R v Kennedy
[2022] SADC 43
•14 April 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KENNEDY
[2022] SADC 43
Judgment of her Honour Judge Tracey
14 April 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with unlawful sexual intercourse and producing child exploitation material - prosecution allege offending occurred before alleged victim, B, turned 17 – mother found video of B and the accused engaged in sexual intercourse – B did not give evidence –photographs of B tendered to show her appearance and in particular the length of her hair - mother and sister gave evidence as to B’s appearance and identified the alleged victim and the accused from video.
Verdicts:
Count 1 - Not guilty.
Count 2 – Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 49(3) and s 63(a), referred to.
Smith v The Queen (2001) 206 CLR 650; R v Marsh [2005] NSWCCA 331; Nguyen v The Queen [2007] NSWCCA 363; R v Miller [2015] NSWCCA 206; Shepherd v The Queen (1990) 170 CLR 573; R v Singh [2019] SASCFC 51; R v Bayden-Clay (2016) 258 CLR 308, considered.
R v KENNEDY
[2022] SADC 43
The accused is charged with unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 and producing child exploitation material contrary to s 63(a) of the Criminal Law Consolidation Act 1935.
The accused pleaded not guilty to both charges and elected for a trial by judge alone.
The prosecution case
The alleged victim, B, did not give evidence.
The prosecution case was based on a video that B’s mother, K, discovered on 10 February 2020, which showed her daughter performing fellatio upon the accused. On the prosecution case it was the accused who filmed the act of fellatio.
The accused was a friend of B’s family who had lived with the family for a period of about two years between 2016 and 2019.
On the prosecution case, the act of fellatio and the filming occurred on or before 3 January 2019 when the victim was 16 years old. At the time, the accused was 34 years old. B turned 17 years of age on 4 February 2019.
To establish that B was 16 years old at the time the act of fellatio took place, the prosecution relied on her appearance in the video as compared to how she appeared at around the time of her 17th birthday. B had shaved her head on 29 January 2019, just prior to her 17th birthday. Before this, her hair was long and straight, and reached most of the way down her back. The video of the act of fellatio shows B with long hair styled in a bun on the top of her head. The prosecution also relies on data contained within the video file which, on the prosecution case, circumstantially supports a finding that the video was created on or before 3 January 2019.
The prosecution called K, who found and viewed the video, to give evidence about the victim’s appearance at various times, and B’s sister, T, who also viewed the video and gave evidence about B’s appearance. The prosecution called Brevet Sergeant Cheetham who performed a review of various electronic devices located by K, and Senior Constable Timothy Holmes, who extracted the contents of an SD card and hard drive that K found.
The defence case
The defence case, at least at the outset of the trial, was that the prosecution could not establish by way of admissible evidence that the persons in the video were B or the accused.
Further, if it was found to be B and the accused in the video, B’s appearance and in particular the length of her hair, was such that the prosecution could not establish beyond reasonable doubt that the video was taken before her 17th birthday on 4 February 2019. The defence called Lisa Tehan to give evidence of her experience with the use of hair extensions, which could not be excluded as a reasonable possibility to explain the length of the female’s hair in the video.
There was no defence put forward that the accused knew or believed on reasonable grounds that B was over the age of 17.
Elements of offence
Unlawful sexual intercourse
The prosecution must prove beyond reasonable doubt each of the following elements:
1. The accused had sexual intercourse with B.
2. At the relevant time B was under the age of 17 years.
Producing child exploitation material
The prosecution must prove beyond reasonable doubt each of the following elements:
1. The accused produced material;
2. The material is child exploitation material;
3. The accused knew of the pornographic nature of the material.
I have concluded that the identity of the accused in Exhibits P7 and P10 is established from the evidence given by both K and T. I am also satisfied that they have both accurately and appropriately identified B as the person performing fellatio upon the accused.
Sexual intercourse includes the act of fellatio. It is clear from the video that the accused is the one responsible for filming B and shows the act of fellatio. The overwhelming inference that arises is that it was intended to excite or gratify sexual interest and that the accused would know of the pornographic nature of the material by virtue of that fact, together with the fact that he was the one filming it.
If there was a reasonable possibility that B was 17 years of age in the video, then the act of fellatio would not be an unlawful sexual act, nor would the video amount to child exploitation material.
Agreed Facts
The following facts were agreed.
1. B was born on 4 February 2002.
2. The accused was born on 5 January 1984.
Exhibits3.The following exhibits were delivered at the Elizabeth Police Station by K and T between 10 February 2020 and 11 February 2020.
