The Queen v Navin Edwin
[2013] ACTSC 6
THE QUEEN v NAVIN EDWIN
[2013] ACTSC 6 (4 February 2013)
CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown application to adduce – Evidence capable of establishing tendencies – Probative value of the tendency evidence substantially outweighs its prejudicial value – Trial will not be excessively complex despite multiple complainants and counts where tendencies limited – Counts that do not support the tendencies are severable – Application conditionally allowed
CRIMINAL LAW – EVIDENCE – Coincidence Evidence – Crown application to adduce –Probative value of evidence does not substantially outweigh prejudice – Value of evidence as coincidence evidence not as substantial as value as tendency evidence – Application refused
Evidence Act2011 (ACT)
Evidence Act1995 (NSW)
BP v R; R v BP [2010] NSWCCA 303
R v Johnston (2012) 6 ACTLR 297
R v Ford (2009) 201 A Crim R 451
No. SCC 60 of 2011
No. SCC 61 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 4 February 2013
IN THE SUPREME COURT OF THE )
) No. SCC 60 of 2011
No. SCC 61 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: THE QUEEN
Plaintiff
AND: NAVIN EDWIN
Defendant
ORDER
Judge: Burns J
Date: 4 February 2013
Place: Canberra
THE COURT ORDERS THAT:
Counts 16, 17, 18, 19 and 20 be severed from the indictment and proceed as a separate trial.
The Crown be allowed to lead evidence at the trial of the accused on the remaining counts that the accused has the following tendencies:
a)a tendency to have a particular state of mind, being a sexual interest in female children;
b)a tendency to act in a particular way, being to take sexualised images of females, including covert images.
The accused is awaiting trial on an indictment dated 19 July 2012 in the following terms:
THAT between the 7th date of June 2009 and the 18th day of February 2010 at Canberra in the Australian Capital Territory NAVIN EDWIN committed an act of indecency on a person under the age of 10 years, namely [Complainant 1].
SECOND COUNT AND FURTHER THAT on the 7th day of November 2009 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 1] for the production of child pornography.
THIRD COUNT AND FURTHER THAT on the 7th day of November 2009 at Canberra aforesaid NAVIN EDWIN committed an act of indecency in the presence of a person under the age of 10 years, namely [Complainant 1].
FOURTH COUNT AND FURTHER THAT on the 13th day of December 2009 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 1] for the production of child pornography.
FIFTH COUNT AND FURTHER THAT on the 13th day of December 2009 at Canberra aforesaid NAVIN EDWIN committed an act of indecency on a person under the age of 10 years, namely [Complainant 1].
SIXTH COUNT AND FURTHER THAT on the 27th day of December 2009 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 1] for the production of child pornography.
SEVENTH COUNT AND FURTHER THAT on the 27th day of December 2009 at Canberra aforesaid NAVIN EDWIN committed an act of indecency on a person under the age of 10 years, namely [Complainant 1].
EIGHTH COUNT AND FURTHER THAT on the 27th day of December 2009 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 1] for the production of child pornography.
NINTH COUNT AND FURTHER THAT on the 27th day of December 2009 at Canberra aforesaid NAVIN EDWIN committed an act of indecency in the presence of a person under the age of 10 years, namely [Complainant 1].
TENTH COUNT AND FURTHER THAT on the 18th day of February 2010 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 1] for the production of child pornography.
ELEVENTH COUNT AND FURTHER THAT on the 18th day of February 2010 at Canberra aforesaid NAVIN EDWIN committed an act of indecency on a person under the age of 10, namely [Complainant 1].
TWELFTH COUNT AND FURTHER THAT between the 12th day of April 2010 and the 21st day of April 2010 at Canberra aforesaid NAVIN EDWIN, being a person of at least 18 years of age, used a carriage service to transmit communications that included material that is indecent to a person he believed to be under the age of 16 years, with the intention of making it easier to procure that person to engage in or submit to sexual activity with himself.
