R v Bdi
[2019] ACTSC 85
•2 April 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v BDI |
Citation: | [2019] ACTSC 85 |
Hearing Date: | 29 March 2019 |
DecisionDate: | 2 April 2019 |
Before: | Elkaim J |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – production and possession of child exploitation material – capturing visual data |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 4752 Crimes Act 1900 (ACT) ss 61B, 64(1), 64(3), 65 Evidence Act 2011 (ACT) s 97 |
Cases Cited: | Hughes v The Queen [2017] HCA 20; 344 ALR 187 McPhillamy v The Queen [2018] HCA 52 |
Parties: | The Queen (Applicant) BDI (Respondent) |
Representation: | Counsel Ms P Burgoyne-Scutts (Applicant) Mr K Ginges (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Applicant) Kamy Saeedi law (Respondent) | |
File Numbers: | SCC 233 of 2018; SCC 234 of 2018 |
ELKAIM J:
This judgment relates to a pre-trial application by the Crown made under r 4752 of the Court Procedures Rules 2006 (ACT). The application was filed on 22 January 2019.
The application is for the Crown to be permitted to adduce tendency evidence pursuant to s 97 of the Evidence Act 2011 (ACT) (Evidence Act). The application is supported by an affidavit of Ms Burgoyne-Scutts affirmed on 25 February 2018.
The respondent is charged with the following offences:
Count 1: Using a child under 12 years old for the production of child exploitation material, contrary to s 64(1) of the Crimes Act 1900 (ACT) (Crimes Act);
Count 2: Using a child 12 years old or older for the production of child exploitation material, contrary to s 64(3) of the Crimes Act;
Count 3: Using a child 12 years old or older for the production of child exploitation material, contrary to s 64(1) of the Crimes Act;
Count 4: intentionally possessing child exploitation material, contrary to s 65 of the Crimes Act.
There are also three charges transferred from the Magistrates Court all of which relate to the offence of capturing visual data of another person, contrary to s 61B of the Crimes Act. Two of those charges (CC 3369 of 2018 and CC 3370 of 2018) are ‘backup charges’ to the indictment however the third charge (CC 3368 of 2018) remains a stand-alone offence.
As often occurs, transfer charges can involve unnecessary complication. In this case that complication will involve evidence relating to the asserted tendencies, but restricted to proof of the transfer charges, being heard by the jury in circumstances where the evidence might otherwise have been inadmissible. On one level the introduction of the transfer charges, through the tendency application, is a means of introducing evidence which would not normally be heard by the jury. This, of its own, suggests prejudice to the accused.
A trial date is yet to be set.
The tendencies that the Crown seeks to rely upon are as follows. A tendency to:
(a) engage in the behaviour of producing and/or possessing child exploitation material;
(b) engage in the behaviour of covertly filming intimate areas of the female body;
(c) have a sexual attraction to female children; and
(d) have an interest in covertly recording intimate areas of the female body.
The Crown submits that the evidence sought to be led has significant probative value which substantially outweighs any prejudicial effect on the accused.
There are two ‘independent’ matters that the parties said were relevant to the application. Firstly it is part of the accused’s defence to Count 1 that the recording of the two girls was “accidental”. I am not sure if this refers to the whole of the filming being accidental or whether it was accidental that the breast and buttocks of the respective females happened to be included in the recording. One of the purposes behind the tendency application is to defeat the suggestion that the filming was accidental. If there is similar filming on other occasions then it will negate the suggestion that the filming relevant to Count 1 was accidental.
The second relevant matter is that following the events on 10 February 2018 the police seized the accused’s telephone and, after obtaining the password from him, the police discovered a number of photographs and videos in the ‘Deleted Items’ folder of the accused’s phone. The Crown submits that the deletion of the material is indicative of the accused’s consciousness of guilt. His response is that this could not be the case because the material had been deleted before he became aware of any police interest in him.
Tendency application
Section 97 of the Evidence Act is as follows:
The tendency rule
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to present the evidence gave reasonable notice in writing to each other party of the party’s intention to present the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence presented or to be presented by the party seeking to present the evidence, have significant probative value.
(2)Subsection (1) (a) does not apply if—
(a)the evidence is presented in accordance with a direction made by the court under section 100 (Court may dispense with notice requirements); or
(b)the evidence is presented to explain or contradict tendency evidence presented by another party.
Section 101(2) states:
Tendency evidence about a defendant, or coincidence evidence about a defendant, that is presented by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
A general statement about tendency evidence was recently made in the High Court in McPhillamy v The Queen [2018] HCA 52 (McPhillamy), at [16]:
The scheme of the Evidence Act with respect to the admission of tendency evidence about a defendant adduced by the prosecution in a criminal proceeding is explained in Hughes v The Queen. Section 97(1) conditions the admission of evidence to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, on the court's assessment that the evidence will, by itself or taken with other evidence adduced by the party seeking to adduce it, have "significant probative value". Section 101(2) provides that, in a criminal proceeding, tendency evidence about a defendant that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the defendant.
