R v B.G. [2008] NSWDC 229

New South Wales District Court

CITATION: R v B.G. [2008] NSWDC 229 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT DATE: 27 August 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

The coincidence evidence as set out in paragraph 18 hereof shall be admitted. DECISION: The tendency evidence as set out in paragraph 25 hereof, save for (c), shall be admitted. The evidence identified to counsel on pages 4 and 5 of Exhibit 3 shall be excluded.

CATCHWORDS: Criminal Law - Admissibility of Evidence - Tendency and coincidence evidence - physical education teacher (accused) - internet contact with 3 femal students - tendency evidence identified - substantiallly and relevantly similar events identified - coincidence evidence identified - defence arguments of concoction not made out - probative value assessed - evidence admitted in part.

LEGISLATION CITED: s. 97, s98, s101 Evidence Act 1995 (Cwlth)

CASES CITED: R v Colby [1999] NSWCCA 261 Hoch v The Queen (1988) 165 CLR 292

PARTIES: Regina B.G.

FILE NUMBER(S): 07/21/0127

COUNSEL: Crown: Mr S.T. Flood Defence: Mr P. O'Donnell

JUDGMENT [Persons, other than the accused, referred to in this judgment by their initials are under 18 years of age. Their identity is not to be otherwise disclosed. The accused was found "Not Guilty" of this offence. For that reason I have also referred to him by his initials.] 1. In August 2006 B. G. was a physical education teacher at Cherrybrook Technology High School. A. A., a 13-year-old female, along with about 30 others was a student in his Year 8 Personal Development, Health and Physical Education class. As a result of his use of an internet service in which, on the Crown case, he believed A. A. was sharing a chat room with him, he has been charged by the Commonwealth DPP with using a carriage service to procure a person under 16 for sexual activity. In the alternate he stands charged with using a carriage service to groom a person under 16 for sexual activity. He is also charged with using a carriage service in such a way that a reasonable person would regard that use as being offensive. Upon arraignment he pleaded "Not Guilty" to all charges. The Crown case is that the relevant person who was being procured or groomed was A. A. 2. In October 2007 the accused's solicitors were served with Notices (pursuant to s. 97 and .98 Evidence Act 1995 (Cwlth)) (the Act) of the prosecution's intention to lead tendency and coincidence evidence in the Crown case against the accused. The defence objected to such evidence being led against the accused. It challenged whether the contested evidence would amount to tendency or co-incidence evidence. Alternatively it relied upon s.101 of the Act to have the evidence excluded. The defence also gave notice it would argue there was a reasonable possibility evidence coming from school student witnesses was concocted or contaminated. 3. For convenience of jury panel members and Court administration it was decided to empanel a jury first, then set aside time to agitate these matters before either side opened to the jury. Thus the first and second days of the trial were given over to the taking of voir dire evidence and arguments. At the conclusion of the voir dire hearing, without giving reasons, I gave a ruling permitting the coincidence and tendency evidence as set out in the notices and I ruled against the claim of concoction or contamination of the student witnesses' evidence. Upon another basis some evidence of internet conversations with another of the female school students was excluded. I required the trial to continue, indicating at the time I would supply reasons for my ruling later. These are my reasons. The Crown Case 4. A. A. had been a student at Cherrybrook Technology High School (the school) for two years. From time to time she was required, as part of her Personal Development, Health and Physical Education class to complete written assignments. The school published an exercise textbook, which was used for some of this work. Other assignments were completed on her computer. On one occasion she was running late with an assignment and requested from the accused his email address. He wrote it, g---@hotmail.com, on the inside front cover of the school's published exercise text. For convenience I shall refer to internet contact coming from this email address as coming from g---. (g--- is being used to protect the identity of the accused.) 