Adel Ebrahimi (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0162

ADEL EBRAHIMI (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]Because this is an interlocutory appeal, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	MAXWELL P, SIFRIS and MACAULAY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 February 2022
DATE OF JUDGMENT:	13 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 65
JUDGMENT APPEALED FROM:	[2021] VCC 1618 (Judge Hassan)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Evidence of incriminating conduct – Charges of rape, assault and related offending – Separate charge of perverting course of justice – Offer of payment to complainant to withdraw allegations – Whether conduct reasonably capable of being viewed by jury as evidence of incriminating conduct – Whether probative value of evidence outweighed by danger of unfair prejudice – Leave granted but appeal dismissed – R v Ciantar (2006) 16 VR 26, House v The King (1936) 55 CLR 499 applied – Criminal Procedure Act 2009, s 295 – Jury Directions Act 2015, ss 18, 20 and 21 – Evidence Act 2008, s 137.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Lavery	Tony Danos
For the Respondent	Mr C Boyce SC with Ms G McMaster	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P

SIFRIS JA

MACAULAY JA:

Introduction and summary

The applicant is facing one charge of rape (charge 1), five charges of various assaults and related offending (charges 2–7) and one charge of attempting to pervert the course of justice (charge 8). The question on this application for leave to appeal pursuant to s 295 of the Criminal Procedure Act 2009 (‘CPA’) is whether the trial judge erred in failing to sever charge 8 from charges 1–7 on the indictment. The applicant’s position was (and is) that the evidence on charge 8 was not admissible in the trial of charges 1–7 and that charge 8 should therefore have been severed.
The evidence to be led in support of charge 8 is that the applicant arranged for an associate to offer money to the complainant to have her withdraw her complaints of rape and assault (‘the charge 8 conduct’). The prosecution seeks to rely on that evidence as evidence of incriminating conduct in proof of charges 1–7. Under the Jury Directions Act2015 (‘JDA’), incriminating conduct is relevantly defined as ‘conduct that amounts to an implied admission by the accused of having committed an offence charged or an element of an offence charged’.[2]
[2]JDA, s 18.
An essential condition for being permitted to rely on particular evidence as evidence of incriminating conduct is that the trial judge determines that the relevant evidence is ‘reasonably capable of being viewed by the jury as evidence of incriminating conduct’.[3] A jury may only treat evidence as evidence of the accused’s belief that he or she had committed ‘the offence charged’ (ie, as an implied admission of having committed that offence or an element of it) if the jury concludes that the conduct occurred and that the only reasonable explanation of the conduct is that the accused held that belief.[4]
[3]JDA, s 20(1)(b).
[4]JDA, s 21(1)(a).
On his application for the severance of charge 8, the applicant argued that:

(a) The charge 8 conduct was not reasonably capable of being viewed by the jury as incriminating conduct; and

(b) Alternatively, if it could be so viewed, the evidence of the conduct should be excluded under s 137 of the Evidence Act 2008 (‘Evidence Act’), because its probative value was outweighed by the danger of unfair prejudice.

The trial judge rejected both submissions and refused to sever charge 8 from the indictment.[5]
[5]DPP v [Ebrahimi] [2021] VCC 1618 (‘Reasons’). The ruling was first pronounced in court on 22 October 2021, then published to the parties in writing on 10 November 2021 incorporating an addendum in light of a further argument raised by defence counsel on that day.

Upon application to do so, the trial judge certified, pursuant to s 295(3)(a) of the CPA, that her interlocutory decision concerned evidence that, if ruled inadmissible, would eliminate or substantially weaken the prosecution case, thus enabling the applicant to seek the leave of this Court to appeal the decision.[6]
[6]Arguably, the more appropriate ground for certification in this case was under s 295(3)(b) of the CPA; see PNJ v DPP (2010) 27 VR 146, 153 [33] (Maxwell P, Buchanan and Bongiorno JJA); [2010] VSCA 88.
In this Court, the applicant reagitated the two arguments made before the judge. For reasons which follow, leave to appeal the interlocutory decision is granted but the interlocutory decision is affirmed.
Relevant background

