R v Tan

The Accused's objections to parts of the Accused's ERISP

1. The Accused objects to the portions of the ERISP contained in Q377-A382; A383 - Q400; A464-A475 and Q510-A513.

Q377-A382, A383-Q400, Q464-475

1. The accused submits that all of these impugned passages concern the same subject matter, being the accused's discussion about managing his sexual needs.
2. In the lead up to the first of the impugned passages, the accused was informing the interviewing officer about recording on his mobile phone acts of sex with his partner. Having done so, and apropos of apparently nothing, in this impugned passage, the accused told the interviewing officer that he needed help in controlling, or perhaps managing, his high sex drive.
3. The accused submits that by this passage, he was ruminating on his dissatisfaction with his control over his sexual needs, manifested by his unfaithfulness to his then partner. This was all self-analysis and self-criticism. He argued that this evidence should be excluded under s 137. Its probative value was low: his subjective thoughts were just that and the subject matter of those thoughts was not uncommon for young men. The danger of unfair prejudice was high because the trier of fact might place undue weight upon his ruminations of his moral failings and it would not be justifiable to infer from his subjective ruminations that he was likely to have committed the offence.
4. The Crown submits that his ruminations, indicating his state of mind, were relevant. It was given voluntarily and the evidence was highly probative for showing his state of mind at the date of the alleged offending and his decision-making process in relation to sexual activity more generally.
5. The Accused did not in terms, say that the evidence was irrelevant. His objection was grounded in s 137.
6. In my opinion, given the narrow factual contest, namely whether the accused honestly and reasonably, but mistakenly thought that the complainant was over 16 years of age, it is substantially probative for the Crown to rely upon admissions by the accused that he struggles to control his high sex drive. This provided an obvious counterpoint to the defence that the accused raises, which, essentially indicated that he exercised restraint in deciding to have sex with a person in accordance with his belief as to her age. It was open to the Crown to rely upon this evidence to indicate that at least on the occasions of the offending, the accused's inability to control his high sex-drive overpowered that process of decision-making.
7. I reject the proposition that in a trial by judge alone, I would place undue weight upon the accused's reflections of his moral failings, such as his being unfaithful to his then partner. I also reject the proposition that his admissions could not, either alone or in combination with other evidence, affect my determination of the question whether the Crown had negatived the defence which the accused raises.
8. The accused's challenge to the admissibility of this impugned passage fails.

A383 - Q400

1. No different objection was raised in relation to this impugned passage then that which was raised in relation to Q377-382. This passage was essentially a continuation of the earlier passage.
2. The same point I made previously is perhaps more acutely borne out by the following discrete exchange: "Q396: Do you think that as an adult you shouldn't be having sex with children? A396: Morally, no. That is a big no, but like I said, I'm trying to seek help…"
3. For the same reasons, the accused's challenge to the admissibility of this impugned passage fails.

A464-A475

1. In the lead up to this impugned passage, there was a discussion between the accused and the interviewing officer about the accused's knowledge of the age of consent for sex, before propositions were put to the accused that he committed offences by having photographs of intimate images on the accused's mobile phone and threatening to distribute them. The written transcript indicated that the accused's replies were inaudible.
2. Then at Q464, the Accused was given further opportunity to say what he wanted.
3. In the impugned passage, there was a discussion not so much about the accused's difficulties in managing to control a high sex drive, but actual steps he had been taking to address his sex addiction, such as consulting a psychologist and searching information on-line.
4. As I said, the objection to this impugned passage was no different to the earlier impugned passages. For the same reasons as before, the accused's challenge to this particular impugned passage fails.

Q510-A513

1. In the lead up to this passage, the interviewing officer questioned the accused as to why he wanted to have sex with this particular complainant. The question (at Q510) was premised upon the accused having accepted that the complainant had informed him that she was a minor and he was asked how he felt after having had sex with her. He answered that he saw it as a means of enabling him to relieve his sexual needs which had 'consumed' him; like a drug addiction overtook a drug addict. That explained why he was trying to help himself, by seeking out a psychologist online.
2. Again, the accused argued for the exclusion of this passage under s 137. This passage contained vague self-analysis from the accused to be of no probative value or if there was any probative value, it was outweighed by a danger of unfair prejudice as any inferences drawn from the passage could be tenuous or potentially misleading with the result that undue weight could be given to it.
3. In substance, or effect, this impugned passage is not dissimilar to the earlier impugned passages which I have ruled upon. In my view, if anything, the passage has even more significant probative value since the discussion within it appeared to be premised upon the accused's acceptance, or at least omission to dispute, that the first time he had sex with the complainant, he knew that she was a minor and by this passage, he was attempting to explain to the interviewing officer the circumstances he would have sex with someone 'underage' . That explanation was centred upon his sex addiction, for which he had been seeking treatment. It's unnecessary to repeat my finding about the danger of unfair prejudice, which repeats my earlier finding about that point in relation to earlier impugned passages.
4. The Accused's objection to the admissibility of this impugned passage also fails.

