Brodie Larsen (a pseudonym) v The Queen [2020] VSCA 335

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 The applicant ('L') is charged with five offences: using a carriage service to procure a person under 16 for sexual activity; using a carriage service to transmit indecent communications to a person under 16; using a carriage service to transmit child pornography; and two charges of breaching reporting obligations.

2 To make out the first and second charges, the Crown must prove that the person to whom the activity was directed ('T') was under 16. The defence concedes that she was (T was 12 at the time). L's defence to those charges is that he believed T was 16 or older, which he must establish on the balance of probabilities. To make out the third charge, the Crown must prove that L knew that, or was reckless as to whether, T was under 18 years of age.

3 The Crown proposes to lead what is said to be tendency evidence to rebut L's defence that he believed T was 16 or older (charges 1 and 2), and to support its own proofs that he was reckless as to whether she was under 18 (charge 3). The evidence proposed to be called will show that in 2014 L met a 15-year-old girl (B) on Facebook, sent her a 'friend request' and then sent some nude pictures of himself to her, asking her to send him some nude pictures of herself. Using social media and mobile telephone applications, he sent B photographs of his erect penis and encouraged her to send him photographs of herself.

4 After they had begun communicating, B told him several times that she was 15. L was therefore aware, before he began transmitting the images, that B was under 16. He pleaded guilty in a Queensland court to charges (corresponding to charges 1 and 2 in this case) of using a carriage service to procure, and transmit indecent communications to, a person under 16 (we will refer to this as 'the Queensland evidence'). It was in relation to that conviction that L was placed on five-year reporting obligations to report any contact with a child.

5 Following a pre-trial application, the trial judge ruled that the Queensland evidence was admissible as tendency evidence under ss 97 and 101 of the Evidence Act 2008. In her Honour's view, the evidence had significant probative value which substantially outweighed any unfair prejudice to L. Her Honour refused an application by L that she certify under s 295(3)(a) of the Criminal Procedure Act 2009 ('CPA') that, were the evidence to be ruled inadmissible, it would 'eliminate or substantially weaken the prosecution case'.

6 L now applies under s 296(1) of the CPA for review of the refusal to certify. For reasons which follow, we would grant that application. Leave to appeal will be granted, the appeal allowed and the ruling set aside.

7 In short, the only fact in issue in the trial of these charges will be L's state of awareness with respect to T's age, that is, whether L did or did not believe that T was over 16 (for charges 1 and 2) or knew or was reckless as to whether she was under 18 (for charge 3). Everything else is admitted. The probative value of the Queensland evidence must be judged by reference to those narrowly-defined issues. Properly understood, evidence that L on one previous occasion engaged in sexualised communications with a girl he knew to be 15 has very little probative force on the issue of how old he believed T to be. The evidence therefore falls well short of the 'significant probative value' threshold in s 97(1)(b).[2]

8 The charges allege that T was 12 when L made contact with her, and that he did so via an unidentified social media application. T was located in Perth and L was located in Victoria. Somehow L obtained T's mobile phone number and began to communicate with her via text. He sent T images of himself masturbating his erect penis and persuaded her to send him photographs of herself topless and of her vagina. He engaged in sexual communications with her.

9 In contrast to the circumstances of the Queensland case, however, T never told L her age nor was there any evidence that her social media profile gave her age. At the same time, the photographs of her are said to show her to be a child. In the first of them, she is wearing animal ears and face paint. T also told L that she went to bed at 9:30; at one stage she said that she was sitting between her parents, watching TV.

10 The prosecution's tendency notice said that the Queensland evidence was to be relied upon to show that L had a tendency:

(a) to have a particular state of mind**,** namely, to have a sexual interest in females under the age of 16; and

(b) to act upon that sexual interest by accessing and using social media and mobile telephone applications to engage with females under the age of 16 with an intention to have sexually explicit conversations with those females, to send photographs of his erect penis in the course of those conversations and to encourage those females to send nude photographs of themselves in the course of those conversations.

11 Under s 97(1)(b), evidence of a tendency is not admissible unless the court thinks that the evidence will, either by itself or having regard to other evidence to be adduced, have significant probative value.[3] Under s 101(2), tendency evidence cannot be used unless its probative value 'substantially outweighs' any prejudicial effect it may have on the accused.[4]

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[5]

In the present case, the prosecutor helpfully drew the judge's attention to the statement by the majority of the High Court in Hughes v The Queen ('Hughes')[6] that, in assessing whether evidence has significant probative value, the court needs to consider two matters, namely:

• the extent to which the evidence supports the alleged tendency; and
• the extent to which the tendency makes more likely the existence of the fact in issue.

