New South Wales Court of Criminal Appeal CITATION : Regina v MM [2004] NSWCCA 364 HEARING DATE(S) : 5/10/04 JUDGMENT DATE : 25 October 2004 JUDGMENT OF : McClellan AJA at 1; Grove J at 2; James J at 3 DECISION : Appeal allowed - orders made by Judge Maguire on 20 May 2004 rejecting evidence be vacated CATCHWORDS : CRIMINAL LAW - Crown Appeal s 5F - admissibility of evidence - child sexual assault charges - whether admissions made to a Probation and Parole officer improperly obtained - whether evidence that accused collected and viewed child pornography and had fantasised about sexual acts with children inadmissible tendency evidence Crimes Act LEGISLATION CITED : Crimes (Sentencing Procedure) Act Criminal Appeal Act Evidence Act BRS v The Queen (1996-1997) 191 CLR 275 CASES CITED : R v Dalley (2002) 132 A Crim R 169 R v Sophear Em [2003] NSWCCA 374 PARTIES : Regina v MM FILE NUMBER(S) : CCA 2004/1858 COUNSEL : G Rowling - Crown J Pappas - Respondent SOLICITORS : E Philpot - Crown T Sharman - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 03/41/0187 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1858 McCLELLAN AJA GROVE J JAMES J 25 October 2004 R v MM Judgment 1 McCLELLAN AJA : I agree with James J 2 GROVE J : I agree with James J 3 JAMES J : This is an appeal brought by the Director of Public Prosecutions pursuant to s 5F (3A) of the Criminal Appeal Act against the respondent, who I will refer to as "MM" or "the respondent", against certain decisions on the admissibility of evidence made by his Honour Judge Maguire in the District Court in a reserved judgment handed down by his Honour on 20 May 2004. The Charges 4 On 5 April 2004 the respondent had been arraigned before his Honour on an indictment containing a number of counts. On the hearing of this appeal the Court was informed by counsel that the indictment on which the respondent had been arraigned had been incorrectly transcribed in the transcript of the proceedings on 5 April 2004 and a further complication is that one of the counts which was included in the indictment presented on 5 April 2004 has since been withdrawn. This appeal has proceeded on the basis that the following charges were included in the indictment presented on 5 April 2004, that on 5 April 2004 the respondent pleaded not guilty to all of these charges and that these charges are the charges which the Crown wishes to press against the respondent. All of the charges involve the same complainant, who was the respondent's step-daughter. 1. Between 1 December 2001 and 30 March 2002 the respondent indecently assaulted the complainant, she being at the time under the age of ten years, namely seven years. 2. Between 1 December 2001 and 30 March 2002 the respondent committed an act of indecency with the complainant, she being at the time under the age of ten years, namely seven years. 3. Between 1 December 2001 and 1 November 2002 the respondent indecently assaulted the complainant, she being at the time under the age of ten years, namely seven or eight years. 4. Between 1 November 2000 and 1 November 2002 the respondent committed an act of indecency towards the complainant, she being at the time under the age of ten years, namely six, seven or eight years. 5. Between 1 November 2000 and 1 November 2002 the respondent had sexual intercourse with the complainant, a person under the age of ten years, namely six, seven or eight years. 6. Between 1 January 2002 and 31 December 2002 the respondent incited the complainant to commit an act of indecency towards him, she being at the time under the age of ten years, namely seven or eight years. 7. Between 1 January 2002 and 31 December 2002 the respondent committed an act of indecency towards the complainant, she being at the time under the age of ten years, namely seven or eight years. 8. Between 1 January 2002 and 31 December 2002 the respondent indecently assaulted the complainant, she being at the time under the age of ten years, namely seven or eight years. 5 The charges of aggravated indecent assault (charges one, three and eight) were charges brought under s 61M(2) of the Crimes Act for which the maximum penalty is imprisonment for ten years; the charges of committing or inciting an aggravated act of indecency (charges two, four, six and seven) were charges brought under s 61O(2) of the Crimes Act for which the maximum penalty is imprisonment for seven years; the charge of having sexual intercourse with a child under the age of ten years (charge five) was a charge brought under s 66A of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years. 