Davidson (a pseudonym) v R

HEADNOTE [This headnote is not to be read as part of the judgment] Scott Davidson (a pseudonym) (the applicant) sought leave to appeal against his conviction for two counts of sexual intercourse with a child above the age of 14 years and under the age of 16 years in circumstances of aggravation contrary to s 66C(4) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the child (the complainant) was under his authority. The complainant was the applicant's niece by marriage and had been living with the applicant and his family for nearly two years. She alleged that when she was 15 years old, the applicant put his fingers in her vagina on two occasions. At trial, the Crown relied on tendency evidence to establish that the applicant had a tendency to have a sexual interest in teenage girls aged between 15 and 17 with whom he had a familial relationship, but who were not his biological daughters and who were residing with him and under his authority. It sought to establish this tendency by tendering a series of text messages the applicant had sent to his step-daughter when she was 16 and 17 and was living with him. The messages were sexual in nature and suggested that the applicant wanted to touch the step-daughter, see naked photographs of her and that he had a sexual interest in her. The applicant sought leave to appeal against his conviction on the ground that the evidence of the step-daughter, including evidence of text communications between the applicant and the step-daughter, was wrongly admitted into evidence in the trial as tendency evidence and caused the trial to miscarry. The applicant submitted that the tendency evidence was inadmissible on the following three grounds: (1) it was not relevant as it was not capable of establishing the asserted tendency; (2) the presumption in s 97A(2) of the Evidence Act 1995 (NSW), that tendency evidence about a defendant has significant probative value if it is tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on that interest), was rebutted; and (3) even if the tendency evidence was presumed to have significant probative value, the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicant so must be excluded pursuant to s 101 of the Evidence Act. The Court held (Adamson JA, Stern JA and Wright J agreeing) granting leave to appeal but dismissing the appeal: Whether the evidence was relevant (1) The tendency evidence showed that the applicant had a sexual interest in his step-daughter who had characteristics in common with the complainant, being aged between 15 to 17, living with the applicant under his care and not his biological daughter. This evidence could rationally affect the probability of the applicant having a sexual interest in the complainant and, thus, whether he committed the acts charged and was, accordingly, relevant: Adamson JA at [38], Stern JA at [57], Wright J at [58]. (2) Pursuant to s 97A(3) of the Evidence Act and authorities pre-dating the commencement of s 97A, it is not necessary that the tendency evidence amount to a sexual interest or conduct towards more than one child: Adamson JA at [39], Stern JA at [57], Wright J at [58]. Burns-Dederer v R [2023] NSWCCA 191; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 applied. (3) The generality in which a tendency is expressed may bear on the probative value of the tendency evidence, but it does not follow that evidence of a general tendency is not relevant at all: Adamson JA at [43], Stern JA at [57], Wright J at [58]. Whether there were sufficient grounds to rebut the s 97A(2) presumption (4) There were not sufficient grounds under s 97A(4) to rebut the presumption in s 97A(2) and it follows that the tendency evidence had significant probative value: Adamson JA at [49], Stern JA at [57], Wright J at [58]. (5) The fact that the tendency evidence derived from one witness and did not extend to evidence of a sexual interest beyond the step-daughter does not constitute sufficient grounds under s 97A(4): Adamson JA at [47], Stern JA at [57], Wright J at [58]. (6) Pursuant to s 97A(5), the difference between the applicant's acts towards the complainant (isolated opportunistic digital penetration) and the step-daughter (sending sexual texts) cannot be taken into account in determining whether there were sufficient grounds: Adamson JA at [49], Stern JA at [57], Wright J at [58]. Whether the probative value of the tendency evidence outweighed the danger of unfair prejudice to the applicant (s 101) (7) The danger of unfair prejudice was the danger that the jury might consider, on the basis of the tendency evidence, that the applicant was a person of bad character and for that reason must have committed the offences charged. That danger was removed or significantly mitigated by the trial judge's directions such that the evidence was not inadmissible under s 101: Adamson JA at [53]-[54], Stern JA at [57], Wright J at [58].