and David Edwin Rapson v The Queen
[2014] VSCA 356
•29 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0248 | |
| DAVID EDWIN RAPSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | NETTLE JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | No oral hearing requested |
DATE OF JUDGMENT: | 29 April 2014 |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 356 |
JUDGMENT APPEALED FROM: | DPP v Rapson (Unreported, County Court of Victoria, Judge Gaynor, 17 October 2013) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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DETERMINED ON THE PAPERS
JUDGMENT DELIVERED IN OPEN COURT
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| APPEARANCES: | Counsel | Solicitors |
| No appearance by leave of the Court | ||
NETTLE JA:
Following a trial in the County Court, the applicant was convicted of five charges of rape and eight charges of indecent assault committed over a period of several years between 1975 to 1977 (Charges 1–4) and 1987 to 1990 (Charges 5–13). The applicant was a Christian brother and later a priest who served as a teacher and ultimately deputy headmaster at a Roman Catholic boys’ secondary school. He was alleged to have committed the offences at the school against boys in his charge.
The one proposed ground of appeal is that the judge erred in treating the evidence of each complainant as cross-admissible as tendency evidence. The evidence so admitted was described by the judge[1] as follows:
[1] Ruling dated 15 August 2013.
Complainant A … Charge [1] [indecent assault on a male] … allegedly occurred in 1975 or ‘76 when A [then 11 or 12 years’ old] was on a school day retreat at a catholic college where the accused was training to be a priest. The accused allegedly saw A, invited him into his bedroom, talked to him about sexual feelings, pulled out A’s penis, masturbated it and at the same time pulled out his own penis and masturbated that.
Charge [2], indecent assault on a male between January and June 1975 involved … B, a 12 year old, Year 7 boarder. One morning, boys in his dormitory were ordered, four at a time, to a room at the end of the dormitory, wearing only a singlet and underpants for a medical examination. In the room were the accused and two other priests. [T]he boys were ordered to look straight ahead, pull their underpants to their knees … [T]he accused allegedly walked to B, grabbed hold of his penis, held it up and fondled [B’s] testicles for about 60 seconds.
Charges [3] and [4], indecent assault on a male in 1977, involved C, a Year 10 boarder at the school, aged 15 or 16, who fell asleep on a school infirmary bed where he was sent in the late afternoon after taking an antihistamine for a bee sting. He was woken by a group of students brought into the infirmary by the accused … [The accused] … forced them to drink one or two mugs of Milo, which C found tasted strong and acrid, so drank only part of one, hiding his mug. Lights were turned out and C fell asleep. [He later ]woke, feeling groggy, hearing a boy in another bed crying out, ‘What are you doing?’, and, ‘I’ll tell my parents what you are doing’ … [T]he accused stood over [the other boy], threatened him verbally and made him drink another Milo after which the boy went quiet.
The accused then allegedly went around the beds where other boys slept, lifting blankets and making comments like, ‘You've got a small dick’. At C's bed he pulled back the blankets, allegedly masturbated C's penis with his hands under his pyjamas, ran his fingers over C's bottom and anus, squeezed [C’s] testicles and penis hard together, saying words such as, ‘You're useless’; presumably because C’s penis did not become erect, then punched [C] in the stomach. According to C another priest came in as the accused was lifting blankets on the beds and told him he must resist, the accused replying, God had made him that way and that the other priest was the same as him.
Charge [5], indecent assault in 1987 involved D, a 14 year old day boy at the college who reported to the accused's office one afternoon to hand him school work during a week's suspension from school. The accused allegedly invited [D] to play a game on [the applicant’s] computer then leaned over [D] to open a drawer containing lollies and cigarettes, asking [D] if he liked anything there. As D then stood up, the accused allegedly grabbed [D] on the testicles through his clothes and leaned in as if to kiss him. D told the accused to ‘fuck off’, punched him and ran from the room, rode home and told his parents. They went to the school and were told D should leave the college.
Charge [6], indecent assault in 1987 allegedly occurred one night at the school in the accused's bedroom where E, aged 15 to 16 and a Year 10 boarder, habitually went to drink Scotch and smoke cigarettes with the accused at his invitation after lights out. The accused was then the college deputy principal, who looked after the Year 10 and 11 dormitory.
That evening the accused and E allegedly drank three quarters of a bottle of Scotch together, E becoming drunk and lying on the accused's bed, again at the accused's invitation. The accused then allegedly sat on the bed, rubbed E’s leg over his clothes, moving higher and eventually rubbing his penis over his jeans. E jumped up and ran out avoiding the accused thereafter.
Charge [7], [rape], in 1988 involved ‘F’ a 12 year old, Year 7, border who allegedly went to the accused's office to play games on the computer at about 10.00 pm one night at the accused's invitation. After about 20 minutes, the accused allegedly offered ‘F’ a lemonade drink which ‘F’ drank straight down as he was thirsty. He then felt dizzy and fell asleep waking in a foetal position on the floor by the desk feeling pain in his anus and discovered the accused on top of him allegedly pushing his penis in and out of his bottom but could not move from under the accused.
