R v Deacon
[2021] ACTSC 292
•11 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Deacon |
| Citation: | [2021] ACTSC 292 |
| Hearing Dates: | 3, 11 November 2021 |
| Decision Date: | 3, 11 November 2021 |
| Reasons Date: | 15 November 2021 |
| Before: | Loukas-Karlsson J |
| Decision: | Orders on 3 November 2021: see [96] Orders on 11 November 2021: see [97] |
Catchwords: | CRIMINAL LAW – EVIDENCE – pre-trial application – application to adduce tendency evidence – child exploitation material – importation of tier 2 good – whether probative value of the |
| tendency evidence outweighs danger of unfair prejudice | |
| Legislation Cited: | Court Procedure Rules 2006 (ACT) r 6752 Customs Act 1901 (Cth) s 233BAB(5) Evidence Act 2011 (ACT) ss 55, 56, 97, 97A, 99, 101, 108B, |
| 135, 137 | |
| Evidence Regulation 2012 (ACT) | |
| Royal Commission Criminal Justice Legislation Amendment Act | |
| 2020 (ACT) | |
| Cases Cited: | Hothnyang v The Queen [2014] VSCA 64 HML v The Queen [2008] HCA 16; 235 CLR 334 Hughes v The Queen [2017] HCA 20; 263 CLR 338 IMM v The Queen [2016] HCA 14; 257 CLR 300 McDonald v The Queen [2014] VSCA 80; 43 VR 152 McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 |
| O’Leary v The King [1946] HCA 44; 73 CLR 566 | |
| Parkinson v Alexander [2017] ACTSC 201 R v Adam [1999] NSWCCA 189; 106 A Crim R 510 R v Amato [2021] ACTSC 155 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v QX (No 5) [2021] ACTSC 247 Tully v The Queen [2016] ACTCA 4 Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370 | |
| Texts Cited: | Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW) Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) |
| Parties: | The Queen (Applicant) Jeffrey Scott Deacon (Respondent) |
| Representation: | Counsel |
| K Archer (Applicant) S McLaughlin (Respondent) | |
| Solicitors | |
| Commonwealth Director of Public Prosecutions (Applicant) | |
| Legal Aid ACT (Respondent) | |
| File Number: | SCC 85 of 2021 |
| LOUKAS-KARLSSON J: | |
| Introduction |
1. The accused, Jeffrey Deacon, is charged with one count of intentionally importing tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth), namely, a doll resembling a person under 18 years of age intended to be used by a person to simulate sexual intercourse. The accused pleaded not guilty. The matter is listed for trial by jury to commence on 15 November 2021.
2. By way of Application in Proceeding dated 29 September 2021, the prosecution in this matter seeks a pre-trial ruling to adduce tendency evidence in the trial of the accused, pursuant to ss 97 and 101 of the Evidence Act 2011 (ACT) (the Evidence Act).
3. The matter came before me for hearing on 3 November 2021. On that date, I refused
the prosecution’s application to adduce Category 2 and Category 3 evidence as
tendency evidence at the trial of the accused. Further evidence was to be presented by the prosecution in relation to Category 1 evidence and the matter was adjourned to 11 November 2021.
4. On 11 November 2021, the prosecution tendered a number of extraction reports from
the accused’s mobile phone, as well as images of websites said to have been visited
by the accused. The prosecution would seek to tender those documents at the trial of
the accused as Category 1 tendency evidence.5. On that date, I granted the application of the prosecution to adduce Category 1 evidence as tendency evidence at the trial of the accused in the form of extraction
reports from the accused’s mobile phone. I refused the application in respect of images
that were taken of the websites said to have been visited by the accused.
6. On 3 November 2021, regarding Category 2 and 3, and 11 November 2021, regarding Category 1, I indicated that my reasons were to follow. The reasons now follow.
Tendency Application
7. Pursuant to the Notice of Intention to Adduce Tendency Evidence dated 29 September 2021, the prosecution intends to adduce evidence:
•
That the accused has or had a tendency to pursue his sexual interest in sex dolls of a particular description (involving pre-pubescent children) by making internet searches to view dolls meeting this description (Tendency 1).
•
That the accused has or had a tendency to give expression to his sexual interest in pre-pubescent children by seeking out depictions of pre-pubescent girls in photographic form and in physical (doll) form (Tendency 2).
