DPP and Palliser Ruling No. 1
[2014] VCC 1214
•30 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01102
| DPP |
| v |
| KENNETH PALLISER |
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JUDGE: | Cannon | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2014 | |
DATE OF RULING: | 30 July 2014 | |
CASE MAY BE CITED AS: | DPP and Palliser Ruling No. 1 | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1214 | |
RULING No. 1
REASONS FOR RULING
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Subject: CRIMINAL LAW
Catchwords: Ruling – Application by the Crown to adduce Tendency and Coincidence evidence
Legislation Cited: Evidence Act 2008
Cases Cited:The Queen v. Dupas [2005] VSCA 212; Velkoski v. The Queen [2014] VSCA 121
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Mandy | Commonwealth Director of Public Prosecutions |
| For the Defendant | Mr N. Papas QC with Mr K McDonald | Michael Gleeson Lawyers |
HER HONOUR:
1 This is a ruling in respect of the admissibility of tendency and coincidence evidence in support of Charges 1 to 5 on an eight count indictment in a trial in which the accused pleads not guilty to three charges of Transmitting child pornography (Charges 1 to 3), Two charges of unauthorised modification of data held in a computer with intent to commit a serious offence (Charges 4 to 5) and three charges of Knowingly possessing child pornography (Charges 6 to 8).
2 I shall first deal with the tendency argument as this has been the primary focus of the Crown, and the coincidence argument runs along the same lines.
3 The tendency notice dated 18 October 2013 indicates that the facts in issue sought to be proved in respect of Charges 1 to 3 are the identity of the transmitter of the child pornography, and in respect of Charges 4 to 5, the identity of the person who modified data in a computer.
4 Paragraph 4 of the notice sets out that;
"The tendency sought to be proved is the tendency of Kenneth Palliser to (a) act in a particular way, namely to distribute child pornography to unsuspecting recipients, in particular children."
When making oral submissions, however, I understood
Mr Mandy to be arguing that the accused had a tendency to distribute child pornography to unsuspecting recipients including children. Paragraph 4(b) states that;
"The tendency sought to be proved is the tendency of the accused to have a particular state of mind, namely to intend to act in the manner referred to in Paragraph (a)."
5
In the course of discussion it appeared that the prosecution was saying that the accused's proven acts in 2006 showed that he had a tendency to confront as many unsuspecting members of the public as possible with images of child pornography- That this was his intention and his purpose which, they say, is so similar to the actions and evident purpose to the perpetrator of
Charges 1 to 5 that it has significant probative value in proving that it was the accused who was the perpetrator in relation to the offences before me.
6 It was submitted that the actions and purpose of the accused in 2006 was so unusual and remarkable and had such an underlying unity in a qualitative sense with the actions and discernable purpose of the offender in the case (charges 1-5) before me, that the 2006 evidence ought be admissible in relation to the present offences (charges 1-5) to assist the Crown to prove that it was the accused who is the culprit, and further, to exclude as a reasonable possibility that his computers were hacked into.
7 Plainly the principal issue in respect of Charges 1 to 3 is the identity of the person who transmitted the child pornography, and in respect of Charges 4 to 5 the identity person who modified the data.
8 Defence deny that it was the accused and in his record of interview the accused suggests that someone may well have hacked into his computer, and that he had been set up. The Crown seeks to adduce on a tendency and or coincidence basis evidence of offences committed by the accused in November 2006 over the course of two weekends, to which the accused pleaded guilty in 2007, as evidence of tendency and or coincidence in this trial.
BACKGROUND9
10 By way of background, there appears to be no dispute that the accused is a computer service and repairman and by his own assertion most experienced in computer technology; that his business included the creation and sale of software from his website. Prior to his arrest he had access to numerous pieces of computer hardware at his home which included towers, hard disk drives, memory sticks and sophisticated software including cryptography. The Crown alleges that he was most concerned to maintain Internet security in respect of his computers, and point to various pieces of evidence in support of this.
ALLEGATIONS
11 The allegations giving rise to Charge 1 are that the accused operated a Facebook page in the name of ‘Annette Vanderson’, a fictitious persona. This Facebook page was used as a means to transmit child pornography to a Nicholas Vanderhaar by posting the images on to a Facebook wall on 2 September 2010. On 3 September 2010 a number of other child pornography images were posted to other Facebook friends of Vanderson's. All of these friends attended or had attended the same high school as Vanderhaar, which is a secondary school in the Doncaster area.
