R v Andrew Dean McIntosh

R v Andrew Dean McIntosh - [2007] NSWDC 36 - NSWDC 2007 case summary — Zoe

[28]

Vanuatu 33 The boys travelled to Vanuatu between 10 and 27 April, 2005 with the accused and another individual - a production assistant called Hayden Stewart. They all stayed together in a unit on an island, Erakor Island, off Vanuatu. The boys shared a room in the unit, the boys sleeping in a double bed, the accused sleeping in a single bed in the same room. There was a bathroom and shower attached. 34 The events the subject of counts one and two took place on that island. 35 The boys' father, together with a scriptwriter called Daniel Stevenson, joined them for about the last twelve days of the trip. It was while the boys were staying in the unit and using the shower(s) attached to the unit that the acts the subject of counts one and two were said to have occurred. 36 While in Vanuatu the boys engaged in snorkelling, jet skiing, and other activities. They were taken by the accused to an island where the photographs and videos tendered on the voir dire were taken of them. Those videos were said to be the child pornography found in the possession of the accused which form the basis of count four. 37 During the Vanuatu trip, and apparently while the boys were on a remote island alone with the accused, he took photos of them naked and together on a towel. It seems that those photographs were taken at about the same time that the accused took the videos of the boys which are referred to elsewhere in these reasons. 38 The accused said to the boys that the photos 'were for your mum'. This was apparently in the context where the accused had said that the boys' mother had wanted photos of them. 39 The boys' father had joined the group some twelve days before the end of the trip. The boys had some discussions with their father either at that time or shortly after their return trip - although the contents of those conversations are not precisely clear in the evidence given on the voir dire. 40 There was a phone call between Mr K and Mrs K (who was then in America) and a subsequent phone call involving MTK who said that he had been the subject of photos being taken of him while he was naked. That call occurred on or about 27/28 April, 2005. 41 MTK had a telephone call with his mother during which he referred to the photos and may have asked his mother whether she had received them. She had not and was a matter which was of concern to her, leading as it did to her getting the first available flight from the US to return.

[41]

72 MTK said that he had a close brotherly relationship with NRK but did not discuss his problems with him. He confirmed other aspects of the evidence given by NRK, although in different language. He said he had discussed with his mother his feelings about what had happened in Vanuatu although he had a lot of different feelings on that subject. He said he didn't discuss in detail what had happened with his father nor with his brother. He said that he had not seen a copy of NRK's video nor read a transcript of what NRK said in his interview. He also confirmed that neither his mother nor his father had told him what to say. 73 In response to what his parents had said about giving evidence he said that they had told him that when he gave his evidence he should say clearly "yes" or "no" not nod his head. They had not told him or instructed him about the type of evidence he was to give nor to read material relating to the matter. 74 He had watched the DVD of his interview with the San Diego Police on the night prior to giving his evidence on the voir dire. He watched that by himself and also watched the video of his record of interview with the Chatswood Police in the prior week. 75 He said that he hated the accused because of the way the accused acted towards his (MTK's) father and also because of what he did to him (MTK) - "he broke trust". 76 MTK confirmed that after the boys returned from Vanuatu he had spoken to NRK about the fact that the accused had done something inappropriate. He said that that was in the context where he and NRK had had a discussion about whether they should tell anybody about what had happened in Vanuatu. 77 He said that he had spoken to his mother on the phone and told her about the photographs which had been taken. 78 MTK denied discussing with his parents the kind of evidence that he was going to give the police when he spoke to them in San Diego. He also denied speaking to NRK about what he would say to the San Diego Police or discussing with NRK what he had said to the NSW Police. 79 There was considerable cross-examination on the voir dire in relation to MTK's fears about the accused taking his mother away and whether or not he had said that to his father.

[47]

102 Both boys and their parents demonstrated some considerable antipathy to the accused - but arising out of the incident or the surrounding circumstances. 103 NRK said at the commencement of his evidence on the voir dire that he thought the purpose of him coming to court and giving evidence was to put Andy (the accused) in jail. MTK admitted to a hatred of the accused for what the accused had done to his father 'and for what he did to me' - which he very firmly added in cross-examination. 104 There were clearly a range of reasons why each had the feelings of antipathy that they each did - all of them natural and understandable on their accounts when considering the totality of the evidence they gave. I think the evidence also makes it clear that the boys had discussed the possibility of their father being supplanted by the accused in the family and the related possibility of some kind of parental alienation. I accept that the boys did not know about the money issues between the accused and their parents, at least to any detail. 105 The elder boy, MTK, was probably more distressed than his younger brother when giving his evidence. That may be attributable to the fact that as an older child he had the greater insight into what had happened as well as what he had been doing, what he had been asked and made to do. There are also some indicia of protectiveness towards his younger brother in the evidence. Both boys were clearly upset during their evidence and the interviews. None of their reactions seemed to me to be staged or histrionic or rehearsed or anything other than a spontaneous, natural and not disproportionate reaction to the situation. 106 During the second interview with the police on 24 August, 2005, and after watching the first 10 of the video files, MTK said that he didn't want to watch the videos any further and "I just hate the guy' - the accused. 107 Elsewhere during the interview, MTK indicated an intense dislike of the accused but in my view there was no attempt by him to manufacture evidence or to manipulate the evidence or his responses in any way. 108 In his answers to the US Police in an interview in San Diego (exhibit VD 5 Q/A 467 and 502) MTK also said that he had not discussed the matter with NRK other than on his return from Vanuatu ' a little bit' although more in the context of whether the boys should tell their parents of what had occurred. The boys at that time were clearly aware that their father was very disappointed by what had happened in Vanuatu, was alienated from the accused.

