R v Tamawiwy
[2015] ACTSC 274
•9 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Tamawiwy |
Citation: | [2015] ACTSC 274 |
Hearing Date(s): | 27 July 2015 |
DecisionDate: | 9 September 2015 |
Before: | Burns J |
Decision: | See [79]-[81] |
Category: | Procedural and other rulings |
Catchwords: | CRIMINAL LAW – Particular Offences – sexual offences – using electronic means to deprave a young person – using a carriage service to menace, harass or offend – sexual intercourse without consent – committing an act of indecency without consent. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – application to adduce coincidence evidence. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 60, 66, 67 Criminal Code 1995 (Cth) s 474.17 |
Cases Cited: | O’Keefe v R; R v O’Keefe [2009] NSWCCA 121 Pfennig v The Queen (1994-1995) 182 CLR 461 |
Parties: | The Queen (Crown) Billy Bartolomeus Tamawiwy (Accused) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Lawton (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number(s): | SCC 289 of 2014; 290 of 2014 |
BURNS J:
According to an indictment dated 25 March 2015, the accused is charged with three counts of using electronic means to deprave a young person contrary to s 66 (1) of the Crimes Act 1900 (ACT), eight counts of using a carriage service to menace, harass or offend contrary to s 474.17 of the Criminal Code 1995 (Cth) (although I note that, according to the Crown Case Statement lodged with the Court on 26 March 2015, the accused is charged with only seven counts of this offence), two counts of sexual intercourse without consent contrary to s 54 of the Crimes Act 1900 and one count of committing an act of indecency without consent contrary to s 60 of the Crimes Act 1900.
He has, as far as I can see, not yet been arraigned on the indictment, but he is listed to take his trial on 21 September 2015. I note that Counts 13 (CC14/9502) and 14 (CC14/9291) are contained on a transfer file SCC 290 of 2014, whereas the other charges are contained on the parent file SCC 289 of 2014. According to the bench sheets from the Magistrates Court, it appears that pleas of guilty were entered to both Counts 13 and 14 on 21 October 2014 before those charges were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT) on 11 December 2014, presumably for sentence. Despite this, those Counts remain on the indictment. I also note that, in the Crown Case Statement, Count 13 is identified as referring to charge number CC14/9737, which does not match with the charge number identified on the indictment, being CC14/9502. Charge number CC14/9737 does not appear on the indictment at all. Investigations into the electronic filing system at this Court indicate that charge number CC14/9737 does not exist. I merely note these discrepancies and will leave them for the parties to resolve.
By an application dated 20 May 2015, the Crown seeks orders that it be permitted to adduce tendency evidence and coincidence evidence outlined as Incidents 1 to 9 of the Notice of Intention to Adduce Tendency Evidence dated 20 May 2015 (the tendency notice) and the Notice of Intention to Adduce Coincidence Evidence (the coincidence notice).
By a separate application dated 30 June 2015, the accused seeks orders that the indictment be severed and that Counts 7, 8, 9 and 10 be listed for a separate trial. It was accepted by counsel for the accused that, if the Crown’s applications to lead tendency and coincidence evidence were successful, the application to sever the indictment would fail. It is therefore appropriate to initially consider the Crown applications. Before doing so, I will set out the Crown case against the accused, by reference to the Crown Case Statement.
The Crown Case
The Crown alleges that the accused used two Facebook accounts, one under his own name and one under the name of “Tayla Edwards”. It is alleged that, between November 2013 and December 2014, the accused used these accounts to contact a number of people. During these communications it is alleged that he sent some of them sexually indecent messages and images.
Between 16 November 2014 and 1 December 2014, it is alleged that the accused contacted MN on Facebook using the “Tayla Edwards” account. There was a brief communication where the accused sent MN a photograph of a female with her breasts exposed.
Between 24 August 2014 and 28 August 2014, it is alleged that the accused contacted DG on Facebook using the “Tayla Edwards” account. It is alleged that the communications were sexualised and included a photograph of a female with her breasts exposed.
Between 27 August 2014 and 1 December 2014, it is alleged that the accused contacted SJ on Facebook using the “Tayla Edwards” account. As a result of conversations between them, SJ engaged in sexual intercourse with the accused so that he could engage in sexual intercourse with Tayla Edwards and two of her friends. The accused recorded a video of the sexual intercourse. It is alleged that the accused, posing as Tayla Edwards, sent a threatening Facebook message as well as “SnapChats” to SJ stating that, if he did not engage in sexual intercourse with the accused daily, he would send the video to his family, friends and workplace. SJ refused and it is alleged that the accused sent the video to SJ’s 13 year old brother and two friends.
The charges relating to KH
During November 2013, it is alleged that the accused used the “Tayla Edwards” Facebook account to send a friend request to KH, who was then 15 years old. KH accepted the request. Between 22 November 2013 and 7 December 2013, it is alleged that the accused instigated contact with KH as “Tayla Edwards” through private messages on Facebook. During a conversation on 23 November 2013, KH told the accused he was 15 years old. Initially the conversations were general in nature, however, the accused progressed them to be sexualised. During these conversations, the accused instigated the following topics of conversation with KH:
(a)whether KH was dating anyone;
(b)what KH’s sexual orientation was;
(c)whether KH wanted to go on a date with “Tayla Edwards”;
(d)whether KH wanted to go to “Tayla Edwards’” house as her parents were away;
(e)whether KH would kiss “Tayla Edwards”;
(f)whether KH had ever had a sexual experience with a male;
(g)whether KH could swap “sexy pics” with “Tayla Edwards”;
(h)whether KH had ever engaged in sexual intercourse;
(i)whether KH and “Tayla Edwards” could engage in sexual intercourse; and
(j)telling KH that Billy Tamawiwy liked KH.
