Citation: Director of Public Prosecutions (NSW) v Cruickshank [2016] NSWLC 16
Court: Local Court of New South Wales
Date: 11 August 2016
Judge(s): Heilpern LCM
Background
The defendant faced charges of indecent assault against two children he had been tutoring in mathematics, as well as separate charges of possessing child abuse material found across three different locations. All charges were heard together in the one proceeding. A central factual issue was whether the touching alleged by the prosecution was sexual in nature.
The prosecution filed a tendency and coincidence notice seeking to use various categories of evidence to support its case across the charges. The defence disputed the admissibility of that evidence, prompting the Magistrate to rule on the notice before the hearing concluded.
Legal Issues
- Whether evidence of one alleged indecent assault could be used as tendency evidence in relation to the other indecent assault allegation
- Whether possession of child abuse material in three separate locations could be used as tendency evidence of a further tendency to possess such material
- Whether possession of child abuse material demonstrated a tendency to be sexually interested in children and to seek sexual gratification from them, making it admissible as tendency evidence on the indecent assault charges
- Whether the possession of child abuse material across three locations could be used as coincidence evidence to prove the defendant's knowledge of that possession
Decision
The Magistrate dealt with the third tendency issue first, as it was the most contested. His Honour expressed personal reservations about whether the bare possession of child abuse material, without more, could rationally support an inference of a tendency to commit indecent assault on children. He noted that without expert or other cogent evidence establishing a connection, he would not ordinarily have been satisfied the material met the significant probative value threshold under section 97 of the Evidence Act 1995.
However, the Magistrate identified two binding decisions of the NSW Court of Criminal Appeal that had admitted similar evidence in comparable circumstances. In both R v MM [2004] NSWCCA 364 and AW v The Queen [2009] NSWCCA 1, evidence of accessing child abuse material was admitted as tendency evidence in child sexual assault proceedings. The Magistrate accepted those authorities as binding but found that the present case was distinguishable. Critically, there was no evidence establishing when the defendant had viewed the material, and therefore no temporal proximity between the possession and the alleged assaults. The degree of particularity and contemporaneity that supported admissibility in those earlier cases was absent here.
The Magistrate also observed that the content of the child abuse material bore no established similarity to the circumstances of the alleged assaults, and that the connection between the possession and the touching allegations was too tenuous to clear the significant probative value hurdle. Accordingly, the third tendency issue was rejected: possession of the material alone, in the absence of other connecting evidence, was insufficient to rationally and significantly affect the probability of the indecent assault allegations.
The first, second, and coincidence issues were resolved in the prosecution's favour. The evidence of one alleged indecent assault was admitted as tendency evidence in relation to the other, and the evidence of possession of child abuse material in each of the three locations was admitted as both tendency and coincidence evidence of the other instances of possession, the latter being relevant to proving the defendant's knowledge.
Orders Made
No orders were made in this decision.
Key Takeaways
- Possession of child abuse material is not automatically admissible as tendency evidence of a propensity to sexually assault children. Absent temporal proximity, content similarity, or other connecting circumstances, the significant probative value threshold under section 97 of the Evidence Act 1995 may not be met.
- The NSW Court of Criminal Appeal decisions in R v MM and AW v The Queen remain binding authority that such evidence can, in appropriate cases, be admitted as tendency evidence, but both decisions turned on specific features including contemporaneity and particularity that must be present.
- Where a defendant faces multiple similar charges tried together, evidence of one alleged act of indecent assault can be admitted as tendency evidence on another, and separate instances of possessing child abuse material can mutually support both tendency and coincidence inferences.
- Coincidence evidence of possession across multiple locations may be used to prove knowledge of that possession, a point the court accepted without controversy on the facts presented.
- In a proceeding where the underlying charge has not yet been proven, the tendency ruling remains provisional: the Magistrate noted that if the child abuse material charges ultimately failed, the tendency argument would need to be revisited.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s 97 (tendency evidence)
- Evidence Act 1995 (NSW), s 55 (relevance)
Cases
- AW v The Queen [2009] NSWCCA 1
- Elomar v R [2014] NSWCCA 303
- IMM v The Queen [2016] HCA 14
- LJW v R [2010] NSWCCA 114
- R v Fletcher [2005] NSWCCA 338
- R v MM [2004] NSWCCA 364
- R v Shamouil [2006] NSWCCA 112