R v Cannon (No. 2)

[2020] NSWDC 356

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Cannon (No. 2) [2020] NSWDC 356

Hearing dates:

17 June 2020

Date of orders:

17 June 2020

Decision date:

17 June 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

The Accused be allowed to lead evidence of good character from the witnesses proposed, and the Crown be permitted to adduce the evidence of the connection between the Accused’s phone and the websites referred to in this judgement, as contained in the report

Catchwords:

EVIDENCE — Character evidence — Advance rulings

EVIDENCE — Character evidence — Good character

EVIDENCE — Character evidence — Witnesses

Legislation Cited:

Crimes Act 1900

EvidenceAct 1995

Cases Cited:

Clegg v R [2017] NSWCCA 125

Category:

Principal judgment

Parties:

Regina (Crown)
Matthew David Cannon (Accused)

Representation:

Donna Daleo (Crown Prosecutor)
Chris O’Donnell SC (senior counsel) (Accused)
Parisa Hart (junior counsel) (Accused)

Director of Public Prosecutions (NSW) (Crown)
Criminal Law Centre (Accused)

File Number(s):

2018/00376401

Publication restriction:

No publication of the name of the Complainant or of any information which may enable her identity to be ascertained

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Matthew David Cannon is before this court for trial on 16 charges set forth in an indictment upon which he was arraigned before me yesterday 16 June 2020. He pleaded not guilty to each of the offences.

2. There are a series of offences alleged contrary to s 61M(2) Crimes Act 1900; Count 1 through to and including count 6 are alleged contrary to that provision.

3. Count 7 is an allegation alleged contrary to s 66C(3) Crimes Act 1900. Count 8 is an alternative to count 7 alleging an offence contrary to s 61M(2) Crimes Act 1900.

4. Counts 9, 10, 11 and 12 are once again contrary to s 61M (2) Crimes Act 1900.

5. Count 13 is an offence contrary to s 66D Crimes Act 1900 in the alternative to which Count 14 is alleged in terms contrary to s 61M(2) Crimes Act 1900.

6. Counts 15 and 16 are contrary to s 61M(2) Crimes Act 1900.

7. The offences are alleged to have occurred between 1 January 2017 and 30 June 2017 for count 1 through to and including count 4, between 1 January 2017 and 31 December 2017 for count 5 through to and including count 9, between 1 January 2017 and 1 January 2018 for counts 10 and 11, between 1 January 2017 and 3 March 2018 for count 12 through to and including count 14, between 1 January 2018 and 1 July 2018 for count 15 and between 1 January 2018 and 23 July 2018 for count 16.

PROPOSED EVIDENCE OF CHARACTER

8. The Crown was put on notice that the accused intended to call evidence of good character. There are two aspects, the first of which is in terms that he has no prior convictions for any criminal offence. The Crown does not oppose evidence in those terms upon which the accused is entitled to rely. But the evidence to be offered extends beyond that. I have been provided in exhibit 1 on the voir dire with summaries of evidence anticipated from witnesses who would be called in the case on behalf of the accused should the accused put this evidence before the jury.

9. Mr Bruce Ronald Walton has provided a document bearing a heading “CHARACTER WITNESS STATEMENT” speaking of the relationship between the accused and his family and the nature of the contact between them with specific aspects, consistent with the accused being a person whom the proposed witness holds in high regard. The document includes the following on p 2 (sic):

“Upon our move to Pitt Town we lost contact with Matthew but recently we required some electrical additions to our home and trusting Matthew we called and made an appointment.

Several weeks later Matthew decided to visit and to do the work. Whilst Mat was working, I noticed he was quieter than I have ever seen him. On asking I was totally shocked to hear the story he was telling me, of all the years I have known Mat, Matthew would not put himself, family, and Business in such a serious position.

Knowing his own children, especially a Daughter, he would not have tolerated a situation as he explained, have this happen to his own Family or a friend or in fact any bodies Family.

