R v Andrew Dean McIntosh - [2007] NSWDC 36

CITATION: R v Andrew Dean McIntosh [2007] NSWDC 36

HEARING DATE(S): 13/2/07-28/2/07

JUDGMENT DATE:
28 February 2007

JURISDICTION: NSW

JUDGMENT OF: Knox SC DCJ

DECISION: Application for separate trials dismissed; Tendency evidence of W and C is not permitted to be led; Evidence led in relation to each count is permitted to be relied on as tendency evidence in relation to the other counts; The videos (VD 6 and 7) can also be relied on as tendency evidence in relation to counts one, two and three.

CATCHWORDS: application for separate trials - objections to records of interviews - tendency/coincidence evidence - objections to videos

LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Criminal Procedure Amendment (Sexual & Other Offences) Act 2006 (NSW)
Evidence (Children) Act 1997 (NSW)
Judiciary Act 1903 (Cth)
Children (Criminal Proceedings) Act 1987 (NSW)
Evidence Act 1995 (NSW)

CASES CITED: R v NZ [2005] NSWCCA 278
R v RN (2005) NSWCCA 413
R v Chami (2002) 128 A Crim R 428; [2002] NSWCCA 136
R v RH (2004) NSWCCA 427
R v Middis NSWSC unrep 27 March 1991
R v Baartman unrep. CCA NSW 6 October, 1994
R v Demirock (1976) VR 244 at 254
Dejesus v R (1986) 68 ALR 1
R v Bikic [2000] NSWCCA 106
R v Watkins [2005] NSWCCA 164
R v F [2002] NSWCCA 9
R v Fletcher [2005] NSWCCA 338
Gipp v The Queen (1998) 194 CLR 106
R v Milton [2004] NSWCCA 195
Tully v The Queen [2006] HCA 56
R v AH (1997) 42 NSWLR 702
Qualitieri v The Queen [2006] NSAWCCA 95
R v Leonard [2006] NSWCCA 267
R v Fletcher (2005) 156 A Crim R 308
R v Zhang (2005) 158 A Crim R 504
R v Phillips [2006] HCA 4
Phillips v South Australian Police (1994) S4843
Crowe v Graham (1968) 121 CLR 375

PARTIES: R;
Andrew Dean McIntosh

FILE NUMBER(S): 06/11/0904

COUNSEL: Mr S. Flood
Mr A. Radojev

SOLICITORS: Mr. D. Mayr (Commonwealth DPP)
Mr C. Lee

- 50 -

JUDGMENT

- Issues arising on Voir Dire and related rulings

- Application for separate trials

- Objections to Records of Interviews

- Tendency/Coincidence evidence

- Objections to videos; particular videos

Indictment

1 The accused (Mr Andrew Dean McIntosh) is charged pursuant to an indictment dated 13 February 2007 which contains the following counts:

That the accused:

a) Between 10 April 2005 and 27 April 2005 did in Vanuatu, being a place outside Australia, commit an act of indecency on a person under 16 years of age, being NRK.

b) Between 10 April 2005 and 27 April 2005 did in Vanuatu, being a place outside Australia, commit an act of indecency on a person under 16 years of age, being MTK.

c) On or about 8 April 2005 at Crows Nest, in the State of New South Wales, did assault NRK and at the time of the assault committed an act of indecency on NRK, in circumstances of aggravation being that NRK was aged under the age of 16 years.

d) On or about 27 May 2005 at Crows Nest in the State of New South Wales, did have in his possession child pornography.

Legislation

2 The two counts of committing an act of indecency outside Australia on a person under 16 years are brought pursuant to s. 50BC(1)(a) of the Crimes Act 1914 (C’wth) for which the maximum penalty is 12 years imprisonment.

3 The count of aggravated indecent assault is brought pursuant to s61M of the Crimes Act (NSW) 1900 for which the maximum penalty is 7 years imprisonment.

4 The count of possessing child pornography is brought pursuant to s91H of the Crimes Act (NSW) 1900 for which the maximum penalty is 5 years imprisonment.

Procedure and law to be followed

5 The four counts include matters under the Commonwealth Crimes Act and the NSW Crimes Act. I do not understand there to be any Commonwealth equivalents of the NSW Criminal Procedure Act 1986 (and particularly sections 290 ff – evidence in certain sexual offences), the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 nor the Evidence (Children) Act, 1997. Count 3 is a ‘prescribed sexual offence’ for the purposes of section 3 of the Criminal Procedure Act.

6 In those circumstances it seems that section 68(1) of the Judiciary Act applies.

7 I have been specifically advised that there is no authority to the contrary or on trials on indictments brought under these sections and relevant to the circumstances which give rise to this indictment. Both counsel have assured me that there is no other procedure which should be followed. In the case of the Commonwealth Crown that submission has been put following a search undertaken by the DPP solicitor.

8 I am therefore proposing to follow the procedures and provisions of the State legislation and relevant authorities during the trial unless counsel point to other relevant legislation or authorities or matters which would warrant a different approach.

9 In particular, I will rule that:

- Practices and procedures established under the NSW legislation including the Criminal Procedure Act 1986, the Children (Criminal Proceedings) Act and the Evidence (Children) Act 1997 will be followed, particularly the procedure referred to in relation to the evidence of the complainants as set out in R v NZ [2005] NSWCCA 278;
- The Commonwealth Crimes Act (sections 15Y – 15YT) contains essentially identical provisions. I am advised there is no case law on those provisions.
- Jury directions will be in accordance with NSW practices where appropriate;
- The evidence of the complainants will be received in closed court;
The complainants are not to be identified in any publication other than by initials.

10 It is also agreed that the Commonwealth DPP has the jurisdiction to bring this indictment and that this Court has the jurisdiction to hear counts 1 and 2. The accused is an Australian citizen. The events the subject of counts 1 and 2 occurred on an island called Erakor Island which is off the main island, and forming part, of Vanuatu.

Applications and objections

11 The accused seeks that there should be separate trials in relation to all 4 counts on the indictment.

The primary basis for that application is that if a trial on any of the four counts proceeds concurrently with any of the others, there would be overwhelming prejudice to the accused. This submission of prejudice is inter-related with the other grounds advanced, in particular, that the receipt into evidence of the 29 videos taken by the accused of the two complainants (the subject of the child pornography count in count 4) would be overwhelmingly prejudicial to the accused.

12 The accused further submits, that there is a reasonable possibility of concoction between the two complainants and for that reason the trials in relation to the first two counts, namely, counts 1 (involving NRK) and 2 (involving MTK) – the acts of indecency said to have occurred in Vanuatu - under the Commonwealth Crimes Act should be heard separately as should the trial of the count of aggravated indecency in relation to NRK in Sydney.

13 The accused opposes the Crown giving evidence in accordance with the tendency notice tendered by the Crown.

14 The accused also objects to the tender of the videos (see below) filmed of the two boys by the accused in Vanuatu in any trial on counts 1 to 3.

The primary basis for the objection is that the videos are highly prejudicial.

15 The accused objects to marked passages of the records of interviews.

Ages of parties

16 The ages of the two complainants are:-

NRK: date of birth 26 February 1995 – aged 10 at the time of the offence; and
MTK: date of birth 2 June 1993 – aged 11 at the time of the alleged offences.

The boys were 13 and ½ (MTK) and 12 (NRK) at the time of the trial.

17 The accused was born on 7 December 1956 and was almost 50 at the time of the alleged offences.

18 The boys’ father was also aged about 50, their mother about 42 at the time.

Background

19 The Crown case is that the accused met the two boys when they were skateboarding in Manly in late January, 2005. He gave them a business card and asked them to contact their parents to see if they wished to participate in filming a movie to be shot in Vanuatu.

20 The boys’ spoke to the parents. The parents went with the boys to the accused’s premises which included a film production area as part of the accused’s business. The accused told them he wanted to produce a movie to be shot in Vanuatu. Either then, or at a subsequent time, reference was made to the movie being along the lines of a well known movie called “Blue Lagoon” said to be filmed in a tropical lagoon in the Pacific. The accused said that he wanted a twelve year-old child in the movie. He wanted to assess the two boys’ suitability and for them to be involved in training and filming exercises including diving and swimming.

21 The accused outlined the theme or story line of the movie ultimately to be produced to be that of a dream sequence involving a young boy in his school uniform who was underwater. The boy was to awake, takes off his school uniform, shoes etc, swims to the surface and walks onto a beach. Ultimately the boy was to be portrayed and waking up and then all his activities were to be revealed as being a dream. The defence case is that evidence would be led that the accused was modelling his proposed production on the movie “Blue Lagoon” where similar presentations of young people were said to take place, swimming naked. That was said to be a PG – General exhibition movie. That rating was relevant in the context of what were and are community standards in this area in terms of the possess child pornography count.

Relationship between accused the boys and their parents.

22 The relationship between the accused and the boys and their family developed. On occasions he picked the boys up from school. The accused subsequently met with their parents and the boys and then invited them to his home/office where there were discussions about the movie and the boys’ participation between the accused, the boys and their parents. On some occasions he went to the family home for dinner.

23 The accused also gave the boys gifts including I-pods, pencil cases and other items as well as the opportunity to use his guitars and other equipment, including camera equipment. They were able to use those items at the accused’s home.