Charges 1–7

In November 2017, the applicant and the complainant commenced living together as partners in a unit in a northern suburb in Melbourne. On the prosecution case,[7] the applicant and complainant ‘broke up’ in March 2019. Although the complainant continued to live in the unit with the applicant, her evidence will be that because she had nowhere else to live she slept on the downstairs couch while the applicant slept in the upstairs bedroom. The applicant denies that he and the complainant ‘broke up’.[8]
[7]Taken from the amended summary of prosecution opening (‘prosecution summary’).
[8]Taken from the defence response to the prosecution summary.
On 6 April 2019, the complainant made a statement to the police alleging that she was raped by the applicant at the unit on 2 April 2019, and further assaulted by him at the unit on 6 April 2019. Following those allegations, the applicant was interviewed by police on 7 and 18 April, and arrested, charged and remanded in custody on 18 April 2019. Seven charges were laid: a charge of rape occurring on 2 April 2019 (charge 1) and, from the incidents on 6 April 2019, charges of assault with intent to commit a sexual offence (charge 2), conduct endangering a person (charge 3), intentionally causing injury or, in the alternative, recklessly causing injury (charges 4 and 5), common assault (charge 6) and making a threat to kill (charge 7).
In her reasons, the judge explained the applicant’s defence, and thus the issues for trial, in these terms:[9]
[The applicant] denied the offending. He said all sexual activity between himself and the complainant was consensual. He said he and the complainant had enjoyed a good relationship but in the last three weeks she had become verbally abusive as well as ‘totally violent’ because he had befriended another woman on Instagram. The issues at trial will therefore be whether the sexual conduct the subject of charge 1 was consensual and, in respect of charges 2–7, did the conduct described by the complainant occur?
[9]Reasons, [2].
Charge 8
The charge 8 conduct occurred in July 2020 while the applicant was remanded in prison, having remained there since his arrest in April 2019. The background to the conduct, and the conduct itself, was summarised by the trial judge as follows:[10]
[10]Reasons, [10]–[18].
On 15 November 2019, a family violence intervention order was granted where the complainant was the protected person and the [applicant] was the respondent. The order prohibited the [applicant] from contacting the complainant or having anyone do so on his behalf. The order was served on him the same day.
On 12 July 2020, the [applicant] phoned a friend of his … from Ravenhall Prison. The call was recorded by Ravenhall and later translated into English. During the phone call, [the friend] told the [applicant], if he wanted, ‘we can make it ok’, and the [applicant] asked, ‘How can you make it ok? Give me an idea.’ [The friend] asked, if the complainant withdrew her complaint, would everything be OK? The [applicant] said, ‘that’s it’, ‘I swear by Q’ran’.
[The friend] offered to talk to the complainant to see if she wanted any money so they could give it to her. The [applicant] said she had already taken his car. [The friend] suggested he would offer the complainant $30,000 or $40,000 and to keep the car, to withdraw the charges. [The friend] said, ‘if you are happy, we can go make such suggestion to her’, and the [applicant] said to put two mobile phones in his pocket and record it. [The friend] said he would call her to meet. The [applicant] then told [the friend] not to call her, but to meet her in person and record it. [The friend] said he would call her and meet her. He said he would tell her to ‘come and withdraw [her] consent, keep the car for yourself, we will also give you $30,000–40,000’. The [applicant] told him to put his mobile in his pocket and record it.
The [applicant] made the arrangement with [the friend] for the purpose of having the complainant withdraw her complaint for the alleged offending that was before the County Court. In furtherance of the arrangement, [the friend] phoned the complainant later the same day, at 3:54 pm on 12 July 2020, but the complainant had blocked his number. She received a call from a male saying to call [the friend] and providing mobile number […]. This number was registered to [the friend]. The complainant unblocked his number and called [the friend] back at 7:22 pm to tell him not to pass on her number to anyone.
[The friend] told the complainant he had to see her and he had a message from the [applicant]. He said to come to the police station with him and withdraw the charges and the [applicant] would pay her $100,000. When she refused, [the friend] said if she did not want to do that, then don’t turn up at Court. He said if she didn’t turn up at the trial, there would be $100,000 waiting for her. He added, ‘if you don’t turn up at Court, the case will be withdrawn and dropped’. [The friend] kept saying he had a message from the [applicant] to pass on to her. He told her to keep the car from the [applicant] and he wanted to pay her $100,000 for her not to turn up at Court and the case will be dropped. [The friend] said he wanted to meet her in person.
When the complainant asked why the [applicant] didn’t call her himself, [the friend] said because there was an intervention order. The complainant did not meet up with [the friend].
The car was a Mercedes Benz valued at about $50,000. It had been jointly owned and when they separated, the complainant had put it in her own name.
On 14 July 2020, the [applicant] phoned [the friend] again. The call was recorded by Ravenhall and later translated into English. In the call, [the friend] told the [applicant] what he had done in furtherance of their arrangement. He said he called the ‘bitch’, she blocked his number and she didn’t want to talk to him. He said he tried everything but she would not come. The [applicant] told [the friend] not to give the details on the phone.
[The friend] then said he told her, ‘the thing you have taken [the car] could stay’ with her and they would give her even more. He said the complainant said she owned the car. He said, ‘let’s give this to you and you withdraw your complaint’. When the complainant said the government was now engaged, [the friend] said he told her to ‘simply come and withdraw your consent’. In response, the [applicant] said to forget about her, and not to contact her anymore, as they would follow the matter legally.
As is evident from that description of events, it is alleged that while the applicant was in prison, his friend suggested to him that an offer of ‘$30,000 to $40,000’ plus the retention of the Mercedes Benz (valued at approximately $50,000) be made to the complainant in return for her agreeing to ‘withdraw the charges’ against the applicant. The applicant agreed to that course and gave certain instructions about how the offer should be communicated and recorded. As things happened, and without further explanation, the friend made an offer to the complainant of $100,000 to induce her to withdraw her complaint or to not attend to give evidence at the trial of the proceeding.
On 14 July 2020, in a further telephone conversation, the friend reported that the offer was put to the complainant but she had not agreed to withdraw the complaint. Furthermore, the discussions between the friend and the applicant were intercepted and recorded by the prison authorities.
The applicant was charged with attempting to pervert the course of justice (charge 8). In addition, by a notice filed on 5 October 2021, the prosecution gave notice of its intention to adduce the evidence of the telephone calls of 12 and 14 July 2020 as evidence of incriminating conduct (the ‘charge 8 evidence’). That is, in addition to being relied upon in proof of charge 8, the evidence of the telephone calls was to be relied on in proof of charges 1–7. All eight charges were joined on the one indictment.
Proper approach to the application

