In this case the Crown has filed a tendency and coincidence notice, and this judgment rules on the admissibility of the evidence relating to that notice. There are three tendency issues and one coincidence issue in the notice and submissions.
For the purposes of this judgment I have considered the oral evidence given to date, the transcripts for each day of the proceedings, the exhibits tendered and the written submissions of the Crown and the defence.
The factual matrix is simply stated - the defendant is alleged to have committed the offences of indecent assault on two children he was tutoring. He is also alleged to have been in possession of child pornography material in three separate locations. The charges are all being dealt with in one hearing. It is likely that a key issue in the case is whether the touching was sexual in nature.
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The Issues
Firstly, the Crown submits that the defendant, by virtue of the two accusations of indecent assault, has a tendency to indecently assault students under the age of 16 years during the course of maths tuition.
Secondly, the Crown submits that the defendant, by virtue of the three different locations of the child pornography material, has a tendency to possess child abuse material in electronic form.
Director of Public Prosecutions (NSW) v Cruickshank [2016] NSWLC 16 | Case summary | Zoe
Third, the Crown submits that the possession of the child abuse material demonstrates a tendency to be interested in children in a sexual manner and obtain sexual gratification from children. Although it cannot prove when it was accessed, the Crown submits that the defendant was in possession of the child abuse material at the time of the sexual offences.
Finally, the Crown submits seeks to rely on coincidence evidence in that the defendant possessed child abuse material in three locations he had access to, in that this can be used to prove that he had knowledge that he was in possession of the material.
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Tendency Evidence
Tendency evidence is relevant material that provides a foundation for an inference - that because a person had a tendency they were more likely to have a state of mind asserted by the tendering party: Elomar v R [2014] NSWCCA 303.
It is convenient to deal with the third tendency issue first. Absent any authority to the contrary, I would not have admitted the child abuse material as evidence of a tendency to indecently assault children absent some expert evidence to the contrary. Does watching violent video games make people more likely to be violent, does watching pornography make people more likely to sexually assault others, does possession of child pornography make people more likely to engage in sexually contact with children? I do not profess to know the answers to these questions, and in the absence of expert or other evidence of some strength drawing a connection between the two, I would not be satisfied that it has significant probative value. I would have thought that there are those who watch, and those who do. No doubt there are some who do both, but that would hardly leap the significant hurdle of s 97 of the Evidence Act 1995.
However, there is authority to the contrary from two cases in the Court of Criminal Appeal in New South Wales which are binding on me. The first case is in respect of relevance, and the second in respect of tendency.
In R v MM [2004] NSWCCA 364 the defendant had been convicted of possession of child pornography, and had made disclosures to his probation officer regarding fantasising about having sex with children, and masturbating whilst watching the child pornography. He was then tried for a sexual offence on a child. The Court found that the possession and later statements were relevant evidence on the following basis at [61]:
I do not accept that the evidence, regarded as evidence of a tendency the respondent had, was irrelevant. Evidence that the respondent, as a person charged with offences of child sexual assault, had collected and viewed child pornography and had fantasised about sexual acts with children satisfies the criterion of relevance under s 55 of the Evidence Act, in that the evidence is capable of rendering more probable that the respondent acted in the ways in which he is alleged by the Crown to have acted. In my opinion, no expert evidence was required in order to make such evidence admissible. It is in accordance with common human experience that a person who has had thoughts, particularly persistent thoughts, about some type of act is, at least to some extent, more likely to perform an act of that type than a person who has never had such thoughts. It is not to the point that many persons who fantasise about some act never actually do it.
In AW v The Queen [2009] NSWCCA 1 the Court approved admitting evidence of the viewing of child abuse material as tendency evidence in a trial for child sexual assault offences. The Court found at [48]-[49]:
48 The complainant's evidence and her mother's evidence on this topic, foreshadowed by the tendency notice, fixed the pancake incident and the access to "hardcore child pornography" in the year 2000, coinciding generally with counts 3 and 4 in the indictment. It was also significant that count 3 alleged an act of cunnilingus, consistent with the type of activity that the complainant said was depicted on the computer screen during the pancake incident. Contrary to the appellant's submissions, there was a degree of particularity and contemporaneity in the tendency evidence that allowed the trial judge to reach the conclusion that it was significantly probative. The removal of NH's evidence from consideration as tendency evidence did not affect the significance of the remaining tendency evidence.
49 Accepting that the evidence was prejudicial, in the sense that the jury might reason that because the appellant was inclined to view child pornography, he was therefore guilty of the offences, was it open to the trial judge to conclude that the probative value of the evidence substantially outweighed its prejudicial effect ? In my view, the answer to that question is yes. The mother's evidence, although lacking the graphic description of the relevant images given by the complainant, included a reference to images of underdeveloped children and the words "hardcore child pornography". That was either the name of the internet site or a description of the material contained on the site. It constituted powerful tendency evidence, independently of the evidence of NH and of the complainant.