8. The specific material that the prosecution intends to adduce proving the alleged tendencies includes:
• Data extracted from the accused’s web browsing history evidencing online browsing prior to the purchase of the doll, including visits to websites and
product galleries featuring adult, teen, and child-like sex dolls;• Evidence of product description, specifications, photographs, and video on the product order page visited by the accused; • Data extracted from the accused’s web browsing history evidencing online browsing after the purchase, including visits to websites and product galleries
featuring adult, teen and child-like sex dolls; and• Photographs of pre-pubescent female children in swimwear, underwear, and topless saved to the accused’s mobile phone.
9. On 3 November 2021, and in their written submissions, the prosecution referred to three categories of evidence. The division was to allow for the separate consideration of admissibility issues that arise in respect of the various categories of evidence. The categories outlined are as follows:
Category 1: Internet searches close in time before, and on the day of, the order for
the doll was placed, that involve searches for child or teen dolls.Category 2: Internet searches that occurred after the date or purchase involving searches for child or teen dolls.
Category 3: Internet searches before and after the purchase of the doll directed at
obtaining access to images of pre-pubescent children.10. The prosecution asserted that the three categories of evidence are admissible on a non-tendency basis. In any event, the tendency application was brought to ensure the matter was litigated prior to the commencement of the trial on 15 November 2021.
Legislation
11. Section 97 of the Evidence Act provides:
(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.
Note
The tendency rule is subject to specific exceptions about the character of and expert opinion about accused people (s 110 and s 111). Other provisions of this Act, or of other laws, may operate as further exceptions.
12. Further, s 101 of the Evidence Act provides as follows:
(1) This section applies only in a criminal proceeding and applies in addition to section 97
(The tendency rule) and section 98 (The coincidence rule).(2) 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 outweighs the danger of unfair
prejudice to the defendant. (3) This section does not apply to tendency evidence that the prosecution presents to
explain or contradict tendency evidence presented by the defendant.(4) This section does not apply to coincidence evidence that the prosecution presents to
explain or contradict coincidence evidence presented by the defendant.(emphasis added)
13. I note that s 101 was amended to take effect from September 2020. The crux of the s
101 amendments were first to remove the word “substantially”, and second to replace the phrase “prejudicial effect” with the phrase “unfair prejudice”: see R v Bauer (a
pseudonym) [2018] HCA 40; 266 CLR 56 (Bauer) at [73] and R v QX (No 5) [2021]
ACTSC 247 (R v QX (No 5)) at [31].
Tendency Evidence
Category 2
14. On 3 November 2021, I refused the application of the prosecution to adduce Category 2 evidence as tendency evidence in the trial. Category 2 evidence involved internet searches that occurred after the date of purchase regarding searches for child or teen dolls.
15. On that date, I indicated that reasons were to follow. These are those reasons.
Submissions of the Prosecution
16. Although the prosecution did not accept the argument, counsel for the prosecution submitted that it may be suggested that some of the searches that come after the transaction in question, involve searches for dolls that meet a particular description. Therefore, it may be said that an element of tendency reasoning is involved in a process of reasoning that suggests a conformity between the terms of those searches, and the intent they imply, and an intent or state of mind that accompanied the internet searches on 4 September 2020 that led to the relevant doll being identified and purchased.
17. If an element of tendency reasoning was found, counsel for the prosecution submitted that the evidence is admissible. The close conformity of each internet search, involving
the use of words such as “teen”, “young”, “girl” or other like terms, and the limited date
range between each occurrence suggests, it was submitted, these subsequent searches are significantly probative of the fact in issue, being the state of mind of the accused at the time that he purchased the doll.
18. As a matter of principle, it was submitted that it is possible for tendency reasoning to be used in respect of conduct that occurs after the alleged offence: see Parkinson v Alexander [2017] ACTSC 201.
19. Counsel relied on the submissions in relation to s 101 that there was not unfair prejudice.
Category 3
20. On 3 November 2021, I refused the application of the prosecution to adduce Category 3 evidence as tendency evidence in the trial. Category 3 involves internet searches conducted before and after the purchase of the doll directed at obtaining access to images of pre-pubescent children. The tendency alleged is that the accused acted on his sexual interest in pre-pubescent children by seeking out depictions of pre- pubescent girls in photographic form and in physical (doll) form.
