Citation: R v Robert Leslie Watson (No 2) [2018] NSWDC 186
Court: District Court of New South Wales
Date: 18 April 2018
Judge(s): Mahony SC DCJ
Background
The accused was arraigned on three counts. Count 1 alleged use of a carriage service to groom and procure a person the accused believed to be a 13-year-old girl, using Facebook, Skype and SMS communications with undercover police operatives. Counts 2 and 3 concerned child abuse material found on a computer the accused was alleged to have used.
The Crown sought a joint trial on all three counts, proposing that evidence relevant to Counts 2 and 3 be admitted as tendency evidence in respect of Count 1. At arraignment, the accused conceded through counsel that he held a sexual interest in "AOI," a person he believed to be under 16 years of age, narrowing the contested issue for Count 1 to a single question of intention.
The accused sought an order separating Count 1 from Counts 2 and 3, arguing that the evidence underlying the latter counts was highly prejudicial and incapable of cure by jury direction. The court was required to rule on both the admissibility of the tendency evidence and the severance application.
Legal Issues
- Whether the tendency evidence (Exhibits A3 to A7) satisfied the requirements of ss 97 and 101 of the Evidence Act 1995 (NSW) for admission in respect of Count 1, having regard to the accused's concession of sexual interest
- Whether the probative value of that evidence substantially outweighed its prejudicial effect on the accused in respect of Count 1
- Whether the interests of justice required a separate trial of Count 1 from Counts 2 and 3 under s 21 of the Criminal Procedure Act 1986
Decision
Issue 1: Significant probative value under s 97
Following the concession made by the accused, the sole fact in issue for Count 1 became whether he had the requisite intention to make it easier to procure the recipient of his communications to engage in sexual activity with him (at [50]). The Crown argued that the tendency evidence, reflecting a generalised sexual interest in young children, remained relevant to that intention. The court accepted that argument in part: evidence of the tendencies described in categories (ii), (iii) and (iv) of the Tendency Notice could go to whether the accused formed the relevant intention, and the court found that this material had significant probative value within the meaning of s 97(1)(b) (at [52]).
Issue 2: Balancing exercise under s 101(2)
The court then applied the balancing test under s 101(2), which requires that the probative value of the tendency evidence substantially outweigh any prejudicial effect before it can be used against a defendant in a criminal proceeding. The court found that Counts 2 and 3 involved conduct of a markedly different character from Count 1: searching for child pornography, accessing relevant websites, and material concerning children aged five years or younger (at [53], [55]). Count 1 involved no such conduct. The court concluded that, while the evidence had significant probative value, that probative value did not substantially outweigh the highly prejudicial effect it would carry. The court found the material was likely to have a substantial emotional impact on a jury, who might give it disproportionate weight even with appropriate directions (at [58]). The Crown's tendency evidence application was accordingly refused (at [59]).
Issue 3: Separate trial
Having rejected the tendency evidence, the court turned to severance. It found that Counts 2 and 3 were not of similar character to Count 1, despite a short overlap in time and the use of the same computer (at [60]). Evidence relevant to Counts 2 and 3 would be embarrassing to the accused and would give rise to a real risk of prejudice that could not be addressed by a conventional jury direction to set the evidence to one side (at [60]). In the interests of justice, the court ordered that Count 1 be tried separately from Counts 2 and 3 (at [61]).
Orders Made
- The Crown application to adduce tendency evidence is refused.
- A separate trial is ordered in respect of Count 1 on the Indictment.
- Leave is granted to the Crown to adduce evidence from the witness Ms Lynne Soles by way of audio-visual link from Armidale, New South Wales.
Key Takeaways
- A concession by an accused as to one element of an offence can substantially alter the tendency evidence landscape: once the accused conceded his sexual interest in the complainant, the only remaining fact in issue for Count 1 was intention, which narrowed the basis on which the Crown could rely on tendency evidence (at [50]).
- Even where tendency evidence clears the significant probative value threshold under s 97(1)(b), admission in criminal proceedings still requires the further finding under s 101(2) that probative value substantially outweighs prejudicial effect (at [52], [58]).
- Where tendency evidence concerns conduct markedly different in character from the charged offence, especially material relating to very young children in a case concerning grooming of an older child, a court may find that its emotional impact on a jury creates prejudice that outweighs its probative force (at [53], [58]).
- The District Court confirmed that the question of severance is closely linked to the admissibility of tendency evidence: where evidence relevant to some counts is inadmissible as tendency evidence on another count, a joint trial may be ordered only if a fair trial can still be guaranteed (at [60]-[61]).
- Overlap in time and shared use of a computer or device between counts does not, of itself, establish that those counts form a series of offences or are of similar character sufficient to support a joint trial (at [60]).
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth)
- Criminal Procedure Act 1986
- Evidence Act 1995
Cases
- BC v R [2015] NSWCCA 327
- BJS v R [2011] NSWCCA 239
- De Jesus v R (1986) 61 ALJR 1
- DPP v FM [2013] VSCA 129
- Dupas v R (2012) 40VR 182
- DSJ v R [2012] NSWCCA 9
- FB v R [2011] NSWCCA 217
- Hughes v R [2017] HCA 20
- IMM v R [2016] HCA 14
- R v Ford [2009] NSWCCA 306
- R v Johnston [2012] ACTSC 89
- R v Lockyer [1986] 89 ACrimR 457
- R v Shamouil (2006) 66 NSWLR 228
- R v XY [2013] NSWCCA 12
- Sutton v R [1984] HCA 5