CRIMINAL LAW - EVIDENCE - Pre-trial Application - Application to adduce tendency evidence - historic child sexual offences - whether the evidence has significant probative value - whether or not the accused had a sexual interest in young males

Evidence Act 2011 (ACT) ss 97A, 101, 192.

R v Garay [2020] ACTSC 317

SCC 117 of 2020; SCC 118 of 2020

1. The respondent to this application is facing an indictment containing 16 counts of acts of indecency on a young person and two counts of sexual intercourse with a young person.

2. The offences are alleged to have occurred between 1986 and 1988 when the single complainant was aged between 12 and 14.

3. Loukas-Karlsson J heard a tendency application on 18 August 2020. In her decision, on 30 November 2020, her Honour permitted the Crown to lead certain tendency evidence (R v Garay [2020] ACTSC 317).

4. On 1 September 2020 amendments to the Evidence Act 2011 (ACT) came into effect. The relevant amendments relate to ss 97A and 101. These amendments are a product of the report of the Royal Commission into Institutional Responses to Child Sexual Abuse. It is apparent that included in the intent of the amendments is the facilitation of criminal prosecutions against persons alleged to have committed crimes against children many years ago.

5. Since the amendments, the Crown has filed a further application to lead tendency evidence which reached a final form by an amended application dated 8 December 2020. The application was supported by two affidavits of Ms Rhiannon McGlinn affirmed on 26 November 2020 and 4 December 2020 respectively.

6. Some parts of the application (relating to Incidents 3 and 4) were not contested by the respondent.

7. The dispute before me has concerned Incidents 5, 6 and 7 in support of what is referred to as Tendency Two:

To have a sexual interest in male children and to act on that interest by acquiring and watching visual recordings depicting male children engaging in sexual acts, for his own sexual gratification.

8. For present purposes there is no material distinction between Incidents 5, 6 and 7 so that success or rejection of one will flow through to the remaining incidents.

9. Accordingly it is only necessary to describe Incident 5. On 20 December 2019 the police executed a search warrant at the home of the respondent. In the course of the search the police located a USB stick containing 16 video clips of, undisputed, child exploitation material. The police asked the respondent about the material. The police officer described the conversation in this way:

The defendant told me that it was readily available on the internet and when he found a site, he would watch it to the end and would return to the site. The defendant said children ages 16, 14 or even 13 years old liked it, liked getting paid for it and know what's going on. The defendant told me that there is no point trying to stop it because there is so much out there and by allowing people to watch it, satisfied them so they don't have to touch kids. (Statement of Senior Constable Linden dated 27 January 2020).

10. The final sentence of the officer's description was not relied upon by the Crown.

11. Later on 20 December 2019, the respondent participated in a recorded record of interview. In the course of the interview the following questions and answers occurred:

Q847. All right. What's on that USB?

A That's got stuff on it.

Q848. That's got stuff on it?

A Yeah.

Q849. What stuff?

A Stuff that you're probably looking for.

Q850. Okay. Describe it to me.

A Well, just what I've recorded offline.

Q851. Okay. There's no one-there's just police officers here. Your mum and your brother can't hear us. What's - - -

A Yeah.

Q852. What's on there specifically?

A Whatever videos I was interested in - - -

Q853. Okay.

A - - - I guess is all you could say.

A854. We're going to look at it.

A Yeah, yeah, yeah. Well, you look at it-you look at it and you will know.

Q855. All right. How old are the people in the videos?

A Well, they're - some of those are very questionable.

Q856. Very questionable?

A Mm.

Q857. So when you say "very questionable", give me an age.

A Fourteen, fifteen.

Q858. And boys or girls?

A Mainly boys.

...

Q861. Yeah, right.

A Because they would have been taken down, surely.

Q862. It's illegal to have anything with someone under the age of sixteen.

A Oh, well, I'm fucked.

...

Q952. That stuff, as you said before, it's stuff that you've - - -

1. That's stuff - what I call legal stuff. See, that's why I was thinking all this stuff that I'm seeing now online, I'm thinking well, look, if it's coming - maybe all the law - not the laws are relaxing, but the - the - the standards are relaxing, so you can - so you can sort of see stuff. I mean, I would certainly draw the line with, you know, anybody being abused, as in physically abused where they're hurt or anything like that. But, um, you know, if a fifteen-year-old is enjoying something, well, he's obviously enjoying it.

1. And as I said, if it's available on - on the net that anybody could dial Lip and you don't need a password to get in and you don't need to click a box saying am I over eighteen or am I not - so I thought, well - - -

Q954. Okay.

A And they've been around for years, from what I understand.

Q955. Been around for years?

A That - that particular site has been around for years.

Q956. What's the site?

A GayBoys Tube dot com.

Q957. Okay. And how do you access it?

A You just type it in.

Q958. To?

A Through - on the - on your web browser.

Q959. My browser? What browser do you use?

A Ah, whatever, probably Firefox.

Q960. Firefox?

A Yeah, mostly.

Q961. All right. And your search engine? Or do you type it into the - - -

1. No, you just - no, you just - well, if you know what you're going for, you just - - -

Q962. You type into the address bar?

A Yeah, yeah.