13 In the present case, the fact in issue to which the tendency evidence was directed was L's belief as to T's age. The judge upheld the prosecution's submission that the evidence had significant probative value in relation to that fact, that is, the evidence

could rationally affect the assessment of the probability of the existence of [that] fact in issue to a significant extent.[7]

Evidence the accused had a sexual interest in girls under 16 and was prepared to act on it by accessing and using websites, social media or other apps to engage in sexually explicit conversations with girls under 16, to send them photographs of his erect penis and to encourage them to send sexualised or nude photographs of themselves, makes it more likely he was willing to act on that interest in this case and commit the offences charged. Or, more specifically, makes it more likely he did not believe the complainant was 16 or over (charges one and two) or was reckless as to the possibility she was under 18 (charge three).[8]

15 In her Honour's view, the Queensland evidence fell 'well within' the requirement of 'significant probative value':

A preparedness to act on a sexual interest in girls under 16, by the very specific means identified here, is capable, if accepted, of bearing significantly on the probability the accused was aware, or was reckless, as to the possibility the complainant in this case was under age.

... [T]he features which give the [Queensland evidence] its significant probative value for tendency reasoning come from the use by the accused of an app to 'meet' a child, that is to view her image and other details she has posted online, then initiate contact with her, then send her sexualised messages and images of his erect penis and solicit her to respond in a like manner.[9]

16 As regards the fact that the Queensland evidence concerned only a single episode of indecent communication with a single child, her Honour said:

Although the [Queensland evidence] concerns just one child, the conduct is properly characterised as an episode, not a single instance. It continued over some hours and involved multiple messages and images being sent and solicited over that time. The similarities in the conduct of the accused with the Queensland victim and with the complainant in this case, in my view, are such that the probative value of that episode passes the significant probative value threshold comfortably.[10]

17 Turning to s 101, her Honour said:

[I]t is not submitted that the nature of the tendency evidence, or even of the fact the accused pleaded guilty, is productive of (unfair) prejudice warranting exclusion. The reliance on s 101 is confined to unfair prejudice arising from complexity and the risk of confusion in respect of the different elements, onus, standards of proof and the reliance on tendency reasoning for charges 1 and 2 only, not to the nature of the tendency evidence itself.

In my view, there is nothing to suggest the potential prejudice to the accused arising from the different directions for different charges cannot be appropriately dealt with by careful and detailed jury directions.

For those reasons, I am not satisfied that the risk of unfair prejudice to the accused outweighs the significant probative value of the tendency evidence.[11]

18 Axiomatically, the probative value of a piece of evidence can only be assessed by reference to the fact in issue to which the evidence is said to be relevant. In the present case, as already noted, the fact in issue is very narrowly defined. It concerns the existence, or non-existence, in L's mind of a belief that T was over 16 or under 18 (depending on the charge).

19 This is not a case like Hughes, where the fact in issue was whether the offending conduct had occurred at all. The defence position there was that all of the allegations were fabricated. Accordingly, the question before the Court was whether proof of the accused's tendency to act in a particular way was probative of the fact that the offending conduct had occurred. It was held that the accused's tendency 'to engage opportunistically in sexual activity with underage girls despite a high risk of detection' had substantial probative value in relation to the facts there in issue.[12]

20 In the present case, it is not in issue that L engaged in the conduct which constitutes the relevant offences. The evidence of his communications with T, and of her being under 16, is not disputed. The only issue in the case, as his counsel confirmed in this Court, is whether he can prove that at the time he engaged in that conduct, he believed T was over 16 or the prosecution can prove he knew or was reckless as to the possibility she was under 18.

21 It follows, in our view, that the particular features of the sexualised conduct in which L (admittedly) engaged have no bearing on the assessment of probative value. The position would, of course, be quite different if there were a question of the identity of the offender. In those circumstances, as the High Court said in Hughes, similarities in the conduct would be highly relevant to probative value.[13]

22 Here, the prosecution has no need to prove that L has a tendency to behave in a particular sexualised manner. So much is established by the uncontested evidence of his communications in this case. The fact that the communications with T were of the same character as the communications with B in the Queensland case says nothing about what L may, or may not, have believed about T's age.

23 As we have said, the question is a much narrower one: how does the Queensland evidence tend to affect the probability of L's having believed, or not believed, that T was under 16 or 18 (depending on the charge)?

24 What the Queensland evidence establishes is that L has once before engaged in sexualised communications with a person knowing that she was 15. Assuming for present purposes that evidence of a single prior instance is sufficient by itself to prove a tendency for the purposes of s 97(1), the question is how that tendency should be defined.

25 In her reasons, as noted earlier, the judge said:

[T]he features which give the [Queensland evidence] its significant probative value for tendency reasoning come from the use by the accused of an app to 'meet' a child, that is to view her image and other details she has posted online, then initiate contact with her, then send her sexualised messages and images of his erect penis and solicit her to respond in a like manner.[14]

26 In this Court, the prosecutor properly conceded that there was no evidence to show that L had a tendency to use an app to meet a child. Counsel maintained, however, that the Queensland evidence demonstrated L's preference for girls under 16 and that, because the conduct in the present case was 'strikingly similar' to the conduct the subject of the Queensland evidence, L was only likely to have engaged in that conduct once he knew or believed that T was under 16.