6 From November 2000 the respondent, the complainant's mother and the complainant lived together in a house in a New South Wales country town. The respondent had a study in the house in which there was a computer with access to the Internet. The proposed Crown case on each of the charges can be briefly summarised as follows:- 7 The first three charges are based on conduct which the Crown says occurred on the same occasion. The Crown case is that on this occasion the respondent and the complainant were in the study in the house, both were naked and the complainant at the respondent's direction was sitting on the respondent who was sitting in a chair and the respondent was showing the complainant images on the computer that included images of an adult male and two female children, all of whom were naked and were engaging in sexual acts, including one of the female children kneeling in front of the man and performing some act in relation to the man's penis. The second charge is based on the respondent's conduct in showing the complainant the images on the computer. The first charge is based on an allegation that, in the circumstances which have just been described, the respondent held his arms around the complainant below her chest. The third charge is based on an allegation that, in the circumstances which have just been described, the respondent touched the complainant in either her genital or her anal area. 8 The fourth charge is based on an allegation that on another occasion while the respondent and the complainant were together in the study the respondent masturbated in front of the complainant. 9 The fifth charge is based on an allegation that on still another occasion while the respondent and the complainant were together in the study, the complainant, at the direction of the respondent, performed fellatio on him. 10 The final three charges are based on conduct which the Crown alleges all occurred on the same further occasion. On this occasion the complainant was dressed in her school uniform and was ready to go to school. At the direction of the respondent, the complainant went into the study. In the study the respondent told the complainant to pull up her skirt and the complainant complied (charge six). The respondent took a photograph of the complainant with her skirt pulled up (charge seven). The respondent then rubbed the complainant's genital area with something like a tape recorder which he had in his hand (charge eight). Background 11 It is necessary to outline some further facts, none of which would appear to be in dispute. 12 In July 2001 the complainant's mother discovered by chance on the computer in the study a file dealing with child pornography. She spoke to the respondent about the file. 13 On 26 March 2002 the complainant's mother discovered further child and adult pornography on the computer. On the following day 27 March 2002 the complainant's mother reported what she had seen on the computer to police and made a statement to police. On 2 April 2002 the respondent was interviewed by police in a lengthy recorded interview and he made a number of admissions about downloading child pornography on his computer. 14 On 3 June 2002 the respondent was convicted in a Local Court of an offence of possessing child pornography to which he had pleaded guilty. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act the Local Court magistrate directed the respondent to enter into a good behaviour bond for a period of two years. The conditions of the bond were:- "1. To be of good behaviour 2. To appear before the court if called upon to do so at any time during the term of this bond. 4. To accept the supervision and guidance of the New South Wales Probation Service for such of the period as that Service deems sufficient. If the offender appears before the court for failing to comply with any of the conditions of the bond, the court may - take no action for the failure to comply; or vary the conditions of the bond or impose further conditions on the bond; or revoke the bond and re-sentence the offender for the offence to which the bond relates". 15 The conditions of the bond were explained to the respondent and he entered into the bond. In compliance with condition 4 of the bond, the respondent attended regular meetings with a Probation and Parole officer, which commenced on 20 June 2002 and continued for more than twelve months. The Proposed Crown Case 16 The complainant was interviewed by police on 13 June 2003 and 17 June 2003 in long electronically recorded interviews. In the first interview she did not make any allegation of sexual misconduct on the part of the respondent. However, in the second interview she gave answers on which the various charges against the respondent are based. 