5. One of A. A.'s interests was keeping in contact with her friends and acquaintances through MSN Messenger program. This is a Microsoft program designed to create internet chat facilities for internet users wishing to maintain contact via the internet with others. A personal password was necessary in order for the user to log-on. The program was designed so that any personal contacts at other sites who were also on-line using their MSN Messenger program were identified to the user. It was then open to the user to choose whether to open up a channel to the other contact. The program had the facility for a user (here called the host user) to manage ten or more discrete chat conversations simultaneously. It was possible to open up a discrete conversation so that another or others could join in. The host user selected which of his/her online internet contacts could join in. 6. MySpace is a program independent of MSN Messenger. Each user of MySpace creates his/her own blog. This would identify the user's name, gender, age, town, last login date, general interests, musical interests, personal profile, film interests, television interests, heroes, marital status, sexual orientation, body type, ethnicity, and various other personal details, including friends. The extent to which a user's details were published to MySpace users at large was a matter for the creator of the blog. 7. An MSN Messenger user could add contacts simply by including their email address in the MSN Messenger program. The uncontested evidence on the voir dire was this happened automatically when the email address was added to the computer's email contacts. However, in the trial, a challenge was made to this proposition. So far as the issues to be determined on the voir dire hearing, I doubt it matters much. A. A.'s evidence is she added the g--- email address to her contacts at hotmail . Her own email address will be represented in these reasons as AA----@hotmail.com . (This is done so as not to further disclose the identity of A.A.). 8. Each MSN Messenger user had a facility for including pictures, usually of himself/herself or with others including him/herself which could be activated so that a receiving party could identify more particularly who he/she was chatting to. There was also a facility to block the photograph with some other display such as a sunset, flower or scenic view. Each user had his/her own display name. On the Crown case the accused's display name was ??? while A.A.'s display name was the word girl. 9. On the Crown case, on 8th August 2006 when A.A. logged on to MSN Messenger she noticed g--- was displayed on her screen as being on-line. That was the first time this had occurred since she had been provided with his hotmail email address. G--- initiated a contact by saying "Hey" or "Hello" and "How are you (How r u)" It would be hard for a reader of the great novels or plays to recognise the spelling used during these contact sessions. George Bernard Shaw and others interested in phoneticising spelling would marvel at what the modern generation has done. 10. A. A. replied "Hey" or "Hello". On the Crown case a photograph of herself wearing a jumper and a school friend (possibly from Cherrybrook) was displayed to g---. A. A. also received a photo of the accused's face and torso displaying him naked at least to the waist. A. A. logged out of that conversation shortly after it began. 11. In the following day or two there was a second conversation. A. A. signed in. G--- was on-line. He initiated contact writing "Hey". She replied "Hey". There was other conversation. While this conversation was on-going, she was having a separate conversation with T. R., a male student at the same school two years her senior. In the course of the g--- conversation, the accused asked "What do you think of my display picture?" A. A. replied "It's okay". He asked whether she thought he was hot. She was also asked to give him a rating out of ten. At this point A. A. did not feel comfortable answering g---. She told T. R. of her difficulty. 12. He suggested an answer to her in respect to the rating out of ten, and shortly afterwards asked to be allowed to take over the conversation with g---. From what he had been told he believed g--- was the email internet contact maintained by the accused. A. A. agreed to permit T. R. to pretend he was her. This required A. A. to surrender her log-on to him. She provided him with her password. T. R. was then able to log-on to MSN Messenger using A. A.'s Messenger account and identity. Also present with T. R. at his computer was A. D. a long-time friend of T. R.s. A. D., a male about the same age as T. R., was not a student at the school. As a condition of the surrender of her account and identity A. A. asked to be kept informed by phone of what was happening in the conversation. T. R. agreed to up-date her by phoning her mobile every few minutes. In the course of the connection between T. R. (using A. A."s profile) and g--- , photographs of the accused, the accused's torso and a penis were transmitted from g--- . T. R. using his own camera, took photographs of his computer screen thereby recording the receipt of these three photographs from g---. 