24 It appears to be common ground that the K parents were in a reduced financial situation. The accused gave the boys’ parents about $25,000 in total including the airfare and two amounts each of $5,000, apparently for the boys’ school fees. There was a discussion about repayment of money owing immediately prior to the acts the subject of the complaints. The accused commenced proceedings against Mr and Mrs K for the sum of $13,000 in about May of 2006.

25 The defence case is that Mrs K urged the accused to let MTK work for him and for the accused to sack his production assistant so that he could then employ her. At some stage Mr K came to work for the accused – probably early March 2005.

26 The accused also gave the complainants’ mother a ticket to America, her trip coinciding with when the boys were in Vanuatu with the accused. The K parents were apparently also undergoing marital difficulties at the time – a matter of which the accused was said to be aware.

Tanning of boys

27 Part of the process for preparation for participating in the movie was said to be that each of the boys would need to get a tan for make-up purposes for the film which was to be shot. The process that was adopted for this was the spraying of a tanning solution on each of the boys. That took place on 8 April, 2005. The accused collected the boys and took them to his premises for that to occur.

28 The spraying solution was sprayed by the accused on each of the boys, apparently separately, while they were naked. That process took some six hours to complete, including the drying period, while they were being subject to a blow-dry machine. The boys were in boxer shorts/underwear throughout that drying period.

29 There is a minor conflict between the evidence of NRK in that respect who said he was naked and that of MTK who said (QA 208) that he was wearing underwear. NRK said that he was not wearing anything when he was tanned and thought that his brother was involved in a different process.

30 After the tanning session on 8 April 2005, NRK had a shower. It was during that shower that the acts the subject of count three were said to have occurred, namely, the accused washing NRK’s buttocks and genitalia.

31 All these matters are relied on by the Crown as evidence that the accused was building up a relationship of trust with the boys and their parents. The acts involving preparation for the movie, the tanning/make-up process, the washing and showering involved said to be part of the grooming process of the boys by the accused.

32 As a further aspect of the alleged grooming, the accused is said to have promised to supply photos to the two boys’ mother – something which apparently never eventuated. That promise, and the implicit recognition that their mother knew of what was occurring and that it was all right, was never fulfilled.

Vanuatu

33 The boys travelled to Vanuatu between 10 and 27 April, 2005 with the accused and another individual - a production assistant called Hayden Stewart. They all stayed together in a unit on an island, Erakor Island, off Vanuatu. The boys shared a room in the unit, the boys sleeping in a double bed, the accused sleeping in a single bed in the same room. There was a bathroom and shower attached.

34 The events the subject of counts one and two took place on that island.

35 The boys’ father, together with a scriptwriter called Daniel Stevenson, joined them for about the last twelve days of the trip. It was while the boys were staying in the unit and using the shower(s) attached to the unit that the acts the subject of counts one and two were said to have occurred.

36 While in Vanuatu the boys engaged in snorkelling, jet skiing, and other activities. They were taken by the accused to an island where the photographs and videos tendered on the voir dire were taken of them. Those videos were said to be the child pornography found in the possession of the accused which form the basis of count four.

37 During the Vanuatu trip, and apparently while the boys were on a remote island alone with the accused, he took photos of them naked and together on a towel. It seems that those photographs were taken at about the same time that the accused took the videos of the boys which are referred to elsewhere in these reasons.

38 The accused said to the boys that the photos ‘were for your mum’. This was apparently in the context where the accused had said that the boys’ mother had wanted photos of them.

39 The boys’ father had joined the group some twelve days before the end of the trip. The boys had some discussions with their father either at that time or shortly after their return trip – although the contents of those conversations are not precisely clear in the evidence given on the voir dire.

40 There was a phone call between Mr K and Mrs K (who was then in America) and a subsequent phone call involving MTK who said that he had been the subject of photos being taken of him while he was naked. That call occurred on or about 27/28 April, 2005.

41 MTK had a telephone call with his mother during which he referred to the photos and may have asked his mother whether she had received them. She had not and was a matter which was of concern to her, leading as it did to her getting the first available flight from the US to return.

Complaint

42 It appears that the initial complaint about the photos – which showed the boys naked on a beach - came from the boys’ mother or father. The parents then contacted the principal of the boys’ school who, in turn, contacted a counsellor attached to the school on about 5 May, 2005. The counsellor in turn contacted DOCS who then contacted the police.

Seizure of videos

43 Following contact by the DOCS officers to the Police, the boys were interviewed. A warrant was obtained and the accused’s premises searched. During that search the 29 videos the subject of the evidentiary dispute was located (see below).

44 Further investigations and enquiries occurred. The boys were interviewed on 25 May, 2005. During that interview, NRK said that he had been washed and touched on the genitals and buttocks by the accused both in Crows Nest and Vanuatu.

45 MTK was also interviewed. He was subsequently interviewed a year later (July, 2006) in San Diego in the USA. It was during that interview in San Diego that MTK said that he had been the subject of an act of indecency by the accused in Vanuatu.

46 That interview took place shortly before the committal proceedings in Australia where the boys’ parents gave evidence.

Undisputed facts

47 The accused was the person filming and videoing the two boys in Vanuatu and making the comments to them as relayed on the 29 videos (Ex. VD 6 and 7) which have been tendered.

48 All the videos show the boys naked or in a state of near total undress or in the process of getting dressed or undressed. Many of the scenes are in or under water or on beaches or shallow water.

49 In a number of the videos the boys are seen playing with their respective penises, pulling at them and, on one occasion, with NRK spreading his buttocks while looking back at the camera. There is a comment by the accused apparently to the boys at one stage to a ‘…little button arse.’

50 There is in many of the videos a very significant concentration on the genitalia and buttocks of the two boys – see below ‘Defence of artistic merit’. Many of those shot under water concentrate on the boys’ naked bodies as opposed to their heads or faces.

51 The voices heard on the video are of the accused and the boys only. The boys shown in the photographs identified are the two complainants. There is no issue of identification of the accused nor that it is his voice on the videos which have been tendered and played on the voir dire.

52 On some occasions the boys are told by the accused what to do, how to stand and squat and how to position their legs. There are references to whether or not their penises are visible. At some stage the boys appear to be relatively high-spirited, at other stages subdued and embarrassed.

Seizure of videos

53 No film of any length was ever made. The videos the subject of count 4 were seized by the police when they executed a search warrant on 27 May, 2005.

54 It is the defence case that that action prevented the completion of the making of the film. Part of the defence case is that the production assistant and scriptwriter taken by the accused to Vanuatu were a clear manifestation of the accused’s intention to produce a movie rather than a small-scale video.

55 On the material advanced on the voir dire it does not seem to me that a script was being followed for any of the voices recorded on the videos.

Concoction

56 Counsel for the accused submits that there is a reasonable risk that there has been or would be concoction in this case on the following grounds:-

(a) The relationship between the two boys NRK and MTK, as brothers, means that it is inevitable that they have discussed their respective evidence.

(b) The relationship between the boys and their parents is such that the family would have discussed the evidence.

(c) The antipathy felt and directed by the K family towards the accused is such that the evidence of the boys as the primary witnesses will inevitably be prejudiced and cannot be relied on.

Presentation of each child in records of interview/voir dire/videos

57 As the issue of concoction has been raised, it is appropriate that I set out my observations of the boys and the evidence they gave.

58 The presentation of both boys during the course of the various records of interviews and in their evidence on the voir dire was that of relatively polite, intelligent children who were open and relatively articulate. They also appeared both thoughtful and insightful in a way appropriate to their respective ages. Their presentation on the videos was one of being diffident, and almost compliant and in some cases hesitant and somewhat embarrassed – although on other occasions they were quite light-hearted to the point of being cheeky.

59 There seemed to be some emotional exhaustion or exasperation on their part – particularly MTK – when they each came to give evidence on the voir dire on matters which were clearly distressing to them. That presentation and reaction was also consistent with their evidence in their respective records of interview when the same or similar subjects were raised.

60 My observation of the videos was that each answered appropriately and with levels of embarrassment consistent with the evidence that they were giving. Their responses and reactions also seemed appropriate to their ages.

61 Each separately expressed their understanding of concepts of truth and lies and seemed to display at all times a clear understanding of the questions being put to them and the answers that they gave as well as why they were giving evidence and the importance of that evidence.

Relationship

62 The boys are brothers with an apparently close relationship. They are close in ages - 10 and 12 at the time – with a substantial commonality in interests (for example, swimming and surfing).

63 The boys now go to the different schools although they were at the same school at the time of the incidents and their respective interviews. They have also returned to the US, leaving their contacts in Australia and Sydney. Presumably this has had the effect of making them closer to each other and more likely to discuss common experiences and the reasons for their return to Australia.

Evidence on the Voir Dire

64 It was agreed that I would receive and hear the records of interview conducted with each of the boys as follows:

- VD1 – Interview with NRK 25/5/05
- VD2 – Interview with NRK 24/8/05
- VD3 – Interview with MTK 25/5/05
- VD4 – Interview with MTK 24/8/05

65 It was also agreed that I would read a transcript of an interview (VD5) conducted with MTK in San Diego in the United States. That is essentially a proof of the evidence on which the Crown will be relying in the event that MTK is called to give evidence. That has been previously served on the accused.

The Crown played a total of 29 videos taken of the two boys at Vanuatu (VD 6 and 7).