17 Apart from evidence from the complainant, the Crown wishes to rely, at the trial of the respondent on the charges, on evidence from the Probation and Parole officer with whom the respondent had meetings, evidence from the complainant's mother and evidence of answers made by the respondent when he was interviewed by police on 2 April 2002. It was the admissibility of this evidence (or parts of it) which was in issue at the voir dire hearing before Judge Maguire. (i) Evidence of the Probation and Parole officer 18 The Probation and Parole officer made a statement to police on 11 September 2003. To this statement were attached extensive case note reports or file notes, which the officer had made while she was supervising the respondent pursuant to condition 4 of the bond. Many parts of the case notes would clearly be inadmissible at any trial of the respondent, for example on the ground that they merely record reflections or other thought processes of the officer about the respondent. However, in her statement the officer said that she had recorded in her case notes a number of things which the respondent had told her at case meetings during the supervision. The officer did not claim that she had made a verbatim record of what the respondent had said and the quotations I will now give are simply quotations from the case notes. 19 At the first case meeting with the respondent on 20 June 2002 the respondent disclosed that "he prefers to have sex with females who have no pubic hair". On the same day the respondent said that "he masturbated while watching child pornography images". 20 At a case meeting with the respondent on 17 July 2002 the respondent disclosed that "he does fantasise about children he has seen… fantasises about a female child giving him oral sex" and that "he does fantasise about his step-daughter… aged eight". 21 At a case meeting with the respondent on 24 September 2002 the respondent said "having a child give him oral sex would be better because he could tell her what to do". 22 At a case meeting with the respondent on 8 October 2002 the respondent said that "the media presented children in a manner that made them to look sexy". 23 It is necessary to refer to further passages in the officer's file notes, which the Crown would not be seeking to adduce in evidence at the trial but which are relevant to the admissibility of the parts of the file notes to which I have already referred. 24 In the file note of the first case meeting on 20 June 2002 the officer recorded that she had told the respondent "it is not normal (to view child pornography)… and male adults who view child pornography go on to sexually abuse children". At this meeting she informed the respondent that she would have to make a report to the Department of Community Services "as concerns for the safety of the children (of the complainant's mother) were paramount". 25 In the file note of the second case meeting on 3 July 2002 the officer stated an opinion she had formed that the respondent was minimising the seriousness of viewing child pornography and was not being honest in denying to her that he fantasised about having sex with children. The officer stated "supervision will need to focus on (the respondent) admitting his fantasies and then being able to challenge him on the possibility that he could act on his fantasies". 26 In the file note of a case meeting on 17 July 2002 the officer recorded that "further time was spent eliciting information from him in relation to his sexual fantasies of children". In the same file note the officer expressed the opinion that it was more than likely that the respondent had (sexually) abused the complainant. 27 The Probation and Parole officer gave oral evidence in the voir dire inquiry and I will refer to parts of her oral evidence. She said that part of her role as the respondent's supervisor was to discuss the respondent's fantasies with him. She agreed that she saw "as part of the supervision for his benefit" the eliciting of admissions from the respondent that he had sexual fantasies about children and that she "questioned and cross-questioned" the respondent until he eventually admitted that he had fantasies and that she then further questioned the respondent to narrow down what the fantasies were. 28 The officer agreed in cross-examination that, if the respondent had declined to talk to her about his sexual fantasies, she would not have regarded him as co-operating in the supervision required by condition 4 of the bond. She did not warn the respondent that his answers to her questions might be used in criminal proceedings against him. She accepted that it was no part of her function to gather evidence in support of a criminal proceeding. Her conversations with the respondent were regarded by her as confidential, subject to an obligation to report to the Department of Community Services any matter which might justify further investigation by the Department and to make a report to the District Court about matters relevant to the conditions of the bond. The officer had made her statement to the police, after police had contacted her to make a statement. (ii) Evidence of the Complainant's Mother 29 The complainant's mother made a series of statements to the police on 27 March 2002, 23 June 2003, 26 August 2003 and 12 January 2004. Before Judge Maguire the admissibility of a fairly large number of paragraphs in these statement was contested. However, in the Crown's notice of appeal to this Court the only parts of the complainant's mother's statements which are referred to are pars 5-9 of her statement of 27 March 2002 and pars 17, 18 and 19 of her statement of 23 June 2003 and I will confine my attention to those parts of the complainant's mother's statements. 