Identification label PPMS and item number Description TMJ1 20/A18885-1 Black SP hard drive KAJ1 20/A18824-1 Letter in envelope KAJ2 20/A18824-2 Photograph KAJ3 20/A18824-3 Hand written letters KAJ4 20/A18824-4 USB (nil files) KAJ5 20/A18824-5 DSE sim card (nil files) KAJ6 20/A18824-6 SDHC sim card (nil files) KAJ7 20/A18824-7 Verbatim memory card (nil files) KAJ8 20/A18824-8 Verbatim micro SD adapter with micro SD KAJ9 20/A18824-9 LG micro SD adapter (nil files) KAJ10 20/A18824-10 Sandisk sim card (nil files) KAJ11 20/A18824-11 Telstra sim card (nil files) KAJ12 20/A18824-12 Telstra sim card (nil files) KAJ13 20/A18824-13 Telstra sim card (nil files) KAJ14 20/A18824-14 Telstra sim card (nil files) KAJ15 20/A18824-15 Orange and black sim card (nil files) KAJ16 20/A18824-16 Black card reader (nil files) KAJ17 20/A18824-17 Black plastic card KAJ18 20/A18824-18 NSW patient survey paperwork – Adam Kennedy 4.Exhibits 20/A18885-1 and 20/A18824-8 each contained the same video of B performing fellatio on the accused.
Letters & expert analysis
5.The handwritten letters (exhibit number 20/A18824-3) were analysed by Elizabeth Ockleshaw, a forensic scientist employed by Forensic Science SA. Ms Ockleshaw opined that there was either strong support or very strong support for the proposition that the letters were written by the accused.
6.Two fingerprint impressions were identified on the letters, which were identical to the left ring finger and the left thumb of the accused respectively.
7.During the course of a proofing on 3 February 2022, K said that exhibit P5 was taken six months after B shaved her head.
General directions
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the charges lies wholly on the prosecution. The accused is not obliged to prove that he did not commit the offences charged. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict the accused of any count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count.
The accused elected not to give evidence, as was his right. I have not drawn any inference adverse to him because of his exercise of that right. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
I must assess each witness as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
Rule 49 application
By application dated 25 January 2022, the accused sought to exclude the purported identifications of the accused and B by her mother and sister on the ground of relevance and non-expert opinion. I was invited to proceed de bene esse with objections to be made at the close of the prosecution case and proceeded to hear that evidence.
Prosecution witnesses
Evidence of K
K is the mother of five daughters, of whom B is the second youngest.
K met the accused in 2009 or 2010 through her husband and brother-in-law.[1] In the years before the accused moved into her home, he would regularly visit with his young son. In 2016, the accused approached K’s husband to ask if he could live with them for a few weeks as he had been evicted from his own house and had nowhere to live.[2] The accused moved into their shed and stayed for two years, moving out in late February/early March of 2019.[3]
[1] T 13.20-28.
[2] T 14.27-33.
[3] T 15.16-17.
K told the court that in the two years that he lived with them, the accused became an honorary family member. He would spend a lot of time in the main house with the family as the shed did not have a kitchen or plumbing. The accused would celebrate birthdays, Christmases, and other special occasions with the family, and K’s daughters ‘thought of him as the big brother…that they never had’.[4] K told the court that the accused only moved out when he ‘got his life together and saved up enough money for a bond’, but that after moving out he became distant with the family.[5]
[4] T 14.37-38.
[5] T 17.17-18.
K spoke at length about B’s hair at various stages of her upbringing. K told the court that B had long hair from the time she was a young child until shortly before her 17th birthday in February 2019. While her hair was long, B would either wear it in a bun, or loose in different styles.
On 29 January 2019, B shaved her head after having what K described as a ‘meltdown’.[6] K was able to recall the date on which B shaved her head by referring to an email sent on that date to B’s school coordinator, in which she warned him about B’s hair.[7] K said B’s shaved head resembled ‘a crewcut that they have in the army, like little bits of stubble’.[8]
[6] T 19.37-20.4.
[7] T 20.6-12, Exhibit P1.
[8] T 20.30-31.
K was able to describe the length of B’s hair at various stages between March 2018 and February 2020 with reference to photos taken of B during this period, as follows:
1.A photo of B taken at K’s cousin’s engagement party in March 2018 was shown to the court and marked Exhibit P3. In Exhibit P3, B appeared to have long, brown hair. K said that B’s hair as it appeared in that photo was an accurate reflection of B’s hair as she wore it growing up, and in particular it reflected B’s hair in the months leading up to January of 2019.[9]
2.On 29 January 2019, B sent a video of herself poking her tongue out at the camera and displaying her newly shaved head to her mother via Facebook Messenger.[10] The video had been taken with a filter applied. K took a screenshot of this video, which was shown to the court and marked Exhibit P2.
