Erickson (a pseudonym) v The Queen
[2021] VSCA 234
•27 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0075
| OWEN ERICKSON (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | KYROU, NIALL and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 August 2021 |
| DATE OF JUDGMENT: | 27 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 234 |
| JUDGMENT APPEALED FROM: | DPP v [Erickson] (a pseudonym) (Unreported, County Court of Victoria, Judge Doyle, 4 June 2021) |
---
CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of evidence – Whether probative value of evidence outweighed risk of unfair prejudice – Whether trial judge erred in finding evidence admissible – Whether evidence regarding content of photographs admissible to support proof of committing an indecent act and digital penetration – Appeal allowed – Evidence Act 2008, ss 85, 90, 97, 101.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L Richter | Peter Lunt and Associates |
| For the Respondent | Mr N Hutton | Ms A Hogan, Solicitor for Public Prosecutions |
KYROU JA
NIALL JA
EMERTON JA:
Before the Court is an application for leave to appeal from an interlocutory decision of a judge of the County Court in which the judge overruled an objection to tendency evidence in a trial for sexual offences concerning a single complainant.[2]
[2]DPP v [Erickson] (Unreported, County Court of Victoria, Judge Doyle, 4 June 2021 [20] (‘Reasons’). The judge certified in accordance with s 295(3) of the Criminal Procedure Act2009 on the basis that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
As originally filed, the applicant faced trial in the County Court on an indictment containing 8 charges. Charges 1 to 6 concern the same complainant, the applicant’s step daughter, ‘GC’, and contain a number of alternative charges alleging sexual offending. For present purposes the charges can be simplified and treated as one charge of committing an indecent act by touching GC’s vagina and one charge of digital penetration of her vagina. The charged acts are alleged to have occurred on two separate occasions between 7 December 2015 and 31 December 2018. GC was born in December 2008 and was between 7 and 10 years of age at the relevant time. For ease of reference, these charges will be referred to as the sexual assault charges.
Charge 7 alleges the possession by the applicant of child abuse material described in the indictment as images of naked females aged between ‘about 11 and 13 years old with their breasts or genitals or both exposed’. None of the images comprising charge 7 are of GC. The judge ordered that charge 7 be severed and it will be tried separately.[3]
[3]Reasons [29].
Charge 8 alleges that the applicant produced child abuse material, being photographs of GC’s genital or anal region.
In order to prove the sexual assault charges, the prosecution has given notice, as required by s 97(1)(a) of the Evidence Act 2008, that it intends to rely on tendency evidence to prove that the applicant has a sexual interest in GC and a willingness to act on it. To that end, the prosecution will seek to prove that the applicant took and retained indecent photographs of GC’s anal or genital region. These photographs also form the subject of charge 8.
The photographs on which the prosecution relies have been lost and no copies remain. The prosecution seeks to prove the contents of the photographs by calling two witnesses to describe what the photographs depict. The prosecution also relies on things said by the applicant in a record of interview with police, which the prosecution says amount to admissions that the applicant took the photos and that they are indecent. Thus, the tendency evidence comprises the combination of the evidence of two witnesses as to what the photographs depict and admissions by the applicant.
In a ruling given in advance of trial, the judge concluded that the evidence was admissible as tendency evidence. The applicant seeks leave to appeal against the ruling.
For the reasons that follow, we would grant leave to appeal, allow the appeal, and set aside the judge’s ruling.
The evidence
In February 2019, MD, a co-worker of the applicant, used a work computer to search for a photograph. During that search, MD came upon pornographic images of young females together with photographs which she identified as being of the applicant’s family, including GC. She described seeing photos of naked females who she estimated to be aged ‘between 12 through to the early 20’s’ some of whom ‘still had a kid-face’. After speaking with her employer, she contacted the police. The applicant had, in October 2018, left his employment with the company.
In her statement to police, MD says she saw photographs of young girls in bathers and, as she scrolled through the photographs, they became more explicit. There were about 955 photographs in total. MD identified the applicant in a number of the photographs. Relevantly she said:
I saw a series of about 10 to 12 photos. The first photo looked like [the applicant] in a pair of tracksuit pants, not his face, only the bottom half. The rest of that sequence were of his daughter, [GC] who is roughly 11. She was lying [on] the couch, face down, watching TV. She was wearing loose fitting boy shorts. The angle of the photos were taken from her rear end, aimed at her crotch. In each photo, her leg would move slightly, revealing more of her crotch area. The last photo of that sequence was the younger daughter walking up to where [GC’s] head was on the couch.
