Evidence Act 2011 ss 97 and 101(2)

Wolter V Broomhall (No 2) [2023] ACTSC 343

Hughes v R (2017) HCA 20; (2017) 263 CLR 338

IMM v R [2016] HCA 14; (2016) 257 CLR 300

1. This is a re-determination of the matter. In early 2022 I found the defendants guilty and not guilty of a range of offences. In mid 2023, the Supreme Court upheld the defendants appeal against those findings of guilt and remitted the matter back to this Court for re-determination. In early 2025, the Court of Appeal confirmed the Supreme Court's decision.

2. The key outcome of the appeals was that evidence from a HP laptop computer was no longer admissible as part of the prosecution case, and that the naked images of the first and second tenants contained on that laptop computer could not be relied on by the prosecution.

3. Following that re-determination, I have found the defendants guilty of the charges. These are my reasons.

4. It was conceded by the defendants that this matter may be re-determined before the same magistrate who heard and determined the original proceedings and may be determined based on evidence previously adduced in the proceedings: Wolter v Broomhall (No 2) [2023] ACTSC 343 at [11]. It was also conceded that I am entitled to adopt factual findings made in the original proceedings to the extent those findings are not affected by the orders made on appeal.

5. Neither party sought to add to, or exclude any of, the existing evidence, other than that of and associated with the HP laptop computer already excluded by the appeal decisions.

6. I will reproduce the relevant parts of my original reasons as modified following the exclusion of the HP laptop computer evidence. I have chosen that approach, rather than producing an addendum to my original reasons, as that will be easier to follow and better reflects my complete re-determination of each remaining charge.

7. I thank the parties for their clear and helpful submissions.

8. For expediency and simplicity, I will continue to refer to the defendants as Joshua and Kenan. Once again, no disrespect is intended. They are identical twin brothers charged with offences involving the joint commission of offences involving the capturing of visual data involving the invasion of privacy and indecency, contrary to s 61B of the Crimes Act 1900 (ACT) and s 45A of the Criminal Code 2002 (ACT).

9. The prosecution case is that the brothers owned a house in Canberra and they, by agreement, covertly fitted and used a number of hidden cameras in the bedrooms of the house to observe the private activities of three female tenants.

10. The prosecution relies upon hidden cameras found by police behind the front plastic housing of television sets and behind small glass windows on timber coat rack fittings located within two bedrooms, and the associated wiring connecting the coat rack cameras to a power supply in the roof space. They also rely upon the videos and still images found on Joshua's mobile phone and the contents of a WhatsApp conversation between the defendants located on Joshua's mobile phone. That conversation was extensive and included discussions about existing and potential cameras, current and future tenants and the private activities of the women viewed by using the cameras.

11. The prosecution claim that Joshua made an Edwards lie when questioned by police. They relied upon that demonstrating consciousness of guilt for each charge against him.

12. The prosecution also seeks to rely on tendency reasoning for all offences against Joshua. They say that he had the demonstrated tendencies:

(a) to set up electronic recording devices in a location where a person could reasonably expect privacy, in order to visually capture private acts, for his own specific interests, and

(b) to possess visual recordings depicting females doing private acts in circumstances where they could reasonably expect privacy, and he did so with a specific interest in such recordings.

13. I will initially address the general principles and elements of the offences, before dealing with the Edwards lie and tendency evidence applications. Finally, I will address whether the evidence establishes each offence.

14. For the purpose of these proceedings, I note the following principles that I must apply. I must find facts, draw inferences from them, and apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and defendants are entitled to my verdict free of partiality, prejudice, favour or ill-will. I must deliver my decision according to the evidence.

15. The prosecution bears the onus of proving the guilt of the defendants. The defendants do not have to prove that they did not commit the offences charged.

16. The standard of proof for the prosecution is proof beyond reasonable doubt, and the defendants cannot be found guilty of an offence unless the evidence satisfies me beyond reasonable doubt of their guilt for each element of the offence.

17. If the evidence, which I accept, fails to satisfy me beyond reasonable doubt of any or all the elements of an offence, then I must dismiss that charge.

18. If I am satisfied there may be an explanation consistent with the innocence of a defendant, or I am unsure of where the truth lies, I must find the relevant charge has not been proved.