THIRTEENTH COUNT AND FURTHER AND IN THE ALTERNATIVE THAT between the 12th day of April 2010 and the 21st day of April 2010 at Canberra aforesaid NAVIN EDWIN used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive.
FOURTEENTH COUNT AND FURTHER THAT on the 6th day of February 2010 at Canberra aforesaid NAVIN EDWIN used a child, namely [Complainant 3] for the production of child pornography.
FIFTEENTH COUNT AND FURTHER THAT on the 6th day of February 2010 at Canberra aforesaid NAVIN EDWIN committed an act of indecency in the presence of a person under 16 years of age, namely [Complainant 3].
SIXTEEN COUNT AND FURTHER THAT between the 21st day of August 2009 and the 17th day of February 2010 at Canberra aforesaid NAVIN EDWIN, being a person of at least 18 years of age, used a carriage service to transmit communications that included material that is indecent to a person he believed to be under the age of 16 years, with the intention of making it easier to procure that person to engage in or submit to sexual activity with himself.
SEVENTEENTH COUNT AND FURTHER AND IN THE ALTERNATIVE THAT between the 21st day of August 2009 and the 17th day of February 2010 at Canberra aforesaid NAVIN EDWIN used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive.
EIGTEENTH COUNT AND FURTHER THAT between the 8th and 9th day of March 2010 at Canberra aforesaid NAVIN EDWIN used a carriage service to cause child pornography material to be transmitted to himself.
NINETEENTH COUNT AND FURTHER THAT between the 9th day of March and the 23rd day of April 2010 at Canberra aforesaid NAVIN EDWIN used a carriage service to transmit child pornography material.
TWENTIETH COUNT AND FURTHER THAT on the 6th day of February 2010 at Canberra aforesaid NAVIN EDWIN used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive.
TWENTYFIRST COUNT AND FURTHER THAT between the 11th and 18th day of April 2010 at Canberra aforesaid NAVIN EDWIN committed an act of indecency in the presence of [Complainant 5] without her consent, knowing that she was not consenting or reckless as to whether she was consenting.
TWENTYSECOND COUNT AND FURTHER THAT on the 23rd day of April 2010 at Canberra aforesaid NAVIN EDWIN intentionally possessed child pornography material.
TWENTYTHIRD COUNT AND FURTHER THAT between the 7th day of June 2009 and the 18th day of February 2010 at Canberra in the Australian Capital Territory NAVIN EDWIN committed an act of indecency on a person under the age of 10 years, namely [Complainant 1].
On or about 24 July 2012 the Crown filed a Notice of Intention to Adduce Tendency Evidence and a Notice of Intention to Adduce Coincidence Evidence. Subsequently, by an application dated 21 September 2012 the accused seeks to sever the indictment such that he would be tried separately with respect to the charges concerning each of the five different complainants. The accused’s application is based on the submissions that:
a)The number and variety of counts proposed by the Crown to be heard together would result in an excessively complex trial, with associated unacceptable risks of unfair prejudice to the accused, confusion of the jury and a compromise [sic] verdict; and
b)In addition or alternatively, the evidence of alleged offences relating to each complainant/victim is not properly admissible in respect of the alleged offences relating to every other complainant/victim.
THE CROWN CASE
Before considering the applications further, it is convenient to set out briefly the allegations against the accused.
Count 1 alleges that the accused moved complainant 1’s underwear so as to look at her genital area. Complainant 1 was seven years old and apparently asleep.
Count 23 is alleged to have occurred on the same date as Count 1. It is alleged that while carrying complainant 1 to a car he put his hand underneath her underwear and touched her vagina.
Counts 2-11 involve allegations that the accused on five separate occasions took photographs of complainant 1’s thigh region, underwear, buttocks and genital area, in some instances after moving her underwear to one side.
Counts 12 and 13 involve Complainant 2, who was 11 years old at the time. These counts involve text communication between the accused and the Complainant, and later her mother posing as the Complainant, in which the accused asks the Complainant for pictures of herself, asked what the Complainant is wearing under her nightie and confesses to wanting the Complainant “in that way”.