He allegedly felt the accused ejaculate after about 10 seconds. The accused climbed off and ‘F’ ran straight from the office back to his dormitory where he lay crying. He was thereafter unable to defecate and the following weekend went home and was taken by his mother to the doctor for constipation and given suppositories at the consultation according to the doctor's report occurring on May 16, 1988.
Charge [8], indecent assault in 1989 or 1990 involved ‘G’, a Year 10 day student at the college whose father fell ill with cancer when ‘G’ was in Year 7. ‘G’ became friendly with the accused who was then Vice‐Principal when he supervised the school yard at recess and thereafter enjoyed his company on regular basis. The accused allegedly became aware of ‘G’s’ father's cancer when ‘G’ was in Year 8 and regularly called him into his office to talk about any problems ‘G’ may be having.
Allegedly on two occasions in his office in 1989 when ‘G’ was in Year 9 aged 14 or 15 the accused gave ‘G’, who was sitting in a chair, a glass of Scotch and then sat on ‘G's’ knees facing him with his forearms resting on ‘G's’ shoulders saying ‘G’ could talk to him about anything.
In the 1989‐90 Christmas holidays ‘G’ allegedly went to school upset about a fight over his father's drinking to speak to the accused who took him to his bedroom and gave him two glasses of Scotch. As ‘G’ sat on a single couch drinking the second Scotch the accused allegedly came over and squatted beside him, ran his hand up ‘G’s’ leg and sat it over his penis and scrotum over his jeans.
In his first statement dated 5/9/2012 ‘G’ said he jumped up and said he had to go. In a second statement dated the 3/10/2012, ‘G’ said that after reaching his groin the accused allegedly then took off his jeans and underpants, told him to slide down the chair, took him by the hips and turned him round so he was kneeling in front of the chair. ‘G’ then felt something pushed into his anus. He did not know what but thought because the accused did not take off his clothes it may have been his finger or fingers. He said he was too embarrassed and disgusted to tell police about this in his first statement. As ‘G’ cannot identify what penetrated his anus this latter incident is being led as an uncharged act.
Charges [9], [10], [11], and [12] are charges of rape and Charge [13] a charge of indecent assault said to have occurred in 1990 and the complainant is ‘H’, who came to the college as a 16 year old border in Year 10, turning 17 in July that year. He had learning difficulties and dyslexia. He thought the accused may have taught him religious education but was not sure. He alleged one evening the accused told him to come to his office, the accused allegedly offered H a cigarette immediately he came in and then a drink which H thought was whiskey. The accused allegedly talked about H’s learning difficulty in school work ‘then suddenly told me to come and stand in front of a high backed chair.’ He then allegedly pushed H’s head down in the chair, took off his pants and inserted his penis into H’s anus. H began crying from the pain and the accused allegedly told him to shut up and hit him on the back of the head saying no one could hear him. After some time he withdrew his penis and walked H back to his dormitory. H then found blood in his jocks. These actions underlie Charge [9], rape.
H alleged the accused came into his dormitory one night soon after the Easter holidays that year and ordered him back to his office: H crying as he knew what would happen. There he immediately told H to go to the chair, pulled down his pants and put his penis into H's anus: Charge [10], rape.
H alleged the exact same incident occurred again about a week later, (Charge [11], rape) H crying on each occasion and the accused slapping him on the head and telling him to shut up.
Thereafter H said he hid from the accused when he saw him coming. He alleged that in July or August 1990, the accused came into his dormitory late at night and ordered H to his office where he pushed H over the desk, then as he lay there tied his hands with a cord. The accused allegedly pulled down H's pants and inserted his penis into H's anus and was ‘really rough and hard’: this is Charge [12], rape.
While his penis was in H’s anus the accused allegedly leaned over and grabbed H's testicles with his hand squeezing and yanking them, causing H to cry out in agony. The accused then put a hanky in H's mouth. H said he believed the accused then ejaculated withdrew his penis and came to the side of the desk with his pants still down, slapping his penis against H’s still tied hands. He then allegedly pulled the hanky from H’s mouth and tried to insert his penis but H kept his teeth clenched and the accused could get only his penis between his lips: these later actions comprising Charge [13], indecent assault.
He then stopped and untied H's hands and had to physically help H back to a walkway area where he left him. H was allegedly unable to walk the next day due to pain in his testicles and was told to stay in bed in the dormitory but ran out in the afternoon when the accused came in, crossing fields and swimming a river to the next property where he was found and brought back that night and the doctor called. According to doctor's reports, on August 31, 1990 H underwent surgery for torsion of the right testicle and was treated for enuresis, a repeated inability to control urination.
The witness X was a boarder who in 1975 was aged 14 in Year 9 at the College when the accused was allegedly his dormitory co‐ordinator and slept at night in a small room off X’s dormitory. In his statement dated July 10, 2012, X said he began smoking the accused’s cigarettes with him in his bedroom which progressed to him also drinking scotch and coke supplied by the accused. He said the accused allegedly first sexually assaulted him one night as X went to leave his room after drinking and smoking with the accused, coming up behind him, running his hand over X's body and pushing from behind so X could feel his erect penis through his pyjama pants. X said it was his first sexual experience, he became aroused and got an erection and ‘next minute’ the accused allegedly took X's penis in his mouth giving him oral sex until X ejaculated in [the applicant’s] mouth. He said the accused then gave him another scotch and cigarette.
