R v Karnbaladj  NTSC 85
PARTIES: The Queen
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 21212911
DELIVERED: 26 OCTOBER 2012
HEARING DATES: 17 OCTOBER 2012
JUDGMENT OF: KELLY J
Plaintiff: M Nathan with D Jones
Defendant: E Armitage with B Wild
Plaintiff: Office of the Director of Public Prosecutions
Defendant: North Australian Aboriginal Justice Agency
Judgment category classification: C
Judgment ID Number: KEL12024
Number of pages: 13
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
R v Karnbaladj  NTSC 85
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 26 October 2012)
 The accused has been charged with one count of aiding DN’s father (“the father”) to have sexual intercourse with DN without her consent, knowing about or being reckless as to the lack of consent and (in the alternative) one count of aiding the father to have sexual intercourse with his daughter (DN) who was a child under the age of 16 (counts 1 and 2); also one count of indecent dealing with DN (count 3); two counts of exposing DN to an indecent act by herself and another person (counts 4 and 6); and one count of intentionally exposing DN to an indecent film (count 5).
 Particulars of the alleged offences have been provided by the Crown. On counts 1 and 2 (which are in the alternative) the Crown alleges that the father, placed his penis in the complainant’s vagina without her consent and the accused aided him by saying to her, “[D], just relax. It won’t take that long.” On count 3, the Crown alleges that, on the same occasion as counts 1 and 2, the accused rubbed the complainant’s breasts while the father engaged in penile intercourse with her. On counts 4 and 6, the Crown alleges that the accused and the father engaged in sexual intercourse while the complainant was present. On count 5, the Crown alleges that the father and the accused forced the complainant to watch a pornographic video depicting adults engaged in sexual activity immediately before the act which forms the subject of count 6.
 The prosecution seeks to lead evidence from the complainant of other sexual assaults committed against her by her father on two occasions when the family went to the beach. It appears that these two occasions are alleged to have occurred after the conduct which forms the basis of counts 1, 2 and 3 and before the conduct which forms the basis of counts 4, 5 and 6.
The first beach incident
 On the first incident at the beach, the complainant says that one night the father and the accused picked her up in a Toyota and they all went to Amandji Balk outstation on Golburn Island to go night fishing. The accused and the father were drinking kava. The accused said something like, “Oh, I’m going to go out and fish”. The complainant said, “Can we come with you?” but the accused said, “No, stay here.”
 The complainant lay down on the beach because she was cold and tired and the father tried to insert his penis into her vagina; he had a knife.
 The complainant said that while the father was trying to put his penis into her vagina, she kept on moving around, because she didn’t want him to. She says during this process the father “touched her boobs” and kissed her neck which she didn’t like and the accused “was just sitting there doing nothing, didn’t even come up – like to stop him or something like that”. The accused had gone down to the beach to fish and was sitting about as far away from them as a door visible from where the complainant was sitting during the police interview and pointed out by her to police. The moon was out “starting to be full moon”.
 The complainant said that she kicked the father in the guts really hard and ran away crying and pulling her pants on. The father ran after her and shouted at her to come back. Eventually he turned back and told the accused they were going home. He said to the complainant, “Well, you can stay here by yourself. I’m going home.” She waited for him to go back and then she got in the back seat of the car. The complainant said that, while she was in the back seat of the car, the accused said to her, “Why did you run away? Don’t run away like that. Shoulda just stayed there.” Then they drove home. The father refused to drive the complainant home to her mother’s so she got her cousins to drive her.
The second beach incident
 The complainant said that the second beach incident occurred at Undiwalmalk near the airport on Goulburn Island. She was at the beach there with the father, the accused and several of her cousins. The cousins went to Bottle Rock, not far away. The father “was starting to – to – um – do thing again” and the complainant said, “No,” and ignored him. The accused went down near the beach looking for bait on the rocks.
 Then the father told the complainant she should have this experience. She said, “No, you’re my dad and dad’s not supposed to be doing that to them children”. She said to him in language, “No – no.” Then he got the spear and said to her, “I will spear you,” but he didn’t, the two cousins came back. She was afraid he might spear her.
 Then he said, in language, “….. You spear me then [D] cause obviously you don’t want to do it with me,” and she said, “No,” and ran off to the accused. The father was talking “all sorts of stupid ways” saying, “Oh [D], I won’t spear you. I want to die. I will die. I’ll spear you and then my turn.”
 Then they picked up the boys and drove home. The complainant said the father was angry with her on the way home – screaming and yelling – so she went to his aunty’s place for dinner.
 The complainant also said that on one occasion (it is not totally clear but it may have been after they got home from the first beach incident) the accused told her that her (ie the accused’s) daughter had had the same experience. The daughter (who was a child at the time) was deep asleep, the accused was there with her “and then [the father] was doing it to her”. The accused told D that “she told her daughter to relax, it won’t take that long and her daughter did relax and then he was just banging her”. She explained that by that she meant that the father was having sex with the accused’s daughter in front of her mum and that the accused had said her daughter was all relaxed. The complainant said the accused also said, “He does that to make your thing bigger. …. make you get bigger hole so ….. you already have this experience so when you get a man or a husband you will do this.” She said the accused told her, “Now she [ie the accused’s daughter] don’t have to worry about what she’s doing now, she can just go for anything she wants.”