I still cannot get my head around how a person of Good Character and a successful Business Person could carry out the stated allegations of wrongdoing he would never under any circumstances want to destroy his family or friends in this way or jeopardise his standing in the community as a respected Businessman of 16 years."

10. Richard Palmer has provided a document which is headed “Re: Character Reference for Mr Matthew Cannon”. As with the other this is a document provided with knowledge of the charges the accused faces. It provides particulars of the knowledge he has of the accused in the circumstances described over time beginning in September 2016. There is reference to occasions from which the proposed witness has drawn the opinion offered. This document includes the following:

"I have seen Matthew be as welcoming with other families as he was with us.

Matthew is very caring with his own and other children. For example, when my son fell off his bike, Matthew was the first adult to run over and make sure he was not injured and then helped him get back up on his bike.

I have been on three camping trips, of at least a week each, and have attended a couple of social events with Matthew since our first meeting. I have always felt extremely comfortable with him around my children and have never had any reason to doubt his motives or intentions.

I am in total disbelief that Matthew has been charged with these offences as they are so out of character with what I have seen and experienced myself personally with Mathew."

11. Rebecca Jane Wynne provided a document, without any title or heading to it, in which she writes of her experience in the law, her contact with the accused, and that she has known him since their school years. There is reference to aspect of his life of which she is aware. The document includes that she has known the accused professionally and socially, recommending on multiple occasions his capacity as an electrician; she refers to work performed on her home. She includes the following:

"I have never hesitated and will never hesitate to recommend Matthew to anyone who needs an electrician. This would not be different even if that person had children.

When I was informed of the charges against Matthew, I was absolutely shocked. I did not believe it then and I do not believe it to be true now. It is so out of character that a person I know I could never believe it to be true. Matthew has been a family friend for over 30 years. He is the godfather of my youngest niece. His daughter and my eldest niece have had many a sleepover. I know my sister in law and she would never allow the sleepovers if she had any feelings that Matthew would act inappropriately. If I ever felt that there was anything inappropriate I would have said something to my sister in law. Matthew is a family man. He is sensible, hard-working, and a caring person. These allegations are so out of character I cannot believe them to be true.

I would not feel uncomfortable having Matthew at my house now with my daughters even knowing these charges."

THE CROWN APPLICATION

12. The Crown seeks an advance ruling pursuant to s 192A Evidence Act 1995 as to whether the Crown would be granted leave to adduce evidence in accordance with to s 110(2) of the Act to rebut the aforementioned evidence of the accused’s good character.

13. There is no question that this is evidence of good character generally, including in respect of the conduct and attitude of the accused in the presence of and toward children of whatever age.

14. The offences alleged in the indictment are all in respect of one complainant. In count 1 through to and including count 6, she is alleged to have been 13 or 14 years of age at the time of the misconduct that is charged. In respect of count 7 through to and including count 14 the allegation is that the complainant was aged 13 or 14 years at the time of the conduct charged and in counts 15 and 16 it is alleged that she was 14 years of age at the material time.

15. The evidence the Crown wishes to adduce would only become relevant if the accused chooses to adduce the evidence of character summarised from the testimonials to which I have referred and from which I have quoted. If the accused does not adduce that evidence the Crown does not intend to adduce the evidence in respect of which it seeks the advanced ruling.

16. The evidence the Crown would rely upon is at this stage of the proceedings as set forth in an extraction of product from the accused’s phone, prepared using the Cellebrite application or program carried out by police officers deployed in the Digital Forensic Unit.

17. When the accused was arrested on 6 December 2018, he was given the opportunity to participate in an electronically recorded interview and he did so. According to the Amended Crown Case Statement, which is sufficient for present purposes, at paragraph 90, the accused told the police of the closeness of the relationship between his family and the complainant and her family. He denied the allegations. He acknowledged certain contact and conduct to which the complainant spoke in her allegations against him. For example, he acknowledged occasions when he took her for a ride on his motorcycle including when he had taken her to the home of his parents-in-law on two occasions. He admitted having text exchanges with the complainant. He was aware that the complainant had told her mother that she, the complainant, thought the accused had feelings for her. He acknowledged that the complainant’s mother had told him that she did not want him to attend their home unless she was present.

