The Queen v SJL  NTSC 43
PARTIES: THE QUEEN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING
FILE NO: 21020072
DELIVERED: 7 March 2011
HEARING DATES: 7 March 2011
PUBLISHED TO THE PARTIES: 15 June 2011
JUDGMENT OF: BLOKLAND J
CRIMINAL LAW – Pre-trial Rulings – question of admissibility of certain admissions made by the accused to police in EROI – consideration of prejudicial effects and probative value of admissions.
Parts of EROI exercised – unfair to admit significant portion of EROI – prejudicial questioning rendered parts inadmissible.
Parts of EROI admitted – Evidence of misconduct or uncharged Acts only admissible on certain strict conditions – Crown sought to rely on this type of evidence as proof of a forensic lie, consciousness of guilt and sexual interest – such evidence is highly probative – it is not prejudicial in an impermissible sense – this material is admitted.
Brian Leslie Wills (1985) 16 A Crim 247; The Queen v Mervyn Massey  1 Qd R 484; Van Der Meer and Others v R (1988) 82 ALR 10; applied
Edwards v The Queen (1993) 178 CLR 193; R v Grills (1910) 11 CLR 400; R v Nieterink (1999) 76 SASR 56; R v Sakail  1 Qd R; Tully v R (2006) 230 CLR 234; referred to
R v C (1991) 59 A Crim R 46; Pfennig v The Queen (1995) 182 CLR 461;
HML v R  235 CLR 334; considered
Prosecutor: Ms Wooldridge
Accused: Mr Baker
Prosecutor: Office of the Director of Public Prosecutions
Accused: Northern Territory Legal Aid Commission
Judgment category classification: C
Judgment ID Number: BLO 1107
Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
The Queen v SJL  NTSC 43
CORAM: BLOKLAND J
PRE TRIAL RULINGS
(Delivered 15 June 2011)
 On 7 March 2011 I made a number of rulings on the admissibility of certain admissions made by the accused to police. For various reasons relating to a principal Crown witness the trial did not proceed at that time. Both parties have needed to change counsel in the interim on a number of occasions. I considered in these circumstances it would be useful to forward both current counsel formal reasons for the rulings made previously prior to empanelling the jury.
 The accused pleaded not guilty to the following counts:
Count 1: Between 1 June 1994 and 16 August 2001, being an adult, maintained an unlawful relationship of a sexual nature with UCM, a child under the age of 16 years. The circumstances of aggravation alleged are that during the course of the relationship the accused had sexual intercourse with UCM without her consent (contrary to s 192 Criminal Code (NT)) and had unlawful sexual intercourse when UCM was under the age of 14 years.
Counts 2-6: These counts are all alleged in the alternative to count 1. Each count alleges one count of sexual intercourse without consent contrary to s 192(3) Criminal Code (NT). The first in time (counts 2 and 3) each allege one count on a date unknown between 15 August 1995 and 16 August 1997. The last in time (count 6) alleges a date unknown between 1 January 1999 and 16 August 2001.
 Counsel for the accused sought to have the whole record of interview (ROI) excluded because it was submitted its prejudicial effect, (including admissions of sexual contact between the accused and the complainant at time after the alleged offences), outweighed its probative value. It was submitted that the style of questioning by investigating officers in significant parts of the ROI should enliven the discretion to exclude. The impugned parts of the ROI primarily related to questions formulated by police that repeated allegations of the complainant, sourced directly from her police statements. The materials which I based my decisions on were primarily two statements by UCM and the transcript of a ROI between the accused and Officer David Allan conducted on 24 March 2010.
 Ultimately I decided to excise parts of the ROI rather than exclude the whole. As will be seen, I formed the view that it would be unfair to admit a significant portion of the ROI, however not all parts would be prejudicial and some parts were highly probative of certain facts.
 Briefly by way of background, the statements of UCM allege a number of incidents of sexual assault perpetrated on her by the accused over an extended period from when she was 8 years old until she was 15 - 16 years of age. She regarded the accused and his wife as foster carers with whom she lived after her grandmother became ill and then passed away. Corresponding to this, in the ROI the accused stated “I was supposed to look after her” and when asked whether he saw the complainant as one of his children said “It’s hard to say, I suppose I did”.