66 By consent, I read the following:

- The transcript of the committal proceedings (VD 8);
- A folder of material relating to the tendency evidence relied on by the Crown (VD 9);
- A folder of statements of witnesses including the parents of the complainants (VD 10)

Oral evidence on the voir dire

67 Both the boys and their mother and father gave evidence on the voir dire. Some relevant matters included the following:

NRK

68 NRK said at the outset of his evidence that he had come to Australia to give evidence in court “to put Andy (the accused) in gaol”. He said that it was probable that somebody had told him but couldn’t be sure whether it was the initial interviewing police officer or somebody else. NRK gave as his reasons for participating in the interview to talk about Andy, that he, Andy, had lied and that ‘he was trying to be a dad to me’.

69 NRK confirmed that he had the same interests as his brother, namely, “skateboarding, surfing, and hanging out”. He lived in the same room as his brother in Australia but has been living in a separate room since the family returned to America. The brothers now attend different schools in San Diego.

70 NRK confirmed that neither his parents nor his brother had told him what to say and that he had not spoken to his parents or brother about what he said to the police after he had spoken to the Police.

71 NRK confirmed his antipathy towards the accused arose in part because “he (the accused) was mean to my father”. He thought it was “weird” that the accused had given his mother a ticket to go to the United States when she was a stranger to the accused. He felt that Andy (the accused) was trying to take his mother away from him, although he did not tell his father or brother or mother of these feelings.

MTK

72 MTK said that he had a close brotherly relationship with NRK but did not discuss his problems with him. He confirmed other aspects of the evidence given by NRK, although in different language. He said he had discussed with his mother his feelings about what had happened in Vanuatu although he had a lot of different feelings on that subject. He said he didn’t discuss in detail what had happened with his father nor with his brother. He said that he had not seen a copy of NRK’s video nor read a transcript of what NRK said in his interview. He also confirmed that neither his mother nor his father had told him what to say.

73 In response to what his parents had said about giving evidence he said that they had told him that when he gave his evidence he should say clearly “yes” or “no” not nod his head. They had not told him or instructed him about the type of evidence he was to give nor to read material relating to the matter.

74 He had watched the DVD of his interview with the San Diego Police on the night prior to giving his evidence on the voir dire. He watched that by himself and also watched the video of his record of interview with the Chatswood Police in the prior week.

75 He said that he hated the accused because of the way the accused acted towards his (MTK’s) father and also because of what he did to him (MTK) – “he broke trust”.

76 MTK confirmed that after the boys returned from Vanuatu he had spoken to NRK about the fact that the accused had done something inappropriate. He said that that was in the context where he and NRK had had a discussion about whether they should tell anybody about what had happened in Vanuatu.

77 He said that he had spoken to his mother on the phone and told her about the photographs which had been taken.

78 MTK denied discussing with his parents the kind of evidence that he was going to give the police when he spoke to them in San Diego. He also denied speaking to NRK about what he would say to the San Diego Police or discussing with NRK what he had said to the NSW Police.

79 There was considerable cross-examination on the voir dire in relation to MTK’s fears about the accused taking his mother away and whether or not he had said that to his father.

Mother; Mrs KK

80 Mrs K gave evidence that she was aware from a conversation with MTK that the accused had photographed him while he was naked during the tanning process. It was after that that the two boys had gone to Vanuatu with the accused where they had been joined subsequently by their father.

81 Mrs K had had a conversation on 27 April 2005 and again the following morning. During that conversation MTK had told him that he had been photographed by Andy after he had had a shower. That occurred when MTK was sitting on the bed and Andy (the accused) had said to him “I’m taking the photographs for your mum”.

82 Mrs K rang back about five minutes later and asked MTK what had happened including whether the accused had touched him or played with his private parts. MTK said ‘no’. Mrs K said she didn’t speak to NRK as she did not want him to get involved and was aware of her husband’s reaction to what had occurred in Vanuatu.

83 Mrs K took the first available plane back to Australia on 2 May, 2005 and thereafter contacted the school principal.

84 She said that she had not spoken to either NRK or MTK about what they discussed with the police officers at the various interviews. She had been advised not to talk to the boys at all which she found very difficult psychologically. In particular, she had not discussed with MTK what he was to say in either Sydney or in San Diego, and did not know the details of what he had told the police.

85 Mrs K had clearly been frustrated by not being able to talk to her boys given her concerns about what had happened. I accept her evidence that she did not discuss the details about what had happened with the boys because, amongst other things, she was concerned for their own emotional stability.

86 Mrs K also confirmed that she had received various sums of money from the accused in the period March – April 2005. These amounts were : $2500, which was used by her for her trip to America while the accused was taking the two boys to Vanuatu and a further two payments of $5000 each received from Mr McIntosh by her for school fees for the boys.

87 In cross-examination she said that she was aware on 8 April 2005 that the boys had been photographed naked while they had been preparing or participating in the tanning process but didn’t think anything of it. That was apparently because she was aware that Andy was always taking photographs of them and that there was nothing sinister about what had happened.

Father: CK

88 CK said that prior to 12 May 2005 he had not spoken to the boys in detail about what had happened to them. He was not aware of the whole picture of what had happened, nor had he discussed the allegations in detail with his wife.

89 Mr K had had a telephone conversation with his wife when she was in the United States. He had not spoken in detail to the boys about the charges nor indeed the generality of them. He had received advice that he should keep his feelings to himself and not ‘contaminate’ the boys in terms of the evidence they gave. He had not heard the boys talking to each other either about their feelings or about what McIntosh was alleged to have done to them or either of them.

90 Mr K said that he didn’t discuss with the boys or either of them what they were going to say to the police and had not read their respective records of interview or details of MTK’s statement to the San Diego Police.

91 It was clear that he had told the boys at the conclusion of the trip that he had been very disappointed with the way the accused had treated him and had said that he did not regard the accused as being a friend of the family anymore. The boys were clearly aware of his feelings in that regard, in particular, MTK.

92 Having considered the totality of the evidence of the two boys and their father it seemed to me that at the conclusion of the trip the main focus of the discussions was whether Andy McIntosh had acted to split up the family and that they (father, MTK and NRK) did not wish to have any further contact with him.

93 Mr K also told the boys at the conclusion of the Vanuatu trip that he didn’t believe the film was real in the sense that it was amateurish and probably not going to be a film at all – “the whole thing was a make-believe”. He said to the boys that he did not want them to spend any more time pursuing that activity and that it was a waste of time.

94 He was aware that his wife had asked the accused whether he was a paedophile prior to the departure of the boys to Vanuatu but had not taken that any further. He said he had not spoken to the boys about what a paedophile was nor discussed with them why they were coming to Australia to give evidence. He said that they knew why they were coming to Australia to give evidence.

95 He agreed that he may have heard his wife saying that the point of the trip was to “put Andy in gaol” but his recollection was that that was said after the committal.

96 Mr K also agreed that he had at least three good reasons to see the accused in gaol and that he had those reasons in May, 2005. Those reasons were to stop Mr McIntosh alienating his position as a father within the family unit, to stop the same issue arising again, and to hinder any attempts by the accused to recover monies from him arising out of the monies which had been advanced.

97 The defence submits that at least the first two motivations were matters of which the boys were aware giving both them and their parents a clear motivation to concoct their evidence.

Law: concoction

98 Here I need to consider whether in the facts of the case there is a reasonable possibility that such concoction would or has occurred - Hoch v R (1988) 165 CLR 292 where the High Court considered the matter of concoction in the context of similar fact evidence.

99 The issue is whether on the evidence the antipathy, the boys’ awareness of the parents’ feelings and possible motivations - and the closeness of their relationship - gives rise to a reasonable possibility for concoction such that the boys got together and concocted their evidence or there was cross-contamination in their evidence. As I have said in the course of submissions, there is always a possibility in such a case that evidence may have been concocted and/or that the evidence of complainants in the position of these boys was or would be tainted or untruthful or prejudiced against the accused on any relevant issue such that it could not or should not be received.

100 With any two such brothers of such close ages, having a close relationship with each other and their parents, who have gone through such an experience, and with understandable anger towards someone who is seen as, or portrayed as being responsible for individual and familial distress, there needs to be an awareness of the possibility of concoction in relation to the evidence given by them or any of them. The issue becomes in the context of the evidence in the case, is the reasonable possibility such that there is a reasonable explanation of the tendency and coincidence evidence sought to be admitted other than the guilt of the accused.

101 The Crown has referred me to R v RN (2005) NSWCCA 413, per Sully J. at [15] to the effect that the close mother/daughter relationship of the complainant and her mother, of itself, could not give rise to a rational inference of the existence of a reasonable possibility of concoction between mother and daughter.

Evidence from records of interview and voir dire

102 Both boys and their parents demonstrated some considerable antipathy to the accused – but arising out of the incident or the surrounding circumstances.

103 NRK said at the commencement of his evidence on the voir dire that he thought the purpose of him coming to court and giving evidence was to put Andy (the accused) in jail. MTK admitted to a hatred of the accused for what the accused had done to his father ‘and for what he did to me’ – which he very firmly added in cross-examination.

104 There were clearly a range of reasons why each had the feelings of antipathy that they each did – all of them natural and understandable on their accounts when considering the totality of the evidence they gave. I think the evidence also makes it clear that the boys had discussed the possibility of their father being supplanted by the accused in the family and the related possibility of some kind of parental alienation. I accept that the boys did not know about the money issues between the accused and their parents, at least to any detail.