18. Although I do not have before me statements from the police conducting the investigation, it is entirely consistent with the Crown case statement that the accused’s iPhone 6 was seized upon his arrest and was submitted for analysis. Called in respect of that task was a senior constable from the Digital Forensic Unit. He acknowledged that he prepared two statements, the first on 8 August 2019 and the second on 11 November 2019. Neither was put before me on this voir dire.

19. He identified the phone concerned as a silver Apple iPhone, with the service number ending in ... 34572. He said that he extracted data from the phone and provided that to the case officer in the form of the extraction report. The extraction report is in two sequences; the first page deals with searched items, six in all, and the second sequence of pages is in respect of the web history with 26 entries. I was concerned regarding a measure of imprecision used in the way the evidence was adduced and the transcript will reveal that to clarify some of these points I asked questions in response to which clarifying evidence was given which I accept.

20. The iPhone was not accessed directly but was connected to a computer to which the electronic records captured on the phone were transferred without interfering with them as presented on the iPhone. Upon the material transfer to the computer, the Cellebrite application was employed. The senior constable said that it would not be forensically safe to perform the task directly upon the phone, and that it was not forensically safe to make an examination of the phone after the process was employed. The risks included the compromise of the time and date records for items of interest found on the device.

21. The process followed required two persons. The precise details of what occurred were not disclosed to protect the confidentiality of the methodology used. He told me that it was not necessary to have the passcode for the phone to perform this download, as I shall describe it, of the material on the phone onto the computer upon which the Cellebrite application was employed. I do not have any evidence before me of the detail of the particular items that were recovered, and it is also the case that the entries in the first page in some instances are the subject of extraction recorded in the second sequence of pages.

22. The searched items on the first page are in columns. The first heading is “Timestamp” beneath which for each row there is a date and time record. The first has a time stamp 26/11/2018 0.6 ”:21:40 "UTC+11". The letters UTC stand for Coordinated Universal Time. This is a standard point in time at a given point on the planet plus 11 hours thus reflecting the time stamp that appears on the document, it being the time at the location where the phone was in use at that moment. I can observe as a consequence of my own research in relation to the use of this term UTC that the letters do not correspond precisely with the English representation as a consequence of some minor issue between French and English speaking nations as to the sequence in which the letters should appear. Ultimately that is really neither here nor there.

23. The second column has the heading “Source”. The rows beneath this heading specify the source to be “knowledgeC” or “Safari” followed by the source file showing the pathway. This also appears in a column in the second sequence of documents in the various rows there. As it was explained to me “knowledgeC” is repository within the phone, with information as to the pathway to the particular website that was allegedly accessed at the time specified in the time stamp column. “Safari” is a search engine well known to Apple users.

24. The next column is headed “Value” and on each row is a representation of what was the site searched. This would be the automatically recorded on the phone.

25. The value given in the first item on the first page is “teen schoolmporn”. This entry on page 1 at item 1 is repeated at item 3 in the web history. On those pages the URL or website is provided in greater detail. There are the WWW particulars and then words “teen+schoolmporn&ie” amongst other particulars.

26. The second entry on the first page is on the same date at 06:21:00. It is, again, described as “teen:schoolmporn” in the value column; this compares with item 5 in the second sequence of documents recording web history.

27. On the first page there is a column with the heading “Origin” beneath which the word unknown appears in each row.

28. Finally there is a column headed “Deleted”. In the first items 1, 2, 3 and 4, the row is empty in each case, but not so in columns 5 and 6 where the word “Yes” appears.