The applicant sought to impugn the judge’s refusal to sever charge 8 on two alternative bases, namely, that her Honour:

(c) was wrong to conclude, under s 20 of the JDA, that the charge 8 evidence was reasonably capable of being viewed by the jury as evidence of ‘incriminating conduct’ and, instead, should have found that the evidence was not cross-admissible on charges 1–7 (‘the s 20 issue’); or

(d) should have ruled in accordance with s 137 of the Evidence Act that the charge 8 evidence was not admissible in the trial of charges 1–7 (‘the s 137 issue’).

The respondent raised questions about the proper conceptual analysis of the applicant’s real argument on this application and, in consequence, the proper sequential approach for resolving that argument. In effect, the respondent questioned how the severance argument should be approached given that the applicant conceded that charge 8 was properly joined on the indictment with charges 1–7.

The respondent’s proposed analysis of the issues on this application may be summarised as follows:

(e) the proper joinder of two charges may be supported on one of two bases: either because the evidence in respect of one is cross-admissible in proof of the other (the ‘cross-admissibility basis’),[11] or because the charges are ‘founded on the same facts’ because they ‘have a common factual origin’ (the ‘Barrell basis’);[12]
[11]R v Kray [1971] QB 125.
[12]R v Barrell and Wilson (1979) 69 Cr App R 250; Fleming v The Queen [2021] VSCA 206, [77] (Priest, Kyrou and Niall JJA).