Parts of the Record of Interview Excluded
 In excluding parts of the ROI, I was guided by the authorities dealing with prejudicial questioning when it is formulated directly from a complainant’s statement in circumstances where the accused is not in a position to properly comment.
Another unsatisfactory aspect of the trial was the form of the interrogation of the appellant by the detective. An interrogation consisting of questions beginning “Do you recall?” is objectionable except in the special case of a legitimate inquiry into the suspect’s memory as to certain events. The form of the questions in the interview with this appellant had the practical effect of denying him the opportunity of outright denial of the allegations. This rendered the interrogation quite unfair. The unfairness was accentuated by the question, “Is there any reasons why you can’t recall any of these events which I put to you?” with its assumption of the truth of the allegations which had been put to the appellant. It was further accentuated by the submission of counsel for the prosecution to the jury based upon the appellant’s failure to make an emphatic denial and the learned judge’s repetition of that argument without comment. It seems that objection was not taken to the interrogation as a whole. Probably counsel felt that the answers were of value to the appellant. If objection had been taken, I think that the interrogation should have been excluded on the ground of unfairness. The question as to the reason for non-recall referred to above, was objected to and, in my opinion should have been excluded as unfair. The unfairness from the admission of that question and the answer to it was compounded by the omission of the learned judge, when repeating counsel’s argument as to non-denial, to point out the fallacy of the argument in the light of the form of interrogation.
 Further, White J stated:
The fair and proper form of questioning was to put the allegations of the prosecutrix to him and invite his comment thereon. In this way he would have been invited to face up squarely to each allegation and given a fair opportunity of making his answer by way of denial, affirmation or qualification. However, the persistent interrogation in the form of questions (there were twenty-three questions in all) which stated the girl’s allegations as if they reflected events which actually happened and introduced or followed each allegation, so represented, by the rider “Do you recall?” had a number of prejudicial consequences. It assumed, or gave apparent validity to, the girl’s allegations, it denied to the accused each time a fair opportunity to make his reply without departing from the form of the question and it tended to deflect the attention of the accused away from the substance of each allegation and towards the subject matter of his own memory or recall. It is unfair to keep asking a suspect or an accused person whether he can recall an event when the real question is whether or not that event actually occurred.
 I note also what was said in Van Der Meer and Others v R by Deane J:
The questioning by police of a suspect held in custody should not take the form of assertions that others have made allegations against him. As Isaacs J pointed out in R v Grills (1910) 11 CLR 400 at 422: “It is an elementary role of law, going to the very foundation of justice, that no man shall be judged to be guilty of a crime upon evidence of another person’s previous assertion. It matters not whether the assertion was made in the absence or the presence of the accused, as a mere assertion it cannot be regarded as any proof of the culpability of the accused or any confirmation of his accusers”.That being so, the repeated assertion in the course of the interrogation of a suspect that allegations have been made against him by others is likely to make the record of what was said in the course of that interrogation unfairly prejudicial to him. Even if the allegations are deleted from what goes before a jury, it will often be apparent to an intelligent juror that the record of what was said has been edited to protect the accused from damaging material. It is also likely to lead to over bearing cross-examination by the police instead of dispassionate questioning to remove ambiguity in a confessional statement and to “intimidation, persistent importunity, or to sustained or undue insistence or pressure” of a kind which will preclude the resulting statements made by the suspect from being properly regarded as voluntary …”
 The bottom of page 33 of the transcript of the ROI through to the bottom of page 35 and part of pages 37, 38, 44 and 45 contain long recitations from the complainant’s statement with barely a comment by the accused. In my view they fall into an inadmissible category, prejudicial and of no probative value. To preserve the relevance of time frames for the accuracy and internal integrity of the remaining ROI, I have admitted the following parts from page 38 ROI:
Allan: When I was about 12 years old and I was in grade 8 at Nightcliff he started saying to me that he would leave me alone, he said – um – and she quotes here, “I’ll leave you alone when you have a boyfriend”. (Excluded the next question and answer). “But he never left me alone he kept on having sex with me. He started threatening me around the same time”.
SJL: Threaten me?
SJL: This kids a fucken liar.
 I excluded part of pages 12 and 13 of the ROI on the basis it was wrong to suggest, as Officer Allan appeared to, that it was the Judge who would decide whether a person was guilty or not and list a range of potential penalties.
