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Court of Criminal Appeal 25 October 2004

Regina v MM

[2004] NSWCCA 364

Sexual offences
CRIMINAL LAW CROWN APPEAL S 5F ADMISSIBILITY OF EVIDENCE CHILD SEXUAL ASSAULT CHARGES

Citation: Regina v MM [2004] NSWCCA 364
Court: New South Wales Court of Criminal Appeal
Date: 25 October 2004
Judge(s): McClellan AJA, Grove J, James J

Background

The respondent, a stepfather, faced eight counts in the District Court relating to alleged sexual offences against his stepdaughter, who was between six and eight years old at the time of the alleged conduct. The charges ranged from indecent assault and acts of indecency to sexual intercourse with a child under ten years, and included an allegation that he showed the child pornographic images on a computer in the family home.

Prior to trial, the respondent had been convicted in the Local Court in 2002 of possessing child pornography and placed on a two-year good behaviour bond. A condition of that bond required him to attend regular meetings with a Probation and Parole officer, during which he made certain admissions. He had also been recorded in a police interview making admissions about downloading child pornography.

The Crown sought to lead two categories of evidence at trial: admissions made to the Probation and Parole officer, and evidence that the respondent had collected and viewed child pornography and had fantasised about sexual acts with children. District Court Judge Maguire rejected both categories. The Director of Public Prosecutions appealed those rulings under section 5F(3A) of the Criminal Appeal Act.

  • Whether the admissions made by the respondent to a Probation and Parole officer were improperly obtained and therefore inadmissible
  • Whether evidence that the respondent collected and viewed child pornography, and had sexual fantasies involving children, was inadmissible as tendency evidence

Decision

On the admissions to the Probation and Parole officer, James J (with whom McClellan AJA and Grove J agreed) found that Judge Maguire had erred in ruling those admissions inadmissible. The Court of Criminal Appeal vacated that ruling but, consistent with its role as an appellate court, declined to itself determine the admissibility questions that the trial judge had not considered, including the relevant provisions of the Evidence Act. Those questions were left for a trial judge to resolve.

On the tendency evidence, Judge Maguire had ruled it inadmissible on the basis that it was simply irrelevant. James J held this was an error. The Court found that evidence of the respondent's collection and viewing of child pornography was relevant, at a minimum, as capable of corroborating aspects of the complainant's account, particularly in relation to the first three counts. The judge had not turned his mind to sections 97(1) or 101(2) of the Evidence Act, or other potentially applicable provisions.

The Court again declined to substitute its own admissibility ruling. The appropriate course was to vacate the District Court's orders and leave the admissibility of the tendency evidence to be determined afresh by a trial judge, applying the correct legal framework.

The High Court decision in BRS v The Queen was distinguished. That case concerned propensity evidence at common law in different factual circumstances, and did not address evidence of a defendant's collection of pornography or sexual fantasies.

Orders Made

  • Appeal allowed
  • Orders made by Judge Maguire on 20 May 2004 rejecting evidence be vacated

Key Takeaways

  • The Court of Criminal Appeal confirmed that it will not substitute its own admissibility rulings where the trial judge failed to consider the relevant statutory provisions in the first place; such questions are remitted for determination by the trial judge.
  • A ruling that evidence is inadmissible on grounds of irrelevance alone will be erroneous where the judge has not engaged with the applicable provisions of the Evidence Act, including the tendency evidence provisions in sections 97 and 101.
  • Evidence that an accused collected and viewed child pornography may be relevant on multiple bases, including as corroboration of a complainant's account, independently of any tendency reasoning.
  • The District Court's treatment of the admissions made to the Probation and Parole officer was found to be erroneous, though the precise admissibility question under the Evidence Act remained open for reconsideration at trial.
  • BRS v The Queen does not preclude the admissibility of evidence concerning an accused's collection of pornography or sexual fantasies; that decision addressed common law propensity principles in a factually distinct context.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW)
- Criminal Appeal Act (NSW), s 5F(3A)
- Evidence Act (NSW), ss 97(1), 101(2)

Cases:
- BRS v The Queen (1996-1997) 191 CLR 275
- R v Dalley (2002) 132 A Crim R 169
- R v Sophear Em [2003] NSWCCA 374