Director of Public Prosecutions v Shasha
[2024] ACTSC 213
•5 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Shasha |
Citation: | [2024] ACTSC 213 |
Hearing Date: | 25 March 2024 |
Decision Date: | 5 July 2024 |
Before: | McCallum CJ |
Decision: | (1) The evidence of incidents 9 to 15 and incident 17 in the tendency notice is cross-admissible as tendency evidence in support of counts 1, 3, 4, 5 and 6. (2) The evidence of incident 2 in the tendency notice is not admissible as tendency evidence. (3) The evidence of incidents 1 and 3 to 8 in the tendency notice, if admitted in support of count 2, is cross-admissible as tendency evidence in support of the other counts on the indictment. (4) The use of the evidence of incident 16 in the tendency notice is a matter for the trial judge. (5) The evidence of incidents 18 and 19 in the tendency notice is not admissible as tendency evidence. |
Catchwords: | EVIDENCE LAW – TENDENCY EVIDENCE – Criminal proceedings – alleged tendency of accused to have a sexual interest in the complainant (a child) and to act upon that interest – single complainant – where prosecution relied on “otherwise benign” acts to support charge of grooming – whether benign acts capable of proving tendency to have sexual interest in the complainant – consideration of nature of tendency reasoning – consideration of appropriate form of rulings to be sought in tendency applications |
Legislation Cited: | Crimes Act 1900 (ACT) ss 56, 61(2), 66(1)(a), 66(1)(b), 66(3) Evidence Act 2011 (ACT) ss 55, 76, 97, 97A, 101 |
Cases Cited: | HML v The Queen [2008] HCA 16; 235 CLR 334 Hughes v The Queen [2017] HCA 20; 263 CLR 338 Porter v The Queen [2024] ACTCA 9 |
Parties: | Director of Public Prosecutions (Crown) Petra Shasha ( Accused) |
Representation: | Counsel D Swan ( Crown) C Akthar ( Accused) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Accused) | |
File Number: | SCC 194 of 2023 |
McCALLUM CJ:
Introduction
1․The accused has been committed for trial on an indictment containing six counts of sexual offending all relating to the same complainant. The indictment filed by the prosecution on 15 September 2023 contains the following counts:
Count 1: persistent sexual abuse of a child contrary to s 56 of the Crimes Act 1900 (ACT).
Count 2: grooming contrary to s 66(1)(b) of the Crimes Act (engaging in conduct with a young person with the intention of making it more likely that they would commit or take part in an act of a sexual nature).
Count 3: grooming contrary to s 66(1)(a) of the Crimes Act (encouraging a young person to commit or take part in an act of a sexual nature).
Count 4: committing an act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act.
Count 5: grooming contrary to s 66(3) of the Crimes Act (making pornographic material available to a young person). This count is based on an alleged course of conduct, as allowed under s 66B of the Act.
Count 6: committing an act of indecency on a person under 16 years contrary to s 61(2) of the Crimes Act.
2․The proceedings are listed for the taking of pre-trial evidence commencing on 8 July 2024 and for trial commencing on 16 September 2024.
3․The prosecution has applied for a ruling as to whether certain evidence to be adduced in the trial may be relied upon as tendency evidence in relation to the accused. The application is supported by two affidavits of Ms Isobel Harris affirmed on 22 February 2024 and 25 March 2024. The application is opposed by the accused in part. This judgment determines that application.
Circumstances in which the charges are brought
4․In November 2020, the accused was engaged as a student placement teacher at a High School in Canberra. She met the complainant, a male student at the school, during her placement at the school. He was in Year 9 and was then 15. The accused was 25. The prosecution case statement summarises the case as follows: “progressing up to and beyond the complainant’s 16th birthday, the accused cultivated an ongoing relationship with the complainant which involved her sending him explicit material, engaging in grooming behaviour of various types and engaging in acts of indecency with him.”
Issues raised by the application
5․The application is concerned with the application of the tendency rule stated in s 97 of the Evidence Act 2011 (ACT). It is also necessary to have regard to the presumption created by s 97A of the Act and the additional constraint on admissibility imposed by s 101 of the Act.
6․Section 97(1) provides:
97The 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.
7․The assessment of the probative value of the evidence requires consideration of two matters, first, the extent to which the evidence supports the alleged tendency and secondly the extent to which the tendency, if established, makes it more likely that the particular conduct alleged was engaged in: Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [41].
