Davidson (a pseudonym) v R

1. [1]

   ADAMSON JA: Scott Davidson (a pseudonym) (the applicant) seeks leave to appeal against his conviction for two counts of sexual intercourse with a child above the age of 14 years and under the age of 16 years in circumstances of aggravation contrary to s 66C(4) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that the child (the complainant) was under his authority. The applicant was convicted on 15 November 2022 following a trial by jury conducted by Haesler SC DCJ (the trial judge). An aggregate sentence of 5 years’ imprisonment with a non-parole period of 3 years was imposed. There is no challenge to the sentence.

2. [2]

   The applicant is referred to by a pseudonym in order not to reveal the identity of the complainant or the applicant’s step-daughter (the step-daughter).

3. [3]

   The single ground of appeal, if leave be granted is:

4. [4]

   The complainant was the applicant’s niece by marriage, as the applicant’s partner, KC, was the complainant’s paternal aunt. The complainant was a ward of the State and had been living with the applicant and his family for nearly two years. The complainant alleged that between October and December 2019, when she was 15 years old, the applicant put his fingers in her vagina on two occasions: while they were in the loungeroom watching television (Count 1) and a few days later when he came into her bedroom (Count 2).

5. [5]

   The Crown relied on tendency evidence to establish that the applicant had a tendency to have a sexual interest in teenage girls aged between 15 and 17 with whom he had a familial relationship but who were not his biological daughters and who were residing with him and under his authority. It sought to establish the tendency by tendering a series of text messages the applicant had sent to the step-daughter in 2016 and 2017, when she was between 16 and 17 years old and lived with the family and the applicant was in his mid-forties. These messages not only suggested that the applicant wanted to touch the step-daughter and see naked photographs of her but also contained admissions he had a sexual interest in her.

6. [6]

   In order to put the tendency evidence in context, it is necessary to summarise some of the evidence in the Crown case.

7. [7]

   The complainant, who was born in January 2004, was taken into the care of the Minister as her mother had not been in a position to care for her or her brother. At different periods during her life the complainant lived with KC. At other times she lived with another paternal aunt, LG. In 2018 and 2019, she was living in KC’s household, where the applicant lived. There were other children living in the house: the biological children of KC and the applicant (two daughters, GC (born 2002) and SC (born 2004) and a son, ZC (born 2005)) and KC’s son from an earlier relationship, CG (born 1998). The step-daughter (born 1999), who was KC’s daughter and CG’s sister, had lived in the household until she moved out in 2017. Shortly after the step-daughter moved out an Apprehended Violence Order (AVO) was served on the applicant. The AVO was made because he had sent the step-daughter a series of sexually explicit text messages.

8. [8]

   The complainant gave evidence of an occasion in about October or November 2019, when she was living in the applicant’s household, when she and the applicant were sitting on the lounge watching NCIS on the television in the lounge room. The other boys were in their rooms, KC was absent and the other girls were also away. The complainant was wearing shorts and underwear. The applicant put his hand on her leg and then up underneath her underwear and was touching her “in there” and “moving it up and down” for a while. When he finished, he asked the complainant whether she was “going to tell Aunty” to which she replied “no”. She said it was weird and it hurt. She then went to the toilet before going to her room.

9. [9]

   A few days after this incident, the complainant was lying on her bed in her bedroom when the applicant appeared in the doorway. The applicant climbed over the pet gate (which was there to stop the cat entering the room), said “hey” and went over to her bed. She was wearing a skirt and underwear. He put his fingers in the complainant’s vagina. The applicant did not say anything. He moved his finger up and down and then he left. At that time, the only other person who was in the house was the complainant’s cousin, CG, who was in his own bedroom. The complainant recalled that CG went to the bathroom, and when he came out of the bathroom the applicant asked the complainant how to do something on the television. CG responded that he knew how to do it.

10. [10]

    The complainant first made allegations on the Australia Day long weekend in 2020. She had gone to the Australia Day carnival in Wollongong with KC and others, including JC, SC and ZC (the complainant’s cousins). The complainant and some of the other children had gone on the Dodgem cars and when they had stopped, KC reprimanded her for ramming the Dodgem car in which her cousins had been riding. JC pushed the complainant and SC hit the complainant in the face with her hand and then with her bag. KC also became involved in the physical altercation. SC was yelling at the complainant and calling her a “ho” (a sexually promiscuous female). The complainant responded by saying to SC, “At least my dad’s not a paedophile”. They returned to the car park and KC told the complainant that she was going home, to which the complainant responded that she was not. KC took the complainant’s mobile phone and left without her. The complainant then found a cleaner whose phone she used to call her other aunt, LG. Arrangements were made for BC, LG’s daughter (and the complainant’s cousin) to pick her up from the train station.

