The State of Western Australia v Misseri
[2017] WADC 49
•30 MARCH 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MISSERI [2017] WADC 49
CORAM: LEVY DCJ
HEARD: 24 MARCH 2017
DELIVERED : 30 MARCH 2017
FILE NO/S: IND 1573 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
STEFANO GIUSEPPE MISSERI
Catchwords:
Criminal law - Evidence - Sexual offences against a child - Section 31A propensity evidence - Relationship evidence - 'Significant probative value' - Common law
Legislation:
Evidence Act 1906 (WA)
Evidence Act 2001 (Tas)
Result:
Application allowed in part
Representation:
Counsel:
The State of Western Australia : Mr J K Grinceri
Accused: Mr D Edwardson QC
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: David Manera
Case(s) referred to in judgment(s):
APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59
AW v The Queen [2009] NSWCCA 1
Bennett v The State of Western Australia [2012] WASCA 70
Dairv The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413; (2008) 182 A Crim R 385
Daniels v The State of Western Australia [2012] WASCA 213
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia [2005] WASCA 196 [118]; (2005) 31 WAR 122
HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334
IMM v The Queen [2016] HCA 14; (2016) 330 ALR 382; (2016) 90 ALJR 529
JLS v The Queen [2010] VSCA 209; (2010) 28 VR 328
Khalil v The Queen (1987) 44 SASR 23
KRM v The Queen [2001] HCA 11; (2006) 206 CLR 221; (2006) 178 ALR 385; (2006) 75 ALJR 550
LBC v The State of Western Australia [2011] WASCA 201
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463
R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286
R v Jolly [1998] 4 VR 495
R v May [2007] QCA 333
R v MM [2004] NSWCCA 364
R v S, PC [2008] SASC 285; (2008) 102 SASR 199
Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374
Tasmania v Martin (No 2) [2011] TASSC 36
The State of Western Australia v Osborne [2007] WASCA 183
WK v The Queen [2002] WASCA 176
LEVY DCJ:
Introduction
The accused faces one count alleging that on a date unknown between 30 November 2002 and 1 January 2003 at Quinn's Rocks he sexually penetrated CRW, a child under the age of 13 years, by penetrating her vagina with his finger.
The accused objects to the prosecution leading evidence of matters said by the prosecution to demonstrate either the nature of his relationship with the complainant and/or his tendency to have a sexual interest in children, particularly female children, under the age of 13 years.
The prosecution submits that the evidence is admissible under the common law or s 31A of the Evidence Act 1906 (WA) (the Act), or both.
Factual background (based upon the Prosecution Brief of Evidence)
The accused is 56 years old. At the time of the alleged offence he was 41 years old.
The complainant is 24 years old. She is the fourth child of LW (mother) and JW (father). The complainant has three older brothers. At the time of the alleged offence, she was either 9 or 10 years old.
In 1998, the complainant's mother, separated from the complainant's father and commenced a relationship with the accused. LW had met the accused on an internet chat site. Shortly thereafter, LW moved to South Australia to live with the accused. The complainant and her brothers remained in Western Australia with their father. During the school holidays, the complainant and her brothers would travel to South Australia to stay with their mother and the accused. The State alleges that the accused sexually penetrated the complainant during a visit to South Australia in either 2000 or 2001 (the South Australian offence).
In 2002, the relationship between LW and the accused broke down. LW returned to live in Western Australia. She resided in a caravan park in Quinn's Rocks. Although LW now resided in Western Australia, the complainant and her brothers continued to reside with their father. They stayed with LW every second weekend.
In December 2002, the accused travelled to Western Australia in an attempt to reconcile his relationship with LW. During this time, the accused stayed with LW in her caravan in Quinn's rocks. During this period of time, the complainant and her siblings also stayed LW two weeks. This coincided with the accused's visit to Western Australia in 2002. The State alleges that the accused sexually penetrated the complainant during his visit to Western Australia in 2002 (the Western Australian offence).
At the end of December 2002, having failed to reconcile his relationship with LW, the accused returned to South Australia. That was the last time that the complainant saw the accused.
The prosecution alleges that the accused offended against the complainant in both South Australia and Western Australia. The circumstances of the alleged offending on both occasions are similar.
The South Australian offence (Child Witness Interview pages 40 – 55)
In either 2000 or 2001, during the school holidays, the complainant and her brothers travelled to South Australia to stay with their mother and the accused. The complainant referenced this visit to the time that she was treated by a doctor having injured her foot on a nail. The complainant was been between 7 and 9 years old. During this visit, her brothers slept in one room and she slept on a small fold-out bed in a bedroom occupied by her mother and the accused.
One night during her visit to South Australia, she had gone to sleep on the foldout bed in the accused's bedroom. She was wearing a nightie and underwear. She was also covered by a blanket. Her mother was asleep on the bed near her. The complainant saw the accused come over to her bed. The accused removed her blanket, pulled her nightie up, pulled her underwear down to her knees and then digitally penetrated her with two fingers. The complainant pulled away, pulled her underwear up, pulled the blanket over herself and rolled over to the wall.