12 It is alleged that the accused posted child pornography onto the Facebook wall of a Connor Ruddell and an Alvin Chew, both of whom viewed the material giving rise to Charges 2 and 3 respectively. These complainants (along with others) both attended the same high school, and had been befriended by Vanderson; the fictitious Facebook persona.
13 I was told that a Liam Clark whose father had acted for the accused in respect of his 2006 matters also attended the secondary school that the three mentioned complainants had; that he had also received images from Vanderson and stated that his computer had been regularly serviced by the accused. The accused had recommended virus protection to him and installed this for him on his computer.
14 The accused denies that he operated the Facebook account of Annette Vanderson, and in fact denies that he ever held a Facebook account or a Twitter account. As I understand it, ‘Twitter’ was the means that a virus was sent to a computer operated by the complainant in respect of Charge 5.
15 The basis for Charge 4 is that Peter Joint, the uncle of the complainant in relation to Charge 1, suspecting that something was amiss after discovery of child pornography on his nephew's Facebook wall, clicked on a link on the Vanderson Facebook page utilising a virtual machine to download. An apparently simple survey type program came up but he noticed that the limited nature of these functions did not seem to correspond with the physical size of the program. He discovered that the program was creating multiple folders in his ‘My Pictures’ folder, each folder containing 45 images of child pornography. The children in the images appeared to be under ten years old.
16 The basis for Charge 5 is that a Johanna Waldon who worked for a company called ‘Kamco’, which was contracted to administer the Myki Public Transport ticketing system clicked on a generic ‘My Pictures’ folder on her computer in order to save a colleagues' photograph. When she did so, a large pornographic image came up on the screen. Subsequent examination show that there were 611 images of child pornography including duplicated images. As I understand the Crown's position, it is alleged that the virus had been conveyed to this computer via a tweet message some time earlier, where a message had been posted from ‘Myki twit’, referring to a training program being ‘a real hoot’ and with a reference to the same link that Peter Joint clicked on, which loaded the virus on to his virtual computer.
17 The case against the accused is a circumstantial one with the Crown relying on a number of threads of evidence, which they would say all point to the accused being the person who disseminated the child pornography in the ways alleged in Charges 1 to 5. Such evidence derives largely from information found on the accused's computer devices, information obtained from Facebook USA and information obtained from the computers of others which were impacted by the dissemination of child pornography in the ways alleged.
18 Expert evidence will be adduced in accordance with Paragraph 48 of the Crown summary. Of course defence has its own expert and denies that the accused was the culprit, and would argue that the Crown cannot exclude as a reasonable possibility that someone has hacked the accused's computer devices falsely implicating him. Of course in saying this I bear very much in mind the presumption of innocence and the burden of proof.
19 Charges 6 to 8 arise from child pornography being found on various computer devices at the accused's home. In relation to Charge 8, it is alleged that 73 images found on ‘HDD3’ of the black tower antique PC were identical to 12 of those appearing in the Myki training joke. Further images were said to have been found but do not appear to have any charge assigned to them, which is something the Crown will need to clarify before empanelment. Of course the Crown does not seek to adduce tendency evidence or coincidence evidence in support of these charges (6-8), and neither party has addressed me in respect of this aspect, save that defence do make reference to this in their written submissions.
20 The evidence sought to be adduced is contained in a police summary which defence accept was the agreed basis of the accused's pleading guilty in 2007. The Crown also appears to rely on aspects of the accused's record of interview referred to at Paragraph 8 of the Crown's outline of submissions.
2006 MATTERS
21 The police summary states, inter alia, that between Friday 17th November and Sunday 26th November 2006, a number of retail outlets in shopping centres being, Forest Hill Chase, Doncaster Shopping Town, Eastland and Knox Shopping Centre, had staff and customers discover a large number of photographs depicting primarily naked pre-pubescent females in an indecent manner or context. A small proportion of these depicted pre-pubescent males and females engaging in sexual acts. The photos had been secreted in various items at the stores. 14 stores were targeted and in excess of 450 pieces of paper depicting child pornography was discovered. The accused was arrested stealing some girls bathers from Kmart and made full and frank admissions.