19. If the prosecution case rests substantially on circumstantial evidence, a defendant cannot be found guilty unless, when the evidence is considered as a whole and not by a piecemeal approach to each particular circumstance, the prosecution has excluded all reasonable hypotheses consistent with innocence.

20. I need to consider the reliability of each witness' evidence. I can accept all, part or none of a witness' evidence.

21. The defendants did not give or call evidence during the hearing, and they were not required to do so. No adverse inference can be drawn against them because of their decisions not to give or call evidence. Nor can the absence of evidence from a defendant be used to fill in any gaps or used as a makeweight for any deficiency in the prosecution case.

22. In the instant case, the elements for the offences of capturing visual data, contrary to s 61B of the Crimes Act 1900, are:

(a) the defendant captured the visual data of another person, that is captured moving or still images of the other person by camera or any other means in such a way that:

(2) the images are capable of being transmitted in real time with or without retention or storage in a physical or electronic form; or

(3) the images are otherwise capable of being distributed;

(b) the defendant intended to capture that visual data (default fault element for conduct: s 22 of the Criminal Code 2002);

(c) a reasonable person would, in all the circumstances, consider the capturing of visual data to be:

23. In the instant case, the elements for the offences of joint commission, contrary to s 45A of the Criminal Code 2002, are:

(a) the defendants entered into an agreement to commit the offence of capturing visual data or a similar offence;

(b) the defendants entered that agreement intentionally (default fault element for conduct);

(c) in the course of carrying out that agreement, one or both of the defendants committed the offence of capturing visual data; and

(d) if only the other defendant committed the offence of capturing visual data, the defendant was reckless about the commission of that offence by the other defendant.

24. During the execution of the search warrant at the defendants' house, Joshua was asked by police about miniature cameras. He indicated he had them due to his role as a police officer. The following exchange was recorded:

Q218 ... Do you have any small, micro-cameras or anything like that? At these premises?

2. Yeah, I reckon I do, yeah. Because I get them for work.

3. Well, no, I buy them because of the role. So yeah.

25. Evidence was received from Joshua's superior from the Australian Federal Police (AFP), who indicated unequivocally that Joshua, in his role as an AFP officer, was not required to personally purchase cameras, he was not trained on installing cameras and was not required to install spy cameras. This evidence is not surprising, given that the AFP is a professional and structured organisation, that is known to provide standardised equipment and training to its members. It is implausible that a junior member would be expected to source his own specialist or novel equipment for the purpose of his or her role within the organisation.

26. The question put to Joshua was clear, and his responses, while not necessarily consistent, were unmistakably intended to suggest a nexus between the miniature cameras expected to be found in his house and his role at the AFP. It was not a statement due to mistake or confusion. It was a deliberate response. It was a lie.

27. I note that people may lie for all sorts of reasons, but there are no indicia to suggest that this lie was for any reason other than a consciousness of guilt. That is, Joshua feared in that moment that telling the truth might reveal his guilt in relation to offences associated with the presence of those cameras. However, there are a range of offences before the Court, and that consciousness of guilt may relate to one, some or all those charges, and or relate to other offences associated with the cameras which have not been charged. In such circumstances, it would be unsafe to place much weight on the lie and speculate which offence/s Joshua was concerned about revealing.

Joshua's tendency to set up electronic recording devices

28. Tendency evidence is evidence that supports an inference that a defendant had a tendency to act in a particular way or have a particular state of mind, and that tendency is relevant to the proceedings in that it is of rational assistance in assessing the likelihood of a fact in issue within the proceedings: Hughes v R (2017) HCA 20; (2017) 263 CLR 338 at [16]. This evidence is limited by ss 97 and 101(2) of the Evidence Act 2011, in that the evidence is only admissible if the Court thinks the evidence will, either by itself or having regard to other evidence, have significant probative value; and that probative value substantially outweighs any prejudicial effect it may have in the proceedings. These requirements were explained by the majority in IMM v R [2016] HCA 14; (2016) 257 CLR 300 at [45] and [46]:

45. The use of the term "probative value" and the word "extent" in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.

46. ... The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.

29. The prosecution contended that the five videos located on an SD card found in Joshua's bedroom demonstrate that he had the tendency to set up electronic recording devices in a location where a person could reasonably expect privacy, in order to visually capture private acts, for his own specific interests, and that tendency makes it more likely that he committed the offences against the tenants. The prosecution only seeks to use this evidence to establish the charges against Joshua.