The Western Australian offence (Child Witness Interview pages 8 – 55)
In December 2002, the complainant and her siblings were staying with her mother during the school holidays. At that time LW lived in a caravan at Quinns Rocks. The accused was also staying in the caravan. The complainant was between 9 or 10 years old.
One evening, the complainant was asleep on her side on a couch that folded out into a bed. Her brothers were asleep nearby. She was wearing pyjamas. She also had a blanket over her. She was awoken by the accused rolling her over and attempting to remove her pants. The accused pulled her pants down to her ankles. The complainant attempted to resist by rolling over, but the accused forcefully rolled her back and parted her legs. The accused then digitally penetrated the complainant's vagina using two fingers. Once again, she rolled away and 'scrunched up' by pulling her legs to her chin.
The complainant kept her eyes shut during some of the incident but did check to see it was the accused. She recognised the accused.
The history of the prosecution of the South Australian offence
According to LW, the complainant disclosed the offending to her in 2006.
On 13 July 2006, the complainant participated in a Child Witness Interview in Western Australia. At that time, the complainant was 13 years old. During the course of the interview, the complainant gave details of both the South Australian and Western Australian offences.
On 17 November 2007, the accused was arrested and charged in South Australia in relation to the South Australian offence. The accused pleaded not guilty to the charge and was subsequently indicted.
The accused's trial was listed to commence in the District Court of South Australia on 9 May 2008. In the lead up to that trial, a South Australian prosecutor, Ms Carmen Matteo, conducted a pre-trial proofing session with the complainant. The meeting took place in the presence of a police officer, Detective Sergeant Rita Salzgeber, who was also involved in the case. Following that meeting, Ms Matteo formed the view that there was no reasonable prospect of a conviction and a nolle prosequi was filed in relation to the South Australian charge. By letter dated 15 July 2015, the Office of the Director of Public Prosecutions for South Australia (ODPP SA) informed its Western Australian (ODPP WA) counterpart of the reasons for doing so. The reasons included that Ms Matteo had formed the view that there were problems relating to the reliability of the complainant, including that:
•'the complainant's recollection of the details of the alleged offending and surrounding events was poor', and
•'certain inconsistencies which had been identified in relation to some of her past disclosures could not be satisfactorily explained.'
The ODPP WA has obtained and disclosed to the defence various proofing notes relating to the meeting involving Ms Matteo, Detective Sergeant Salzgeber and the complainant. Neither Detective Sergeant Salzgeber nor Ms Matteo now has any independent recollection of the meeting with the complainant. Ms Matteo has provided a statement about her involvement, confirming that she has no independent recollection of the pre-trial proofing session. The complainant was not asked to make a further statement at the time of the proofing session.
The accused's convictions in South Australia for producing child exploitation material
On 20 May 2015, the accused was sentenced by His Honour Judge Costello in the District Court of South Australia in relation to three counts of producing child exploitation material. The State has obtained an 'Internet Version' of the learned sentencing Judge's settled sentencing remarks. The three offences apparently occurred between 19 January 2014 and 12 February 2014. The sentencing remarks reveal the following:
•Posing as a homosexual adult female, the accused engaged in online chats via the internet with a woman (HA) in Kansas City, USA.
•On 19 January 2014, the accused discussed with HA a sexual encounter. During the conversation the accused claimed to have had penile/vaginal intercourse with a 15-year-old boy.
•On 1 February 2014, the accused encouraged HA, who was a willing participant, to initiate her 4-year-old daughter to perform fellatio on her 14-year-old son.
•On 12 February 2014, in another online chat, the accused incited HA to physically force a three year old girl, who she was then babysitting, to perform fellatio on her 14‑year‑old son. This included the accused directing HA to slap the female child and hold her nose if she resisted.
After taking into account all relevant matters, the learned sentencing judge sentenced the accused to 18 months' imprisonment suspended upon him entering into a bond for two years and subject to a number of conditions.
The history of the prosecution of the Western Australian offence
An application for the extradition of the accused was not made by Western Australian authorities until 26 May 2016. By that stage, police in Western Australia had also obtained a statement from Anne Marie Richardson. Ms Richardson had previously been in a relationship with the accused in South Australia. That relationship commenced in or about July 2003 when she had moved into the accused's home.
The statement from Ms Richardson details a number of allegations now sought to be led by the prosecution.
The child pornography on the home computer in South Australia
On an occasion Ms Richardson asked the accused to show her what he was looking at on a computer in the home. He agreed to show her, but told her that she could not mention what she saw to anyone. According to Ms Richardson, what he showed her was 'all child pornography' (par 56). She was shown:
•'pictures of naked girls who … looked around 4 years old' (par 51)
•'A video titled "4 year old being raped"' (par 52)
•'thousands of files' (par 53)
•'Files showing young naked girls with animals sexually' (par 54)
•'One had a Shetland pony' (par 55)
•'there was one of girls being raped by older men' (par 57).
According to Ms Richardson, the accused told her that he had downloaded the material.
The following morning, Ms Richardson told a friend about what she had seen. Together, Ms Richardson and her friend looked at the computer and found images and a video of naked young girls on the computer (par 72).