21. On that date, I indicated that reasons were to follow. These are those reasons.
Submissions of the Prosecution
22. Counsel for the prosecution submitted that the evidence in relation to the pattern of searches detailed in respect of Categories 1 and 2 would be cross-admissible on this issue. Further, it was submitted, there is a significant overlap between this category and Categories 1 and 2. Under this category, however, the prosecution sought to make admissible internet searches that were conducted for images of pre-pubescent girls, not involving dolls.
23. It was submitted that the alleged tendency has significant probative value in proving
the accused’s state of mind in respect of the doll purchased on 4 September 2020 and
thereafter imported into Australia. That is, that the accused intended, was reckless, that the doll would resemble a person who is or appears to be under the age of 18 years of age.
24. Again, it was submitted, that there is nothing to suggest that the terms of s 101 would otherwise operate to exclude this category of evidence.
Consideration
25. In the matter of R v Amato [2021] ACTSC 155 (Amato), Murrell CJ, at [111], outlined the approach to determine an application to lead tendency evidence:
In summary, when deciding whether evidence is admissible to establish an asserted tendency, a court must consider the following questions:
1. Has the tendering party identified a s 97 tendency (a tendency to think or act
in a “particular” way)?
2. Are the incidents relied upon (individually or in combination) capable of
establishing the asserted “particular” tendency (having regard to
distinctiveness and degree of repetition)?
3. What is the relevant “fact in issue” in the proceedings?
4. If the factfinder accepted that the incidents occurred and showed the
asserted “particular” tendency, do the incidents have significant probative
value; could they be important or of consequence in proving or disproving
the existence of the fact in issue?5. What unfair prejudice (risk of misuse) attaches to the tendency evidence?
6. Does the probative value of the tendency evidence outweigh any prejudicial effect, considering the availability of directions that may mitigate the prejudice?
Probative Value
26. Significant probative value is outlined in the well-known passage from IMM v The Queen [2016] HCA 14; 257 CLR 300 (IMM v The Queen) at [46]:
The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So
understood, the evidence must be influential in the context of fact-finding.
(emphasis added)
27. In Hughes v The Queen [2017] HCA 20; 263 CLR 338 (Hughes) at [41], Kiefel CJ, Bell, Keane and Edelman JJ stated:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is
the extend to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged
offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers
in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus
operandi”. 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.
(emphasis added)
28. In 2018, Kiefel CJ, Bell, Keane and Nettle JJ, citing Hughes, stated in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045 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.
(emphasis added)
29. Their Honours continued at [27]:
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.
(emphasis added)
Prejudicial Effect
30. The High Court, in Bauer at [73] stated that:
Despite textual differences between the expressions “prejudicial effect” in s 101, “unfairly
prejudicial” in s 135 and “unfair prejudice” in s 137, each conveys essentially the same idea
of harm to the interests of the accused by reason of a risk that the jury will use the
evidence improperly in some unfair way.
(emphasis added; citation omitted)
31. In Tully v The Queen [2016] ACTCA 4 (Tully), Murrell CJ and North J stated at at [33]-
[35] : The probative value of evidence goes to proof of an issue, whereas the prejudicial effect of evidence goes to the fairness of the trial: Pfennig v The Queen (1995) 182 CLR 461 (Pfennig) per McHugh J at 528. Evidence is prejudicial if there is a risk that the jury may misuse it, i.e. use it other than by way of considering its rational impact on the probability of a fact in issue. For example, evidence is prejudicial if it is inflammatory or it encourages unconscious prejudice: R v Zhang (2005) 227 ALR 311.
Tendency evidence is inherently prejudicial. In Pfennig, Mason CJ, Deane and Dawson JJ accepted that it is natural for a jury to think that, if an accused tends to act in a particular criminal way, then he probably acted in that way on the occasion/s charged. In Stephen Odgers’ Uniform Evidence Law (11th edition), at page 535, the primary dangers
associated with tendency evidence are expressed to be the dangers that the jury may convict as punishment for conduct other than that charged; may overestimate the probative value of the evidence; may too readily accept other prosecution evidence adduced to prove guilty; and may be distracted from the central issues in the trial.