I continued to scroll through the photos and saw it went back to more naked girls. Some of the girls, I would suggest were aged 12 through to early 20’s. Some of the naked photos, the girls appeared under developed and still had a kid-face.[4]
[4]Emphasis added.
Following contact with police, Leading Senior Constable Olds attended the work premises and spoke with MD who told him she had found 900 images which she believed belonged to the applicant. In his statement, LSC Olds says:
I saw a series of photos that [MD] informed me were of [the applicant’s] two daughters. In this series of photos, the photos were taken while one of the girls was laying on the couch. She may have been asleep. The photos were taken from behind with the camera aimed at her crotch area, facing up her shorts. There would have been at least six photos in the sequence.[5]
[5]Emphasis added.
The work computer was seized by police.
On 19 February 2019, the applicant was arrested at his home and a computer and other devices belonging to him were also seized. They were found to contain images that the prosecution alleges comprise the child abuse material that forms the subject of charge 7. On that day, the applicant participated in a record of interview with police. At this point, GC had not made any allegations of sexual assault and the interview with police was concerned only with allegations that the applicant possessed child abuse material.
The record of interview
The interview was conducted by two police officers, neither of whom had, at the time of interview, seen the images on the work computer. At the start of the interview the applicant was told that he was being interviewed in relation to the offence of possessing child abuse material found on a computer at his former workplace.
The applicant was told that ‘underage pornography’ had been found on the computer. The applicant said that he had plugged his iPhone into the computer and, in response to the police’s statement that the 950 files on the computer had come from that phone, he said ‘yep’. He was told that among ‘personal photographs of yourself and your kids and so forth’ were images of naked and posing underage girls. In response to the question ‘do you know those photographs that I’m talking about’, he said ‘I think so, yes’. Asked about those images, the applicant admitted that he had a ‘sexual addiction problem’, that he looked at a lot of pornography, and that he had spoken to his partner about his problem. He said he was ‘quite ashamed’ and that he was sure there ‘might be some … images’ that he ‘didn’t fully intend to have’. He said that amongst the photographs there might be ‘some illegal material there that [he] didn’t intend to have’. He said he downloaded the images from the internet.
Notwithstanding his earlier answers that there might be ‘some illegal material’, the applicant denied that there would be any child pornography images on the computer. He accepted that the images on the work computer had come from his phone and that he had deleted the images from his phone ‘as soon as [he] could’. He was then told that the work computer and his personal computers and devices that had been seized from his home would be analysed by computer technicians.
The following exchange then occurred:
Q 99There’s a series of photographs which have ended up on the work computer - - -
A Mm’hm.
Q 100 - - - which we say has come from your phone - - -
A Yep.
Q 101 - - - which shows - which are taken of a girl that’s lying on the - on a couch - - -
A Mm’hm.
Q 102 - - - and it's taken from - well, basically up her shorts’ legs.
A Yep, O.K.
Q 103 Do you know those photos?
A I think so, yep.
Q 104 What can you tell me about that?
A Those pictures were taken during - during the - during my - the peak of my - how would you say - my addiction. That’s all I have to say about that, I think.
Q 105 All right. Now, those - did you take those photographs?
A Yes, I did.
Q 106 And were they taken at your house?
A Yes.
Q 107 O.K. And is that of your stepdaughter [GC] in those - - -
A [GC], yes, it is.
On 14 September 2019, GC made the first disclosure of the alleged sexual assaults. On 9 October 2019, GC conducted a VARE interview with police. In her VARE, GC said that when she was eight or seven years old she had worms. Her mother checked her bottom for worms using the torch on her phone to illuminate the anal area and found there were worms present. She says that later the applicant asked to check for worms. Her mother was not present on this occasion. She says that he used the light on his phone to illuminate the area and checked her ‘fanny’ using his fingers to open it. She said that she heard ‘photo clicks’ from the camera. We note that the prosecution will not allege that the applicant took photographs of GC on this occasion.
GC said that, on the second occasion, about three to six weeks later, the applicant again said that he needed to check for worms. She said that on this occasion, he used the torchlight on his phone without any clicking, and inserted his fingers into her vagina.
