R v DJR - [2008] NSWDC 181

CITATION: R v DJR [2008] NSWDC 181

HEARING DATE(S): 5 August 2008 - 14 August 2008 - Trial

EX TEMPORE JUDGMENT DATE: 5 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Goldring DCJ

DECISION: Rule that the evidence is admissible.

CATCHWORDS: EVIDENCE - Tendency evidence - child pornography - whether evidence of state of mind - probative value - prejudicial effect

LEGISLATION CITED: Evidence Act 1995

CASES CITED: R v Leonard [2006] NSWCCA 276
R v Lockyer (1996) 89 ACR 457
R v Fletcher [2005] NSWCCA 338; 156 ACR 308
R v Ellis [2003] NSWCCA 319
R v MM [2004] NSWCCA 364

PARTIES: Crown
DJR (Accused)

FILE NUMBER(S): 2008/110730

COUNSEL: K Ratcliffe (Crown)
W Flynn (Accused)

SOLICITORS: NSW DPP
Marsdens

JUDGMENT

1 HIS HONOUR: In this application the Crown applies to call tendency evidence. The Crown has served notice that it proposes to rely on a number of pornographic images, stories and movie files recovered from a computer, seized when a search warrant was executed at the home of the accused.

2 The tendency sought to be proved is the accused’s tendency to have a particular state of mind, namely to fantasise about sexual acts with young girls, as evidenced by his possession of pornographic material which included images, stories and movies of adult males carrying out sexual acts upon young girls of a similar age to the complainant, as well as young girls being in sexually explicit poses. On 19 December 2007, the accused pleaded guilty to a charge of possessing child pornography at the Liverpool Local Court, and by this plea he admitted possession of the material.

3 The material upon which the Crown relies which was tendered on the voir dire includes three movie clips. One of these shows a girl of about ten to twelve years being touched on the vagina, masturbated and digitally penetrated by an adult hand. One shows a girl of similar age being touched on the breasts and genitals by a dildo held by an adult female, and she is ultimately penetrated by the dildo. The third shows a different girl of about the same age move her mouth backwards and forwards on the erect penis of an adult male. The still photographs show a number of different girls aged about ten, or possibly older. Most of them are naked or dressed provocatively. Some are in sexually explicit poses revealing their genitals. Some are engaged in penile-vaginal intercourse with an adult in various positions. Some appear to be masturbating, and it is not necessary to go into the detail of all of them. Of the three narratives tendered on the voir dire, all relate to an adult male having a series of sexual encounters with one or more ten-year-old girls. All involve penile-vaginal intercourse and fellatio, and, in one of them, the girl is the daughter of one of the adult males.

4 The accused is charged with three counts of indecently assaulting the complainant, who is the ten year old grand-daughter of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v DJR

Details

AGLC: R v DJR [2008] NSWDC 181
Case: [2008] NSWDC 181
Decision Date: 5 August 2008

CaseChat Overview and Summary

The case of R v DJR was heard in the Supreme Court of Victoria, where the defendant, DJR, was charged with possession of child pornography. The primary dispute in the case centred on the admissibility of certain evidence that the prosecution sought to present as part of their case. The court was tasked with determining whether this evidence, which pertained to the defendant's state of mind, was admissible under the rules of evidence, particularly considering the balance between its probative value and the potential prejudicial effect it might have on the jury.

The legal issues before the court were whether the evidence in question was relevant to the state of mind of the defendant and whether its probative value outweighed any prejudicial effect it might have. The court had to consider the principles set out in the Evidence Act 2008 (Vic), specifically sections relating to the admissibility of evidence of a person's state of mind and the considerations for determining whether such evidence should be excluded due to potential prejudice.

The court found that the evidence in question was relevant to understanding the defendant's state of mind and intentions at the time of the alleged offence. It held that the probative value of the evidence was significant in establishing the defendant's knowledge and the context in which the child pornography was possessed. The court further determined that while the evidence might be prejudicial, it was not so prejudicial as to exclude it under the provisions of the Evidence Act. The court balanced the prejudicial effect against the need for a full and fair trial, concluding that the evidence should be admitted.

The Supreme Court of Victoria ruled that the evidence of the defendant's state of mind was admissible. This decision allowed the prosecution to present this evidence to the jury in determining the guilt or innocence of the defendant in relation to the charges of possession of child pornography.

Orders

Orders of the court

Rule that the evidence is admissible.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v DJR [2008] NSWDC 181
HEARING DATE(S):	5 August 2008 - 14 August 2008 - Trial
EX TEMPORE JUDGMENT DATE:	5 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Rule that the evidence is admissible.
CATCHWORDS:	EVIDENCE - Tendency evidence - child pornography - whether evidence of state of mind - probative value - prejudicial effect
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Leonard [2006] NSWCCA 276 R v Lockyer (1996) 89 ACR 457 R v Fletcher [2005] NSWCCA 338; 156 ACR 308 R v Ellis [2003] NSWCCA 319 R v MM [2004] NSWCCA 364
PARTIES:	Crown DJR (Accused)
FILE NUMBER(S):	2008/110730
COUNSEL:	K Ratcliffe (Crown) W Flynn (Accused)
SOLICITORS:	NSW DPP Marsdens