When KH confronted the accused about not being Tayla Edwards, or even female, it is alleged that the accused became angry and verbally aggressive towards him. On 6 December 2013, the accused, using the “Tayla Edwards” account, blocked KH on Facebook. That same day KH received a Facebook friend request from the accused using the Billy Tamawiwy account, which he accepted.
These events are the basis of Counts 1 (XO15/30204) and 2 (CC14/9361) on the indictment.
The charges relating to MN
On 17 August 2014, it is alleged that the accused contacted MN, then 16 years old, using the “Tayla Edwards” account on Facebook. After a short general conversation, MN said that he had to go, but the accused tried to convince him to stay online and sent him a photograph of a female with naked breasts exposed as part of the enticement. It is alleged that the accused then became verbally aggressive and abusive towards MN. This is the basis of Count 3 (CC14/9288) on the indictment.
The charges relating to LC
It is alleged that, prior to 14 August 2014, the accused, using the Billy Tamawiwy Facebook account, sent a friend request to LC, who was then 15 years old. LC accepted this request. During a conversation on 17 August 2014, LC told the accused he was 15 years old. During the conversation, the accused stated that he was on SnapChat “talking to those horny girls”. After this conversation, LC had no further contact with Billy Tamawiwy despite receiving messages.
It is alleged that, between 13 August 2014 and 1 September 2014 the accused, using the “Tayla Edwards” Facebook account, instigated conversations with LC. On 17 August 2014, LC told the accused he was 15 years old. At first the conversations were general in nature, however it is alleged that the accused progressed them to be sexualised. During the conversations it is alleged that the accused instigated the following topics:
(a)LC’s sexual orientation;
(b)that fellatio is better from a male than a female;
(c)that bisexual intercourse was better than heterosexual intercourse;
(d)that LC should engage in fellatio with a male like [Tayla Edwards] did with a female;
(e)whether LC would engage in sexual acts with another male, or become bisexual or homosexual to date Billy Tamawiwy;
(f)asking LC about his sexual experience;
(g)asking LC if he would “hook up” with Tayla Edwards; and
(h)asking LC if he would “hook up” with Tayla Edwards and two of her friends.
It is alleged that the accused also sent LC the following photographs, despite LC saying that he did not want to see them:
(a)two photographs of naked buttocks stating it was of Billy Tamawiwy. The accused then attempted to engage in conversation with LC about this;
(b)a photograph of an erect penis, stating that it was a “leaked” picture of Billy Tamawiwy. The accused then engaged in conversation with LC about it, but LC did not reply; and
(c)a photograph of a female with her cleavage visible in the top she was wearing.
It is alleged that, when LC did not reply to the accused, he would become verbally abusive towards him. These events are the basis of Counts 4 (XO15/30205) and 5 (CC14/10329) on the indictment.
The charges relating to DG
It is alleged that, on 25 August 2014, the accused, posing as “Tayla Edwards”, contacted DG on Facebook. DG was then 17 years old. It is alleged that the conversation was initially general in nature, but quickly became sexualised, with the accused offering to have sexual intercourse with DG, which he declined. The accused went on to say that “Tayla Edwards” and two of her friends would engage in sexual intercourse with him if he did the same with a male first. DG again declined. It is alleged that the accused continued to attempt to entice DG to engage in sexual intercourse with one of “Tayla Edwards’” male friends named “Chris Horton”, or at least meet up with him. As part of this enticement, it is alleged that the accused sent DG a photograph of a female exposing her breasts.
On 27 August 2014, it is alleged that DG agreed to meet with “Chris Horton” with the intention of telling him he was not interested in engaging in sexual intercourse with him. It was agreed, through the Facebook account of “Tayla Edwards”, that DG would meet “Chris Horton” at 72 Degree Cafe, 72 Chandler Street, Belconnen that day. At about 6.30 pm that day, it is alleged that DG met the accused, pretending to be Chris Horton, at the cafe and told him he was not interested in engaging in sexual intercourse. It is alleged that the accused became angry, and DG left the cafe. After leaving, it is alleged that DG received a number of threatening and harassing messages through Facebook from the accused pretending to be Tayla Edwards. The accused said that “Chris Horton” would report DG to the police. Shortly after that, the accused blocked DG using the “Tayla Edwards” Facebook account.
These events are the basis of Count 6 (CC14/9289) on the indictment.
The charges relating to SJ
It is alleged that, prior to 29 August 2014, the accused sent Facebook friend requests to SJ using both the Billy Tamawiwy and “Tayla Edwards” accounts. Both of these were accepted. On 29 August 2014, it is alleged that the accused, as “Tayla Edwards”, began a conversation with SJ through Facebook, which became sexually explicit. During one exchange, the accused sent SJ a picture of a female, stating it was Tayla Edwards. The accused asked SJ if he was homosexual or bisexual, and SJ replied he was neither. The accused, as “Tayla Edwards”, went on to say she was bisexual and was going to a bisexual gathering later with 80 other females, but that she was only interested in bisexual males and females. SJ replied that was a shame because he could have given her the time of her life. The accused then told SJ that there were males who were willing to engage in sexual intercourse with males in order to be invited to the bisexual gatherings, and that, at the gatherings, there were orgies, food, alcohol and cannabis, all of which were free.