8․Section 97A creates a presumption as to the probative value of tendency evidence about a defendant’s sexual interest in children. That section relevantly provides:
97AAdmissibility of tendency evidence in proceedings involving child sexual offences
(1)This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2)It is presumed that the following tendency evidence about the defendant will have significant probative value for section 97(1)(b) and section 101(2):
(a)tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest);
(b)tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3)Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, or any other child or children generally.
(4)Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
9․Section 101 imposes an additional constraint in criminal proceedings. That section relevantly provides:
101Further 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 outweighs the danger of unfair prejudice to 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.
10․The prosecution application seeks an order “that the prosecution be permitted to adduce tendency evidence as notified in the notice of intention to adduce tendency evidence dated 22 February 2024”. However, the application cannot be determined by making a single ruling in those terms. That is because, upon analysis, the tendency notice by reference to which the proposed ruling is framed raises several distinct issues as to the application of the tendency rule, each of which raises different considerations.
11․The first issue raised by the tendency notice is what is often referred to in shorthand as cross-admissibility. As noted by Ms Akthar, counsel for the accused, the tendency rule is not concerned with admissibility simpliciter. It is concerned with admissibility for a particular purpose (to prove a tendency to act in a particular way or to have a particular state of mind). The cross-admissibility issue is whether evidence admitted as the proof of one count may also be used for the additional purpose of proving a tendency (here, to have a sexual interest in the complainant and to act on that sexual interest) which, if established, makes it more likely that the conduct alleged by the prosecution was engaged in.
12․The accused concedes cross-admissibility in part. In the case of evidence of overtly sexual conduct relied upon by the prosecution to support allegations of sexual offences, the accused accepts that the evidence to support each count is cross-admissible as tendency evidence to support the other counts. I will return to explain the counts and the evidence to which that concession relates.
13․The second issue concerns the admissibility for a tendency purpose of the evidence relied upon to support count 2, the count of grooming contrary to s 66(1)(b) of the Crimes Act. That count alleges that the accused engaged in conduct with the complainant with the intention of making it more likely that he would commit or take part in an act of a sexual nature. Conduct that may fall within the scope of s 66(1)(b) includes conduct which is “otherwise benign”, but which is criminalised by reason of being committed with the specified intention: Porter v The Queen [2024] ACTCA 9 at [138] (Mossop, Baker, and Bromwich JJ). The accused submits that the benign conduct relied upon in support of count 2, being benign in its objective characterisation, is not admissible to prove a tendency to have a sexual interest in the complainant and to act on that sexual interest. There is, with respect, a measure of artificiality in this submission. If conduct that is otherwise benign is capable of constituting an offence of grooming when accompanied by the relevant intention, the same conduct would be capable of demonstrating a tendency. The whole point of grooming offences is to criminalise conduct that is seemingly benign, but which is in fact intended to prepare a child to be compliant when the accused progresses to unlawful sexualised conduct.
14․The third issue raised by the tendency notice concerns the admissibility for a tendency purpose of evidence concerning conduct involving people other than the complainant. That evidence would not otherwise be relevant to any issue in the trial; it is only admissible if it is admissible for a tendency purpose. The accused opposes the admission of that evidence.
15․I note for the purpose of future matters that it may be helpful, where a tendency application raises several issues, to reflect each separate issue in the relief sought. For example, the prosecution might seek:
(a)A ruling that the evidence in support of count 1 and count 2 is cross-admissible as tendency evidence.
(b)A ruling that [the evidence of an uncharged act] is admissible to prove that the accused has a tendency to have a sexual interest in male children.
16․This observation is not intended as any criticism of the prosecution but only to acknowledge the complexity that can attend pre-trial tendency applications and to suggest a means of distilling the issues to be determined.
Substance of the proposed tendency evidence
17․The tendency notice specifies 19 “incidents” (a term here used loosely) sought to be relied upon to prove the accused had tendencies to act in particular ways and have particular states of mind. The 19 incidents may be summarised as follows.
18․Incident 1 is described as “[f]lirtatious behaviour directed to [the complainant] whilst a student at Saint Edmund’s College”. This evidence goes to count 2, one of the counts of grooming. The substance of the anticipated evidence is that the accused flirted with the complainant during the accused’s student placement during class breaks and when the complainant was socialising with friends on the school grounds.