3.In or around March 2019, K received a photo that B taken of herself in which B’s septum piercing is visible and in which she is wearing her hair pushed back with a headband.[11] K said this photograph was taken after B shaved her head as B’s “hair is short [in the photo] and she was getting excited because she could actually pull it back and start trying to do stuff with her hair again”.[12] In the photo, two necklaces are visible, being a purple stone on a black cord and a gold necklace that K said was given to B by K’s mother.[13]
4.In November 2019, K received a video of B taken by her youngest daughter.[14] A screenshot of this video was shown to the Court and marked Exhibit P5. K told the court the video must have been taken in November 2019 because in the video from which the screenshot was taken (which was not shown to the court), K recalled seeing B playing with her niece who was sitting up in the video.[15] Additionally, K recalled seeing the video in its original form on her daughter’s phone, and was able to recall seeing the date stamp on that occasion. The child is not shown in the screenshot. K said the child was born in July 2019 and that she could tell when the footage was taken based on the child’s size and ability to sit up unassisted, which she would have been too young to do much earlier than November 2019.[16] K, whose own hair reached the nape of her neck, told the court that B’s hair as it appeared in Exhibit P5 was slightly longer than K’s hair as at the time of giving evidence.[17]
[9] T 23.27-31.
[10] T 22.4-9, Exhibit P2.
[11] Exhibit P4.
[12] T 24.32-38.
[13] T 25.8-18; 26.1-11.
[14] T 26.18-22.
[15] T 68.27-29.
[16] T 68.27-29.
[17] T 37.36-38.5.
K recalled that immediately after shaving her head, B wore beanies and bandanas, and as her hair grew out she would ‘brush it a little bit, because [she] couldn’t really do much with it’ and then as it continued to grow throughout the year, would use bobby pins, elastic head bands and then, when it got to a length similar to her own, would pull it into a half ponytail, half up, half down.[18]
[18] T 40.7-18.
K said that although B still lived at the family home as at February 2020, she had not seen B in the period between B’s 18th birthday on 4 February and 10 February 2020. On the weekend of 10 February 2020, she went into B’s room and found a backpack in B’s wardrobe containing letters, SD cards, K’s missing rings, and some lingerie.[19] K said she believed the letters were written by the accused because they contained several stylistic mannerisms that were unique to the accused, including a nickname for K that only the accused used, and the number ‘2’ used in place of the word ‘to’.[20] K observed that the handwriting was ‘childish-like’, and not particularly neat, which was consistent with her previous observations of the accused’s handwriting.[21]
[19] T 28.11-28.
[20] T 28.33-29.4.
[21] T 29.2-4; Exhibit P6.
K contacted her eldest daughter T to show her the contents of the backpack, then together the two of them took the SD cards to K’s neighbour’s house (who was an ex-detective) in order to view the contents of the SD card.[22]
[22] T 29.36-38.
K recalled viewing the first video contained on the SD card. She observed footage taken by the accused of B performing fellatio on him while he lay on a bed.[23] K said that in this video, B had long hair styled in a bun and wore lingerie.
[23] T 30.4-15, Exhibit P10.
K was shown screenshots taken from the video, which were labelled Exhibit P7. K was able to identify B as the female depicted in the screenshots, pointing to her septum piercing and black corded necklace as identifying features, and the accused as the male in the screenshots, saying that she recognised his facial features.[24]
[24] T 35.9-33.
In cross-examination, K agreed that she had not taken any notes in February 2020 as to the length of B’s hair, and that later in February B was not living at home.
When shown her statement to police dated 5 February 2021, K agreed that she had told BS Cheetham that B’s hair in February 2020 would have been shoulder level.[25] K gave evidence that she recalled discussing the length of B’s hair with Sergeant Robb when she initially made a complaint in 2020 but acknowledged there was no reference to that in her statement.
[25] T 42.4-7.
When asked whether it was the case that she could not really remember how long B’s hair was in February 2020, K said that she could remember and that it was shoulder-length.[26] She agreed that when she spoke to BS Cheetham she was trying to convey that B’s hair could not have grown back to the length as is seen in the video between shaving her head and February 2020.[27]
[26] T 46.36-38.
[27] T 48.19-21.
K agreed that she had formed a strong dislike for the accused since finding the video, and that she had prepared a victim impact statement wherein she expressed her feelings about the accused’s behaviour.[28] She said she was not aware that the accused could not receive a suspended sentence if found guilty of the alleged offending but was aware that he would receive a sentence of imprisonment.[29]
[28] Exhibit D8; T 49.11-15.
[29] T 49.25-34.