The confession to Ms Richardson to sexually abusing 'Claire'
According to Ms Richardson, on the same day that she and her friend looked at the computer and found child pornography on it, the accused made a detailed confession to her to sexually abusing a child called 'C' in Western Australia. The details of the alleged confession include that:
•He had just broken up with his girlfriend L who had stayed with him in his home in South Australia, but had since moved back to Western Australia. L had a 6‑year‑old daughter called C and other children. L lived in a caravan park in WA.
•He would play with C's vagina whilst she was in their bed. L would pretend to be asleep at the time. C enjoyed having her clitoris stimulated by him (pars 98 and 99).
•L would bring C to him when he was in the shower and he would shower with C (par 103).
•C would either be in the room or outside when they had sex. She would get jealous when he and L had sex in the bed and would get into bed whilst they were having sex (pars 104 and 105).
•He would put C's hand on his erect penis (par 106).
•He 'massaged C's clitoris and digitally penetrated her' (par 106).
Other sexual conduct involving child pornography in South Australia
Within a week of making the confession to Ms Richardson about sexually abusing C, she found him masturbating whilst watching a video on the computer involving a young girl about 6 years old with an older man on a bed (pars 109 ‑ 114).
The Law
As already noted at [3] above, the prosecution submits that the evidence objected to by the accused is admissible under the common law or s 31A of the Act, or both.
Section 31A of the Act: general principles
31Section 31A of the Act provides as follows:
31A.Propensity and relationship evidence
(1)In this section -
propensity evidence means -
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had;
relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time.
(2)Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers -
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
It is clear that s 31A (1) draws a distinction between 'propensity evidence' and 'relationship evidence'. The definitions of both propensity evidence and relationship evidence are extremely broad. If the evidence falls under one or both of those categories, then the evidence is, subject to the court being satisfied of certain conditions, admissible. Those conditions are:
•the evidence has significant probative value (s 31A(2)(a); and
•that the probative value is such that the public interest in adducing the evidence of guilt has priority over the risk of an unfair trial (s 31A(2)(b)).
The general principles relating to propensity evidence are well‑established. The probative value of evidence is the extent of its relevance. Evidence is relevant if it 'would', as distinct from 'could', either by itself or having regard to other evidence adduced or to be adduced rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings': see Donaldson v The State of Western Australia [2005] WASCA 196 [118]; (2005) 31 WAR 122 (Roberts-Smith JA); Dair v The State of Western Australia [2008] WASCA 72 [60] ‑ [61]; (2008) 36 WAR 413; (2008) 182 A Crim R 385 (Steytler P); Stubley v The State of Western Australia [2011] HCA 7; (2011) 242 CLR 374; Daniels v The State of Western Australia [2012] WASCA 213.
So far as the need to for the court to find that the evidence has significant probative value, the phrase 'significant probative value' in the context of s 31A of the Act means 'more than mere relevance, but something less than a 'substantial' degree of relevance. It connotes a probative value which is 'important' or 'of consequence': see Dair [61] (Steytler P).
The significance of the probative value depends on the nature of the facts in issue (Dair [61] (Steytler P) and [176] (Miller JA)). The interval of time between the alleged acts may be a relevant consideration in determining whether or not the propensity evidence has significant probative value, but 'it will not necessarily be determinative of that assessment': see Bennett v The State of Western Australia [2012] WASCA 70 [37] (Martin CJ).
So far as the risk of an unfair trial needs to be considered, it is the risk of prejudice arising from the evidence. In other words, the risk is that the jury will act illogically. The court is required to decide whether fair‑minded people would think that the interests of justice required the admission of the evidence despite its risks': The State of Western Australia v Osborne [2007] WASCA 183 [38] (Pullin J), Dair [51], [63] ‑ [64] (Steytler P) and [182] (Miller JA); Prestonv The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347 [40] and [43] (Mazza J). It is necessary to take into account any directions that might be given to the jury in an attempt to overcome the prejudice and its likely effect on the jury: Dair, APC v The State of Western Australia [2012] WASCA 159; (2012) 224 A Crim R 59 [90] (Mazza JA).
In considering an application to adduce evidence under s 31A, the court must therefore address the following questions:
(1)Is the evidence 'propensity evidence' or 'relationship evidence' as defined, or both?
(2)If so, does the evidence have 'significant' probative value?
(3)Is the probative value of the evidence, compared to the degree of risk of an unfair trial, such that fair-minded people would think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial, taking into account any directions that might be given in an attempt to overcome the prejudice, and their likely effect?
Relationship Evidence – the Common Law
Relationship evidence has long been admissible in criminal trials pursuant to the common law. In KRM v The Queen [2001] HCA 11; (2006) 206 CLR 221; (2006) 178 ALR 385; (2006) 75 ALJR 550, McHugh J said:
In cases concerning sexual offences, evidence of uncharged acts between the accused and the complainant has long been admitted where it tends to explain the relationship of the parties or makes it more probable that the charged acts occurred. Thus, evidence of uncharged acts may explain why, on the occasion or occasions charged, the complainant did not rebuff the accused or showed no distress or resentment. It may also tend to prove that the accused had an unnatural passion for the complainant and thus prove the motive for committing the crime charged.