19․Incident 2 is described as “[i]nappropriate behaviour whilst engaged as a student teacher at Saint Edmund’s College”. This evidence is relied upon as evidence of an “uncharged act”. The substance of the anticipated evidence is that, during the student placement, the accused wore clothes that were deemed to be inappropriate by another teacher at the school, displayed “select favouritism shown towards particular male students”, pretended to take phone calls during class breaks whilst male students were in school hallways and did not seek to dissuade male students from engaging in flirtatious behaviour with her.
20․Incident 3 is described as “providing excuse for the complainant to be late to class”. This evidence goes to count 2. The substance of the anticipated evidence is that, during the student placement at the school, “the accused was observed to walk the complainant to class and to provide him with an excuse for being late”. When questioned by another teacher about this incident, the accused initially denied that it had happened before later confirming that she had walked the complainant to class.
21․Incident 4 is described as “[m]essaging with the complainant via Instagram and progressing to SnapChat”. This evidence goes to count 2. The substance of the anticipated evidence is that the accused and the complainant communicated via Instagram and SnapChat. Around the time the accused’s student placement had ceased, the accused responded to a direct message from the complainant on Instagram. The accused sent messages to the effect, “I’ll get in trouble from my work if I talk to you on social media” and “we can’t talk on here – I’m going to get in trouble from my work”. The contact ceased for approximately two weeks and “recommenced after the accused saw and hugged the complainant at an OzTag event”. Then the messaging recommenced via SnapChat, which included the accused and the complainant saying, “love you” and regularly sending love heart emojis.
22․Incident 5 is described as “[d]riving the complainant around at his request”. This evidence goes to count 2. The substance of the anticipated evidence is that the accused drove the complainant around various locations at the complainant’s request. This included driving the complainant to and from school, to and from parties and to other locations such as shopping centres. The accused would park down the street from the complainant’s home when dropping him off or picking him up. The accused also told the complainant that he should not tell his friends or parents that they were spending time together.
23․Incident 6 is described as “[p]roviding lifts to the complainant with other children”. This evidence goes to count 2. The substance of the anticipated evidence is that the accused drove the complainant’s younger brother and friend to and from school and to and from children’s parties.
24․Incident 7 is described as “[p]urchasing gifts for the complainant”. This evidence goes to count 2. The substance of the anticipated evidence is that the accused provided gifts such as vapes, a pipe for consuming cannabis, alcohol and expensive clothing items. The clothing items included a Louis Vuitton belt, a Ralph Lauren jumper and a pair of Nike Air Force 1 shoes.
25․Incident 8 is described as “[p]roviding financial gifts and loans to the complainant”. This evidence goes to count 2. The substance of the anticipated evidence is that the accused provided $505 to the complainant via bank transfers, either as loans or as gifts. The transfers were recorded in the accused’s banking records as including “Rebel Sport shirt”, “Uber” and “Movie Tickets”.
26․Incident 9 is described as “[s]ending sexually explicit content to the complainant”. This evidence goes to count 1 (persistent sexual abuse) and count 5 (making pornographic material available to a young person). The substance of the anticipated evidence is that the accused sent numerous explicit videos and photographs via SnapChat to the complainant. The footage showed the accused in short skirts, g-strings and lingerie, crawling in front of the camera and exposing her genitals and anus. The footage also showed the accused masturbating and digitally penetrating her anus.
27․Incident 10 is described as “[a]sking the complainant for indecent material”. This evidence goes to count 1 (persistent sexual abuse) and count 3 (one of the counts of grooming). The substance of the anticipated evidence is that the accused would often make comments to the complainant that she wanted the complainant to send material in return for the indecent material she had sent to him. The complainant sent the accused photos of himself shirtless and showing an outline of his visible erection through his pants on at least one occasion.
28․Incident 11 is described as “[w]earing a g-string in a changeroom with the complainant”. This evidence goes to count 1 (persistent sexual abuse) and count 6 (one of the counts of act of indecency). The substance of the anticipated evidence is that the accused and the complainant were shopping together and that the accused allowed the complainant to enter a changeroom while she was dressed below the waist in only a g-string. A photograph was taken of the complainant with his hand placed on her exposed buttock.
29․Incident 12 is described as “[t]ouching the complainant’s erect [presumably the word penis was intended here] through his pants”. This evidence goes to count 1 (persistent sexual abuse) and count 4 (one of the counts of act of indecency). The substance of the anticipated evidence is that the accused picked the complainant up from a birthday party and drove him home, parking at the bottom of the street. Whilst talking with the accused in the car, the complainant obtained an erection. The accused observed the outline of the erection through his pants and briefly placed her hand on his penis.