30 Paragraphs 5-9 of the statement of 27 March 2002, which referred to events of the previous day, were in the following terms:- "5. When I was checking the computer I saw a lot of new programs on the computer which I did not recognise. 6. I came across a program called "IMESH". A click on this program into a folder called Clients then skins then green 2 then new folders which had been created on our computer on the 13.03.02. 7. When I opened this folder I saw about 15 images of pornographic down loads. I opened these downloads and saw young female children who were naked showing genital areas with adult men who were also naked showing their genital area. 8. One example was a female child about 7 years old lying flat on her back with her legs apart and the adult male naked with erect penis either touching or just penetrating the girl. 9. There were other similar images. M (the respondent) had previously about 8 months ago, accessed child porno where we discussed it and he was going to seek him, this time the porno was a narrower age range, between 7-14, last time it was up to teenage years". 31 Paragraphs 17, 18 and 19 of the complainant's mother's statement of 23 June 2003 were in the following terms:- "17. In late July 2001 I located a file on our home computer with child pornography. I questioned M about this being illegal. M began telling me a lot of lies in relation to his life. I left the issues about the computer images as M agreed to stop using the computer for those purposes. 18. On the 26th of March 2002 I was using the computer in the study of our house. I began looking through different files and located yet another batch of child and adult pornography. I became very concerned. I contacted several different agency to see where I could get help to find out what to do about the computer images and to see if my daughter was OK. I was hoping to have the computer images traced to stop that kind of thing. 19. M and I still begun having problems. This was still related to the images I had seen on the computer. The computer images involved adult males having sexual intercourse with a seven year old female. On the bottom of the screen it read similar to 'Father and seven year old daughter'. I became concerned that M may have been violating my daughter". 32 It is obvious that, on any view, much of pars 17, 18 and 19 of the complainant's mother's statement of 23 June 2003 would be inadmissible at a trial of the respondent, for example as merely being evidence of states of mind and thought processes of the complainant's mother. On the other hand, there is in par 19 of this statement some additional information about the content of some of the images the complainant's mother saw on the computer on 26 March 2002. (iii) Evidence of Admissions of the Respondent 33 The questions and answers in the interview of the respondent on 2 April 2002 which are identified in the Director of Public Prosecutions notice of appeal are questions and answers 31, 56-57, 86-88, 99, 101, 107-109, 114-121, 125-153, 156-163, 168-173 and 177-183. 34 There is much repetition in these questions and answers. In his answers the respondent admitted that he had downloaded child pornography on his home computer from the internet; that he had downloaded images of adults and of children from the ages of seven or eight years up to eighteen years, showing their genital parts and showing them in sexual positions and performing sexual acts. One image showed a young female child with her legs apart with an adult male with an erect penis entering the child's vagina. Another image depicted oral sex between an adult and children. The Voir Dire Hearing 35 At the voir dire hearing before Judge Maguire counsel for the respondent submitted inter alia that:- (i) The evidence of the Probation and Parole officer which the Crown wished to adduce was evidence which had been obtained improperly within s 138 of the Evidence Act and should be excluded pursuant to s 138 of the Evidence Act . Alternatively, the evidence of the Probation and Parole officer should be excluded under s 90 or s 137 of the Evidence Act . (ii) The evidence of the complainant's mother which the Crown wished to adduce at the trial of the respondent and the evidence of the questions and answers in the respondent's interview which the Crown wished to adduce (and the evidence of the Probation and Parole officer, if not otherwise excluded) should be excluded for various reasons but particularly as being inadmissible "tendency" evidence (s 97 of the Evidence Act) . Notices had been given by the Crown of an intention to adduce this evidence as tendency evidence. 