The applicant accepts that he inspected GC’s genital region looking for worms and says that this was a legitimate medical or hygienic purpose. He denies penetration by his fingers.
The judge’s ruling
The judge recorded that it was not in dispute that a pornographic or sexual photograph taken by an accused of a complainant can demonstrate a sexual interest in the complainant and would be admissible as tendency evidence.[6] He referred to Schulz v The Queen[7] and M R v The Queen.[8]
[6]Reasons [18].
[7][2019] VSCA 197 (Maxwell P, Niall and Weinberg JJA) (‘Schulz’).
[8][2011] VSCA 39 (Buchanan, Harper and Hansen JJA) (‘M R’).
The judge accepted that standing alone, the applicant’s argument that the evidence of MD and LSC Olds had low probative value was ‘more persuasive’, but concluded that, in combination with the admissions of the applicant, they ‘leave open the factual conclusion that the photos were indecent and show a sexual interest in the complainant’.[9] He concluded that the evidence, taken at its highest, has significant probative value in circumstances where the applicant says his inspection of GC’s vagina had occurred but was for a legitimate purpose.
[9]Reasons [20].
The judge said that it was clear which photos were being referred to by the applicant in his interview and he made an ‘implied admission’ as to the indecent nature of the photographs by his comment that he had taken the photos at the ‘peak’ of his addiction.[10]
[10]Reasons [21].
The judge concluded that the substantial probative value of the evidence outweighed any prejudicial effect.[11] He said that strong directions would need to be given to the jury that the only permissible use of the applicant’s admission to a sexual addiction manifested by viewing pornography is its relevance to the assessment of the alleged sexual or indecent nature of the photographs of the complainant and they should not reason that he is more likely to have committed the offences by reason of viewing pornography.[12]
[11]Reasons [24].
[12]Reasons [25].
Proposed ground of appeal
By his single proposed ground of appeal, the applicant contends that the judge erred in admitting the evidence of MD and LSC Olds, together with the purported admissions made by the applicant on the bases that:
(a) the evidence of MD and LSC Olds is not relevant;
(b) the evidence lacks significant probative value;
(c) the probative value of the evidence does not outweigh its prejudicial effect; and
(d) the admission of the evidence would not be fair, pursuant to s 90 of the Evidence Act and the residual Haddara discretion.[13]
[13]Haddara v The Queen [2018] VSCA 303 (Priest and Beach JJA).
The applicant’s submissions
The applicant submits that the evidence of MD and LSC Olds does not meet the test of relevance.[14] He says that ‘shorn of opinion’, the evidence cannot establish that the photographs were indecent or sexualized and is therefore irrelevant. In that respect, he says the evidence goes no further than describing a series of photographs of a child who is clothed and watching television. The framing of the photos includes the head, legs and feet, and the surrounds, including the presence of another sibling who is visible in some of the photographs, which is inconsistent with there being a focus or close up of the genital area. There is no suggestive posing or sexual imagery involved. He submits that the observation in the statements of both MD and LSC Olds that the photograph was ‘aimed at’ the complainant’s crotch was an inadmissible opinion as to the motivation of the person taking the photographs, and that the photographs were indecent.
[14]Evidence Act s 55.
The applicant submits that the answers given by him in his interview, that he took the photographs and that they were taken ‘during the peak’ of his addiction, are not admissible as admissions. He says that the photos that the police officers were talking about were not shown to him and his answer to the question whether he knew the pictures was an equivocal ‘I think so, yep.’ It cannot be inferred that he is referring to the same photographs as those described by MD and LSC Olds. Similarly, the reference to his addiction in answer to question 104 is ambiguous and may equally relate to the time at which the photographs were taken, rather than an acknowledgement that the photographs were connected, by purpose or subject matter, to his so called addiction. His answers cannot be taken to be an admission that the photographs were indecent, sexualised, or pornographic.
The applicant submits that, either alone or in combination, the impugned evidence does not prove the existence of the alleged tendency, and even if they meet the basal test of relevance they are not of significant probative value as required by s 97 of the Evidence Act.
The respondent’s submissions
The respondent submits that the police provided the applicant with a concise description of the photographs in question, and that the evidence of MD and LSC Olds, taken together with the answers of the applicant in his record of interview, establish the indecent or sexualised nature of the photographs taken of GC. The respondent submits that the evidence discloses a tendency to have a sexual interest in GC and seeks to use tendency reasoning in support of the sexual assault charges. The respondent contends that this is supported by the admission of the applicant, that he took the photographs up GC’s shorts, which he then connects with his predilection for pornography.