When asked whether her dislike for the accused could have affected her estimation of how long she believed B’s hair was when she gave a statement to police in February 2021, K said she gave the statement to help get justice for the time lost with her daughter and grandchildren.[30]
[30] T 50.27-35.
K agreed that B’s hair could be described as shoulder-length in Exhibit P5 and that B did not cut her hair between November 2019 and February 2020. However she disagreed with the suggestion that B’s hair could have been longer than shoulder-length by February 2020, or that she was underestimating the length to assist in the prosecution of the accused.[31] Ultimately she conceded that B’s hair may have been a little bit longer than shoulder-length, but that there was ‘no way in hell she’d be able to get it into a topknot bun like she has in these other pictures’.[32]
[31] T 51.8-13.
[32] T 52.14-17.
K was asked about a proofing meeting that took place in February 2022 in which she told prosecution that Exhibit P5 was a screenshot from a film taken about six months after B shaved her head. K believed that she had been confused at the time of proofing.[33] K agreed that she could not remember the date on which she received the screenshot, only that she received it in November 2019, but said it was not possible that the footage from which it was taken could have been taken any earlier than November of 2019. She repeated that she could be certain of this based on the size of her granddaughter. K said she no longer had access to the Messenger conversation.[34]
[33] T 65.14.
[34] T 67.36-37.
K was asked about an argument she had with B about some hair extensions that B had thrown into the bin.[35] K said that she could not recall this argument, and that while it was possible such an argument could have occurred, ‘B never ever wore hair extensions’.[36]
[35] T 52.18-20.
[36] T 52.23-24.
K agreed that she had only seen the video containing the alleged offending on one occasion, and that she had not watched the other videos on the hard drive.[37] She said she was first shown the screenshots in Exhibit P7 on the morning she attended court to give evidence, and that she was asked by prosecution at that time if she recognised anyone in the screenshots.[38] K disagreed with the suggestion that she could be mistaken about the identity of the person in the screenshot.[39]
[37] T 53.16-27.
[38] T 53.33-54.1.
[39] T 55.5.
It was suggested to K that, as two years had elapsed since she viewed the footage depicting the alleged offending, it was possible she was mistaken in her belief that the screenshots in Exhibit P7 were screenshots from the same video, and that they could be from another video. K disagreed, saying that she was confident that the screenshots were indeed taken from the same video, observing that B’s face in the screenshots was ‘chubbier’, and that therefore the footage must have been taken before B lost weight after becoming addicted to ice.[40]
[40] T 54.19-22.
Evidence of T
T is B’s eldest sister.[41] She said she was familiar with the accused as she had known him since she was in about year 7 at primary school.[42]
[41] T 87.7-15.
[42] T 87.35-36.
She had moved out of home before the accused moved into her parents’ house, however she would regularly attend the family home during the period the accused lived there.[43] T recalled that the accused would be present when she attended the house, and that he ended up being like a part of the family, like a brother they never had.[44] He would celebrate birthdays and other events with the family.[45]
[43] T 88.24-31.
[44] T 89.3-5.
[45] T 89.6-8.
She said that as B was growing up, she had long hair that reached halfway down her back and would wear it loose, in a ponytail, or up in a bun.[46]
[46] T 89.27-32.
She first saw B with a shaved head in early February 2019, when B forwarded pictures of herself via Facebook Messenger (Exhibit P14).[47] On 16 September 2019 she had a conversation with B on Facebook Messenger during which B sent a video of herself, with filters applied, ruffling her fingers through her hair.[48] A screenshot taken of that conversation is Exhibit P15.
[47] T 90.1-6.
[48] Exhibit P13, Exhibit P14, T91.20-21.
T described B’s hair as being about mid-length, between her ear and her shoulder in February 2020.[49]
[49] T 95.13-18.
On 10 February 2020 her mother showed her what she had discovered in B’s room, namely a number of USBs and hard drives.[50] T accompanied K to the neighbour’s house to ask for some advice.
[50] T 92.7-11.
T said that she and her mother viewed approximately 30 seconds of a video on one of the devices in which B was performing fellatio on the accused. [51] In the video B appeared to have her hair up in a bun just on top of her head.[52] T then attended at the Elizabeth Police Station with her mother to give a statement and hand in the devices.[53]
[51] T 93.2-14.
[52] T 93.2-18.
[53] Exhibit P16.
T was asked to identify the male and the female who appeared in the screenshots in Exhibit P7. She identified B as the female by her facial features, her hair, her nose ring and her necklace. She identified the male as the accused, by his facial features and the gap in his teeth.[54]
[54] T 95.3-12.