Counts 14 and 15 involve an allegation that the accused covertly took video footage of the area between Complainant 3’s upper thigh and underwear at a birthday party at a public restaurant.
Counts 16 to 20 involve Complainant 4, who was 15 years old at the relevant times. It is alleged that the accused communicated with the Complainant using Facebook, internet chat programs, email and mobile phones. These communications included sexually explicit conversation as well as requests for the Complainant to describe what she was wearing. At the request of the accused, the Complainant sent him a photograph of herself naked. He photo-shopped the image and returned it to her. The accused also sent her a number of photographs of himself semi-naked.
Count 21 involves an allegation that the accused covertly videoed Complainant 5 getting changed during rehearsals of a play in which they were both involved. Complainant 5 was a young adult at the time.
Count 22 involves an allegation that a file depicting a naked pre-pubescent female in a sexual pose was located on the accused’s computer.
In addition to those matters forming the basis for the Counts of the indictment, the Crown proposes to lead evidence that the accused took video of three unknown women at a shopping centre. The videos were taken from behind the women, under their skirts and apparently without their knowledge.
THE TENDENCY APPLICATION
Admission of tendency evidence is governed by s 97 and 101 of the Evidence Act2011 (ACT). Section 97 sets out what is called the tendency rule, providing that evidence that a person has or had a tendency to act in a particular way or to have a particular state of mind is not admissible unless reasonable notice in writing of the intention to adduce the evidence has been given, and the court is satisfied that the evidence will, either by itself or in conjunction with other evidence, have significant probative value. Further restrictions on the presentation of tendency evidence by the prosecution in criminal matters are imposed by s 101 (2). This provides that the evidence cannot “be used against the defendant” unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.
In BP v R; R v BP [2010] NSWCCA 303 the New South Wales Court of Criminal Appeal had occasion to consider the identical provisions in the Evidence Act1995 (NSW). In the leading judgment on the appeal against conviction, Hodgson JA, with whom Price and Fullerton JA agreed, said at [106] – [109]:
Evidence with which s 97 is relevantly concerned is evidence that a person has a tendency to act in a particular way or have a particular state of mind; and the probative value of the evidence will depend both on its probative value in establishing the tendency and on the probative value of the tendency (if established) in relation to an issue in the case: R v Li [2003] NSWCCA 407 at [11], R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492 at [22] – [23].
To be admissible as tendency evidence, the evidence must have significant probative value. It must be capable of rationally affecting the probability of the existence of a fact in issue to a significant extent, meaning (at least) an extent greater than required for mere relevance: Zaknic Pty Limited v Svelte Corporation Pty Limited [1995] FCA 1739; (1995) 61 FCR 171 at 175-6, R v Ford [2009] NSWCCA 306 at [50] and [51], R v PWD [2010] NSWCCA 209 at [66]. The question of probative value (and also the possibility of prejudicial effect) must be assessed having regard to the issues in the case: PWD at [63].
It is not necessary in criminal cases that the incidents relied on as evidence of the tendency be closely similar to the circumstances of the alleged offence, or that the tendency be a tendency to act in a way (or have a state of mind) that is closely similar to the act or state of mind alleged against the accused; or that there be a striking pattern of similarity between the incidents relied on and what is alleged against the accused: Ford at [38], [125], PWD at [64]-[65]. However, generally the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value.
The possibility of prejudicial effect with which s 101 is concerned is the possibility that the jury will act on the evidence otherwise than by way of its rational effect on the probability of a fact in issue, for example by giving effect to “some irrational, emotional or illogical response” or “giving the evidence more weight than it truly deserves”: R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [116]. An assessment must be made whether the probative value of the evidence substantially outweighs any prejudicial effect that the evidence may have: R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 at [94]- [95]. If the evidence passes the s 101 test, it will a fortiori not be excluded under s 137: Ford at [59].