105 The elder boy, MTK, was probably more distressed than his younger brother when giving his evidence. That may be attributable to the fact that as an older child he had the greater insight into what had happened as well as what he had been doing, what he had been asked and made to do. There are also some indicia of protectiveness towards his younger brother in the evidence. Both boys were clearly upset during their evidence and the interviews. None of their reactions seemed to me to be staged or histrionic or rehearsed or anything other than a spontaneous, natural and not disproportionate reaction to the situation.

106 During the second interview with the police on 24 August, 2005, and after watching the first 10 of the video files, MTK said that he didn’t want to watch the videos any further and “I just hate the guy’ – the accused.

107 Elsewhere during the interview, MTK indicated an intense dislike of the accused but in my view there was no attempt by him to manufacture evidence or to manipulate the evidence or his responses in any way.

108 In his answers to the US Police in an interview in San Diego (exhibit VD 5 Q/A 467 and 502) MTK also said that he had not discussed the matter with NRK other than on his return from Vanuatu ‘ a little bit’ although more in the context of whether the boys should tell their parents of what had occurred. The boys at that time were clearly aware that their father was very disappointed by what had happened in Vanuatu, was alienated from the accused.

Consideration

109 Here the evidence on the voir dire from all four members of the K family amount to total and complete denials of any kind of concoction or rehearsal or agreements to give evidence in particular ways on particular subjects.

110 There does not seem to be any pre-existing or antipathy unrelated to these incidents or the relationship which had developed. Each boy was apparently appreciative of what the accused offered them before the incidents – the Crown alleges that that is what could have been expected from the grooming process. Both – and particularly MTK - considered that the accused had attempted to supplant his father’s relationship with the boys and each of them.

111 There had clearly been some preparation by each boy prior to each of them giving evidence on the voir dire – which, in the case of MTK, extended to him watching one of the videoed records of interview carried out with him. I also had some reservations in accepting that both boys had not discussed their evidence with each other and their parents to any extent (as opposed to any significant extent) – especially given that the giving of that evidence was the whole purpose of their trip to Australia. However, preparation and the reading of one’s own statement or watching one’s own prior interview does not amount to concoction.

112 The presentation of each of them during their respective interviews and evidence was similar. I had some reservations about the use of MTK’s phrase about the accused that ‘he broke trust’ which seemed to be an expression of a concept more similar to his parents’ obvious feelings rather than being consistent with his own description of and reaction to situations. However, other than that, I did not detect any similarity in the language each used nor commonality of language or responses each separately gave in relation to the incidents involving each of them indicative of collusion in their evidence nor of concoction nor rehearsal. Indeed, there were some differences in their responses consistent with different recollections and understandings. Those in turn will presumably form the basis of cross-examination.

113 The extent of what antipathy there is and was will doubtless be a matter for cross-examination in the trial. The jury will be directed to bear that evidence and their respective presentations in mind when considering the accuracy or otherwise of their evidence.

114 There are some discrepancies and inconsistencies between the evidence of the boys and their parents and each of them. However, those inconsistencies are explicable and, on one view, support the submission that there has not been a concoction or rehearsal by the boys or their parents or any of them in relation to their evidence either on earlier occasions or in the coming trial.

Findings on submission of concoction

115 It seems to me having seen and heard the boys’ records of interview, the videos taken of them and watched both of them while they were giving their evidence that they were both well aware of what had happened and no discussion was thought by either of them to be particularly necessary or desirable because of their embarrassment or shame about what had occurred.

116 Both boys were clearly concerned and anxious about what had occurred - and probably MTK more than NRK particularly because of feelings of protectiveness he had towards his father and the possibilities that the mother had been sent away.

117 I am satisfied that MTK and NRK did discuss the issue of the accused’s behaviour towards them while they were in Vanuatu but that that did not descend to great detail nor to the intent of manufacturing evidence nor ‘getting at’ or ‘setting up’ the accused.

118 It does not appear that the parents of the boys or either of them initiated the evidence being obtained from the boys or what they in fact said to the various investigating officers in their interviews in Australia in May, 2005.

119 Having heard and reviewed all the evidence, I find that the Crown has excluded the reasonable possibility of concoction - nor in my view has the reality of any concoction nor coaching nor rehearsal been made out. I have no doubt that they each boy bore some antipathy to the accused (as could be expected with most complainants in such circumstances) and were aware in a general way of some of their parents’ concerns. I do not think that the boys discussed either amongst themselves or with their parents, the details of what had occurred. In fact both of them seemed reluctant to be specific on those matters and their understandable embarrassment and apparent distaste was clear. I do not think that the boys were told what to say or how to react to the police when they were each interviewed.

Evidence supporting each count on the indictment

Counts 1 and 2

120 MTK said that while they were on the island the accused showered once or twice when the boys were in the showers. The accused was there every night (QA 335).

121 During the course of the videos being taken and the filming it seems clear that instructions were given to each of the boys, separately and together, as to the taking off of their clothes and the poses they were to adopt and the activities they were to pursue.

122 MTK said that on one occasion when he had his clothes off the accused came in (QA 430) and helped them take a shower. At that time the accused didn’t have his clothes on (QA 438). He said that the accused “touched us” (QA 441). He was washing us while we were having a shower (QA 446).

123 The accused submits that there are inconsistencies with the interview conducted on 25 October, 2005 which tend to support that there has been concoction and recent invention (Q/A 162 25 May, 2005 and Q/A 295/301).

124 MTK said that he saw the accused also touching his brother, NRK. The touching included him washing his penis (QA 464). He did not know whether that was also being done to NRK (QA 465).

125 NRK also gave similar evidence as to what occurred in Vanuatu – but in different language and concentrating on different details.

Count 3

126 While the boys were visiting the accused at his office/warehouse in Sydney, they on some occasions slept over without their parents being present. The boys had a shower after the tanning process took place on 8 April, 2005. It is alleged by the Crown that it was during one of these showers that the accused massaged NRK’s groin and buttocks.

127 Those acts form the basis for count 3 on the indictment.

128 NRK said that Andy would bathe him sometimes and scrubbing him with soap and stuff everywhere on his body. He identified his groin with a washing motion which is apparent on the video and also identified by him marking a diagram.

129 Subsequently (QA294) he said that “when he was washing my groin he was touching it” making it clear from his subsequent markings on the diagram that “it was his penis”. The accused was also rubbing “his butt”. That happened while he was in the shower. At that time the accused was in his Speedos in the shower.

130 NRK said that he saw MTK being washed as well and that the accused was doing the same thing to MTK’s groin and ‘his butt’.

Relevance of videos

131 The Crown relies on the contents of the videos as being relevant to both tendency and context.

132 In support of that the Crown submits the following:-

(a) That the videos are videos taken of the two boys together either naked or in various states of undress;

(b) The videos were taken contemporaneously with all the offences said to have taken place in Vanuatu. The videos were taken about 18 days subsequent to the time of the act of indecency with NRK in Sydney. It seems clear that that occurred at about the time the boys were being told that they

(c) The acts are said to be directly similar to the matters the subject of the three counts on the indictment, namely, that the boys were engaged in acts of a sexual nature when:

(d) The videos displayed matters which were entirely consistent with the purpose for which the boys had an ongoing relationship with the accused - on the Crown case, being recruited and groomed by him for a sexual purpose or prepared for a legitimate movie production on the defence case;

(e) All the activities displayed in the video involve the accused and the two boys and no one else;

(f) All activities portrayed have the potential to be able to be viewed as indecent activities consistent with the subject matter of the counts on the indictment.

(g) The videos portray the accused giving instructions or directions to the boys. In that regard there are at least four occasions when the accused is heard to tell the boys where to go and what to do, on one occasion to squat in a manner which is then carried out on video on the beach, to roll over, and how to position their legs. Various comments are made as to the visibility and positioning of their respective penises.

(h) Finally, the Crown submits that the videos display what can only be an overwhelmingly sexual context of the relationship and the activities which were taking place.

Defence submissions: Videos: prejudice: artistic merit

133 The defence reiterates its application that the trial of count 4 should be severed as it would be impossible for the defence to have the jury properly consider the defence available of artistic merit (see below) in the context of a child sexual assault trial. Further, that the consideration of the videos would prejudice all the other counts and finally, that the videos cannot be admitted as contextual or relationship evidence on count 3 as they post-date the events relied on which occurred 18 days earlier.

134 The defence submits that the case for the accused will be that the videos were produced for artistic purposes and that there is a genuine and certainly plausible explanation for the video – see below. The defence also disputes that the videos are not contextual evidence but were simply part and parcel of the film which was being produced.

135 The defence case to the possess pornography count (count 4) brought under s91H of the Crimes Act is that first, the material is not pornographic and secondly, that it was produced for artistic purposes.

Legislation

136 Section 91H provides as follows:

(1) Child pornography means material that depicts, in a manner that would in all the circumstances cause offence to reasonable persons, a person under the age of 16:-

(a) engaging in sexual activity; or

(b) in a sexual context.

…

The relevant defence provided under subsection 91H(4) is that:

….

(c) Having regard to the circumstances in which the material concerned was produced… the defendant was acting for a genuine… artistic …purpose and that his conduct was reasonable for that purpose.

