R v Johnston [2012] ACTSC 89

Supreme Court of the ACT|2012-06-08|Before: Burns J

1. On 7 February 2012 the accused, Thomas William Johnston, was arraigned on an indictment dated 16 December 2011 containing the following counts:

FIRST COUNT: That on the 3rd day of November 2009 at Canberra in the Australian Capital Territory THOMAS WILLIAM JOHNSTON intentionally and unlawfully administered to EK a stupefying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause grievous bodily harm.

SECOND COUNT: And in the alternative that on the 3rd day of November 2009 at Canberra aforesaid THOMAS WILLIAM JOHNSTON assaulted EK and thereby occasioned to her actual bodily harm.

THIRD COUNT: And further that on the 27th day of February 2009 at Canberra aforesaid THOMAS WILLIAM JOHNSTON used a child, namely NK, being a child under the [age] of 12 years, for the production of child pornography.

FOURTH COUNT: And further that on or about the 28th day of March 2009 at Canberra aforesaid THOMAS WILLIAM JOHNSTON used a child, namely either EK or NK, each being a child under the [age] of 12 years, for the production of child pornography.

FIFTH COUNT: And further that on the 6th day of November 2009 at Canberra aforesaid THOMAS WILLIAM JOHNSTON intentionally possessed child pornography.

2. To each of these charges the accused entered pleas of not guilty.

3. The accused had previously been arraigned on an indictment dated 19 August 2010 in similar terms to the indictment dated 16 December 2011, save that the earlier indictment did not include the charges of using a child for the production of child pornography, which are Counts 3 and 4 on the later indictment.

4. On or around 25 January 2012 the Crown filed and served on the accused a Notice of Intention to Adduce Tendency Evidence and a Notice of Intention to Adduce Coincidence Evidence.

5. On 6 February 2012 the solicitors acting on behalf of the accused, anticipating the accused being arraigned on the indictment of 16 December 2011, filed an application seeking orders that the indictment be severed so as to require separate trials with respect to Counts 1 and 2, Count 3, Count 4 and Count 5, effectively seeking four separate trials. The accused also sought orders that the Crown not be permitted to lead evidence of tendency or coincidence as particularised in the Notices.

6. On or about 16 February 2012 the Crown filed an application seeking orders that it be allowed to lead tendency and coincidence evidence in the accused's trial in accordance with the terms of the Notices.

7. Both applications came before me on 16 March 2012 at which time I reserved my decision. As the juvenile complainant was to give evidence on 23 March 2012, I agreed to hand down my decision prior to that date. On 22 March 2012 I made the following orders:

(a) That in the trial of the accused, the prosecution be permitted to lead evidence outlined as Incidents 1 to 6 in the Notice of Intention to Adduce Tendency Evidence dated 25 January 2012 as tendency evidence pursuant to s 97 of the Evidence Act 1995 (Cth), in particular to prove that the accused had a tendency to act in particular ways and have particular states of mind as described in that notice;

(b) That the prosecution be permitted to lead evidence in relation to Counts 1 and 2 on the indictment dated 16 December 2011 in relation to Counts 3 and 4 on that indictment;

(c) That the prosecution be permitted to lead evidence in relation to Counts 1 and 2 on the indictment dated 16 December 2011 in relation to Count 5 on that indictment;

(d) That the prosecution be permitted to lead evidence in relation to Counts 3 and 4 on the indictment dated 16 December 2011 in relation to each other;

(e) That the prosecution be permitted to lead evidence in relation to Counts 3 and 4 on the indictment dated 16 December 2011 in relation to Counts 1 and 2 on that indictment;

(f) That the prosecution be permitted to lead evidence in relation to Counts 3 and 4 on the indictment dated 16 December 2011 in relation to Count 5 on that indictment;

(g) That the prosecution be permitted to lead evidence in relation to Count 5 on the indictment dated 16 December 2011 in relation to all other Counts on that indictment;

(h) That the prosecution be permitted to lead evidence in relation to "sleep assault" material located during the search warrant in relation to all Counts on the indictment;

(i) That the application to sever the indictment be refused.

