Judgment Suppressed
[2016] WADC 70
•12 MAY 2016
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- RCR [2016] WADC 70
CORAM: TROY DCJ
HEARD: 12 MAY 2016
DELIVERED : 12 MAY 2016
FILE NO/S: IND 1042 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
RCR
Catchwords:
Propensity - Section 31A - Significant probative value - Late disclosure - Earlier ruling - Abuse of process - Unfairness
Legislation:
Nil
Result:
Application allowed
Representation:
Counsel:
The State of Western Australia : Mr C Henderson
Defendant: Mr T Percy QC
Solicitors:
The State of Western Australia : Director of Public Prosecutions
Defendant: Slater & Gordon
Case(s) referred to in judgment(s):
APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Fuller v The Queen (1994) 34 NSWLR 233; (1994) 74 A Crim R 415
Hall v The State of Western Australia [2013] WASCA 165
IMM v The Queen [2016] HCA 14
JAW v The State of Western Australia [2016] WASCA 40
LBC v The State of Western Australia [2011] WASCA 201
LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178
Ninyette v The State of Western Australia [2012] WASCA 184
R v Handlen [2012] QSC 317
Rogers v The Queen (1994) 181 CLR 251
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Smith v The Queen (2015) 322 ALR 464
The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124
TROY DCJ: Before the court is an application, dated 9 May 2016, to adduce certain evidence which the State categorise as propensity evidence. The defence oppose the application on the basis that:
(i)the evidence lacks significant probative value;
(ii)it has already been ruled inadmissible; and
(iii)this application is so late that it creates an unfairness that should not be countenanced.
Background
As a consequence of a new indictment dated 11 May 2016, RCR is due to stand trial on 16 May 2016 facing five offences. It is alleged that he committed two offences of sexual penetration of his natural daughter, RLR, when she was a child under the age of 16 years, two offences of indecently dealing with RLR when she was under the age of 16 years and a further offence of dealing with his natural daughter, CAR, when she was under the age of 16 years. The defence is a flat denial that any such activities occurred. Pre‑recordings occurred on 10 and 11 February 2016 and RCR's denials were put to each complainant.
On 2 September 2014 RCR was arrested and interviewed and two computers and a laptop belonging to him were seized. When interviewed RCR made some admissions concerning the content on the computers. These admissions are set out in the State's earlier written submissions of 17 February 2016. They amounted to admissions that he watched pornography where a step‑father would have sexual contact with his stepdaughter but that the stepdaughter was not a child. RCR accepted that the females in the images depicted someone of a school age. When asked if he had a sexual interest in a step‑father/stepdaughter theme RCR stated, 'only on film'.
By written submissions dated 17 February 2016 the State contended that RCR's admissions about the content of his computer were admissible as propensity evidence under s 31A of the Evidence Act 1906 (WA).
It was noted in the written submissions that there was currently no computer crime report in relation to the computer and laptop seized on 2 September 2014. Consequently in terms of establishing what was on the computer, the State relied solely on what they characterised as RCR's admissions as to content.
The hearing before McCann DCJ
The matter proceeded to a hearing before McCann DCJ on 9 March 2016. Counsel for the State said that as far as she was aware, the State did not possess any of the specific material and therefore the State could not say whether it was child pornography (ts 120).
In fact the State did possess the material. It just had not been identified and extracted from the computers as of 9 March 2016.
The State submitted that the images show that RCR has a specific interest in intra-familial relationships, and that the key aspect of the evidence is that it shows that he watches and enjoys material that conveys and/or promotes the message of underage intra‑familial abuse (ts 133 ‑ 134).
His Honour found that the evidence lacked the significant probative value that was required, and that further or alternatively the fair‑minded person would think that there was a real risk that the prejudicial effect of the material would prevail over a forensic analysis, and thereby deprive RCR of a fair trial.
His Honour's reasons were that whilst at its highest RCR admitted to having an interest in depictions of intra-familial sex, there is no evidence as to the content of these depictions – it is a very generalist idea.
His Honour concluded that the evidence was too general. His Honour would not rule out a possibility that an interest in fantasy material could be admissible but at this stage it is too general. If the fantasy material was very specific it could be evidence of a real yearning but at this stage it is too general to find that there is evidence of a real yearning or desire to act any specific complainant [sic]. His Honour did not think it was sufficiently probative of a tendency to sexualise children or view them as appropriate sexual partners in the real world (ts 145).
Accordingly, the defence were entitled to assume, as of 9 March 2016, that they were not required to deal with the items on RCR's computers, his admissions in interview and its potential relevance in the State's case against him.
The technology crime services report and the consequential application
On 27 April 2016 a report from Technology Crime Services was completed and then served on the defence on or about 1 May 2016. This application is based on the contents of that report.