The accused then sent SJ two more photographs. One was of five females dressed in football style shirts and long socks with the caption ”pic from the last gathering of the bi girls haha”. The second photograph was of a female dressed in the same outfit, which the accused stated was “Tayla Edwards”.
The accused continued to try to convince SJ to engage in sexual intercourse with a male, stating that, if he did, “Tayla Edwards” would engage in sexual intercourse with him. He refused. The accused then stated that, if SJ engaged in sexual intercourse with a male, “Tayla Edwards” and two of her friends “Emily” and “Bella” would engage in sexual intercourse with him. The accused stated that SJ would have to kiss a male, receive fellatio from a male, and engage in sexual intercourse by penetrating another male’s anus with his penis in order to have sexual intercourse with “Tayla Edwards”, “Emily” and “Bella”.
Initially, SJ stated he would kiss and receive fellatio from another male, but would not engage in sexual intercourse. The accused stated that SJ would not be bisexual if he did not have sexual intercourse with another male as well. To entice SJ, the accused continued to say there would be free food, cannabis, drinks and sex at the bisexual gatherings and sent him a picture of a female with her breasts exposed, which was said to be “Tayla Edwards”.
Eventually, SJ agreed that he would kiss, receive fellatio and engage in sexual intercourse with another male. It was agreed through “Tayla Edwards” that SJ would meet “Christian” at 11 pm that night at 74 Chandler Street, Belconnen. As the conversation continued, “Tayla Edwards” and SJ spoke about the sexual intercourse that they would engage in later. The accused also sent SJ a photograph of a female, said to be “Emily”, bending over and naked exposing her anus and vagina. The conversation continued in this way, and SJ sent the accused a picture of his semi erect penis. The accused sent SJ a photograph of “Christian’s” naked buttock and further discussed meeting up when SJ left “Christian’s”.
Prior to 11 pm that night, SJ purchased a 750ml bottle of Vodka and consumed three quarters of it at a park in Kaleen. After this, he took a taxi to 74 Chandler Street, Belconnen. Upon arrival, SJ contacted “Tayla Edwards” through Facebook and was told that “Christian” would meet him outside and that “Tayla Edwards” required video evidence and SJ replied “okay whatever”. The accused, as “Christian”, met SJ outside the residence and they went upstairs to his apartment together. During this time, the accused stated he had never done anything like this before and he was just doing it to go to the gathering. When they entered the premises, SJ took off his shirt and lay down on the single bed in the room. The accused started to massage SJ’s back using oil, which made SJ feel uncomfortable and he asked the accused if he could “just get on with it”. Then both the accused and SJ took off all their clothes. SJ began to put on a condom on, however the accused told him that “Tayla Edwards” told him they could not use one and so SJ stopped. The accused kissed SJ until SJ asked him to stop because it made him feel uncomfortable. The accused then put SJ’s penis into his mouth and performed fellatio upon him. SJ had difficulties getting and sustaining an erection and so watched heterosexual pornography on his mobile telephone. This went on for about 10 minutes, before they stopped. This is the basis of Count 7 (CC14/9013) on the indictment.
Then, with SJ seated on the bed, the accused sat so that he was facing him. SJ then penetrated the accused’s anus with his penis, and the accused began to move up and down on it. SJ had difficulties maintaining an erection so that the accused started to masturbate him and SJ masturbated himself before inserting his penis into the accused’s anus again. This occurred on several occasions for about 30 minutes before SJ told the accused he was finished because he could not maintain an erection. This is the basis of Count 8 (CC14/9014) on the indictment.
The accused said that Tayla Edwards told him that SJ had to ejaculate, but SJ said that was not going to happen, so the accused lay on the bed masturbating himself. He asked SJ if he wanted to continue to masturbate him. SJ declined.
Throughout this encounter, SJ saw the accused using a mobile telephone, but believed he was using it for the light function and was not aware the accused was recording him. SJ did not consent to being recorded. This is the basis of Count 9 (CC14/9292) on the indictment.
At about 11.45 pm, SJ left the residence and contacted Tayla Edwards, who told him she could not meet up with him that night as her parents would not let her leave the house. They continued to talk into the early hours of the next morning and planned to engage in sexual intercourse later that day. During the conversation, SJ sent the accused a picture of his erect penis and the accused sent him a photograph of a female inserting one finger into her vagina and one into her anus. They also discussed SJ’s and Christian’s sexual acts.
Just before midday on 30 August 2014, the accused, using the “Tayla Edwards” account, sent SJ a message stating she was horny and asked him if he wanted to “fuck her right now”. She told him to meet her and “Emily” at 3 London Circuit so he could engage in sexual intercourse with them. She provided him with her mobile number as 0478 xxx xxx. They continued to speak about what “Tayla Edwards” and “Emily” would do to SJ when he arrived.
When SJ arrived to 3 London Circuit, he pressed the buzzer for the apartments as “Tayla Edwards” told him to, but there was no answer. The accused then, as “Tayla Edwards”, sent SJ a photograph of him and “Christian” kissing. SJ called the number “Tayla Edwards” had provided him, but it went to the message bank for L.J. Hooker.
Shortly after, “Tayla Edwards”, contacted SJ using SnapChat and threatened to send the videos and photograph of him and “Christian” engaging in sexual intercourse to his friends, family and workplace. The videos, photo and a screen shot of SJ’s Facebook friends list were also sent to SJ.
