R v Farrugia

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren AJ
• Judgment Date: 14 August 2013
• Neutral Citation: [2013] NTSC 47
• Docket Number: FILE NO: 21230633
• Date: 14 August 2013

[2013] NTSC 47

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT ALICE SPRINGS

Judgment of:

Mildren AJ

FILE NO: 21230633

Between:

The Queen

and

Paul Farrugia

REPRESENTATION:

Counsel:

Prosecution: S Geary

Accused: R Goldflam

R v Leeson (1968) 52 CrAppR 185 ; followed

The Queen v IMM (No.2) [2013] NTSC 44 ; referred to

Ratten v The Queen [1972] AC 378 ; referred to

Evidence Act, s 26E(1)

Evidence (National Uniform Legislation) Act, s 66(2), s 165A(2) & (3)

Evidence (National Uniform Legislation) (Consequential Amendments) Act 2012, s 68(1)

Sexual Offences (Evidence and Procedure) Act, s 4(5)(a)

EVIDENCE — expert opinion evidence — forensic analysis of mobile phone –whether expert qualified to give opinion evidence on possibility that a film saved on the phone might have been accessed after the last access date recorded on the phone

EVIDENCE — alleged indecent assault — victim shown indecent movie — shown accused genitals and asked to show hers — whether subsequent kissing could amount to indecent assault

EVIDENCE — exception to hearsay rule — complaint by child victim — whether admissible as evidence of the facts under s 26E Evidence Act (NT)

DIRECTIONS — whether directions required under s 165A(2)(b) of the Evidence (National Uniform Legislation) Act (NT)

STATUTORY INTERPRETATION — exception to hearsay rule — complaint by child victim — whether admissible only under s 26E Evidence Act (NT) or whether s 66(2) Evidence (National Uniform Legislation) Act (NT) applied

REASONS FOR RULINGS

(Delivered 14 August 2013)

Introduction

1 The accused pleaded not guilty to five counts. Counts 1 and 2 charged that the accused, on 19 August 2012 at Tennant Creek, without legitimate reason, intentionally exposed a child under the age of 16 years to an indecent film. Count 1 related to a child BW, and count 2 related to a child AG. Counts 3 and 4 allege that the accused exposed the children to an indecent act by himself. Count 5 alleged an indecent assault on the child BW.

2 The Crown case was that on 19 August 2012, the accused visited Bill Allen Lookout, known locally as One Tank Hill, just outside of Tennant Creek. He was driving a red Ford Falcon XR Sedan. There is a bituminised access road to the top of the hill, where there is a car park. Also at the top of the hill there is a large water tank, and a small shed which contains pumping equipment. An employee of the Power and Water Corporation had been called out to do some maintenance work on the pump. He brought with him the two children who were amusing themselves by riding their scooters down the road to the bottom of the hill. It is alleged that the accused parked his car partly on the bitumen road, and partly on the dirt verge of the access road about half way up the hill, and got out of his vehicle carrying a mobile phone, when the two children came down the hill and stopped near the car. At this point the accused showed the children a pornographic movie, exposed himself to them, and invited the children to show him their genitals. The children refused to do so. It is alleged that the accused then invited the children to say ‘AH’, which the older child understood him to mean that he was inviting them to fellate him. The children again refused. It is alleged that the accused then kissed the child BW on the cheek and departed. The children then went up the hill and the older child BW made an immediate complaint to the maintenance worker.

3 The accused's version of the events, given to the police in his record of interview, and ultimately by giving sworn evidence at the trial, was that he was in urgent need of relieving himself, and stopped the vehicle to do so. He was just finishing off when the children came down the hill. He denied showing an indecent video to the children. He claimed that the child BW became hysterical, the child AG accused him of being gay, and that he attempted to explain to the children that he was looking for a mining expo, took the wrong turn, and showed the phone to the children so that they could see that he had Google maps of the area on the screen, got into his car and left. He denied showing a pornographic movie to the children.

4 The accused was ultimately found guilty of counts 1–4, but not guilty on count 5. What follows are my reasons for rulings I made regarding certain questions which arose during the course of the trial.

Admissibility of expert evidence

5 The police seized a mobile phone owned by the accused at the time of his arrest which took place later that same day. It was an agreed fact that the accused had a 9-second film or video clip which had been saved on the phone, which displayed a naked man and a naked woman having sexual intercourse with two naked females watching. The film also showed a woman's breasts. The film was called ‘movie 2’.

6 Forensic examination of the accused's phone showed that the film had been saved on 15 July 2012 at 3.21 hours and had been last accessed on that date. If this information was accurate, this film could not have been shown to the children. There was no other film or trace of another film of a similar nature found on the phone. The Crown called a police officer, Marcus Becker, as an expert to give evidence that the time recorded on the phone as to when Video 2 was last accessed was unreliable, and that it was possible that the film had been accessed afterwards without that being recorded on the phone.

7 Objection having been taken to Officer Becker's qualifications, evidence was taken on the voir dire in the absence of the jury.

8 The accused's evidence at the trial was that the film was sent to him as a text from a friend in the early hours of the morning, when he had been out late at the Casino. He opened the text, saw the film, and had not looked at it since.

9 Initially, when reporting his findings after he had examined the film, Officer Becker had not reported that the last retrieval date shown on the phone was inconclusive. At the request of the prosecutor, Mr. Geary, he examined the phone further, to see if he could ascertain whether there was any uncertainty about the date. Using an identical phone, he conducted an experiment by placing...