It is, to put it mildly, deeply regrettable that this s 31A application is now being heard, I accept in a significantly more expansive manner, two working days before the trial.
The Court of Appeal has deprecated late s 31A applications or extolled the virtue of timely such applications in LBC v The State of Western Australia [2011] WASCA 201, [30] Martin CJ; Ninyette v The State of Western Australia [2012] WASCA 184, [38] - [39], Mazza JA; and Hall v The State of Western Australia [2013] WASCA 165, [103], Mazza JA.
Understandably the defence has not had the time to respond with further written submissions, save for the contents of a letter dated 11 May 2016 which I have considered.
Is there an unfairness/abuse of process in revisiting matters?
I do not think it can be said that the 9 May 2016 application raises no new issues nor that it does not rely upon any different considerations then dealt with by McCann DCJ. The new issues raised are the provision of detailed evidence, for the first time, of what is, on its face, actually on two of the computers that were seized.
Inevitably different considerations potentially now arise given that the material I am required to consider is different from the material placed before his Honour. Moreover the relevance of the admissions in interview at PB 372 to 377 is now different. RCR's answers are not relied upon to prove content. The 27 April 2016 Technology Crime Services report does that. Rather, the admissions fix RCR with knowledge of the potentially significantly probative content on his computers.
In the case of Santos v The State of Western Australia [No 2] [2013] WASCA 39 McLure P held at [18] that the jurisdiction of a judge in a criminal trial to alter or recall a prior ruling as to the admissibility of evidence, whether made by the trial judge or another judge, is well established. The jurisdiction is not conditional on the existence of a material change in evidence or circumstances, although that will be a relevant consideration in determining whether to exercise the power.
The material change in this case is the receipt of the Technology Crime Services report.
This case does not give rise to an abuse of process as identified by the High Court in Rogers v The Queen (1994) 181 CLR 251 and as discussed by Dalton J in R v Handlen [2012] QSC 317, [10] ‑ [21]. I do not accept that the State are precluded from making this application because of an earlier ruling.
Section 31A of the Evidence Act 1906 (WA)
I must have regard to s 31A of the Evidence Act which is in these terms:
31A.Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
(3)In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion.
The evidence in this case is the material on the computers, as described at points (2) to (6) of the State's application, coupled with RCR's admissions.
There is no doubt that it constitutes propensity evidence given the extraordinarily wide definition of that concept.
Significant probative value as defined
Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue: LFG v The State of Western Australia [2015] WASCA 88; (2015) 48 WAR 178, [290](a), Buss JA.
For each count the fundamental fact in issue is whether the acts alleged occurred.
The test in s 31A(2)(a) will be satisfied if the court considers that the propensity evidence would either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue: LFG [290](b).
The adjective 'significant', in the phrase 'significant probative value' in s 31A(2)(a), connotes 'important' or 'of consequence': LFG [290](c).
That characterisation was confirmed by the majority judgment in IMM v The Queen [2016] HCA 14.
French CJ, Kiefel, Bell and Keane JJ observed at [46] that Cross on Evidence suggests that a 'significant' probative value is a probative value which is 'important' or 'of consequence'. The significance of the probative value of the tendency evidence under s 97(1)(b) of the Evidence (National Uniform Legislation) Act (NT), (the statute under consideration in IMM) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact‑finding.
In his separate but concurring judgment, Gageler J observed [99]:
Conscious that the statement I am about to make involves repetition, a judge assessing the probative value of testimony in a jury trial is always required to ask: how much is that testimony rationally capable of contributing to the jury's assessment that the existence of a fact in issue is more or less probable? Performance of that assessment necessitates identification of the fact in issue and of the steps by which it would be open to the jury to reason from the testimony to a conclusion that the existence of that fact is more or less probable. …the probative value of testimony (about which there is no issue of credibility) falls to be measured by reference to the highest use to which the jury could rationally put the testimony having found it to be credible.
There is no issue as to credibility in respect of the evidence under consideration here.
His Honour continued [103]:
To warrant the description of having 'significant probative value', the capacity of the evidence to contribute to the proof or disproof of the existence of a fact in issue must be more than simply the capacity to make the existence of that fact more or less probable. To the extent that similes can help elucidate the statutory measure of 'significant', the capacity of the evidence to contribute to the proof or disproof of the existence of the fact in issue does not need to be 'substantial' but does need to be 'important' or 'of consequence' …
I have also had regard to JAW v The State of Western Australia [2016] WASCA 40 per Mazza JA at [85] referring to the judgment of Buss JA in LFG at [290] – [291] and Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413, [60] - [61], per Steytler P.