In many cases involving prejudicial evidence, the prejudice can be addressed by limiting the extent of the evidence or by appropriate directions: HML v The Queen (2008) 235 CLR 334 at [28]. Where tendency evidence had been admitted, it is usual for the trial judge to caution the jury about the improper use of tendency evidence. Of course, there will be
other cases where the nature, significance or volume of the prejudicial evidence is
such that the prejudice is incapable of cure, even by careful direction: Patel v The
Queen (2012) 247 CLR 531.
(emphasis added)
32. It is underlined, as noted earlier, that s 101 of the Evidence Act was amended post Bauer and Tully to the effect that the probative value must outweigh the danger of unfair prejudice, rather than significantly outweigh.
33. I formed the view that the probative value of Category 2 and 3 evidence does not outweigh the danger of unfair prejudice. This concerns both tendency 1 and 2.
34. In my view, in respect of Category 2 evidence, tendency reasoning has lower probative value in relation to conduct that occurs after the alleged offence. The danger of unfair prejudice is higher. The Category 2 evidence should not be adduced as tendency evidence.
35. In my view, in respect of Category 3 evidence, the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. Specifically, a jury may convict as punishment for conduct other than that charged and may be distracted from the central issues in the trial. The Category 3 evidence should not be adduced as tendency evidence.
Category 1 and Tendency 1
36. Category 1 involves internet searches that involved searches for child or teen dolls that occurred on the day of, and close in time before, the order for the doll was placed.
37. The prosecution seeks to lead this evidence as tendency evidence to prove the state of mind of the accused at the time of the relevant purchase. Tendency 1 is relevant in this context. Tendency 2 is not relevant.
Submissions of the Prosecution
38. Counsel for the prosecution submitted that it may be suggested that some of the searches and URLs that come before the transaction in question involve searches for dolls that meet a particular description. While not accepting the following argument, the prosecution submitted that it may be said that an element of tendency reasoning is involved, that suggests a conformity between the terms of those searches, the intent they imply, and an intent or state of mind that accompanied the searches on 4 September 2020 that led to the relevant doll being identified and purchased.
39. Sections 97 and 101 of the Evidence Act place conditions on the admissibility of tendency evidence. Counsel submitted that the Court must first enquire whether the evidence has significant probative value and, if it does, determine whether that value “substantially” outweighs any prejudicial effect that the evidence may have.[1] In
assessing the evidence relevant to the tendency issue, the Court must have regard to the proposed tendency evidence in the context from which it emerges and not just in isolation.
[1] It is noted that, following the commencement of the Royal Commission Criminal Justice Legislation
40. Counsel for the prosecution submitted that, in this context, the tendency that is sought to be proved is the tendency of the accused to pursue his sexual interest in sex dolls of a particular description, involving pre-pubescent children, by making internet searches to view dolls meeting this description. Having regard to the other evidence in the case, it was submitted that the repeated and similar searches for dolls of a particular description (teenager and child-like sex dolls) is significantly probative of the intention of the accused, the particular state of mind, as to the characteristics of the doll that he eventually bought and imported.
41. The evidence is relevant, it was submitted, to the intention of the accused to import the doll of a particular description, with the pattern of activity apparent in the days before the purchase indicating, effectively, that the accused was in the market for a doll that met this particular description.
42. Counsel submitted that the features of the doll bought demonstrates the high degree of coincidence between the character of the searches and the details contained on the site from which the doll was purchased and eventually imported. This included, it was submitted:
• The details displayed on the product order page being “100cm Young Sex Doll – Bunny”
• Photographs and videos of the doll in various poses (showing that it appeared to be of a pre-pubescent child) • A product description that included references to a “girls’ pinkness”, “youthfulness and tenderness of the girl”
43. In buying this particular doll, it was submitted, with its advertised characteristics, the accused behaved in a way consistent with this tendency, again, being the tendency of the accused to pursue his sexual interest in sex dolls of a particular description, involving pre-pubescent children by making internet searches to view dolls meeting this description: (Tendency 1).
44. Section 101 of the Evidence Act provides that tendency evidence is not admissible unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
45. There is nothing, it was submitted, that suggests that the evidence, if admitted, would give rise to the type of unfair prejudice contemplated by s 101 as:
• There is nothing which would suggest that the evidence, if admitted, would be misused by the jury in some way; • Be given more weight than it deserved; • Divert the jury from its task; • Be evaluated by the jury through the application of some illegitimate form or reasoning; or • Be used in a way which is irrational or illogical.
