The King v Poole
[2023] NTSC 24
•8 March 2023
CITATION:The King v Poole [2023] NTSC 24
PARTIES:THE KING
v
POOLE, Andrew
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22029228
DELIVERED: 8 March 2023
HEARING DATE: 1 February 2023 and 22 February 2023
JUDGMENT OF: Burns J
CATCHWORDS:
EVIDENCE – Admissibility – Tendency evidence – child abuse material – whether probative value of the evidence outweighs any potential prejudicial effect on the accused – appropriate directions to reduce risk of prejudicial effect on the accused – evidence admissible
Criminal Code Act 1983 (NT) s 125A, 125B, 132
Evidence (National Uniform Legislation) Act 2011 (NT) s 97, 101 (2), 137Harkin v The Queen (1989) 38 A Crim R 296 referred to.
REPRESENTATION:
Counsel:
Crown:S Lapinski
Accused:M Hubber
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Hubber Legal
Judgment category classification: C
Judgment ID Number: Bur2307
Number of pages: 11
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSThe King v Poole [2023] NTSC 24
No. 22029228
BETWEEN:
THE KING
AND:
ANDREW POOLE
CORAM: BURNS J
REASONS FOR DECISION
(Delivered 8 March 2023)
Introduction
The accused, Andrew Poole, is awaiting trial on the following charges:
· Count 1, alleging that between 15 October 2014 and an unknown date in December 2014 at Alice Springs he did possess child abuse material.
· Count 2, alleging that on 15 October 2014 at Alice Springs, without legitimate reason, he intentionally recorded by means of a device, an indecent visual image of AC, a child under the age of 16 years.
· Count 3, alleging that on 15 October 2014 at Alice Springs, without legitimate reason, he intentionally recorded by means of a device an indecent visual image of AC, a child under the age of 16 years.
· Count 4, alleging that on 15 October 2014 at Alice Springs, without legitimate reason, he intentionally recorded by means of a device, an indecent visual image of AC, a child under the age of 16 years.
· Count 5, a charge that on 15 October 2014 at Alice Springs, he attempted to without legitimate reason intentionally record by means of a device an indecent visual image of AC, a child under the age of 16 years.
By a Tendency Notice (the Notice) dated 26 August 2022 the Crown has given notice pursuant to s 97(1) of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA) that it intends to adduce tendency evidence at the trial of the accused. The Notice states that the proposed tendency evidence relates to the following facts in issue:
(a) Whether on 15 October 2014, the accused intentionally recorded indecent visual images of a child, AC, at a time when AC was wearing a swimming suit.
(b) Whether on 15 October 2014 the accused attempted to record indecent visual images of AC by setting up a covert recording device in a bathroom at an address in Alice Springs with the expectation that AC would go into the bathroom and that video footage of her unclothed body would be recorded.
(c) Whether between 15 October 2014 and an unknown later date in December 2014 the accused deliberately retained the indecent images recorded on 15 October 2014.
The tendency sought to be proved by adducing the tendency evidence is the tendency of the accused to:
(a) act in a particular way, namely to engage in activity to satisfy his sexual attraction to AC; and
(b) have a particular state of mind, namely a sexual interest in AC when she was a child aged 7 to 12 years.
The accused opposes the application to lead tendency evidence.
Counts 2, 3 and 4 relate to video footage said to have been taken by the accused at an address in Alice Springs. Count 2 relates to video footage of AC’s crotch area taken by use of a GoPro under a table opposite where AC was seated. Count 3 relates to video footage recorded with the GoPro which includes sections focussed on AC’s crotch and breast areas while she is wearing a swimming costume. Count 4 relates to video footage recorded with the GoPro in a swimming pool which is said to focus predominantly on AC’s buttocks and crotch area. Count 5 relates to video footage recorded with the GoPro which is said to show the accused setting up the device as a covert surveillance device in a bathroom aimed directly towards the shower recess. The video is said to show the accused placing items around the device to hide it from view. It is said that the recording shows the accused returning a short time later and swearing before retrieving the device and turning it off. Count 1 relates to the retention of the stored data from Counts 2, 3, 4 and 5 on the accused’s GoPro.
Count 1 is an offence contrary to s 125B(1) of the Criminal Code 1983 (NT) (Criminal Code). That section relevantly provides:
(1) A person who possesses, distributes, produces, sells or offers or advertises for distribution or sale child abuse material is guilty of an offence and is liable:
(a)in the case of an individual – to imprisonment for 10 years; and
For the purposes of this provision, “child abuse material” is defined in s 125A of the Criminal Code as follows:
child abuse material means material that depicts, describes or represents, in a manner that is likely to cause offence to a reasonable adult, a person who is a child or who appears to be a child:
(a)engaging in sexual activity;
(b)in a sexual, offensive or demeaning context; or
(c)being subjected to torture, cruelty or abuse,
but does not include:
(d)a film, publication or computer game that is classified (other than as RC) under the Commonwealth Act; or
(e)a film, publication or computer game that is the subject of an exemption under Part X of the Classification of Publications, Films and Computer Games Act 1985 .