Objections to particular videos

137 Two videos were extracted from the 29 videos tendered on the voir dire – these forming VD7.

138 The defence objection was taken that the videos in their format were taken at a different speed both visually and aurally from the other 27 videos in that they showed lingering, almost voyeuristic shots of the boys, their buttocks, and genitalia. At some stages the close up of the boys buttocks and genitalia fill the whole screen. The voice over those two particular videos had been slowed down so that it was inaudible and unintelligible.

139 The Crown informed me that this was the state in which the two videos had been located at the accused’s home when the search warrant was executed. The Crown also submitted that the videos, when located by the police, were unable to be played. They had in fact been written over in a way to prevent them being changed.

140 The defence objected to the videos being submitted to the jury at all and, in particular, to the slow motion form as the presentation in the video would give an unfair impression of the way the videos were shot and the purposes for which they were prepared. The submission was that the original police notification was that the videos had been corrupted and that they could be replayed at an appropriate speed and with an appropriate voice over being provided and that that meant that those two files of the videos should not be received into evidence.

141 My tentative ruling was that those videos could be played in the form in which they were located by the police at the accused’s premises. To overcome any prejudicial effect, I indicated that I would also permit the playing of the video in its ‘normal’ speed and volume, if that was able to be reconstituted, subject to the appropriate expert evidence being given as to how the videos were restored and able to be played in that way. It would then be a matter for the accused whether he wished to give evidence as to how the videos came to be in the form they did and any other matters.

142 After hearing further evidence on the voir dire from the 2IC, Const Pearce, and a police computer/information retrieval expert, the defence objection to the tender of those two video files was withdrawn on 28 February, 2007.

Issues at trial

143 The issues in the trial in relation to which the contested evidence is said to be relevant are:

- Whether the accused carried out the acts of indecency alleged by the Crown in Vanuatu namely,
Acts of touching the groin of NRK
Acts of touching the groin of MTK
- Whether the accused carried out the act of indecency on NRK alleged by the Crown in Chatswood.
- Whether the accused was in possession of pornography and whether the videos can be regarded as constituting pornography.
- Whether the defence of artistic production is available to the accused as outlined above.

Law: Separate trials on counts

144 The accused seeks that each count on the indictment be the subject of a separate trial. Section 21(2) of the Criminal Procedure Act 1986 empowers the court to order a separate trial of any count or counts on an indictment if the court is of the opinion that an accused person may be prejudiced or embarrassed in her defence by reason of being charged with more than one offence on the same indictment or for any other reasons desirable to direct that the accused person be tried separately for any one or more offences charged in an indictment.

Onus

145 An applicant must demonstrate that there is a real risk - as opposed to a remote possibility - that prejudice will arise in a trial of the indictment containing the separate counts, causing him positive injustice.

146 The burden of proof imposed on an accused for a separate trial is one of real substance, and not what might be known in other jurisdictions as the balance of convenience. If a severed trial is to be justified at all, it must be justified by “positive injustice” which would otherwise be caused – R v Chami (2002) 128 A Crim R 428 at 37-38, and 47; [2002] NSWCCA 136.

147 The primary submission of the defence is that that ‘positive injustice’ would result from the hearing of the four counts together with the playing of the video at the trial of any of the first three counts.

Crown

148 Here, the Crown submits that the offences involve the same complainants, are (at least in relation to counts 1, 2 and 3) of the same nature and arise out of the same set of circumstances within a relatively short period of time. It is further submitted that the trials will essentially all involve the same material from the same witnesses.

149 The Crown also relies on R v RH (2004) NSWCCA 427 at [54] that, where there is inter-related behaviour and an inter-related and overlapping relationship, the cumulative effect of the allegations need to be considered. In my view, that is clearly the case here.

Principles to be applied: separate trials

150 In R v Middis NSWSC unrep 27 March 1991, (approved by the Court of Criminal Appeal in R v Baartman unrep. CCA NSW 6 October, 1994), Hunt J enunciated the relevant matters to be considered in the determination of a separate trial application which I will deal with under the following headings:-

Prejudice

151 The applicant asserts that there will be a real possibility (as opposed to a remote possibility) that prejudice will arise if the trial on the act of indecency counts proceed at the same time as the assault committing an act of indecency as well as the trial on the count of possessing pornography.

152 There is no doubt that the videos are prejudicial but that is the nature of the evidence. On one view, the videos are the best evidence of what occurred at the time and in the same, or as part of the continuing, context. They are not clouded or capable of being clouded by any issues of recollection or bias. They were taken by the accused of the boys, contain his voice and directions and were found in his possession.

153 Balanced against that consideration of prejudice and the factors which militate against the separation of counts and different trials are the following:

Nature of the evidence

154 Here the evidence in relation to each count depends primarily on the evidence of each boy as to what he said happened and their observations of what took place in relation to the other sibling. The Crown will also seek to lead the same evidence on a trial of any of the counts even if all four counts were to be made the subject of a separate trial. Subject to questions of admissibility, the same evidence would be sought to be led on all four trials.

155 The Crown submits that the video evidence found in the accused’s possession is essential contextual evidence of the relationship between the accused and the two boys. The production of the videos was the express purpose for the relationship commencing and developing between the boys and the accused. It was an accurate contemporaneous record of the activities which the accused directed the two boys to perform. It involved the two boys naked and engaging in sexual or sexualised acts. It is complete corroboration of the tendencies relied on by the Crown.

156 One factor to which I have given considerable attention is whether there is a real risk that the Crown case against the applicant will be made immeasurably stronger by reason of prejudicial material. This is an issue which is inter-related with the issue of whether the videos the accused took of the boys should be admitted in relation to one or all trials of the counts in addition to count 4 – the videos being the primary evidence in relation to that count.

157 Here it seems to me that the Crown is entitled to lead the evidence of the videos at least as contextual evidence in relation to all the other counts. If that is done, the same prejudice would result in each of the different trials. There is no difference in terms of prejudice if the counts are severed and the result of separate trials.

The public interest and the efficient dispatch of trials

158 This trial has been set down for a two/three week hearing following the committal in July, 2006. Three or some other number of trials will take some considerable – and additional - time to complete. There would also be some delays before any such additional trials could be listed. There is a clear public interest in the avoidance of a proliferation of trials with consequent costs and hearing times

The desire for finality in the proceedings as soon as possible.

159 These matters took place in 2005 and involved young children. Giving evidence has been and will be a harrowing experience for each of them. There is a clear public interest – as well as the interests of the boys and their families - in having the matters conclude speedily and as soon as possible and without repetition.

The avoidance of inconvenience to witnesses.

160 The complainants have had to travel to Australia from America where they currently live in San Diego to give evidence. The two boys and their parents have been brought to Australia for this trial. Separate trials would require an additional two or three trips to give evidence. As was noted in the full court of the Victorian Supreme Court in R v Demirock (1976) VR 244 at 254, witnesses should not be required to give evidence about the same offence at succession of trials.

The avoidance of the possibility of inconsistent verdicts

161 There is a clear public interest and value in being able to resolve differing accounts by the same jury on the same evidence in the same trial. The Crown position is that the evidence against the accused is in common form, that to present the cases separately as cases against the accused – particularly if the video evidence was not admitted - could produce a result would distort the reality of what happened.

162 In my view it is desirable that the one jury can see and hear together in the same trial all the principle persons involved so as to obtain an overview of the evidence and to see the various activities of the accused – particularly here in the context of what was said to be an ongoing film production for which the early association between the accused and the two boys was established and where the videos were said to be trial shots for the ultimate feature film.

Prejudice

163 Counsel for the accused submits that the joinder of the four counts on the indictment and the hearing of those charges in the one trial will cause prejudice of a serious nature which cannot be rectified. He relies on the decision of Dejesus v R (1986) 68 ALR 1. That case involved five charges with two separate incidents of rape involving different women. There were different defences of alibi to one and consent to the other. There were issues of mistaken identity raised on some but not relevant on other charges. The evidence on one of the rape counts was not admissible on the other. There were also marked dissimilarities in the cases (per Gibbs CJ at p. 5).

In my view, that is a very different situation from the present case.

164 Considerable time was spent by the various justices in that case looking at the directions by the trial Judge and in particular, the direction that each charge was to be considered separately in light of the evidence relating to it without any adverse inference being drawn from the fact that the other offences were charged. That difficulty will also be present here but will remain in the event of a number of different trials.

165 I have taken into account what was said by Brennan J in that case (at p. 12) that a sexual case is likely to arouse prejudice and a direction to the jury is unlikely to give sufficient protection to an accused. That may have been so in that case but in the present case, that is the nature of the charges – which in relation to counts 1, 2 and 3 are very similar - and the evidence to be led in relation to each of them and all of them. Count 4 is a different charge but the principal evidence to be led in relation to it (the videos) is direct contextual evidence of what occurred between the accused and the two boys as well as having other evidentiary value.

166 It is for the accused to satisfy the trial judge that there is a risk of impermissible prejudice by reason of a joint trial of more than one charge which cannot be sufficiently cured by a direction to the jury. The evidence, in admissible form, must be such as would warrant a departure from the normal practice of a joint trial – R v Bikic [2000] NSWCCA 106 –per Sully J at [22]. In my view, the evidence does not fall into that category.

167 The matter which needs to be looked at in this instance is whether that risk can be overcome by proper directions. Here in my view this is an appropriate case for directions to be given, particularly as to the relevance of what each boy saw and heard. Appropriate directions will need to be given but the jury must be assumed to follow those directions.

