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

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

The evidence of possession of child abuse material as proof of a tendency to be interested in children sexually and obtain sexual gratification from children was relevant but not significantly probative under s 97, because there was no evidence of viewing at or around the time of the alleged indecent assaults, no time link between the two sets of offences, and no similarity beyond sexualisation of children. By contrast, the evidence of one alleged indecent assault as tendency evidence in relation to the other, and the evidence of each possession of child abuse material as tendency and coincidence evidence in relation to the other possession allegations, had significant probative value and...

Jurisdiction
Australia
Judgment Date
11 August 2016
Procedural Posture
Criminal Proceeding Concerning Alleged Indecent Assault of Children and Possession of Child Abuse Material / Ruling on Admissibility of Tendency and Coincidence Evidence
Outcome
The third tendency evidence was held inadmissible; the first and second tendency evidence and the coincidence evidence were held admissible.
Legal Topics
['tendency Evidence' 'coincidence Evidence' 'indecent Assault' 'child Abuse Material' 'significant Probative Value']
['criminal Law' 'evidence'] ['tendency Evidence' 'coincidence Evidence' 'indecent Assault' 'child Abuse Material' 'significant Probative Value']

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Procedural Posture

Criminal Proceeding Concerning Alleged Indecent Assault of Children and Possession of Child Abuse Material / Ruling on Admissibility of Tendency and Coincidence Evidence

Legal Issues

  1. 1 ['Whether evidence of two accusations of indecent assault was admissible as tendency evidence that the defendant had a tendency to indecently assault students under the age of 16 years during maths tuition.' 'Whether evidence of child abuse material found in three locations was admissible as tendency evidence that the defendant had a tendency to possess child abuse material in electronic form.' 'Whether possession of child abuse material was admissible as tendency evidence that the defendant was interested in children in a sexual manner and obtained sexual gratification from children.' 'Whether evidence that child abuse material was possessed in three locations was admissible as coincidence evidence to prove knowledge of possession.']

Ratio Decidendi

The evidence of possession of child abuse material as proof of a tendency to be interested in children sexually and obtain sexual gratification from children was relevant but not significantly probative under s 97, because there was no evidence of viewing at or around the time of the alleged indecent assaults, no time link between the two sets of offences, and no similarity beyond sexualisation of children. By contrast, the evidence of one alleged indecent assault as tendency evidence in relation to the other, and the evidence of each possession of child abuse material as tendency and coincidence evidence in relation to the other possession allegations, had significant probative value and...

Court Disposition

The third tendency evidence was held inadmissible; the first and second tendency evidence and the coincidence evidence were held admissible.

Orders

  • ['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.']