In cross-examination, T was provided with a copy of her statement dated 2 February 2022. In that statement T had said:
On 16 September 2019, B sent me a video, through the Facebook Messenger, of her playing with her hair. You can see in this video that her hair is starting to grow back, but it’s still quite short. I’ve taken a screenshot of this video and it is attached to the statement as an annexure, annexure B refers. I can’t really recall how B looked throughout the next 12 months as it was quite some time ago.[55]
[55] T 100.5-13.
T agreed she had no reason to take stock of the length of B’s hair in February 2020, and that the first time she was asked to make a comment about the length of B’s hair in 2019 or 2020 was when police asked her to comment in February 2022.[56] T denied she was reconstructing a memory of how long B’s hair was, based on the photo from the Facebook Messenger conversation.[57] She said she had seen B after September 2019 and before 10 February 2020 on a number of occasions.[58]
[56] T 100.20-26.
[57] T 100.32-35.
[58] T 101.18-19.
When T was asked whether she had only seen one video, she said she had looked at the other files after being informed by the receptionist at the police station that she would not be able to hand in the hard drive as evidence until she had viewed all the files.[59]
[59] T 103.
When asked whether Exhibit P7 was described to her as screenshots of the video of her sister and the accused performing a sexual act when provided to her by BS Cheetham that morning, T said BS Cheetham had merely told her that they were screenshots of faces. She denied that she had formed the view that they were screenshots of the video of a sexual act being performed.[60] T agreed that she could not say with any certainty that the screenshots in Exhibit P7 were taken from the video that she watched on 10 February 2020 with her mother.
[60] T 105.4-8.
T agreed that she disliked the accused now, given the circumstances, but denied it was because of his marriage to her sister and the fact that her family no longer has a relationship with B. She denied her dislike of the accused may have affected her memory of the length of B’s hair in 2020.[61]
[61] T 108.12-22.
Evidence of BS Jonathan Cheetham
BS Cheetham was the investigating officer, becoming involved in the matter on 10 February 2020 when K attended police.
He said that two videos which depicted a female performing fellatio on a male were located on a black SP hard drive, and on an SD card.[62] The same video was depicted on both devices. The file name of the video was 20190103_120102.mp4 (the File Name).[63]
[62] T 58.26-30.
[63] Exhibit P9, Exhibit P10; T 59.13.
On those devices he also located videos of a sexual nature involving the accused and B, however formed the view that B was of legal age at the time of filming.[64] He said his conclusion was based on B’s ‘appearance at the time, and also the file information attached to the files’.[65]
[64] T 60.18-26.
[65] T 60.27-30.
He said he had made several unsuccessful attempts to obtain statements from B.
Evidence of Senior Constable (SC) Timothy James Holmes
SC Holmes worked at the Digital Evidence Section of SAPOL.
He commenced examination and extraction of the SD card and hard drive in this matter on 14 April 2020 and provided reports about the contents of each device.[66]
[66] T 71.25-27, Exhibit P12; Exhibit P13.
One of the videos was duplicated on each of the two devices. In his reports, he detailed the original File Name, Path, File Format, File Size, Date Created, and Date Modified for each file on both devices. He said that the File Name refers to the original name attached to the file as it is named on the device.[67] The Path details the location of the file within certain other folders on the device, and in Exhibit P12, relevant to the hard drive, the Path was recorded as 2019K and within that there was a file called TYUM, and another forward slash in which that file was located. File Format is the type of file, which in the case of 20190103_120102.mp4 was a video, while File Size referred to the size of the video and corresponds to its length and resolution.
[67] T 73.37-75.4.
Date Created refers to the date that the file was created on the storage device, namely the date on which that file comes to be on the extracted device. Exhibit P12, relevant to the hard drive, showed that the Date Created was 2 October 2019 at 9:25:52pm. This file was copied to the hard drive on which it was found on that date, and was an exact match to the file detailed in Exhibit P13 found on the SD card.[68]
[68] T 78.11-23.
Date Modified is issued when the file itself is altered in any way. If the contents of the file is changed, edited, or updated, Modified Date will change.[69] SC Holmes agreed that if a file was added to an SD card on 3 January 2019, that would be the Created Date. If, five months later, that file was edited, the Modified Date would change to that date.[70] SC Holmes explained that the difference between the Created Date and Modified Date is that when a file is copied to another device, the Modified Date does not change if none of the metadata has changed. While the new Created Date will be different, the Modified Date remains the same as the original.
[69] T 76.7-16.
[70] T 76.20-26.
SC Holmes explained that Accessed Data is a looser file attribute than Created and Modified. Any application opening the file can change the Access time and date, for example, even a right click on the file or use of a virus checker accessing any part of the metadata to that file.[71]
[71] T 75.30-37.