 By consent, certain other questions, answers and formal references to the complainant’s statement were also excluded.
Parts of the Record of Interview Admitted
 I admitted parts of pages 25 and 26 over objection. Those parts are as follows:
Allan: All right. I’m just going to read you out a little bit of UCM’s statement in particular reference to the incident that we’ve just been talking about. UCM says in paragraph 12 of her statement “I also remember the same year his wife caught him having sex with me”.
SJL: Having sex with her?
SJL: I never had sex with her.
Allan: “I can’t remember what time of the year it was but I was in grade 8 at the time and I was going to Nightcliff High School. It was night time and I was sleeping in my nightie and shorts and I woke up and he has removed my shorts and was on top of me and he already was inside of me and was having sex with me”?
SJL: That’s bullshit.
Allan: “I was lying on my back and then I remember that his wife walked in to the room. He jumped up, got off me and I was still in bed. She picked up a broom and she held it up to him and said don’t do that”.
SJL: I’ve never had sex with her.
Allan: Okay. All right. So you – um – you and your wife have separated and you’re living in different residences – um – you think its because your wife has – or she’s told you about an incident – um – inside UCM’s room which we’ve just discussed.
 I allowed this part of the record of interview to be admitted over objection as although Officer Allan refers to and reads from the complainant’s statement, its purpose was to introduce an important substratum of the allegations, namely that the accused’s wife caught the accused having sex with UCM. In my view that part of the questioning does not cause the prejudice or lead to the type of unfairness that I acknowledge may be caused when allegations are continually put to an accused for comment. The accused in this part of the ROI interjects and denies certain of the allegations which are significant in the overall context of the case. He is not being asked simply whether he recalls certain things, or asked in a way that assumes the existence of certain facts. The jury can be told that questions themselves are not evidence of any fact, but provided that is done, that part of the record of interview is not in my view prejudicial and perhaps unusually has significant probative value in the overall context of the case.
 I also allowed certain questions and answers to be admitted on pages 31 and 32 as I was of the view they were questions of genuine clarification rather than straying into the impermissible areas as set out in the authorities:
Frost: Okay. You also said that – um – you don’t remember anything of that previous night but when Constable Allan – Detective Senior Allan asked you about where was UCM at that time you stated that she was in her bedroom. How did you know that?
SJL: Well she’d have been in bed by that time of night because we were drinking all night, we don’t drink until they go to – like we don’t start drinking until they went to bed.
Frost: And what time was that normally?
SJL: Oh about eight o’clock.
Frost: Hmm, and who was – who was in there with her at that time?
Frost: Okay. Yet she said you started drinking at 5.30, 6 o’clock, is that correct?
SJL: When I was drinking heavy until – after they went to sleep I started drinking heavily.
 I did not exclude statements concerning alcohol and drug consumption. In later parts of the ROI when the accused speaks of intoxication by alcohol and other drugs it is inextricably linked with admissions that he had sex with the complainant. That admission is in relation to sexual intercourse outside of the time period charged in the indictment. In my view any prejudice arising from the fact of taking alcohol and other drugs is more appropriately dealt with by way of direction. To remove those references would give an entirely different description, potentially a distortion of the relevant events.
 The more contentious parts of the record of interview admitted into evidence were the statements by the accused that he had sex with the complainant “Maybe twice when she was fifteen, not any other age”. He tells police this happened when he was living in Wood Street. He denies having sex with the complainant on any other occasion. In the ROI he is unable to recall details of how the sex came about other than he believed it was night time; it was after the complainant came home and that he had been working during the day. He thinks he took “speed” on the first occasion. He says he probably drank about half a bottle of what could have been scotch. In relation to the second occasion he again states he believed the complainant was fifteen and cannot give many details, beyond the similar description given in relation to the first occasion.
 It appears to be common ground that although the accused tells police he believes the complainant is 15 years of age at the time sexual intercourse took place, if the sexual intercourse did occur at Wood Street, by deduction based on the evidence available to the parties the complainant would have been 17 years of age. The complainant refers in her statement to later incidents of sexual intercourse with the accused.
 On behalf of the accused R v C was relied on for the well accepted proposition that evidence cannot be led of misconduct or uncharged acts outside of the subject charges save on certain strict conditions. The unfairness in R v C was that the complainant was permitted to give evidence of uncharged acts where the accused was denied the right to cross-examine her in relation to other sexual activity which may of itself have thrown doubt on her reliability. There was potential for her to have mis-identified the perpetrator.