11. [11]

    When BC arrived to collect the complainant, she found her distraught and curled up in a ball at the entrance to the train station. The complainant told her about the fight with KC and that the applicant had touched her and that he was a “drug-dealing paedophile”.

12. [12]

    The complainant was taken to hospital to be treated for the injuries she sustained during the fight. The following day she was interviewed by police and told them what the applicant had done to her.

13. [13]

    The complainant gave evidence that she had been told by a caseworker that the applicant was not supposed to be living with the family as the step-daughter had taken out an AVO against him but that she had not discussed this with the step-daughter.

14. [14]

    The Crown served an amended tendency notice dated 2 October 2020 which identified evidence that was tendered in support of the following tendency:

15. [15]

    The tendency which was ultimately left to the jury was that the applicant had a tendency to have a sexual interest in teenage girls under his care who were not his biological daughters.

16. [16]

    The step-daughter gave evidence that when she was seven years old she went to live with her mother (KC) and the applicant (she had previously lived with her grandmother). In 2016, she was 16 and the applicant was on the contact list on her mobile phone. At that time, the applicant sent her messages which were sexual in nature and which made her feel “uneasy”.

17. [17]

    On 14 April 2016 at 10:52pm, the applicant sent the step-daughter a message which said “hey, next time you have a little play, can I plz watch.” On 26 April 2016, he sent her messages: “did you shave everywhere”, “can I have a look plz”, and “or touch it plz”. On 14 June 2016, he sent the message “Hey Batman, can I come in there and touch your Catwoman.”, on 15 July 2016 sent “a little look plz”, and on the next day sent “or a little lick”. He also asked for intimate photos of her. The step-daughter did not tell KC about the messages sent in 2016.

18. [18]

    On 3 July 2017, the applicant sent more messages to the step-daughter, including: “plz do me a favour and just wear your bra & undies to bed so i can come and give your sexy little body a workout.” He sent further messages to her, including a photograph of an erect penis, which she showed to her mother who said, “It’s not his.” The applicant asserted in the texts he meant to send the photo to KC but had sent it to her inadvertently. The step-daughter texted him and said: “Plz stop your my stepdad.” He responded: “one last thing b4 I stop talking to you forever, did you like the look of my cock”. At around this time the step-daughter moved out of the home.

19. [19]

    The applicant sent a further message to the step-daughter on 27 July 2017 at 5:02am which said:

20. [20]

    The text messages, of which the above are a sample, and the step-daughter’s evidence will be referred to compendiously as the tendency evidence.

Relevant statutory provisions

1. [21]

   All references to legislation in these reasons are, unless otherwise indicated, references to the Evidence Act 1995 (NSW) (the Act).

2. [22]

   Section 55(1) provides that “[t]he evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

3. [23]

   Section 97(1) relevantly provides that evidence of a tendency that a person has or had is not admissible to prove the tendency to act in a particular way, or to have a particular state of mind unless the court thinks that the evidence will have “significant probative value”.

4. [24]

   Section 97A applies as the complainant was under 18 years of age at the time of the alleged offending, the offences charged were child sexual offences and whether the applicant committed the relevant acts was a fact in issue. It relevantly provides:

5. [25]

   Section 101(2), as it applied in the present case, relevantly provided:

6. [26]

   This provision was amended to delete the requirement that the probative value substantially outweigh the danger of unfair prejudice.

7. [27]

   Section 137 is in almost identical terms and provides:

Consideration

1. [28]

   The standard of correctness applies both to the admissibility of evidence as tendency evidence (The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (Bauer) at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)) and to the question under s 101 whether the probative value of the evidence outweighs the danger of unfair prejudice (Vagg v R [2020] NSWCCA 134 at [45] (Simpson AJA, Rothman and N Adams JJ agreeing); R v Clarke (2023) 111 NSWLR 501; [2023] NSWCCA 123 at [13] (Davies, Fagan and Yehia JJ)).

