R v Kandola
[2016] ACTSC 395
•24 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kandola |
Citation: | [2016] ACTSC 395 |
Hearing Date: | 24 October 2016 |
DecisionDate: | 24 October 2016 |
Before: | Murrell CJ |
Decision: | Evidence of each charged act is admissible as tendency and coincidence evidence. |
Catchwords: | CRIMINAL LAW – Evidence – Admissibility of tendency evidence – admissibility of coincidence evidence – relevant considerations for assessment of tendency and coincidence evidence – whether probative value of evidence substantially outweighs its prejudicial effect – evidence admissible |
Legislation Cited: | Crimes Act 1900 (ACT) s 65 Criminal Code (Cth) s 474.19 Evidence Act 2011 (ACT) ss 55, 97, 98, 101 |
Cases Cited: | R v Donnelly [2016] ACTSC 80 R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 R v Klobucar [2016] ACTSC 23; 305 FLR 445 |
Parties: | The Queen (Crown) Ashvindardeep Kandola (Accused) |
Representation: | Counsel Ms K Musgrove (Crown) Ms H Hayunga (Accused) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 125 of 2016 |
MURRELL CJ:
The accused is charged with three counts of using a carriage service to transmit child pornography contrary to s 474.19(1) of the Criminal Code (Cth) and three associated counts of possessing child exploitation material contrary to s 65 of the Crimes Act1900 (ACT).
The transmission charges and the related possession charges concern the dates of 7–9 November 2014, 10–11 June 2015 and 18 October 2015, i.e. three episodes of offending. The trial is listed for callover in November and is expected to be allocated a trial date in 2017. Issues at the trial may include whether in relation to each charge the prosecution has proved that it was the accused as opposed to someone else who possessed and transmitted the child pornography material and whether, if it was the accused, he acted intentionally.
Under ss 97 and 98 of the Evidence Act2011 (ACT) (‘Evidence Act’), the prosecution applies to adduce evidence of each charged incident as coincidence and tendency evidence supporting each other charged incident. The prosecution says that at the time of each other charge, the accused had a relevant tendency and that the similarities between the incidents are such that it is most improbable that two different people coincidentally involved themselves in such similar conduct. The incidents can be summarised as follows.
Incident one
The prosecution alleges that on 7–9 November 2014, a mobile telephone number registered to an address associated with the accused and used by the accused in the preceding period in 2014 was used to transmit child pornography to a Mr Harper, being homosexual images including images of adult male/boy sexual intercourse. The transmission was unsolicited and the accused was previously unknown to Mr Harper.
Incident two
The prosecution alleges that on 10–11 June 2015, a different mobile telephone number which was registered to the Nicholls address of the accused’s mother (and admittedly used by the accused later in June 2015) was used to transmit child pornography to a Mr Bartkowiak, being homosexual images including images of adult male/boy sexual intercourse. The transmission was unsolicited and the accused was previously unknown to the recipient.
Incident three
The prosecution alleges that on 18 October 2015, another mobile telephone which the accused confirmed was one of his mobile telephone numbers and which was registered to the Nicholls address of the accused’s mother, was used to transmit child pornography to a Mr Fry, being homosexual images including images involving an adult male and a boy. The transmission was unsolicited and the accused was previously unknown to Mr Fry.
The second and third of these incidents was associated with messaging that included addresses and map references purportedly identifying the sender’s location, which were locations that could also be associated with the accused.
Section 55(1) of the Evidence Act provides:
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.
Relevance is assessed on the assumption that the factfinder will accept the evidence.
Probative value is defined in the dictionary to the Evidence Act as follows:
Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
In relation to tendency evidence, s 97 of the Evidence Act provides:
97The 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—
...
(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.
In relation to coincidence evidence, s 98 provides:
98The coincidence rule
(1)Evidence that 2 or more events happened is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they happened, or any similarities in both the events and the circumstances in which they happened, it is improbable that the events happened coincidentally unless—
...
(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.
NoteOne of the events referred to in s (1) may be an event the happening of which is a fact in issue in the proceeding.
Section 101 provides:
101Further restrictions on tendency evidence and coincidence evidence presented by prosecution
(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 substantially outweighs any prejudicial effect it may have on the defendant.
Sections 97 and 98 also provide notice requirements before tendency or coincidence evidence can be adduced. There is no dispute that those notice requirements are satisfied in this case.
On an application to adduce coincidence evidence, the questions for the court are:
(a)Has the tendering party identified a particular act or particular state of mind that is in issue?
(b)What are the two or more events that are said to be similar?
(c)Assuming that the factfinder accepted that the events in question occurred, are the similarities in the events or the circumstances in which they occurred such that the factfinder could consider that it was improbable that the events were merely coincidental?
(d)If the factfinder accepted that coincidence was improbable, would this have significant probative value, that is, would it be significant, important or influential to proving that the accused did the particular act or had the particular state of mind that is in issue?