The High Court in HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334 [499] (Kiefel J) followed KRM v The Queen.
The State's Application to lead the evidence
The South Australian offence (Child Witness Interview pages 40 – 55)
The 'First Limb' of the application
The State submits that the nature of the conduct and circumstances relating to the South Australian offence are very similar in nature to the offending the subject of the Western Australian offence. In that regard, I note that allegations relevant to both offences involve the accused dealing with the complainant, who was aged between 7 and 10 years at the time, in a similar way, namely:
•approaching the child when she was asleep; and
•removing or lifting up a blanket covering the child; and
•pulling the complainant's underwear or pants down; and
•digitally penetrating the complainant.
The State contends that the evidence of the South Australian offence is either admissible as 'relationship evidence' pursuant to s 31A(1) of the Act, or under the common law. In particular, the prosecution submits that pursuant to s 31A of the Act it is admissible, in combination with other evidence, to prove that the accused had a sexual interest in underage children, in particular young girls.
The state also relies upon the admission of the evidence as relationship evidence pursuant to the common law on the basis that the South Australian offence will explain why the complainant, during the Western Australian offence, kept her eyes closed during some of the incident. The complainant says she did so because she knew who the offender was and that she hoped, like the South Australian offence, he would desist quickly.
Whilst conceding that the evidence is clearly relevant and would commonly be admissible, the accused objects to the evidence of the South Australian offence on a number of grounds.
Firstly, the accused submits that the South Australian offence does not have significant probative value.
Secondly, the accused raises the question of the inherent unfairness that the South Australian offence would occasion in the particular circumstances of this case. In doing so, there is a need to assess whether, notwithstanding that the South Australian offence may properly be described as having significant probative value, nonetheless the degree of risk of an unfair trial is such that fair‑minded people would not think that the public interest in adducing all relevant evidence should take priority over the risk of an unfair trial. This exercise requires a consideration of the history of the proceedings, the consequences of the delay, as well as any directions that might be given in an attempt to overcome the prejudice and their likely effect.
Is the evidence propensity or relationship evidence?
The evidence of the South Australian offence is clearly relevant. It is evidence of similar conduct committed on the same complainant. It is both propensity evidence and relationship evidence pursuant to s 31A of the Act in that it is, at the least, relevant 'other evidence of the conduct of the accused person' (s 31A(1)(a), and evidence of the conduct of the accused person towards another person (s 31A(1)(b))).
The South Australian evidence is also relationship evidence as defined by s 31A of the Act in that it has the tendency to prove, in combination with other relevant evidence that the accused had a particular attitude towards the complainant, namely a sexual interest in her.
Does the evidence have significant probative value?
When assessing the question of whether the other evidence has significant probative value, the court may be required to consider things such as
the nature, quality, extent and duration of the conduct the subject of the propensity evidence, the nature, quality, extent and duration of the conduct the subject of the charges, and the extent of any rational connection between the conduct the subject of the propensity evidence and the conduct the subject of the charges all bear on whether the propensity evidence has significant probative value.
These matters 'all bear on whether the propensity evidence has significant probative value': DKA vThe State of Western Australia [2017] WASCA 44 [37] (Martin CJ).
Turning to the question of whether the evidence in this case has the quality of being of significant probative value, I note that unlike in the recent case of DKA vThe State of Western Australia, the South Australian offence is both conduct of a similar kind to that which is alleged on the indictment and temporally connected.
In the joint judgment of French CJ, Kiefel, Bell And Keane JJ in IMM v The Queen [2016] HCA 14; (2016) 330 ALR 382; (2016) 90 ALJR 529, the High Court said [62]:
In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
It is clearly the case that the allegations forming the South Australian offence are from the same complainant. Consequently, when considering the question of whether the evidence is of significant probative value, in isolation the complainant's evidence about the South Australian offence could not be regarded as having the requisite degree of probative value. This is because its strength lies in its capacity to support her credibility. Whether the complainant asserts that the conduct occurred on one or more times could not of itself support her credibility.
In this case however, the South Australian evidence is not to be considered in isolation. The State relies upon the combination of additional evidence to satisfy the criteria of significant probative value. That admissible evidence, particularly some of the conduct particularised by the proposed witness Ms Richardson, is further considered below. The South Australian evidence has the tendency to prove, in combination with other relevant evidence, that the accused had a particular attitude towards the complainant, namely a sexual interest in her. In that regard I am satisfied that it has significant probative value.
When the 'fair-minded people' test is applied does the admission of the evidence take priority over the risk of an unfair trial?
There is no doubt that the prosecution's delay in bringing the Western Australian offence to trial will cause the accused some prejudice. The delay has meant that potential inconsistencies in the account given by the complainant to South Australian prosecutor and the deficiencies in memory noted at the time may now not be able to be fully explored. There may also be difficulties in proving any prior inconsistent statements allegedly made by the complainant at the time that she was proofed for the South Australian offence. All of that information has not however, been completely lost. There are notes available to the accused relevant to what she said to the South Australian prosecutor. In light of these issues, this is clearly a case where the sort of direction discussed in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 will be required. In my view, an appropriate direction to the jury is capable of overcoming any prejudice and likely effect upon the accused's defence of the charge.