2. [29]

   As the applicant did not raise s 137 for the purposes of the appeal it is not necessary to address the authorities, such as Festa v R (2001) 208 CLR 593; [2001] HCA 72. In R v Arvidson [2008] NSWCCA 135; (2008) 185 A Crim R 428, this Court applied Festa v R and found, at [46] (Beazley JA, Johnson and McCallum JJ agreeing), that the question whether the prejudicial effect of evidence outweighed its probative value “involves an evaluative exercise, in respect of which judicial minds may differ” and thus, that House v The King (1936) 55 CLR 499; [1936] HCA 40 applied if the ruling was sought to be disturbed. It is difficult to reconcile this statement with Vagg v R and R v Clarke, as the wording of ss 101 and 137 is now almost identical.

3. [30]

   Probative value is to be assessed by reference to what the evidence, taken at its highest, is capable of proving: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [49]-[54] (French CJ, Kiefel, Bell and Keane JJ); Bauer at [69].

4. [31]

   Accordingly, the ground having been raised, this Court is required to determine for itself whether the evidence was admissible and, if it decides that it was not, the ground will have been made out. Thus, although the trial judge’s reasons can be taken into account, the applicant need not show any particular error, save as to outcome.

5. [32]

   At trial, the applicant objected to the tendency evidence on the following three grounds, each of which was maintained in this Court:

   1. (1)

      the tendency evidence was not relevant as it was not capable of establishing the asserted tendency;

   2. (2)

      the presumption in s 97A(2) that the tendency evidence has significant probative value was rebutted; and

   3. (3)

      even if the evidence were presumed to have significant probative value, the probative value of the evidence was outweighed by the danger of unfair prejudice, which required its exclusion pursuant to s 101.

6. [33]

   It was common ground at trial that the tendency evidence established that the applicant had a sexual interest in the step-daughter and that at the time he demonstrated such an interest she was a “15-17 years old, female living in the family home under his care, who was not his biological daughter”. The applicant did not dispute that the age, gender and the nature of the relationship were common to both the complainant and the step-daughter.

7. [34]

   The Crown case at trial was that the applicant’s sexual interest in the step-daughter (as a female between the age of 15 and 17, who was living in the family home under his care and who was not his biological daughter) made it more likely that he had a sexual interest in the complainant and, thus, more likely that the complainant’s evidence about the acts of digital penetration was true. This syllogistic reasoning is the purpose and effect of tendency evidence: Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [124] (Simpson J), Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323 at [359]-[360] (Bathurst CJ, Hoeben CJ at CL and Simpson J). Tendency evidence may also serve an important purpose in removing a doubt which the “brazenness” of the applicant’s conduct might otherwise have raised: Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20 at [58]-[60] (Kiefel CJ, Bell, Keane and Edelman JJ).

8. [35]

   Mr Ramrakha, who appeared for the applicant, submitted that the tendency evidence was irrelevant because it was incapable of establishing the asserted tendency because all it established was that the applicant had a sexual interest in the step-daughter some time after she turned 16. He submitted that it was neither highly distinctive nor so idiosyncratic as to support the “generalised tendency” relied on by the Crown. Further, he submitted that the complainant’s evidence of the applicant’s conduct towards her could not be used to establish the tendency since that would amount to “illegitimate bootstrapping” (a reference to Bell P in Restricted Judgment [2021] NSWCCA 298 (Restricted Judgment) at [70]).

9. [36]

   He further submitted that tendency evidence involves syllogistic reasoning, comprising a major premise, a minor premise and a conclusion. He postulated the following syllogism:

   1. (1)

      the applicant has a sexual interest in girls aged between 15 and 17 who live in his household under his authority and who are not his biological daughters, as demonstrated by his sexual interest in the step-daughter (the major premise);

   2. (2)

      the complainant, at the time of the alleged offending, was aged between 15 and 17, lived in the applicant’s household under his authority and was not his biological daughter (the minor premise); and

   3. (3)

      therefore, it is more likely that the applicant had a sexual interest in the complainant (and thus, more likely that he acted on that sexual interest in the manner alleged) (the conclusion).

10. [37]

    Mr Ramrakha submitted that the first premise ((1) above) was flawed and could not be made out because the tendency evidence showed only that the applicant had a sexual interest in the step-daughter; it did not show that he had a general sexual interest in young females in that category. He argued that a single witness or incident might have the capacity to establish tendency if there is something distinctive about it but that there was nothing distinctive in the present case.