29. Then there is a final column with some sort of symbol of a significance which I do not quite understand.

30. The first item in the web history pages has the title “Abuse Me - Bruno Dickemz Power Fucks His Precious Teenage Girlfriend Bambi Brooks - Free Porn Videos – YouPorn”. There are particulars of the URL or website, last visited on 26 November 2018 at 06:23:05. The ”Visits” column is empty and that is so in respect of each item on this sequence up to and including item 12. There appears, once again, in the source column, “knowledgeC”. This is the repository showing the pathway taken in the device to the URL site. It does not include content, or any part of the content that might have been extracted from the URL site. The size of the content of the source specified at 53100544 bytes, which translates into 53.1 megabytes, replicated in this column in most cases, is consistent with the description given by the police officer, of the content of the source identified as “knowledgeC”.

31. The second item in this column has the title “Pretty Teen Girl Haveing Hot Sex: PornWorms-PORN.COM”. The URL site is provided. This was accessed last according to the table on 26 November 2018 at 06:21:55. I have already referred to item 3. Item 4, the title given is “18 Schoolporn Videos; Free Porn Videos”, the URL site is identified and the “Last Visited” column specifies 26/11/2018 at 06:21:30.

32. I have already dealt with entry number 5.

33. Entry number 6, the title, “Hight Schoolporn Porn Videos|Pornhub.com”, the URL site is specified, last visited 26/11/2018, 06:20:45.

34. Number 7, “teen school in porn - Google Search”, the third column once again specifies the URL site. I will not continue to repeat that in respect of each entry on that column. The last visited time is 26/11/2018, 06:20:30.

35. At entry 8, “Teen Porn Videos|YouPorn.com”, last visited 26/11/2018, 06:19:10. Row 9, the title “Abuse Me – Bruno Dickemz Power Fucks His Precious Teenager Girlfriend Bambi Brooks - Free Porn Videos – YouPorn”, last accessed, according to this, on 26/11/2018 at 06:18:40. The same title is in item 1 in the web history. Number 10, “Teen Porn Videos|YouPorn.com”, last accessed 26/11/2018 at 06:18:25. Number 11, again, this site beginning “Abuse Me – Bruno Dickemz et cetera”, last accessed 26/11/2018, 06:17:35. Number 12, “Teen Porn Videos” appears as before, last accessed, 26/11/2018 at 06:16:05.

36. The next entry that is of relevance within this context is number 22. There is no information contained in the first column. In the URL column, there is the URL site, /video/hot-handsome-gay-greatly romantic-each-other-. There is no information as to when it was last accessed.

37. In some of these entries, I should note that there is the column with the heading “Visits”. On this occasion the number 1 appears. In other rows there is no record of the number of visits.

38. The next entry at row 23, has only given the URL site, which is identical to the proceeding entry. Row 24, the site visited is “YouPorn.com”. It includes the title “Teen plus school. Row 25, the URL sites includes the following, -“school-anal-sexy-teen-takes-it-up-the-ass-hard”.

39. Row 26, the URL site includes the words “YouPorn.com”. This completes the list of entries relevant to this question.

CONSIDERATION

40. It is said on behalf of the accused that the Crown should not be allowed to produce the evidence. It is said that questions of provenance arise in respect of information obtained on the report, which in any event, so it is said, is only partial in the information it provides. There is no evidence, as was acknowledged by the police officer, of whether the site was in fact accessed, by whom, whether information or presentations were viewed, or whether information or presentations were downloaded. To that I would add there is no direct evidence of the identity of the person who might have manipulated the phone to access those sites. I am reminded that the accused has not been shown to be the only person with access to the phone, and there is, at least, the possibility that another, perhaps within his own family, had access to the phone to visit these locations. I am told, also, that I should bring to account s 137, and, s 135 Evidence Act 1995.

41. S 135 provides the general discretion to exclude evidence. It provides:

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might—

1. be unfairly prejudicial to a party, or

2. be misleading or confusing, or

3. cause or result in undue waste of time.”

42. Section 137 provides in mandatory terms that the Court must exclude the evidence or refuse to admit it if the relevant circumstances pertain. It provides:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

43. The Crown in my view correctly submits that the probative value of the evidence must be assessed with regard to the purpose for which it has been adduced.