30․Incident 13 is described as “[a]dditional touching of the complainant’s penis”. This evidence goes to count 1 (persistent sexual abuse). The substance of the anticipated evidence is that, following the incident above, the accused touched the complainant’s penis on 2 to 4 further occasions while they were in her car.
31․Incident 14 is described as “[a]llowing the complainant to engage in sexual touching”. This evidence goes to count 1 (persistent sexual abuse). The substance of the anticipated evidence is that the accused allowed the complainant to touch her breasts, place his hand on her groin over her clothing “rubbing” her genitalia and touch her buttocks.
32․Incident 15 is described as “[r]equesting kisses on the cheek”. This evidence goes to count 1 (persistent sexual abuse). The requests often followed the accused having done something for the complainant such as providing him with a lift.
33․Incident 16 is described as “[e]xpressing romantic interest in the complainant”. This evidence is relied upon as evidence of an “uncharged act”. The evidence comes from conversations captured by a listening device installed in the accused’s car. It is not necessary to set out the details of the conversations. In short, they are conversations in which she speaks both to and about the complainant in terms suggestive of a boyfriend/girlfriend relationship including references to Valentine’s Day, hanging out together, that they had recently had a “date”, her being upset about him “getting with other girls”, a friend saying to her, “He’s never gonna get a girlfriend. He’s in love with you” and the accused replying that he had left his girlfriend, the accused saying “he’s going to be 17 soon, there’s only 9 ½ years between us, I calculated it” and the accused addressing the complainant as “Baby”.
34․Incident 17 is described as “[a]dmissions to sending material to the complainant on the understanding he would use it to masturbate”. This evidence goes to count 1 (persistent sexual abuse). This incident is based on admissions by the accused that she sent “cheeky” photos to the complainant at his request which she inferred he wanted to use “for his own pleasure” … “because he’s horny”.
35․Incident 18 is described as “[i]nappropriate discussions of a sexual nature with students whilst engaged as a teacher”. This evidence is relied upon as evidence of an “uncharged act”. The substance of the anticipated evidence is that when the accused was employed at another High School in Canberra in 2021, she engaged in inappropriate conversations with female students whilst at that school. The conversations included discussion of her sex life and references to “sugar daddies”.
36․The final incident, incident 19, is described as “[s]ending of sexually suggestive material to a former student”. This evidence is relied upon as evidence of an “uncharged act”. The substance of the anticipated evidence is that whilst the accused was employed at the school the complainant attended in 2020, she met two students in Year 12. In the first half of the following year, she sent a photograph of her exposed cleavage to one of the students captioned, “I’m the coolest teacher you’ll ever meet”.
Alleged tendencies
37․The alleged tendencies specified in the tendency notice are:
(a)That the accused had a tendency to have a particular state of mind, namely, to have a sexual interest in the complainant who, at all relevant times, was a child (incidents 1 to 17) (“tendency 1”).
(b)That the accused had a tendency to act in particular ways, namely:
(i)to act upon her sexual interest in the complainant who, at all relevant times, was a child (incidents 1 to 17) (“tendency 2”); and
(ii)to cultivate inappropriate relationships with current or former students whom she had met in her capacity as a teacher (all incidents) (“tendency 3”).
Cross-admissibility
38․As already noted, the assessment of the probative value of the evidence requires consideration of two matters: the extent to which the evidence supports the tendency and the extent to which the tendency makes it more likely that the conduct alleged by the prosecution was engaged in: Hughes at [41].
39․The accused accepts that the evidence relied upon to prove counts 1, 3, 4, 5 and 6 supports tendencies 1 and 2 and that the conduct alleged in each of those counts (if accepted) makes it more likely that the conduct alleged in each other count was engaged in. That concession applies to incidents 9 to 14 and incident 17. The accused accepts that the evidence of those incidents engages the presumption of substantial probative value created by s 97A of the Crimes Act. She does not ask the Court to determine otherwise: cf s 97A(4). With respect, the concession is properly made. It follows that the evidence of those incidents should be cross-admissible as tendency evidence in support of those counts. I will make a ruling to reflect that determination. For the reason explained below, the ruling will also include incident 15.
40․The accused’s written submissions also addressed the directions that should be given by the trial judge in respect of that evidence. However, counsel for the accused explained in oral submissions that she was not seeking to tie the hand of the trial judge and did not seek rulings on that matter at this stage; she was merely foreshadowing the accused’s position at the trial. With respect, that is the appropriate course to be adopted in an application such as this.