SC Holmes explained that Exhibit P13, relevant to the SD card, details that the file was put on the device on 3 January 2019 at 8:28:41pm, however ‘if a video camera was made to create that video file, the date and time [shown in Exhibit P13] would depend on the date and time of the video camera’.[72]
[72] T 77.5-12.
SC Holmes agreed that he was unable to verify whether the date and time in the report was accurate as he was not able to analyse the device that created the file originally.[73]
[73] T 77.14-17.
In cross-examination SC Holmes said the fact that both reports detail that the file was last accessed at 12:00:00am was not unusual, as ‘certain file systems and operating systems may or may not have any access data at all…’, and ‘access dates are quite unreliable to determine anything’.[74]
Defence witness
[74] T 81.6-14.
Evidence of Lisa Tehan
Ms Tehan works as a paralegal.[75] She said she regularly wears clip-in hair extensions and that it is possible to purchase hair extensions which are more permanent. She said it takes approximately 45-60 minutes to install her hair extensions, and 15 minutes to remove them.[76]
[75] T 112.5-11.
[76] T 115.21-22.
Ms Tehan said that, when installed properly, one should not be able to see that a person is wearing hair extensions and that when hair is pulled into a bun, extensions are not necessarily identifiable or able to be differentiated from the wearer’s natural hair.[77]
[77] T 115.34-38.
Analysis
Has the prosecution established the identity of the B and the accused in the video beyond reasonable doubt?
The prosecution submitted that the evidence of K and T was admissible as evidence of fact based on the intimate familiarity each had with B and the accused and was therefore not simply evidence of opinion. Each had a specialised knowledge and experience of the appearance of B and the accused, arising out of their unique position as B’s mother and sister, and living with and having a close relationship with the accused.
The prosecution sought to distinguish the decision of Smith v The Queen[78] where the prosecution case as to the appellant’s identity was based on the evidence of two police officers who viewed stills taken from security footage and purported to identify the appellant. Gleeson CJ, Gaudron, Gummow and Hayne JJ held that:
Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision‑maker permitting substitution of the view of another, for the decision‑maker's own conclusion.
In this case the evidence of the police was irrelevant and should not have been received. No question of admissibility had to be considered.
[78] (2001) 206 CLR 650 at [11]-[12].
I accept that the facts in Smith are quite different to those before me and that it is well established that witnesses with sufficient familiarity of an accused or a victim can give evidence of identification based on familiarity.[79]
[79] See R v Marsh [2005] NSWCCA 331 at [18] and [31]; Nguyen v The Queen [2007] NSWCCA 363; and R v Miller [2015] NSWCCA 206.
K, as B’s mother, had intimate familiarity with her daughter’s appearance and was therefore at a distinct advantage. K described in detail the ways in which B styled her hair both prior to and after shaving it, a time when her daughter lost weight, and the jewellery B is seen wearing in the exhibited photographs and the video. As to the accused, he was a friend of the family and moved into the family home in 2016 for about two years. He was treated like family. T lived with B up until T moved out in about 2016 when B would have been around 14 years of age. T referred to B’s facial features, her hair, nose ring and her distinctive necklace as the features by which T was able to recognise B. She described the accused as being like a brother she never had, and his presence at family events where she was in attendance. She said she was able to identify the accused by reference to his facial features, and in particular, a gap in his teeth.
The prosecution argues that even if I were to reject K and T’s evidence as to identification, I could still be satisfied of B’s identity in the video. In each of the photographs, B can be seen wearing the distinctive necklace with the purple gem. In Exhibit P4, B had a septum piercing. In the video the female performing the act of fellatio has a septum piercing and is wearing a black necklace with a purple stone and a gold necklace to which K referred.
The similarity in appearance between the female in the video and the photos must be evaluated in the context of where the electronic devices were found. The SD card and the hard drive were found in the backpack in B’s bedroom. In the backpack were letters which were written by the accused. K recognised these as being in the accused’s handwriting, supported by the handwriting and fingerprint evidence.
While acknowledging that reference in the letters to falling in love with someone too young could have been made with respect to being in a relationship with a 17 year old daughter of family friends, it is, in the prosecution submission, a piece of circumstantial evidence which falls within the wider mix and is at least consistent with an admission to being in a relationship with someone underage.
In his address, defence counsel accepted that both K and T had an advantage over me as regards the identification of B in the video. He argued that B was not subpoenaed to come to court for me to make an assessment of her appearance and there was nothing before me as to how she looked either now or in February 2020. Each of the photos that had been tendered showed B looking very different and I could not be satisfied that the screenshots of the video shown to K and T are taken from the video they had briefly watched before they went to police.