At about 1.10 pm, the accused, using the “Tayla Edwards” account, sent a message to SJ which stated that:
(a)there was no gathering;
(b)what she did to SJ was revenge for SJ infecting one of her friends with a sexually transmitted infection;
(c)if SJ did not engage in sexual intercourse with “Christian” daily, the video would be sent to the Police, his friends and his workplace;
(d)SJ committed an offence by infecting “Christian” with a sexually transmitted infection; and
(e)it was a lesson to SJ not to treat women like ”sluts”.
SJ contacted “Christian” using his mobile telephone and, during this conversation, realised “Christian” and “Talya Edwards” were the same person and that he was being threatened for sexual intercourse. SJ deleted his Facebook account, the SnapChat application and the accused’s number from his mobile telephone. This is the basis of Count 10 (CC14/9017) of the indictment.
SJ would not have engaged in sexual intercourse with “Christian” if he had known that “Tayla Edwads” did not exist, that he was speaking to the accused, that the accused was “Tayla Edwards” and “Christian”, or if there had not been the promise of sexual intercourse with “Tayla Edwards” and the other females. The Crown alleges that any consent which SJ may have given to engage in sexual activity with the accused was negated by the fraudulent misrepresentation by the accused that a female, Tayla Edwards, existed, and that she and her female friends would engage in sexual intercourse with the accused if he had sex with a male: see s 67 Crimes Act 1900 (ACT).
The charges relating to MJ
On 31 August 2014, SJ was at home with his brother, MJ, aged 13 years. He saw that MJ received a private Facebook message from “Tayla Edwards” through Facebook. SJ snatched his brother’s mobile telephone and read the message. The accused asked if MJ knew SJ. The message also had two video files attached. One video depicted SJ kissing another male and the second video depicted the accused and SJ engaging in sexual intercourse. It showed SJ inserting his penis into another male’s anus. This is the basis of Counts 11 (XO15/30206) and 12 (XO15/30207) on the indictment. I note that the Crown Case Statement also refers to “transferred charge CC2014/9737”, though I assume this is an error. SJ replied that he did not know SJ and then deleted the messages and videos. MJ blocked the “Tayla Edwards” account on Facebook. SJ was scared his family and friends would find out about the incident and felt suicidal.
The charge relating to KT
On 31 August 2014, the accused contacted KT (aged 17 years), on Facebook and asked if he knew SJ. He also sent KT three videos and a screenshot. The first video depicted one male guiding another male’s penis into his anus. After a short time, both males masturbate the male’s penis and they attempt to insert his penis again. Half of SJ’s face is visible at the end of the video. The second video depicts a male thrusting his penis in and out of another male’s anus a couple of times, before they both masturbate him and attempt to insert his penis again. The third video depicts a male thrusting his penis in and out of another male’s anus on a number of occasions. SJ’s face is visible at the end of the video. The accused also sent a screen shot from one of the videos showing SJ’s face. KT told the accused he did not want to watch these, however the accused kept pushing him to. This is the basis of Count 13 (CC14/9502) on the indictment, although it is referred to as charge number CC14/9737 on the Crown Case Statement. This conversation and its content made KT feel disgusted, scared and uncomfortable.
The charge relating to TG
On 31 August 2014, the accused, using the “Tayla Edwards” account, contacted TG as she and SJ were friends on Facebook. The accused asked her if she knew SJ, which she stated she did. The accused then sent her three videos and a photograph. The first video depicted one male guiding another male’s penis into his anus. After a short time, both males masturbate the male’s penis and they attempt to insert his penis again. SJ’s face is visible at the end of the video. The second video depicts a male thrusting his penis in and out of another male’s anus on a number of occasions. SJ’s face is visible at the end of the video. The third video depicts a male thrusting his penis in and out of another male’s anus a couple of times, before they both masturbate him and attempt to insert his penis into his anus again. The accused sent a screen shot from one of the videos showing SJ’s face. “Tayla Edwards” also stated SJ had been dating one of her friends at the time and was very upset.
This contact made TG feel disgusted, offended and violated as she knew SJ from school. This is the basis of Count 14 (CC14/9291) on the indictment, although the Crown Case Statement also refers to “transferred charge CC2014/9737”.
Relevant legislation
The following provisions of the Evidence Act 2011 (ACT) are relevant to the applications to lead tendency and coincidence evidence.
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 –
(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.
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, it is improbable that the events happened coincidentally 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 probate 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.
(1)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 coincidence evidence presented by another party.
Note Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.
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.
(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.
The tendency notice
The tendency notice refers to the allegations set out above, together with a further incident which is not the subject of a charge against the accused, referred to as Incident 9:
Incident 9 (uncharged)
(a)Substance of the evidence:
In June 2014 a person, using a Facebook account of ‘Tayla Edwards’, contacted [UI] (17 years old). They messaged each other on Facebook.
On 31 July 2014, ‘Tayla Edwards’ sent a message to [UI] asking if he knew [ML]. He replied that he didn’t know him. ‘Tayla Edwards’ stated that he went to XXXXX X and asked [UI] to reach out to CD because he was in trouble for trying to buy ‘weed’ and sending photos of his penis. She attached six screen shots of messages which included photos of penises. She asked [UI] to let [ML] know.
(b)(i) Particulars of the date, time, place and circumstances at or in which the conduct occurred:
On 31 July 2014 through Facebook messenger.