Is the South Australian offence otherwise admissible under the common law?
If I am wrong about the evidence relating to the South Australian offence being admissible pursuant to s 31A of the Act, it is otherwise admissible as common law relationship evidence in that it is relevant to explain the complainant's conduct at the time of the Western Australian offence. The South Australian offence is relevant on the State's case to put into proper context why the complainant kept her eyes closed and reacted in the way she did by rolling away, rather than other means of rebuffing the accused's advances. It is the sort of conduct that is relevant to explain the true nature of the relationship between the complainant and the accused: see LBC v The State of Western Australia [2011] WASCA 201 [31] (Martin CJ).
The accused's convictions in South Australia for producing child exploitation material and the underlying circumstances - The 'Second and Third Limbs' of the State's Application
The State seeks to prove the accused's convictions in relation to the South Australia offences for producing child exploitation material and the underlying circumstances of those offences by apparently seeking to tender a printout of a document from South Australia referencing the three convictions for producing child pornography. The only document I have seen on the brief is that which is titled 'Crimtrac Referral Report - Proven Offences'. The document appears to be computer-generated and purports to record the District Court hearing outcome (Printout of South Australian Convictions).
It must be accepted that a conviction for a relevant offence may be admissible as evidence of the occurrence of the facts constituting commission of the offence by the offender: Bennett v The State of Western Australia [33] (Martin CJ).
So far as proving the underlying circumstances of the convictions, the prosecution seeks to tender the sentencing remarks attributed to His Honour Judge Costello at the accused's sentencing hearing on 20 May 2015. I note that the document the State intends to rely upon is set out at pages 121 ‑ 125 of the brief. The Document is described as being an internet version and is headed 'Settled by His Honour Judge Costello – 22 May 2015' (Internet Version of the South Australian Sentencing Remarks).
I note that 'a plea of guilty to a criminal charge necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence': Bennett [110] Buss JA. In this case, the prosecution seeks to prove the underlying facts, which are somewhat unusual, by relying upon the South Australian Sentencing Remarks. As Buss JA noted in Bennett [133]:
if any other facts or circumstances relating to the previous conviction (beyond or apart from the fact of the conviction and the material facts comprising the elements of the offence) are admissible in evidence at a later criminal trial (for example, as 'propensity evidence' under s 31A of the Evidence Act), then those facts or circumstances must be proved in the ordinary way; for example, by calling oral evidence from witnesses who are able to give relevant direct or circumstantial evidence. Such other facts or circumstances are not incontrovertible.
Whilst the evidence of the accused's convictions in South Australia for producing child exploitation material and the underlying circumstances may be capable of being proved 'in the ordinary way', neither the printout of the South Australian Convictions nor the Internet Version of the South Australian Sentencing Remarks are documents that are admissible in evidence in these proceedings.
In any event, I would not have allowed the conviction and underlying circumstances relating to the accused's discussion with HA on 19 January 2014, wherein he apparently posed as an adult homosexual female and discussed with her a sexual encounter he had involving penile/vaginal intercourse with a 15‑year‑old boy. In my view, that conduct does not have the character and quality necessary to constitute evidence being of significant probative value.
For present purposes, I do not need to consider whether the other two convictions and the underlying conduct is admissible pursuant to either s 31A of the Act or the common law since the documents are clearly inadmissible.
The Statement of Ms Richardson – The 'Fourth Limb' of the State's Application
The statement from Ms Richardson details a number of allegations now sought to be led by the prosecution (I note that the State abandoned one area of Ms Richardson's proposed evidence that now no longer needs to be considered - pars 30 ‑ 38). The evidence that the State does now seek to lead from Ms Richardson can be separated into two categories:
(a) The child pornography on the home computer in South Australia; and
(b) The alleged confession to Ms Richardson to sexually abusing 'Claire'.
(a) The child pornography on the home computer in South Australia
The material that Ms Richardson says she was either shown by the accused, or discovered herself is set out in her statement as follows:
•'pictures of naked girls who … looked around 4 years old' (par 51)
•'A video titled "4 year old being raped"' (par 52)
•'thousands of files' (par 53)
•'Files showing young naked girls with animals sexually' (par 54)
•'One had a Shetland pony' (par 55)
•'there was one of girls being raped by older men' (par 57)
•images and a video of naked young girls on the computer (par 72).
Ms Richardson alleges that the accused admitted to her that he had downloaded the material.
Ms Richardson also asserts that on one occasion she found the accused masturbating whilst watching a video on the computer involving a young girl of about 6 years old with an older man on a bed (pars 109 ‑ 114).
The accused objects to this evidence. Firstly, the accused submits that there is no evidence to support Ms Richardson's assertion that the accused possessed or downloaded this material. This submission simply goes to the question of the weight that may be attributed to Ms Richardson's evidence and is not of itself a basis to exclude evidence that may otherwise be admissible.
