R v Robert Leslie Watson

District Court of NSW|2018-04-17

Judgment on application for separate trials and tendency evidence

Introduction

On 16 April 2018 the accused pleaded not guilty to three counts on an Indictment as follows: Count 1 - Between about 24 February 2014 and about 1 July 2014 at Armidale in the State of New South Wales, being a person over 18 years of age, used a carriage service to transmit communications to the recipient, AOI, being someone who the defendant believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself. Contrary to subsection 474.27(1) of the Criminal Code (Cth) Count 2 - Between about 17 August 2013 and about 1 May 2014 at Armidale in the State of New South Wales, published material, using a carriage service, the material being child pornography material. Contrary to subsection 474.19 (1)(a)(iii) of the Criminal Code (Cth) Count 3 - Between about 20 June 2013 and about 22 April 2014 at Armidale in the State of New South Wales, solicited material, using a carriage service, the material being child pornography material. Contrary to subsection 474.19(1)(a)(iv) of the Criminal Code (Cth)

The Tendency Notice dated 11 January 2016

There is no issue that the Tendency Notice provided reasonable notice to the accused. The particular tendencies are set out in the notice as follows: "(i) To have a sexual interest in persons under the age of 16 years. (ii) To search for material on the Internet that is child pornography, or is associated with child pornography. (iii) To access websites on the Internet with names associated with child pornography. (iv) To access child pornography on the Internet."
The substance of the tendency evidence which the Prosecution intends to adduce is contained in documents set out in the Notice, which had been previously served on the accused. Those documents subsequently became Ex A2 to A7 on the Voir Dire. There are a number of categories of documents to which I refer to below.
The Crown seeks a joint trial on all counts on the Indictment on the basis that the evidence in relation to each count is cross-admissible against the accused in relation to the other counts.

The accused's Notice of Motion filed on 24 December 2015

The accused seeks an order that Count 1 be separated from Counts 2 and 3, to permit separate trials. The accused relied on an affidavit affirmed by Mr Peter Kemp, solicitor, on 24 December 2015. In essence, the affidavit sets out argumentatively that the allegations in relation to Count 1 on the Indictment relate to numerous communications that occurred online between the accused and undercover police operatives, using a pseudonym, AOI, a person said to be under the age of 16 years. The allegations in relation to Counts 2 and 3 related to unrelated material located on a computer the accused was alleged to have used. It was submitted that there was no relevance of that material to the elements to be proven by the Crown in respect of the first Count. The evidence in respect of the second and third counts is highly prejudicial to the accused in respect of Count 1 and was incapable of cure by direction to the jury.
Further, upon arraignment, Counsel for the accused informed the court that with respect to Count 1, she was instructed to concede that the accused had a sexual interest in AOI, being a child under the age of 16 years. The only issue in Count 1 therefore was whether the accused was using a carriage service "with the intention of making it easier to procure the recipient to engage in sexual activity with him".

Relevant legislation for separate trials

Section 29 of the Criminal Procedure Act 1986 provides relevantly as follows: "29 (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. … (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."
Section 21 of the Act provides the power for the court to order separate trials. It provides relevantly as follows: "21(2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment. The court may order a separate trial of any count or counts on the indictment … (4) An order under this section may be made either before trial or at any stage during the trial …. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes."

Relevant principles to be applied on application for severance of Indictment

In BJS v R [2011] NSWCCA 239, Basten JA, with whom R S Hulme and Hall JJ agreed, stated: "8 In Ludlow v Metropolitan Police Commissioner [1971] AC 29, at 39, Lord Pearson cited with approval a statement in Reg v Kray [1970] 1QB 125 at 130-113: ' … Offences cannot be regarded as of a similar character for the purposes of joinder unless some sufficient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.' 9 After referring to that principle, Gibbs CJ in De Jesus v The Queen [1986] HCA 65; 61 ALJR 1 at 2 noted an established line of authority in cases involving sexual offences that 'the charges should not be tried together if the evidence on one count is not admissible on another count': citing Sutton v The Queen [1984] HCA 5; 152 CLR 528 at 531. In De Jesus, Brennan J (at 7) and Dawson J (at 10) accepted that approach, without adopting categorical language. 10 Dawson J in De Jesus noted that the concept of a 'series' of offences appeared to impose an additional characteristic beyond the fact that the offences must be of the same or a similar character, while noting that similarity is itself a feature capable of enabling the offences to be described as a series, quoting Lord Pearson in Ludlow at 39. 11 The general principle that there should be separate trials unless the evidence to be called in respect of one count is admissible in respect of another, was accepted without demur by the parties. Accordingly, the motion for separate trials was effectively to be determined by a ruling on the admissibility of the evidence."
The question of severance of the Indictment and the granting of separate trials in relation to one of the counts on the Indictment therefore turns on the court's ruling in respect of the tendency notice relied on by the Crown and therefore whether the evidence is admissible in respect of all counts on the Indictment. The Crown here, however, did not accept the general principle referred to by Basten JA in BJS v R, at [11] above.