30. The dates when the videos were recorded is not known. The contents depict someone consistent with the appearance of the identical twin defendants installing a hidden camera in a public toilet. The prosecution invites the Court to find that the person depicted in the videos was Joshua. This is based on the appearance of the person in the videos and because the videos are from the SD card found in Joshua's bedroom. However, it remains entirely plausible that the person depicted on the video is Kenan, and not Joshua. That is notwithstanding the SD card was located in his brother's bedroom. Therefore, it would be unsafe to make the requested finding. In such circumstances the value of the videos falls away, and it could not be said their probative value was significant. Accordingly, I will not admit those videos into evidence.

Joshua's tendency to possess visual recordings depicting females doing private acts

31. The prosecution also contended that one video and 11 still images of unknown females in change rooms at an unknown location located on Joshua's mobile phone demonstrate Joshua had a tendency to possess visual recordings depicting females doing private acts in circumstances where they could reasonably expect privacy, and he did so with a specific interest in such recordings.

32. The relevance of this tendency was said by the prosecution to make it more likely that Joshua committed the offences against the tenants.

33. While the establishment of that tendency may make it more likely that Joshua committed the offences against the tenants, those offences relate to capturing images, rather than merely possessing them. That difference is of some significance, as the two acts are not the same. The difference means that there is the potential for excessive weight to be placed on that tendency, leading to an unjustified confidence that Joshua captured images. Ultimately, I have some doubts about the probative value of this evidence and am not satisfied that it outweighs the prejudicial effect just described.

34. I also note that this evidence would be of more significance to establish who committed an offence, rather than whether an offence was committed.

35. Accordingly, I will not admit those images into evidence.

The defendants' joint commission of capturing visual data offences - tenants

36. Joshua resided full time, and Kenan part-time, at the residence. Three young females each sublet one of the above bedrooms during the time periods particularised in the relevant charges.

37. The defendants jointly owned the residence in which police discovered two bedrooms to be fitted out with hidden cameras in coat rack fittings and television sets.

38. Police called an electrician to make safe the wiring linked to the cameras. The electrician observed the coat rack cameras to be powered by sockets in the roof space. He opined those sockets were installed exactly how an electrician would do it, and there was no reason for those sockets to be where they were. Kenan is a licenced electrician. I understand from the photographs the sockets were power points.

39. DNA profiles consistent with the common DNA profile of the identical twin defendants were located inside the modified televisions for bedrooms 2 and 3, as well as on the hidden camera behind the coat rack in bedroom 2. The lowest probability ratio of those matches was that it was 750 million times more likely that the DNA came from one or both of the defendants than from an unrelated individual from the Australian Caucasian subpopulation.

40. A WhatsApp conversation was stored on a Samsung mobile phone seized from Joshua and described by Joshua at that time as 'My Samsung phone'. Joshua later provided the passcode to that phone. In the contact application of that phone, the contact 'Josh Tiffen' was allocated the 'Me' attribute. I find beyond reasonable doubt that the Samsung phone belonged to and was used by Joshua.

41. That WhatsApp conversation on Joshua's phone was with the username 'Keen'. The phone also contained a contact 'Keen' with a phone number the same as the mobile phone number provided by Kenan to police.

42. The content of the WhatsApp conversation included many exchanges that related to the running of the defendants' home, their living arrangements and included references to their arrangement for residing in the home, arranging tenants to assist with loan repayments and work done, being done and to be done on the home.

43. I am satisfied beyond reasonable doubt about the presence of the above hidden cameras, the above arrangements with the female tenants, and that the above WhatsApp conversation was a conversation between the defendants. The defendants ultimately conceded the conversation was between the two of them.

44. The WhatsApp conversation contained repeated and detailed exchanges involving the planning for, and installation of, cameras in the bedrooms, the accessing, including remote accessing, of images from those cameras, and the possible future distribution of those images for fee. It also included exchanges about arranging for female tenants to occupy the bedrooms for the purpose of assisting with loan payments and covertly viewing them using the hidden cameras. There were also exchanges about installing a hidden camera in a bathroom. There were exchanges, possibly in jest, that referenced Kenan providing '100k' for a 'subscription' to access the images produced by the cameras. These exchanges commenced before the female tenants moved into their rooms. The conversation indicated that the images from the cameras could be viewed remotely and played back after the event.