The respondent submits that there is nothing in the circumstances of the interview to adversely affect the truth of the admissions, nor was there anything in the circumstances that make it unfair to the applicant to admit the evidence pursuant to ss 85 and 90 of the Evidence Act.
The respondent submits that the evidence has significant probative value in relation to the contested issue of the applicant’s state of mind when touching GC’s vagina.
Decision
Since the prosecution seeks to adduce the evidence of the photographs in order to establish a tendency on the part of the applicant, it is convenient to start with s 97 of the Evidence Act. Section 97 provides that evidence is not admissible to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, unless the evidence, either by itself or having regard to other evidence, has significant probative value.
As explained by a majority of the High Court in Hughes v The Queen,[15] the assessment of whether evidence has significant probative value involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. The majority further explained that there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[16]
[15](2017) 263 CLR 338; [2017] HCA 20 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Hughes’).
[16]Ibid 356–7 [41] (Kiefel CJ, Bell, Keane and Eldelman JJ).
The prosecution seeks to prove, by combining the evidence of MD, LSC Olds and the applicant, that the applicant had a tendency to be sexually attracted to GC and a willingness to act on it. In this context, it is important to recall that s 97 requires a court to consider whether the evidence, either by itself or having regard to other evidence adduced, has significant probative value. It follows that the relevance of each piece of evidence can, and should, be considered in the light of all of the relevant evidence.
The evidence of MD and LSC Olds
MD says that she saw a series of photographs in which GC can be seen clothed and lying on a couch. Although it does not appear expressly in MD’s statement, we infer that the photographs are taken from a vantage point that points from the feet and along the line of GC’s body when she is lying perpendicular to the camera and that GC is in the centre of the frame. The fact that MD was able to see the whole body, the couch, other parts of the room, and a younger sibling, means that the photographs were not cropped or confined to the groin region. To the extent that GC’s groin is more exposed in some shots, this appears to be a product of movement by GC rather than a repositioning of the camera. Taken on its own, the evidence does not establish that the photographs are indecent or that they convey any sexual content.
In reaching that conclusion, we do not ignore that MD came across the photographs amongst other pornographic images. It is highly likely that MD’s assessment of what the photographs of GC conveyed was influenced by the other photographs on the computer. However, as the respondent made plain in this Court, the prosecution would not seek to adduce any opinion from MD as to whether the person taking the photo ‘aimed’ the camera at GC’s crotch, nor her assessment of whether she considered the photos indecent or had a sexual connotation.
The evidence of LSC Olds, which is set out in full above,[17] does not take the matter any further. Apart from his opinion that the camera was aimed at GC’s crotch, which the prosecution will not seek to adduce, he says that the photos were taken from behind, and facing up her shorts.
[17]Paragraph 11 above.
Further, the fact that there were pornographic images on the computer does not assist in the characterisation of the photos of GC in circumstances where, according to MD, there were a number of family and other innocent photos interspersed through the images. It is not possible to say that the 955 photographs as a whole comprise a catalogue of indecent or pornographic images. It is also to be noted that the judge severed charge 7 of the indictment and that, in the present trial, the prosecution will not be permitted to lead evidence that the photographs seen by MD and LSC Olds contained child pornography or sexual images of children.
The above conclusion, that on its own the evidence would not establish the alleged tendency, does not resolve the question of admissibility. It does not mean that, when combined with other evidence namely any admissions made by the applicant, the photographs could not prove the relevant tendency. Accordingly, it is necessary to turn to the record of interview.
The record of interview
The admissibility of those parts of the record of interview relied on by the prosecution, involves two issues. The first is whether the record of interview contains admissions that are inadmissible under ss 85 and 90 of the Evidence Act. The second is whether, in combination with the evidence of MD and LSC Olds, the evidence of the applicant establishes the relevant tendency. If there is an affirmative answer to the second question, it will be necessary to go on to consider whether the tendency strongly supports the proof of a fact that makes up the offences charged.