(f) if charge 8 has been properly joined with charges 1–7 on either basis, pursuant to s 193 of the CPA the Court might nonetheless order that charge 8 be tried separately from charges 1–7 (that is, charge 8 be severed from the indictment), if the Court considered that the applicant’s case might be prejudiced because he was charged with more than one offence in the same indictment, or that for some other reason it was appropriate to do so;

(g) as conceded by the applicant, charge 8 was properly joined on the indictment with charges 1–7 in this case;

(h) since both the s 20 issue and the s 137 issue were relevant only to the cross-admissibility basis for joinder, success on either issue would leave untouched the Barrell basis for joinder (which the applicant’s concession as to proper joinder must be taken to have accepted);[13]

(i) in those circumstances, if the applicant succeeded in refuting the cross-admissibility of the evidence, the question of prejudice would have already been considered in relation to the s 137 issue, leaving no further work for s 193 of the CPA to do on the question of severance; and

(j) alternatively, even if the challenge to cross-admissibility only involved the s 20 issue, and the applicant succeeded on that issue, severance would not automatically follow because the Barrell basis would still support joinder. In those circumstances, the s 137 issue would, in substance, constitute the applicant’s argument under s 193 of the CPA for severance.

[13]Analogously with the situation in Lewis v The Queen [2018] VSCA 40.

It is not necessary that we make a final determination as to the correct conceptual approach to the applicant’s argument. Both parties accepted that the challenge to the cross-admissibility of the evidence, on the one hand, and such argument as the applicant wishes to raise by way of prejudice for the purpose of s 193 of the CPA, on the other, would be effectively addressed by considering both the s 20 issue and s 137 issue. That is the way in which the argument before the Court proceeded. We will address each of those issues in turn.

Before doing so, a preliminary issue arose concerning the standard of appellate review to apply in determining the s 20 issue.

Standard of appellate review

The preliminary issue was whether the s 20 issue was to be determined by this Court on House v The King (‘House’)[14] principles, thus requiring the applicant to show that the judge failed to take into account relevant considerations or took into account irrelevant considerations or otherwise came to a conclusion which was not reasonably open on the facts before the judge. The alternative view is that, on an interlocutory appeal against a judge’s affirmative determination under s 20(1)(b) of the JDA, the Court is required to apply its own independent judgment as to the facts to determine for itself whether it was open to the jury to view the conduct as incriminating conduct.
[14](1936) 55 CLR 499; [1936] HCA 40.

This question appears not to have arisen previously and neither party was in a position to advance submissions on it. As will appear, we conclude that whichever approach is adopted, the outcome is the same: that is, the trial judge’s decision should not be interfered with. In those circumstances we need not make any determination on the preliminary point.
It should be noted, however, that this preliminary point does not arise in respect of the second of the applicant’s two issues — that is, the s 137 issue. It has been held by this Court that an interlocutory appeal arising from a refusal by a trial judge to exclude evidence under s 137 of the Evidence Act should be determined in accordance with House principles.[15] That conclusion was reached notwithstanding that an appeal against conviction on the ground that the judge erred by not excluding evidence under s 137 is to be decided by the appellate court for itself, and not upon House principles.[16]
[15]Singh v The Queen (2011) 33 VR 1, 6–7 [26] (Almond AJA, Buchanan JA agreeing at [1] and Bongiorno JA agreeing at [2]); [2011] VSCA 263; McCartney v The Queen (2012) 38 VR 1, 11 [46] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 268 (‘McCartney’); Bray (a pseudonym) v The Queen (2014) 46 VR 623, 638 [62], [63] (Santamaria JA, Maxwell P agreeing at [1] and Weinberg JA agreeing at [2]); [2014] VSCA 276; Lewis v The Queen (2018) VSCA 40, [50] (Ferguson CJ, Weinberg JA and Kidd AJA).
[16]McCartney (2012) 38 VR 1, 10 [43]–[45] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 268; Lewis v The Queen (2018) VSCA 40, [50] (Ferguson CJ, Weinberg JA and Kidd AJA).
Similar questions have arisen in respect of interlocutory appeals from decisions made on the admissibility of evidence under other provisions of the Evidence Act — for example, s 138 (regarding an admission)[17] and ss 97 and 101 (with respect to tendency evidence).[18] In concluding that interlocutory appeals from such decisions are to be determined applying House principles, emphasis has typically been laid on the need for caution not to usurp the trial judge’s jurisdiction,[19] the stage of the proceeding at which an interlocutory decision has been made and the state of the evidence at that time,[20] and the strong statutory indication for the need for appellate restraint at the interlocutory appeal state.[21]
[17]DPP v MD (2010) 29 VR 434; [2010] VSCA 233.
[18]KJM v The Queen (No 2) (2011) 33 VR 11; [2011] VSCA 268 (‘KJM’); Dao v The Queen [2011] NSWCCA 63.
[19]Bray (a pseudonym) v The Queen (2014) 46 VR 623, 638 [62] (Santamaria JA, Maxwell P agreeing at [1] and Weinberg JA agreeing at [2]); [2014] VSCA 276.
[20]McCartney (2012) 38 VR 1, 11–12 [50] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 268.
[21]KJM (2011) 33 VR 11, 13 [13] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); [2011] VSCA 268; McCartney (2012) 38 VR 1, 12 [51] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 268.