K said that B was wearing lingerie in the video, whereas I observed that the video does not show this one way or another. The identifications made of B in the screenshots were, defence submitted, made in the most suggestable of circumstances. K and T were given a copy of the screenshots before giving evidence in court. Defence counsel argued that each, unsurprisingly, made the identification having been primed to do so by receiving the screenshots in advance. In circumstances where I do not have my own evidence to make an assessment as to whether it is B and I am relying solely on K and T, I would not, in defence counsel’s submission, be able to find it proven beyond reasonable doubt that it was B on the video. I could not be satisfied that the screenshots that have been tendered are of the same video that was viewed in February 2020. There were other videos on the material police found, giving rise to the possibility that K and T viewed a different video to that shown in Exhibit P10. Further, I have not had an opportunity to make an assessment of whether K and T could be mistaken because B has not given evidence, nor has any photograph of her been taken by police at a particular time. Defence counsel argued that I could not look at the photographs that have been tendered and conclude it must be the same person, because B’s appearance is quite different in all of them.
Defence counsel did however ultimately concede that there might well be some force in the prosecution submission about the necklaces shown in the photographs and the video such that the combination of all of the evidence would allow a proper conclusion that it was B in the video.
I accept that there is a very strong evidential basis upon which I can find that both K and T have an intimate knowledge of and familiarity with both B and the accused’s appearance. They have had the advantage of a longstanding relationship with both. The familiarity each has with B and the accused is such that their evidence is elevated to evidence of fact, not simply evidence of opinion. I accept that each were in the best possible position to give evidence as to how B appeared at certain times and at certain ages which is a distinct advantage over myself.
I conclude that the evidence of both K and T was admissible as identification evidence. Comparison of the facial features in the various photographs and video, together with B’s jewellery and the septum piercing, together with the location of the devices, provide a very cogent evidentiary basis for me to find beyond reasonable doubt that B and the accused are represented in Exhibit P10.
The creation date of the video
The prosecution argued that the video was added to the SD card device on 3 January 2019, that is, prior to B’s 17th birthday on 4 February 2019, which provided a piece of circumstantial evidence that tended to support their assertion that B was 16 years old at the time of the video.
The prosecution submitted that I do not need to be satisfied that the Created Date of the video on the SD card device was in fact accurate beyond reasonable doubt, as the evidence of the creation date properly characterised, is not an indispensable link to the chain of reasoning where the principles in Shepherd v The Queen[80] would be applicable. The creation date, the prosecution argued, is a strand in the rope of reasoning, and therefore I do not need to make findings beyond reasonable doubt in relation to that piece of evidence before I can use it in considering whether the prosecution has proved beyond reasonable doubt that B was 16 years of age.
[80] (1990) 170 CLR 573.
In R v Singh,[81] in a discussion of whether a Shepherd direction was required, Doyle J (with whom Peek and Parker JJ agreed), explained that in a case that is based on circumstantial evidence, no particular standard of proof of individual facts and items of evidence is required, other than where the case concerns an ‘indispensable intermediate fact’. Before me the prosecution argued that even without the creation date evidence, I could still be satisfied beyond a reasonable doubt that B was 16 years of age at the time and as such, the creation date evidence stands as a strand in the rope of reasoning rather than a link in the chain. There are, the prosecution argued, a number of evidential features supporting the accuracy of the creation date.
[81] [2019] SASCFC 51.
Defence counsel argued that the date on the metadata depends on the device depositing the video. Here there is no evidence about which device put the video on the SD card or hard drive. The video could have been taken at any point until the data on which the video was found or perhaps until B had an opportunity to put it into her bedroom.
As to whether I could use the metadata evidence as circumstantial evidence to date the video, the defence argued that if you have one piece of evidence that does not date the video and if the appearance of B’s hair in the video was not capable of dating the video, the two cannot be combined to find beyond reasonable doubt that the video was filmed on a particular date.
SC Holmes said that the Created Date is the date that a file was created or transferred onto a particular device. The prosecution argued that there was no challenge to SC Holmes’ evidence that the video was added to the SD card on 3 January 2019. In my view, that the file name of the video as it appeared on the devices found in B’s room include reference to a date that is arguably 03/01/2019, can be of little if any evidential value. The same must be said of the Created Date on the SD card. Without access to the recording device and confirmation that the date on the device was accurately set, it would, in my view, be unsafe to place any reliance on that date in this matter.
The photos
I have found it difficult to assess the true state of B’s hair length from the limited number of photos tendered by the prosecution. Some were taken or have been altered with the use of filters, some are screenshots from videos, and none are date stamped with a date from the device on which they were taken. The photo or video of the screen shot in Exhibit P4 has been deleted.
Clearly in March 2018, as shown in Exhibit P3, B’s hair was very long. I accept that on 29 January 2019 she shaved her hair completely, such that it was no more than stubble.
