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 number was also registered to the accused, with a connection date of 5 April 2019. The full contents of the Samsung phone were downloaded. A large number of pornographic images and videos were found on it, including an image that matched the appearance of one of those sent to JS.
At the first trial, the accused gave evidence. He denied sending the messages to JS. He asserted that his then phone was stolen from him in around late January 2019. He asserted that he sourced the Samsung phone from a friend and agreed that he had registered it in April 2019. He denied knowing that he had pornographic images on either phone. The Crown intends to tender the accused’s evidence at his trial.

Tendency evidence

In 2017, KS received explicit messages from the accused’s then phone, one she said was of him with an erect penis and the other of him holding his erect penis, together with a comment along the lines of “Is this big enough for mother and daughter”, and a longer text message about having sex with her and her daughter. KW was then aged 13.
Also contained on the Samsung phone were a number of images of teenage girls, some of them apparently under 16, which depict girls in suggestive and/or sexual positions.

The Tendency Notice

The Crown intends to lead the evidence referred to above to show a tendency of the accused to:
“(a)act in a particular way, namely
i)To send sexualised images for the attention of teenage girls.
ii)To possess and retain sexualised images on his mobile phone.

(b) have a particular state of mind, namely:

i)To have a sexual interest in teenage girls”.

The tendency evidence, if admitted relates to the following facts in issue in the proceeding:
1.Whether the accused sent indecent photographs to JS’s mobile (Count 3).
2.The plausibility of an innocent explanation for photographs being sent to JS from the accused’s mobile phone.
3.The plausibility of an innocent explanation for the presence of one of the indecent photographs sent to JS also appearing on the accused’s Samsung phone”.

The ruling

Following submissions from counsel for the parties, I ruled that the evidence was admissible for tendency purposes. I gave brief reasons at the time and I said that I would provide written reasons at a later time. These are those reasons.

The reasons

The Court is to proceed on the assumption that the jury will accept the evidence taken at its highest.[1] An assessment of the probative value of the evidence looks to the extent of the relevance of that evidence. It requires an examination of the possible use of that evidence, that is to say, how it might be used, taken at its highest.
The jury might reason that the accused was not telling the truth that he had no knowledge of the pornographic photos on his phone. It is not as though there were only a few images which might have escaped his attention if they were put on the phone by someone else. The jury might also find that the images of teenage girls showed a tendency to have a sexual interest in teenage girls.
The jury might also find that the image on his Samsung phone is the same image as was sent to JS’s phone. The jury might also reason that the accused, when he obtained the Samsung phone, downloaded the image from the phone used to send the image to JS.
The jury might also find that the accused sent the images to KS in 2017 and that this showed a sexual interest in KW. The jury might reason that this showed a tendency to have a sexual interest in teenage girls.
The evidence as a whole might be accepted by the jury as supporting an inference that it was the accused who sent the indecent photographs the subject of Count 3 to JS.
I find that the evidence is relevant. Counsel for the accused submitted that even if the accused did send the photos to KS in 2017, this does not prove the tendency suggested by the Crown on the basis that one previous act does not prove a tendency. That submission may have some support if that evidence is examined in isolation. However, the evidence has to be looked at in the circumstances of the whole of the evidence to be called in support of the Crown case. It is the combination of that evidence which I consider gives it probative value.
Counsel for the accused submitted that some of the photos on the Samsung phone were downloaded after the accused’s arrest. This is plainly not the case as the phone was seized at the time of his arrest. The dates shown on those photos referred to the time that they were examined forensically, and not at the time they were downloaded.
It was put by counsel for the accused that the evidence did not support the tendency relied upon because the tendency as expressed in the notice was too broad. It was submitted that the evidence did not show any similarity in the operative features of the acts to prove the tendency. Further, it was put that the evidence did not show a close similarity between the conduct evidencing the tendency and the offence. The evidence of the images sent to KS in 2017 were not photos of young girls but of the accused’s penis.
Counsel referred to Hughes v The Queen[2] where the Court said:
Depending on the issues in the trial, however, a tendency to act in a particular way may be identified with sufficient particularity to have significant probative value notwithstanding the absence of similarity in the acts which evidence it.
And further:
The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon the close similarity between the conduct evidencing the tendency and the offence.
I accept that the purpose of the evidence is to show that it was the accused who sent the photo the subject of Count 3 to JS. However, the method of sending the photo was the same as the method used to send the photo to KS in 2017. In both cases, the photo was that of a male penis, and the photos were similar. Further, in both cases the accused intended that the child would see or at least become aware of the photos. In both cases the children were known to each other and known to the accused. In my view the conduct was closely similar in each case.
As to the photos of teenage girls on the Samsung phone, it was put that “teenagers” was too wide. The children in this case were aged 13 and 14. The photos mostly depicted older females, many of whom were not even teenagers. Whilst I accept that most of the photos were not of young children, there were a number of photos of young teenagers who appeared to be under 16 posing in a sexualised fashion. The remaining photos were mostly pornographic images of adults. The submission overlooks that the Crown was attempting to prove not only that the accused had photos of sexualised images of teenage girls in his possession, but that he had also lied about not having any pornographic material on his phone. These factors were additional support for the purposes of the tendency evidence as stated in the tendency notice. In addition, I note that tendency evidence does not have to show a tendency to commit a particular crime. As was said in Hughes v The Queen[3]
The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford [2009] NSWCCA 306; 201 A Crim R 451 at 485 [125]: “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.
I was of the opinion that the evidence had significant probative value. The photos sent to KS in 2017 and to JS in 2018 were not years apart but relatively close in time. They were similar and the jury might well infer that they bespoke of a male interested in having sexual relations with young teenagers. I considered that the evidence as a whole supported the tendencies alleged to a significant degree and that the tendencies made it more likely that the facts would support the charged offence.[4]
It was submitted by counsel for the accused that the probative value of the evidence did not substantially outweigh the prejudicial effect it may have on the accused because, by showing that the accused has many pornographic images in his possession, this is likely to cause the jury to think less of him and to act irrationally in arriving at their conclusions rather than focusing on the issues. This stood in stark contrast to the submission he made earlier that there was nothing uncommon for people to have sexualised images and pornography on their mobile phones. I do not think that many people these days would be shocked by seeing these sexualised images of young teenage girls, or the pornographic images of adults. In my opinion, to the extent that it may be troublesome for some jurors, that can be cured, or at least significantly diminished, by the giving of an appropriate direction to the jury. I considered that there was little in the way of prejudicial effect and that the probative value of the evidence significantly outweighed any prejudicial effect it may have had on the accused.

____________________________

[1] IMM v The Queen [2016] HCA 14; 257 CLR 300 at [43].

[2] [2017] HCA 20; 263 CLR 338 at [37], [39] and [94].

[3]Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [41]; Adams v R [2017] NSWCCA 215 at [271] –[272]

[4] Hughes v The Queen [2017] HCA 20; 263 CLR 338 at [41].