27 We are not persuaded by that submission. As we have said, we do not regard the similarities in the content of the communications as having any bearing on the disputed issue. Given the narrowness of that issue, however, it is a matter of unusual difficulty to define the tendency (if any) in terms which would render it probative.

28 Counsel for L conceded that the evidence was capable of showing a relevant tendency. Following some revision in the course of argument, counsel accepted that the Queensland evidence was capable of establishing that:

• L is sexually attracted, non-exclusively, to young women;
• he is willing to act on that attraction even if he learns that the target of his intended communication is under 16;
• accordingly, if L thought there was a possibility that T was under 16 (because of the other evidence informing his perception of her age), it is more likely that he would have communicated in the way he did notwithstanding that possibility.

29 In our view, this is the highest the probative value of the Queensland evidence could be put. Plainly enough, that evidence shows that L was, on a prior occasion, prepared to proceed with sexualised communications despite knowing that B was 15. It does not establish either that he proceeded with the communications only because he believed she was 15 or that he would not have communicated in the same manner had she told him she was 16. The improbability of the latter proposition is readily apparent.

30 On this view, the Queensland evidence has very limited probative value in relation to the issue of what L knew or believed about T's age. It would not, in our opinion, approach the threshold requirement of 'significant probative value' in

s 97(1)(b).[15]

31 If we were wrong about that, we would have concluded that the evidence was in any event rendered inadmissible by the additional restriction imposed by s 101(2).[16] As counsel for the applicant cogently submitted, the very characterisation of the conduct by the prosecutor and the judge - by reference to the gross indecency of the communications themselves - underlines the near-impossibility of a jury understanding the very limited nature of the disputed fact, and being able to differentiate between permissible and impermissible uses of the evidence. Plainly enough, the Queensland evidence shows L in a highly discreditable light, engaging in precisely the kind of sexualised conduct with an underage girl which is rightly the subject of community outrage and denunciation.

32 We turn finally to the question of whether a single instance can establish a tendency. Previous decisions of this Court establish that, in particular circumstances, a single instance can suffice for this purpose.[17] As the Court said in GBF v The Queen, however, that 'depends on the nature of the tendency' sought to be established.[18] In the present case, we are very doubtful that a single instance of sexualised conduct with a person known to be 15 can be said to establish any 'tendency' defined by reference to awareness of age. Since, however, counsel for L did not take the 'single instance' point, we need say nothing further about it.

33 As noted earlier, the judge refused a defence application for her to certify under s 295(3)(a),[19] as she was not persuaded that exclusion of the Queensland evidence 'would eliminate or substantially weaken the prosecution case'. On this application for review of her Honour's refusal to certify, we are required by s 296(4) to 'consider' the applicable certification provision and then to decide whether we are 'satisfied as required by s 297'.[20]

34 It is that state of satisfaction which enlivens the power under s 296(4)(b) to give leave to appeal.[21] It follows, in our view, that we must 'consider' the importance of the Queensland evidence to the prosecution case, as required by s 295(3)(a),[22] but the overarching consideration is whether it is 'in the interests of justice' to give leave to appeal.[23]

35 As to the first step, we think that the introduction of the Queensland evidence would greatly increase the likelihood of L's being found guilty of the charges. It does not follow, however, that its exclusion would 'eliminate or substantially weaken' the prosecution case, given the other evidence said to make clear that T was very young.

36 In the end, however, we do not need to reach a final view on that question, as we are 'satisfied as required by s 297' that it is in the interests of justice for leave to appeal to be granted. On the view we have formed as to the low probative value and highly prejudicial nature of the Queensland evidence, its admission at the trial would work a grave injustice. For these reasons, leave to appeal will be granted, the appeal allowed and the ruling set aside. In its place, there will be a ruling that the Queensland evidence is inadmissible.

1. [1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Evidence Act 2008.

[5] Ibid s 3 (definition of 'probative value').

[6] [2017] HCA 20; (2017) 263 CLR 338 [41] ('Hughes').

[8] R v Brodie Larsen (a pseudonym) (County Court of Victoria, Judge Hampel, 10 August 2020) [43] ('Reasons').

[12] Hughes [2017] HCA 20; (2017) 263 CLR 338, 362-3 [62]-[64] (Gageler J).

[13] Ibid 355-6 [39] (Kiefel CJ, Bell, Keane and Edelman JJ).

[15] Evidence Act 2008.

[17] See GBF v The Queen [2010] VSCA 135 [34] (Nettle, Harper JA and Hansen AJA); Reeves v The Queen (2013) 41 VR 275; [2013] VSCA 311 [56]-[58] (Maxwell ACJ).

[18] [2010] VSCA 135 [34] (Nettle, Harper JA and Hansen AJA).

[19] Criminal Procedure Act 2009.

[23] Ibid s 297(1).