 The Crown seeks to lead the evidence for an entirely different purpose than in R v C. First the Crown seeks to rely on the evidence as proof of a forensic lie, or consciousness of guilt in respect of the earlier answers given by the accused that he had “never had sex with her”. If admitted, directions in accordance with Edwards v The Queen will need to be given. In this instance the accused appears adamant at the commencement of the ROI that he “never” had sex with the complainant but later admits to having sex with her when he says he believes she was 15 years of age. It is highly probative in the manner the Crown seeks to lead it. If accepted, false denials are not uncommonly suggestive of guilt. It is not prejudicial in an impermissible sense. The jury would need to consider first whether the earlier statement was a deliberate untruth and secondly whether there was a reason consistent with innocence to state in the earlier parts of the ROI he “never had sex with her”. In the circumstances in my view this material should be permitted to be before the jury.
 The second way the Crown says the evidence is admissible is to prove the accused had a sexual interest in the complainant in the context of a relationship where he was in a foster father relationship with the complainant. This in my view is a rare instance where the Crown should be permitted to lead the evidence as probative of sexual interest especially given the familial nature of the relationship. If the jury accept sexual intercourse took place when the complainant was 17 years of age, in my view it renders as more probable the complainant’s account of the nature of the relationship between them. To use the evidence in this way the jury would have to be satisfied of it beyond reasonable doubt. I am conscious this is the reverse of the more common situation where for certain purposes evidence of uncharged acts pre-dating the date of the offences charged might be led. I understand this alleged sexual contact was in 2003, approximately two years outside of the charges on indictment.
There is authority that on a charge of an offence of a sexual character, it is open to the prosecution to lead evidence of prior sexual acts between the same parties. The leading case is R v Ball  AC 47 (a case of incest), which has been followed in Australia on many subsequent occasions (citations of authorities omitted). The basis for admitting evidence of similar acts on occasions other than that or those specifically charged has been variously stated. In R v Ball … Lord Loreburn LC said it was admissible to establish “a guilty passion towards each other”. That explanation has been adapted in some of the later cases: see, for example, R v Wilham  Qd R 49 at 77. R v Ball was a case of incest between brother and sister, where evidence of a mutual sexual passion might be thought to go far to proving an offence of that kind. On occasions it has been rationalised as tending to show the existence of an unnatural or unexpected relationship of sexual intimacy, as in the case of incest and sodomy between father and daughter: R v Wilham at 81. In the same case, Stable J concluded that the true basis of admission is that the evidence forms “part of a chain of relevant circumstances explaining the prisoner’s conduct and the exclusion of which would render the other evidence unintelligible or make it impossible for the jury to obtain a proper appreciation of the events of a particular day”.
 In the context of this ruling, The Queen v Mervyn Massey is instructive as it is a rare case where evidence of a later incident was capable of being used to corroborate an earlier incident or incidents. I appreciate the point of distinction is the later conduct was included as a further count on the indictment, rather than as here not forming part of the charges. McPherson and Demack JJ relied on a series of cases confirming circumstances where conduct occurring after the conduct charged has been held to be admissible as proof of the sexual side of the relationship between two persons, some times referred to as guilty passion.
 In R v Sakail Macrossan CJ cautioned that if there were evidence of a sexual relationship, but there had not been any contact “for the last ten years”, that might be regarded as showing nothing about the relationship between two persons at the relevant time.
 In these proceedings, favouring admission is the young age of the complainant at 17 years of age, that the accused states he thought she was 15 years of age, that the proposed evidence is that it occurred no more than two years after the alleged unlawful sexual relationship and that it is against the background of the admitted foster father-child relationship. These factors, drawn together in my view are capable of showing relevant sexual interest on the part of the accused towards the complainant. That both the accused through the ROI and the complainant in her statement provided evidence of the sexual contact at that time gives the evidence particular cogency.