In McCartney, this Court explained the rationale for the adoption of a different standard of appellate review on a conviction appeal from that which applies to an interlocutory appeal by reference to
the different functions, and perspectives, of the appeal court at those different stages of the proceeding. It is also to be explained — perhaps decisively — by what the court in KJM identified as the clear intention of the Criminal Procedure Act that interlocutory appeals on questions of evidence ‘should be strictly confined’.[22] No such constraint applies to appeals against conviction.[23]
[22]Citing R v DG (2010) 28 VR 127, 132–3, [32]–[36] (Buchanan, Weinberg and Bongiorno JJA); [2010] VSCA 173.
[23]McCartney (2012) 38 VR 1, 12 [51] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 268.

Similar considerations may support a conclusion that an interlocutory appeal against a decision of a judge admitting evidence of incriminating conduct should similarly be decided on House principles. However, as we have said, that is not a matter on which we need to reach a concluded view to determine this case.

The s 20 issue: is the conduct reasonably capable of being viewed as incriminating conduct?

On the s 20 issue, the applicant argued that no jury acting reasonably could view the charge 8 evidence as evidence of incriminating conduct, that is, could not be satisfied that the only reasonable explanation of his conduct was that he believed he had committed one or more of the charge 1–7 offences. For that reason, he submitted, the judge was wrong to conclude that the charge 8 evidence was reasonably capable of being viewed by the jury as evidence of incriminating conduct.
The applicant’s two main points supporting that submission were:

(k) the charge 8 conduct was plausibly (or better) explained by the applicant’s desire to be released from remand rather than because of a belief that he was guilty of the offences with which he was charged; and

(l) even if it could be inferred from the conduct that he believed himself to be guilty of an offence, such an inferred belief could not easily be ascribed to any particular offence with which he was charged, or any element thereof, or even to one as distinct from the other of the two discrete occasions of alleged offending (that is, 2 April or 6 April 2019).