The Crown's objections to parts of the Accused's ERISP

Q131 - A143

1. Although there were slight differences in the content of the impugned passages, in his written submissions, the accused's Counsel bracketed them together as they pointed to the same subject matter: the accused's (angry) response to the complainant being involved in relationships with other men, which contained the assertion about her sending those other men intimate material of herself. I mention the 'angry' part of the response since, according to the accused, this explained why he threatened to publicly disseminate intimate images of the complainant.
2. The passage beginning at Q131 is a continuation of the Accused's Answer to Q 130, which itself dealt with the subject matter of the Accused sending to the complainant intimate images of her. In his answer to Q 130, the Accused told the interviewing officer that the complainant had asked him to send an intimate message or image of her. He then went on to assert that the complainant had sent the image to other persons, whom he was "certain" were partners of the complainant.

Q/A 157

1. In the leadup to Q 157, the Accused explained to police that his 'relationship' with the complainant was 'purely for sexual interaction'. In this context, in answer to question 156, the Accused asserted that he believed that he and the complainant were 'dating'. But, in the impugned passage, the accused asserted that the complainant was "with other people". He said that although he asked the complainant whether she was "with" other people, the complainant denied this but the accused did not believe this denial since he observed on the 'Discord' social messaging app that she had been 'messaging other people' as well. The clear implication of this was that, to the accused's belief, the content of that other messaging implicated the complainant in being in sexual relationships with others to whom she communicated by this social media app.
2. In relation to the Discord social messaging, there were two bundles of messages (MFI 5 and 6) that the accused's Counsel referred to (without elaboration) in argument. MFI 5, under the username 'Cactus' spanned the period 10 June 2021 - 2 July 2021. MFI 6 apparently spanned the period 29 May 2021 - 13 July 2021 under the username '[complainant's username]'. Although Counsel for the accused did not state as much, one available inference, given the proximity between these periods and the offending, was that the other 'interlocutor', 'metroboominn' was the accused. In one the messages, sent by 'metroboominn' to '[complainant's username]' on 30 May 2021, there was a statement "God knows who you sent your nudes to". In another message on that date, a statement was made "you're lucky im a nice guy bc if you did this to someone who is mentally challenged, they would post your nudes online and tag you in it or even send it to your parents or school". This last message was consistent with what I understand is the Crown case concerning the accused's motive or conduct in trying to control the complainant. If I am right about this inference, concerning the identity of 'metroboominn', then it may also be inferred that the accused formed a belief, based on what he had seen from the complainant's social media messaging that he had previously seen sexually explicit images of her online; although there was nothing in the Discord messages on this application to indicate that he formed any belief that the complainant had engaged in acts of sexual intercourse or sexual activities with other men. But if I am wrong in the inference as to the accused's identity, it does not really matter since it seems to me consistent with the accused's case that he saw those messages.

A 411 (from "but you can" onwards)

1. In the lead up to this impugned passage, the interviewing officer was putting to the Accused the complainant's assertion that the sexual intercourse she engaged in with him was non-consensual.
2. The substance of the accused's response was to assert the complainant's having 'more explicit' conversations with other men, perhaps numbering up to 3 or 4, on her Instagram or 'Discord' app.

Q499-A501

1. The lead up to this impugned passage was the interviewing officer discussing with the accused why he had used a 'fake name' in his communications with the complainant. From there, the interviewing officer referred the Accused to the complainant's Instagram page and, in particular, the indication that she had a 'R-C' (the initials of the fake name), a love heart and a lock'. The interviewing officer suggested that this indicated the complainant's belief that she was in a relationship to the accused.
2. The Accused's response was to refer to the first names of the men whom the accused had identified as men to whom the complainant was also having relations, or at least had sent intimate pictures of herself, and asked, in effect 'what about them' or, more accurately, if the complainant was in a relationship with him, the complainant was also in a relationship with these other men. This prompted, in the next part of the impugned passage, the interviewing officer effectively putting to the Accused that his relationship with the complainant was characterised by his efforts to exert control over the complainant.