Exhibit P4 was said to have been received from B by K in about March 2019, which showed B’s hair to have grown such that it appears to be able to be pulled back from her face, however the length of B’s hair cannot be accurately assessed.
In the photos received by T dated 16 September 2019, said to be of B, which I am only able to accept given they show her wearing the distinctive necklace to which I have referred, show her with short hair to the nape of the neck, which in my assessment does not appear to be any longer than the hair shown in Exhibit P4, said to have been taken in March 2019.
The photograph in Exhibit P5 is said to have been received by K in November 2019. It shows B’s hair at what I would describe as reaching just to the top of B’s shoulders. The photograph has been dated by K via the appearance in the original photo or video (K described it as either) of her grandchild, who is not in the photo, but rather the child is said to have been shown sitting on the bed in the original video. K also described having seen the photo or video on her daughter’s phone which showed the date on which the photo or video was taken. I note however that K had told police that she thought the video was taken six months after B had shaved her head. In my view, it was unlikely K would remember the date when she was shown the video as it would have been of little significance at the time.
In cross-examination, T agreed that she told police in February 2022 that she could not recall how B looked in the 12 months after 16 September 2019. The first time she had been asked to comment about the length of B’s hair in 2019 and 2020 was in February 2022. She said she could vaguely recall how long her hair was in February 2020.
Having carefully assessed each of the photos and the evidence given by both K and T, I cannot be satisfied that the photographs accurately demonstrate the progression of B’s hair growth from January 2019 through to November 2019.
Leaving aside the photographs, K has given evidence about her recollection of B’s hair length. K is understandably hurt and angry about what she perceives to be the accused’s betrayal, regardless of whether the video was taken of her daughter when aged 16 or 17. Both she and T have lost B and her children from their lives. I do not suggest that either K or T have lied to punish the accused. Given B’s marriage to the accused and her apparent unwillingness to be involved in these proceedings, such a motive on K or T’s part would seem counterproductive.
The first time that K is recorded as having made an assessment of the length of B’s hair was in February 2021, when she said that at the time she found the video in February 2020, B’s hair was shoulder length. While I have no doubt that K was doing her best to recollect accurately, and the fact that her daughter shaved her head, may mean she paid greater attention to her daughter’s hair than one ordinarily would, it would be surprising in my view for her to have paid particular regard to the length prior to finding the video in February 2020. The evidence about the length of B’s hair was understandably imprecise given the time between making any observation, being asked to recollect any observation, and giving evidence. For those reasons, I have found it difficult to have confidence in the accuracy of the evidence and am left with some concern that there has been at least some element of reconstruction as to the length of B’s hair between the time she had shaved her hair and the time the video was discovered.
Length of B’s hair in the video
The video of B performing the act of fellatio shows her with long hair, drawn up from all sides into a small bun at the top of her head. I am in no doubt that the bun is not created by hair extensions, and I reject the defence submission on that topic as ‘mere conjecture’ as discussed in R v Bayden-Clay.[82]
[82] (2016) 258 CLR 308.
Given the view I have taken of the photographs and the evidence of K and T regarding the length of B’s hair, the issue is whether, given the length of her hair in January 2019, it could have grown to the extent seen in the video, such that the video was taken between the time B turned 17 up to February 2020 when the video was found. As I have said earlier, I have accepted that in January 2019, B had shaved her head.
In the video, B appears to be younger than the image of her seen in Exhibit P4, but it is difficult to pay regard to that assessment given I have nothing to properly assess the image against. All images of B that are before me are dissimilar in a number of respects, and as I have said earlier, were it not for her jewellery, I could not, with respect to some, have concluded they showed the same individual.
The length of B’s hair in the video is inconsistent with the length of her hair shown in Exhibit P5. Even allowing for three months of hair growth, it would be difficult to accept that B’s hair would have grown to the extent that it could be styled as it was in the video footage. However as discussed above, I have been left with some concern as to the accuracy of the date attributed to that photograph.
While I remain deeply suspicious that the video predates B’s 17th birthday, suspicion is not enough. There is no expert evidence on the topic of hair growth, the rate of which would in any event likely differ between individuals. There is no evidence as to how long hair needs to be to make it into a bun like that shown in the video. There was no evidence to show B’s hair in around February 2020 to assist in determining whether such a style could have been achieved. Ultimately, I have found that I cannot, on the evidence that is before me, be satisfied beyond reasonable doubt as to the length of B’s hair in the video. I cannot exclude the possibility of B’s hair being of sufficient length to be styled as seen in the video after it had been shaved and before February 2020 and must therefore find the accused not guilty.
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