36 In his judgment of 20 May 2004 Judge Maguire dealt first with the evidence of the Probation and Parole officer. His Honour made the following findings of fact about the officer:- "1. That she was engaged for some years in a Department of the Government of the State of Victoria, where she had a role in the investigation of offences alleged to have been committed upon young children. 2. Thereafter she was employed as a parole officer in Victoria. 3. Thereafter she was employed as a parole officer in New South Wales at Queanbeyan. 4. That having taken on the supervision of the accused, she formed the opinion that he was abusing his stepdaughter. 5. That she thereupon commenced to interrogate him from time to time, with a view to investigating that matter. 6. That she made it clear to him that she had the authority to do so and that he was obliged to answer her questions. 7. That in the course of such questioning, she elicited from him admissions which support the charges before the court". 37 After referring to counsel for the respondent's submission that the evidence of the Probation and Parole officer which the Crown wished to adduce had been improperly obtained and should be excluded under s 138 of the Evidence Act , his Honour said:- "The obtaining of this evidence is fundamentally flawed. The witness completely misconceived her duty. Investigation of criminal activity and the interrogation of suspects are no part of her charter. They fall into the charter of the New South Wales Police and the Department of Community Services". 38 His Honour then proceeded straight to s 138(3) of the Evidence Act . After quoting the terms of s 138(3) of the Evidence Act his Honour said:- "I shall deal with each of those paragraphs in turn. (a) Clearly the evidence has some probative value. (b) Having read the evidence of the child, I am of the opinion that evidence objected to has limited importance in the proceedings. To exclude it would not bring the Crown case to an end. (c) I do not see the nature of the relevant offences alleged as having any particular bearing on the exercise the discretion provided for. (d) I regard the gravity of the impropriety as being of the gravest kind. Parolees expect to be supervised. They are entitled to expect not to be investigated or policed. In the circumstances of this case, I have particular regard to this factor. To exercise my discretion in favour of allowing this evidence would undermine confidence in the parole system. (e) The impropriety was clearly deliberate. (f), (g) and (h) do not arise for consideration in the circumstances of this case. On the balancing these factors, I reject the evidence". 39 In his judgment Judge Maguire then turned to what he described as the "tendency evidence", being the evidence from the complainant's mother, the evidence from the Probation and Parole officer and the questions and answers in the respondent's interview. 40 His Honour noted submissions by counsel for the respondent that "the collection and viewing of the pornographic material is different in nature from the acts for which the accused stands charged... he (counsel for the respondent) says that the former is a one-sided cerebral activity". His Honour noted a submission that the decision of the High Court in BRS v The Queen (1996-1997) 191 CLR 275 supported a submission "that evidence of fantasies cannot establish a guilty passion or a tendency to act in the ways alleged in the indictment". 41 Judge Maguire accepted the submissions made by counsel for the respondent and ruled that all of the "tendency evidence" was inadmissible. The Appeal 42 The Director of Public Prosecutions' amended notice of appeal to this Court asserts that Judge Maguire erred in refusing to admit evidence: "1. Of the Probation and Parole officer … as not satisfying tests for admission under s 138 of the Evidence Act 1995 and/or, constituting inadmissible tendency evidence. 2. Of the Complainant's mother based on paragraphs 5 to 9 of her Statement of 27 March 2002, paragraphs 17, 18 and 19 of her Statement of 23 June 2003, as inadmissible tendency evidence. 3. Of questions and answers 31, 56 to 57, 86 to 88; 99; 101; 107 to 109; 114 to 121; 125 to 153; 156 to 163; 168 to 173; and 177 to 183 of the accused's ERISP with Police of 2 April 2002, as inadmissible tendency evidence". 43 The judgment or order sought in the amended notice of appeal is:- "1. An order vacating the judgment or order made by his Honour Judge Maguire. 2. Such further or other orders as this Honourable Court thinks fit". 44 As previously indicated, the appeal is brought pursuant to s 5F(3A) of the Criminal Appeal Act,` which provides:- "The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case". 