13. It is unnecessary for me to detail the Crown case of conversation between the two youths acting as A.A. on the one hand and g--- on the other. That chat was recorded in part by T. R. In its terms it appears capable of satisfying a jury of an intention held by the operator of g--- of procuring the recipient to engage in sexual activity with him and perhaps of submitting to sexual activity with himself. It also appears capable of satisfying a jury (assuming the recipient of material sent by g--- was under 16) that the material was indecent, and that the sender transmitted it with an intention of making it easier to procure the recipient to engage in sexual activity with himself, and possibly submit to sexual activity with himself. Again, assuming the recipient was under 16 there were communications from g--- capable of satisfying a jury that a reasonable person would regard that use as being offensive. Tendency and Coincidence Evidence 14. The Crown relies upon two other communication events from g--- to underage students of the school. One, E. G., aged 14 at the relevant time, was well known to A. A. Indeed, E. G. contacted g--- believing she was contacting the accused, after having spoken to A. A. about her (A.A.'s) own experiences on the 8 th and 9th August 2006. When E. G.'s connection was made with g--- there was a picture of herself that would have been displayed on the g--- computer. In the course of her contact with g--- through MSN Messenger, E. G. saw a picture initially of the accused's face, which was changed to one of the upper half of a male body, the accused agreed he may have been a P E teacher and asked what she rated him out of 10. 15. Another female student H. M. then aged 15 also had the accused as her PE teacher. He had taught her in Year 8 for the whole school year, and again in Year 10 from February through to August. The accused was one of her favourite teachers. She also classed him as a good friend. H. M. did not know A. A. who in August 2006 was two years behind her. On 8 th August she received a new request for contact from g--- . She accepted the request, incorrectly believing at the time it was one of her existing contacts having the same given name, changing his email address. Once she had accepted g--- a conversation was initiated from g--- with the word "Hi". H. M.'s display picture was on-screen and would have been displayed to g---. H. M. asked "Who is this". She asked to view a picture. A picture was sent and she recognised the accused. He had on a red hat and beard. She showed the picture to her mother. 16. Thereafter there was a conversation between H. M. and g---. H. M.s computer was set up so that the conversation was recorded. In the course of this contact g--- disclosed that he had seen H. M.'s blog. Her correct name was disclosed in the blog. While her age was given in the blog as 17, she had also disclosed in it that she was in Year 10 at the school, she was blond and 169 cms tall. On the Crown case this material could have left the accused in no doubt he was dealing with an identified student from his Year 10 class. 17. An fair analysis of the conversation would disclose H. M. was seeking to ascertain whether the operator at g--- was the accused; and g--- seeking to avoid disclosing his identity, denying he was a school teacher, giving a false name and age. G---, on the other hand, appears interested in pursuing topics of a sexual nature. Of particular significance are a request for a "naughty picture" of H. M., an interest in seeing a picture of, or hearing about her body, and a statement from g--- "I think you're hot". There were also a number of questions seeking or fishing for H. M.'s evaluation of the person in the picture such as " Do u like it? "I don't like my face." "Soooooo?" "So do you think I'm hot?" 18. The Crown case is the following matters constitute substantially and relevantly similar related events: Ø All three girls were students at the school; Ø All three were under 16 but above 13; Ø All were communicated with through MSN Messenger after school hours; Ø Student-teacher relationship between the accused and two of the girls; Ø First picture shown to each girl was a picture of the accused's face; Ø Next picture shown was of the torso to H. M., E. G. and T. R. (pretending to be A. A.) Ø Age reduction Ø Ingratiation used by accused to H. M. [u r hot] and to E. G. [nice picture] and also to A. A. The evidence of a flattering comment about A. A.'s picture comes from A. A.'s recounting remarks of E. G. about her chat with g--- – "She (E. G.) said he did the same thing … the nice dp, display picture" (see transcript p70/25-31 see also p71/34 - 44). Ø Request to rate the accused's picture out of 10 – to A. A. and E. G. Ø Focus of the accused as to an evaluation in a context of sexual attractiveness of his picture by each of the three girls. There is no proof the same pictures are shown in each case, and in the case of H. M. it is certainly a different picture that has been shown. Nor is it entirely clear in the case of A. A. and E. G. whether the question was asked in respect of a head shot or a torso shot of the accused. 