Legislation in relation to Tendency evidence

Section 97 of the Evidence Act provides as follows: "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 adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, 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. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party."
Section 101 provides: "Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about [a defendant/an accused], or coincidence evidence about [a defendant/an accused], that is adduced by the prosecution cannot be used against the [defendant/accused] unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the [defendant/accused]. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the [defendant/accused]. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the [defendant/accused]."

Evidence relied on by the Crown

The Crown relied on a tender bundle which became Ex A and comprised seven categories of documents, being Exhibits A1 to A7. Ex A2 comprised evidence upon which the Crown relies in respect of Count 1, being the communications that took place by way of Facebook, Skype and SMS between the accused and police operatives masquerading as a 13 year old girl, AOI. It comprises substantially the evidence relied on by the Crown in respect of Count 1 on the Indictment.
Exhibits A3 and A4 are certificates of expert evidence by Mr James Oram, who was formerly an electronic evidence specialist with the New South Wales Police Force. Those certificates outline the steps taken to extract data from an Apple Imac computer and other devices alleged to have been found in premises occupied by the accused. The data extracted is set out in tabular form in Ex A5 under the headings: A. Skype Accounts B. Skype contacts C. Skype chatsync messages D. Skype chatsync messages carved E. Skype IP addresses F. Browser activity and G. Google searches.
That material, and in particular, the material under the heading "C. Skype chatsync messages" is replete with material that would evidence a sexual interest in persons under the age of 16 years. Much of that material would in fact constitute evidence of a sexual interest in children under the age of five years.
Exhibit A6 is a statement of a former officer in charge of the investigation, Detective Senior Constable Rohan Best, which sets out the steps taken to extract further material from the Apple Mac computer and other devices said to be located in the accused's residence.
Exhibit A7 sets out material extracted in tabular form under the following headings: A. Facebook URLS B. Pornography URLS
The latter category included numerous references to websites involving child abuse material and also reference to a file containing a narrative entitled "Jessica-sitting". That narrative contained child abuse material and was classified under the Child Exploitation Tracking Scheme ("CETS") as Category 4