[48]

109 Here the evidence on the voir dire from all four members of the K family amount to total and complete denials of any kind of concoction or rehearsal or agreements to give evidence in particular ways on particular subjects. 110 There does not seem to be any pre-existing or antipathy unrelated to these incidents or the relationship which had developed. Each boy was apparently appreciative of what the accused offered them before the incidents - the Crown alleges that that is what could have been expected from the grooming process. Both - and particularly MTK - considered that the accused had attempted to supplant his father's relationship with the boys and each of them. 111 There had clearly been some preparation by each boy prior to each of them giving evidence on the voir dire - which, in the case of MTK, extended to him watching one of the videoed records of interview carried out with him. I also had some reservations in accepting that both boys had not discussed their evidence with each other and their parents to any extent (as opposed to any significant extent) - especially given that the giving of that evidence was the whole purpose of their trip to Australia. However, preparation and the reading of one's own statement or watching one's own prior interview does not amount to concoction. 112 The presentation of each of them during their respective interviews and evidence was similar. I had some reservations about the use of MTK's phrase about the accused that 'he broke trust' which seemed to be an expression of a concept more similar to his parents' obvious feelings rather than being consistent with his own description of and reaction to situations. However, other than that, I did not detect any similarity in the language each used nor commonality of language or responses each separately gave in relation to the incidents involving each of them indicative of collusion in their evidence nor of concoction nor rehearsal. Indeed, there were some differences in their responses consistent with different recollections and understandings. Those in turn will presumably form the basis of cross-examination. 113 The extent of what antipathy there is and was will doubtless be a matter for cross-examination in the trial. The jury will be directed to bear that evidence and their respective presentations in mind when considering the accuracy or otherwise of their evidence. 114 There are some discrepancies and inconsistencies between the evidence of the boys and their parents and each of them. However, those inconsistencies are explicable and, on one view, support the submission that there has not been a concoction or rehearsal by the boys or their parents or any of them in relation to their evidence either on earlier occasions or in the coming trial.

[64]

137 Two videos were extracted from the 29 videos tendered on the voir dire - these forming VD7. 138 The defence objection was taken that the videos in their format were taken at a different speed both visually and aurally from the other 27 videos in that they showed lingering, almost voyeuristic shots of the boys, their buttocks, and genitalia. At some stages the close up of the boys buttocks and genitalia fill the whole screen. The voice over those two particular videos had been slowed down so that it was inaudible and unintelligible. 139 The Crown informed me that this was the state in which the two videos had been located at the accused's home when the search warrant was executed. The Crown also submitted that the videos, when located by the police, were unable to be played. They had in fact been written over in a way to prevent them being changed. 140 The defence objected to the videos being submitted to the jury at all and, in particular, to the slow motion form as the presentation in the video would give an unfair impression of the way the videos were shot and the purposes for which they were prepared. The submission was that the original police notification was that the videos had been corrupted and that they could be replayed at an appropriate speed and with an appropriate voice over being provided and that that meant that those two files of the videos should not be received into evidence. 141 My tentative ruling was that those videos could be played in the form in which they were located by the police at the accused's premises. To overcome any prejudicial effect, I indicated that I would also permit the playing of the video in its 'normal' speed and volume, if that was able to be reconstituted, subject to the appropriate expert evidence being given as to how the videos were restored and able to be played in that way. It would then be a matter for the accused whether he wished to give evidence as to how the videos came to be in the form they did and any other matters.

