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District Court 27 August 2008

R v B.G.

[2008] NSWDC 229

Sexual offences
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE TENDENCY AND COINCIDENCE EVIDENCE PHYSICAL EDUCATION TEACHER (ACCUSED) INTERNET CONTACT WITH 3 FEMAL STUDENTS TENDENCY EVIDENCE IDENTIFIED

Citation: R v B.G. [2008] NSWDC 229
Court: District Court of New South Wales
Date: 27 August 2008
Judge(s): Nicholson SC DCJ

Background

The accused was a physical education teacher at a Sydney high school. The Crown alleged that in August 2006 he used MSN Messenger to make contact with a 13-year-old female student in his Year 8 class, and that the communications were directed at procuring or grooming her for sexual activity. He was charged under Commonwealth law with using a carriage service to procure or groom a person under 16, and with using a carriage service in an offensive manner. He pleaded not guilty to all charges. (The accused was ultimately found not guilty of the offence, and all parties are identified by initials only.)

The teacher had provided the student with his Hotmail email address for assignment purposes. The student added that address to her MSN Messenger contacts, and the Crown alleged that sexual or inappropriate communications then followed. At one point, a male student took over the conversation on the female student's behalf, pretending to be her.

Before opening addresses, the Crown served notices under sections 97 and 98 of the Evidence Act 1995 (Cth) indicating its intention to lead tendency and coincidence evidence, including evidence from other female students at the same school who had received similar internet contact from the same email address. The defence objected, and a voir dire was conducted during the first two days of the trial.

  • Whether the proposed evidence satisfied the requirements for tendency evidence under section 97 of the Evidence Act 1995 (Cth)
  • Whether the proposed evidence satisfied the requirements for coincidence evidence under section 98 of the Evidence Act 1995 (Cth)
  • Whether, even if the thresholds were met, the evidence should be excluded under section 101 because its probative value did not significantly outweigh its prejudicial effect
  • Whether there was a reasonable possibility that the evidence from student witnesses was concocted or contaminated, which would have required exclusion on the basis established in Hoch v The Queen

Decision

On the concoction issue, the court was not satisfied that there was a reasonable possibility the student witnesses had concocted or contaminated their accounts. The defence raised the concern but did not, on the voir dire evidence, make it out to the required standard. The court noted that school students can present as uncertain or lacking confidence simply because of their age and inexperience in a courtroom setting, but that this did not establish concoction.

On the tendency evidence, the court found that the evidence from other female students who had received similar internet contact from the same email address demonstrated a tendency relevant to the issues at trial. The tendency evidence was admitted, with one category (item (c) in paragraph 25 of the judgment) excluded. The tendency evidence was relevant to the accused's awareness of the identity and age of the complainant, and alternatively to whether he acted recklessly in that regard.

On the coincidence evidence, the court found that the events described by different student witnesses were substantially and relevantly similar. The improbability that such similar events could have occurred by coincidence gave the evidence significant probative value. The coincidence evidence was admitted.

The court applied the section 101(2) test and found that the probative value of both categories of evidence significantly outweighed any prejudicial effect. It also separately excluded a portion of the internet exchange records (pages 4 and 5 of Exhibit 3) because those pages contained an unsubstantiated allegation against the accused that had no probative value but carried real potential for unfair prejudice.

Orders Made

  • The coincidence evidence as set out in paragraph 18 of the judgment is admitted.
  • The tendency evidence as set out in paragraph 25 of the judgment, except for item (c), is admitted.
  • The evidence identified to counsel on pages 4 and 5 of Exhibit 3 is excluded.

Key Takeaways

  • The District Court confirmed that tendency and coincidence evidence in an online grooming prosecution can be admitted where the events described by different complainants are substantially and relevantly similar, and where the improbability of innocent coincidence gives the evidence significant probative value.
  • A defence argument of concoction or contamination of witness evidence, of the kind recognised in Hoch v The Queen, must be substantiated on the voir dire; raising the possibility without making it out will not lead to exclusion.
  • Under section 101(2) of the Evidence Act 1995 (Cth), probative value must significantly outweigh prejudicial effect before tendency or coincidence evidence can be admitted in criminal proceedings against a defendant. The court found that threshold met on the facts here.
  • Even where a broad category of evidence is admitted, discrete portions can still be excluded if they carry no probative value but present real potential for unfair prejudice. Here, an unsubstantiated allegation in a chat log was excluded on that basis.
  • Tendency and coincidence evidence was found relevant not only to the accused's actual knowledge of the complainant's identity and age, but also to the alternative basis of recklessness as to those matters.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (Cth), sections 97 (tendency evidence), 98 (coincidence evidence), 101 (exclusion where probative value does not significantly outweigh prejudicial effect)

Cases
- R v Colby [1999] NSWCCA 261
- Hoch v The Queen (1988) 165 CLR 292