Director of Public Prosecutions (NSW) v Cruickshank [2016] NSWLC 16

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Cruickshank [2016] NSWLC 16 Hearing dates: 6 May 2016 Decision date: 11 August 2016 Jurisdiction: Criminal Before: Heilpern LCM Decision: The evidence on the third tendency issue, whilst relevant, is not significantly probative and is not admissible. The evidence on the first and second tendency issues and the evidence on the co-incidence issue will be admissible. Catchwords: EVIDENCE – tendency evidence – allegations of indecent assault upon children and possession of child abuse material – whether possession of child abuse material demonstrates a tendency to be interested in children in a sexual manner and obtain sexual gratification from children Legislation Cited: Evidence Act 1995, s 97 Cases Cited: AW v The Queen [2009] NSWCCA 1 Elomar v R [2014] NSWCCA 303 IMM v The Queen [2016] HCA 14 LJW v R [2010] NSWCCA 114 R v Fletcher [2005] NSWCCA 338 R v MM [2004] NSWCCA 364 R v Shamouil [2006] NSWCCA 112 Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) Kenneth Cruickshank (the defendant) Representation: Solicitors: Office of the Director of Public Prosecutions Mr Cochrane (for the defendant) File Number(s): 2014/230675

Judgment

Reasons for Decision 1. In this case the Crown has filed a tendency and coincidence notice, and this judgment rules on the admissibility of the evidence relating to that notice. There are three tendency issues and one coincidence issue in the notice and submissions. 2. For the purposes of this judgment I have considered the oral evidence given to date, the transcripts for each day of the proceedings, the exhibits tendered and the written submissions of the Crown and the defence. 3. The factual matrix is simply stated - the defendant is alleged to have committed the offences of indecent assault on two children he was tutoring. He is also alleged to have been in possession of child pornography material in three separate locations. The charges are all being dealt with in one hearing. It is likely that a key issue in the case is whether the touching was sexual in nature.