A551 (from "but she goes" onwards)

1. The lead up to this impugned passage concerned the accused's aspirations, in terms of an on-going relationship with the complainant. At A551, the accused informed the interviewing officer, in effect, that he was not interested in pursuing a sexual relationship with her. Part of the reason, which brings me to the impugned passage, was that the complainant "goes with other people".

Preliminary observations

1. The Crown objects to the passages of the Accused's ERISP identified.
2. By its written submissions (MFI 2) the Crown commonly grounded objections to these passages as being relevance (s 55), unfair prejudice (s 137) or outright proscription (s 294CB of the Criminal Procedure Act); although in the Crown's written submissions, the Crown substantially focussed its argument upon s 294CB.
3. In his written submissions (MFI 3), Counsel for the accused addressed only the last ground for objection. That was understandable. Counsel did not address the other grounds of objection in the Crown's written submissions in his written submissions and did not refer to them in his oral argument either. It is, however, implicit in the Accused's position, that he contends that these impugned passages are relevant and that their significant probative value outweighs the danger of any unfair prejudice to the Crown.

The Crown's submissions

1. The Crown argued, implicitly, that the accused's assertion underlying the impugned passages attracted the prohibition in s 294CB(3).
2. It then argued that no exception under s 294CB(4)(a) was engaged since the accused's assertion, assuming it be accepted as truthful, of the complainant on-sending intimate images to others did not establish a connection to the circumstances of the accused's alleged offending. The difference was that the complainant had met the accused in person, several times, and had engaged in sex with him. There was a lack of commonality between that conduct and the accused's asserted conduct by the complainant in sending sexually explicit images of herself to other persons.
3. The Crown argued that no exception emerged under s 294CB(4)(b). None of that concerned any relationship in existence between the complainant and the accused. The accused's assertions about the level or nature of her contact with others on social media and the inference that he drew from this about her having sexual or other personal relationships with other men (at least beyond the social media form of communications) was, accepting his evidence at its highest, mere speculation. Alternatively, the content of the message tended to show the controlling nature of his 'relationship' to the complainant.
4. The gist of the impugned parts of the accused's ERISP served his purpose of trying to show that the complainant was sexually active and behaving in a sexually provocative way.
5. The strength of this evidence was low: the complainant's assertions were based on limited information which amounted only to speculation. At any rate, the evidence was inherently unreliable to engage the exception in s 294CB(4)(a). It did not meet the threshold required for the condition in that exception or that of s 294CB(4)(b).

The Accused's submissions

1. The Accused does not contest that the evidence fell within the proscription in s 294CB(3). But he argues that the exception in s 294CB(4)(b) was enlivened. That is, the impugned material (as well as Q/A 157) was material that related to the relationship between the accused and complainant. This, it was argued, was relevant evidence to respond to the Crown's anticipated reliance upon the accused's threat to disseminate the intimate images.
2. In the course of oral argument, the Accused's Counsel foreshadowed that the accused was likely to be called as a witness.
3. Secondly, the Accused relied upon part of the ERISP to which the Crown did not object, being at A144, where the Accused stated: "So that is the main reason why we were comfortable of talking about sexual matters, sexual topics, because like I said, I didn't know if this person was actually a minor, because from the way she propose herself, she did not act like a minor. She acted way above her age, and that's why I kinda gave in and yeah."
4. The Accused submitted that the fact that he became aware that she was sending other men similar material to what the accused sent to her contributed to his belief that she was, in fact "16, turning 17 in November", which was the age that she had (falsely) told him.
5. Her conduct, as he asserted it to be, of her sending intimate pictures of herself to other men not only fell within the 'relationship exception' in s 294CB(4)(b), but also was connected to the circumstances in which the offending occurred so as to engage the separate exception in s 294CB(4)(a).
6. As to both exceptions, the Accused acknowledged that for either of them to apply, the Court would need to be satisfied that the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant would suffer as a result of its admission.
7. The Accused emphasised that the complainant was not proposed to be called, so therefore there was no balancing exercise of the kind envisaged by s 294CB(4).

