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District Court 14 June 2023

R v Tan

[2023] NSWDC 227

Sexual offences
EVIDENCE ADMISSIBILITY OF EVIDENCE WHETHER TIK TOK VIDEO ADMISSIBLE

Citation: R v Tan [2023] NSWDC 227
Court: District Court of New South Wales
Date: 14 June 2023
Judge: Abadee DCJ

Background

The accused faced five counts on indictment in a judge-alone trial. Counts 1 and 3 alleged sexual intercourse with a 12-year-old complainant in the accused's motor vehicle at Kingsgrove on 12 June 2021, contrary to s 66C(1) of the Crimes Act 1900 (NSW). Counts 2 and 4 alleged he filmed those acts on his mobile phone, producing child abuse material contrary to s 91H(2). Count 5 arose from material found on the accused's phone when he was arrested on 15 July 2021, alleging possession of child abuse material.

The factual contest was significantly narrowed by agreed facts. The accused conceded the complainant was 12 years old during the relevant period, that they met in his vehicle at Kingsgrove, and that videos on his phone depicted the sexual acts alleged in counts 1 and 3. His fundamental defence across all counts was an honest and reasonable but mistaken belief that the complainant was over 16 years of age. For counts 2, 4 and 5, he also invoked defences of innocent production and possession.

The Crown indicated it would not be calling the complainant to give evidence. Before the trial commenced, the parties argued four distinct evidentiary disputes, each addressed in this judgment.

  • Whether passages from the accused's Electronically Recorded Interview with a Suspected Person (ERISP) should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that unfair prejudice substantially outweighed probative value
  • Whether other ERISP passages were inadmissible under s 294CB of the Criminal Procedure Act 1986 (NSW), which restricts certain evidence in proceedings involving child sexual offences
  • Whether a screenshot of the complainant taken from a TikTok video was admissible
  • Whether the complainant's Joint Investigation Response Team (JIRT) interview with police was admissible, given the complainant was not being called as a witness

Decision

ERISP passages (accused's s 137 objection)

The accused objected to four passages in which he discussed struggling to control his high sex drive, steps he had taken to address what he described as a sex addiction, and an exchange in which he acknowledged that, morally, adults should not have sex with children. He argued these passages carried low probative value and a high risk of unfair prejudice in the form of undue weight being placed on his moral failings. Abadee DCJ rejected those submissions. Given the central issue was whether the accused held an honest and reasonable mistaken belief about age, his own admissions about an inability to manage his sex drive were substantially probative as a counterpoint to the defence that he had exercised careful judgment before engaging in sexual activity. The judge also noted that, in a judge-alone trial, placing undue weight on evidence of moral failing was not a realistic concern. All four objections failed.

ERISP passages (Crown's s 294CB application)

One passage was contested by the Crown under s 294CB of the Criminal Procedure Act, which limits evidence about a complainant's prior sexual experience in proceedings of this kind. The judgment resolved this dispute, though the full reasoning on this point is not reproduced in the available text.

TikTok screenshot

The admissibility of a screenshot of the complainant from a TikTok video was also argued. Again, the full reasoning on this discrete issue is not reproduced in the available text.

JIRT interview (complainant not called)

The accused sought to adduce parts of the complainant's JIRT police interview, apparently to challenge the complainant's credibility by confronting the Officer in Charge with selected portions of what the complainant had said. Abadee DCJ rejected this. The court doubted the evidence was even relevant, since the complainant was not being called and consent was not an element of the offences charged. The court held the material was inadmissible under s 135 of the Evidence Act as its probative value was substantially outweighed by the danger of unfair prejudice and confusion. The court also found that s 108A (which allows evidence to challenge a witness's credibility) was unavailable because the Crown had not sought to adduce the JIRT and the complainant's credit was not a fact genuinely in issue. The court further observed that bypassing the notice requirements in s 67 by having the accused tender hearsay evidence of the complainant's prior statements would undermine procedural safeguards built into the legislation.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Where the sole live issue at trial is whether an accused held an honest and reasonable mistaken belief as to age, admissions in a police interview about difficulty controlling sexual urges may carry substantial probative value under s 137 of the Evidence Act and are not automatically excluded simply because they also reflect on the accused's character or moral conduct.

  • In a judge-alone trial, the risk of undue prejudice from evidence touching on moral failings will generally carry less weight than it would in a jury trial, a factor the court expressly considered in the s 137 balancing exercise.

  • A complainant's JIRT interview is not freely available to an accused for the purpose of attacking credibility where the complainant is not called as a witness. The District Court held that s 108A of the Evidence Act is only enlivened once the Crown has itself adduced the complainant's prior representations.

  • The absence of consent as an element of s 66C(1) offences (sexual intercourse with a child aged 10 to 14) means that evidence suggesting the complainant consented cannot substantially affect any assessment of her credibility, since her consent was never a fact she was called to establish.

  • Selective or piecemeal tendering of a complainant's prior statement through the Officer in Charge does not automatically improve an accused's credibility, and the court rejected the premise that diminishing the complainant's credit would, of itself, elevate the reliability of the accused's account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 66C, 80AE, 91FA, 91FB, 91H
- Criminal Procedure Act 1986 (NSW): ss 292E, 294CB
- Evidence Act 1995 (NSW): ss 55, 65, 67, 97, 100, 108A, 135, 136, 137

Cases
- Adams v R [2018] NSWCCA 303
- Aravena v R (2015) 91 NSWLR 258
- CTM v The Queen (2008) 236 CLR 440
- El-Haddad v The Queen (2015) 88 NSWLR 93
- GEH v R [2012] NSWCCA 150
- Hughes v The Queen (2017) 263 CLR 338
- IMM v The Queen (2016) 257 CLR 300
- McPhillamy v The Queen (2018) 361 ALR 13
- R v Cakovski (2004) 149 A Crim R 21
- R v Charbel Rahme [2004] NSWCCA 233
- R v Tubou [2001] NSWCCA 243
- RH v The Queen (2014) 241 A Crim R 1
- TB v R [2019] NSWCCA 224