22 As I understand the summary, it is said that 14 stores were targeted, although I note that when one reads the summary, that in fact one of the places where material was left was a men's toilet.
23 In excess of 450 pieces of paper depicting child pornography was discovered. The accused was arrested stealing some girl's bathers from K-mart and made full and frank admissions. When interviewed, the summary states that the accused said that he a had a fetish for looking at pictures of naked prepubescent girls in sexual contexts. I must say that on my reading of the record of interview he mentioned the word "fetish" in the context of being asked his reason for stealing the girl's bathers. I might be wrong about this; there may be reference elsewhere but if I am right about this, then this aspect of the summary is inaccurate.
24 He said that he accessed the images by logging into a news user group on the internet which required a series of passwords. He resized images he had downloaded from the website and used a program which Mr Mandy told me was called Paint Shop Pro to modify the photos in size and by inserting the words "Merry Christmas" on some of the images. He then printed these before attending the various shops to distribute them. At Knox Shopping Centre he left some images at a store ‘Gas’ which is a young girl's accessory store and a soft toy shop. Some ten year old girls discovered some of the images and handed them to a staff member. The images were of young boys engaging in sexual acts. At the ABC Shop he placed images on the floor and within pages of books. The images were found and destroyed by staff. At ‘Base Warehouse’ retail store he placed an image inside a card which was discovered by a customer.
25
At Doncaster Shoppingtown he placed a large number of child pornography images in Christmas boxes and cards, amongst toys, ladies' lingerie, confectionery on shelves and in books. One hundred and ninety photos were discovered by staff and customers. He also placed images in shoe boxes in Payless Shoes, in cards amongst toys and under Christmas trees at Myer, in books, including children's books, and on the floor at Dymocks. At
Forest Hill Chase, he distributed a number of images in similar departments to K-mart at Knox, but also the children's wear department, cosmetics and the automotive department. He also placed some images in a male toilet and placed more than 100 images at Big W in Christmas cards, confectionery, in the leisure furniture area, in hampers and within children's clothes. At Eastland, he placed images within the pockets of children's clothes at K-mart and on the shelves at a store called ‘What's New?’. He placed images at ‘Art Riot’ on various shelves on top of art and craft products and at Big W he placed a number of images in Christmas gift boxes.
26 In his record of interview he told police, amongst other things, that he distributed the photos because he thought it would be fun to let other people see the pictures and hoped that they evoked the same erotic feelings that he had. He said that he did not intend women to find them, only adult males. He said that before entering the shopping centres, he would consume alcohol to give him Dutch courage to distribute the images.
27 At Paragraph 7 of the Crown Outline of submissions (Exhibit A on the voir dire), they refer to other passages of the record of interview where the accused agrees that the photos he distributed were of children, girls who were quite young and who were sitting around with their legs spread et cetera like in a model type shoot. He said the images were cut and pasted in ‘Paint Shop Pro’ and were from an ‘LS series newsgroup’. The Crown also refers to the accused's wish to evoke erotic emotions in others and that he said ‘the thrill is just doing it’. He said that images of prepubescent girls were exciting to him and he did not really know why he wanted to share the images with other adult males but it was probably part of the thrill.
ARGUMENTS
28 Mr Mandy identified a number of features of the 2006 offending which he said were present in the current allegations (charges 1 to 5) and which in combination demonstrated an underlying unity or even striking similarity such as to amount to significant probative value. He identified the features of similarity as follows: that in respect of both instances (ie 2006 offending and 2010 allegations):
29 (a) images were downloaded from the internet
30 (b) the material downloaded was child exploitation material.
31 (c) the images were predominantly of young prepubescent girls posing.
32 (d) the images downloaded were from ‘LS Models’ series: In 2010 images downloaded from his computer came from the same series of images as those he admitted to sourcing and distributing in 2006
33 (e) a good degree of computer expertise was employed
34 (f) Mr Mandy referred to the accused's admitted use of Paint Shop Pros in 2006 which was the same type of software used by the perpetrator in 2010 to view SGL images on computers in the accused's home
35 (g) In each instance an intention was evinced to confront members of the public including children with images of child pornography in such a way that they were effectively forced to view these.
36 (h) In each case the perpetrator's purpose was to reach as many members of the public as could be achieved.
