R v DJR

R v Leonard [2006] NSWCCA 276 R v Lockyer (1996) 89 ACR 457 CASES CITED: R v Fletcher [2005] NSWCCA 338; 156 ACR 308 R v Ellis [2003] NSWCCA 319 R v MM [2004] NSWCCA 364

PARTIES: Crown DJR (Accused)

COUNSEL: K Ratcliffe (Crown) W Flynn (Accused)

SOLICITORS: NSW DPP Marsdens

1 HIS HONOUR: In this application the Crown applies to call tendency evidence. The Crown has served notice that it proposes to rely on a number of pornographic images, stories and movie files recovered from a computer, seized when a search warrant was executed at the home of the accused.

2 The tendency sought to be proved is the accused's tendency to have a particular state of mind, namely to fantasise about sexual acts with young girls, as evidenced by his possession of pornographic material which included images, stories and movies of adult males carrying out sexual acts upon young girls of a similar age to the complainant, as well as young girls being in sexually explicit poses. On 19 December 2007, the accused pleaded guilty to a charge of possessing child pornography at the Liverpool Local Court, and by this plea he admitted possession of the material.

3 The material upon which the Crown relies which was tendered on the voir dire includes three movie clips. One of these shows a girl of about ten to twelve years being touched on the vagina, masturbated and digitally penetrated by an adult hand. One shows a girl of similar age being touched on the breasts and genitals by a dildo held by an adult female, and she is ultimately penetrated by the dildo. The third shows a different girl of about the same age move her mouth backwards and forwards on the erect penis of an adult male. The still photographs show a number of different girls aged about ten, or possibly older. Most of them are naked or dressed provocatively. Some are in sexually explicit poses revealing their genitals. Some are engaged in penile-vaginal intercourse with an adult in various positions. Some appear to be masturbating, and it is not necessary to go into the detail of all of them. Of the three narratives tendered on the voir dire, all relate to an adult male having a series of sexual encounters with one or more ten-year-old girls. All involve penile-vaginal intercourse and fellatio, and, in one of them, the girl is the daughter of one of the adult males.

4 The accused is charged with three counts of indecently assaulting the complainant, who is the ten year old grand-daughter of the accused's wife. There is no dispute that the evidence would be prejudicial, and significantly so to the accused, if it were to be placed before a jury. As counsel for the accused said in his submission, the possession of child pornography is regarded with particular abhorrence in the community.

5 I must consider the relevant provisions of the Evidence Act. They are:

97 The tendency rule: (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind if: (a) (and that deals with notice) (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

6 The words "a tendency (whether because the person's character or otherwise) to act in a particular way or to have a particular state of mind" include what has been referred to in the common law cases as a predisposition or propensity, and, I consider also, includes a motive, which is either a tendency to act in a certain way or a state of mind. In this respect, I disagree with some of the obiter dictum of Hodgson JA in Leonard [2006] NSWCCA at 276, upon which Mr Flynn, for the accused, relied. His Honour was there discussing the evidence of a sexual relationship between the complainant and the accused beyond the particular acts charged, so what his Honour said is not directly relevant here. After referring to some previous cases, his Honour made the following comments: [49] It seems to me that, where a man is charged with particular sexual assaults against a complainant, evidence that he committed similar assaults against the complainant on other occasions could be relevant in at least three different ways, only one of which would be as tendency evidence: (1) It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant's account of the assaults charged if these assaults were thought to be isolated incidents, in particular implausibility associated with the way each party is said to have behaved on those particular occasions. (2) It may be relev a nt in supporting an inference that the accused was sexually attracted to the complainant so that he had a motive to act in a sexual manner towards the complainant. (3) It may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but was also a person who was prepared to act on that motivation to the extent of committing sexual assaults.

I omit some words. 52. In my opinion use of the evidence for purpose (2) is not use of tendency evidence: It is rather evidence supporting an inference that the accused had motivation to act as charged. Evidence of a similar kind could be provided by a letter from the accused declaring sexual attraction to the complainant, in the absence of evidence that the accused had actually done anything to or with the complainant. Evidence used in this way might be called relationship evidence or it might be called motivation evidence.

7 And I interpose my own comment there. What his Honour was discussing was, of course, relationship evidence, not the evidence of the type that the Crown seeks to adduce in this case, but, in any event, it is my view that the wording of section 97 would include, within the expression 'tendency evidence', evidence of motivation. Returning to Justice Hodgson's judgment: 53. In my opinion tendency evidence against an accused is evidence to the effect that the accused is a person who, by reason of his or her character is more likely than others to act in a particular way or have a particular state of mind. Evidence that an accused actually has an ordinary human motive to do something, such as sexual feelings towards someone else, is not as such, that kind of evidence. I do not think it could be said that, because a married man feels sexually attracted towards a woman other than his wife, he therefore has a tendency to commit adultery with her even if he never does so. 54. It is sometimes said that if evidence is used only for purpose (1), that evidence does not support the guilt of the accused. In my opinion, evidence used in that way does support the guilt of the accused by making the complainant's account of the assaults charged more believable. However if this is the only relevance, questions can arise as to whether the way in which this evidence is given, and particularly the way, if any, it is corroborated, has a prejudicial effect outweighing its probative value".

8 Mr Flynn relied particularly on the last two paragraphs that I read, but I respectfully find that the argument does not apply where the evidence is of a different type to that which his Honour was considering.

9 In this case, the fact for the jury to decide in each charge is whether the accused intentionally touched the complainant on her naked vagina. The tendency evidence upon which the Crown seeks to rely is said to be relevant, because it might reasonably affect the assessment by the jury on whether, in fact, the accused did what is alleged.