8. At that time I indicated I would deliver my reasons at a later time. These are those reasons. In the course of writing these reasons it has become apparent to me that the orders I made on 22 March 2012 are too broad and require amendment.

9. On 1 March 2012 the Evidence Act 2011 (ACT) (the EA 2011) commenced operation, with the exception of ss 1 and 2 of that Act which had commenced on 13 April 2011. Prior to 1 March 2012 the Evidence Act 1995 (Cth) (the EA 1995) was in force in the ACT. The EA 2011 is intended to be uniform with the EA 1995, and the two Acts are drafted in identical terms, except for some minor differences in drafting style. In these reasons I will generally refer to the provisions of the EA 2011, which in any event has sections numbered consistent with the EA 1995.

10. The touchstone for admissibility of evidence is relevance:

55 Relevant evidence

(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.

(2) In particular, evidence is not taken to be irrelevant only because it relates to -

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to present evidence.

56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

11. The tendency rule is set out in s 97 of the EA 2011:

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 unless -

(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party's intention to present the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

(2) Subsection (1) (a) does not apply if -

(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or

(b) the evidence is presented to explain or contradict tendency evidence presented by another party.

12. The coincidence rule is set out in s 98 of the EA 2011:

98 The coincidence rule

(1) Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless -

(a) the party seeking to present the evidence gave reasonable notice in writing to each other party of the party's intention to present the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.

Note One of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.

(2) Subsection (1) (a) does not apply if -

(a) the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or

(b) the evidence is presented to explain or contradict coincidence evidence presented by another party.

13. Further restrictions on tendency and coincidence evidence adduced by the prosecution are found in s 101 of the EA 2011:

Further restrictions on tendency evidence and coincidence evidence presented by prosecution

(1) This section applies only in a criminal proceeding and applies in addition to section 97 (The tendency rule) and section 98 (The coincidence rule).

(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented 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.

(3) This section does not apply to tendency evidence that the prosecution presents to explain or contradict tendency evidence presented by the defendant.

(4) This section does not apply to coincidence evidence that the prosecution presents to explain or contradict coincidence evidence presented by the defendant.

14. It is necessary to set out the Crown case, as revealed in the revised Case Statement lodged 20 September 2011. With respect to Count 1, it is alleged that on Tuesday 3 November 2009, a public holiday in the Australian Capital Territory, the accused arranged with EK's parents for her to go to his house and help him build a fence. The accused and the EK's father had been friends for some 14 years, and the accused would regularly visit the home of EK and her family. As at November 2009 EK was 8 years old.

15. When the accused and EK arrived at his home, the accused changed into a pair of shorts and a white t-shirt, while EK waited in the lounge room. The accused and EK then went into the front yard and did some gardening. After gardening for some time the accused and EK returned to the house to cool down. The accused gave EK some fresh fruit to eat and she sat in the lounge room watching a television show called "Vampire Diaries" which aired on channel "GO" between 1.00 pm and 2.00 pm. When that show finished the accused sat on the couch next to EK and told her it was time to do an experiment. The accused had a plastic bag in front of him on the floor. The bag contained a number of small boxes which looked like chemicals. It also contained a clear glass bottle about six centimetres high with a blue lid and white measuring marks on the side. The bottle contained a clear liquid.

16. The accused was holding an adjustable white fabric mask with two elastic straps and a small silver adjustable nose clip. The accused told EK he had put garlic on the mask for her to smell. EK said she did not want to smell the garlic, so the accused put the mask in the bin. The accused then got a second mask and placed some liquid and cream on the mask. EK told the accused she did not want to put the mask on. The accused said to EK in a loud angry voice words to the effect of "Put the mask on or go home". This made EK scared and she allowed the accused to put the mask on her. The accused directed EK to lie down on the couch and told her that he had put a combination of Vicks and soapy water on the mask. When the mask was put on EK, she immediately smelled a strong smell and felt fumes sting her eyes. She became very sleepy and started seeing different shapes and colours and hearing "beeping noises". She then fell asleep.

