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District Court 30 June 2026

R v Law

[2026] NSWDC 253

Sexual offences

Citation: R v Law [2026] NSWDC 253
Court: District Court of New South Wales
Date: 30 June 2026
Judge: Montgomery DCJ

Background

The accused faced a seven-count indictment charging him with accessing child abuse material, contrary to s 474.22(1) of the Commonwealth Criminal Code. The central dispute at trial concerned whether the accused had intentionally accessed the material, or was at minimum reckless as to its nature.

A forensic Cellebrite extraction of the accused's iPhone identified child abuse material cached on the device. For five of the seven counts, the material derived from an adult pornography website for which a web clip had been saved to the phone. For the remaining two counts, the material came from websites visited by the accused, though the specific sites could not always be identified. In all instances, the caching occurred automatically, not through deliberate manual downloading.

The Crown applied to adduce tendency evidence, seeking to use each of the seven charged counts, together with three prior offences, as mutual tendency proof that the accused had a sexual interest in children and a tendency to access, possess, or otherwise interact with child abuse material.

  • Whether the proposed tendency evidence satisfied the "significant probative value" threshold under s 97(1)(b) of the Evidence Act 1995 (Cth)
  • Whether, even if that threshold were met, the probative value of the tendency evidence outweighed the danger of unfair prejudice to the accused under s 101(2) of the Evidence Act 1995 (Cth)
  • Whether automatically cached material, absent any evidence of deliberate action by the accused, could form the factual foundation for a tendency inference

Decision

Issue 1: Significant probative value under s 97(1)(b)

The court referred to the High Court's guidance in King v AR [2026] HCA 10 and Director of Public Prosecutions v Roder (2024) 281 CLR 18, which confirm that tendency evidence is a form of circumstantial evidence. An alleged tendency is an intermediate fact requiring proof in its own right before it can be deployed to assist proof of the charges. The court must first assess the strength of the evidence said to establish the tendency, then consider how far the tendency makes the elements of the offences more likely.

Applying that framework, Montgomery DCJ found that the agreed expert facts, drawn from the Cellebrite download, contained nothing to indicate any deliberate act by the accused in relation to the cached material. The caching was entirely automatic. There was no evidence the accused had viewed, displayed, or even been aware of the child abuse material. The court described the evidence as "devoid of evidence indicative of action by the accused" and held it did not rise to significant probative value for the purposes of s 97(1)(b).

Issue 2: Prejudice under s 101(2)

The Crown conceded, appropriately in the court's view, that tendency evidence of this nature carries significant prejudicial risk. The introduction of child abuse material to a jury creates a real danger of emotional reasoning untethered to a dispassionate assessment of the evidence. The Crown argued that proper tendency directions in accordance with Roder and AR would sufficiently mitigate that risk.

Montgomery DCJ rejected that submission. Even accepting for the sake of argument that the evidence had some limited capacity to rationally affect the fact-finding process, it was so slight in its connection to any intentional or reckless conduct by the accused that no proper tendency direction could adequately neutralise the high risk of prejudicial reasoning. The Crown's application was refused on both s 97(1)(b) and s 101(2) grounds.

Orders Made

• The Crown's application to rely on tendency evidence is rejected.

Key Takeaways

  • Under the framework confirmed in King v AR and Roder, tendency evidence requires proof of the alleged tendency as an intermediate fact before it can be used to support proof of a charged offence. Courts must assess the strength of that foundational proof before considering its downstream utility.
  • Automatically cached data on a device, without accompanying evidence of deliberate user action, viewing, or awareness, may be insufficient to establish the factual foundation necessary for tendency evidence to carry significant probative value.
  • The District Court held that the absence of any evidence linking the accused to intentional access of the cached material was fatal to the Crown's tendency application, regardless of the fact that the material existed on his phone.
  • Where tendency evidence involves child abuse material, courts must weigh the inherent prejudicial potency of such evidence carefully. The court found that even properly framed tendency directions may not adequately guard against emotive reasoning where the underlying evidence of deliberate conduct is very thin.
  • Evidence that satisfies neither s 97(1)(b) nor s 101(2) of the Evidence Act 1995 (Cth) is inadmissible for tendency purposes, and both thresholds operate as independent gatekeeping requirements.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth); ss 473.1A, 474.22(1)
- Evidence Act 1995 (Cth); ss 95, 97(1)(a), 97(1)(b), 101(2)

Cases
- Director of Public Prosecutions v Roder (2024) 281 CLR 18
- King v AR [2026] HCA 10