37 The Crown places particular reliance on the last two features arguing that these aspects of the two instances are quite remarkable and are of a compelling nature so as to warrant admission of the 2006 evidence.
38 In respect of coincidence evidence, Mr Mandy submitted that given the features which the 2006 matters had in common with the 2010 allegations, it was improbable that the accused was not the offender in respect of the latter.
39 He submitted that whilst there was no longer any precondition that evidence sought to be adduced as tendency or coincidence evidence be of striking similarity, or that it be an affront to common sense to withhold such evidence from the jury, such higher thresholds would be met in the present case. He submitted that this was especially so in circumstances where the Crown would be required to exclude an innocent explanation proffered by the accused in his record of interview.
40 Further, he submitted that although there may have been unfair prejudice which may attach to the introduction of the evidence, the probative value of the evidence substantially outweighed any prejudicial effect, and that appropriate directions could be given to deal with prejudicial reasoning. In this regard he referred me to The Queen v. Dupas [2005] VSCA 212 where the Court of Appeal in dismissing Dupas' appeal, approved the trial judge's decision to admit similar fact evidence despite its highly prejudicial nature. It was also found that His Honour's directions which dealt with improper or prejudicial reasoning were appropriate in that case.
41 Mr Papas of Senior Counsel, who appears for the defence with Mr McDonald, submitted that the Crown had failed to grasp Paragraph 173(f) of Velkoski v. The Queen [2014] VSCA 121. Insofar as Paragraph 4(b) of the tendency notice was concerned, he submitted that what the Crown was seeking to do was to use evidence as to the accused's state of mind back in 2006 in order to prove a state of mind which existed at the time of the current offences. He submitted that this was impermissible, highly prejudicial and unnecessary, apparently quoting from that paragraph (173(f)) in Velkoski. He submitted that once a jury was satisfied that the acts relied upon as a tendency were committed, that it was on that basis that I should be assessing the strength of the reasoning.
42 It is convenient at this stage to refer to the relevant paragraph of Velkoski which is a recent decision of the Court of Appeal where the court helpfully set out a series of principles in respect of tendency and coincidence evidence. At Paragraph 73(f) the Court said:
"The offender's state of mind is frequently relied upon in the Crown's notice of tendency evidence to cover the offender's interest in particular victims and his willingness to act upon that interest; that the offender has such a state of mind discloses only rank propensity which is not admissible as tendency evidence. It shows only that he is the kind of person who is disposed to and commits crimes of the type charged. Resort to that particular state of mind to support tendency reasoning is impermissible, highly prejudicial and unnecessary. Once the jury is satisfied that the acts relied upon as tendency have been committed, the offender's state of mind adds nothing. Reference to it is calculated to divert the jury from focusing upon the extent to which the similar features of the previous acts render the occurrence of the offence charged more likely.”
43 Dealing with the tendency to act aspect, Mr Papas submitted that there was no underlying unity or system or striking similarity or modus operandi or any real connection between the 2006 offences and the 2010 allegations other than the fact that they were both in respect of child pornography; that the Crown was seeking to adduce evidence which amounted to rank propensity on the part of the accused and did not meet the test of significant probative value.
44 He pointed to a number of differences as between the two events, submitting that:
45 (a) whilst the accused's proven conduct in 2006 was unusual and involved physical random distribution of the material to members of the public, the offending in 2010 involving an entirely different mechanism- the posting of images and viruses via a computer.
46 (b) Unlike the 2006 offences, the offending in 2010 was directed at particular individuals in a friendship group connected to the Vanderson Facebook page insofar as Charges 1 to 3 were concerned, and that Charge 4 was also linked to that Facebook page. He said that Vanderson only had eight Facebook friends and that these were targeted by the offender. As to whether the child pornography material could then be passed on to others who were friends of the eight recipients apparently depended on their privacy settings.
47 As I understand the position a Twitter account was employed in respect of the virus transferred to Ms Waldon's computer which is referrable to Charge 5. Mr Papas said that there was a tweet or a link to this particular link on the Sydney Morning Herald web page such that there was a capacity for the virus to travel further.