The propensity evidence in the present case
Very belatedly the Technology Crime Services report authored by a First Class Constable Small was finalised on 27 April 2016. This is almost 20 months after the computer was first seized. The report was served on the defence 15 days before the trial is listed to commence. I accept that the State served this material on RCR as soon as it was practicable but plainly the report should have been in the State's hands far earlier than 27 April 2016.
The report then generated the 9 May application by the State to re‑agitate its application to adduce RCR's admissions, which had been ruled inadmissible, and to couple the evidence of those admissions with certain identified items recovered from RCR's computers as set out in the Technology Crime Services report at PB 434-488.
The State seeks to rely upon 37 photographs located on RCR's computer. I have viewed them all. Although the photographs are categorised as adult pornography in the report, the State say at least one of the photographs, 83.jpg is actual child exploitation material. In my view it would be open to a jury to so conclude.
The State submit that the photographs show either young girls or teenagers or adult females made to look like young girls or teenagers, most commonly by wearing pigtails, engaging in sexual activity.
I agree that on their face many of the females in these pictures do appear to be aged 15 or 16. In many instances their genitalia are shaved.
The State also proposed to adduce the names of certain videos (without proposing to play those videos), shellbags (information written to Windows registry when a user interacts with a folder) again without revealing or playing the content, Google searches and pornography URLs as identified in the application.
The State submit that this material shows that there are a number of videos, searches, shellbags and URLs in RCR's possession which allude specifically to sexual relations with a daughter or stepdaughter.
There are a large number of videos which relate to sexual activities with teenagers, including by older men and there are a large number of Google searches for teenagers or young persons being of a sexual nature.
In relation to all the material the State submit that it reveals that RCR has a sexual interest in young girls/young teenagers.
The State submits that this evidence renders it more probable that RCR committed the offences upon his daughters, who were aged between 9 and 13 at the relevant time.
Conclusions as to significant probative value
In my view if the interest of persons viewing such material was confined to age or race or other characteristic, the description of the female as a stepdaughter or daughter would be superfluous. That nomenclature is of some consequence.
By way of examples only the State point to the following items:
•A video entitled, 'Asian stepdaughter swallowing jizz' (PB 453);
•A video entitled, 'Horny teenage daughter Mindy Lynn loves old dicks' (PB 454);
•A video entitled, 'Moms teach sex Redhead teen gets sex lesson from horny stepmommy' (PB 455);
•A shellbag entitled, 'Mom helping her stepdaughter getting fucked' (PB 480);
•A google search entitled, 'Asian mother and daughter blowjob lesson' (PB 483);
•A URL entitled, 'fuck my stepdaughter' (PB 484);
•A URL entitled, 'skinny teen daughter and Mom share a big cock' (PB 487).
In my view the lack of particularity as described by McCann DCJ has been cured by the Technology Crime Services report.
As I have stated, the crucial issue for determination with respect to all counts is whether RCR committed the particular act alleged in each of those counts.
In my view the evidence of the material on the computer does have significant probative value in relation to the issue of whether RCR committed the acts alleged against him on each count.
The conduct engaged in, that is viewing and searching for items of the nature identified by the State, could not be described as a single, isolated incident.
It is not remote in time nor did it occur when RCR was a juvenile.
It is capable of constituting a recognisable mode of persistent behaviour or conduct. It is circumstantial evidence of a retrospectant kind in relation to the offences on the indictment.
As Martin CJ pointed out in LFG [161] the application of the principles will depend critically upon the facts and circumstances of the individual case. Reference to other cases in which it was concluded that the particular evidence did not have significant probative value in the context of that case only assists to the extent of providing illustrations of the manner in which the established principles are applied in particular cases.
This case is factually very different, for example, from APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59.
It would, in my view, be open to the jury to conclude from this material, coupled with his admissions, that over the period acknowledged by RCR, about two years prior to September 2014, he had a sexual interest in young girls or teenagers.
It would be further open to the jury to conclude that the material shows an interest in parents or step-parents engaging in sexual activity with their children or step‑children.
The breadth and extent of the material is striking.
In my view the potential propensity evidence has the requisite significant probative value, because it is rationally capable of contributing to the jury's assessment that it is more probable that RCR did commit the acts alleged against him.
The jury would be entitled to discern a sexual interest in topics that would ordinarily be aberrant or taboo, such as a mother and her teenage daughter sharing someone's penis or a 'horny teenage daughter' loving an older person's penis.
Whilst it by no means follows that a person with the demonstrable interest in this case would act upon such desires, it bears on the objective probability that the acts complained of did occur.
Notwithstanding the assertion by the complainants that matters complained of occurred, the jury is bound to entertain some feelings of hesitation as to whether a father could sexually offend against his natural daughters as alleged. The points that will be made on RCR's behalf such as the lack of complaint and, if applicable, any evidence he chooses to give or adduce, might cause such hesitation to crystallise into an acceptance of RCR's denials or at the least a reasonable doubt.