10 I must first decide whether the challenged evidence is relevant, and 'relevance' is defined in the Evidence Act s 55: (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

11 The expression 'probative value' is also defined in the Evidence Act (dictionary): 'probative value' of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue

12 Thus, if the evidence of the pornography could rationally affect the probability of the existence of the facts in issue, that is, whether the accused touched the complainant as alleged, it is relevant.

13 The offence charged requires proof of intention: the accused's state of mind is clearly relevant to the question of intention, and may also be relevant to the question of the way in which he acted physically.

14 Mr Flynn, for the accused, argues that although the tendency notice says that the material is evidence that the accused fantasised about young girls, there is no direct evidence of this. However, 'fantasy', or fantasising, is a mental process analogous to knowledge. Knowledge can be proved. It can be proved by something a person alleged to know something has said, or it may be inferred from something that that person did. Usually, proof of a state of mind is established by inference, and this proof is equally cogent as direct evidence of other facts.

15 If the accused had a state of mind, or tendency to fantasise about sexual activities with young girls, then it is rational to infer that it is likely that he would act out those fantasies than if that state of mind had not been proved.

16 The fact that there is no direct evidence that the accused ever fantasised about young girls does not invalidate either the tendency notice or any invitation the Crown might make to the jury to infer that, at the time of the commission of the alleged offences, he had a particular state of mind.

17 In my view, the challenged evidence is not only probative, but is highly probative.

18 The Court must then consider what s101 requires - in particular whether the probative value of the evidence substantially outweighs any prejudice it may have on the defendant. What Hunt CJ at CL in Lockyer, (1996) 89 ACR 457 at 459, said, as to the meaning of the word 'significant' in s 97, has been accepted in a number of subsequent cases: There is no definition of "significant" probative value as that phrase is used in s 97. In its context as I have outlined, however, "significant" probative value must mean something more than mere relevance and something less than a "substantial" degree of relevance.

19 Subsequently, all the previous law was considered by Simpson J in R v Fletcher [2005] NSWCCA 338; 156 ACR 308. The other members of the Court, McClellan CJ at CL and Rothman J, agreed with Simpson J, and I am going to read some passages from her Honour's judgment starting at paragraph 33: It is also useful to articulate the exercises involved in a decision to admit or reject evidence tendered as tendency evidence under s 97(1). Some precision in that analysis, also, is required. It is necessary to bear in mind: (i) the actual probative value to be ascribed to a particular piece of evidence is committed to the tribunal of fact (in this case, the jury). (ii) even where the judge is the tribunal of fact, it is not ordinarily possible finally to determine the actual probative value of any piece of evidence until the evidence in the case is complete. This is explicitly recognised in s 97(1)(b) which envisages that the evaluation of the probative value of the evidence in question is to be made having regard to other evidence "to be adduced" and implicitly by the use of the subjunctive "would not" in s 97(1)(b). (iii) whether a particular piece of evidence is capable of being ascribed probative value is to be determined by the trial judge; this is to be done by reference to the test prescribed in the definition of "probative value" contained in the Dictionary and involves an assessment of the extent to which that evidence could rationally affect (that is capable of rationally affecting) the probability of the existence of a fact in issue; (iv) the task that a trial judge undertakes under s 97(1) involves a two-step process: firstly, the assessment of the extent to which the evidence in question has the capacity rationally to affect the probability of the existence of a fact in issue; and, secondly, (where the judge concludes that the evidence has that capacity) an assessment and prediction of the probative value that the jury might ascribe to the evidence. The evidence is not to be admitted if the judge concludes that the evidence, either alone or in conjunction with other evidence already adduced or to be adduced, would not have significant probative value, that is, if the judge concludes that the jury would not regard the evidence as having probative value, and to a significant degree (in the sense explained by Hunt CJ in Lockyer (1996) 89 A Crim R 457). If the determination is that, notwithstanding that the evidence would have probative value, its probative value would not be significant, then the evidence is not admissible. [35] Two things emerge from the above. One is that the s 97(1) exercise is predictive and evaluative and is not a scientific exercise with a clear or rigid answer, or with only one correct answer - reasonable minds will, on occasions, arrive at different results following the evaluative and predictive exercise. The other is that, where evidence "to be adduced" is relevant to the exercise, the exercise must be undertaken on the assumption that the evidence will be given substantially as anticipated.

20 In this case, the other evidence of which I am aware, is the evidence of the complainant herself, in which she makes allegations that the accused touched her, as alleged. As the Court of Criminal Appeal pointed out in Ellis [2003] NSWCCA 319, the Court must make a judgment, after balancing the probative value of the evidence sought to be adduced, against its prejudicial effect on the defendant, and that balancing exercise must be carried out after the judge has considered, so far as possible, the facts of the particular case.

21 This case is, in some respects, similar to MM [2004] NSWCCA 364. In that case, Bruce James J, with whom the other members of the Court agreed, pointed out, at paragraph 61, that evidence that the accused had collected child pornography and had fantasised about sexual acts with children, and was capable, and I quote,: …of rendering more probable that the respondent acted in ways in which he is alleged by the Crown to have acted.

22 In this case, it seems to me, that the accused's state of mind, or tendency to have a particular state of mind, that is, to fantasise about sexual activities with young girls, is highly relevant in establishing whether he intentionally touched the complainant in the way alleged. I find that the probative value substantially outweighs any prejudice it would have on the accused, and I rule that the evidence is admissible.

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