48 He submitted that whilst there was a connection between the accused and a Liam Clark, who also received images through the false Facebook page, and who also attended the high school that the other Facebook friends of Vanderson attended, the distribution of the material in 2006 was completely random, which was a significant difference between those offences and Charges 1 to 5, which all involved targeted and somewhat more confined audiences.
49 (c) Whilst the accused's behaviour in 2006 was highly unusual it was disputed that the behaviour of the offender in respect to the 2010 matters was. He referred to some examples of computers being subjected to various infections or viruses, mentioning ‘pornbombs’ and ‘click bait’. Mr Mandy submitted that the dissemination of child pornography via the computer to unknown members of the public was unusual. I was not referred to any particular material in support of either proposition, although Mr Mandy obtained some instructions from the police informant that the latter form of dissemination was indeed unusual.
50 (d) Whilst Mr Papas accepted that there was a commonality in the nature of the material disseminated in each case, he submitted that the level of sophistication was different between the simple production and distribution of photos in 2006 and sophisticated computer behaviour in 2010.
51 (e) He also referred to the limited period over which the accused offended in 2006 in contrast with the offending in the present case where the offending spanned six months.
52 (e) While the offences in the present case involved the subject matter of child pornography, the case was distinctly and predominantly about the misuse of computers, however, he later conceded that Charges 1 to 5 were centrally concerned with the transmission of child pornography or the unauthorised modification of data which involved the dissemination of child pornography.
53 He submitted that there was such clear prejudice arising from the evidence sought to be adduced by the Crown that it would overwhelm the jury and leave them to engage in impermissible propensity reasoning despite any direction I could give. He said that for similar reasons coincidence evidence ought not be admissible.
THE LAW
54 I now go to the law in relation to this ruling:
55 Section 97 Evidence Act 2008 relevantly provides that:
‘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 a person's character or otherwise), to act in a particular way, or to have a particular state of mind, unless the Crown 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’.
56 To paraphrase, s.98 provides that coincidence evidence cannot be adduced unless such evidence on its own, or having regard to other evidence sought to be adduced by the same party, will have significant probative value.
57 Section 101 provides that the prosecution cannot use tendency and/or coincidence evidence against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
58 In Velkoski a number of principles were enunciated by the Court of Appeal and confirmed that the Victorian position in respect of tendency evidence was different to that in New South Wales. The court held that if the evidence sought to be used as tendency evidence did no more than prove a disposition to commit crimes of the type in question then it would not have sufficient probative force to make it admissible (see Paragraph 164).
59 The court went on to enunciate a number of principles governing the operation of tendency and coincidence evidence in Victoria. In relation to tendency evidence, the court said that it remained necessary to identify and assess the strength and features of the acts relied on as supporting tendency reasoning. The court went on to recite an inclusive list of features extracted from Odgers’ text on uniform evidence with apparent approval.
60 These were:
61 (i) the number of occasions upon which the particular conduct relied upon is said to have occurred
62 (ii) the time gap between those occasions
63 (iii) the degree of similarity between the conduct on those occasions
64 (iv) the degree of similarity of the circumstances in which that conduct took place
65 (v) whether the tendency evidence is disputed
66 (vi) the issue to which the evidence is relevant.
67 The Court said that it had been suggested that tendency evidence may have greater probative value in proving conduct than in identifying an offender. I should say that defence also placed some reliance on this aspect of the judgment. The Court said that the features relied upon must in combination possess significant probative value which required far more than mere relevance. In order to determine whether the features of the acts relied upon permitted tendency reasoning, it was still desirable to assess whether those features revealed underlying unity, a pattern of conduct, modus operandi, or such similarities as logically and cogently implied that the particular features of those previous acts rendered the occurrence of the act to be proved more likely, or - I interpolate - for present purposes, whether those features revealed an underlying unity etcetera, or such similarity as logically and cogently implied that the particular features of the previous acts rendered it more likely that it was the accused rather than another who committed the offences alleged in Charges 1 through to 5.
68 In relation to coincidence evidence, the court said that the applicable principles are in many respects very much the same as those for tendency evidence. I do not propose to go into any further detail as to what the court said in respect of coincidence evidence.
CONCLUSION
69 In the case before me the accused has by his plea to a number of charges in 2007, his acceptance of the detailed police summary and in his record of interview, admitted to downloading, printing and distributing to places where members of the public would be expected to find them, numerous images of child pornography, mainly of prepubescent girls, which were taken from the LS website.