Alleged inappropriate behaviour towards other students (incident 2)
41․Incident 2 is based on observations made by the accused’s supervising teacher at the school. It concerns conduct of the accused directed at male students generally, not just the complainant. The tendency notice specifies that it relates to an “uncharged act”.
42․The accused objects that the evidence amounts to evidence of the opinions of the supervising teacher and is inadmissible for that reason. That is not a question for the present application. It may be accepted that the supervising teacher’s opinions would not be admissible: s 76 of the Evidence Act. However, if relevant, the observations that formed the foundation for her opinions might be. It is neither necessary nor appropriate to make those kinds of determinations in advance of the trial. Leaving aside reliance on the evidence for a tendency purpose, the permissibility of particular questions and the admissibility of the answers given is a matter for trial.
43․The tendency notice includes incident 2 in the list of incidents relied upon to support the alleged tendency to have a sexual interest in the complainant at a time when he was a child. The inclusion of incident 2 in that list may have been due to inadvertence. The substance of the evidence set out in the tendency notice relates to male students generally and does not mention the complainant. The evidence falls more comfortably within the matters relied upon to support the alleged tendency to cultivate inappropriate relationships with current or former students.
44․In any event, the principal difficulty with the evidence of incident 2 is the danger of unfair prejudice. Counsel for the accused submitted that the evidence does not engage the presumption in s 97A. That is probably right and I will proceed on that basis. Furthermore, the evidence described is of a kind that is particularly susceptible to misuse. The evidence addresses the way the accused dressed at the school, alleged favouritism and flirting and the witness’s inference that the accused was “pretending” to be on the phone during breaks between classes (the inference being that she did so to create opportunities for contact with male students). Those kinds of observations, even disentangled from the opinions to which they gave rise, are unlikely to have much probative value. The danger of unfair prejudice to the accused is high because the inferences that can fairly be drawn as to a person’s state of mind from such conduct are various and heavily dependent on context. Since the evidence is otherwise not relevant to any fact in issue in the trial, the exploration of the necessary context is likely to distract the jury.
45․For those reasons, the evidence described in incident 2 should not be admitted as tendency evidence.
Flirtatious behaviour and other benign acts
46․Incident 1 and incidents 3 to 8 are relied upon by the prosecution to support count 2.
47․Incident 1 is described as “[f]lirtatious behaviour directed to [the complainant] whilst a student at Saint Edmund’s College”. The objection to that evidence is that flirtatiousness is not an objective phenomenon; it requires a “subjective value judgment” to be made. The accused submitted that the tendency notice does not sufficiently particularise the behaviour on the part of the accused described as “flirting” so as to allow the court to conclude that behaviour had the character of showing a tendency to have or act on a sexual interest in the complainant.
48․The submission may have overlooked the conduct specified in the tendency notice (Q/A 55-91 in the complainant’s evidence-in-chief interview). In those parts of the interview, the complainant describes interactions with the accused at school and in the playground that are plainly capable of being construed as revealing a sexual interest in the complainant. Contrary to the apparent premise of the accused’s submissions, this issue is not to be determined by taking a single incident in isolation and asking whether that incident of itself could prove the tendency. As explained by Gageler J in Hughes at [71], tendency evidence is based on inferential or inductive, not deductive, reasoning. The question is not whether, if a particular piece of tendency evidence were taken as a given premise, it would logically follow as a necessary conclusion that the fact in issue was established. That is deductive reasoning. The question is whether the tendency evidence, taken as a piece in a puzzle, or one of the stars in a constellation, has significant probative value in establishing the existence of the fact in issue. That is inductive reasoning. A single star does not prove the shape of a constellation of which it forms part.[1] Tendency evidence is admitted to form part of constellation reasoning. The probative value of an individual piece of tendency evidence is to be considered “either by itself or having regard to other evidence presented or to be presented [by the same party]”: s 97(1)(b).
[1] I am indebted to Baker J for this analogy, which her Honour used in an extra-curricular presentation to members of the ACT Bar.
49․For that reason, incident 1, if admitted to support count 2, should also be admissible as tendency evidence for the other counts on the indictment.
50․Incidents 3 to 8 are slightly different because those acts are plainly “otherwise benign”. They include driving the complainant around, buying him gifts and the like. They are acts which could be done without any intention of grooming for a sexual purpose and which are criminalised only when done with that purpose.