Consideration

1. Under a predecessor provision to s 294CB of the Criminal Procedure Act, in R v Charbel Rahme [2004] NSWCCA 233, the Court of Criminal Appeal explained that the correct procedure to determining the admissibility of evidence alleged to fall within the exceptions in s 294CB(4) is as follows: "… it is necessary first to determine whether the evidence is relevant and, if the evidence is relevant, then to determine whether the evidence satisfies both the condition in sub-paragraph (i) and the condition in sub-paragraph (ii) and finally to determine whether under the "tailpiece" to [now s 294CB(4)] the probative value of the evidence outweighs any distress, humiliation or embarrassment the complainant might suffer as a result of the admission of the evidence"
2. The test for relevance in s 55(1) of the Evidence Act is whether, if the evidence were accepted, it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". Section 55(2)(a) expressly indicates that evidence is not taken to be irrelevant simply because it relates to the credibility of a witness.
3. As indicated by the Accused's Counsel in argument, the primary fact in issue is whether, when the accused engaged in the activities which he admitted to - engaging in separate acts of sexual intercourse with the complainant, producing (by recording on his phone) sexually intimate material of the complainant and thereafter being in possession of it he honestly and reasonably (but mistakenly) believed that she was over the age of 16 years.
4. A common feature of the impugned evidence is the Accused's expression of his belief that the complainant was engaging in relations of a sexual character with other men, either in the dissemination of sexual material depicting herself in social media or even in terms of actual 'dating' in the period in which he was engaging in activities of a sexual kind with her. Another feature of the impugned passages was his interpreting her conduct, in the way that she talked to him or 'carried' herself, as indicating to him that she was over the age of 16.
5. Viewed in this light, in my view, the impugned portions of his evidence in his ERISP satisfies the threshold for relevance.
6. Although the Crown recorded a submission that s 137 should operate to exclude the evidence, this ground was not developed in the Crown's written or oral submissions and the Crown did not articulate how evidence of this kind could lead to a danger of unfair prejudice. The same things might be said about ss 135 or 136 of the Evidence Act.
7. It also appeared to me that it was common ground that the impugned portions of the evidence fell within the proscription contained in s 294CB(3(b)). That is, the accused's assertions of the complainant sending sexual images of herself to third persons either disclosed or implied that the complainant had or may have taken part, in sexual activity.
8. I note, also that the Crown did not submit, either in writing or orally, that if either or both of the conditions in s 294CB(4)(a) or (b) were fulfilled, a balancing exercise against admission, with reference to the distress, humiliation or embarrassment that the complainant might suffer would tell against admission. In my view, it was correct not to do so in the unusual circumstances of this case where the complainant is not to be called. As was said about a predecessor to s 294CB, the statutory purpose is to limit the circumstances in which complainants in sexual assault cases will have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court: R v White (1989) 18 NSWLR 332 at 340.
9. The issue, which was really the gist of the dispute, is therefore whether the impugned portions of the ERISP fell within either or both of the conditions to the exceptions to s 294CB(4)(a) or (b).

s 294CB(4)(b)

1. I will start with this provision. In my view, even favouring a broad construction of the meaning of that word (i.e. favouring the liberty of the accused), and an equally broad construction of what is meant by the expression 'relates to', I do not accept that the accused's assertions about the complainant engaging in conduct by sending sexually explicit material about herself to other persons "relates to" the 'relationship', such as it was, between the accused person and the complainant. Rather, it relates to the nature of the relations between the complainant and the other persons to whom the complainant had sent the messages. In my view, the provision has to be approached in an objective way involving the Court's characterisation of the matters referred to in the provision. The accused's subjective understandings or beliefs about the nature of the complainant's relations with other persons does not mean that the condition is satisfied.

s 294CB(4)(a)