17. Later that day EK woke up in the accused's bedroom. She was very dizzy. She walked out of the bedroom and found the accused in the lounge room watching television. She did not say anything to the accused as she was scared. After some time the accused and EK returned to working in the garden. The accused returned EK home at about 6.50 pm.

18. After returning home EK's mother noticed that EK was very pale and had black rings under her eyes. EK told her mother she felt sick. The accused told EK's mother that EK had eaten three or four peaches, four cups of cordial and a chocolate milk drink which contained vanilla essence. About 15 minutes later EK vomited. She then ate a small amount of rice and vomited again. EK said that when she was sitting down she felt okay, but when she stood up she felt like vomiting.

19. The following morning, 4 November 2009, EK's mother woke to find EK in bed with her which was unusual. EK vomited again that morning but said she felt fine to attend school. At about 10.00 am EK's mother received a telephone call from EK's school advising that she had vomited again. EK's mother picked her up from school and they went home together. That night EK's mother observed that EK was acting strangely, crying and mumbling to herself. This was very out of character behaviour for EK.

20. At about 9.45 am on 5 November 2009 EK told her mother that the masks the accused put on her face made her sleepy and she did not want him to do it anymore. EK told her mother that she had allowed the accused to do this as she was scared and he had forced her to put it on and she did not know why he did it. As a result of what EK had told her mother, she was taken to Calvary Hospital and the incident was reported to the AFP.

21. On 6 November 2009 EK was interviewed by members of the Sexual Assault and Child Abuse Team (SACAT) where she disclosed the incidents that occurred on 3 November 2009. EK also told Police that the accused had made her put on a white mask on one other occasion in the school holidays. On that occasion EK fell asleep and woke up in the accused's bedroom. Later on 6 November 2009, EK was taken to the Canberra Hospital and examined by Dr Catherine Sansum. Samples of EK's urine and blood were taken. Those were later subjected to analysis by a forensic scientist. No traces of chloroform were found.

22. On 6 November 2009 EK's mother informed SACAT members that about 18 months previously the accused had given her a clear bottle with a blue lid with measurements on the side that contained a clear liquid. The accused had informed her that it contained ether and that he had got it from his work at the CSIRO. Police later seized this bottle, and analysis of the contents by a forensic scientist showed that it contained chloroform.

23. Later that same day a search warrant was sworn for the accused's residence in Latham in the ACT. That search warrant was executed at about 6.45 pm. The accused was contacted by telephone at about 7.00 pm and returned home shortly after. Police then entered the residence. During the execution of the execution of the search warrant a number of items were seized, including:

• A clear glass bottle about six centimetres tall with a blue lid and white measuring marks, containing a clear liquid;

• A pair of shorts matching the description of the shorts the complainant described the accused wearing on 3 November 2009;

• A black Dell laptop computer containing child pornography images;

• A desktop computer containing child pornography images;

24. During the course of the execution of the search warrant the accused was cautioned, and after this caution the accused admitted to possessing the child pornography.

25. At the completion of the execution of the search warrant the accused was arrested. At about 1.00 am on 7 November 2009 the accused participated in a taped record of interview. During the interview the accused stated the following:

• He denied endangering EK's life, saying he had used garlic and Vicks on her like he would his own kids;

• He said that the container with the blue lid contained acetone which was used to clean the wheels on his car. He stated that when using it he would put the mask on to stop getting headaches;

• That he does "fire rescue" and so has masks for that purpose;

• That he put the mask on EK's face as she was "coughing and fluey" and so he put Vicks on the mask. When EK did not like the smell he put garlic inside the mask. They both then fell asleep and when the accused woke up EK was still asleep so he put her on his bed;

• That he was addicted to pornography and the child pornography had unintentionally been saved to his computer when viewing legal pornography.