19. I am satisfied on the evidence led in the voir dire there is evidence available that could be led in the trial proper on each of these matters. In his oral submissions the Crown documented the reference points in the voir dire transcript for such evidence should it be necessary to source that evidence. 20. A relationship between all the events is established in that the events concerned have a common source, namely they are all connected with g--- . While there may be that relationship between the events, sub section (2) of s.98 the Act provides they will not be related events to come within the coincidence rule unless they are substantially and relevantly similar and the circumstances in which they occur are substantially similar. It may be convenient to assess the circumstances in which the events occur. Each occurs via contact with g--- on school days after school hours. Each involves a female student from the school, two of them students of the accused. Each occurs via computer chat line in circumstances where MSN Messenger is used. Each occurs where the contact is initiated by g---. 21. The evidence on the voir dire also establishes the events are substantially and relevantly similar. There was ingratiation in each case regarding the display picture, there was a display of at least two photographs of the accused to each MSN user; the first a photo shoot of the head, the second of the torso. In both cases it was apparent the accused was not wearing upper garments. There was a request in two cases to rate the accused picture out of 10; there was an apparent interest by the accused in all cases in having his photographs evaluated in a context of sexual attractiveness. Resolution 22. In the course of the voir dire the Crown was invited to identify the tendency and coincidence evidence it sought to rely upon, the defence was invited to identify the particular pieces of evidence it argued were tainted by concoction. The Crown was then invited make submissions to support the admission of its tendency and concoction evidence, the defence to answer that submission and make submissions in support of evidence it nominated as being tainted by concoction. 23. As events turned out, the Crown catalogued its tendency and coincidence evidence. The defence failed to identify with any specificity evidence it claimed was open to a finding of possible concoction. Further, when making submissions in answer to the Crown's claim to have tendency and coincidence evidence admitted, counsel for the defence, in what were sparse submissions, drew the Court's attention to [99] of R v Colby [1999] NSWCCA 261 which focused upon a principle that similar fact evidence will be rejected if there is a possibility of concoction. A citation from Hoch v The Queen (1988) 165 CLR 292 in support of that principle occupied most of [99]. Given that counsel for the defence is a very senior and experienced counsel, I can only take from his whole submission package (if I may call it that) a concession that there was no real answer to the Crown's claim for admission of tendency and coincidence evidence, and that he was unable to identify with any precision evidence which was possibly concocted. 24. The apparent failure to identify possibly concocted evidence is not surprising really. When the accounts of A.A. and T. R. are examined, the first flows to the second. Neither is covering the same conversation – but both are involved, from the accused's viewpoint in the same event. A. A.'s role in the conversation finishes before T. R. takes control of it on her account. A.A.'s account lacks detail, T. R.'s interaction is recorded in part. T. R.'s interaction can only be explained by A.A.'s initial contacts with g---. In reality neither covers the same ground. 25. Likewise the evidence of A. A. and E. G. while similar in some respects was immediately recognized and voiced by E.G. as being remarkable because of similarities she discovered on the night in question. There does not appear to be any dispute that each girl had separate contact with g--- within hours of each other. Again E. G.'s contact with g--- can only be explained by A. A.'s prior contact. In the course of cross-examining each no questions suggesting specific areas of concoction were, as I recall the evidence, advanced by the defence. Some questioning was directed to opportunity for concoction. But for concoction to be a reasonable possibility more than just mere opportunity is required. True, both girls spoke to each other within 12 hours of the call. But against the contemporaneous observation of similarity made by E. G. it is difficult to accept any possibility of concoction or contamination between these two witnesses. 