1. I am satisfied that the temporal condition in s 294CB(4)(a)(i) is fulfilled. Taking the evidence of the accused at its highest, and notwithstanding its vagueness, the gist of the assertions is that "at or about the time" of his own sexual activities engaged in with the complainant, she was engaging in like sexual activities with other men (at least in terms of sexualised communications).
2. As to s 294CB(4)(a)(ii), the issue is whether the 'event' identified was so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having been committed (GEH v R [2012] NSWCCA 150 per Beech-Jones J (as his Honour then was) at [26]; Adams v R [2018] NSWCCA 303 per Campbell J (Hoeben CJ at CL, N Adams J agreeing) citing other authorities at [168]-[169]. In R v Edwards [2015] NSWCCA 24, Harrison J said: "The term "connected" is not defined at all, and so its meaning is not confined to particularly close circumstantial or factual situations limited by reference to a specified range or class of participants or activities in which they may be involved. The evidence need only be of events allegedly forming part of a connected set of circumstances."
3. I struggle to accept how the asserted sexualised communications sent by the complainant to other males could bear on the objective likelihood of the accused committing the alleged offences of engaging in sexual intercourse. The gap here is any inquiry by the accused as to why the complainant sent such communications to the other men and what these other men knew about her age in her doing so. The accused made no assertions that these other men solicited the communications and only the vaguest suggestion was made that some or all of them were 'dating' her.
4. There was, moreover, no clear suggestion that any of the males whose first names the accused had identified in the ERISP had engaged in sexual intercourse with the complainant, or had engaged themselves in acts of sexual intercourse with the complainant.
5. In R v Tubou [2001] NSWCCA 243, the Court of Criminal Appeal held that evidence that the complainant had had consensual sexual intercourse with a person other than the accused 34 hours before the offence (sexual assault) occurred was not an event which formed part of a connected set of circumstances in which the offence was committed. Heydon JA found the events to be "entirely unconnected" and related to "entirely separate sets of circumstances": at [72].
6. Tubou was a stronger case of connection than this case, since in this case, the comparison sought to be made by the accused is his belief about the complainant's age, based upon the complainant sending sexualised images of herself to others, with his own sexual intercourse with her. There was nothing to suggest that he had any actual belief that the complainant had engaged in sexual intercourse with other persons. Indeed, according to the accused himself, this matter had been discussed with the complainant and she had denied it.
7. Such sexualised communications which the accused said that he had learnt about involving the complainant and other men, may, to momentarily adopt the Crown's contention, provide a motive to explain why the accused acted as he did towards the complainant, in threatening her (i.e. a need to exert control over her, borne arguably of jealousy) but that was not directed to his thought processes in terms of the complainant's age when he engaged in the sexual activities that he admitted to engaging in.
8. Since neither of the conditions in s 294CB(4)(a) or (b) are satisfied, the proscription in s 294CB(3) applies. The portions of the Accused's ERISP that the Crown impugns are inadmissible.

The Tik Tok screenshot (MFI 4)

1. This screenshot depicted a female, apparently the complainant, wearing a bikini, or perhaps underwear, and posing, with her right index finger raised and a facial gesture, into her mobile phone held aloft by her left hand, with the hashtag message 'fake body!#im18tiktok#educational#fyp'. The email address under the hashtag address was [Tik Tok address]. The screenshot also indicates two 'replies' apparently from men.
2. From the Bar table, Counsel for the Accused indicated that this shot was taken on 17 November 2022, plainly well after the alleged offending. He also indicated that the message had been picked up by a member of the accused's family and had been brought to the Crown's attention in late 2022.