26. On 1 December 2009 Police contacted GC who is the manager of CSIRO premises located at Clunies Ross Street at Acton in the ACT. GC informed Police that the accused had previously worked at those premises, ceasing employment on 17 July 2009. GC also told Police that chloroform was commonly used at the premises and that there were a number of CSIRO laboratories on site where chloroform was stored.

27. On 11 November 2009 a sample of liquid from the clear bottle with blue lid and white measurement marks located in the search of the accused's residence was analysed and found to be chloroform.

28. A number of images of "sleep assaults" were located on the laptop computer, the disk and the stand alone computer seized from the accused's premises. These images depict girls and women being subjected to sexual assaults or apparently about to be subjected to assaults whilst asleep.

29. On 18 March 2010 the accused participated in a second record of interview with Police. During this interview he stated:

• Sometimes when he was visiting adult porn sites, child pornography would start "popping up";

• He would sit and ponder how children became involved in child pornography;

• He got to the stage where he realised what he was doing was wrong and that he was supporting the child pornographers by viewing the material;

• There were times when he would wake up and think "I'm sure one of those kids had bloodshot eyes", and he would go and look at the images to see, or to check whether the children in the images had puncture marks in their arms;

• One day he went through and read what the titles of images were and sent them all to one file;

• He created a file "YOE" (for "Why on Earth") to put all the images in because they were scattered throughout the computer;

• He saved images from the stand alone computer to disk when it crashed and the disk with pornography on it he marked with "XXX" to remind himself to get rid of it.

30. On 30 March 2010 Dr David Joyce provided a report outlining the effects of administering chloroform to an 8 year old girl in the way alleged against the accused. Dr Joyce stated that chloroform has a half-life of 90 minutes, concluding that when EK's urine and blood were taken 99.9% of any dose administered would have been removed. He also stated the symptoms described by EK were consistent with the use of chloroform on her. Dr Joyce concluded:

"The administration of a chloroform general anaesthetic to an unfasted person, without facilities for safe anaesthesia or facilities to prevent, detect and manage the anticipatable consequences of chloroform exposure, represents a substantial risk to the person's wellbeing and a risk to life"

31. With respect to Counts 3 to 5, the Crown statement alleges that the laptop computer, the compact disk, a mobile phone and a stand-alone computer which were seized during the search of the accused's premises were subjected to analysis. A number of images were located which appear to be both home-made and professional images. All of these images were viewed by the informant and a number of them have been classified as child pornography material. The child pornography material located on these items is the subject of Count 5 on the indictment.

32. During the viewing and classification of material on these items seized during the course of the search on the accused's residence, two images were located on the accused's computer tower hard drive in the CD burning cache. These images were labelled "27022009.jpg" and "27022009(001).jpg". The data associated with these images indicated that they were created using a Nokia 6110 mobile phone on 27 February 2009 at about 10.24 am. The images depict a young child's groin close up with mons and outer labia reddened. There are red elastic marks on either side of the groin. The child is lying on what appears to be a plastic nappy.

33. On a number of Friday's between February and October 2009 the accused babysat NK while her mother attended appointments. The accused babysat NK on those occasions between about 10.30 am and 1.30 pm. One of those Friday's was 27 February 2009. The accused had a Nokia 6110 mobile phone.

34. As at February 2009 NK wore either "Huggies" or "Baby Love" brand nappies. She usually had red marks on her legs and inner thighs from the nappies. It is the Crown case that the child depicted in these images is NK. The production of these images is the subject of Count 3.

35. During the execution of the search warrant, a CD was located marked "XXX". The CD contained a number of images including three images labelled "thomas_2.jpg", "thomas_3.jpg" and "thomas_F.jpg". These images were also located in the CD burning cache of the computer hard drive and labelled "Thomas file 2 001.jpg", "Thomas_file2 004.jpg" and "Thomas_file2 283(1).jpg". The data associated with those images indicated that they had been created using a Nokia 6110 mobile phone on 28 March 2009 at about 12.30 am. The images all depict a young female child naked with an erect penis head touching the skin of her vagina and some of the male's fingers on his penis holding it against the child. There is a shiny substance on the upper right leg of the child.