As I noted in R v Johnston (2012) 6 ACTLR 297, s 97 does not require that the tendency evidence sought to be led be, itself, similar in nature to the acts alleged to constitute the crime, or to establish a tendency to commit acts the same as, or closely similar to, the acts alleged to constitute the crimes alleged against the accused: see also R v Ford (2009) 201 A Crim R 451. Leaving aside issues of notice, the section is satisfied if the proposed evidence is capable of establishing that the accused has or had a tendency to have a relevant particular state of mind, or a tendency to act in a relevant particular way. Whilst demonstrated repetition of acts similar to those the basis of the crime alleged against an individual accused will often be required, either to demonstrate that the accused has a particular tendency or in order to demonstrate that the evidence will have significant probative value, that is not always the case. As I said in R v Johnston at [17]:
There are certain states of mind that may be proved without proof of repetition of associated acts, and proof of which may lead to an inference that the individual has a tendency to have that state of mind. Sexual attraction is one such state of mind. If evidence establishes, for example, that an individual is, at a particular date, sexually attracted to children that, in my opinion, would allow an inference that the individual has a tendency to have that state of mind, that is, to be sexually attracted to children. Proof of this tendency, if relevant and subject to ss 97 (1) and 101 (2), is a circumstance which may be used by a jury in determining whether an accused has committed an alleged offence involving sexual impropriety involving a child.
In its written submissions, the Crown identified the following tendencies on the part of the accused that it will seek to prove:
As referred to in the notice of tendency, there are also a number of tendencies to act in a particular way exhibited by the evidence that relate to some but not to all of the complainants, as follows:
·In relation to Complainants 1, 2, 3 and 4 and the facts the subject of Incident 12, a tendency to act upon a sexual interest in children by engaging in sexually explicit conversation, taking or keeping sexually explicit photographs or video footage, or sexually touching children in contact with him through family and friends;
·In relation to Complainants 1 and 3, a tendency to take sexualised images of young girls covertly;
·In relation to Complainants 2 and 4, a tendency to encourage girls to send sexualised images of themselves to him;
·In relation to Complainants 1, 2 and 3, a tendency to make contact with young female friends associated with his partner Rebecca Lindsay, and to use those young female persons to act out a sexual interest in children and an interest in sexualised images of female children;
·In relation to Complainants 1, 3 and 5 and the women referred to in Incident 13, a tendency to act upon an interest in taking sexualised images of women and girls covertly by taking covert pictures and video footage.
The evidence is also submitted to demonstrate that the accused had a tendency to have particular states of mind, namely:
·In relation to Complainants 1, 2, 3 and 4, and the acts the subject of Incident 12, a sexual interest in children;
·In relation to Complainants 1, 3 and 5, and the women referred to in Incident 13, a tendency to be interested in sexualised images of women and girls taken covertly.
The above particulars are somewhat broader than the particulars provided in the tendency notice, but no objection was taken to this fact. There is much to be said for the proposition advanced by the accused that to allow the Crown to lead evidence of each of the tendencies they allege, involving different tendencies with respect to different complainants, would result in considerable complexity at trial, and a real risk of confusion on the part of the jury.
Having evaluated the evidence, I am satisfied that it is capable of establishing the following tendencies on the part of the accused:
a)a tendency to have a particular state of mind, being a sexual interest in female children;
b)a tendency to act in a particular way, being to take sexualised images of females including covert images.
Below is a table setting out which of these tendencies may apply to each of the Counts on the indictment.
Count
Tendency a)
Tendency b)
1
Yes
No
2-11
Yes
Yes
12-13
Yes
No
14-15
Yes
Yes
16-17
No
No
18-20
No
No
21
No
Yes
22
Yes
No
23
Yes
No
Event 13
No
Yes
All of the Counts, except Counts 16 to 20, have evidence that may support at least one of these tendencies. Counts 16 to 20 concern a separate complainant who was nearly 16 years old at the time of the alleged offences. Whilst still a child at law, the relevant tendency alleged against the accused is not one that is based upon the legal definition of a child.