168 On the material that I have at the moment it does not seem that there will be any difficulty in the accused maintaining what defences he wishes to in relation to each of the charges and for that to be separately and appropriately considered by the jury. Those defences will be the subject of separate directions.

Severing 4th count

169 I have given particular consideration as to whether I should separate the trial on the fourth count particularly to ensure that:

There is no prejudice arising from the admission of the videos in the context of the other three counts; and
That the accused’s defence of artistic merit can be considered without any reference to the other three indecent assault matters

170 The whole purpose of the relationship between the accused and the two boys was said to be for the artistic purpose of making a film. It is as part of that explanation that the defence case will be to play other videos/DVDs/film material and to show photographs which are said to be indicia of a legitimate movie production process. The videos are said to be one part of that process, namely, the taking of test shots for the final movie, and thus part of the total artistic process.

171 However, it seems to me that if the defence is to be properly presented it will need to be done in the context of how the boys came to be in that situation and were presented in that condition and carrying out the movements pursuant to the accused’s directions.

172 Similarly, as a matter of fairness to the Crown, it would be artificial to present one part of the whole process without permitting another part of the process, apparently equally integral to the total scheme.

173 The other consideration that weighs on me in this assessment process is that the videos are and will be admissible in relation to the other three counts in any event as context and/or tendency evidence.

174 For those reasons and although the matter is finely balanced, having considered the matters set out in section 137 of the Evidence Act, the probative value of the evidence of the videos in the context of the totality of the cases to be run, the potential prejudice to the accused, the factors I have set out above in relation to the factors relevant to the separation of trials of counts on an indictment as well as the public interest considerations, in my view it is appropriate that the trial include the trial on count 4.

175 I do not accept that the statutory defence available on count 4 will be overlooked by the jury properly instructed nor will the jury be overwhelmed by the fact that the video will be being looked at in the context of a child sexual assault trial.

176 The ultimate test is whether there would be a substantial miscarriage of justice or whether impermissible prejudice would be created against an accused if the trials were not separated. I do not think that that is the case here.

Tendency notice

177 A tendency notice was served by the Crown. The Notice specified various acts involving:

C children

178 Similar acts are said to have occurred against 14 and 15 year old boys called PC and GC.

179 That evidence was ultimately not relied on by the Crown.

180 PC was apparently not prepared to give oral evidence. His statement was to the effect that the accused would on occasions have a shower with him and his brother, GC. The accused used to insist that the boys only wear underpants when they slept in a double bed with him. On other occasions he insisted that they go skinny dipping with him. He also some times grabbed them by the penis and would hit both boys with a wooden bat. On one occasion he also shaved their pubic hair. He used a leather bull whip in the boys’ presence and threatened to use it on the boys if they didn’t comply with his directions as to holding sticks.

181 GC disputes that those events occurred. There are also aspects of the evidence which are disputed by the accused.

W children

182 TW and MW were aged 9 and 11 at the time of the offences in 1985-6, in other words about 20 years prior to the acts alleged on this indictment. TW has since died but relevant statements are available.

183 MW said that the accused was brought to the W family home by a brother. MW and TW would stay at the accused’s place at Grafton Showground (a bus) whilst the W father was in hospital. The accused would pick the boys up from home and take them to his bus.

184 One weekend at the showground MW had a shower with the accused who got him to wash his back and rub his penis. The accused rubbed MW’s penis. They were in the shower for about 10 minutes. On a number of occasions MW would shower with the accused who would rub MW’s penis, as well as MW would rub the accused’s penis. On one occasion MW slept with Andrew in his double bed and the accused told MW to take off his shirt. The accused was wearing his pyjamas and he cuddled MW with his arms.

185 On another occasion the accused asked MW to take off his pyjamas and underwear. The accused had taken off his pyjamas as well. TW was asleep and the light was off. The accused made MW rub vaseline on the accused’s penis, and he rubbed vaseline on MW’s penis. The accused cuddled MW and kissed him on the cheek. The accused got MW to lay on his stomach and he laid on top of MW back and legs, and inserted his penis in MW’s bottom. MW could feel it hurting.

186 The accused told MW not to tell anyone about this. The same thing happened the following night, and again on the last night the boys stayed at the accused’s house.

187 MW had about 3 or 4 other showers with the accused after this happened. Each time Andrew would touch his penis and would rub his own penis.

188 On occasion, the accused would hit MW with a wooden stick for not wearing his speedo swimmers. He would do this by pulling down MW’s pants, putting him over his knee, and hitting him very hard on his bottom with the stick.

189 The statement of TW (now deceased) was to the effect that he met the accused at the squash courts at a competition. The accused introduced himself to TW as one of the competition organisers. They became friends and often played squash together.

190 When TW introduced the accused to his brother MW, they stopped playing squash. Instead, they would have saunas and go to the shower cubicles. TW would go to a cubicle by himself, and MW would go into a cubicle with Andrew where they would shower together.

191 On a few occasions, the boys’ parents would come to the squash courts and have a game of squash against the accused. TW would often visit the accused at his bus to operate his computer, and then they both started a Tech course in computers on Tuesday nights where the accused would come and pick TW up and take him to tech. When TW’s father had an accident, the accused started working at their motorbike shop.

192 TW and MW would sleep at the accused’s house. TW would sleep on a bed on the side of the bus, and MW and the accused would sleep in the double bed at the end of the bus. Andrew would often go into the showers with MW while TW waited for them to finish. TW never showered at the showground. In early December MW and TW stayed at the bus with the accused for almost a full working week. MW and the accused were always awake when TW woke up, and sometimes they would still both be in bed together.

193 During this time TW noticed the accused would often get angry at him, and MW and TW weren’t getting along very well. The accused would make TW work at the shop before and after school, and TW felt Andrew was controlling him. Andrew took MW and TW to the beach around ten times. TW found it unusual that MW would wear Speedos. He looked embarrassed, but the accused would say “let him wear them if he wants”.

Tendency alleged

194 The tendency alleged is that:

195 The Crown submits that the tendency is evident from the following matters:

A relationship developed between the accused and the whole family involving meals together and the development of a working/business relationship. It was those relationships which buttressed the opportunity the accused had with the respective complainants.

The accused in the W case looked after the shop of the W family. In this case, the accused employed the complainants’ father.

The accused had the two boys stay at his home for extended periods – as in the W case where the boys slept over at his home without their parents.

The age of the complainants was similar – that is in the 9 to 11 age group. A substantial number of the assaults occurred while the complainants were cohabiting with the accused.
The incidents occurred in the shower and various acts accompanied the washing of the respective complainants’ penises.

Defence submissions: Tendency

196 The defence says that the evidence in relation to the W children should not be admitted because:

(a) the accused has no prior convictions for matters since 1988. Counsel for the accused relied on the decision of Barr J in R v Watkins at para [42] to say that where there has been a passage of years without contravention by an accused then that indicates a course of behaviour which is contrary to the tendency sought to be relied on by the Crown.

(b) The younger of the two W children was not sleeping in the same bed as the accused. It is submitted that is a relevant consideration because opportunity was available to the accused in Vanuatu but he, the accused, didn’t avail himself of it.

It is further submitted that the present situation is different in the NRK and MTK were sharing the same bed and there was no suggestion of such activities by the accused.

(c) there are substantial differences in the present matter compared to the W matter in that it is not alleged that the accused was naked in the shower(s) involved. In the W matter, the accused invited the W children into his shower to wash his back and asked them to touch his penis. Neither activity is suggested as having occurred in the present matter.

Law:

197 Before admitting that evidence I need to be satisfied that the tendency evidence has significant probative value pursuant to s 97 (1) of the Evidence Act. If the evidence has that value, I need to be satisfied for the purposes of section 101 of the Act that the probative value of the evidence substantially outweighs any prejudicial effect it may have.

Test to be applied

198 The first matter to be considered is as set out in R v F at para. [22], in other words, does the evidence have a tendency or propensity as is sought by the Crown, in other words, can the evidence support that tendency or those tendencies relied on. In that regard I need to consider the similarities between what is advanced in the tendency notice and the facts alleged to be the case here – R v F [2002] NSWCCA 9 April 2002 per Wood CJ at CL.

Consideration

199 It seems to me there is a sufficient nexus established on the material tendered in relation to the W matters and the evidence to be adduced in this trial. This is not a case where the probative force is said to be found in the mere propensity of the accused to commit indecent acts with boys. The matters set out above would be highly probative of the accused’s tendency to act in the way alleged to be the grooming process of the accused and his behaviour with boys in this way. The similarities are quite marked, although not identical – R v Fletcher [2005] NSWCCA 338.

200 However, it also seems to me that the prejudice to the accused of such matters being brought to the jury’s attention would be enormous. The W matters were much more serious, involving as they did, sexual penetration, the boys sleeping with the accused in his bed and other incidents of violent behaviour, hitting the boys with sticks – none of which are relevant here – and all of which would have a tendency to inflame a jury.

201 Moreover, the W events relate to 1984-5 – a period of some 20 years having elapsed without the accused having been involved in any similar acts nor following nor pursuing any such tendency.