In my view the potential propensity evidence has the requisite significant probative value because this is not a case where a father with no known aberrant sexual interests is accused of an act that he vehemently denies. Rather the person who is accused by his daughters of sexually offending against them, when they were aged no younger than 9 and no older than 13, has a proclivity to search for and find material showing girls aged 15 or 16, in pig tails and with shaved genitalia and who, further, has an extensive interest in material about stepdaughters indulging in sexual activity.
Whilst this evidence is in no way determinative, taken as a whole it is plainly relevant to an assessment of the likelihood of whether in the three years that preceded the period of acknowledged possession of this material, RCR had an unnatural sexual interest in his biological daughters and acted upon it.
When considered as a whole it would be open to a jury to infer, beyond reasonable doubt, that RCR not only had a sexual interest in young girls or teenagers, but also, a sexual interest in the two complainants.
In my opinion this material is evidence of undoubted relevance to the question of whether RCR had committed the acts the subject of all counts. This evidence has significant probative value as stipulated in s 31A(2)(a) of the Act; in particular, this evidence, having regard to other evidence adduced or to be adduced, would rationally affect, to a significant extent, the assessment of the probability that RCR had committed the particular act alleged in each of these counts.
Comparison required by s 31A (2) (b)
I am required to turn to the comparison required by s 31A(2)(b) of the Act. The risk of an unfair trial posed by the admission of the propensity evidence is that a jury would impermissibly reason that, simply because RCR possessed this material he is guilty of the counts on the indictment.
The risk of a jury adopting such a line of reasoning could be properly guarded against by appropriate directions to the jury. In my opinion giving such directions will guard against the risk of an unfair trial such that fair-minded people, having weighed the significant probative value of the evidence against the degree of risk of an unfair trial, would conclude that the public interest in adducing all relevant evidence of guilt had priority over that risk.
I conclude that appropriate directions to the jury would mitigate the risk of an unfair trial to acceptable levels, having regard to the significant probative value of the evidence.
Exclusion for unfairness as matter of general discretion
The final basis for objection lies in the late disclosure of this material.
No authority is cited for the proposition that as part of my general discretion, I should nonetheless exclude the evidence because it is just too late and by that fact it engenders an unacceptable unfairness to the accused.
In Smith v The Queen (2015) 322 ALR 464 Gordon J, with whom all other members of the court agreed, held [38]:
An accused is entitled to a fair trial in accordance with law. An accused's right to a fair trial in accordance with law is ensured, and informed, by 'rules of law and of practice designed to regulate the course of the trial'. As stated by Mason CJ and McHugh J in Dietrich v The Queen:
"There has been no judicial attempt to list exhaustively the attributes of a fair trial."
I must also bear in mind however that as Hunt CJ at CL said in Fuller v The Queen (1994) 34 NSWLR 233; (1994) 74 A Crim R 415:
A fair trial is one which is fair to both parties, the accused and the Crown — which prosecutes on behalf of the whole community.
Similarly in The State of Western Australia v Burke [2011] WASCA 190; (2011) 42 WAR 124 Buss JA noted [342] that a fair trial involves fairness both to the accused and the State.
RCR has always known of the presence of this material on his computers. He has acknowledged its existence. True it is, that the failure to refer to any ongoing forensic material in the 22 October 2015 listings certificate, the fact that the State noted in its 17 February 2016 submissions that there was no computer crime report on these devices and the observations made by counsel on 9 March 2016 would have led RCR to perceive that the details of this material would not be used against him.
As of 9 March 2016 he would have understood that no reference would be made to it at all.
The real prejudice suffered by RCR, in my view, is that 15 days before the trial he is confronted with the prospect that the case against him is potentially stronger then he hoped it would be. Counsel for the State has agreed that if the material is ruled admissible RCR is entitled to an adjournment to enable his legal advisers to consider how the material that they hitherto did not think they needed to engage with, is to be combatted or neutralised.
The only other discernible prejudice to RCR is that an imminent trial that he was mentally preparing for will be delayed and that he will be financially disadvantaged. I do not in any way discount these aspects, but in my judgment a fair trial in this matter requires the putting before a jury material which I consider to be of significant probative value.
I decline to exclude the material as part of my general discretion.
Conclusion
The State's application of 9 May 2016 is allowed. I do not, however, preclude further argument about individual items being excluded once the defence has had the chance to analyse them in more detail.
If there is argument in due course about particular items it would only have merit if the precise nature of the item, on closer examination, took it outside the basis upon which I have ruled that the evidence as a whole is admissible.
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