Parties' arguments

1. The parties' arguments about the admissibility of this document were made only orally at the hearing.
2. The Crown objected to the document on several grounds. First, there was doubt about the authenticity of the screenshot. Mr Crown raised as a possibility that the deployment of algorithms may have produced the shot. Secondly, the document was irrelevant as its contents was produced well after the offending in question. Thirdly, the document was also proscribed by s 294CB(3) in that it disclosed or implied that the complainant had or may have had sexual experience or had, or may have had, taken part in a sexual activity.
3. The Accused argued for the admission of this document only for the purpose of showing that by the use of the hashtag, the complainant falsely represented that she was 18. As at 17 November 2022, and having regard to the agreed fact (MFI 7, paragraph 2) that her date of birth was 6 November 2008, the complainant was only 14.
4. The Accused's Counsel elaborated the steps to his argument about the relevance of this as follows. The Accused is anticipated to say that the complainant represented to him that she was over 16 years of age prior to the conduct indicated on each count of the indictment. Yet, here, albeit after the alleged offending conduct, the complainant was making a false representation about her age. This was relevant to either diminishing (or creating doubt about) the Crown case, which necessarily centred upon the complainant being under the age of 16 or, more probably, for fortifying the accused's defence of honest and reasonable belief that she was over 16. If the complainant was prepared to lie about her age on a social media platform, attract replies without taking down the screenshot, that will increase the likelihood that the accused is telling the truth when, as anticipated, he will say that the complainant told him that she was over 16.
5. Secondly, during the course of argument and in reply to a complaint raised by Mr Crown, which was that this argument amounted to impermissible tendency reasoning, Counsel for the Accused argued that this evidence did not offend s 97(1) of the Evidence Act. In this regard, the Accused's Counsel acknowledged that no prior notice had been given about the accused's intention to rely upon tendency evidence (as per s 97(1)(a)) but argued that this requirement of notice be waived (under s 100). The requirement should be waived since when the trial was imminent, the Accused's Counsel had informally notified Mr Crown of his intention to rely upon this evidence and had been met with Mr Crown's response that the evidence may contravene s 97.
6. Further, Counsel for the accused argued that the evidence had 'significant probative value' (per s 97(1)(b)). The asserted tendency was that the complainant had a tendency to represent that she 'was older than her biological age'. It was immaterial that the conduct relied upon to establish the tendency evidence was a single act or that it occurred after the offending in question (indeed even after the criminal proceeding had commenced). It had significant probative value as it related to the Accused's defence or ground of exculpation. It demonstrated the complainant's willingness to lie about her age. The significance was heightened where the Crown had indicated that it did not intend to call the complainant to give evidence.
7. Further, the Accused's Counsel disputes that the prohibition in s 294CB(3) is engaged.
8. In reply to the accused's submissions on tendency evidence, the Crown did not argue against the notice requirement being dispensed with.
9. Mr Crown argued that the evidence, even if it was relevant, was not of significant probative value. Assuming that the screenshot was authentic, it indicated that the complainant had used the Tik Tok site on one occasion. Its suggested retention on the social media platform, if that be right, was neither here nor there. The gap between the date of the alleged offending and the date of the representation was about 18 months: the Crown relied upon McPhillamy v The Queen (2018) 361 ALR 13 at [30]-[32]. There was a disparity in the nature of the tendency being compared: in the screenshot, the complainant was making a public representation on a social media site; whereas such representation as she made to the accused was necessarily private. The ultimate issue was the accused's state of mind in June and July 2021. That could not be affected by a subsequent representation by the complainant.