The particulars of the tendencies the Crown seeks to prove are:
That the accused had a tendency to have a particular states of mind, namely:
(a) To use the fake Facebook account of ‘Tayla Edwards’ to mislead other Facebook users into believing that he was a girl.
(b) To use the ‘Tayla Edwards’ Facebook account to entice teenage male Facebook users to consider sexual activity with a male.
(c) To use the ‘Tayla Edwards’ Facebook account to deceive other teenage male Facebook users so as to engage in sexual activity with them.
That the accused had a tendency to act in particular ways, namely:
(d) To use the fake Facebook account of ‘Tayla Edwards’, pretending he is Tayla Edwards, to contact teenage male Facebook users.
(e) To use the ‘Tayla Edwards’ Facebook account to entice teenage male Facebook users to try sexual acts with another male.
(f) To use the ‘Tayla Edwards’ Facebook account to suggest to teenage male Facebook users that ‘Tayla Edwards’ will have sexual intercourse with them if they have sexual intercourse with a male.
(g) To use the ‘Tayla Edwards’ Facebook account to send sexually explicit images or other compromising information about [SJ] and [ML] to people they are likely to know.
(h) To use the fake name of ’Christian’.
The coincidence notice
The coincidence notice also refers to the allegations set out above and to Incident 9. In addition, the Crown particularises additional evidence it proposes to rely upon to establish the improbability of events having occurred coincidentally:
On 8 September 2014 police executed a search warrant on the accused’s room – room 1051, 74 Chandler Street, Belconnen. During the search police found and seized a laptop computer and mobile phone. During the search police cautioned the accused and spoke to him. The accused admitted to creating the fake Facebook account of ‘Tayla Edwards’. He admitted to pretending to be ‘Tayla Edwards’ and sending messages to [SJ] stating that if he had sex with a male that he would be able to have sexual intercourse with many girls at a bisexual orgy. He also admitted to sharing the video of him and the accused engaging in explicit sexual intercourse to [SJ’s] friends.
The particulars of the states of mind of the accused and acts performed by him which the Crown will seek to prove by this evidence are:
Particulars of the states of mind sought to be proved by the evidence are as follows:
(a) To use the fake Facebook account of ‘Tayla Edwards’ to mislead other Facebook users into believing that he was a girl.
(b) To use the ‘Tayla Edwards’ Facebook account to entice teenage male Facebook users to consider sexual activity with a male.
(c) To use the ‘Tayla Edwards’ Facebook account to deceive other teenage male Facebook users so as to engage in sexual activity with them.
Particulars of the acts sought to be proved by the evidence are as follows:
(d) To use the fake Facebook account of ‘Tayla Edwards’, pretending he is Tayla Edwards, to contact teenage male Facebook users.
(e) To use the ‘Tayla Edwards’ Facebook account to entice teenage male Facebook users to try sexual acts with another male.
(f) To use the ‘Tayla Edwards’ Facebook account to suggest to teenage male Facebook users that ‘Tayla Edwards’ will have sexual intercourse with them if they have sexual intercourse with a male.
(g) To use the ‘Tayla Edwards’ Facebook account to send sexually explicit images or other compromising information about [SJ] and [ML] to people they are likely to know.
(h) To use the fake name of ’Christian‘.
Consideration
No formal admissions have been made by the accused, so that, at the present time, all matters are in issue, including:
(a)whether these events occurred;
(b)if so, whether it was the accused who was involved as alleged;
(c)if so, whether the complainants consented to engaging in the conduct alleged;
(d)if so, whether that consent is negated by a fraudulent misrepresentation made by the accused, or by a third party with his knowledge; and
(e)whether the accused knew that the consent of the complainant was caused by any such misrepresentation.
Not all of the above matters in issue are relevant to each charge, but all are relevant to at least one charge.
The evidence that the Crown proposes leading is evidence of the conduct of the accused, as set out in the tendency notice. It proposes leading the evidence to establish that the accused had, at the relevant times, a tendency or tendencies to have particular states of mind or to act in particular ways. Those alleged tendencies are set out in the tendency notice, and reproduced at [42] above. By proving that the accused possessed one or more of those tendencies, the Crown seeks to prove a fact in issue in the proceedings against the accused. As I have noted, at the present time, everything is in issue.
Such evidence can only be received if the Court thinks that the evidence will, either by itself or having regard to other evidence to be adduced by the Crown, have “significant probative value”: s 97 (1) (b).
The process of reasoning required in using evidence that an accused person had a particular tendency or tendencies in order to prove that he or she committed nominated criminal offences was described by Simpson J (with whom McClellan CJ at CL agreed) in R v Cittadini (2008) 189 A Crim R 492 at [22]-[23]:
Proof of a tendency to act in a particular way of itself goes nowhere. Evidence that a person had a particular tendency is adduced in order to render more probable the proposition that, on a particular occasion relevant to the proceedings, that person acted in a particular way (or had a particular state of mind); that is, to provide the foundation for an inference to that effect.
Put another way, tendency evidence is tendered to prove (by inference), that, because, on a particular occasion, a person acted in a particular way (or had a particular state of mind), that person, on an occasion relevant to the proceedings, acted in a particular way (or had a particular state of mind).
The term “probative value” is defined in the Dictionary to the Evidence Act 2011 as “the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue”. In order for evidence to be admissible under s 97, it is insufficient to establish that the evidence has probative value; it must have significant probative value.
In determining whether proposed evidence has significant probative value, the Court is engaging in an exercise that is “predictive and evaluative”: R v Fletcher (2008) 156 A Crim R 308. It requires a decision to be made “based on the information and material available to the judge at the time the decision is made. It is a decision involving “a degree and value judgment...”: Fletcher at [36].