46. Counsel for the prosecution submitted that evidence is not rendered inadmissible simply because it is inculpatory; HML v R [2008] HCA 16; 235 CLR 334 at [12] and [91].
47. Further, the unusual nature of the sexual fetish of the accused does not, it was submitted, provide ground to exclude the evidence under s 101.
Submissions of the Accused
48. Counsel for the accused submitted on the two tendencies sought to be asserted by the prosecution. Only Tendency 1 is relevant to Category 1.
That the accused has or had a tendency to pursue his sexual interest in sex dolls of a particular description (involving pre-pubescent children) by making internet searches to view dolls meeting this description (Tendency 1)
49. Counsel for the accused submitted that images of young girls in swimwear can in no way support a tendency of the accused to have a sexual interest in sex dolls of any description. As a matter of logic, it was submitted, a person with any particular desire need not also be attracted to an inanimate object which bears a resemblance to the object of their desires. Indeed, it was submitted, this tendency does not seek to draw a link between pursuing photographs of young children and searching for dolls depicting young children.
50. Images of the email chain between the accused and the vendor of the doll cannot, it was submitted, found a relevant tendency. The placing of the order is what the prosecution relies upon as the foundation of the offence before the Court. Therefore, it was submitted, it cannot be that this evidence is led as tendency evidence, rather it is direct evidence of the alleged offending conduct.
51. Counsel for the accused submitted that images of a selection of websites visited cannot be the basis for establishing a tendency for the following reasons:
• The websites contain a combination of child-like sex dolls and adult sex dolls; • The images represent an unknown portion of each website; • There is no evidence that the images reflect the contents of those websites at the time they were visited by the accused; • The websites depicted are only a portion of the potentially relevant websites visited by the accused. Putting aside the above issues, a true picture of what the accused examined cannot be gleaned; and • It is not apparent how the accused came to access each site, for example, by clicking on a link, or a pop-up.
52. Counsel for the accused submitted that unspecified data extracted from a Cellebrite
Report of the accused’s phone ought not to be considered by the Court. Producing a
report that contains 887 records and asking the Court to determine that unspecified
parts support a tendency is, it was submitted, inappropriate.
The Facts in Issue
53. Counsel for the accused submitted that the elements of the offence are:
• That the accused imported goods; • That the accused intended to import the goods; • That the goods were tier 2 goods; •
That the accused was reckless as to whether the goods were tier 2 goods; and
• That the importation of the goods was prohibited.
54. Counsel submitted that, in his record-of-interview with police, the accused made the following admissions:
• That he ordered the item depicted; • That he intended to engage in sexual activity with it; and • That he knew the item was coming from overseas.
Significant Probative Value
55. Counsel for the accused submitted that the tendencies are framed as relating to “pre- pubescent” girls/children. The doll that the accused ordered incudes a description that
it “has begun to develop” and includes options as to the grooming of pubic hair. By
definition, it was submitted, these are pubescent characteristics. Counsel for the accused submitted that, in those circumstances, even if the tendencies sought to be adduced by the prosecution can be established, it is difficult to see how they can have probative value in a trial where the doll that was ordered is clearly pubescent.
56. Further, in considering probative value, counsel for the accused submitted that the respondent made a number of admissions in his record-of-interview. These admissions are: (1) that he ordered the item depicted; (2) that he intended to engage in sexual activity with the item; and (3) that he was aware that the item was coming from overseas. In circumstances where those admissions have been made, it was submitted that the tendency evidence is deprived of all but the most basal level of probative value. The tendency would not assist the prosecution in any meaningful way to establish any of the elements of the offence beyond that which is already effected by the admissions.
57. Put simply, it was submitted that the accused looking at photos of young girls, or examining child-like sex dolls, does not make it more likely that the item he ordered was such an item. Nor, it was submitted, can it rationally inform whether he was reckless as to whether it was a tier 2 good.
Unfair Prejudice
58. It was submitted that, in the present matter, there is a real risk that a jury may convict the accused as punishment for conduct relied on in relation to the tendencies asserted, in particular the images of the young girls in swimwear. The accused faces no charges in relation to that material. However, the jury, it was submitted, is likely to find a collection of such images repugnant. In such circumstances, there is a real risk that the jury may convict so as to ensure that the accused faces some penalty for his behaviour.