As a result of these cases, the Crown contends that the Court ought admit the child abuse material evidence as tendency evidence, as it establishes that the defendant is "capable of obtaining sexual gratification from children, and seeing children in a sexual manner" (at [55]).
The defence contends firstly (at [14]) that the charge of possession of the child abuse material cannot be proved beyond a reasonable doubt. I am not sure whether that is a second limb submission but if it is, then it is a matter for another day. For the purposes of this ruling, I am going to assume that the charges are proven. That is not to say that I have made up my mind on this issue - I have not. There are submissions and potential defences to consider in that regard, and should those charges not be proven then the tendency argument may need to be revisited. This is not a case such as R v MM, where the defendant has already been convicted of the child abuse material matters, and accordingly the tendency issue is somewhat of a moving feast. This is in accordance with R v Shamouil [2006] NSWCCA 112, where the court is tasked to focus on the evidence's potential. See also IMM v The Queen [2016] HCA 14 per French CJ, Kiefel, Bell and Keane JJ at [39]:
The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. … the only question is whether it has the capability, rationally, to affect findings of fact.
Next the defence contends that the Crown cannot establish the time, day and date when the material was viewed by the defendant, there is no proximity between any viewing and the sexual assault offences. Further, this means that there is no evidence to suggest that the defendant "on the particular occasion the subject of the charges" had a state of mind relevant to the indecent assault charges (at [17]).
I agree with this submission, and conclude that there is no evidence that the defendant viewed the child abuse material at or around the time of the allegations of indecent assaults. This case therefore lacks the same high degree of contemporaneity and particularity evident in AW v The Queen. Further, as the defence suggests, in R v MM, the allegation was in part that the defendant was sitting on a chair naked with the complainant showing her pornographic images of a male and a female child.
The defence contends that this case is thus distinguishable from both AW v The Queen and R v MM in that here it is, at most, a bare possession of the child abuse material and that this does not cross the hurdle of significant probative value.
I have carefully considered that submission, and have found myself somewhat torn on a conclusion. I have read each of the dozens of cases referred to in the Crown and defence submissions. There are cogent arguments for and against admission, not least of which are the broad brush statements of causation in R v MM.
However, in the final analysis in my view the evidence whilst relevant is not significantly probative, and is not admissible. There is no time link between the two sets of offences. There is nothing beyond sexualisation of children that could be said to show a tendency. There is no evidence of viewing at or close to the time of the alleged offending. There is nothing about the allegations made and the child abuse material that is similar. Whilst it would not be necessary to show that the abuse material contains a fantasy about a tutor and his students, there is no evidence of similarity whatsoever.
In R v Fletcher [2005] NSWCCA 338 Simpson J was considering whether evidence of sexual attraction to young males was able to be utilised as evidence of sexual misconduct with young males. She found at [50]:
But this is where caution needs to be exercised. While it may be tempting to think, for example, that evidence of a sexual attraction to male adolescents has probative value in a case where the allegations are, as here, of sexual misconduct with a male adolescent, an examination must be made of the nature of the sexual misconduct alleged and the degree to which it has similarities with the tendency evidence proffered. There will be cases where the similarities are so overwhelming as to amount to what, in pre-Evidence Act days was called "similar fact" evidence, showing "a striking similarity" between the acts alleged; and there will be cases where the similarities are of so little moment as to render the evidence probative of nothing. And there will be cases where reasonable minds may differ as to the extent to which proof of one fact or circumstance may rationally affect the assessment of the probability of the existence of another fact.
I am not comfortable with the conclusion that the bare fact of possession of child abuse material, in the absence of anything else, is sufficient to rationally and significantly affect the probability of the indecent assault allegations. In LJW v R [2010] NSWCCA 114 the court held that evidence that the accused masturbated in public on the day of an alleged sexual assault was not tendency evidence.
The defence also refers to the conclusions in IMM v The Queen [2016] HCA 14, and the prejudicial aspects of any admission. Given my finding above, it is not necessary to consider these submissions.
The Crown's first, second and final submissions relating to tendency and coincidence are accepted. Essentially the Crown is seeking to use the evidence of one indecent assault as tendency evidence in the other, and the possession of each lot of child abuse material as tendency (and coincidence) evidence of the other. Clearly there is significant probative value to that evidence in the manner contended by the Crown.
Magistrate David Heilpern
Lismore Local Court
11 August 2016
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Decision last updated: 22 March 2018