Counts 2, 3, 4 and 5 are offences against s 132(2)(f) of the Criminal Code, although Count 5, as an attempt, also requires the application of ss 4 and 277 of the Criminal Code. Section 132 relevantly provides:
132 Indecent dealing with child under 16 years
(1)In this section, deals with includes the doing of any act which, if done without consent, would constitute an assault within the meaning of sections 187 and 188.
(2)Any person who:
(a)indecently deals with a child under the age of 16 years;
(b)exposes a child under the age of 16 years to an indecent act by the offender or any other person;
(c)permits himself to be indecently dealt with by a child under the age of 16 years;
(d)procures a child under the age of 16 years to perform an indecent act;
(e)without legitimate reason, intentionally exposes a child under the age of 16 years to an indecent object or indecent film, video tape, audio tape, photograph or book; or
(f)without legitimate reason, intentionally takes or records, by means of any device, an indecent visual image of a child under the age of 16 years,
is guilty of an offence and is liable to imprisonment for 10 years.
The term “indecent visual image” is not defined in the Criminal Code, nor does it provide a test by which to determine indecency for the purposes of s 132.
The facts in issue at the accused’s trial are likely to be:
(a) on Count 1, whether the material to which the charge refers is “child abuse material”;
(b) on Counts 2, 3, and 4, whether any visual image of AC taken by the accused is an “indecent visual image”; and
(c) on Count 5, whether the evidence supports a charge of attempting to record an indecent image of AC.
The evidence which the Crown proposes adducing as tendency evidence relates to events said to have occurred between 2009 and 2011. The Outline of the Crown Case describes the tendency evidence in the following terms:
17. Between 2009 and 2011 the accused was in a relationship with [SE]. The accused would often stay with [SE] and in 2011 that meant staying in a room [SE] was renting in a share house in Alice Springs. AC would sometimes be staying with her mother at times when the accused was staying there as well. They would all sleep in the same room.
18. In 2011, when the accused was 32/33 years old, he would often sleep over at [SE’s] house. At that time, AC was 7/8 years old.
19. Sometime between 1 January 2011 and 31 December 2011, the accused and [SE] were in the bedroom of [SE]. The accused and [SE] were lying in her queen size bed.
20. During the night, the accused and [SE] injected amphetamines. At some point in the night, the accused told [AC] to come to the bed. She complied. [SE] told [AC] to touch the accused’s penis. She refused. [SE] insisted and she placed the child’s hand on the accused’s penis.
21. [SE] told [AC] to suck the accused’s penis. She refused. [SE] put her hand on the back of [AC’s] head. The accused also put his hand on the back of [AC’s] head and the accused and [SE] forced [AC’s] head towards his erect penis. The accused forced her to suck his penis for about 20 seconds.
22. At this point, [AC] managed to break free. She ran to the share-house’s communal bathroom and locked the door.
23. On 27 March 2020, the accused was found guilty following a trial by jury to one charge of having sexual intercourse, namely fellatio, with [AC] without her consent, knowing about or being reckless as to the lack of consent. On the occasion (sic), he was sentenced in the Supreme Court of the Northern Territory.
In addition, the Crown proposes leading evidence that between 2009 and 2011 the accused would frequently rub [AC’s] vagina on the outside of her clothing. The Crown proposes leading evidence of a further incident of digital penetration of [AC’s] vagina by the accused which is alleged to have occurred in 2011. The accused has not been convicted of this conduct.
The principles upon which the present application is to be determined are not in dispute. Section 97 of the ENULA provides that tendency evidence is not admissible unless the court thinks that the evidence will, either by itself or having regard to other evidence that will be adduced by the party seeking to lead the tendency evidence, have significant probative value. The operation of s 97 in the present case must, however, be considered in the light of the provisions of s 97A:
EVIDENCE (NATIONAL UNIFORM LEGISLATION) ACT 2011 - SECT 97A
Admissibility of tendency evidence in proceedings involving child sexual offences
(1) This section applies in a criminal proceeding in which the commission by the defendant of an act that constitutes, or may constitute, a child sexual offence is a fact in issue.
(2) It is presumed that the following tendency evidence about the defendant will have significant probative value for the purposes of sections 97(1)(b) and 101(2):
(a)tendency evidence about the sexual interest the defendant has or had in children (even if the defendant has not acted on the interest);
(b)tendency evidence about the defendant acting on a sexual interest the defendant has or had in children.
(3) Subsection (2) applies whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally.