In R v Lockyer (1996) 89 A Crim R 457, Hunt CJ at CL said, at 459, that the word “significant” in s 97 means more than mere relevance, but something less than a substantial degree of relevance; it implied evidence which is “important” or “of consequence”. His Honour then said:
To some extent, it seems to me the significance of the probative value of the tendency evidence... must depend upon the nature of the fact in issue to which it is relevant and the significance (or importance) which that evidence may have in establishing that fact.
A fact in issue may be the ultimate fact in issue, or an intermediate fact in a process of reasoning available to the jury to arrive at a verdict of guilty. In R v Vojneski [2014] ACTSC 66, the accused was charged with murdering his girlfriend by stabbing her on multiple occasions with a knife at her home. The prosecution could prove the accused’s presence at the deceased’s home up until about 9.45 pm on the night of her murder. There was evidence from which a jury might conclude that the deceased was murdered at about 10.25 pm. There was evidence from a boarder who lived with the deceased that he had seen the deceased and the accused at the deceased’s home on the night she was murdered, and that they appeared happy.
In Vojneski, the ultimate issue was: was it the accused who murdered the deceased or was it someone else? There were, however, other facts, alleged by the prosecution which quite clearly were relevant to establishing this ultimate fact in issue. For example, the prosecution alleged that the accused had a tendency when angry to use knives to harm people or to damage property. Proof that the accused possessed such a tendency would clearly have significant probative value in a case where it is alleged that the accused’s girlfriend was stabbed to death. Secondly, the prosecution alleged that the accused had tendencies to become quickly angered, to become violent when angered, to become angry and violent when under the influence of alcohol or marijuana, and to become angry and violent when people do not provide him with money for drugs.
There was evidence that the accused had consumed alcohol and marijuana on the night of the deceased’s death. There was also evidence that, in the hours before the deceased’s death, the accused tried unsuccessfully to arrange, by telephone, to obtain drugs on credit. The prosecution also led evidence that the deceased was trying to dissuade the accused from using drugs.
The prosecution case was that the accused became angry when he could not obtain drugs on the night of the deceased’s death, and stabbed her multiple times in a fit of anger using a knife he obtained from her kitchen.
Without evidence of the accused’s tendency to become quickly angered and to act violently when angered, the prosecution case would have been much weaker. The prosecution could certainly put the proposition to the jury that the accused became angry on the night the deceased was murdered, but a jury may well think that entirely speculative without knowledge of the accused’s personal characteristics. These characteristics would be particularly important where, as here, there was evidence that, in the hours leadings up to her death, the deceased and the accused were observed to be engaging happily together. Proof by the prosecution of an intermediate fact, namely that the accused became angry on the night of the murder, was an important part of the prosecution case, without which the jury would have been presented an incomplete and misleading picture.
Similarly, without proof of the accused’s tendency to become angry and violent when he could not obtain drugs, much of the probative value of the prosecution evidence concerning the attempts by the accused to obtain drugs on credit on the night of the murder would have been lost; indeed, the relevance of this evidence would be questionable. To deprive the jury of an understanding of these personal characteristics of the accused would emasculate the evidence of motive called by the prosecution, and would again lead to the jury being presented with an incomplete and misleading picture.
Evidence of the tendencies alleged by the prosecution in Vojneski could not, by itself, prove that the accused committed the murder. The evidence could allow the jury to make findings of fact about the accused, and the way he reacts to certain situations, which, taken with other circumstantial evidence, could allow the jury to conclude that the accused was the murderer.
What gives evidence of a tendency “significant probative value”? Similarity between the tendency and the fact in issue (which may not be the ultimate fact in issue) may be one indicator. It is clear, however, that similarity is not enough; no one would suggest that proof that an accused was a heterosexual who had engaged in sexual activity with women in the past was evidence that possessed significant probative value in establishing that the accused had sexually assaulted a female. A case in point is O’Keefe v R; R v O’Keefe [2009] NSWCCA 121, where the accused was tried in a single trial on four series of charges alleging sexual assaults on separate women in bushland in suburban Sydney between January 2006 and January 2007. In respect of the last series of charges, the substantial, if not only, evidence against the accused was tendency or coincidence evidence arising from the other counts on the indictment. The trial judge identified similarities between each of the series of offences, being:
(a)each victim was jogging or walking;
(b)each offence occurred early to mid-morning on a weekday;
(c)there were similar initial greetings to the victim in each case;
(d)each offence occurred in a recreational reserve/park;
(e)the offender demanded of one of the victims to lift her top, and demanded three of the victims to “show me your tits”;
(f)there had been threats of violence and actual punches to some of the victims; and
(g)the offender, with respect to some of the charges, was reported to be wearing a bike helmet and sunglasses.
On appeal, Howie J, with whom McColl JA and Grove J agreed, spoke of the need to consider the alleged tendency evidence in context at [59]:
The Crown points out, rightly, that the admissibility of tendency evidence cannot be considered in a vacuum. The decision whether to admit the evidence must be considered in the light of the other evidence relied upon by the Crown to prove that the accused was the person who attacked [the final victim]. If the tendency evidence stood alone in identifying the appellant as the offender in the [final series of offences], it would have to be sufficiently peculiar or singular to amount to what has been described as a “hallmark” or “signature” of the appellant such that it would offend common sense to exclude it.