Prejudice to Crown: Refutation of concoction

202 It needs to be acknowledged that this ruling and decision by the Crown have an element of prejudice as far as the Crown is concerned because, the evidence once led of such striking similarity, would tend to negate any possibility of concoction by the K family who were not aware of the matters involving either the W and C matters.

BS Family

203 The Crown also relied on the evidence of matters involving a young boy, BS, also aged about 11, and his involvement with NRK and MTK in the making of the movie called ‘The Narrabeen Monster’. This short movie was filmed in Narrabeen near the Northern Beaches of Sydney in about February 2005.

204 The accused paid the S parents a sum of money and discussed the making of the movie with them and BS. The Crown relies on those matters as tendency evidence, that is, being evidence of a tendency to attract boys to the making of films by the payment of monies to their parents. It is not suggested that there was anything suspect, let alone criminal, which occurred in the making of that short movie.

205 I ruled that that evidence of tendency was inadmissible being of limited probative value and that what value there was would be outweighed by the real possibility of prejudice – for example, that the jury may speculate about the involvement of the boys being part of a wider scale operation by the accused involving other young boys.

206 I also ruled that the direct evidence of what BS and his parents did and saw during the making of the movie was admissible. That movie will be before the jury and it appears clear that a copy of it was given to the boys by the accused.

Tendency evidence: Evidence in counts one two and three used for other counts

207 However, the evidence of each event involving the two boys in Vanuatu does not suffer from the same problems of the time interval or the differences in the matters said to constitute the tendency nor contain the highly prejudicial material.

208 The Crown relies on the evidence of each of the boys as the primary evidence in relation to counts 1, 2 and 3. The Crown also submits that the evidence of each boy in relation to what occurred to him can be used as tendency and relationship evidence in relation to the other counts.

Law

209 The question of the admission of evidence of a sexual relationship between a complainant and an accused beyond the particular acts charged has been considered in a number of recent authorities with the expression of a diversity of views – see Gipp v The Queen (1998) 194 CLR 106 and R v Milton [2004] NSWCCA 195.

Relationship

210 In my view, the relationship here between the accused and the two boys was of a close nature which moved from an ostensibly quasi-employment/recruiting situation to one where the accused had engendered and been accorded a substantial degree of trust by both the boys and their parents – and that the trust of the parents was known to the boys.

211 While not of an innately sexual nature at least in Sydney and up until the tanning incident, the relationship had as its parameters a situation where the boys were frequently in states of minimal clothing ultimately leading to a situation where they were on occasions, naked and where the accused gave them instructions to that effect and while they were in that state.

212 This is not a case where there are simply superficial similarities in the incidents the subject of the various counts. The manner of behaviour by the accused as alleged by the Crown is almost identical in both matters involving NRK and the matter involving MTK. The charges arise out of essentially the one course of conduct, the one ongoing relationship and a continuing pattern of behaviour involving each of the two boys and both of them. The acts said to constitute the first two counts occurred almost contemporaneously, in the same location and involved almost the same kinds of events. The events clearly took place at the same time with each boy saying what he experienced himself and what he saw occurring.

213 This evidence goes not only to explaining the nature of the relationship, it also has a direct probative value relevant to the issues as outlined, in particular the circumstances in which the acts were committed – Gipp v R (1998) 194 CLR 106; Tully v The Queen [2006] HCA 56. The events could be used as confirmatory or critically of the evidence of either of the complainants in support of any finding – R v Milton [2004] NSWCCA 195 at [43].

214 Following the approach in R v AH (1997) 42 NSWLR 702 and Qualitieri v The Queen [2006] NSAWCCA 95, it seems to me the evidence can be characterised as relationship evidence and as tendency evidence. If it is the latter, its admissibility needs to be determined in accordance with the provisions of sections 97 and 101.

Additional basis for relevance

215 I should also add that the evidence may be relevant in other ways as was referred to by Hodgson JA in R v Leonard [2006] NSWCCA 267 at [49] namely:

‘…where a man is charged with particular sexual assaults against a complainant, evidence that he committed similar assaults against the complainant on other occasions could be relevant in at least three different ways, only one of which would be as tendency evidence:

It may be relevant to the extent of removing implausibility that might otherwise be attributed to the complainant's account of the assaults charged if these assaults were thought to be isolated incidents, in particular implausibility associated with the way each party is said to have behaved on these particular occasions.

(2) It may be relevant in supporting an inference that the accused was sexually attracted to the complainant, so that he had a motive to act in a sexual manner towards the complainant.
(3) It may be relevant in supporting an inference that the accused not only had the motivation of sexual attraction, but also was a person who was prepared to act on that motivation to the extent of committing sexual assaults.’

Consideration

216 For the purposes of my consideration under sections 97, 98 and 101, I should state my view that it is likely that this evidence could rationally affect the assessment of the probability of the existence of the fact in issue, that it could be anticipated to have significant probative value by the jury – R v Fletcher (2005) 156 A Crim R 308; R v Zhang (2005) 158 A Crim R 504 at [139].

217 The facts in relation to each of counts one, two and three in my view can be led as tendency evidence in relation to the other two counts and also in relation to count 3, namely, if the evidence on the respective primary counts is established as tendency evidence to show that the accused was in the practice of:

218 The evidence having that character in my view also has significant probative value pursuant to s. 97(1)(c) of the Evidence Act. The evidence led in relation to each count is important as to context and is significantly probative in that it may go to establish whether the accused did or did not touch each of the boys on the groin and on the buttocks in the shower in the circumstances.

Coincidence evidence

219 In relation to its reception as coincidence evidence, the events are substantially and relevantly similar and the circumstances in which they occurred are substantially similar. In terms of what was said in R v Phillips [2006] HCA 4 at [58], there is a clear striking similarity, presence of unusual features and underlying pattern to all the evidence which is sought to be tendered.

220 That probative value outweighs the prejudicial effect the evidence may have – which again arises from the value of the evidence itself not because of any effect or impact it may have on the proper or acceptable process of reasoning on the jury – per Simpson J in R v Zhang (2005) 158 A Crim R 504 at [41].

221 Here it seems to me that the evidence admissible on each of counts one, two and three is admissible on the other counts.

222 The Crown further submits that the substantial similarity of what occurred in relation to the primary facts on each of the first three counts can be relied on to refute any similarity of concoction. I do not think that that submission is as soundly based as was the similar submission based on the reliance on the matters involving the W and C children – where there could be no suggestion that the parents and children in this matter knew of those children and what had occurred.

223 Again, adopting the same approach, and without reiterating all the matters to which I have made reference, in my view that evidence is substantially and relevantly similar and the circumstances in which the events occurred (albeit separated in time by about 18 days and in different locations) were substantially similar making the evidence also admissible as both tendency and coincidence evidence. I also think that that evidence has substantial probative value which outweighs any prejudicial effect it may have.

Tendency evidence constituted by the video and taking of the video

224 The videos are also relied on by the Crown as evidence of a tendency

225 The videos are capable of being regarded as direct evidence of the grooming behaviour of the accused, building up their trust, encouraging the boys to be naked in his presence and complying with his directions, particularly as to their positioning, their clothing and their actions. The videos also had the capacity to be seen as part of the stated purpose of the accused for the commencement and continuation of his relationship with the boys.

226 That relationship necessarily meant that the boys were used to seeing the accused in and around movie and video equipment and being given directions as to their dress and movement while in that context. There was some discussion and direction as to the visibility or otherwise of the boys’ penises. The directions included being told to take off their clothes in various contexts such that the boys were made to feel that this was an activity which was normal in the situation – a matter about which they otherwise indicated some embarrassment.

227 Their involvement and activities escalated to a point where the videos, the subject of the objection, were in some cases primarily focussed on their genitalia and buttocks rather than any story or plot development or matters extraneous to them.

228 As an ancillary purpose the Crown also submits that the videos will rebut any suggestion that they have been prepared for some artistic purposes. Further, the Crown relies on both the videos and the matters set out in the notice as tendency evidence and to rebut the arguments in support of concoction.

229 The Crown submits that the evidence of the video is directly relevant to the context of the relationship between the two boys and the accused and that that relevance is established both in relation to the matters the subject of count 3 (the act of indecency in Sydney) as well as to the two counts relating to each boy in Vanuatu.

230 The defence asserts that the films are not contextual evidence but were simply test footage being part and parcel of the film which was being produced. If that was the case, and there was to be only one central character for whom the boys might be alternate actors, then it is difficult to see how the videos are the precursor to the ultimate film. The two boys are shown together in many of the video sections.

231 I do not accept the submission that the video would not be relevant to the count involving NRK in Sydney (count 3) as, in my view, it would be clearly relevant to the relationship between NRK and the accused even though the video post-dates that act by the 18 day period referred to earlier. The videos were the culmination and purpose of the whole alleged point of the relationship, the earlier acts involving the tanning process.

232 While the video does not show the accused showering with the boys let alone touching them, nevertheless what is portrayed does support the close relationship between the accused and the two boys, the fact that they were compliant with his directions at a relevantly contemporaneous time, and that they were prepared to be in his presence naked in what, a jury may find to be a clearly sexual context or as a preamble to such contact.

233 It is also submitted that it is a relevant consideration on the voir dire because both parents will give evidence that they never consented to any full frontal nudity in the photographing of the boys by the accused. Knowledge of that seems to be implicit in many of the statements made by the accused to the two boys during the course of the video.