(4) Despite subsection (2), the court may determine that the tendency evidence does not have significant probative value if it is satisfied that there are sufficient grounds to do so.
(5) The following matters (whether considered individually or in combination) are not to be taken into account when determining whether there are sufficient grounds for the purposes of subsection (4) unless the court considers there are exceptional circumstances in relation to those matters (whether considered individually or in combination) to warrant taking them into account:
(a)the sexual interest or act to which the tendency evidence relates (the tendency sexual interest or act ) is different from the sexual interest or act alleged in the proceeding (the alleged sexual interest or act );
(b)the circumstances in which the tendency sexual interest or act occurred are different from circumstances in which the alleged sexual interest or act occurred;
(c)the personal characteristics of the subject of the tendency sexual interest or act (for example, the subject's age, sex or gender) are different to those of the subject of the alleged sexual interest or act;
(d)the relationship between the defendant and the subject of the tendency sexual interest or act is different from the relationship between the defendant and the subject of the alleged sexual interest or act;
(e)the period of time between the occurrence of the tendency sexual interest or act and the occurrence of the alleged sexual interest or act;
(f)the tendency sexual interest or act and alleged sexual interest or act do not share distinctive or unusual features;
(g)the level of generality of the tendency to which the tendency evidence relates.
(6) In this section:
child means a person under 18 years of age.
child sexual offence means each of the following offences (however described and regardless of when it occurred):
(a)an offence against, or arising under, a law of the Territory involving sexual intercourse with, or any other sexual offence against, a person who was a child at the time of the offence;
(b)an offence against, or arising under, a law of the Territory involving an unlawful sexual act with, or directed towards, a person who was a child at the time of the offence;
(c)an offence against, or arising under, a law of the Commonwealth that:
(i)if committed in the Territory – is an offence of a kind referred to in paragraph (a) or (b); or
(ii)if committed elsewhere – would be an offence of a kind referred to in paragraph (a) or (b);
(d)an offence against, or arising under, a law of another State, another Territory or a foreign country that, if committed in the Territory, would be an offence of a kind referred to in paragraph (a) or (b);
but does not include conduct of a person that has ceased to be an offence since the time when the person engaged in the conduct.
The effect of s 97A in the present case is that there is a presumption that the proposed tendency evidence has significant probative value for the purpose of both s 97(1)(b) and s 101(2) of the ENULA. There are no grounds for me to determine otherwise.
A further provision which applies is s 101 (2) of the ENULA, which states that tendency evidence about an accused that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
Even without the effect of s 97A, the proposed tendency evidence clearly has a significant probative value in establishing the tendencies alleged by the Crown. If accepted by the jury, the proposed tendency evidence would strongly support a finding that the accused was sexually attracted to AC when she was a child aged between 7 and 12 years, and was prepared to engage in activity to satisfy that sexual attraction. If the jury were satisfied that the accused had the tendencies alleged by the Crown, that finding has the capacity to significantly contribute to a finding that the accused had a motive of sexual gratification for filming the video footage which is the subject of Counts 2, 3, and 4. Such a finding would also have the capacity to significantly contribute to a finding that the accused’s intention in placing the video camera in the bathroom as alleged in Count 5 was to obtain images of AC while she was showering, and for a sexual purpose. Finally, such a finding would also have the capacity to significantly contribute to a finding that the accused intentionally possessed the material which is the subject of Count 1 for the purpose of sexual gratification. Such a finding is arguably relevant to a determination by the jury whether the material depicts AC in a sexual context in a manner that is likely to cause offence to a reasonable adult.
In all of the material which forms the bases of the charges, AC is wearing clothing. There is no depiction of the naked genitalia of AC which would, in the absence of lawful excuse, be inherently indecent or inherently sexual. It is arguable, therefore, that a determination whether the material is indecent or child abuse material will depend upon the reason for the accused creating the material and retaining it.[1] The proposed tendency evidence has the capacity to significantly affect decision-making on these issues.
The accused principally submitted that the proposed tendency evidence gives rise to an extreme danger of unfair prejudice such that the evidence should be excluded under either s 101(2) or s 137 of the ENULA. I do not accept that submission. The proposed tendency evidence certainly carries the risk of unfair prejudice to the accused. Without appropriate judicial direction, a jury may reason from the tendency evidence that the accused is the sort of person who would have committed the charged offences or perhaps seek to punish him for uncharged conduct. The risk of this occurring will be ameliorated by appropriate judicial directions, but it is a risk that cannot entirely be eliminated. Appropriate directions will, however, reduce the risk to the level that it is less than the probative value of the evidence.
The Crown will be permitted to lead the evidence set out in the Notice as tendency evidence at the accused’s trial.
Publication of this judgment other than to the parties will be prohibited until the conclusion of the accused’s trial.
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[1]Harkin v The Queen (1989) 38 A Crim R 296.