51․The accused submitted that to permit evidence of benign acts such as driving the complainant to school or buying him clothes as tendency evidence to prove a sexual interest in him would entail circular reasoning.
52․Justice Hayne considered and rejected a similar argument in HML v The Queen [2008] HCA 16; 235 CLR 334 at [182] – [184]. The context was different there because the argument was that it would be circular to use one allegation of sexual conduct to reason towards the commission of another whether the evidence of both acts came from the same person. The accused’s point here is that, until the jury accepts the evidence of sexual acts, the benign acts remain benign and so cannot (except by circular reasoning) be used to support the occurrence of the sexual acts. But that overlooks the distinction between deductive and inductive reasoning or, to put the matter another way, the need to look at all the stars, even faint stars, in order to see the shape of the constellation.
53․The so-called benign acts must be assessed in the context of the whole of the complainant’s evidence. The assessment of evidence that the accused frequently picked the complainant up, drove him to and from parties, sat in a parked car with him and bought him gifts is relevantly informed by evidence alleging that she touched his penis. As Hayne J explained, the risk of circular reasoning should be addressed in the directions to the jury, but the inferential case put by the prosecution should not be weakened by excluding single pieces of evidence forming part of the totality of circumstances on which an inference might properly be based.
54․For those reasons, incidents 1 and 3 to 8 relied upon in support of count 2 should be admissible as tendency evidence in support of the other counts on the indictment.
55․The accused included incidents 15 and 16 in her submissions on this point. However, according to the tendency notice, incident 15 (requesting kisses on the cheek) is relied upon in support of count 1, not count 2. The requests for kisses are plainly relevant to count 1 (engaging in a relationship with a child). For that reason, incident 15 is properly included within my ruling as to the evidence that is cross-admissible.
56․The status of the evidence described as “incident 16” is more difficult. The incident is described as “[e]xpressing a romantic interest in the complainant”. The evidence relied upon is a series of extracts from conversations between the accused and the complainant in the accused’s car which were intercepted by a listening device. That evidence is said, in the tendency notice, to go to an “uncharged act”. However, it is not clear whether that means an uncharged act relied upon in support of count 1 (engaging in a relationship with a child) or for some other purpose. The evidence seems to be directly relevant to count 1. But if that is right, it is not “uncharged”.
57․This issue was not addressed at the hearing before me. The use to be made of the evidence of the telephone intercepts should properly be a matter for the trial judge, who will be able to assess the issue in context and with a clear understanding of the way the prosecution puts its case. Accordingly, I will make no ruling as to incident 16.
Inappropriate discussions and interactions with other students
58․Incidents 18 and 19 are uncharged acts relied upon to prove an alleged tendency to cultivate inappropriate relationships with current or former students whom the accused had met in her capacity as a teacher.
59․Incident 18 is evidence of conversation of a sexual nature between the accused and a group of female students at a different school. The accused submits that the evidence does not engage s 97A and is not capable of satisfying s 55 or s 97 of the Evidence Act. It is not necessary to accept that submission in order to reject incident 18 as tendency evidence. The evidence may be capable of proving a tendency to cultivate inappropriate relationships, but it is too remote from the allegations against the accused to have significant probative value.
60․Incident 19 is evidence that the accused sent a photograph of herself showing her cleavage with the caption “I’m the coolest teacher you’ll ever meet”. The message was sent to a former student who was 18 by the time she sent it. It suggests a tendency to have a sexual interest in young men. However, its probative value is low and the risk of prejudice high, given the age of the former student when he received it. While he was no longer either a child or a student when the accused is alleged to have sent the message, the evidence may invite the jury to speculate as to when the accused’s apparent interest in that young man began.
61․For those reasons, incidents 18 and 19 are not admissible as tendency evidence.
Orders
62․For those reasons, I make the following rulings:
(1)The evidence of incidents 9 to 15 and incident 17 in the tendency notice is cross-admissible as tendency evidence in support of counts 1, 3, 4, 5 and 6.
(2)The evidence of incident 2 in the tendency notice is not admissible as tendency evidence.
(3)The evidence of incidents 1 and 3 to 8 in the tendency notice, if admitted in support of count 2, is cross-admissible as tendency evidence in support of the other counts on the indictment.
(4)The use of the evidence of incident 16 in the tendency notice is a matter for the trial judge.
(5)The evidence of incidents 18 and 19 in the tendency notice is not admissible as tendency evidence.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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