Consideration

1. In my opinion, the document satisfies the relevantly low threshold for relevance. In finding that this is so, I reject the Crown's argument centred around doubts about the authenticity of the document. The Court is capable of drawing inferences from looking at the document itself and, for that matter, it suffices for the tendering party to prove that it is what it appears to be on the balance of probabilities. The Crown's submission on authenticity amounts to no more than speculation.
2. The relevance threshold is surpassed having regard to my acceptance of the forensic purpose outlined by Counsel for the accused, which I have outlined. That is, the Accused's Counsel has telegraphed that the accused will give evidence about the complainant misrepresenting her age. That is plainly relevant to his defence of honest and reasonable, but mistaken, belief that she was over 16 years of age when he engaged in the acts of separate intercourse, and filmed those and other acts of the complainant engaging in sexual activities.
3. This is, as the Crown correctly contended, a form of tendency reasoning: that because the complainant engaged in conduct, by misrepresenting her age, on multiple occasions (to the accused and separately on a social media platform) she had a tendency to misrepresent her age. That she had such a tendency was relevant to supporting the accused's case that she misrepresented her age to the accused prior to the alleged offending and thereby induced an honest belief in him that she was over 16.
4. In my view, the notice requirement in s 97(1)(a) should be dispensed with. The evidence is probative and there was no suggestion by the Crown that it would be prejudiced by the Accused's resort to tendency reasoning. Mr Crown was alive to the accused's Counsel's reliance upon the evidence for this purpose and argued the point without obvious hindrance. These matters may explain why the Crown did not oppose waiver of the notice requirement.
5. The issue then turns upon whether the evidence of tendency has 'significant probative value'. In IMM v The Queen (2016) 257 CLR 300 at [46] the plurality explained that consideration needs to be given to the fact(s) in issue and the importance that the evidence has in establishing the facts; adding that the evidence must be 'influential' in the context of fact-finding.
6. The primary fact in issue is whether the accused honestly and reasonably but mistakenly believed that the complainant was over 16 years of age at the dates of his alleged offending. It is pertinent to emphasise that the requirement in s 97(1)(b) indicates that it is not just the tendency evidence that is considered in isolation, but other evidence which is to be adduced that can be considered with it. Thus, the Court is required to consider the significant probative value of the tendency evidence in combination with the evidence which, the Court has been informed, will be adduced; being the evidence of the accused that the complainant falsely misrepresented her age to him before their first sexual interaction.
7. The strength of tendency evidence typically turns upon a range of considerations. To my mind, relevant considerations here are, first, that it is the accused who seeks to adduce the evidence. He bears an evidential burden for raising this ground of exculpation, but once that occurs, the ultimate burden falls on the Crown to disprove it (CTM v The Queen (2008) 236 CLR 440 at [8]). In such circumstances, a Court should be reluctant to conclude that the evidence lacks significant probative value: R v Cakovski (2004) 149 A Crim R 21 at [36]-[37].
8. Secondly, it is established that the specificity of the tendency informs the strength of the inferential mode of reasoning which is the hallmark of tendency evidence: El-Haddad v The Queen (2015) 88 NSWLR 93 at [72]. The suggested tendency here is very general: that she 'represented that she was older than her biological age' when the fact in issue was whether the accused believed that she was older than 16 years of age when he had sex with her. But the standard is not to be equated with whether the reasoning is compelling or even decisive. Whether it is significant, as pointed out, is generally indicated by whether it is capable of being regarded as influential. In my view it is.
9. Thirdly, and following the last point, although the Crown correctly notes the dissimilarity in the circumstance that the representation was made on TikTok with the putative representation made by the complainant to the accused, that is not an essential condition for the admission of tendency evidence: Hughes v The Queen (2017) 263 CLR 338 at [37]-[39]. As I say, I accept that there is a qualitative difference between a representation made on social media, to the public at large, and in a private conversation, or communication, with an individual. Regrettably, at this stage, Counsel for the Accused was unable to say more in his argument about the circumstances in which the asserted representation was made to his client, including its actual content and its proximity to the alleged offending in question (although in argument he said that the representation was made 'early' in the 'relationship': T 6.18). Nevertheless, whether a representation was made to the offender in the first communication or in the last communication prior to the acts of sexual intercourse does not derogate from at least the honesty of a belief in the accused and the reasonableness of his reliance upon a representation.
10. Fourthly, although the number of occasions in which the tendency manifested itself may strengthen the probative value of the tendency, there are cases where even a single event relied upon to establish the tendency may have significant probative value: Aravena v R (2015) 91 NSWLR 258 at [86].
11. Fifthly, the circumstance that the tendency evidence relates to conduct post-dating the offending does not necessarily mean that the probative value is reduced: RH v The Queen (2014) 241 A Crim R 1 at [88] - [130]; TB v R [2019] NSWCCA 224 at [104].
12. On balance, I accept that the evidence has significant probative value. The evidence is not rendered inadmissible by s 97 of the Evidence Act.
13. The last of the Crown's objections is that the evidence is caught by the proscription in s 294CB of the Criminal Procedure Act.
14. In GEH v R [2012] NSWCCA 150, at [63] Harrison J distinguished between 'sexual experience' and 'sexual activity', for the purposes of s 294CB(3) as follows: "The former rather encompasses a state acquired over time, whether long or short, but which refers to the condition of having had experience in sexual matters, as opposed to a single or isolated sexual experience, or a number of them, at some particular time. The inquiry brought forward by the words 'sexual experience or lack of sexual experience' appears to be related to whether the complainant was or was not 'sexually experienced'. In contrast, the latter suggests a discrete sexual activity or lack of it that occurred, or in which the complainant took part or did not take part, at or about the time of the commission of the alleged offence by the appellant, but not at some other time"
15. Having observed the screenshot, I am not persuaded that the visual depiction discloses or implies either of the matters referred to in s 294CB(3)(a) or (b). Both of those matters in the statutory provision speak of the past. For example, the photographic depiction did not indicate the complainant being naked or exposing (unclothed) her genitals. At its highest, it may suggest an aspiration on the part of the complainant to engage in sexual activity, but even that would be a fraught inference to draw. As is now reflected in s 292E(a) of the Criminal Procedure Act, it would not be assumed that a person consented to sexual activity because the person wore particular clothing or had a particular appearance. Some might think that the photograph shows the complainant flaunting her body, but without more, that does not satisfy either of the matters in s 294CB(3).
16. The proscription in s 294CB(3) is not engaged.
17. Alternatively, if there was a real concern about s 294CB, I would have made an order under s 136 of the Evidence Act to limit the admission of the screenshot for the tendency purpose relied upon by the accused.