These two points were said to deprive the conduct of any reasonable capacity to imply, as the sole reasonable explanation of his conduct in July 2020, that he believed himself guilty of any offence with which he was charged.
First point: desire to be released rather than belief in guilt
In support of his first point, the applicant took the Court to specific aspects of the transcript of the recorded conversation that he had with the friend. The applicant drew attention to the portion of the transcript where the friend first introduced the topic of offering the complainant an inducement to withdraw her complaint, saying to the applicant, ’how long should you be in prison for the crime? For example, one year, two year?’ The applicant replied, ’I am going to prove my innocence. Doctor has reported that the girl has hurt herself. The doctor is coming to speak before 12 people, the jury. Then when it is proven that she has lied, they will grant my visa.’ Thereafter, the applicant and the friend discussed a plan to offer money to the complainant and the details of the offer and means of conveying it. Later in the same conversation, the friend rehearsed what he would tell the complainant, saying: ‘come and withdraw your complaint. Keep the car for yourself. We will also give you $30,000–$40,000’, and then he said to the applicant, ‘It is better than remaining here’.
The applicant argued that these statements, which book-end the relevant conversation about the plan to make the offer to the complainant, demonstrate that the notion of paying the complainant to withdraw the complaint was directed to getting him out of remand rather than to defeat charges that the applicant inferentially knew he was guilty of. The applicant argued that his statement about the complainant having lied, and his claim of innocence, dispelled any inference of consciousness of guilt. Another portion of the conversation was relied on to show that he understood that he was likely to have to remain in remand for another seven months.
Second point: inability to ascribe a belief of guilt to a particular charge or occasion
In support of his second point, the applicant emphasised that charges 1–7 involved two discrete occasions of alleged offending: the alleged rape on 2 April 2019 and the alleged assaults and related offending on 6 April 2019. As the trial judge noted, the applicant has a markedly different defence to each group of offences. For the rape, sexual intercourse is admitted but consent (and belief in consent) is the issue. For the charged offences on 6 April 2019, the acts themselves are denied. As a result, the applicant submitted, the argument for an inferred belief of guilt necessarily involved so many permutations as to make it impossible to attribute any such belief to any particular offence.
Consideration of the two points
While we can ultimately address both points together, we commence with the second of the applicant’s two points.
The argument about difficulty in attributing the implied admission of guilt to any one of a number of specific offences charged is answered by analogy with this Court’s decision in R v Ciantar (‘Ciantar’).[24] In Ciantar, the Court allowed for the possibility that an applicant’s post-offence conduct could be explained by him being conscious that he had committed one or more lesser offences, as opposed to the offence charged. But it did not follow, the Court held, that the post-offence conduct could not be left to the jury as something that was capable of supporting an inference that the applicant was conscious that he had committed ‘the offence charged’.[25] Accepting that there may be some circumstances in which post-offence conduct is ‘intractably neutral’, the Court said it was not to be assumed that it would usually be so and it was not likely to be so in many cases.[26]
[24](2006) 16 VR 26, 39 [39] (Warren CJ, Chernov, Nettle, Neave and Redlich JJA); [2006] VSCA 263.
[25]Ibid.
[26]Ibid 39 [40].
Plainly, this is not a case in which the post-offence conduct could be said to be intractably neutral. The nature of the charge 8 conduct is such that the inferred awareness of guilt is capable of being viewed as referable to all of the charged conduct. That is how the jury will be invited to view it. We think it most unlikely that the inferred awareness could be viewed as referable only to the rape count, or only to the assault counts, or only to one or some of those assaults, but acceptance of that possibility does not affect the admissibility of the evidence.
We return to the first point, which challenges the judge’s conclusion that the jury could reasonably conclude that awareness of guilt was the only explanation of the charge 8 conduct. On the material before the Court, there is a clear rational pathway by which the jury could reach that conclusion. Put shortly, the sheer scale of the inducement offered to the complainant would enable a jury to reject as wholly implausible the alternative explanation put forward for the conduct. That is, the jury could reasonably conclude that the applicant would only have made such an offer because he knew that the allegations against him were true, that the complainant was determined to proceed and that, as a result, he needed to offer a very substantial sum of money to dissuade her.
For that reason, it was well open to the judge to find that, on the basis of the evidence as a whole, the charge 8 conduct was reasonably capable of being viewed by a jury as incriminating conduct. Indeed, we would have reached the same conclusion ourselves.
Should the evidence have been excluded under s 137 of the Evidence Act?
As noted, House principles govern appellate review of the decision under s 137 of the Evidence Act. Accepting that position, the applicant argued that the judge either failed to take into account a relevant consideration or, alternatively, reached a conclusion that it was not open to her to reach. As we will explain, these two arguments were somewhat interconnected.
Reasons
In the Reasons, the judge first addressed the probative value of the charge 8 evidence as evidence of incriminating conduct for charges 1–7. Having accepted that a jury, properly instructed, could be satisfied that the conduct did amount to an implied admission of guilt, the judge was right to view the evidence as carrying significant probative force.
As to the danger of unfair prejudice, the judge considered a submission made by the applicant that, in order for him to advance his alternative explanation for that conduct, he would need to elicit evidence that was prejudicial to himself. That is, in order to rebut the prosecution’s explanation of the conduct, he would be forced to reveal that he had been in custody on remand for a long period of time before July 2020 and, potentially, that he had been refused bail on several occasions.
Thus, the likely unfair prejudice of the charge 8 evidence was said to arise not from the evidence itself, but rather, because its reception would oblige the applicant to lead other evidence damaging to himself in order to make good his exculpatory explanation.
In rejecting the applicant’s submission that the danger of unfair prejudice outweighed the probative effect of the evidence, the judge said as follows:
The evidence does have a prejudicial effect in that the jury will become aware that the accused is in custody. It is not uncommon in criminal trials for juries to become aware that an accused is in custody. In this case, there is no suggestion that the jury will become aware of any criminal conduct on the part of the accused that goes beyond the charges on the indictment. It is also not necessary that the jury be made aware that the accused has been in custody since April 2019. The prosecution would not necessarily seek to lead this fact. However, it was the defence’s submission that if the evidence of the phone conversations is admissible, the defence may have to rely upon the evidence of the accused having been in custody since April 2019 in order to put the alternative explanation for the accused’s conduct to the jury, that is, he was desperate to get bail. As I discussed with Mr Lavery, who appeared on behalf of the accused, in these circumstances, the evidence would be before the jury at the behest of the defence and on the basis of a forensic decision made by the defence.
In any event, in my view, any prejudice arising from the disclosure of the accused’s custodial status can be properly addressed by clear judicial direction to the jury not to reason that he is guilty or that he is the type of person likely to have committed the offences. It could be explained to the jury that this is not an uncommon situation and it remains for the jury to determine whether the accused is guilty or not guilty on the basis of the evidence presented at the trial and whether the evidence establishes that the prosecution has proved its case beyond reasonable doubt.[27]
[27]Reasons, [27]–[28] (emphasis added).
Submissions in this Court