It is true that the two tendencies differ in that tendency a) relates to children only while tendency b) relates to both female adults and children. I do not see this as precluding a joint trial. An individual accused may have more than one relevant tendency, and sometimes his or her conduct displaying these tendencies may coincide. In the present case that is alleged to have occurred in Counts 2-11 concerning Complainant 1. However, the other Counts, other than Counts 16 to 20, are linked to Counts 2-11 by sharing one of the alleged tendencies. The Crown case with respect to these single tendency Counts would be greatly weakened if the accused were to be tried separately with respect to the charges concerning each complainant.
In a bail application before me on 21 December 2012 the accused gave evidence relevant to his defence of the present charges. Concerning the photographs of Complainant 1 (Counts 2 to 11) he said that he had not taken “all of them”. As such, the question of whether the accused was the photographer of each of the images will be raised. He also said that he may have photographed Complainant 1 with her underwear pulled down, but if he did it was an accident. Similarly, with respect to the video footage of Complainant 3 (Counts 14 and 15) the accused said it was an accident. With respect to Complainant 2 (Counts 12 and 13) he denied being the author of the messages received by her or her mother.
Evidence of the proposed tendencies adduced in a joint trial will be strongly probative, in that it will tend to refute accident (where that is raised) and will also, in cases where the identity of the offender is in issue, be strongly probative of the accused as the offender.
I am satisfied that a joint trial of all Counts except Counts 16 to 20 will not be excessively complex so long as the Crown is restricted to the two tendencies I have referred to. I am also satisfied that the probative value of the proposed tendency evidence substantially outweighs its prejudicial value.
On this basis I will allow all Counts, except Counts 16 to 20, to proceed as a joint trial. Counts 16 to 20 will be severed from the indictment and will be heard as a separate trial.
THE COINCIDENCE APPLICATION
Admissibility of coincidence evidence is governed by ss 98 and 101 of the Evidence Act 2011. The coincidence rule is found in s 98 of the Evidence Act2011:
The 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, or any similarities in both the events and 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 probative 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.
(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 coincidence evidence presented by another party.
As I said in R v Johnston, s 98 governs the admissibility of a particular type of coincidence evidence, being evidence linked by a similarity in events or the circumstances in which they happen. In its written submissions the Crown identified the similarities relied upon as follows:
·In relation to Complainants 1, 2, 3 and 4, that each was a female child under the age of 16 years whom the accused befriended;
·In relation to Complainants 1, 2 and 3, that the accused met them directly or indirectly through his partner Rebecca Lindsay;
·In relation to Complainants 1, 2, 3, 4, and 5, and the women referred to in Event 13, he took sexually explicit photos or video footage of them, or encouraged them to send him pictures of themselves with no or limited clothing;
·In relation to Complainants 2 and 4, he sent communications that were indecent, including expressing an interest in knowing what they were wearing underneath their clothing;
·In relation to Complainants 3 and 5 and the women referred to in Event 13, the accused took video footage of them focusing on their underwear apparently without their knowledge or consent;
·In relation to Complainants 4 and 5, the accused befriended them at plays in which both the accused and the complainant were cast members;
·In relation to Complainants 1, 3 and 4 and the image referred to in Event 12, the accused procured images of pre-pubescent or young teenage girls undressed, in sexualised poses or focusing on the genital area.
Having given the matter careful consideration, I am not satisfied that the proposed coincidence evidence has significant probative value or that its probative value substantially outweighs its prejudicial value.
There is much to be said for the proposition that the proposed coincidence evidence would refute accident and tend to prove that it was the accused who did those acts alleged to constitute the offences, but in my opinion the probative value of this evidence as coincidence evidence is not as substantial as its value as tendency evidence.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 4 February 2013
Counsel for the applicant: Dr Weston-Scheuber
Solicitor for the applicant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr Hassall
Solicitor for the respondent: Craig Lynch & Associates
Date of hearing: 18 October 2012
Date of judgment: 4 February 2013
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