36. On 27 March 2009 EK and NK's parents went out to dinner and left EK and NK in the charge of the accused. They returned home at about 1.30 am on 28 March 2009. It is the Crown case that the child in the images is either EK or NK and that the penis in the photos is the penis of the accused. The production of these images is the subject of Count 4 on the indictment.

37. In compliance with s 97 of the EA 1995, the Crown provided to the accused a Notice Of Intention To Adduce Tendency Evidence dated 25 January 2012. The Notice sets out five "incidents' which, as I understand, refers to evidence which the Crown proposes to tender to prove that the accused has a tendency to act in a particular way or to have particular states of mind. The Notice provides the following particulars in relation to these incidents:

The accused accessed websites with the phrases "sleepygirlsgroped", "galleries.sleepingbitch", "picgalleries.sleepassault" and "sleepingteens" in the name of the website and saved "sleepygirlsgroped" in the Favourites folder on his laptop computer, as set out in the report of Mr Edmond Wisniewski dated 10 March 2010. The accused also possessed a number of items depicting sleeping women and girls being sexually assaulted, or about to be assaulted ("sleep assaults"). The pictures of "sleep assaults" depicted adult males partially undressing the female in the image exposing her underwear, breasts or genital area while the victim slept, or pictures of sleeping children partially undressed. Some of the images contained the website notations with the words "sleepassault" and "sleepcreep" in the name of the website.

The accused accessed websites with names indicative of sites containing child pornography material, as set out in the report of Mr Edmond Wisniewski dated 10 March 2010, including websites with the following names:

"freetinygirls", "youngestgirls4u", "Lolita-avenue", "elite-preteens", "daughtersuncensored", "top.schoolgirlslist", "innocent-youth", "moistlittleholes", "daddywithdaughter", "dads-fuck-babe", "hardcoreteeniesex" and "rapedschoolgirls". The accused was also found in possession of a number of child pornography images on a CD labelled "XXX", and forensic analysis indicated that child pornography material had been stored on both the accused's computer tower and laptop computer.

The accused possessed two images located on the accused's computer tower hard drive in the CD burning cache labelled "27022009.jpg" and "27022009(001).jpg". Data associated with these images indicated that they were created using a Nokia 6110 mobile phone on 27 February 2009 at about 10.24 am. The images depict a young female child's groin close-up. The Crown alleges that these are photographs of NK taken by the accused on 27 February 2009 while he was looking after her, using a Nokia 6110 mobile phone that he had in his possession at the time.

The accused possessed a CD located during the search warrant and marked "XXX" that was found to contain images labelled "thomas_2.jpg", "thomas_3.jpg" and "thomas_F.jpg". These images were also located in the CD burning cache on the accused's computer tower. The data associated with these images indicated that they had been created using a Nokia 6110 phone on 28 March 2009 at about 12.30 am. The images depict a young female child naked with an erect penis head touching the skin of the child's vagina and a shiny substance on the upper right leg of the child. The Crown alleges these images are of either NK or EK and were taken by the accused around 28 March 2009 while he was looking after them, using a Nokia 6110 mobile phone that he had in his possession at the time.

On 3 November 2009 the accused placed a mask over EK's face and allegedly administered chloroform, which caused EK to experience unusual sounds and visual disturbances, to become unconscious and later experience nausea and vomiting. The accused also allegedly administered chloroform to EK on one other occasion prior to 3 November 2009.

On 6 November 2009 the accused was found to be in possession of a number of face masks and a bottle containing chloroform.

38. From this evidence the Crown seeks to establish that the accused has a tendency to act in a particular way, namely:

to sexually assault children;
to sexually assault children who were asleep;
to render insensible children in his care with a view to assaulting them;
to photograph the assault of children while they were asleep and to store images of such photographs;
to store images of children and adults being sexually assaulted while asleep.