Before turning to those questions, it is necessary to refer to the role of this Court on an application of the present kind, concerning as it does, an interlocutory appeal from a ruling on the admissibility of evidence. It is established that an interlocutory appeal from such a decision is governed by the principles in House v The King.[18]
[18]K J M v The Queen (No 2) (2011) 33 VR 11, 12–3 [9]–[14]; [2011] VSCA 268 (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA) (a case concerning a ruling under ss 97 and 101); McCartney v The Queen (2012) 38 VR 1, 11–2 [46]–[51]; [2012] VSCA 268 (Maxwell P and Neave JA and Coghlan AJA).
Section 85 of the Evidence Act relevantly provides that, in a criminal trial an admission made to an investigating official is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
Section 90 of the Evidence Act provides that, in a criminal proceeding a court may refuse to admit evidence of an admission if, having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
The first issue is whether the statements made by the applicant were admissions. The applicant says that his answer to question 104 is not an admission and, if it is, it is inadmissible under s 85. He relies on the following circumstances as being relevant to the truth of the admission: the photographs were not available to the interviewing police or the applicant during the interview; the questioning was brief, ambiguous, and incomplete; and the applicant’s answers were ambiguous. He says in these circumstances it was likely the truth of the purported admissions was affected.
Most of the interview is concerned with pornographic images found on the computer which had been downloaded from the internet and to the computer via the applicant’s phone. It is clear from the interview that the applicant knew of the pornographic photographs being discussed. He said that he had downloaded them to his phone, and that they may have inadvertently been uploaded to the work computer when he connected his phone to it. He knew the images were pornographic and he remembered deleting them from his phone.
The interview then turned to a different topic. The interviewing police officer referred to photographs of a girl lying on a couch. Although the applicant’s answer to the question whether he knew the photographs was somewhat equivocal (‘I think so, yep’), he was able to say that they were taken at his house, they were of his step daughter, and that ‘they were taken during the peak of…[his] addiction.’ In those circumstances, it is plainly open to a trier of fact to conclude that he was talking about the same photographs described by MD and LSC Olds, that he had taken the photographs, and that they were taken ‘basically up her shorts’ legs’. His answers constituted admissions. We agree with the judge that he ‘definitively admitt[ed]’ taking the photographs.
The more difficult question is whether the applicant’s answers constituted, or were capable of constituting, an admission that the photographs were indecent or had a sexual connotation. The issue being whether they are capable of supporting an inference as to his intent in taking the photographs or his state of mind. The judge held that the prosecution argument that the answers contained an implied admission was ‘open’. In our opinion, the answer given that the photographs were taken at a time when his addiction was at its peak places the photographs not only chronologically, but also implies that they were taken and retained as a result of his addiction. That is, they were motivated by the addiction to which he admits. Seen in that way, the answers are at least rationally capable of demonstrating that the photographs were taken and retained for the purpose of sexual gratification. They are relevant to establish the purpose for which the photos were taken.
Once it is accepted that the answers are capable of constituting admissions that the applicant took and retained the photographs and did so for a sexual purpose, there was no error in the judge’s conclusion that they were not inadmissible under s 85 or s 90 of the Evidence Act.
As to s 85, there is no doubt that the interview occurred in the presence of officials who were investigating the commission of an offence. The officers clearly identified the fact that they were interviewing the applicant in connection with child abuse material. Although the questioning could have been more detailed and it may have been preferable for the applicant to have been shown the photographs to which reference was being made, the failure to do so did not affect the truth of the applicant’s answers. There was no reason for him not to tell the truth. The applicant was involved in a voluntary interview and was cautioned as to his rights. It is not suggested that there was any lack of comprehension on his part as to the nature of the issues or the questions he was asked. No coercion or inducement and no misleading or unfair tactics were employed by the police. The questions were open ended and the applicant was given every opportunity to explain his answers or provide more or less information. Indeed, it appears from his answers that the applicant was very willing to cooperate with the investigators and where he said he would prefer not to say anything further, as he did in answer to question 104, the officers did not press or cajole him further.
The fact that an answer to a question is ambiguous and the ambiguity is not clarified or resolved by further questioning does not of itself suggest that the truth of the admissions is likely to be affected. It was not suggested that the police deliberately sought to rest their questions on ambiguous answers knowing that the applicant had other information that cast the answers in a different or innocent light.
Section 90 is also of no assistance to the applicant. There is nothing about the circumstances in which the admissions were made that would render the use of the evidence unfair.