Secondly, the accused submits that merely viewing or possessing child pornography does not and without more, cannot provide a foundation for an inference that the accused has a tendency to act in a particular way or to have a particular state of mind in respect of this complainant'. (See par 27 of the 'Respondent's [Accused's] Outline of Submissions Opposing the State's Application to Adduce Evidence Pursuant to s 31A of the Evidence Act' dated 25 March 2017).
Thirdly, the accused submits that there is a 'significant temporal gap between this offending and the offending the subject of the trial'. (See par 28 of the 'Respondent's [Accused's] Outline of Submissions Opposing the State's Application to Adduce Evidence Pursuant to s 31A of the Evidence Act' dated 25 March 2017).
Fourthly, in addition, the accused submits that there is a 'fundamental difference between the nature, quality, extent and duration of the conduct or conviction sought to be led and that the subject of the charges' which is clearly a reference to the Court of Appeal's reasoning in DKA v The State of Western Australia. (See the 'Respondent's [Accused's] Outline of Submissions Opposing the State's Application to Adduce Evidence Pursuant to s 31A of the Evidence Act' dated 25 March 2017).
Does the evidence relating to the child pornography constitute propensity or relationship evidence pursuant to s 31 A of the Act?
In my view, in the context of all the admissible evidence in this case, watching or possessing child pornography, is relevant in the sense that it is at least evidence capable of demonstrating the attitude or conduct of the accused towards a class of persons, namely to have a sexual interest in females under the age of 13.
Does the evidence have significant probative value?
Merely being propensity evidence is not enough. The accused's position on this application is that the 'child pornography evidence in South Australia' does not have significant probative value in relation to the count on the indictment.
So far as the State asserts that the evidence goes to prove that the accused had a sexual interest in young female children, I note that a court needs to be properly satisfied that the evidence is capable of supporting such an inference: APC v The State of Western Australia [96] ‑ [100] (Mazza JA).
The accused submits that merely being in possession of child pornography, even masturbating whilst viewing it, falls short of being capable of satisfying the test of significant probative value.
I have looked for cases in this state involving the admission of evidence of child pornography (also referred to as child exploitation material) on the basis that it was propensity evidence. Surprisingly, I have not been able to find any Court of Appeal authorities in this State. I note that in other states, at least Victoria, New South Wales, Queensland, South Australia and Tasmania the issue has been considered.
It is important to note that in each of those States where uniform evidence legislation has been applied, the test for the admission of propensity evidence is different to s 31A. Nonetheless, the question of whether the evidence has significant probative value is part of the question to be considered under uniform evidence legislation in other states.
There are a number of cases which deal with the issue of the admissibility of evidence of the possession of indecent material, as propensity or tendency evidence in cases of sexual offences. Many deal with the admissibility of evidence under the uniform evidence law. The cases, which are discussed below, demonstrate that the admissibility of the evidence in each case depends upon the nature of the fact or facts in issue to which the evidence is said to be relevant and the importance it has in establishing that fact or facts; regard must be had to the other evidence to be adduced. There is also clearly a need to ascertain and assess the logical nexus between the evidence in question and the facts in issue: R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286, 316 [125]; DKA vThe State of Western Australia [37] (Martin CJ); Tasmania v Martin (No 2) [2011] TASSC 36 [35] (Porter J).
In R v Jolly[1998] 4 VR 495, the accused was charged with one count of committing an indecent act with a child under the age of 16, and one count of sexual penetration with a child aged between 10 and 16. The first count involved the taking of indecent photographs of the complainant. The trial judge allowed the admission into evidence of 96 photographs taken by the accused on various occasions. These showed a boy and some girls of a similar age to the complainant and were similar in nature to the photographs the subject of the count. The appeal court upheld the trial judge's decision to admit the photographs. It should be note that in doing so, the court held that the probative value lay in the improbability that the complainant would depose to photographs being taken of her of such a similar nature unless she had, in fact, been so photographed. This provided corroboration of the complainant's evidence and tended to rebut any suggestion of innocent association.
In R v May [2007] QCA 333 the accused faced trial in relation to six charges relating to the possession of child pornography together with a number of counts of sexual offences involving his own daughter. The evidence of the possession of child pornography was relied upon over and above that which encompassed by the possession charges.
The trial judge told the jury that they might conclude that the accused had a sexual predilection towards young children, which may well assist 'in an appropriate way in deciding the matter properly'. The trial judge also described it as 'background evidence' providing the context in which the various acts occurred, and said that the evidence on the possession charges was relevant to establish the identity of the accused as the person in email correspondence with the acquaintance. At [37] Holmes JA ultimately concluded that the 'notion that it was admissible as showing 'sexual predilection' is simply wrong'.
In R v MM[2004] NSWCCA 364 the accused was charged with a number of counts of indecent assault and sexual intercourse involving the same complainant, alleged to have been between seven and ten years old at the times of the various crimes. The first three charges were heard on the same occasion, it being alleged that the accused showed the complainant images on the computer that included images of an adult and two female children who were naked and engaged in sexual acts. The final three charges also involved the one occasion during which it was alleged that the accused took a photograph of the complainant with her skirt pulled up.