39. From the above evidence the Crown also seeks to establish that the accused has a tendency to have a particular state of mind, namely:

a sexual interest in children;
an interest in the sexual assault of children while asleep;
an interest (sexual or otherwise) in viewing children in situations where they are asleep or depicted as being asleep and where they are therefore vulnerable to assault;
an interest (sexual or otherwise) in viewing adults in situations where they are asleep or depicted as being asleep and where they are therefore vulnerable to assault.

40. The nature of tendency evidence was described by Simpson J (with whom McClellan CJ at CL agreed) in R v Cittadini (2008) A Crim R 492 at [22]:

Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.
Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceeding, acted in a particular way (or had a particular state of mind).

41. The application of the provisions of the EA 1995 governing the admission of tendency evidence were recently considered by the New South Wales Court of Criminal Appeal (Campbell JA, Howie and Rothman JJ) in R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 (Ford). The principles enunciated have equal application to the corresponding provisions of the EA 2011. In Ford the Crown asserted that the accused had a tendency to act in a particular way, namely to sexually assault and indecently assault women who are asleep in his home after they have been drinking alcohol. The Crown sought to prove this tendency by evidence that the accused had allegedly engaged in conduct of this type against two women other than the complainant on a single, earlier occasion. The trial judge held that the evidence was inadmissible.

42. On appeal, the leading judgment was written by Campbell JA, with whom Howie and Ratham JJ agreed concerning the operation of tendency provisions of the EA 1995. With respect to s 97 (1) of the EA 1995 (the tendency rule), Campbell JA said at [34]:

Section 97(1) operates as both an exclusionary, and inclusory rule of evidence. If evidence is of the type referred to in the chapeau of section 97(1), that evidence is made inadmissible. To be of the type referred to in the chapeau of section 97(1) the evidence must satisfy two separate criteria. One concerns its content, namely that it be evidence of the character, reputation or conduct of a person, or of a tendency that the person has or had. The other concerns the forensic purpose that the evidence plays in the proceedings, namely that it is sought to be used 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.
However, if each of paras (a) and (b) of section 97(1) is satisfied, the exclusionary rule stated in the chapeau does not apply.

43. In the course of determining that the trial judge had been wrong in ruling the evidence inadmissible, Campbell JA exposed two errors in the trial judge's reasoning, one of which need not concern us. Relevantly for present purposes, his Honour said at [38]:

The second flaw is the judge's apparent view that the tendency evidence must itself show a tendency to commit acts that are closely similar to those that constitute the crime with which a particular accused is charged. That is not so. All that a tendency need be, to fall within the chapeau to section 97(1), is "a tendency to act in a particular way".

44. Campbell JA also addressed whether in order to establish tendency to act in a particular way, it is necessary to demonstrate repetition of particular acts or types of behaviour at [45]:

It is possible for a person to have a tendency to act in a particular way even if that tendency has not shown to be manifested on very many occasions.

45. Doubtless the more ordinary the conduct, the more difficult it will be, absent evidence of significant repetition, to establish that an individual has a tendency to engage in that conduct. For example, if I travel to Broken Hill on one occasion, it is difficult to see how this could establish a tendency on my part to travel to Broken Hill. However, if there were evidence I travelled to Broken Hill every Monday for 12 months, that would be strong evidence of a tendency on my part.

46. This would, of course, be evidence of a tendency to act in a particular way. Section 97 (1) is not restricted to proving a tendency to act in a particular way, but extends to proving a tendency to have a particular state of mind. The two are necessarily connected. Voluntary acts are the product of a state of mind, and often the way of establishing a tendency to have a particular state of mind will be to establish a tendency to act in a particular way. On the other hand, a tendency to have a particular state of mind may exist but may not be acted upon.

47. There are certain states of mind that may be proved without proof of repetition of associated acts, and proof of which may lead to an inference that the individual has a tendency to have that state of mind. Sexual attraction is one such state of mind. If evidence establishes, for example, that an individual is, at a particular date, sexually attracted to children, that, in my opinion, would allow an inference that the individual has a tendency to have that state of mind, that is, to be sexually attracted to children. Proof of this tendency, if relevant and subject to s 97 (1) and s 101 (2), is a circumstance which may be used by a jury in determining whether an accused has committed an alleged offence involving sexual impropriety involving a child.