45 Section 5F(5) provides:- "The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against". 46 If this Court decides that a decision or ruling made by Judge Maguire and falling within the terms of the amended notice of appeal was erroneous, then this Court should clearly vacate that decision or ruling. However, if the Court does vacate such a decision or ruling, a question will arise, to which I will return later in this judgment, about whether this Court, having vacated a decision or ruling by Judge Maguire, should itself make some other decision or ruling. The Probation and Parole officer's evidence 47 I have already referred to parts of the officer's statement, file notes and evidence in the voir dire hearing and to the part of Judge Maguire's judgment relating to her evidence. 48 There was evidence to support each of Judge Maguire's seven primary findings of fact about the officer and those findings of fact could not be successfully challenged. 49 Having made those primary findings of fact, Judge Maguire did not in terms say that the evidence which the Crown sought to adduce from the officer was evidence which had been unlawfully obtained but such a finding is clearly implicit in his Honour's finding that the obtaining of the officer's evidence was fundamentally flawed. The reason given by his Honour for such a finding was that the Probation and Parole officer had misconceived her functions and had undertaken functions, namely the investigation of criminal activity and the interrogation of suspects, which belonged to the Police Service and the Department of Corrective Services. 50 I am, with respect, unable to agree with the reason given by his Honour for his finding. At the second case meeting on 20 June 2002 the officer, as the member of the New South Wales Probation Service having the responsibility of supervising and guiding the respondent, who had pleaded guilty to and been convicted of an offence of possessing child pornography, formed a judgment that the respondent was not being honest in denying that he fantasised about having sex with children and made a further judgment that "supervision will need to focus on (the respondent) admitting his fantasies and then being able to challenge him on the possibility that he could act on his fantasises". Pursuant to this judgment made by her, the officer questioned the respondent, with a view to eliciting admissions from him that he did have sexual fantasies about children. 51 I do not consider that it was open to the judge of first instance to find that, in proceeding as she did, the Probation and Parole officer "completely misconceived her duty" and assumed functions which could only properly be performed by the Police Service or the Department of Community Services. The officer was performing her functions as a Probation and Parole officer in the way in which she as an experienced officer considered they should be performed, in order that she should provide effective supervision and guidance for the respondent and I do not consider that it was open to Judge Maguire to find that the officer was wrong in deciding how she should perform her functions. In questioning the respondent the officer was not purporting to act as an agent of the Police Service. I accordingly consider that Judge Maguire's finding, that evidence by the Probation and Parole officer of admissions made to her by the respondent was evidence improperly obtained because the officer had misconceived what her proper functions were, was erroneous and should be vacated. 52 Even if Judge Maguire's finding, that the evidence of the Probation and Parole officer had been improperly obtained for the reason given by his Honour, had been correct, I consider that there were errors in his Honour's exercise of the power to exclude improperly obtained evidence conferred by s 138 of the Evidence Act . 53 His Honour did not expressly state the test in subs (1) of s 138, that is that the evidence which has been obtained improperly should not be admitted "unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". However, I would be prepared to accept that his Honour did apply the statutory test. 54 However, when referring to the matters in subs (3) of s 138, his Honour said, with reference to par (c) ("the nature of the relevant offence"), that he did not see the nature of the offences as having any particular bearing. One of the offences charged (charge five) was an offence of having sexual intercourse with a child under the age of ten years and was a very serious offence carrying a maximum penalty of imprisonment for twenty-five years. In R v Dalley (2002) 132 A Crim R 169 the majority of the Court of Criminal Appeal (Spigelman CJ at 172 (7) and Blanch AJ at 189 (102)) held that the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in a case of crimes of greater gravity both at common law and pursuant to s 138(3)(c). With reference to pars (d) and (e) of s 138(3), his Honour held that the impropriety was "of the gravest kind" and that the impropriety was deliberate. In my opinion, there was no evidence capable of supporting either of these findings. 