(emphasis added)
His Honour went on to say at [65]-[66]:
A tendency to sexually assault females in secluded locations could not in my opinion have “significant probative value” to justify admission under s 97, even accepting that the gateway through that section is not particularly demanding. There is nothing peculiar about such a tendency that would identify a person with such a tendency as the offender against [the final victim] putting aside any other evidence of a persuasive nature to identify that offender. It would be more peculiar, and, therefore, of significantly greater probative value, if the offender had a tendency to sexually assault females in the presence of members of the public. The addition of “bushland” to the “secluded location” in the description of the tendency was to my mind of no particular significance.
In my opinion the tendency did not gain significant probative value by the additional fact that the offender also had an interest in the victim’s breasts, however that interest might be described. I do not find it peculiar and, hence of any particularly significant probative value, that a person who has a tendency to sexually assault females has a particular interest in what is the most prominent part of the female anatomy.
(emphasis added)
The point made by Howie J is that, if one posits a class of persons who engage in, or have a tendency to engage in, sexual assault of adult females, identification of one of that class as the offender in a particular sexual assault by means of tendency evidence only would require the evidence to demonstrate such a singular or peculiar (or striking) similarity between the tendency alleged and the alleged offence as to constitute a forensic signature, or “hallmark”, such that it would offend common sense to exclude the evidence of the tendency. A demonstrated tendency to engage in sexual activity of a type that may be expected of a large proportion of the class of posited sexual offenders cannot have significant probative value in identifying one of that class as the offender with regard to a particular offence.
It will be observed that, in Vojneski, unlike O’Keefe, there was considerable additional evidence linking the offender to the particular crime, including his relationship with the victim, his presence at the scene of the murder shortly before it occurred, his fingerprint on the knife in the knife block in the deceased’s kitchen next to the empty space where a knife had been (which was consistent with the murder weapon) and the accused’s bloody fingerprint on the exterior handle to the door to the victim’s bedroom, where she was murdered.
Recent dicta by Penfold J in Vojneski v The Queen [2015] ACTCA 44, at [76], suggests that the probative value of tendency evidence is to be measured against the rest of the evidence in the case, so that, if the rest of the prosecution case is strong, the probative value of the tendency evidence may be relatively low. In my opinion, this is an erroneous approach. What s 97 requires is that the proposed tendency evidence be weighed with the other evidence to be adduced by the party leading the tendency evidence, not against it. To do otherwise would lead to the anomalous proposition that the stronger the evidence against the accused, the less probative value is to be attributed to tendency evidence, no matter how cogent that evidence may be. It would also suggest that the same evidence would have more weight the weaker the balance of the prosecution case may be.
There are, however, cases in which it is unnecessary to demonstrate a “striking similarity” between an alleged tendency and the offence allegedly committed by an offender to give the evidence of the tendency significant probative value. For example, evidence that an accused person is sexually attracted to children will not, of itself, have significant probative value in establishing that he committed a particular sexual offence against a child, absent something about the tendency that would act as a forensic signature and which was a feature of the charged offence. In R v Johnston (2012) 6 ACTLR 297, the accused was charged with administering a stupefying drug to a young child and then using her to create child pornography. A search of the accused’s home revealed child pornography on a number of electronic devices and a small bottle of chloroform. The child was the daughter of friends of the accused and, on the day of the alleged offences, she had visited the accused’s home without her parents. Amongst the material located on the accused’s computer were a number of “sleep assault” images that depicted girls and women being subjected to sexual assault whilst asleep.
Proof that the accused in Johnston had a sexual attraction to children, of itself, proved nothing. Similarly, evidence that the accused had an interest in “sleep assaults” proved nothing. When that evidence was combined with evidence of the relationship between the child, her parents and the accused, evidence of his contact with the child on the day of the alleged offence, and evidence of the availability of chloroform to the accused, the significance of the evidence of his tendencies became apparent.
A sexual attraction to children is an uncommon state of mind, but possessing such a state of mind, without other evidence, would not be of significant probative value. The same may be said for evidence of a tendency to be interested in “sleep assaults”.
A striking similarity of events was the basis for the admission of similar fact evidence at common law, but, even then, the probative value of such evidence depended on the facts of the particular case. A clear example is the well known case of Pfennig v The Queen (1994–1995) 182 CLR 461, where the accused was charged with the murder of a child in South Australia. The child had been fishing in the Murray River before he disappeared. The Crown case was that the child was abducted and murdered, and led evidence before the trial judge on the voir dire that established that it was most unlikely that the child drowned. The trial judge admitted evidence that the accused, who was in the area where the child disappeared at the time of his disappearance, had subsequently been convicted of abducting and sexually assaulting a child. The trial judge admitted the evidence on the basis that “It would be ... an affront to common sense to postulate two persons in [the victim’s] vicinity at Murray Bridge... about the same time that afternoon, each with a propensity to kidnap and sexually assault young boys...” The plurality of the High Court (Mason CJ, Deane and Dawson JJ), in dismissing the appeal against conviction, referred to the prosecution case requiring the presence in the area of the child’s disappearance of someone with the “requisite disposition” (to abduct a child for sexual purposes) as well as the means of affecting an abduction. The plurality went on to observe that the evidence established that the appellant was in the vicinity at the time, had the relevant disposition and the means to affect the abduction. As such, there was a sufficient “underlying unity” between the charged events and those surrounding the accused’s later offences to make evidence of the latter admissible.
