The Queen v Cusack - [2020] NTSC 55

CITATION: The Queen v Cusack [2020] NTSC 55

PARTIES: THE QUEEN

v
CUSACK, GEOFFREY ANTHONY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21918416
DELIVERED:  27 August 2020
HEARING DATE:  24 August 2020
JUDGMENT OF:  Mildren AJ

CITATIONS:
Adams v R [2017] NSWCCA 215, Hughes v The Queen (2017) 263 CLR 388, IMM v The Queen (2016) 257 CLR 300, referred to

REPRESENTATION:
Counsel:
Crown:V Engel
Accused:T Berkley
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:  Mil20563
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Cusack [2020] NTSC 55
No. 21918416
BETWEEN:

THE QUEEN

AND:

GEOFFREY ANTHONY CUSACK

CORAM: MILDREN AJ
REASONS FOR RULING
(Delivered 27 August 2020)

The accused is charged on Count 3 with intentionally exposing a child under the age of 16 years to an indecent photograph.
The Crown case is that the accused met JS, then aged 14, through her friend KW. The accused was known to KW as a family friend and she referred to him as “Uncle”. The accused had previously been in a relationship with KS, KW’s mother, when KS was a teenager. The relationship with KS ended when she was about aged 18. However, KS remained on friendly terms with the accused for some time thereafter.
The Crown alleges that on two occasions in 2018, the accused met both JS and KW at locations in Palmerston, following telephone calls made by KW on JS’s mobile phone. The Crown alleges that on each occasion the accused supplied them both with a small quantity of cannabis. Thereafter, the Crown alleges that the accused sent JS a number of text messages at various times of the day telling her amongst other things that he loved her and KW “big time” and “let’s chat and get to know each other”.
On 10 February 2019, after the school term had commenced, JS received two new messages from the accused’s phone. These messages were two pornographic images; one appeared to be a penis entering a vagina with semen present. The other was of a naked female bending over with a penis at the entrance to her anus.
On 13 March 2019, JS participated in a child forensic interview where she particularised the events. Police downloaded her phone and found the two images as described by JS. The phone records showed that the sender of the images used a mobile phone. Later checks revealed that this phone was registered to the accused with a connection date of 18 July 2018, and that the SIM card was shown to be used only in that handset from the period 23 November 2018 to 29 November 2018.
On 8 May 2019, the accused was arrested and exercised his right of silence. At that time, the accused was using another mobile phone, a Samsung. Checks revealed that that phone…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading The Queen v Cusack

Details

AGLC: The Queen v Cusack [2020] NTSC 55
Case: [2020] NTSC 55
Decision Date: 27 August 2020

CaseChat Overview and Summary

The case of The Queen v Cusack involved the accused, Geoffrey Anthony Cusack, who was charged with intentionally exposing a child under the age of 16 years to an indecent photograph. The case was heard in the Supreme Court of the Northern Territory, which was exercising its Territory jurisdiction. The accused was represented by counsel and legal aid, while the Crown was represented by the Office of the Director of Public Prosecutions. The central issue in the case was whether the accused had sent the indecent photographs to the child, JS, via her mobile phone. The Crown intended to use tendency evidence to prove that the accused had a propensity to send sexualised images to teenage girls and had a sexual interest in them.

The court, Mildren AJ, ruled that the tendency evidence was admissible. The court found that the probative value of the evidence significantly outweighed any prejudicial effect it might have on the accused. The court considered that the evidence of the images sent to KS in 2017 and to JS in 2018, though not years apart, were relatively close in time, similar in nature, and showed a male interested in having sexual relations with young teenagers. The court also noted that the photos of teenage girls on the Samsung phone, although mostly depicting older females, included some photos of young teenagers posing in a sexualised fashion. This supported the Crown's case that the accused had lied about not having any pornographic material on his phone. The court held that the evidence as a whole supported the tendencies alleged to a significant degree and made it more likely that the facts would support the charged offence.

The court considered that any prejudicial effect of the evidence could be mitigated by an appropriate direction to the jury. The court concluded that the probative value of the evidence significantly outweighed any prejudicial effect it may have had on the accused. The court's ruling allowed the Crown to use the tendency evidence in proving the accused's propensity to send sexualised images to teenage girls and his sexual interest in them. This decision was significant in determining the admissibility of tendency evidence in the case and the weight it could carry in the jury's assessment of the accused's guilt.

Orders