44. Section 110 Evidence Act provides:

1. "The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.

2. If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.

1. If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect."

45. I have noted the use of the phrase “directly or by implication”. The Crown has reminded me of authority upon this point from the Court of Criminal Appeal, Clegg v R [2017] NSWCCA 125. The Crown provided me with a copy of the judgement and took me to para [89]:

"... In circumstances where the appellant was proposing to lead evidence of his good character in a particular respect, namely his exemplary dealings with young boys over many years, the evidence of DJ was likely to be highly probative. Not allowing DJ’s rebuttal character evidence may have given the jury a false picture of the appellant’s character in a crucial respect: see generally the remarks of McHugh J on this topic in TKWJ at [90]. The prejudicial effect of that evidence identified by the trial judge for the purposes of the tendency ruling, that it related to significantly more violent conduct than that addressed by the other complainants, did not necessarily mean, when good character was the issue, that the prejudicial effect of that evidence outweighed the probative value.”

46. At paragraph [95], the Court stated:

"... In each case the circumstances of the admissibility of the evidence needs to be addressed for a separate purpose under the provisions of the Evidence Act, relevant for that particular purpose.”

47. I agree with the application of those statements to this case and I agree that it would not be appropriate to deny the Crown the opportunity to adduce the evidence of the information set forth in this report.

48. It was not said to me that access to a site which contained child abuse material ought to be excluded in the circumstances that are before me. The attack upon this evidence is as to the form of the evidence, that the evidence does not show directly that the accused accessed these sites and it does not show directly that these sites contained child abuse material. I was reminded that there is no charge before the Court of the accused having accessed child abuse material using a telephone service, which in itself it an offence, and he has not been charged with being in possession of child abuse material.

49. However, the question to ask is what does the evidence show? The direct evidence is that this is on the phone used by the accused. The direct evidence is that the names of URL sites discovered on the phone have titles which carry at the very least the implication of sexual activity with young females and are consistent with sites which have as their content child abuse material as it has come to be defined in the various legislative provisions both federal and state now covering such material.

50. The phone was used by the accused; so much as acknowledged by the accused in the interview in which he participated, including communication by text message.

51. All of these facts allow for the inference that the phone in his control was used to access these sites. It is, in my judgement, evidence that is capable of proving, at least by implication, that the accused is not a person of good character as set forth in the summaries of evidence anticipated from the proposed witnesses were they to be called.

52. Upon the application of s 135 Evidence Act I am satisfied that for the purposes for which the evidence would be adduced by the Crown it has probative value, which is not substantially outweighed by unfair prejudice, or misleading or confusing or would result in an undue waste of time. I do not believe it is unfairly prejudicial to the accused to allow the Crown to use this evidence. The accused, of course, is not compellable in these proceedings either to give evidence or to call evidence and so I put to one side the opportunity he might have, if he wished to take it, to adduce evidence to challenge the suggested connection between these websites found on his phone and him.

53. The jury, of course, will need to be told in compelling terms that this evidence is used for the sole and specific purpose of refuting the assertion of good character if such evidence is to be offered on behalf of the accused. There will be arguments available to the accused to the jury consistent with what was said to me in the course of this voir dire. Ultimately it will be a matter for the jury to decide this question of fact. Care must be taken to ensure that the jury are not left with the perception of general tendency which is otherwise not admissible in the trial and it is not a matter upon which the Crown wishes to advance.

54. Upon the application of s 137 Evidence Act I am satisfied that the probative value is significant and is not outweighed by the danger of unfair prejudice to the accused.

DETERMINATION

55. Accordingly, my ruling is that should the accused lead evidence of good character from the witnesses proposed, and as articulated in the documents from which I have drawn summaries and quotations, the Crown shall be permitted to adduce the evidence of the connection between the accused's phone and the websites to which I have referred in this judgement, as contained in the report.

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Amendments

14 July 2020 - Update restriction reasons

23 July 2020 - Remove publication restriction reason

Decision last updated: 23 July 2020