(e)Does the probative value of the coincidence evidence substantially outweigh any prejudicial effect? See R v Gale; R v Duckworth [2012] NSWCCA 174; 217 A Crim R 487 at [31]; R v Donnelly [2016] ACTSC 80 at [9] and R v Klobucar [2016] ACTSC 23; 305 FLR 445 at [49].
In this case the particular acts in question are concerned with whether the accused as opposed to someone else possessed and transmitted the child pornography on each relevant occasion. The particular state of mind in relation to each act is whether the accused did so intentionally.
In relation to each charged event, the prosecution relies upon the other charged events arguing that the similarities between the three events were such that the charged event is unlikely to be the result of coincidence. The similarities upon which the prosecution relies are
(a)The recipients received images from someone who was unknown to them;
(b)The messages were unsolicited;
(c)The pornography concerned homosexual activity involving underage males not females;
(d)The three telephone numbers from which the messages were sent were subscribed to the accused in his name or a variation thereof and registered to the accused’s address or that of his mother;
(e)The accused was known to have used or admitted having used the telephone number from which each message was sent; and
(f)The 2015 recipients were sent telephone numbers that were associated with the accused, and addresses—and map references purportedly identifying the sender’s location.
The prosecution submits that the similarities between each charged incident and the other two incidents are such that it is improbable that the images that formed the subject of the charged incident were sent by someone other than the accused and it is improbable that they were sent unintentionally. The prosecution submits that the evidence has significant probative value because it highlights the improbability of someone other than the accused transmitting the child pornography that formed the subject of each charge and highlights the improbability of such conduct occurring unintentionally.
The defence has not identified any relevant unfair prejudice, that is, any danger that the factfinder might use the evidence to act on an illogical or emotional basis. I accept the submissions of the prosecution concerning the questions which the Court must consider. The defence has not advanced any argument that the evidence should not properly be admitted as coincidence evidence but I note that this is a matter for the Court. Sections 98 and indeed 97(1)(b) require the Court to consider whether the evidence will have significant probative value. In my view, it will.
On an application to adduce tendency evidence, the questions are:
(a)Has the tendering party identified a s 97 tendency; that is, a tendency to think or act in a particular way?
(b)Are the incidents individually or in combination capable of establishing that the accused had the asserted tendency at the relevant time—the time of the charge?
(c)What is the relevant fact in issue in the proceedings?
(d)If the fact-finder accepted that the tendency incidents occurred and showed the asserted tendency, could the tendency inform the fact in issue? In this case, could it inform whether the accused committed the relevant charged offence because the tendency conforms with what is otherwise known about the offending behaviour?
(e)Does the tendency evidence have significant probative value, that is, is the evidence significant, important or influential in the context of fact-finding, given the nature of a fact in issue?
(f)Does the probative value of the tendency substantially outweigh any prejudicial effect?
In this case, the tendencies as originally identified by the prosecution were fairly broad. However, in argument the prosecutor narrowed the tendency and described the tendency upon which the prosecution relied as being a tendency of the accused to transmit homosexual child pornography that is unsolicited to people otherwise unknown to him via a mobile telephone and its applications. In my view, this tendency as articulated at the hearing of the pre-trial application is a s 97 tendency; that is, a tendency to act or think in a particular way.
In relation to each charged incident, the other two incidents are both, in my view, individually and in combination capable of establishing the asserted tendency. It is true that there was a time gap between the various incidents. However, they all occurred within the space of about 12 months and the distinctiveness of the conduct is such that it is my view that a jury could conclude that if a tendency was possessed at one or other of the relevant dates, then it was probably possessed at the time of the relevant charged act. The fact in issue to which the tendency evidence might go is as I have identified in respect of the coincidence evidence, whether the accused did a relevant charged act and whether he did it intentionally. I am satisfied that if the jury accepted that one or both tendency incidents occurred, then that could well establish in the jury’s mind the asserted tendency which would be a very influential circumstance when the jury was considering the relevant charged act. Again, the defence has not identified any relevant unfair prejudice.
Having said that, the defence has raised the concern which in my view is a legitimate concern about the complication—that the task of a judge who is trying to explain to a jury the relevance of evidence both as tendency evidence and as coincidence evidence would have a difficult task and if the evidence was put to the jury on both bases, then the judge would face a challenge in articulating the two different ways in which the evidence could be used. That is not to say that it is an insurmountable task and because it is not necessarily an insurmountable task, that may not even amount to a prejudice. To the extent that it is a prejudice, then it is a matter for the trial judge to consider at the time of the trial. It is not a prejudice that falls within s 101 and influences a finding as to whether the evidence is admissible as tendency or coincidence evidence.
Decision
For these reasons, I find that in relation to each charged act, the evidence of each other charged act is admissible both as tendency evidence and as coincidence evidence.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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