55 I have already held that Judge Maguire's finding, that evidence by the Probation and Parole officer was improperly obtained evidence for the reason given by his Honour, was erroneous and should be vacated. However, that does not necessarily mean that the evidence by the Probation and Parole officer would be admissible in a trial of the respondent. It may be that there is some other basis on which the evidence should be excluded under s 138. Before Judge Maguire counsel for the respondent submitted that the Probation and Parole officer's evidence, if not excluded under s 138, should be excluded under s 90 of the Evidence Act (the discretion to refuse to admit evidence of admissions, if, having regard to the circumstances in which the admissions were made, it would be unfair to the accused to use the evidence) or under s 137 of the Evidence Act (the obligation of a court to refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused). At the hearing before this Court other conceivable grounds on which the Probation and Parole officer's evidence might be excluded were mentioned. 56 At the hearing before this Court counsel for the respondent submitted that this Court should itself decide all questions concerning the admissibility of the evidence of the Probation and Parole officer. Counsel for the Crown submitted that this Court should decide all questions of admissibility under s 138 of the Evidence Act but should not enter upon a consideration of other sections of the Evidence Act . 57 In my opinion, notwithstanding the power granted to this Court by s 5F(5)(b) of the Criminal Appeal Act , this Court should not in the present case take upon itself to decide any further questions concerning the admissibility of the evidence of the Probation and Parole officer (apart from Judge Maguire's finding that the Probation and Parole officer's evidence was also inadmissible as tendency evidence). The present appeal is an appeal by the Crown and par 1 of the Crown's grounds of appeal, which relates to the evidence of the Probation and Parole officer, is limited to asserting that the judge of first instance erred in refusing to admit evidence "as not satisfying tests for admissibility under s 138 of the Evidence Act and/or constituting inadmissible tendency evidence". More fundamentally, I consider that this Court as an appeal court should be cautious in taking upon itself to decide questions about the admissibility of evidence which have not been decided or even considered by a judge of first instance. This is particularly so, when the questions involve an exercise of discretion or the assessment and weighing of criteria such as "probative value" and "unfair prejudice". I note that in R v Sophear Em [2003] NSWCCA 374, an appeal under s 5F(2) of the Criminal Appeal Act, this Court held that a decision by the judge of first instance excluding certain evidence had been erroneous and should be vacated but considered it inappropriate to make any further ruling of its own about the admissibility of the evidence. As stated, Sophear Em was an appeal under s 5F(2) and not s 5F(3A), but the powers of the Court of Criminal Appeal conferred by ss (5) of s 5F are the same in both kinds of appeal. The "Tendency" Evidence 58 In his judgment Judge Maguire accepted submissions by counsel for the respondent that the collection and viewing of child pornography is different in nature from the criminal acts with which the respondent has been charged and that evidence of sexual fantasises by the respondent could not establish a tendency to act in the ways in which the Crown alleges the respondent acted. 59 It is not entirely clear on what basis his Honour rejected the evidence as being tendency evidence. Issues which can arise when evidence is tendered by the Crown in criminal proceedings as being evidence of a tendency on the part of the accused, include:- (i) Is the evidence relevant as evidence of a tendency on the part of the accused (s 55 of the Evidence Act) (ii) If the evidence is so relevant, is the evidence adduced to prove that the person has or had a tendency to act in a particular way (s 97 of the Evidence Act). (iii) If the evidence is within s 97 of the Evidence Act , are pars (a) and (b) of s 97(1) complied with, that is was notice given of intention to adduce the evidence and does the court think that the evidence has significant probative value. In the present case notice was given. (iv) If s 97(1) is complied with, does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused (s 101(2) of the Evidence Act ). 