Legal principles with respect to adducing Tendency Evidence

In FB v R [2011] NSWCCA 217, the Court said at [23]: "It is clear law that evidence that a person has or had a particular tendency is adduced in order to render more probably the proposition that, on a particular occasion relevant to the proceedings, the person acted in a particular way or had a particular state of mind. The section proceeds on the basis of inferential reasoning that people behave consistently in similar situations. The evidence is used to provide a foundation for an inference to that effect. As Simpson J (with whom McLellan CJ at CL agreed) in R v Chittadini [2008] NSWCCA 256 said: "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 proceedings, acted in a particular way (or had a particular state of mind)."
Pursuant to s 97(1)(b), the court must find that the evidence has "significant probative value". A further test is then raised by s 101 (2) of the Evidence Act 1995 (NSW), namely, that the evidence is not to be used against the defendant "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant".
"Probative value" is defined in the dictionary to the Evidence Act as follows: "'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."
The phrase "significant probative value" was considered in R v Lockyer (1986) 89 A Crim R 457. There the court said "significant" means "important" or "of consequence". It means more than "mere relevance" but something less than a "substantial degree of relevance".
The fact or facts in issue in this trial are whether the accused committed the offences contained in the indictment. In respect of Count 1, the Crown relies on evidence being records of communications on Facebook, Skype and SMS messages between 24 February 2014 and 1 July 2014 between the accused and police operatives under the guise of a pseudonym AOI. The Crown submitted that various parts of the communications demonstrated a sexual interest by the accused in persons under the age of 16 years. However, by his Counsel, the accused has conceded such an interest.
In R v Shamouil (2006) 66 NSWLR 228 the New South Wales Court of Criminal Appeal held that in assessing the probative value of evidence under s 97(1)(b), a trial judge should not take into account issues of the credibility or the reliability of the evidence under consideration; that was a matter for the jury. That decision was confirmed in DSJ v R [2012] NSWCCA 9 and also R v XY [2013] NSWCCA 12, both decisions of the Full Bench of the New South Wales Court of Criminal Appeal.
In IMM v R [2016] HCA 14, the High Court dealt with a divergent line of authority between that outlined by the Court of Criminal Appeal in R v Shamouil, supra, and a decision of an enlarged Court of Appeal of the Supreme Court of Victoria in Dupas v R (2012) 40 VR 182 where that court had declined to follow R v Shamouil.
The plurality in the High Court explained the correct approach to tendency evidence as follows: "[39] The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance. [40] Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is "probative". Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, "probative". But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law. [41] Relevant evidence is admissible under s 56 unless an exclusionary rule operates, the court is required to exclude evidence by a provision such as s 137, or a discretion provided by the Evidence Act to exclude evidence is exercised. The exceptions provided with respect to the exclusionary rules of the Evidence Act have the effect that if relevant evidence liable to be excluded comes within an exception, it may nevertheless retain its character as admissible. The condition to be met for the exception in s 97(1)(b) to apply is that the court must think that the evidence will "have significant probative value."
Tendency evidence referred to in IMM v R, supra, was of a different character from the tendency evidence here, and was rejected by the plurality, see [60] to [64]. The same evidence was rejected by Gageler J in a separate judgment as not amounting to evidence with a significant probative value - see [107].
Tendency evidence was also dealt with by the High Court in Hughes v R [2017] HCA 20. In the plurality judgment, the correct approach was referred to as follows: "[16] The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence. [17] In criminal proceedings in which the prosecution seeks to adduce tendency evidence about the accused, s 101(2) of the Evidence Act imposes a further restriction on admissibility: the evidence cannot be used against the accused unless its probative value substantially outweighs any prejudicial effect that it may have on the accused. The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years. [18] In a criminal proceeding, before tendency evidence may be adduced by the prosecution about the accused, the court must first ask whether the evidence has significant probative value and, if it does, the court must next ask whether that value substantially outweighs any prejudicial effect the evidence may have on the accused. The appeal is concerned with the answer to the first question."
The plurality went on to hold: "[40] …The test posed by s 97(1)(b) is as stated in Ford: 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible."
What is required pursuant to s 101(2) is a balancing exercise, by which the court is to compare the probative strength of the evidence with the degree of risk of an unfair trial if the evidence were admitted. Usually, for prejudice to be established there must be shown to be a danger that the tribunal of fact will use the evidence in a way logically unconnected with the issues in the case - see R v Lockyer, [1986] 89 ACrimR 457 at 460. Hence, consideration must be given to whether there is any real risk of misuse of the evidence by a jury, for example, an irrational, emotional or illogical response, or giving undue weight, or distracting them.

