, it’s actually a de-, detestable thing, um, to happen. It, it’s a thing that you know I do absolutely, um ah hate, I at all, um, so, those those um ah sort of things. I hate that thing with anybody that do those things.
The applicant defendant first submits that the conversation contains no relevant evidence and is therefore inadmissible. In her written outline, the applicant’s counsel contends that the statements by the applicant are not admissions to the offending, nor can they be used as generalised sexual misconduct. She argues that the complainant did not particularise any sexual misconduct and that the complainant considers her to be talking about another event that occurred in his bedroom, which is neither charged nor in the evidence of the complainant. Counsel further contends that the applicant’s comments to the complainant about this cannot be characterised as comments of a sexual nature as they are so ambiguous.
I do not accept the submission that the applicant’s comments are entirely ambiguous or equivocal.
The difficulty with the applicant’s submission is apparent from the extracts of the transcript I have referred to. Having been alerted to the general allegation that he touched her inappropriately after her mother left, the applicant does not deny the allegation. Rather, the first thing he does is seek to give an explanation for it. He says “remember, you kept coming into the thing and I actually, I actually, and that was about two, two, that was about two weeks after…after that happened…and I actually explained…I explained that I was asleep, I was in, in my mind I was still with your mother.”
In my view, those words are reasonably capable of amounting to an admission of sexual conduct, coupled with an attempted explanation that he was either asleep or was thinking of the complainant’s mother at the time.
Later, in the transcript after the complainant says “it feels so uncomfortable to me” the applicant responds “that thing should never happened, it’s actually a de-, detestable thing, um, to happen.” He also refers earlier to apologising to the complainant. In the context of the preceding discussion and what the complainant said, in my view those words are also reasonably capable of constituting an admission to sexual conduct.
Such evidence is capable of being seen by the jury as a statement acknowledging that some conduct of the sort alleged did, in fact, occur albeit that the defendant referred to it occurring in his bedroom rather than the complainant’s.
The nature of the defendant’s responses and the absence of a denial might also arguably suggest a consciousness of his own guilt. For completeness, I record that in addition to reviewing the transcript, I have listened to the audio recording of the pretext call.
Where such conduct, assessed in light of all admissible evidence, is capable of proving a fact in issue or demonstrating a consciousness of guilt on the part of the defendant, the evidence should be left to the jury to determine if it has that effect. That is the case here.
It follows that evidence of the pretext conversation is admissible, subject to the application of any relevant exclusionary rule.
The applicant further submits that to admit the conversation would be significantly prejudicial and that it carries no probative value.
Section 130 of the Evidence Act 1977 (Qld) confirms the operation of a residual discretion at common law which is directed to preventing unfairness to an accused.
It permits the court to exclude evidence where its prejudicial effect exceeds its probative value.
When considering that question, consideration may be given to directions which may be given to the jury that may reduce the prejudicial effect of the evidence.
The balancing exercise is between the probative value of the evidence in the trial and the possibility of prejudice to the prospects of a fair trial. It is not a matter of whether the overall effect of the evidence is more prejudicial to the defendant than it is beneficial to the Crown case.
It is not “prejudice” that might damage the defendant’s case through direct proof of the effect. Inculpatory evidence is always prejudicial to a defendant’s case. It is not damage to the defence case, which is relevant, but damage to the prospect of a fair trial. Fairness is undermined if evidence, although probative, may inflame a jury, causing them to ignore the rights of the accused. If the probative value of such evidence is not great, then it may be unjust to receive it. Exclusion should occur only when the evidence is of relatively slight probative value and the prejudicial effect of its admission should be substantial.
That is not this case. The probative value of the evidence is not, in my view, slight. None of the matters raised by the applicant persuade me that to admit the evidence would be unfair.
It is for the jury to determine whether or not the words amount to an admission and what weight, if any, the admission should be given. The evidence should be admitted. Any potential prejudice could be adequately dealt with by the usual directions for the admission of such evidence which a jury is presumed to follow.
The defendant’s application to exclude the pretext call is dismissed.
- Published Case Name:
R v NPK
- Shortened Case Name:
R v NPK
 QDCPR 69
10 Oct 2019