70 He did so over the course of two weekends in November 2006, physically distributing at least 450 images, planting these in 13 different retail outlets, and in a men's toilet cubicle at a shopping centre. It is clear from his admitted conduct that he intended to confront as many unsuspecting people as possible, including children, with these images. Such conduct, in my view, demonstrates that as at that time the accused had a tendency to distribute child pornography, mainly of prepubescent girls, to unsuspecting members of the public, including children.
71 Four years later child pornography material, which mainly involved prepubescent girls, and at least some of which, as I understand the position, came from the same LS series as that accessed by the accused when he offended in 2006, was sent via a fake Facebook page to a number of people, all of whom had or were attending the same school in the Doncaster area. A link on this Facebook page and a tweet were the vehicles to infect other computers with a virus of child pornography.
72 While the mode of distribution between what the accused did in 2006 and the events which occurred in 2010 is different, the essential nature of the two pieces of conduct are remarkably similar. In each case a course of action was embarked upon where the person concerned distributed images of child pornography largely of prepubescent girls from the same LS series to a number of other unsuspecting people in the community.
73 In my view this is unusual conduct. Having closely considered the tendency evidence sought to be adduced, evidence which is not disputed by the accused, I have come to the view that especially in light of the other evidence that the Crown will adduce at trial, including evidence as to the accused's expertise in respect of computers and the various threads circumstantially connecting the accused with the current offending, that evidence as to the accused's proven acts in 2006 has significant probative value in respect of Charges 1 to 5.
74 The mechanisms of distribution may be different but the essential nature of the conduct is remarkably similar and, in my view, it would be an affront to common sense to withhold such evidence of proven and significantly relevant evidence from a jury. Whilst the prospective audiences in the 2006 offences may in some respects be more random than those in 2010, in each case there is no apparent relationship between the offender and the recipient.
75 The offending in 2010 had the potential to affect other members of the public beyond those who immediately received it. While the mode of distribution is far more sophisticated in 2010 and perhaps a little more common than that which was used by the accused in 2006, it cannot be ignored that other evidence to be adduced in this trial will show that the accused had the skills and the equipment to effect the more sophisticated distribution, and as I understand the position was most concerned about computer security. The tendency evidence also tends to rebut the accused's explanation that his computer may well have, or must have been, hacked.
76 Further although the prejudicial nature of such evidence is obvious I am of the view that the probative value of the evidence substantially outweighs any prejudicial effect. In this respect I will give appropriately firm directions to the jury as to the permissible and impermissible uses of the evidence.
77 I do not understand the passage in Velkoski, to which Mr Papas referred me, as being pertinent to the present circumstances. The accused's actions in 2006 clearly evinced an intention to confront numerous unsuspecting members of the public with child pornography. That intention is also evident in the actions of the offender in 2010. It is not a case of sexual interest and a question of whether an accused has committed a sexual offence, but a case where a specific intent can be readily inferred by what are proven facts in 2006 and the events of 2010. In the latter case it is clear that the person who sent child pornography anonymously to a number of students at the high school, and who created and conveyed a virus of child pornography which was downloaded by Mr Joint and Ms Waldon, had what I regard to be an unusual interest- That is to confront unsuspecting people with child pornography mainly of prepubescent girls.
78 In terms of the essential nature of the two pieces of conduct and their evident intended purpose, there is such a similarity and peculiarity that the particular features of the previous acts render it more likely that it was the accused rather than another who committed the offences alleged in Charges 1 to 5. Therefore I rule in favour of the Crown's application in relation to tendency evidence on the basis previously set out.
79 However, in my view the police summary needs to be modified so as to exclude inaccurate or inflammatory and irrelevant material.- For example, the reactions of various customers to finding the material. The summary ought only contain those matters which relate to the accused's conduct on that occasion insofar as the distribution of the child pornography is concerned, and the admissions he made about this in his record of interview.
80 While the 2006 evidence would also be admissible as coincidence evidence I am of the view that given that I have allowed the evidence to be admitted on a tendency basis, it would be too confusing for the jury to allow the evidence to be led for coincidence purposes also, bearing in mind the directions that would need to be given. Therefore I refuse the Crown's application in this respect pursuant to s.135(b) Evidence Act 2008.
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