[85]

169 I have given particular consideration as to whether I should separate the trial on the fourth count particularly to ensure that: There is no prejudice arising from the admission of the videos in the context of the other three counts; and That the accused's defence of artistic merit can be considered without any reference to the other three indecent assault matters 170 The whole purpose of the relationship between the accused and the two boys was said to be for the artistic purpose of making a film. It is as part of that explanation that the defence case will be to play other videos/DVDs/film material and to show photographs which are said to be indicia of a legitimate movie production process. The videos are said to be one part of that process, namely, the taking of test shots for the final movie, and thus part of the total artistic process. 171 However, it seems to me that if the defence is to be properly presented it will need to be done in the context of how the boys came to be in that situation and were presented in that condition and carrying out the movements pursuant to the accused's directions. 172 Similarly, as a matter of fairness to the Crown, it would be artificial to present one part of the whole process without permitting another part of the process, apparently equally integral to the total scheme. 173 The other consideration that weighs on me in this assessment process is that the videos are and will be admissible in relation to the other three counts in any event as context and/or tendency evidence. 174 For those reasons and although the matter is finely balanced, having considered the matters set out in section 137 of the Evidence Act, the probative value of the evidence of the videos in the context of the totality of the cases to be run, the potential prejudice to the accused, the factors I have set out above in relation to the factors relevant to the separation of trials of counts on an indictment as well as the public interest considerations, in my view it is appropriate that the trial include the trial on count 4. 175 I do not accept that the statutory defence available on count 4 will be overlooked by the jury properly instructed nor will the jury be overwhelmed by the fact that the video will be being looked at in the context of a child sexual assault trial. 176 The ultimate test is whether there would be a substantial miscarriage of justice or whether impermissible prejudice would be created against an accused if the trials were not separated. I do not think that that is the case here.

[114]

210 In my view, the relationship here between the accused and the two boys was of a close nature which moved from an ostensibly quasi-employment/recruiting situation to one where the accused had engendered and been accorded a substantial degree of trust by both the boys and their parents - and that the trust of the parents was known to the boys. 211 While not of an innately sexual nature at least in Sydney and up until the tanning incident, the relationship had as its parameters a situation where the boys were frequently in states of minimal clothing ultimately leading to a situation where they were on occasions, naked and where the accused gave them instructions to that effect and while they were in that state. 212 This is not a case where there are simply superficial similarities in the incidents the subject of the various counts. The manner of behaviour by the accused as alleged by the Crown is almost identical in both matters involving NRK and the matter involving MTK. The charges arise out of essentially the one course of conduct, the one ongoing relationship and a continuing pattern of behaviour involving each of the two boys and both of them. The acts said to constitute the first two counts occurred almost contemporaneously, in the same location and involved almost the same kinds of events. The events clearly took place at the same time with each boy saying what he experienced himself and what he saw occurring. 213 This evidence goes not only to explaining the nature of the relationship, it also has a direct probative value relevant to the issues as outlined, in particular the circumstances in which the acts were committed - Gipp v R (1998) 194 CLR 106; Tully v The Queen [2006] HCA 56. The events could be used as confirmatory or critically of the evidence of either of the complainants in support of any finding - R v Milton [2004] NSWCCA 195 at [43]. 214 Following the approach in R v AH (1997) 42 NSWLR 702 and Qualitieri v The Queen [2006] NSAWCCA 95, it seems to me the evidence can be characterised as relationship evidence and as tendency evidence. If it is the latter, its admissibility needs to be determined in accordance with the provisions of sections 97 and 101.

[123]

228 As an ancillary purpose the Crown also submits that the videos will rebut any suggestion that they have been prepared for some artistic purposes. Further, the Crown relies on both the videos and the matters set out in the notice as tendency evidence and to rebut the arguments in support of concoction. 229 The Crown submits that the evidence of the video is directly relevant to the context of the relationship between the two boys and the accused and that that relevance is established both in relation to the matters the subject of count 3 (the act of indecency in Sydney) as well as to the two counts relating to each boy in Vanuatu. 230 The defence asserts that the films are not contextual evidence but were simply test footage being part and parcel of the film which was being produced. If that was the case, and there was to be only one central character for whom the boys might be alternate actors, then it is difficult to see how the videos are the precursor to the ultimate film. The two boys are shown together in many of the video sections. 231 I do not accept the submission that the video would not be relevant to the count involving NRK in Sydney (count 3) as, in my view, it would be clearly relevant to the relationship between NRK and the accused even though the video post-dates that act by the 18 day period referred to earlier. The videos were the culmination and purpose of the whole alleged point of the relationship, the earlier acts involving the tanning process. 232 While the video does not show the accused showering with the boys let alone touching them, nevertheless what is portrayed does support the close relationship between the accused and the two boys, the fact that they were compliant with his directions at a relevantly contemporaneous time, and that they were prepared to be in his presence naked in what, a jury may find to be a clearly sexual context or as a preamble to such contact. 233 It is also submitted that it is a relevant consideration on the voir dire because both parents will give evidence that they never consented to any full frontal nudity in the photographing of the boys by the accused. Knowledge of that seems to be implicit in many of the statements made by the accused to the two boys during the course of the video. 234 Again, going through the same process prescribed by sections 97, 98 and 101 of the Evidence Act, in my view the evidence contained in the videos has substantive probative value and its substantial probative value outweighs the prejudicial effect that there may be.

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