12. The Crown's application was resisted on the following bases:

(a) While it was conceded that by reason of s 97A(2) there was a presumption that the material referred to above had significant probative value, I should nevertheless make an order under subsection (4) effectively rebutting the presumption in finding that the material did not have significant probative value. In respect of subsection (5) it was submitted that the two relevant considerations arose under subparagraphs (a) and (e).

(b) Notwithstanding the amendment to s 101 the probative value of the tendency evidence remained outweighed by the danger of unfair prejudice to the defendant. Part of the prejudice arose from the effective splitting of its tendency applications by the Crown as between the application heard by Loukas‑Karlsson J and the application heard by me. This was particularly relevant because the pre-recorded evidence of the complainant occurred between the two applications.

(c) Pursuant to s 192 of the Evidence Act, the application should be refused because the inclusion of the tendency material would lengthen the trial and would be unfair to the respondent.

13. I will deal with each of the above three areas of resistance in turn.

14. Starting with s 97A(5)(a), the respondent submitted that the alleged acts performed on the complainant were different to the acts to which the tendency evidence related. The acts said to relate to the complainant involved the masturbation of the complainant by the respondent and, on two occasions, anal sexual intercourse with the complainant (albeit with the complainant being clothed).

15. The tendency evidence acts did not involve the touching of any person by the respondent but rather the watching of the videos that had been saved on the USB. This material on was described by the police officer in this way:

Some of those videos depicted children engaged in solo masturbation, masturbation, fellatio and penetrative sexual acts with other children (Statement of Senior Constable Brulee dated 3 December 2020)

16. The delineation made by the police officer between solo masturbation and masturbation suggests that the latter refers to, or at least includes, masturbation by another person. The acts of anal intercourse alleged against the respondent clearly fall within "penetrative sexual acts".

17. The asserted distinction is therefore between the respondent himself doing something and watching someone else do the same act. In my view this is a difference without distinction. It certainly is not a difference which might be categorised as giving rise to exceptional circumstances as required by subsection (5). Further the viewing of the acts said to have been committed by the respondent is an overwhelming indication of a tendency to have a sexual interest in children of the same age and gender as the complainant.

18. The existence of exceptional circumstances is also relevant to the argument arising from subparagraph (e). The submission was that the passage of 33 years was sufficient, of itself, to create the exceptional circumstances. I disagree. In my view there must be something more than the mere passage of time in order for the presumption to be rebutted. Subsection (5) says the exceptional circumstances must be "in relation to", for present purposes, the period of time between the tendency act and the alleged offence. It follows that the passage of time alone is not sufficient.

19. If I am wrong in this interpretation I am still of the view that the respondent's argument fails because the very intent of the insertion of s 97A was to address historic sexual acts, a context in which 33 years is not unusual.

20. The respondent also submitted that in deciding to rebut the presumption I should consider subparagraphs (a) and (e) together in order to measure the existence of special circumstances. I do not see that submission as having support in subsection (5), but even if it did I still would not identify any special circumstances.

21. The next submission related to s 101. The respondent said that notwithstanding the removal of the word "substantial" from s 101(2) the tendency evidence still outweighed the danger of unfair prejudice to the respondent. I disagree. The evidence will obviously be prejudicial to the respondent. But it is also very probative, and to an extent that far outweighs any unfairness that might be described by the respondent.

22. The respondent submitted that the evidence could be misused by a jury. It can be assumed however that the jury will receive careful instructions on the use of the evidence. I do not see a danger of any such misuse being incapable of cure by such directions.

23. The second aspect of unfair prejudice was submitted to arise from the procedural history of the tendency applications. As noted above the first application was heard in August 2020 and the second, the current application, was heard yesterday.

24. Importantly, in between the two applications the above amendments to the Evidence Act came into force. I should note here that there was no dispute that the amendments were applicable to the current application.

25. The Crown, no doubt encouraged by the amendments, put on the second application. The prejudice however is said to arise from the taking of the complainant's evidence in October 2020 by which time the first tendency application had been heard but no notice of the current application had been given. In other words, the cross-examination of the complainant was conducted against the background of the tendency rulings having been made in the first application but without regard to the possible rulings that would arise from the second application.

26. Accordingly, submitted the respondent, the cross-examination of the complainant was approached upon a factual basis which excluded any account being taken of the tendency evidence now being considered. I accept that a cross examination will be prepared on the basis of what is expected to be the Crown case and that forensic decisions as to the questions to be asked may rest on that expected case.

27. However the respondent was unable to identify any questions that would not have been asked, or any further questions that would have been asked, of the complainant, had this tendency application been successfully made before the cross-examination took place.

28. In addition, it will be open to the respondent to seek leave to further cross-examine the complainant should my decision give rise to any further questions that the respondent might like to ask of the complainant. The complainant's complete divorce from the viewing of the videos makes this possibility somewhat remote.

29. The final submissions by the respondent related to s 192. Again, the procedural history was referred to and again I reject the submissions for the reasons given above. It was also submitted that unfairness arose from the extra time that would be likely to be added to the trial with the inclusion of the tendency evidence. As stated by the applicant, any extension of time would be limited, certainly not exceeding a full day. I do not see such an extension as giving rise to the unfairness contemplated by s 192.

In respect of the application in proceeding filed on 26 November 2020, the applicant is permitted to adduce tendency evidence as notified in the Amended Notice of Intention to Adduce Tendency Evidence dated and filed on 8 December 2020.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.