60 In his judgment Judge Maguire did not refer to either s 97(1) or s 101(2) of the Evidence Act . Any finding by his Honour that the evidence did not fall within s 97 would be a finding in favour of admitting the evidence, not excluding the evidence, because s 97 is a rule of exclusion of evidence. It would appear to me that his Honour held that evidence that the respondent collected and viewed child pornography and fantasised about sexual acts with children, regarded as evidence of a tendency the respondent had, was simply irrelevant, that is to say it was not evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of whether the respondent had committed any of the offences alleged by the Crown or, differently expressed, was not evidence that, if it were accepted, could establish any relevant tendency to act in a particular way. 61 I do not accept that the evidence, regarded as evidence of a tendency the respondent had, was irrelevant. Evidence that the respondent, as a person charged with offences of child sexual assault, had collected and viewed child pornography and had fantasised about sexual acts with children satisfies the criterion of relevance under s 55 of the Evidence Act , in that the evidence is capable of rendering more probable that the respondent acted in the ways in which he is alleged by the Crown to have acted. In my opinion, no expert evidence was required in order to make such evidence admissible. It is in accordance with common human experience that a person who has had thoughts, particularly persistent thoughts, about some type of act is, at least to some extent, more likely to perform an act of that type than a person who has never had such thoughts. It is not to the point that many persons who fantasise about some act never actually do it. 62 A finding by Judge Maguire that the "tendency" evidence was irrelevant would be inconsistent with his Honour's own finding, when considering par (a) of s 138(3) of the Evidence Act in relation to the Probation and Parole officer's evidence, that the Probation and Parole officer's evidence "clearly…has some probative value". 63 In my opinion, any finding by his Honour that the "tendency" evidence was irrelevant derives no support from the decision of the High Court in BRS v The Queen . In BRS , a case decided under common law principles, the majority of the High Court held that evidence given by a witness W, not being the complainant H, that the accused had engaged in sexual acts with W using a lubricant and a towel, although admissible because it tended to confirm certain aspects of the complainant's evidence about the presence of a lubricant and a towel, was not admissible as evidence of a propensity on the part of the accused and that the trial judge should have given the jury a direction that they could not rely on W's evidence as evidence of propensity. The finding that W's evidence was not admissible as evidence of propensity was based, not on its being irrelevant, but on its not satisfying the stringent common law principles for the admissibility of evidence of propensity. In BRS there was no evidence that the accused had collected or viewed pornography or that the accused had sexual fantasises and there was no consideration of such matters in the judgments. 64 I note that in the present case evidence that the respondent collected and viewed child pornography on the computer would be relevant (quite apart from any relevance as evidence of a tendency the respondent had) as being evidence tending to corroborate or confirm certain aspects of the complainant's evidence, at least in relation to the first three counts in the indictment. 65 I have held that Judge Maguire's decision, that all of the "tendency" evidence was inadmissible for the reasons given by him, was erroneous and should be vacated. On the interpretation I have put on Judge Maguire's judgment, his Honour held that the "tendency" evidence was inadmissible simply on the basis of its being irrelevant and his Honour did not consider either s 97(1) or s 101(2) of the Evidence Act or any other provision of the Evidence Act which might be relevant. As in the case of the evidence of the Probation and Parole officer which I have already separately considered, I do not consider that this Court as an appeal court should take upon itself to decide questions of admissibility of evidence which were not decided or even considered by the judge of first instance and that, consequently, this Court should not make any decision in relation to the "tendency" evidence, beyond vacating Judge Maguire's decision, leaving it to a trial judge to determine whether the evidence or parts of it should be admitted. Conclusion 66 In my opinion, the orders this Court should make are that the appeal be allowed and that the orders made by Judge Maguire on 20 May 2004 rejecting evidence be vacated. ********** Last Modified: 10/25/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.