59. Further, it was submitted, the prosecution seeks to lead a large volume of material in relation to the tendencies where the subject matter of the trial is otherwise quite narrow. The disproportion between evidence directly relevant to the trial and indirectly relevant through the proposed tendency reasoning is apt to cause distraction from the central issues at trial.
60. Ultimately, it was submitted that the asserted tendencies have little, if any, probative value. Even should the Court determine that the evidence has significant probative value, it was submitted that the Court would determine that the substantial prejudicial effect of such evidence ought to weigh against its admission.
Oral Submissions
61. As outlined in the introduction, the matter came before me for hearing on 3 November
2021, where I refused the prosecution’s application in respect of Category 2 and
Category 3 evidence. On that date, an evidentiary issue arose as to Cellebrite
Extraction Report of the accused’s phone, that was tendered by the prosecution
(Exhibit 3). Broadly, the issue that arose was whether or not it is possible to determine how a person operating the phone came to arrive on particular websites (for example, by a pop-up advertisement).
62. The prosecution sought an opportunity to call evidence in relation to the association between search terms and the URLs that were summarised in the case statement and produced within the Cellebrite Report. The matter was adjourned to 11 November 2021, in respect of Category 1 evidence only.
63. On 11 November 2021, the prosecution tendered:
• A report from Mr Kumic (Exhibit 4A) and its accompanying attachments;
•
A Cellebrite Extraction Report referring to the search terms identified in the period leading up to the purchase of the doll (Exhibit 4B). Exhibit 4B is an extract of Exhibit 4C.
•
A Cellebrite Extraction Report that includes sex doll websites visited in the period leading up to the purchase of the doll (Exhibit 4C).
• A report from Mr Finlayson (Exhibit 5) and its accompanying attachments:
• A table containing images of a selection of websites visited by the accused. It is noted that this table contained sensitive material and was returned to the prosecution at the conclusion of the pre-trial application.
64. The effect of the evidence is that it is not possible to determine conclusively the process by which the accused navigated to particular websites.
65. Counsel for the prosecution submitted that, in relation to the situation where a search term is entered (such as evidenced by Exhibit 4B), one can conclude that there were visits to sites that were captured as a result of that search term. Where there is a search term, URLs that appear in time that are proximate to that search term can be more readily associated with the entry of a particular search term.
Counsel for the accused accepted that Exhibit 4B depicts, in the column titled “value”,
keystrokes entered by a person operating the phone. It was conceded that this person was the accused. It was accepted by counsel for the accused that Exhibit 4B, which is confined to the 15 minutes that lead up to the purchase of the doll, assists the
prosecution case in relation to the accused’s state of mind. The objection to Exhibit 4B
was not pressed. The relevance of that material was conceded (T.57.40-58.20).
67. This is not the case, it was submitted, in relation to Exhibit 4C where there is a larger body of URLs. It is not possible, it was submitted, to say how the accused navigated to the majority of websites.
68. Counsel for the prosecution submitted that, if the accused navigated to a website via a pop-up, the decision is still made by the person controlling the computer to go to that website.
69. Counsel for the accused submitted that the difficulty with Exhibit 4C is that, for the large majority of the document, there is no indication as to how the accused came to specific websites, or to how the phone accessed those sites. It is not denied that the accused was the one accessing the sites. Excluding the evidence of Exhibit 4B, there is no indication that the accused has entered any search terms. To put the remaining evidence before the jury would, it was submitted, raise more questions than answers.
70. Counsel for the accused submitted that the accused clicked on “something” to lead to
the websites. It is not possible to know what he clicked on. The URL does not necessarily reflect the language that is in the hyperlink. Without knowing which hyperlink was clicked by the accused, or otherwise how the accused arrived at the
websites, there can be little derived about the accused’s state of mind from the fact that
he visited them. Further, it was submitted, there are incredibly short periods of times between some of the entries on the document. The relevance of websites visited for such a short period of time is, it was submitted, in question.