11. [38]

    I reject this submission. Section 55 provides that relevant evidence is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. The tendency evidence showed that the applicant had a sexual interest in his step-daughter who had the characteristics referred to above in common with the complainant. This evidence could rationally affect the probability of the applicant having a sexual interest in the complainant and, thus, whether he committed the acts charged.

12. [39]

    Further, s 97A(3) expressly provides that s 97A(2) applies “whether or not the sexual interest or act to which the tendency evidence relates was directed at a complainant in the proceeding, any other child or children generally” (emphasis added). Thus, the section contemplates that, as here, the sexual tendency to which the tendency evidence relates may be confined to a single other child. Further, the authorities, including those which pre-date the commencement of s 97A, establish it is not necessary, as a matter of either logic or authority, that the tendency evidence amount to a sexual interest or conduct towards more than one identified child: Burns-Dederer v R [2023] NSWCCA 191 at [66] (Simpson AJA, Fagan and Dhanji JJ agreeing); Vagg v R at [64]-[65] and [73]-[74]; Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [82] and [86]-[89] (Beazley P, Hall and Wilson JJ).

13. [40]

    It is important in having regard to judicial pronouncements regarding tendency evidence to consider the particular facts of the case as well as the context in which the issue for determination arose. For example, in Restricted Judgment, there was no issue that the charged acts had taken place in the course of a sexual bondage session. The question was whether the accused knew of the sex-worker’s lack of consent. The Crown relied on another sex worker’s evidence about a bondage session with the accused which had taken place six years previously. This Court held that the evidence did not disclose a particular tendency and ought not to have been admitted and ordered a retrial. Bell P said in that context, at [50], that it was not necessary to decide whether a single incident could amount to evidence of a tendency. However, Bellew J, at [362]-[363], referred to instances and authorities where it had done so. In the present case, although the tendency evidence related to a single female (the step-daughter), it included a number of text messages sent between April 2016 and July 2017 and therefore could not accurately be classified as a “single incident”.

14. [41]

    Further, many of the cases cited, including Restricted Judgment and Bauer, pre-date the insertion of s 97A. Thus, in order to make the evidence admissible, the prosecution had to prove, not merely that the evidence was relevant, but that it had “significant probative value” (s 97). In Burns-Dederer v R, Simpson AJA, at [63] listed the factors which may bear on the assessment of whether the probative value of proposed evidence is “significant” which included:

15. [42]

    The factors which bear on the judgment whether evidence has significant probative value are different from the factors which determine whether evidence is relevant at all. Thus, for example, the generality in which the tendency sought to be established is expressed may bear on the probative value of the tendency evidence but it does not follow that evidence of a general tendency is not relevant at all.

16. [43]

    In the present case, the step-daughter shared significant common features with the complainant because she was a female member of the applicant’s household but was not a blood relative and the applicant had a sexual interest in her, on which he had acted (by sending the texts) when she was between the ages of 15 and 17 years. This is sufficient to make the tendency evidence relevant.

17. [44]

    The applicant submitted that the presumption in s 97A(2) had been rebutted because of the following circumstances which he contended constituted “sufficient grounds” within the meaning of s 97A(4): first, that the tendency was sought to be established on the basis of a single tendency witness; and, second, the extent of the difference between acts towards the step-daughter and the charged acts, in relation to which he contended there were exceptional circumstances.

18. [45]

    He submitted that all that the tendency evidence showed was that the applicant had a sexual interest in one person, the step-daughter, on which he acted by sending texts of a sexual nature. He submitted that this did not show that he had a tendency to have a sexual interest in females aged between 15 and 17 who were living in his household under his authority, but merely that he had a particular interest in one female who shared those characteristics with the complainant.

19. [46]

    Section 97A evinces a clear legislative intention to make it easier for the prosecution to adduce tendency evidence. This purpose is confirmed by the Evidence Amendment (Tendency and Coincidence) Bill 2020 Second Reading Speech in New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020, pp 1911–1918 in which the then Attorney-General, the Honourable Mark Speakman SC MP said that the purpose of the changes was to “facilitate greater admissibility of tendency and coincidence evidence” (p 1914) and that “[t]he threshold of exceptional circumstances in relation to the consideration of these matters was chosen intentionally in order to set a high bar” (p 1915).

