R v Charles Samuel Chipps Scc [1989] ACTSC 9 (3 March 1989)

SUPREME COURT OF THE ACT

THE QUEEN v. CHARLES SAMUEL CHIPPS
S.C.C. No. 77 of 1988
Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Evidence - criminal trial - similar facts - admissibility - accused charged with sexual offences against boy - whether earlier incidents similar to acts constituting the offences.

Evidence - admissibility - indecent photographs - pornographic magazines - whether prejudicial tendency outweighed by probative value.

Sutton v. The Queen [1984] HCA 5; (1982-83) 152 CLR 528

Hoch v. R. [1988] HCA 50; (1988) 81 ALR 225

HEARING

CANBERRA
3:3:1989

DECISION

REASONS FOR DECISION DURING TRIAL
After the jury was empanelled but before counsel for the prosecution commenced his opening address, Mr. Pilkington for the accused raised objection to evidence which it was anticipated the prosecution would call. A voire dire hearing was then held and documentary evidence was admitted for that purpose. I made provisional rulings on the objections at that stage but stated that final rulings would have to wait until the appropriate stages during the trial. Counsel for the prosecution conducted his opening address bearing in mind the provisional rulings I had made. Subsequently, in the trial I made final rulings in accordance with those provisional rulings. I now give reasons.

2. I deal first with the objection to so-called similar fact evidence. The evidence for the prosecution was that the accused had been a music teacher at a school where the complainant boy was a pupil. The boy then commenced working and taking lessons at a riding school at which the accused was an instructor. The boy commenced to spend part of his Saturdays at the home of the accused, and at a later stage he stayed over on Saturday nights. The first act of indecency alleged was on a Saturday afternoon when the boy was at the home of the accused. The accused invited him into the bedroom for the purpose of showing him some riding gear and clothing. The accused then masturbated in front of the boy.

3. Over the ensuing months the relationship between the two grew closer. The boy began staying the weekend at the accused's home and visiting various country shows and the like with the accused. The remainder of the counts on the indictment alleged that whilst the boy was at the accused's house the accused would masturbate the boy and on two occasions performed acts of oral sexual intercourse with him.

4. The similar fact evidence which the prosecution wished to call related in the first instance to incidents at Bowral in New South Wales in about April 1988. The accused, the boy and another boy of the same age were sharing a caravan. The accused bought liquor and both boys drank some of it. The other boy got quite drunk and vomited on the bed where the complainant boy was to spend the night. The complainant then got into the remaining bed which was a double bed. Later that night the accused went to the bed and fondled the boy's genitals. The two spent the night together in that bed.

5. The other similar fact evidence related to a similar incident at Harden in New South Wales where the accused took the boy for an equestrian show. The accused arranged for them to stay in a motel room where the only bed was a double bed. The two shared the bed on a Saturday night. A similar act of indecency occurred during that night.

6. When the accused was interviewed by police on 19 April 1988, he admitted that he had spent the night in the double bed with the boy on both of these occasions. However, he denied that any act of indecency took place. He also denied that there had ever been any indecent act between himself and the boy. He stated that the boy had threatened to make false accusations against him in the event that the accused did not allow him more freedom when he was under the supervision of the accused and particularly when they were on their weekend trips to horse shows.

7. Bearing in mind the tests enunciated for the admission of similar fact evidence in Sutton v. The Queen [1984] HCA 5; (1982-83) 152 CLR 528 and Hoch v. R [1988] HCA 50; (1988) 81 ALR 225, I considered that the events at Bowral and Harden showed striking similarity to the acts of the accused alleged by the prosecution as constituting the offences. In my view the probative value of this evidence in relation to the alleged offences outweighed its prejudicial tendency. The two precise issues in the trial which I saw as illuminated by the disputed evidence were, first, the assertion by the accused that the admittedly intimate relationship between himself and the boy was devoid of any sexual content and, secondly, the assertion by the accused that the boy was motivated to make false accusations against him by the strictness of his supervision of the boy's activities.

8. The next lot of evidence objected to constituted of a large number of photographs and photostat copies of photographs which the accused admitted having taken of the boy whilst he was asleep. The photographs would by current community standards be regarded as indecent. On the accused's own account, and there was no evidence to the contrary, these photographs were taken many months after the events alleged to constitute the offences. The explanation given by the accused to the police as to why he took the photographs related to his assertion that the boy had threatened to make false accusations against him. He told the police that he took the photographs in order to protect himself from such accusations. I considered that these photographs, whilst highly prejudicial in their effect, were also likely to be regarded by the jury as of strong probative value on the two issues I have mentioned. They were supportive of the prosecution allegation that the relationship between the accused and the boy was not a sexually innocent one and they tended to rebut the explanation given by the accused as to the purpose for which he took the photographs. In this regard it was not simply the content of the photographs that was relevant but also the facts that the accused had made so many copies, that he had retained them in his possession and that he had sent and shown copies to other boys. I considered that these were matters which were capable of being taken by the jury to support the prosecution case.

9. The defence also objected to three photographs found in the premises of the accused which were of a young man in a state of undress. This was not the complainant, but he was named by the accused. I considered that these photographs, whilst not strongly probative of the issue as to whether the relationship between the accused and the boy was an innocent one, did go to the issue of whether the acccused had taken the photographs of the complainant in order to protect himself from false accusations. Whilst the probative value of these three particular photographs was less than those taken of the boy himself, I still considered that their potential probative value was not outweighed by the potential prejudicial tendency, so long as proper directions were given to the jury. I therefore allowed the photographs into evidence and gave what I considered to be appropriate directions to the jury on this matter.

10. Objections were taken to certain questions and answers in a conversation between police officers and the accused, and in the main my rulings on those objections followed my rulings in relation to the similar fact evidence and the evidence of the photographs.

11. The prosecution also tendered some pornographic magazines that were found on the premises of the accused. I rejected the tender of these on the basis that their slight probative weight was clearly outweighed by their strong prejudicial nature.