71. In relation to the table attached to Exhibit 5, within the random selection of websites visited by Mr Finlayson, there are dolls pictured that appear to be in adult form as well as child-like. Counsel for the prosecution submitted that the titles of the URLs tend to
reflect the dolls contained within the websites, including, for example, “little girl sex dolls”, “mini sex dolls”, and “child baby face”. The prosecution submitted that the
material in Exhibit 5 is relevant to address the concern that a websites title may not
necessarily relate to the content contained within.72. Counsel for the accused submitted that the images contained within Exhibit 5, the random samples of what was on the URLs contained within Exhibit 4C, were taken approximately 14 months after the accused is said to have visited them. There is no evidence as to what the websites looked like at the time accessed by the accused and, it was submitted, websites change. To place the material before the Court and submit
that this informed the accused’s state of mind when he purchased the doll is, counsel
submitted, to present potentially misleading evidence. It was submitted that this evidence is of minor relevance and the prejudicial value would outweigh the minimal probative value.
73. Counsel for the prosecution accepted, in relation to Exhibit 5, that there may be a discrepancy between the state of websites as at the time of the photographs and as it existed some 14 months earlier, in September 2020.
Consideration
74. Earlier in this judgment at [25] the relevant approach outlined in Amato is set out. Further relevant law is outlined at [26]-[32].
75. Additionally, as outlined in R v QX (No 5) at [71], following the amendments to the Evidence Act, the process for determining whether the prosecution will be permitted to adduce the tendency evidence is as follows:
(a)
Establishing that the evidence is relevant pursuant to s 55 of the Evidence Act;
(b) Determining the preliminary threshold in s 97 of the Evidence Act:
(1) Whether the prosecution has provided sufficient notice: s 97(1)(a); (2)
Whether the evidence has significant probative value: s 97(1)(b). At this stage of the analysis, consideration must also be given as to whether the presumption in s 97A(2) of the Evidence Act applies in the proceeding and whether there are any sufficient grounds to rebut the presumption pursuant to ss 97A(4) and (5).
(c)
If the evidence satisfies s 97 of the Evidence Act, then proceeding to determine whether the probative value of the evidence outweighs the danger of unfair prejudice to the defendant: s 101(2).
(d)
Additionally, a final further step may be consideration of whether the Court should use the discretion to refuse to admit the evidence pursuant to s 135 or whether the Court must refuse to admit the evidence pursuant to s 137.
Is the evidence relevant within the meaning of s 55?
76. Section 55 provides:
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to–
(a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to present evidence.
77. To determine whether the evidence is relevant within the meaning of s 55, the Court must identify the purpose for which the evidence is sought to be tendered: IMM v The Queen at [37]. In Vojneski v The Queen [2016] ACTCA 57; 262 A Crim R 370, Murrell CJ and Refshauge J stated at [48] that to determine whether tendency evidence is relevant pursuant to s 55, the Court must ask:
(a) Has the tendering party identified a s 97 tendency? (b) Are the incidents (individually or in combination) capable of establishing the asserted tendency? (c) What is the relevant “fact in issue” in the proceedings? (d) If the fact finder accepts that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue?
78. I am satisfied that the tendency particularised by the prosecution that the accused has or had a tendency to pursue his sexual interest in sex dolls of a particular description, involving pre-pubescent children, by making internet searches to view dolls meeting this description, is a s 97 tendency (Tendency 1).
79. The relevant fact in issue in this proceeding is whether the doll fits the definitions in the act in relation to its approximation to a child under the age of 18, and whether the accused had the requisite state of mind in relation to that particular doll imported.
80. I am satisfied that if the fact finder accepted that the tendency incidents occurred and demonstrated the asserted tendency, the tendency could inform the ultimate fact in issue in this matter.
81. The evidence is relevant within the meaning of s 55 and admissible pursuant to s 56(1) of the Evidence Act.
Did the prosecution give the accused reasonable notice to the accused of its intention to present the evidence? Section 97(1)(a)
82. The tendency notice was compliant with s 99 of the Evidence Act, reg 8 of the Evidence Regulation 2012 (ACT) and r 6752 of the Court Procedure Rules 2006. Section 97(1)(a) is satisfied.
Does the evidence, either by itself or having regard to other evidence, have significant probative value? Section 97(1)(b)
83. Prior to undertaking the analysis required by s 97(1)(b), the Court is required to determine whether the presumption in s 97A(2) applies to this matter.