The complainant's JIRT interview

1. The accused wishes to cross-examine the Officer in charge on part of the content of the complainant's recorded (JIRT) interview. This is in a context where the Crown does not propose to call the complainant; nor proposes to adduce the content of the JIRT interview itself (T 7.39).
2. As noted, insofar as counts 1 and 3 are concerned, relating to under-age sexual intercourse, the absence of consent by the complainant is not an element of the offence for which the accused is charged.

Submissions

1. The JIRT was not shown during the hearing of this argument. No written submissions were made by the parties about this, but during closing argument, it seemed that the Accused's Counsel proposes to elicit agreement by the Officer in Charge to the nature of the acts of sexual intercourse and, in particular, to get agreement to the proposition that the complainant 'enthusiastically participat(ed)' in the sexual intercourse.
2. The forensic point of this, as I understood, was to obtain contrast with, what the Court was informed was statements by the complainant made during the JIRT which, to put the matter generally, may have conveyed the impression that the complainant did not consent to the sexual intercourse and was even violent in its nature. Counsel for the accused then argued, in effect, that, when comparing the representations by the complainant with the viewing of the JIRT, it would be abundantly clear that certain representations made by the complainant about the nature of the sex were false. This, in turn, would be relevant to the trier of fact's assessment about the complainant's credibility. This was important in a context where the accused will give evidence about the complainant representing that she was over 16. If it could be proved that she mischaracterised the nature of the sex, then that would assist the trier of fact to repose more faith in the accused's evidence about the age representation he asserts the complainant made to him prior to the sex.
3. The Crown argues that the accused is really seeking to elicit hearsay evidence from the OIC, and in particular is seeking to invoke s 65 of the Evidence Act to this end (as the complainant is not available to give evidence), but that exception to the hearsay rule is inapplicable as the Crown has made no application to adduce evidence about what the complainant's description of the nature of the sexual activities was. Secondly, the evidence would not satisfy s 108A of the Evidence Act. Thirdly, the evidence is not relevant, as any diminution in the complainant's credibility would not boost the accused's credibility. The trier of fact will make its own assessment of the accused's credibility and reliability independently, without reference to its assessment of the credibility and reliability of a person, the complainant, who is not even to be called.

Consideration

1. I substantially agree with the Crown's submissions. I very much doubt whether the evidence would be relevant. The Crown has indicated not only does it not intend to call the complainant, but it does not propose to tender the JIRT. The accused has not foreshadowed, or undertaken, that he will tender the JIRT. What appears to be envisaged is the adducing of selected representations by the complainant, through the OIC; which would then be pitted against an account of what the accused saw or perceived when he gives evidence.
2. Even if a full and fair record of the JIRT was in evidence, I do not accept the premise underlying this that a diminution of the complainant's credibility would result in the automatic elevation of the accused's credibility or reliability; especially in what I understand would be the piecemeal or selective account of the JIRT interview which I apprehend the accused would wish to put to the Officer in Charge. The evidence is in my view inadmissible under s 135 of the Evidence Act even without recourse to more specific prohibitions under Part 3.
3. I also agree that it would be expected that it would be the Crown who would wish to invoke s 65 and rely upon previous representations made from a putative Crown witness. If it did, the Crown would have to give notice under s 67 making the representation. For the accused to now seek hearsay evidence of what the person said would bypass those procedural safeguards.
4. Section 108A would not apply since the condition in s 108A(1)(a) will not have been fulfilled, principally because the Crown has not sought to adduce it. A further difficulty is that it cannot be said that evidence to challenge the complainant's credit could substantially affect the assessment of her credit. This is wrapped up in the point made about (ir)relevance that I referred to earlier.
5. Since consent to the sexual intercourse is not an element, it is not part of the Crown's case at trial to prove that the complainant did not consent. The complainant was not called because of the circumstances that have arisen in that it is unnecessary to call her to prove an absence of consent. Evidence that might suggest that she did consent would not substantially dent her credibility when this was not a fact in issue she was called to give evidence about. The s 108A(1)(a) objection is also well founded.

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: 26 June 2023