During the trial the Crown sought to lead evidence of the discovery on the accused's computer of pornographic images of young female children, one example being of a female child of about 7 years of age. The trial judge refused to admit the evidence, on the basis that the collection and viewing of child pornography was different in nature from the criminal acts of which the respondent had been charged, and that evidence of sexual fantasies by the respondent could not establish a tendency to act in the ways in which the Crown alleged the respondent acted.
On appeal, the court held that the evidence, regarded as evidence of a tendency which the respondent had, was relevant. At [61] James J (with whom McClellan AJA and Grove J agreed) said:
I do not accept that the evidence, regarded as evidence of a tendency the respondent had, was irrelevant. Evidence that the respondent, as a person charged with offences of child sexual assault, had collected and viewed child pornography and had fantasised about sexual acts with children satisfies the criterion of relevance under s 55 of the Evidence Act, in that the evidence is capable of rendering more probable that the respondent acted in the ways in which he is alleged by the Crown to have acted. In my opinion, no expert evidence was required in order to make such evidence admissible. It is in accordance with common human experience that a person who has had thoughts, particularly persistent thoughts, about some type of act is, at least to some extent, more likely to perform an act of that type than a person who has never had such thoughts. It is not to the point that many persons who fantasise about some act never actually do it.
It is important to note that in R v MM, the court was not required to consider whether the evidence had significant probative value.
In R v S, PC [2008] SASC 285; (2008) 102 SASR 199, the accused was charged with three counts of indecent assault and one count of gross indecency on a young male person. The evidence at trial included details of arrangements made by the appellant for nude photographs of the complainant to have been taken. The photographs themselves were not tendered in evidence. The photographs did not depict the complainant in what might be called pornographic poses. On appeal, at [26], the court noted that the evidence of the photographs was left to the jury as evidence of the general disposition to engage in sexual conduct with young boys. It was held that in the absence of a more specific purpose beyond a general disposition, there was a clear danger of prejudice and a real risk of a miscarriage of justice. It was said that the situation would have been different if the evidence had been led to establish a particular disposition as opposed to a general disposition.
In AW v The Queen [2009] NSWCCA 1, the appellant had been convicted of four sexual offences against the complainant, his stepdaughter. Tendency evidence had been admitted from the complainant and her mother to the effect that the appellant had accessed child pornography on the internet. Latham J, with whom Bell JA and Fullerton J agreed, concluded that proof that the appellant had access to 'hardcore child pornography ' at a time which coincided with the commission of the third and fourth counts on the indictment, and the fact that the third count alleged an act of cunnilingus which was consistent with the type of activity which the complainant had said was depicted on the computer screen, entitled the trial judge to reach the conclusion that it had significant probative value which substantially outweighed its prejudicial effect.
In Tasmania v Martin(No 2), the accused faced four counts, being two sexual offences against a 12‑year‑old complainant, producing child exploitation material, and possession of child exploitation material. The first three counts all involved the same 12‑year‑old complainant. The fourth count related to police finding at the accused's home, a quantity of sexually related and pornographic material covering a wide range of subject matter. The material seized by the police included:
•Some material of adults only.
•Many images of young females under the age of 17 years.
•Some images depicting sexual activity involving young boys, either with other young boys or with adult males.
•Images of naked females appearing to be over the age of 17 which were taken by the accused; some depicting sexual activity between the accused and the female.
| 88 The prosecution sought to rely upon the material, including some of the material the subject of count 4, as tendency evidence pursuant to s 97 of the Evidence Act 2001 (Tas). Pursuant to that Act, tendency evidence, even if relevant, is inadmissible if the court thinks the evidence, either by itself, or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, would not have significant probative value. The prosecution sought to rely upon the possession and manner of keeping the various images to show that the accused had a sexual interest in 'underage' females, including girls of about the same age as the complainant, which activity includes the collection and arrangement of images for observation. In addition, the prosecution contended that that the accused's state of mind in the form of sexual interest meant that it was more probable that the accused was satisfying, or giving expression to that interest in carrying out the first three counts on the indictment. 89 Porter J ultimately found that evidence of possession of the material did not have probative value of sufficient significance in terms of the issues at trial. The evidence was capable of establishing a general tendency, in the sense of a sexual interest in young females, but as that interest was not an exclusive one, and beyond that there was nothing in particular having any probative value to establish that the accused would act on that sexual interest and commit the crimes as charged. In addition, there was 'no particular nexus between the level of sexual interest which may be established by the material, and the matters in issue'. Consequently, the 'generality of the tendency alleged' caused the learned judge to conclude that it did not have significant probative value. |
In JLS v The Queen [2010] VSCA 209; (2010) 28 VR 328 (25 August 2010) (Redlich JA), with reference to the cases of Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463 and AW v The Queen said:
The above views expressed in Qualtieri and AW as to 'probative value', in my respectful opinion wrongly focus upon the credibility of or weight that might be given to such other evidence of sexual acts. It is not to the point that it might be viewed as having no greater credibility than the evidence of the charged acts. What must be considered is the contribution which such evidence might make, if accepted, to whether the facts to be proved are rendered more likely to have occurred.