234 Again, going through the same process prescribed by sections 97, 98 and 101 of the Evidence Act, in my view the evidence contained in the videos has substantive probative value and its substantial probative value outweighs the prejudicial effect that there may be.

Count 4: Pornography

235 This count relates to 29 video files found on a video in the accused’s studio. There is no issue that the accused shot the video or was present when it was shot. It was his voice which was heard on the video including giving directions to the two boys. There is no issue that the two complainants are the boys depicted as naked, either swimming or sitting on a beach.

236 I have been referred to the decision of the Supreme Court of South Australia Court of Criminal Appeal in Phillips v South Australian Police (1994) S4843 187-194 per Mohr Debelle and Niland JJA. There are some differences in the relevant legislation in that case compared to the present. Phillips involved a provision of the SA Summary Offences Act 1953 relating to the possession of child pornography and whether videotapes found within the appellant’s possession were child pornography. The videos in Phillips showed films of men and boys of all ages dressing and undressing in public changing sheds and urinating in public urinals. The South Australian Court of Criminal Appeal referred to the definition of pornography as “the explicit description or depiction of sexual activity intended to stimulate erotic rather than aesthetic feelings”. The Court referred to the fact that the ordinary meaning of child pornography has been extended and includes “indecent material in which a child, whether engaged in sexual activity or not, is depicted or described in a way which is likely to cause offence to reasonable adult members of the community”.

Consideration

237 The Court in that decision referred to the manner and extent to which the subject is portrayed in the particular films and whether there was a concentration on genitalia. In Phillips, it was suggested that the continuous and concentrated emphasis of material on genitalia and portrayal of naked or partly naked children which might give rise to the view that the material lent itself to catering for persons with prurient interest - whatever might have been the purpose of its production - thereby placing it in the category of indecent material.

238 Here, a significant proportion of the videos contain a focus and emphasis on the genitalia and buttocks of each of the complainants. As I have said in some cases those subjects filled the entire screen. In my view what I have seen to date satisfies me that the video could be regarded by a jury as indecent.

Artistic merit

239 Counsel for the accused submitted that the videos were not indecent but that if they were, that the videos were filmed for, and in the context of, an artistic purpose. That submission was made in the context that there was a plausible explanation for the videos warranting a restriction on its usage as sought by the Crown. It was submitted that the sequence of the boys in this case swimming under water naked, sitting around naked and performing aquatic routines was substantially similar to those portrayed in ‘Blue Lagoon’ – a commercial movie with a PG rating being suitable for community viewing.

240 The concept of what is artistic and what are contemporary community standards presents difficulties - and not just of definition. The test seems to be as established in Crowe v Graham (1968) 121 CLR 375 being what is offensive to the sexual modesty of the average man or woman or to contemporary standards of decency in the Australian community taking into account the circumstances and setting of what is portrayed.

241 As I have said, a substantial number of the videos in this case contain a strong emphasis on the genitalia and buttocks of both of the two boys and indeed, with very little else in the subject or even the background. The boys, particularly when they were on the beach in some of the video files, are told by a voice in the background sound to position themselves and remove their clothing in ways which also meant an inevitable focus on their genitals and buttocks. The accused’s voice is heard referring to the positioning and visibility of the boys’ penises and legs.

242 It is clear that some of the videos were taken in the presence of the other boy not the subject of the video. The boys were clearly aware of the fact that they were being filmed. Their ranges of emotions from embarrassment and shyness to over-reaction – for example, while they were each pulling at their respective penises - is evident on the videos themselves.

243 The video was found in the form it was about a month after it was filmed. None of the voice-over on the videos follows any particular script appropriate to a movie with a story or plot line.

244 Had the boys simply been swimming or running naked in a natural setting without the focus that there is in the videos, there would have been a much stronger argument that these were artistic acts. However, here the concentration on the genitalia and buttocks as the primary subject matter against the background of the movements portrayed, does seem to me to mean that the videos might be seen as not being produced for any kind of artistic endeavour and being such that a jury might regard it as being inherently indecent and pornographic.

245 On the basis of the present evidence, and without hearing any evidence the accused may lead on the videos, their purpose and production, I do not consider that there is an innocent or plausible explanation for the videos warranting its exclusion from the jury.

Conclusion and rulings

Separation of trials

246 Having taken into account the factors that I have set out above and having heard all the evidence on the voir dire, in my view the overwhelming interests of justice are that the trial should continue on all four counts on the indictment.

247 There is clearly a prejudice to the accused but that prejudice arises from the nature of the evidence and material itself and its direct probative connection with the events, the relationship between the accused and the two boys and the activities undertaken by the accused with them and each of them.

248 There is an overwhelming public interest in the conduct of one trial on all four counts involving what is essentially the same evidence to be led from the same complainants and other witnesses and concerning matters which are related in terms of time and date as well as location. All the factors outlined above with the exception of prejudice strongly favour the trial proceeding on the basis of the four counts in the indictment.

249 Having considered the matters as set out above and particularly given my view that the applicant has not discharged his onus of showing on the evidence that positive injustice or prejudice would result, I dismiss the applications for separate trials.

Concoction

250 I have seen the records of interview of each of the two boys and watched and heard them while they each gave evidence on the voir dire. In my view, their respective evidence at least on a prima facie basis is age-appropriate and has been appropriately obtained. It does not appear to be fanciful nor far-fetched nor vague.

251 While each boy and their parents have a clear antipathy to the accused – and the members of the family are close and all have come to Australia together (where they have been living together) to give evidence at this trial, I did not see nor hear any evidence suggestive of concoction or collusion or rehearsal. There is no evidence before me which satisfies me that there has been a discussion of the activity or any part of the evidence as between the two boys or their parents to any extent sufficient to establish that there had been concoction nor that there was a reasonable possibility of concoction.

252 Even if there was a possibility of the boys getting their heads together to concoct some or all of their evidence and the trials concerning each of them were conducted separately, the reality is that the videos would be played in the trial on the other count or counts and each would give evidence at the trial involving the allegations against the other.

Tendency evidence

253 I consider that the tendency evidence relied on from the W and C matters has the danger of prejudice which outweighs its significant probative value and I will not permit that to be led.

254 In my view the evidence led in relation to each of counts one, two and three has substantial probative value in relation to the matters to be established under the same counts which substantially outweighs the prejudicial effect of that evidence in the context of these trials. Evidence led in relation to each count can also be relied on as tendency evidence in relation to the other counts.

255 As indicated in the course of submissions, I have also considered the admission of each part of the evidence prior to its admission in terms of whether its probative value is outweighed by the danger of unfair prejudice pursuant to section 137 of the Evidence Act. In each case where evidence has been admitted, I am satisfied that the probative value is not outweighed by the danger of unfair prejudice to the accused.

256 The videos (VD 6 and 7) can also be relied on as tendency evidence in relation to counts one, two and three.

Objections

257 Counsel for the accused has flagged various objections to the records of interview with each of the complainants. Those will be or have been dealt with individually. In brief summary for the purposes of these reasons I indicate that I have:

CITATION:	R v Andrew Dean McIntosh [2007] NSWDC 36
HEARING DATE(S):	13/2/07-28/2/07
JUDGMENT DATE:	28 February 2007
JURISDICTION:	NSW
JUDGMENT OF:	Knox SC DCJ
DECISION:	Application for separate trials dismissed; Tendency evidence of W and C is not permitted to be led; Evidence led in relation to each count is permitted to be relied on as tendency evidence in relation to the other counts; The videos (VD 6 and 7) can also be relied on as tendency evidence in relation to counts one, two and three.
CATCHWORDS:	application for separate trials - objections to records of interviews - tendency/coincidence evidence - objections to videos
LEGISLATION CITED:	Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Criminal Procedure Amendment (Sexual & Other Offences) Act 2006 (NSW) Evidence (Children) Act 1997 (NSW) Judiciary Act 1903 (Cth) Children (Criminal Proceedings) Act 1987 (NSW) Evidence Act 1995 (NSW)
CASES CITED:	R v NZ [2005] NSWCCA 278 R v RN (2005) NSWCCA 413 R v Chami (2002) 128 A Crim R 428; [2002] NSWCCA 136 R v RH (2004) NSWCCA 427 R v Middis NSWSC unrep 27 March 1991 R v Baartman unrep. CCA NSW 6 October, 1994 R v Demirock (1976) VR 244 at 254 Dejesus v R (1986) 68 ALR 1 R v Bikic [2000] NSWCCA 106 R v Watkins [2005] NSWCCA 164 R v F [2002] NSWCCA 9 R v Fletcher [2005] NSWCCA 338 Gipp v The Queen (1998) 194 CLR 106 R v Milton [2004] NSWCCA 195 Tully v The Queen [2006] HCA 56 R v AH (1997) 42 NSWLR 702 Qualitieri v The Queen [2006] NSAWCCA 95 R v Leonard [2006] NSWCCA 267 R v Fletcher (2005) 156 A Crim R 308 R v Zhang (2005) 158 A Crim R 504 R v Phillips [2006] HCA 4 Phillips v South Australian Police (1994) S4843 Crowe v Graham (1968) 121 CLR 375
PARTIES:	R; Andrew Dean McIntosh
FILE NUMBER(S):	06/11/0904
COUNSEL:	Mr S. Flood Mr A. Radojev
SOLICITORS:	Mr. D. Mayr (Commonwealth DPP) Mr C. Lee