Crown submissions

The Crown relied on a thorough written outline of submissions setting out the relevant principles to be applied in respect of both tendency evidence and relating to separate trials. Those submissions were prepared prior to the concession made by the accused in respect of Count 1, namely, that he conceded that he had a sexual interest in AOI. Notwithstanding that concession, the Crown adhered to its submissions in relation to Ex A, on the basis that the evidence was relevant to the remaining fact in issue, namely, whether the accused had the requisite intention of making it easier to procure the recipient to engage in sexual activity with him. It was submitted the evidence of a generalised sexual interest in children under the age of 16 years goes to the state of mind of the accused. The tendency evidence was therefore relevant to whether it was more likely than not that he had the relevant intention required for the Crown to prove Count 1.
The Crown relied on DPP v FM [2013] VSCA 129 where the Supreme Court of Victoria Court of Appeal considered the intention elements for the offence of using a carriage service to groom and procure a person under 16 for sexual activity. At [67], the court said: "There is no reason, in principle, why an accused should not be convicted of "procuring" or "grooming", if, at the time of communicating, the accused intends, as a real possibility, engaging in sexual activity with the person to whom he is communicating. He need not, in our view, have formed a "fixed intent" to pursue that course. To the extent that the ruling may have suggested a need for the Crown to establish such an intent, we disagree. "Pure fantasizing", however, is in an altogether different category, and cannot be regarded as a state of mind that allows for a finding of the requisite intent."
The Crown also relied on R v Johnston [2012] ACTSC 89 to submit that evidence of the accused's sexual interest in persons under the age of 16 years generally made it more likely that the accused had the relevant intention in Count 1, intended to publish and solicit child abuse material (Counts 2 and 3) and was reckless to the fact that the material was child pornography material (Counts 2 and 3).
The Crown submitted that each of the three counts on the Indictment were of a similar character. They each involved offending of a sexual nature involving children; they all came within Part 10.6 of the Code; they all involved the use of a carriage service; they were committed during a similar period of time with some overlapping; and they all involved typed communications.
The Crown submitted that the tendency evidence constituted evidence of a significant probative value. The balancing exercise under s 101(2) of the Evidence Act was that outlined by Campbell JA in R v Ford [2009] NSWCCA 306 at [64]: "The proper carrying out of the balancing task requires the judge to identify the type or types of prejudicial effect it may give rise to, and why it is that the judge reached the view that the probative value of the evidence substantially outweighs (or does not substantially outweigh, as the case may be) any such prejudicial effect."
The Crown went on to submit that tendency evidence of its nature is evidence that has a prejudicial effect. The Crown relied on BC v R [2015] NSWCCA 327 to submit that any emotional effect that the evidence of commission of other offences would have on a jury could be accommodated by the giving of appropriate directions to the jury. The Crown submitted that the usual direction to the jury on tendency evidence, tailored to the tendency said to be demonstrated in this case, would sufficiently safeguard against improper use of the evidence by the jury.
On the question of a separate trial, the Crown submitted that the "interests of justice", as referred to in s 29(3) of the Criminal Procedure Act 1986, provided the court with a wide discretion, and was not referrable solely to the interests of the accused. The court should consider a range of considerations, not just potential prejudice to the accused, and whether it can be addressed by a direction to the jury, but also the public interest in the efficient disposition of trials and the avoidance of inconvenience to witnesses.
The Crown submitted that if the Crown's tendency argument failed, severance of Count 1 should not follow.
The Crown submitted that an order should not be made for separate trials for the following reasons: 1. The evidence in respect of each count was such that none of the counts were bolstered by others; 2. A realistic assessment by the jury of the full circumstances surrounding the accused's conduct with respect to Count 1 is not possible without the evidence relating to Counts 2 and 3, and vice versa; and 3. The three counts on the Indictment form part of a series of offences of a similar character.

Submissions on behalf of the accused

Counsel for the accused also provided a thorough written outline of submissions. In respect of the tendency evidence application, relying on Hughes v R, supra, it was submitted that the identification of the facts in issue in the proceedings is fundamental to a proper determination of the admissibility of tendency evidence. The concession made by the accused in relation to Count 1, namely, that he had a sexual interest in AOI, rendered this not a fact in issue. Counsel submitted that the tendency evidence in Ex A did not go to a fact in issue in respect of Count 1, namely, whether the accused had the requisite intention. Further, if the evidence did have significant probative value as required by s 97, it was submitted that such probative value would not substantially outweigh any prejudicial effect the evidence may have on the defendant.
It was submitted that the evidence of the type contained in Ex A is particularly potent in cases involving allegations of a sexual nature, relying on De Jesus v R, supra.
On the question of severance, it was submitted there could be no proper legal basis for Count 1 to be heard together with Counts 2 and 3. There was no connection between the offences, other than the same computer was used. The circumstances of the allegations, and the nature of the offences were strikingly different.
The accused relied on Sutton v R [1984] HCA 5; (1984) 152 CLR 528 per Brennan J at 541 - 542 as to the real risk of prejudice involved, i.e. the adverse effect that evidence in respect of one set of offences may have on the jury's mind in deciding whether an accused is guilty of another set of offences. It was submitted that the defendant will be embarrassed if evidence concerning Counts 2 and 3 were admitted as tendency evidence in respect of Count 1. It was submitted that would give rise to a real risk of impermissible prejudice which could not be addressed by a jury direction.
In oral submissions, Counsel submitted that only particular (i) in the Tendency Notice was relevant to Count 1. In Hughes v R, the High Court had made it very clear that the first step is to look at the facts in issue. Here, by reason of the concession made by the accused, there was no relevant fact in issue.
In respect of particulars (ii), (iii) and (iv), there was no evidence that the accused had ever acted on any sexual interest in respect of a child under the age of 16 years. It was submitted that no further evidence was required to prove the relevant sexual interest in Count 1, given the accused's concession. The evidence of sexual fantasizing does not go to show that he was more likely to act on such sexual interest.
Of the evidence contained in Ex A3 to A7, it was submitted that the file of the narrative, "Jessica sitting", involved child abuse of a child of similar age only. As the majority of that evidence concerned very young children, it fell within a very different category of evidence, and could not be relied on as evidence that the accused was more likely to act on the sexual interest conceded.
On the question of severance, it was submitted that there was an overlap of use of computer and a small period of time, otherwise the offences in Counts 1, 2 and 3 concerned very different elements. It was submitted that if the Crown were allowed to adduce as tendency evidence, the evidence in Ex A3 to A7, a jury would be shocked and it would be extremely difficult to put it out of their mind, even with an appropriate direction. Thus, it was submitted that the accused was entitled to a separate trial in respect of Count 1.