Does the presumption in s 97A(2) apply?
“Child sexual offence” is defined in s 97A(6) of the Evidence Act:
child sexual offence–
(a) means each of the following offences (however described and regardless of when it occurred):
(i) an offence against, or arising under, a territory law involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence; (ii) an offence against, or arising under, a territory law involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence; (iii) an offence against, or arising under, a law of the Commonwealth, a State or a foreign country that, if committed in the Territory would have been an offence of a kind mentioned in subparagraph (i) or (ii); but (b) does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.
85. The offence in this matter involves the importation of a good that attracts criminal liability in that it is said to resemble a person under the age of 18, and that a reasonable person would consider it likely that the doll is intended to be used to simulate sexual intercourse.
86. The parties properly agreed that, as there is no offence that meets the description in s 97A(6), s 97A does not apply. The presumption, therefore, does not apply in this proceeding.
87. I am satisfied, in relation to Exhibit 4C that the evidence has significant probative value. It is relevant to the intention of the accused to import a doll of a particular description and the pattern of activity prior to the purchase.
Does the probative value of the tendency evidence outweigh the danger of unfair prejudice to the accused? Section 101(2)
88. In my view, with respect to Exhibit 5, the probative value of the tendency evidence is outweighed by the danger of unfair prejudice to the accused. Specifically, a jury may convict as punishment for conduct other than that charged and may be distracted from the central issues in the trial.
89. In my view, with respect to the Exhibit 4C evidence, the probative value outweighs the danger of unfair prejudice to the accused. The evidence is relevant to the alleged intention of the accused to import the doll of a particular description. Evidence is not rendered inadmissible simply because it is inculpatory. The evidence does not give rise to unfair prejudice in the broad sense of diverting the jury from its task.
Is the probative value of the evidence outweighed by the danger of unfair prejudice to the accused? Section 137
90. The state of the law concerning the admissibility of tendency evidence in this jurisdiction has changed following the Royal Commission Criminal Justice Legislation Amendment Act 2020 (ACT).
91. As noted by the NSW Attorney-General, when presenting the Evidence Amendment (Tendency and Coincidence) Bill 2020 (NSW), which largely aligned with the
amendments made in the ACT, the new provisions do not displace “the general
discretions and mandatory exclusions that apply to evidence”, referring to ss 135 and
137 of the Evidence Act. Counsel for the accused did not raise s 135.
92. Section 137 of the Evidence Act provides:
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
93. For the reasons outlined concerning s 101(2), the probative value of the evidence outweighs the danger of unfair prejudice concerning Exhibit 4C.
Non-tendency admissibility of Exhibit 4C
94. The evidence is part of the narrative surrounding the commission of the offence in question providing context and background to the conduct giving rise to the alleged offence. Therefore Exhibit 4C is admissible. See R v Adam [1999] NSWCCA 189; 106
A Crim R 510 at [26]-[30]; O’Leary v The King [1946] HCA 44; 73 CLR 566; Hothnyang
v The Queen [2014] VSCA 64; and McDonald v The Queen [2014] VSCA 80; 43 VR
152 at [29].95. For the reasons outlined earlier at [33]-[35] and [88], Category 2 and 3, and Exhibit 5, should not be admitted as either tendency or non-tendency evidence.
Orders
96. On 3 November 2021, I made the following orders:
•
The prosecution application to adduce certain evidence as tendency evidence in the trial is refused in relation to Category 2 and Category 3:
•
Category 2: Internet searches that occurred after the date of purchase involving searches for child or teen dolls;
•
Category 3: Internet searches before and after the purchase of the doll directed at obtaining access to images of pre-pubescent children.
97. I made the following further orders concerning Category 1 and Tendency 1 on 11 November 2021:
• The application of the prosecution to tender Exhibit 4B in the trial of the accused is granted. • The application of the prosecution to tender Exhibit 4C in the trial of the accused is granted. • The application of the prosecution to tender the material referred to in paragraph 11 of Exhibit 5A, being the photographs, (referred to as Exhibit 5) is refused. I certify that the preceding ninety-seven [97] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson
Associate:
Date: 15 November 2021
Amendment Act 2020 (ACT) on 1 September 2020, the probative value of evidence is no longer required
to “substantially” outweigh any prejudicial effect.
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