48. The more unusual or extraordinary a demonstrated state of mind, the easier it may be to infer that the accused has a tendency to have that state of mind. Sexual attraction to children is an example. Another is that alleged by the Crown in this case, an interest in the sexual assault of children whilst they are asleep, or the other "sleep assault" tendencies alleged by the Crown. The unusualness of the demonstrated state of mind is relevant not only to establishing a tendency towards that state of mind, but is also relevant to assessing the probative value to be ascribed to proof of that tendency.

49. Section 97 (1) (b) requires the Court to be satisfied that the evidence of tendency, either by itself or in combination with other evidence to be adduced, will have significant probative value. The phrase "probative value" is defined in the Dictionary to the EA 2011 as meaning, with regard to evidence, the extent to which the evidence could rationally effect the assessment of the probability of the existence of a fact in issue. As Spigelman J noted in R v Shamouil [2006] NSWCCA 112, this definition invites attention to what is open for the tribunal of fact to conclude, not what they are likely to conclude. For evidence to have "significant probative value" the evidence must be capable of rationally effecting the assessment of the probability of the existence of a fact in issue to a high degree: Ford, at par [50].

50. Assuming that the requirements of s 97 are met, tendency evidence is not to be admitted against an accused unless the probative value of the evidence outweighs the prejudicial effect it may have on the accused: s 101 of the EA 2011. As Campbell JA said in Ford, there is a line of authority to the effect that the test of determining whether the probative value of evidence exceeds its potential prejudicial effect is essentially the same test required by s 137 of the EA 2011, to the extent that "once evidence (has) passed s 101(2) it (is) not possible to think of circumstances in which it could then be rejected under s 137": Ford, at par 59; see also R v Harker [2004] NSWCCA 427 at [46], AE v The Queen [2008] NSWCCA 52 at [41]. The test of prejudice imposed by s 137 is the risk that admission of the evidence will result in an unfair trial. As Campbell JA expressed it in Ford at [56]:

The unfair prejudice referred to in section 137 is not that the evidence is harmful to the interests of the accused because it tends to establish the Crown case ... Rather, the unfair prejudice referred to in section 137 is harm to the interests of the accused that is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way: R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL; Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at 325 [91] per McHugh J.

51. The accused submits that the Crown seeks to put before the jury allegations of "quite different conduct" to the facts it seeks to prove, and that the prejudicial effect is likely to be considerable. He submits that it is likely he will be "judged on the basis of an emotional reaction" and that directions to the jury will be inadequate to address this prospect.

52. In considering an application to adduce tendency evidence it is useful to identify the facts in issue which the party adducing the evidence will seek to prove by it. With respect to Counts 1 and 2 on the indictment, the Crown will seek to prove that the accused administered chloroform to EK so as to render her unconscious. Proven tendencies on the part of the accused to have an interest in the sexual assault of sleeping children or an interest, sexual or otherwise, in viewing people, including children, in situations where they are asleep or apparently asleep and therefore vulnerable to assault are clearly capable of rationally affecting the assessment of the probability of the accused having administered chloroform to EK on 3 November 2009.

53. If the Crown were denied the opportunity to lead this evidence, Counts 1 and 2 on the indictment would go forward on a completely misleading basis and the Crown case would be considerably weakened. The Crown case would seem implausible: the accused for no reason administered chloroform to EK to render her unconscious. Evidence that the accused has a tendency to have an interest in the sexual assault of sleeping children or an interest, sexual or otherwise, in viewing people, including children, while asleep and therefore vulnerable to assault would provide a motive for the accused to have committed an act that would otherwise seem inherently implausible, and would counter any suggestion that EK simply fell asleep naturally on 3 November 2009.