45. Additionally, there is evidence that miniature cameras were purchased under the names of each of the defendants. Small cameras, associated parts and manuals were located within Joshua's and Kenan's bedrooms.

46. Then there were images from the bedroom cameras found on Joshua's mobile phone.

47. The charges involving the first tenant were particularised to have occurred between 6 March and 9 May 2019. The defendants conceded that the first tenant initially moved into the house on 6 March 2019 and for two weeks thereafter occupied bedroom 2. She was the only tenant until 20 March 2019. Bedroom 2 was one of the bedrooms which had cameras hidden within the coat rack and television.

48. The WhatsApp conversation is between Joshua who was living in the home and Kenan who was living interstate. It includes exchanges that refer to the first tenant by name, although misspelt, when she will move in and later whether she was home. On the evening of 7 March 2019, Joshua states 'She wil (sic) be here in about 15 min' and Kenan immediately replied 'Yes. I see you have changed the locks lol I see everything'. There is an exchange about Joshua changing the password to the camera set up with Kenan responding that he has paid enough for a lifetime subscription. Some hours later, Joshua observes, 'Show is over. She will be up about 6:30 or 7 in tbe (sic) morning'. On 8 March 2019, Kenan observes '7:02am inserting tampon great. I'm a legend.'

49. The evidence from the first tenant was that she was not aware of the hidden cameras and did not consent to being filmed.

50. When I consider the evidence as a whole, in particular the parts of the WhatsApp conversation that evidence planning, the arrival of cameras, directions and requests associated with installing the cameras and discussions about how to view the images from those cameras, as well as the sophisticated installation of the hidden cameras, and the presence of uninstalled, but similar cameras in the bedrooms of both defendants, I am satisfied beyond reasonable doubt that the defendants intentionally entered into an agreement together that an offence would be committed by one or both of them. In reaching this conclusion I am satisfied that no reasonable hypotheses to the contrary remains open on the evidence. The offence was the offence of capturing visual data, contrary to s 61B(1) of the Crimes Act 1900, and involved the first tenant.

51. When I consider the evidence as a whole, I am satisfied that Kenan used the cameras for that purpose, and that no reasonable hypotheses to the contrary remains open on the evidence. I am satisfied beyond reasonable doubt that he intentionally used the hidden cameras to capture images of the first tenant, while she was inserting a tampon while in her bedroom, and that those images were, and the defendants intended them to be, capable of being transmitted in real time and recorded. Further, I am satisfied beyond reasonable doubt that a reasonable person would, in all the circumstances, consider the capturing of those images an invasion of privacy and indecent.

52. Ultimately, I am satisfied beyond reasonable doubt that the offence of capturing visual data, contrary to s 61B of the Crimes Act 1900, was committed by Kenan against the first tenant, and it was done in accordance with the above agreement and as contemplated by s 45A of the Criminal Code 2002. Further, I am satisfied beyond reasonable doubt, that Joshua was at least reckless about the commission of that offence.

53. Accordingly, I find these charges have been established against each defendant.

54. The charges involving the second tenant were particularised to have occurred between 20 March and 9 May 2019. The defendants conceded the second tenant occupied bedroom 2 for that period. The third tenant moved in later on 24 May 2019.

55. The WhatsApp conversation included exchanges that commented on her moving into the room that the first tenant had occupied, being 'new talent' and made specific observations about features of her naked body and, at one point, the presence of a box of beer on her bed for her father. For example, Kenan, who remained interstate, observed on 22 March 2019, 'She is the best for that room. Always a show' and later requested 'I need to go to work. Record or tell me times of action.' On the evening of 23 March 2019, Kenan observed 'She naked with door open then goes. Bathroom top less. (sic) Fuck me.'

56. The evidence from the second tenant was that she was not aware of the hidden cameras and did not consent to being filmed.

57. When I consider the evidence as a whole, in particular the parts of the WhatsApp conversation that evidence planning, the arrival of cameras, directions and requests associated with installing the cameras and discussions about how to view the images from those cameras, as well as the sophisticated installation of the hidden cameras, and the presence of uninstalled, but similar cameras in the bedrooms of both defendants, I am satisfied beyond reasonable doubt that the defendants intentionally entered into an agreement together that an offence would be committed by one or both of them. In reaching this conclusion I am again satisfied that no reasonable hypotheses to the contrary remains open on the evidence. The offence was the offence of capturing visual data, contrary to s 61B(1) of the Crimes Act 1900, and involved the second tenant.