 The proposed evidence is not being led on a general or bare propensity basis that would necessarily attract the test as set out in Pfennig v The Queen, (that before admission it must be accepted there is no reasonable view of the evidence consistent with innocence). This case is much more specific and in the nature of proving sexual interest in the context of this particular relationship. Given the complainant was over the age of consent at the time, it is not an uncharged act as such. The particular sexual contacts are not alleged to be offences. I note the comments of Doyle CJ in R v Nieterink regarding the question of uncharged criminal acts in cases involving young complainants. Where the context of the uncharged acts was important and other conditions of admissibility were satisfied, His Honour was of the view the test in Pfennig was not essential. His Honour says:
Be that as it may, for present purposes the question is whether evidence of uncharged criminal acts is admissible even though it does not meet the test stated in Pfennig, if the evidence is admitted and used to put in context (I will continue to refer to context for convenience, although I repeat that in a direction to the jury it is necessary to be more specific) the evidence of the offences charged and is not used to support a line of reasoning that involves inferring from the fact and nature of the uncharged acts that the accused is likely to be the offender (as in an identity case) or committed the crime in question (as in a similar fact case). If such evidence is admissible, the question then is whether the evidence was admissible in the present case on that basis.
I am satisfied that such evidence is admissible. That is, that there is a category of evidence disclosing other criminal conduct by the accused that is admissible without satisfying the test stated in Pfennig. I am satisfied that the examples that I have given are proper applications of the law of evidence.
 I note Doyle CJ’s reasoning was approved in Tully v R by Callinan J and considered without critique in HML v R, which recognises evidence of uncharged acts in the context of sexualised family relationships. In summarising various views on the subject Gleeson CJ stated in HML “If it appears that a parent has a sexual desire for a child, then that may make more credible the child’s allegation that a particular alleged sexual incident occurred”. There appears to be divergent views in HML v The Queen on the question of the application of the Pfennig test in cases of this kind.
 In my view the evidence of the admission possesses significant probative value in terms of proof of the accused’s sexual interest in the complainant in the context of a family relationship at a time when he believed she was 15 years of age. I cannot see a reasonable view of the proposed evidence consistent with innocence in the sense of proving anything else but a sexual interest. The accused has provided this information himself to investigators.
 The ROI, (albeit edited as discussed), in my view is relevant, probative and admissible. It explains the family living arrangements, the perception of the accused as to his relationship and responsibilities towards the complainant, evidence on the various places the family resided, evidence of an incident that while denied, it is agreed led to his wife taking certain actions and the evidence of the two later occasions of having sex with the complainant.
 For these reasons I made these various rulings on 7 March 2011.
 The court was advised by prosecuting counsel at the most recent pre-trial mention there may be an amendment to the relevant time period on the current “Ex Officio” Indictment of 4 January 2011. These counts are set out in abbreviated format.
 20 May 2009 and 7 April 2010.
 (1985) 16 A Crim 247.
 At 248 – 249.
 At 253.
 (1988) 82 ALR 10 at 38. See also R v C (1991) 59 A Crim R 46.
 Page 39 Transcript ROI.
 Pages 42 & 46, Transcript ROI.
 Statutory Declaration, 7 April 2010.
 (1991) 59 A Crim R 46.
 (1991) 59 A Crim R 46 at 59.
 Pages 25 and 26, Transcript ROI.
 (1993) 178 CLR 193.
 S v R (1989) 168 CLR 266, per Toohey J at 279; evidence bearing on the relationship between accused and complainant over time is not being used to show propensity. Gipp v R (1998) 194 CLR 106; R v Vonarx  3 VR 618; B v The Queen (1992) 175 CLR 599; KRM v The Queen (2001) 206 CLR 221.
  1 Qd R 484.
 At page 3.
 Their Honours relied on R v TJW, ex parte the Attorney General  2 Qd R 456; R v McCann  Tas SR (NC)3; R v Sakail  1 Qd R 312.
  1 Qd R at 319.
 (1995) 182 CLR 461.
 (1999) 76 SASR 56.
 (2006) 230 CLR 234.
  235 CLR 334.
 At 353.
 Gleeson CJ was of the view if the evidence of uncharged acts was not left as motive, and there was direct evidence of the acts charged, the Pfennig test did not apply. Gummow, Kirby and Hayne JJ held such evidence should be excluded where there is a reasonable view of the similar fact consistent with innocence. Crennan J held Pfennig should not be extended to such cases. Kiefel J held the test is whether an explanation of the conduct charged remains after the admission of such evidence which is consistent with the accused’s innocence.