It follows that there is no error in the judge refusing to exclude the passages of the interview under ss 85 and 90 of the Evidence Act.
In our view, the combination of the evidence of MD and LSC Olds and the admissions of the applicant is relevant to prove that the photographs of GC were taken and retained by the applicant and that, from his perspective, they had a sexual character. However, the prosecution only seeks to rely on the evidence for tendency purposes. As already observed, it is not sufficient for it to come within s 97 that the evidence is merely relevant.
The evidence must strongly support the tendency relied on by the prosecution.
In our opinion, having regard to the relatively anodyne content of the photographs and the ambiguity in the answers given by the applicant in which the connection between the photographs and his so called addiction is vague and somewhat attenuated, the evidence taken as a whole, and at its highest,[19] does not strongly establish that the applicant had a sexual interest in the complainant.
[19]IMM v The Queen (2016) 257 CLR 300, 314–6 [49]–[54]; [2016] HCA 14 (French CJ, Kiefel, Bell and Keane JJ); R v Bauer (2018) 266 CLR 56, 91–2 [69]; [2018] HCA 40 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Bauer’).
Further, the tendency asserted by the prosecution must be that the applicant had a sexual interest in the complainant and a willingness to act on it. In Hughes, the majority said:
In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded.[20]
[20]Hughes (2017) 263 CLR 338, 356 [40]; [2017] HCA 20 (Kiefel CJ, Bell, Keane, and Edelman JJ) (emphasis added).
The point was further explained by a unanimous High Court in R v Bauer (a pseudonym),[21] in which it was said that the ‘very high probative value’ of evidence of this kind results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.[22]
[21](2018) 266 CLR 56; [2018] HCA 40 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[22]Bauer (2018) 266 CLR 56, 83–4 [51]; [2018] HCA 40 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
If the applicant had a tendency, it appears to have been related to looking at and retaining pictures for the purpose of sexual gratification. Insofar as it shows a tendency to act, it is a tendency that is confined to taking and viewing images. To the extent that the evidence revealed any willingness to act on his sexual addiction, it did not involve touching or any sexual assault.
That brings into focus the second, and critical, aspect of the task in s 97, that is, whether proving that the applicant had a particular tendency would show that he was more likely to have engaged in the charged acts. Whether proof of a tendency to have a particular state of mind, being a specific sexual interest, increases the likelihood of the commission of an offence depends on the nature of that interest and of the alleged offending, and the issues which arise in the accused’s defence of the charged conduct.[23] Again, in our view, to the extent the applicant’s evidence about the photographs shows that he took them for sexual gratification, this does not strongly support the allegations that he sexually assaulted GC as alleged and is not significantly probative of the allegations.
[23]Hughes (2017) 263 CLR 338, 361 [57]; [2017] HCA 20 (Kiefel CJ, Bell, Keane, and Edelman JJ); ABR (a pseudonym) v The Queen [2020] NSWCCA 33, [35] (Meagher JA).
In this context, it was established in Hughes that it is not necessary in every case to show a striking similarity or unity between the acts that comprise or prove a tendency on the one hand and the charged acts on the other. However, the fact that the applicant took photos of GC when she was fully clothed and lying on a couch, even if taking the photos is imbued with sexual character, would not strongly support a conclusion that he engaged in sexual offending of a very different, and far more serious, kind. It is too great a leap to say that because the applicant found a photograph of GC sexually appealing it is more likely, to a significant degree, that he would continue to seek to fulfil the attraction by committing acts of a very different sexual nature as the occasion presented.[24] This case is very different to Bauer where the other acts involved sexual assault involving a single complainant. The tendency evidence in this case concerns the taking or retaining of relatively innocuous photographs that involved no physical acts on the part of the applicant and no posing or sexualised conduct on the part of GC.
[24]Bauer (2018) 266 CLR 56, 88 [60]; [2018] HCA 40 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In his ruling, the judge said that it was not in dispute that a pornographic or sexual photograph taken by an accused of a complainant can demonstrate a sexual interest in the complainant.[25] That is obviously true. But it does not necessarily show a willingness to act on the sexual attraction beyond the voyeuristic. As we have already stated, the judge referred to Shulz[26] and M R.[27] The former case can immediately be put to one side.
[25]Reasons [18].
[26][2019] VSCA 179 (Maxwell P, Niall and Weinberg JJA).