58. The content of the WhatsApp conversation demonstrated that the cameras were in fact used to capture images of the second tenant. When I consider the evidence as a whole, I am also satisfied that Kenan used the cameras for that purpose, and that no reasonable hypotheses to the contrary remains open on the evidence. Therefore, I am satisfied beyond reasonable doubt that Kenan intentionally used the hidden cameras to capture images of the second tenant, while she was naked in her bedroom, and that those images were, and the defendants intended them to be, capable of being transmitted in real time and recorded. Further, I am satisfied beyond reasonable doubt that a reasonable person would, in all the circumstances, consider the capturing of those images an invasion of privacy and indecent.

59. Ultimately, I am satisfied beyond reasonable doubt that the offence of capturing visual data, contrary to s 61B of the Crimes Act 1900, was committed by Kenan against the second tenant, and it was done in accordance with the above agreement and as contemplated by s 45A of the Criminal Code 2002. Further, I am satisfied beyond reasonable doubt, that Joshua was at least reckless about the commission of that offence.

60. Accordingly, I find these charges have been established against each defendant.

61. The charges involving the third tenant were particularised to have occurred between 24 April and 9 May 2019. The defendants conceded the third tenant occupied bedroom 3 for that period. Bedroom 3 was the second bedroom with cameras hidden in the coat rack and television.

62. Images of the third tenant were found on Joshua's mobile phone. They involved two videos and one still image depicting the bedroom used by the third tenant and included images of her moving about the room while naked and getting dressed.

63. The WhatsApp conversation included exchanges that referred to the third tenant by name, commented on her naked appearance, masturbation and use a vibrator, and discussed the difficulties Kenan had with playing back footage.

64. The evidence from the third tenant was that she was not aware of the hidden cameras and did not consent to them being placed in her room. The unavoidable inference is that she also did not consent to being filmed.

65. Both defendants made admissions that these images depicted the third tenant.

66. When I consider the evidence as a whole, in particular the parts of the WhatsApp conversation that evidence planning, the arrival of cameras, directions and requests associated with installing the cameras and discussions about how to view the images from those cameras, as well as the sophisticated installation of the hidden cameras, and the presence of uninstalled, but similar cameras in the bedrooms of both defendants, I am satisfied beyond reasonable doubt that the defendants intentionally entered into an agreement together that an offence would be committed by one or both of them. In reaching this conclusion I am satisfied that no reasonable hypotheses to the contrary remains open on the evidence. The offence was the offence of capturing visual data, contrary to s 61B(1) of the Crimes Act 1900, and involved the third tenant.

67. The images located on Joshua's mobile phone and the content of the WhatsApp conversation demonstrated that the cameras were in fact used to capture images of the third tenant. When I consider the evidence as a whole, I am satisfied that one or both of the defendants used the cameras for that purpose, and that no reasonable hypotheses to the contrary remains open on the evidence. I am satisfied beyond reasonable doubt that one or both defendants intentionally used the hidden cameras to capture images of the third tenant, while she was naked in her bedroom, and that those images were, and the defendants intended them to be, capable of being transmitted in real time and possibly recorded. Further, I am satisfied beyond reasonable doubt that a reasonable person would, in all the circumstances, consider the capturing of those images an invasion of privacy and indecent.

68. Ultimately, I am satisfied beyond reasonable doubt that the offence of capturing visual data, contrary to s 61B of the Crimes Act 1900, was committed by one or both defendants against the third tenant, and it was done in accordance with the above agreement and as contemplated by s 45A of the Criminal Code 2002. Further, I am satisfied beyond reasonable doubt, that if only one defendant committed the principal offence, then the other defendant was at least reckless about the commission of that offence.

69. Accordingly, I find these charges have been established.

1. In regard to the charges against, Joshua Tiffen, I find the defendant guilty of charges:

CC 9137/2020 - Attempt intimate observations or visual data

CC 9138/2020 - Attempt intimate observations or visual data

CC 9139/2020 - Attempt intimate observations or visual data

2. In regard to the charges against, Kenan Tiffen, I find the defendant guilty of charges:

CC 9132/2020 - Attempt intimate observations or visual data

CC 9133/2020 - Attempt intimate observations or visual data

CC 9134/2020 - Attempt intimate observations or visual data

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for decision of his Honour Magistrate Theakston