26. In its notice to the defence, the prosecution identified three claimed tendencies: a) a tendency to socialize beyond the teacher student relationship with 13-15 year old girls; b) a tendency to communicate in a sexual or quasi-sexual manner with 13-15 year old girls; c) a tendency to groom 13-15 year old girls. 27. The issue to be determined is whether the evidence on the voir dire establishes the accused has a tendency to act in any or all of the ways the Crown alleges in its notice. I am satisfied each of the claimed tendencies would be relevant to a fact in issue, and if established would constitute relevant evidence. 28. I am satisfied an overview of the content of the contacts by each girl and T. R. with g--- establish the claimed tendencies (a) and (b). As to whether (c) is also established, trespasses to some extent into the jury's task in respect of the second and alternate charge in the indictment. While the jury is not concerned about a tendency to groom, it may be concerned about whether the Crown has proved beyond reasonable doubt whether the accused had an "intention of making it easier to procure the recipient to engage in sexual activity with himself", i.e. an actual grooming of the recipient. While, obviously, I will permit a submission to be made that the Crown has proved the proposition, and to rely upon evidence it claims demonstrates grooming of A. A. I am reluctant to allow the Crown to use tendency evidence of grooming 13-15 year olds as a circumstance pointing to the accused doing so with A. A. 29. That reluctance springs from the need to be satisfied beyond reasonable doubt that such a tendency is exhibited in the voir dire evidence. Frankly that requires drawing inferences adverse to the accused from the voir dire evidence. I am not prepared to draw such an inference beyond reasonable doubt from that evidence. The competing inferences are that he was propositioning for immediate sexual activity (a proposition apparently recognized by the Crown in framing the first count in the indictment) or he was simply titillating or sexually exciting himself by the lewdness of the exchanges that were on-going. In other word the recipients of the MSN messaging were to him objects to be interacted with for his concurrent sexual gratification, or the means for him to explore orally his sexual fantasies. 30. My decision to reject the claimed tendency as set out in (c) above differs from the original order made. At this point the defence do not appear to me to have been prejudiced by my late change of mind. 31. I am satisfied both the coincidence evidence and the tendency evidence that I am permitting have significant probative value. Each category provides evidence of circumstances capable of supporting the general thrust of the testimony of the student witnesses. In the circumstances of this case supportive evidence takes on a particular importance. As might be expected school students present as witnesses who are inexperienced, sometimes uncertain, or lacking confidence and may present with some credibility issues simply because of their inexperience, youth and sense of being overawed in a courtroom environment. 32. Finally, the evidence of tendency and coincidence does survive the test imposed by s.101 (2) of the Act . That is to say the probative value of the evidence does [significantly] outweigh any prejudicial effect. The defence case as explained during the voir dire is that the accused was never aware of the identity or age of A. A. when speaking to her. The fact that there is evidence capable of establishing the tendencies alleged goes to this issue. Likewise the coincidence evidence the Crown seeks to rely upon goes to the same issue. Alternatively, both the tendency and coincidence evidence raise squarely the issue of recklessness so far as the accused's awareness of identity and age of A. A. and his use of MSN Messenger when dealing with her. (Word in [ ] omitted in original judgement). Portion of Exhibit 3 Prejudicial 33. Exhibit 3 on the voir dire is a record of the exchanges between ??? from g--- and H. M. On page 4 of the Exhibit H.M. makes an accusation to the effect that ??? (who at this stage she entertains is the accused) has "scott n" a girl in Year 10. My interpretation of this allegation is that the accused has "gotten" a girl in Year 10. Later, when persuaded it is not the accused, she says in effect " I was paranoid that it was actually him on MSM … and I was going to report him." None of this material has any probative value. It is, however capable of unfair prejudice. In those circumstances it should be excluded. Orders 34. The coincidence evidence as set out in paragraph 18 hereof shall be admitted. The tendency evidence as set out in paragraph 25 hereof, save for (c), shall be admitted. The evidence identified to counsel on pages 4 and 5 of Exhibit 3 shall be excluded.