20. [47]

    I do not accept that the fact that the tendency evidence derived from one witness rather than more than one constitutes sufficient grounds under s 97A(4) to rebut the presumption in s 97A(2) in the present case. As referred to above, this possibility is expressly contemplated by s 97A(3) (and may explain why it is not listed in s 97A(5)). In some cases, the tendency will be established by an accused’s continuing sexual interest in the complainant; in others, by an accused’s sexual interest in another child whose gender, age and, potentially, relationship with the accused, share common features with the complainant; or the tendency will be sought to be established by evidence of an accused’s sexual interest in children generally. These various possibilities reflect the circumstance that tendency can be established in as many ways as it is exhibited. That in the present case the tendency evidence did not extend to evidence of a sexual interest beyond the step-daughter does not constitute sufficient grounds to rebut the presumption.

21. [48]

    Mr Ramrahka accepted that the effect of s 97A(5)(a) was that the fact that the sexual interest or act alleged was different from the sexual interest or act could not be taken into account when determining whether there were sufficient grounds under s 97A(4), unless there are exceptional circumstances. However, he submitted that the significant difference between the applicant’s acts in relation to the step-daughter (sending texts which expressed and contained admissions of sexual interest) and his alleged acts with respect to the complainant (physical touching on two separate occasions, which were described by the applicant’s counsel as “fleeting and discrete” with no apparent grooming or verbal introduction) constituted exceptional circumstances, thereby displacing the prohibition in s 97A(5)(a).

22. [49]

    The tendency relied on was the sexual interest. However, the tendency evidence (but not the tendency) included the acts, which were different in the case of the step-daughter than in the case of the charged acts. The difference between the acts cannot be taken into account in determining whether there are sufficient grounds to displace the presumption in s 97A(2) unless there are exceptional circumstances: s 97A(5)(a). For the reasons given above, the differences in the acts do not amount to exceptional circumstances. I am not persuaded that it is exceptional that an accused’s sexual interest may manifest itself in grooming behaviour (such as sending sexual texts, as in the present case) with respect to one person and in isolated opportunistic touching or intercourse with respect to another. It follows that, by reason of the presumption in s 97A(2), the tendency evidence had significant probative value. It is not necessary to decide whether the evidence would, but for s 97A, have had significant probative value.

23. [50]

    Mr Ramrakha submitted that there was a danger of unfair prejudice to the applicant because the tendency evidence would have engendered a “strong emotional response from the jury”. He accepted that there was no ground of appeal which challenged the relevant directions given by the trial judge but that the content of the directions illuminated the danger of unfair prejudice and that this Court ought have regard to the directions given by the trial judge in determining admissibility under s 101.

24. [51]

    In determining whether the probative value of tendency evidence outweighs the danger of unfair prejudice to an accused, the trial judge (and this Court if the conviction is challenged on appeal) must have regard to the directions which can be given to remedy or ameliorate any unfair prejudice which might be occasioned in the absence of directions and whether those directions would be sufficient to remedy or ameliorate that prejudice.

25. [52]

    Of present relevance, the trial judge directed the jury as follows:

26. [53]

    The danger of unfair prejudice was the danger that the jury might consider, on the basis of the tendency evidence, that the applicant was a person of bad character and for that reason must have committed the offences charged. The trial judge directed the jury that it could not reason in that way. His Honour also directed the jury as to how it could properly use the tendency evidence. As referred to above, no objection was taken to these directions, which were orthodox.

27. [54]

    The tendency evidence had significant probative value. The danger of unfair prejudice was, in my view, removed or significantly mitigated by the trial judge’s directions which have not been challenged so that the probative value of the tendency evidence outweighed the danger of unfair prejudice to the applicant. Accordingly, the evidence was not inadmissible under s 101.

Conclusion

1. [55]

   The tendency evidence was admissible and was correctly admitted. The single ground of appeal has not been made out. Leave to appeal is required because the ground does not raise a question of law alone. It is appropriate that leave be granted, in part because s 97A is a relatively new provision.

Proposed orders

1. [56]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.

2. [57]

   STERN JA: I agree with Adamson JA.

3. [58]

   WRIGHT J: I agree with the orders proposed by Adamson JA for the reasons her Honour has given.