Citation: R v Cannon (No. 2) [2020] NSWDC 356
Court: District Court of New South Wales
Date: 17 June 2020
Judge(s): Bennett SC DCJ
Background
The accused faced trial on 16 charges under the Crimes Act 1900, including multiple counts under sections 61M(2), 66C(3) and 66D. All alleged offences involved a single complainant who was aged 13 to 14 years at the relevant times, and were said to have occurred between January 2017 and July 2018.
The accused pleaded not guilty. Before trial, the defence indicated it intended to call witnesses to give evidence of his good character, including his attitude and conduct toward children. Three proposed witnesses had prepared written statements in that regard.
The Crown sought an advance ruling under section 192A of the Evidence Act 1995. It wanted to know whether, if the defence adduced that good character evidence, the Crown would be permitted to call rebuttal evidence under section 110(2) of the Act. The proposed rebuttal evidence consisted of web browsing history extracted from the accused's iPhone 6, analysed by police using the Cellebrite forensic tool after his arrest in December 2018.
Legal Issues
- Whether the Crown should be granted leave to adduce rebuttal evidence under section 110(2) of the Evidence Act 1995 if the accused leads evidence of good character.
- Whether the web history extracted from the accused's phone was capable of proving, at least by implication, that the accused was not a person of good character as described by the proposed witnesses.
- Whether the phone evidence should be excluded under section 135 of the Evidence Act (general discretion to exclude where probative value is substantially outweighed by unfair prejudice or other factors).
- Whether the phone evidence must be excluded under section 137 of the Evidence Act (mandatory exclusion where probative value is outweighed by danger of unfair prejudice).
Decision
Issue 1: Whether the phone evidence was capable of rebutting good character
The court found that the proposed character evidence went beyond the accused's lack of prior convictions. The written summaries from witnesses addressed the accused's general character, including his conduct and attitude toward children. The web browsing history, found on a phone the accused admitted using, contained titles and URLs consistent with sites holding sexual content involving young females and potentially child abuse material. The court applied the reasoning in Clegg v R [2017] NSWCCA 125 regarding the phrase "directly or by implication" in section 110. The evidence was capable of proving by implication that the accused was not a person of good character as depicted by the proposed witnesses (at [51]).
Issue 2: Objections to the form and provenance of the phone evidence
The defence argued the evidence was incomplete: there was no direct proof that the accused personally accessed the sites, that content was actually viewed or downloaded, or that the sites contained child abuse material. The court acknowledged these limitations but found that the evidence nonetheless allowed the inference that the phone in the accused's control was used to access the sites (at [51]). It noted the accused was not the only possible user of the phone, and that arguments of that kind would be available to the defence before the jury (at [52]-[53]).
Issue 3: Sections 135 and 137 exclusion
Under section 135, the court was satisfied the probative value of the evidence was not substantially outweighed by unfair prejudice, a misleading or confusing effect, or undue waste of time (at [52]). Under section 137, the court was satisfied the probative value was significant and not outweighed by the danger of unfair prejudice to the accused (at [54]). The evidence would be admitted only for the limited purpose of rebutting good character, and the court noted the jury would require careful direction to that effect (at [53]).
Issue 4: Conditional nature of the ruling
The ruling was expressly conditional. The Crown's entitlement to adduce the phone evidence only arises if the accused chooses to lead the proposed good character evidence. If the accused does not call those witnesses, the Crown does not intend to use the phone material (at [15], [55]).
Orders Made
- The accused is permitted to lead evidence of good character from the proposed witnesses.
- Should the accused do so, the Crown is permitted to adduce evidence of the connection between the accused's phone and the websites referred to in the judgment, as contained in the Cellebrite extraction report.
Key Takeaways
- Under section 110(2) of the Evidence Act 1995, the Crown may adduce rebuttal evidence where a defendant's good character evidence goes beyond the absence of prior convictions to encompass general character traits, including conduct toward children, whether that evidence is established "directly or by implication."
- Web browsing history recovered from a phone that the accused acknowledged using was held capable of constituting rebuttal evidence of good character, even in the absence of direct proof that the accused personally accessed the sites or that content was downloaded.
- The District Court confirmed that the conditional and limited purpose for which rebuttal evidence is adduced is central to the sections 135 and 137 balancing exercise: evidence that might otherwise be problematic can survive both discretionary and mandatory exclusion tests when confined to a specific, permissible use.
- Applying Clegg v R [2017] NSWCCA 125, the phrase "directly or by implication" in section 110 of the Evidence Act has meaningful breadth, and evidence need not directly establish bad character to qualify as rebuttal evidence under that provision.
- An advance ruling under section 192A of the Evidence Act is an appropriate mechanism for resolving these questions before trial, preserving the accused's ability to make an informed decision about whether to call character witnesses.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Evidence Act 1995
Cases
- Clegg v R [2017] NSWCCA 125