[27][2011] VSCA 39 (Buchanan, Harper and Hansen JJA).
In Shulz, the accused was the complainant’s scout master. Over an extended period of time, the accused and the complainant exchanged sexually explicit messages, some of which directly referred to the two being together on occasions where the sexual penetrations were said to have occurred, and others were more general and could not be tied to any charged acts. The exchanging of sexual images and banter pointed strongly towards a sexual relationship in which the accused was sexually attracted to the complainant and referred to assignations when they could meet. The fact that the exchange of such messages might reveal a tendency and a willingness to act on it is hardly surprising but establishes no universal proposition.
M R is more closely analogous. In that case, the accused faced three charges: possessing and making child pornography, and committing an indecent act with a child under 16, all involving his daughter. The indecent act was a sexual assault in which the accused pushed his penis against the complainant’s vagina. The pornography charges related to a video clip of the complainant wearing a robe which fell open and revealed her naked body, and computers on which were found photographs of the complainant, some being pornographic. This Court upheld the trial judge’s ruling that the pornography could show a sexual attraction towards the accused’s daughter and a willingness to act on it, and it was admissible to prove that tendency. Hansen JA, with whom Buchanan and Harper JJA agreed, said that while the acts differ, there is the commonality of acts manifesting and pursuing an unnatural sexual interest in the accused’s daughter.[28]
[28]Ibid [14] (Hansen JA).
It may be accepted that M R illustrates how the taking of pornographic images of a person may be relevant to prove a charge of sexual assault against the same person. However, it is impossible to be categorical about the connection. Section 97 requires an assessment of the probative value of the tendency evidence in the particular context in which the issue arises and having regard to the specific evidence that is sought to be adduced. In our opinion, and with great respect to the judge, it is not open to regard the fact that the applicant took the objectively anodyne photographs and that he did so at the peak of his pornography addiction as strongly supporting the proof of a fact that makes up the offences charged. The evidence is not significantly probative of the allegation that the applicant touched or penetrated the complainant’s vagina in a sexual manner under the guise of looking for intestinal worms.
In oral argument, the respondent sought to tie the incidents together by submitting that in each case the applicant used his phone as part of the sexual activity. In the case of the photographs, he used the camera function and during the sexual assaults he used the torchlight function. The argument cannot be accepted. In no meaningful sense can it be said that the phone was used in the sexual assaults. The applicant could just as easily have used another source of light, such as a torch. The use of the phone does not connect the images with the offending.
Even if there is significant probative value attached to the evidence, s 101 of the Evidence Act remains a barrier to its use. In our view, the probative value of the evidence would not substantially outweigh the prejudice involved and thus would not satisfy s 101. There would be significant prejudice to the applicant if the evidence were admitted. First, the applicant admitted to having an addiction to pornography. The jury would be told that the photographs the applicant took of GC would have to be considered in light of that admitted addiction. That is likely to significantly compromise the position of the applicant in the eyes of the jury and the prejudice is not easily overcome by directions. To admit to a sexual ‘addiction’ in the context of a case in which the accused person admits looking at the genitalia of the young complainant (albeit, he says, for hygienic or medical reasons) would entail a very real and profound forensic disadvantage.
Even though MD and LSC Olds would be confined in their evidence to a description of what they saw in the photographs, it is highly likely that their recollection as to the positioning of the child and what they recall seeing will be influenced by the fact that the photographs were found amongst pornographic images of children. However, the applicant will be hamstrung in testing the evidence on that basis. Further, and importantly, the photographs have been lost through no fault of the applicant and with significant forensic disadvantage to him.
There is a real and substantial risk that the jury’s impression of the photographs will be unfairly influenced by the applicant’s admission about pornography and he will be unable to challenge or dispel the effect by reference to the actual photographs. The position of the applicant would be poisoned without the best evidence (that might show that the photographs were entirely innocent) being available, namely the photographs themselves.
The tendency evidence relied on by the prosecution is not admissible. We note that counsel for the respondent informed the Court that in the event that the evidence to which we have referred was not admissible as tendency evidence on charges 1 to 6, charge 8 – which relates to the taking of the photographs of GC – would be severed from the indictment.
Conclusion
The applicant has succeeded in establishing error on the part of the judge. He should be given leave to appeal and the appeal should be allowed. The ruling of the judge should be set aside.
---
3
12
0