 The defence objects to the admission of any of this evidence.
 The Crown says that the jury can infer from this evidence that on each occasion at the beach the accused must have been aware of the sexual abuse. She was quite close on the first occasion, and given the moonlight and the distance would have seen what was happening – and certainly would have heard the complainant crying, as she ran away pulling up her pants and have heard the father chasing and shouting at her. Yet she did not assist the child, and told her she should not have run away; she should have stayed with the father. On the occasion of the second beach incident, it appears from the order of events related by the complainant that she says the accused was present when the father “was starting to – to – um – do thing again” and she said, “No.” Then, the complainant said, she ran to the accused and the father’s “stupid” talk about spearing her and then himself continued in the presence of the accused. Also, after they got home following the first beach incident (or perhaps on another occasion) the accused had the conversation with the complainant about what she says happened with her own daughter with a view to persuading the complainant that she should submit to the father’s abuse, and that, essentially, it was for her own good.
 Hence, the Crown says, it can be inferred that the accused was aware that the father was sexually abusing the child, and her reaction was not only not to intervene to protect the child, but to actively counsel the child to submit to the father’s abuse. That makes the evidence relevant since it makes it more likely that on the occasions charged, the accused acted on this attitude by encouraging the child to submit and by actively assisting the father to carry out the abuse.
 The defence says that all of this evidence is evidence of discreditable conduct by the accused and so, to be admissible, must pass the Pfennig test (set out below as explained by Hayne J in HML v The Queen). Defence counsel asserts that this evidence cannot pass the test for admissibility in Pfennig as the evidence is equivocal. In relation to the evidence of the two beach incidents, defence counsel submitted that it is unclear how far away the accused was when the sexual abuse took place, and hence unclear whether she would have been aware of it. Therefore, the evidence is open to another, innocent explanation. In support of this contention Ms Armitage for the defence pointed out that, in his statement to police in which he admitted to sexually abusing the child at the beach, the father said that the accused was further away from them when the abuse took place.
 In HML v The Queen per Hayne J (with whom Gummow and Kirby JJ [mostly] agreed) said:
Relevance and admissibility
The evidence, in the cases of HML and OAE, of other sexual acts directed at the complainant by the accused, which were not acts the subject of the charges being tried, was relevant. If accepted, that evidence would show that the accused had a sexual interest in the complainant which he had demonstrated by those other acts. Proving that the accused not only had that sexual interest, but had given expression to that interest by those acts, made it more probable that he had committed the charged acts. Proof of the other acts would thus constitute an element in the circumstantial proof of the offences charged.
Because the evidence shows other discreditable conduct, or in many cases the commission of other offences, it is generally inadmissible. The prosecution cannot "adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried". But that rule is not absolute.
Admissibility of evidence of other sexual acts directed at the complainant by the accused, which are not acts the subject of charges being tried, is to be determined by applying the test stated in Pfennig v The Queen. It is not to be determined by asking whether the evidence in question will put evidence about the charges being tried "in context", or by asking whether it describes or proves the "relationship" between complainant and accused.
Evidence of other sexual conduct which would constitute an offence by the accused against the complainant will usually satisfy the test stated in Pfennig. It will usually satisfy that test because, in the context of the prosecution case, there will usually be no reasonable view of the evidence, if it is accepted, which would be consistent with innocence. That is, there will usually be no reasonable view of the evidence of other sexual conduct which would constitute an offence by the accused against the complainant other than as supporting an inference that the accused is guilty of the offence charged.
In Pfennig, the relevant question is stated as "whether there is a rational view of the evidence that is consistent with the innocence of the accused" (emphasis added). Elsewhere, the relevant question has been put negatively - whether there is a rational view of the evidence of other conduct that is inconsistent with the guilt of the accused. The test, no matter whether it is stated positively (consistent with innocence) or negatively (inconsistent with guilt), does not require that the evidence of other conduct, without more, prove guilt of the charged offence. Rather, as the reference made in Pfennig to the remarks of Dawson J in Sutton v The Queen demonstrates, the inquiry is whether the evidence in question supports an inference that the accused is guilty of the offence charged, and is open to no other, innocent, explanation.
In cases of the present kind, evidence of other sexual conduct which would constitute an offence by the accused against the complainant shows that the accused had then demonstrated a sexual interest in the complainant, and had been willing to give effect to that interest by doing those other acts. The strength of the connection between the offences being tried and the other acts will be affected by the temporal proximity of one to the other and the frequency of occurrence of the other acts. Generally speaking, however, there usually will be no reasonable view of other sexual conduct which would constitute an offence by the accused against the complainant, even if it is an isolated incident and temporally remote, which would do other than support an inference that the accused is guilty of the offence being tried.”