What gives evidence of a tendency probative value depends on the fact in issue which is sought to be proved by the evidence; sometimes that will be the ultimate fact in issue, and sometimes it may be an intermediate fact in issue, or an intermediate fact which forms part of a circumstantial case. The evidence will have significant probative value if it is capable to a significant degree, together with the other evidence to be led at trial by the same party, of establishing the fact in issue. Often, but not always, this will be because there is a “striking similarity” between the evidence of tendency and the fact in issue, but s 97, unlike s 98, does not make similarity the touchstone of admissibility. The other term frequently adopted when considering tendency evidence, “underlying unity”, seems to me better adapted to describe those cases where tendency evidence has significant probative value, but not because of a striking similarity between the tendency and the offence with which an accused is charged.
In R v PWD (2010) 205 A Crim R 75, Beazley JA (with whom Buddin J and Barr AJ agreed) said, at [79]:
The authorities are clear that for evidence to be admissible under s 97 there does not have to be striking similarities, or even closely similar behaviour. By contrast, coincidence evidence is based upon similarities.
See also RH v The Queen [2014] NSWCCA 71 at [141] – [143].
The correct approach to the admission of tendency evidence under s 97, in my opinion, is to identify the fact in issue that the tendency may rationally prove, or contribute to proving. This may involve identifying a process of reasoning that a jury may adopt in using the evidence of the alleged tendency in reasoning that the accused is guilty. If the alleged tendency may significantly affect the probability of a fact in issue as identified in that reasoning process, the tendency evidence satisfies the test in s 97.
If proposed tendency evidence satisfies the test in s 97, it is still not admissible unless it also satisfies the test in s 101, being that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
In my opinion, this is a very clear case for the admission of tendency evidence and coincidence evidence. The Crown case is, essentially, that the accused adopted a distinctive modus operandi with a view to enticing young men to engage in sexual activity with him. The modus operandi was to approach the young men on Facebook, pretending to be a female by the name of Tayla Edwards, and entice them to engage in sexual activity with him, representing that, by doing so, they would then be able to engage in sexual activity with the (fictitious) Tayla Edwards and her friends. This was a very distinctive modus operandi, amounting to a forensic signature.
I am satisfied that the evidence the Crown seeks to lead as tendency evidence has significant probative value, except for the evidence of Incident 9. In my opinion, Incident 9 is not sufficiently proximate to the allegations which form the basis of the charges to justify the description of having significant probative value. A jury may be entitled to infer that it was the accused who communicated with the young male in Incident 9, but the events alleged in that incident differ from the charged events in significant aspects. In Incident 9, for example, there seems to be no element of enticing the young male to engage in sexual activity with the accused.
The tendencies alleged by the Crown have not been felicitously drafted. The tendencies to have a particular state of mind, as alleged in the notice, do not clearly allege a state of mind. Similarly, the reference to the “fake Facebook account of ‘Tayla Edwards’” is potentially confusing. It seems to me that what the Crown has attempted to assert in the tendency notice is that the accused had a tendency to have particular states of mind, and to act in particular ways, being:
(a)To have the following states of mind:
(i)an intention to deceive young males on Facebook into believing that he was a female named “Tayla Edwards”; and
(ii)an intention to use the false identity of “Tayla Edwards” on Facebook to entice young males to engage in sexual activity with him.
(b)To act in the following particular ways:
(i)to adopt the false identity of “Tayla Edwards” to contact young males on Facebook;
(ii)to use the false identity of “Tayla Edwards” to entice young male Facebook users to engage in sexual acts with another male;
(iii)to use the false identity of “Tayla Edwards” to falsely represent to young male Facebook users that “Tayla Edwards” would have sex with them if they had sexual intercourse with a male; and
(iv)to adopt the pseudonym “Christian”.
I am satisfied that the evidence the Crown proposes leading not only has significant probative value, but also that its probative value substantially outweighs any prejudicial effect it may have on the accused.
The essential nature of coincidence evidence is to suggest that the similarity between two or more events is such that it is improbable that they were performed by different people, or that the jury may infer from the similarities that a person had a relevant state of mind when the events occurred. The coincidence notice, is, again, not well drafted, but it seems to me that the Crown intends using the proposed coincidence evidence to establish that the accused did the following acts and had the following states of mind:
(a)Acts sought to be proved:
(i)that it was the accused who contacted and communicated with KH, LC, MN, SJ, MJ, KT, DG and TG using the false identity of “Tayla Edwards”;
(ii)that the accused engaged in sexual intercourse with SJ; and
(iii)that the accused, posing as “Christian”, met DG at 72 Degree Cafe, 72 Chandler Street, Belconnen on 27 August 2014.
(b)States of mind sought to be proved:
(i)an intention on the part of the accused to deceive young males on Facebook into believing that he was a female named “Tayla Edwards”;
(ii)an intention on the part of the accused to deceive young males on Facebook by representing to them, that, Tayla Edwards and other females would engage in sexual activity with them if they first had sexual intercourse with a male.
Conclusion
I am satisfied that evidence of these particulars of these acts and states of mind the Crown seeks to prove, as simplified and redrafted by me, have significant probative value and that the probative value substantially outweighs the prejudicial effect. I would invite the Crown to amend its application accordingly.
In the event that the Crown amends its application and orders are made permitting the Crown to adduce tendency evidence, the accused’s application to sever the indictment will be refused.
I will list the matter at 2 pm on 11 September 2015 to hear any application to amend the Crown applications, and to make formal orders.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 9 September 2015 |
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