Looking at the specific allegations and descriptions of the material that Ms Richardson said she saw on the computer, I note that she has described the material as 'child pornography'. That is ultimately not only a broad description, but her opinion of what was depicted on the computer. What is required is the detail of what the images actually were. In that regard, the only description that Ms Richardson gave that sufficiently describe what she saw is the reference to 'pictures of naked girls who … looked around 4 years old' (par 51).
The remaining references are too broad, lacking in detail and too generalised to satisfy a conclusion, as Ms Richardson did, that they were images or videos amounting to child pornography. Merely asserting that they were of young girls does not allow the court to conclude they were under the age of 18, let alone under 13 years of age.
Ms Richardson's description of finding the accused masturbating whilst watching a video on the computer involving a young girl of about 6 years old with an older man on a bed (pars 109 ‑ 114), lacks any detail as to what the 6‑year‑old and the man were actually doing. To take the next step, based upon the description in her statement, that the accused was masturbating whilst viewing child pornography, calls for speculation about what he was actually viewing.
With respect to the need to for there to be a temporal connection between the conduct and the offence charged, I note that Ms Richardson's account of these events suggests that they occurred in about the middle of 2003. The offence charged on the indictment is particularised as being between 30 November 2002 and 1 January 2003. In my view, the time periods are sufficiently close to be said to be temporally connected.
In my view, Ms Richardson's proposed evidence that she saw 'pictures of naked girls who … looked around 4 years old' (par 51) is evidence that has a significant probative value in that it is capable, in combination with the South Australian offence, of demonstrating that the accused had a sexual interest in female children under the age of 13.
On the current statement of Ms Richardson, the remaining evidence relating to the child pornography on the home computer in South Australia is not admissible.
(b) The alleged confession to Ms Richardson to sexually abusing 'C' (Pars 88 – 106)
The prosecution, in its 'Further Outline of Submissions in Support of State's Application to Adduce Evidence Pursuant to s 31 A of the Evidence Act' dated 22 March 2017, particularises the evidence sought to be lead as the accused's confession to Ms Richardson that 'he stimulated the clitoris of and digitally penetrated the vagina of a young girl called "C", who was "L's" daughter'.
I note that Ms Richardson alleges that the accused made admissions that included:
•Playing with C's vagina when she was in their (the accused's and L's) bed and whilst L pretended to be asleep (par 98)
•That C enjoyed him stimulating her clitoris (par 99)
•Showering with C, who was brought to the shower by L (par 103)
•That C would get into the bed when he and L were having sex (par 104)
•That he and L had sex when C was either in the room or outside the room in earshot (par 105)
•That he placed C's hand on his erect penis (par 106)
•That he massaged Cs clitoris and digitally penetrated her (par 106).
The accused submits that the conduct described by Ms Richardson, particularly the admission that he digitally penetrated C, is a reference to the South Australian offence, not the charge on the indictment. Furthermore, the balance of the alleged confession does not match the allegations raised by the complainant.
In the alternative, the accused submits that the circumstances discussed by Ms Richardson in her statement makes it, at the very least, equivocal in the sense that it would be impossible to be satisfied as to whether it is a confession to the count on the indictment or the South Australian offence.
It is of note that the only part of the alleged conversation between the accused and Ms Richardson that is capable of amounting to a confession to the charge on the indictment is that of digitally penetrating the complainant. None of the remaining alleged admissions are consistent with the allegations made by the complainant. For that reason alone, I would have excluded those other irrelevant parts of the alleged admissions made by the accused to Ms Richardson in the exercise of my discretion to ensure a fair trial for the accused. Not only does the complainant make no mention of most of the allegations raised by Ms Richardson, but neither does her mother LW.
In relation to the alleged admission to digitally penetrating C, when pars 88 ‑ 106 are read in context, it is clear that Ms Richardson is referring to allegations said to have occurred in South Australia. Consequently, I am of the view that it is not a confession to the charge on the indictment.
Since the prosecution conceded that if I concluded the alleged confession related only to the South Australian offence 'then it wouldn't be admissible because it's not a confession to the charge on the indictment' (see prosecutor's oral submissions, 24 March 2017, ts 50), I need not consider the matter further.
In the circumstances, I do not need to consider whether the jury could nonetheless use the evidence to decide whether the accused committed the South Australian offence. Since the South Australian offence is obviously an issue or fact relevant to the ultimate issue in this trial, namely whether he committed the offence on the indictment, it may have been considered to be otherwise admissible, not to prove his guilt of the offence on the indictment, but rather as being relevant in considering the South Australian offence (See cases such as Khalil v The Queen (1987) 44 SASR 23 [37] O'Loughlin J; WK v The Queen [2002] WASCA 176).
Consequently, I rule that the accused's alleged confession to Ms Richardson of sexually abusing C is inadmissible.
Conclusion
The following evidence is admissible:
•The complainants evidence relating to the South Australian offence (Child Witness Interview, pages 40 ‑ 55 of Prosecution Brief).
•The evidence from Ms Richardson relating to the child pornography on the home computer in South Australia, limited to her evidence that evidence that she saw 'pictures of naked girls who … looked around 4 years old' (par 51 of her statement) and the fact that the accused admitted to her that he downloaded the material.
The balance of the State's application is dismissed.
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