The facts in this matter involve the alleged taking of indecent and inappropriate photographs of various persons, but especially young females. The evidence to be put forward as establishing the tendencies is contained within seven alleged incidents. They are as follows:
(i)On 18 January 2018, the accused, using his mobile telephone, filmed a young girl putting on her shirt. Part of the girl’s breast is exposed. A little later the camera turns to film the buttocks of another female child. Neither female new she was being filmed.
(ii)On 9 February 2018, the accused went to the Big Splash Waterpark to attend a swimming carnival in which his daughters were involved. During the carnival the accused used his mobile telephone to film female children in their swimming costumes. In particular he focuses on a child seated on the ground. He records her legs and general genital area.
(iii)On 10 February 2018, in the early hours of the morning, the accused was strolling in the city area of Canberra. He used his mobile phone to record a couple kissing. He focused on another couple in which the female was wearing “short shorts”.
(iv)During the same visit to the city, similar to incident (iii), the accused records vision of an adult female wearing shorts and whose buttocks are exposed.
(v)Still in the city, the accused records vision of a couple seated on the ground. He focuses on a female and points the camera at her legs and towards her genitals. He comes very close to the female.
(vi)Still on 10 February 2018, the accused records vision of a number of females, close-up and concentrating on their groins. His conduct could be referred to as “up skirting”.
(vii)On 27 February 2018, the police executed a search warrant at the accused’s address. A USB was located which was found to include child exploitation material as well as adult pornography. The latter included adult females dressed as children.
Incident (i) relates to Counts 1 and 2 in the indictment. Incident (ii) relates to Count 3. Incidents (iii), (iv), (v) and (vi) relate to transfer charge CC 3368 of 2018 and Incident (vii) relates to Count 4.
The opposition to the application is made at a number of levels. I think two of the points made are particularly significant:
(a)It is an essential ingredient of the charges under s 64 of the Crimes Act that the activity complained of was “substantially for the sexual arousal or sexual gratification of someone other than the child” (s 64(5)).
(b)The asserted tendencies might be relevant to establishing that the accused had a sexual interest in young girls but they do not have any effect on establishing that he would act on that interest.
Starting with the first point the accused submitted that the filming and possession of the indecent material was only evidence of the possession of that material. It did not assist with establishing the sexual gratification element. The asserted tendencies took the matter no further especially when there was no dispute about the possession, or even the manner of coming into possession (by recording on a mobile phone), of the material. In other words the asserted tendencies could do no more than establish what is not in dispute.
In relation to the second point I was taken to this passage from McPhillamy, beginning at [26]:
As explained in Hughes, assessment of the probative value of tendency evidence requires the court to determine the extent to which the evidence is capable of proving the tendency. Assuming the evidence has the capacity to do so, the court must then assess the extent to which proof of the tendency increases the likelihood of the commission of the offence. The tendency may be to have a particular state of mind or to act in a particular way. A mature man's sexual interest in young teenage boys is a tendency to have a particular state of mind. The evidence of "B" and "C" was capable of establishing that the appellant had such an interest. In this Court, it was not disputed that it is an interest of a kind that is likely to be enduring.
Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value. The tendency on which the prosecution relied was to act on the appellant's sexual interest in male children in their early teenage years who were under his supervision. The evidence demonstrating that tendency was confined to "B"'s and "C"'s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against "A".
It is worth quoting at this stage from the decision of the High Court in Hughes v The Queen [2017] HCA 20; 344 ALR 187, at [41]:
In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
I think both of the above points have merit and are determinative of this application. In addition I am of the view that this application is overly complicated with an assortment of tendencies relating to different charges. This may be a failing on my part but I have found the application difficult to follow. This may also be indicative of an unnecessary application arising simply because sexual charges against children have been brought against the accused
The evidence in this case, in my view, is already strong and does not need the asserted tendencies to help it.
As far as the first two tendencies are concerned they relate to plain factual matters which will be proved, assuming the evidence is as expected, by the production of the material. The jury will decide if the material is child exploitation material. There will not be an issue as to the production of the material or its possession. As to whether it was filmed covertly this will be evident from the material itself. If the accused suggests it was filmed accidentally, this will be a factual issue for the jury to decide.
As stated in McPhillamy the important point is not whether the accused has a sexual attraction to female children, but rather whether he is prepared to act on that attraction. The asserted tendencies in this case do not assist on that vital question.
Orders
Accordingly, I make the following order: The application to adduce tendency evidence, pursuant to s 97 of the Evidence Act 2011 (ACT), as described in the Notice to Adduce Tendency Evidence dated 19 January 2019 is dismissed.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 2 April 2019 |
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