Determination

Here, the accused concedes that he had a sexual interest in "AOI", a person he believed to be under the age of 16 years, for the purposes of Count 1. The fact in issue in respect of Count 1 is therefore whether the accused had the relevant intention, namely, an intention to more easily procure the recipient of his communications to engage in sexual activity with himself. The Crown will rely on the evidence contained in Ex A2, being the Facebook, Skype and SMS communications as evidence of that intention.
Categories (ii), (iii) and (iv) of the tendencies set out in the Tendency Notice, may be categorised as tendencies of a more general nature concerning the accessing of child pornography on the Internet. The evidence does evince a sexual interest in young children, and generally made it more likely the accused had the relevant intention required for the Crown to establish Count 1.
I accept the Crown's submission that those three tendencies could be probative of a fact in issue in Count 1, namely, whether the accused had the requisite intention. To that extent, and for the purposes of s 97(1) of the Evidence Act, I find that the evidence relied on by the Crown in respect of those three tendencies is evidence of significant probative value.
However, that evidence is of a different character to the conduct alleged in Count 1. It involved searching, accessing websites and communicating with others interested in child pornography, and in particular, material relating to children of five years or younger. Having read the material, I find that it constitutes evidence that would be highly prejudicial to the accused in respect of Count 1.
The offending alleged in Count 1 amounts to a discrete offence, which bears no relationship with Counts 2 and 3 other than: 1. A short overlapping of time; and 2. Use of computers to communicate by way of typed communications.
Count 1 involved no search for child pornography, access to websites with names associated with child pornography, or access to child pornography generally on the Internet. It is of a different character from the alleged offending in Counts 2 and 3.
The real issue in Count 1 is whether the accused formed the necessary intention of making it easier to procure the recipient to engage in sexual activity with himself.
"Intention" is defined in s 5.2 of the Code as follows: "5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance that he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events."
The evidence referred to in Ex A3 - A7 above is relevant and has significant probative value to a fact in issue in respect of Count 1, namely, whether the accused had formed the requisite intention. However, in this case, that probative value does not substantially outweigh the prejudicial effect that evidence would have on the accused in respect of Count 1 on the Indictment. Such evidence is likely to have substantial emotional impact on any jury, who may give it disproportionate weight, notwithstanding the usual directions in respect of such evidence.
I therefore reject the Crown application to adduce the evidence of Ex A as tendency evidence in the proceedings.
I find that, applying the principles outlined above, despite the short overlapping in time, Counts 2 and 3 are not of a similar character to Count 1, and evidence relevant to Counts 2 and 3 would not be admitted in respect to Count 1, given the concession made by the accused. Nor could it be said that Count 1 constitutes a series of offences with Counts 2 or 3, notwithstanding a short overlapping of time, and the use of the same computer for commission of the offences. I therefore find that such evidence would be embarrassing to the accused and in the event of a joint trial, give rise to a real risk of prejudice to the accused which could not be dealt with by a direction to the jury in conventional terms to set it to one side, and use it for tendency purposes only.
For these reasons I intend to grant the relief sought in the accused's Notice of Motion in the interests of justice, and order separate trials in relation to Count 1, and Counts 2 and 3, which are to be heard together.

Orders

I make the following orders: 1. The Crown application to adduce tendency evidence is refused. 2. I order a separate trial take place in respect of Count 1 on the Indictment. 3. I grant leave to the Crown to adduce evidence from the witness, Ms Lynne Soles, by way of AVL from Armidale New South Wales.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2018

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