In written submissions on the application to this Court, the applicant argued that the danger of unfair prejudice lay in the combination of four points. First, the jury would need to be informed that the applicant had made the telephone call whilst in prison on remand. Secondly, it would be necessary to inform the jury that the applicant had been on remand since his arrest approximately 14 months earlier. Thirdly, in the absence of some reasonable explanation why the applicant had been remanded for such a lengthy period, there was a real risk the jury may speculate about the reason why he remained in remand. And fourthly, the jury would have to be informed that the applicant had been the subject of an intervention order prohibiting him from contacting the complainant.

In oral submissions, the applicant was unable to identify any particular adverse speculation that the jury might be caused to make, beyond some general curiosity as to why the applicant had spent so long in custody. The applicant was concerned that the jury would think that they were ‘being kept in the dark’ about something concerning the applicant.

In formulating his argument in conformity with House principles, the applicant submitted that the judge was wrong to characterise the source of his prejudice as being the product of his own (putative) forensic choice to elicit evidence about the period of time he had spent in custody. Accordingly, he submitted, having made that characterisation, the judge, in effect, failed to take into account the danger of unfair prejudice that had to be balanced against the probative effect of the incriminating conduct evidence. Secondly, given what the applicant contended was the weak probative force of the evidence and the particular prejudice that he identified, he submitted the conclusion reached by the judge was not reasonably open.

Failure to take account of a relevant consideration?

The judge was clearly correct to say that some of the foreshadowed adverse factual matter about which the applicant complains will only be placed before the jury because the applicant chooses to tender it. Recognising that plain fact did not, however, mean that the judge failed to consider the danger of unfair prejudice.

On the contrary, as can be seen from the extract set out above, her Honour expressly accepted that there would be prejudice to the applicant if he were constrained — in order to raise the innocent explanation — to inform the jury that he was in custody when the arrangement was made to offer the complainant an inducement. Moreover, her Honour expressly addressed the question of unfairness, pointing out that the characterisation of ‘unfairness’ had to be evaluated by reference to both the nature of the allegation the applicant faced and the choice that he might make in order to meet that allegation. As she said in argument, accused persons often have to make difficult decisions in choosing how to defend charges brought against them. Further, in the orthodox manner, her Honour considered how the danger of prejudice could be addressed by directions.

Thus, the judge well understood the applicant’s argument and did not fail to take into account a relevant consideration.

Was the conclusion reasonably open?

The alternative submission was that it was not open to the judge to make the finding that she made on the s 137 issue. By its nature, this argument faced a high hurdle.

The applicant’s ‘not open’ argument was that, in view of the probative force of the incriminating conduct evidence, which he submitted was weak, and the true nature and degree of unfair prejudice (which, for reasons already rejected, the applicant argued had not been taken into account), the conclusion that the danger of unfair prejudice did not outweigh the probative value of the incriminating conduct evidence is seen to be unsustainable.

At its highest, this aspect of the applicant’s argument is really an argument about the merits of the judge’s decision. We are satisfied that it was well open to the judge to reach the conclusion on the s 137 issue that she reached.

Conclusion

For these reasons, while we consider that it is in the interests of justice that leave to appeal be granted, we will dismiss the appeal.

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[2022] VSCA 65

13 April 2022