 The instant case is complicated by the fact that the accused is not the father who abused the child, but the father’s then partner who is charged with aiding the abuse. Therefore evidence of sexual abuse against the child by the father on occasions other than those in connection with which the accused has been charged, would not be relevant for the purpose set out in HML – namely to show that the father had demonstrated a sexual interest in the complainant, and had been willing to give effect to that interest by doing those other acts. That indeed is not an issue in the case. The father is pleading guilty to charges arising out of the incidents which form the basis of the charges against the accused, as well as to the sexual abuse of the complainant during the two visits to the beach.
 To be probative of a relevant issue in this case, the evidence of the beach incidents (and the conversation about the daughter) would have to be relevant to the case against the accused. As outlined above, the Crown says that this evidence, taken at its highest (as it must be) is capable of supporting an inference that the accused knew of the abuse, did nothing to stop it and indeed remonstrated with the complainant, and tried to persuade her to comply with the father’s wishes and co-operate in the abuse. This supports an inference that the accused acted on this attitude in relation to the conduct which forms the basis of the charges, and is guilty of those charges. I accept that the evidence is probative in the manner contended by the Crown.
 The next question is whether the evidence passes the test in Pfennig, as outlined above. In my view, it does. If the jury were to accept the evidence at its highest – that is to say, they were to infer that the accused was aware that the father was sexually abusing his daughter and not only did not intervene but remonstrated with her that she should not have run away and, on top of that told her the story about her daughter to persuade her to comply in future, then it seems to me that that evidence supports an inference that the accused is guilty of the offence[s] charged, in the manner set out above, and also that it is open to no other, innocent, explanation”.
 Ms Armitage submitted that the evidence of what occurred at the beach on the two occasions is equivocal in the sense that on one view of that evidence, the accused was too far away to have seen or heard what was happening – that is to say that the evidence is open to another entirely innocent explanation: the accused was simply fishing, she knew nothing of the abuse, and her comments to the child about not running away were nothing more than those of a responsible person in loco parentis administering reasonable discipline towards a child who apparently capriciously ran away at night. (This contention cannot of course apply to the evidence of the conversation about the accused’s daughter submitting to sexual abuse by the father, but Ms Armitage says that that conversation is disputed by the accused.)
 I do not think it follows from this that the evidence of the complainant of what she says occurred at the beach is inadmissible. Firstly, in assessing the admissibility of the evidence I am obliged to take it at its highest – that is to say, I should assume for the purposes of the exercise that the jury accepts the evidence in full and are prepared to draw from it the logical factual inferences which the Crown urges should be drawn about what the accused must have seen and heard. In HML v The Queen, Heydon J made the following remarks:
“In Phillips v The Queen, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said of the Pfennig test:
‘[T]he test is to be applied by the judge on certain assumptions. Thus it must be assumed that the similar fact evidence would be accepted as true and that the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury. Pfennig v The Queen does not require the judge to conclude that the similar fact evidence, standing alone, would demonstrate the guilt of the accused of the offence or offences with which he or she is charged.’
The need to assume that the similar fact evidence will be accepted is supported by the following passage in Hoch v The Queen:
‘The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged.’ (emphasis added [by Heydon J in HML]”
 The second difficulty I have with the submission is that if the accused did not see and hear what was occurring at the beach on either occasion and so was unaware of the abuse that was taking place, then (the disputed evidence of the conversation about the daughter aside) her actions during the two beach incidents were in no way discreditable and the exclusionary rule (and the Pfennig test of admissibility) would not apply to that evidence. This is unlike the equivocal evidence in HML of the father buying g-string underwear for his daughter when she was 9, which was independently discreditable but (some judges held) did not unequivocally demonstrate that he had a sexual interest in his daughter.
 In summary, it seems to me that all of the evidence objected to is relevant (ie probative) because it has the capacity, if accepted at its highest, of rationally affecting the assessment of whether the accused is guilty of the offences charged, by throwing light on her knowledge of and attitude towards the abuse of the child by the father. If it is accepted, then it passes the Pfennig test for admissibility. If it is not accepted – or the jury is not prepared to draw the inference that the accused must have been aware of the abuse at the time - then evidence of what occurred at the beach is not evidence of discreditable conduct by the accused and it is not subject to any exclusionary rule.
 As to the submission that the evidence should be excluded on the basis that its probative value is outweighed by its prejudicial effect, it seems to me that the evidence of both the events at the beach and the alleged conversation about the abuse of the accused’s daughter, if accepted, have substantial probative value as outlined above. Moreover, I cannot see that that evidence has any potential prejudicial effect other than its tendency to prove the guilt of the accused on the charges, and of course, in relation to the conduct at the beach, if the jury do not accept it at its highest and draw the factual inferences contended for by the Crown, there is no prejudice to the accused in that evidence at all, since in those circumstances the conduct would not reflect poorly on the accused.
 HML v The Queen; SB v The Queen; OAE v The Queen  HCA 16 (24 April 2008); (2008) 235 CLR 334.
 Ibid at  and  – .
 Ibid per Heydon J at .
 In that case the evidence would not be relevant either. However, that does not mean it is not admissible. Relevant evidence is evidence which if accepted is probative – ie is capable of rationally affecting the assessment of whether the accused is guilty of the offences charged.