54. With respect to Counts 3 and 4 on the indictment the Crown propose adducing the tendency evidence to prove that the photographs in question are of EK or NK, that it was the accused who took the photographs, and that the accused was aware that these images were on his computer. Evidence of a sexual interest in children and of an interest, sexual or otherwise, in sexual assault of children while asleep make it more likely that the accused was the person who took the photographs, which in turn makes it more likely that the photographs are of EK or NK, particularly hearing in mind the evidence of him having access to EK and NK on the dates the photographs were apparently taken. It also makes it more likely that the accused deliberately stored these images on his computer which is relevant to Count 5 of the indictment.

55. The evidence the Crown proposes to adduce has significant probative value not only in terms of establishing the suggested tendencies, but also in establishing facts in issue in the case: see BP v R; R v BP [2010] NSWCCA 303.

56. The evidence to be presented by the Crown is of significant probative value. Whilst there is potential for this evidence to have a prejudicial effect on the accused, this may be ameliorated by appropriate and strong directions to the jury about how the evidence may and may not be used. I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect its admission may have on the accused.

57. At pars 38 and 39 above I set out the tendencies the Crown seeks to establish with respect to the accused. Applying the relevant principles, I am satisfied that the evidence is capable of establishing the following tendencies:

to act in a particular way, being to store images of children and adults being sexually assaulted while asleep;
to have a particular state of mind, being a sexual interest in children;

to have a particular state of mind, being an interest in the sexual assault of children while asleep;

to have a particular state of mind, being an interest (sexual or otherwise) in viewing children in situations where they are asleep or depicted as being asleep and where they are therefore vulnerable to assault; and
to have a particular state of mind, being an interest (sexual or otherwise) in viewing adults in situations where they are asleep or depicted as being asleep and where they are therefore vulnerable to assault.

58. The Crown submits that the evidence may establish other tendencies as set out in par 38 above, but in my opinion the evidence is not capable of establishing those tendencies.

59. I formed the view that the evidence the Crown seeks to adduce is not admissible as coincidence evidence. The coincidence rule as set out in s 98 of the EA 2011 is concerned with a particular type of coincidence reasoning. Coincidence reasoning involves drawing an inference that two events or facts are linked or connected in some way. Section 98 does not purport to govern the admissibility of evidence upon which a jury will be asked to engage in coincidence reasoning in this broad sense. Rather, s 98 governs the admissibility of a particular type of coincidence evidence, being evidence linked by a similarity in events or the circumstances in which they happen.

60. The evidence the Crown seeks to adduce does not have these characteristics. In my opinion it is not coincidence evidence for the purposes of s 98.

61. Order (a) that I made on 22 March 2012, as set out at par 7 above, is too broad in that I am not satisfied that the evidence is capable of establishing a tendency on the part of the accused to act in ways alleged by the Crown, being:

to sexually assault children;
to sexually assault children who are asleep;
to render insensible children in his care with a view to assaulting them;
to photograph the assault of children while they were asleep and to store images of such photographs.

(a) That in the trial of the accused, the prosecution be permitted to lead evidence outlined as Incidents 1 to 6 in the Notice of Intention to Adduce Tendency Evidence dated 25 January 2012 as tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT), in particular to prove that the accused had a tendency to act in particular ways and have particular states of mind as follows:

(i) to act in a particular way, being to store images of children and adults being sexually assaulted while asleep;

(ii) to have a particular state of mind, being a sexual interest in children;

(iii) to have a particular state of mind, being an interest in the sexual assault of children while asleep;

(iv) to have a particular state of mind, being an interest (sexual or otherwise) in viewing children in situations where they are asleep or depicted as being asleep and where they are therefore vulnerable to assault; and

(v) to have a particular state of mind, being an interest (sexual or otherwise) in viewing adults in situations where they are asleep or depicted as being asleep and where they are therefore vulnerable to assault.

I certify that the preceding sixty two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the appellant: Director of Public Prosecutions (ACT)

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Judgment (106 paragraphs)

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Cases Cited (1)