X alleges that from that night the accused sexually abused him every second or third night until he left the school the next year. He alleged that the accused either performed oral sex on him or would put Vaseline on X's penis and his own and lie on top of him, rubbing up and down until either of them ejaculated. He alleged on one occasion the accused tried to insert his penis into X's anus.
Applicant’s submissions
The applicant contends that there was insufficient similarity, peculiarity or otherwise underlying unity between the acts comprising each charge to render evidence of one cross-admissible in proof of any other. The argument is based on recent observations of Priest JA in Murdoch v R[2] that, where similarity of offending is relied on as a basis for the admission of tendency evidence, the similarities must be remarkable, distinctive or unusual in order to be probative of a relevant tendency. In the applicant’s submission, the alleged sexual offences in this case were not remarkable, distinctive or unusual but rather of kinds which are de rigueur among sexual offending against children.[3]
[2][2013] VSCA 272, [102] (with which Redlich and Coghlan JJA agreed).
[3]CGL v DPP (2010) 24 VR 486, 495 [31], citing AE v R [2008 ] NSWCCA 54, [42].
The applicant further contends that the judge erred in treating the possibility of a priest committing sexual offences against young men in his charge as being as extraordinary and remarkable as a man engaging in sexual activity with his pre-pubescent daughters and granddaughters.[4] According to the applicant, there is nothing particularly remarkable about a priest committing sexual offences against boys in his care. On the contrary, he says, the vow of celibacy by which Roman Catholic priests are bound is a factor likely to fuel rather than inhibit illicit sexual conduct and, therefore, makes such offending by priests more understandable and so less remarkable than offending of that kind committed by other men.
[4]Cf RHB v R [2011] VSCA 295, [18].
Additionally, the applicant says, it is not to the point that the alleged offences were all committed in and around the students’ dormitory and the applicant’s room at the school. The fact is that he was required by his order to live at the school with his students in a geographically and socially isolated setting and, therefore, the physical location of his alleged offences was beyond his control.
Finally, the applicant argues that the judge erred in placing emphasis on the alleged fact that the applicant exploited his control of the boys in his care in order to gratify his sexual desires. As the applicant would have it:
Sexual offences against children are inherently exploitative and almost always involve a misuse of a position of trust or authority. The alleged presence of that feature of the offending in this case did not strengthen the argument for the admission of the tendency evidence.
The Crown’s submissions
The Crown contends that there was no error in the judge’s analysis. It submits that it was unnecessary for the Crown to demonstrate striking similarity. There was sufficient underlying unity and otherwise probative value in the fact that the applicant demonstrated an extraordinary, perverted sexual interest in the boys under his care and was prepared to act upon it by committing the subject offences. The Crown says that there was also a unifying modus operandi in the manner in which the applicant used various strategies to lure the victims to his office and other places within the school for the purpose of sexually molesting them. Moreover, in the Crown’s submission, it would be wrong to regard the physical circumstances of the offending as beyond the applicant’s control. Rather, the Crown says, this case is similar to R v Papamitrou[5] in that the applicant was able to choose various locations within the school for different sexual acts using various ‘pretexts to isolate the [boys] from the company of others’.
[5]R v Papamitrou (2004) 7 VR 375, 390–391 [31].
Analysis
Over the last few years, a great deal has been written about ss 97 and 98 of the Uniform Evidence Act and, regrettably, much of it is not very helpful to the trial judges whose task it is to apply the legislation. The problem lies with the legislation. When similar fact and propensity evidence were governed by common law principles, the rules were determined by a few decisions of the highest authority and they were tolerably clear. Since the passage of the legislation, we have had myriad decisions of intermediate courts of appeal going in different directions, and many of them are not clear. This case is an example of the problem.
For present purposes, I take the law on tendency evidence in this State to be as I stated in GBF v The Queen that:
Under s 97 of the Act, … [t]endency evidence has probative value if it can rationally affect the assessment of the probability of the existence of a fact in issue and it has significant probative value if it has a significant important or substantial degree of relevance, having regard to the nature of the fact in issue.
Whether tendency evidence has significant probative value depends on the nature of the tendency. For example, evidence that an accused had a sexual interest in a complainant might be significantly probative of an allegation that he committed a sexual offence against that complainant. But, without more, it would not be significantly, if at all, probative that he committed a sexual offence against someone other than the complainant. Contrastingly, evidence that an accused had a tendency to commit a particular kind of act or to commit a particular kind of act in particular circumstances, might be significantly probative of an allegation that the accused committed another act of the kind or committed another act of the kind in particular circumstances.
In cases of the latter class, common law conceptions of similar fact evidence provide useful guidance. As Lindgren J observed in Australian Competition & Consumer Commission v CC (NSW) Pty Ltd (No 8), s 97 endorses the common law’s healthy scepticism in relation to similar fact evidence. Accordingly, one is loath to accept that offending on one occasion is significantly probative of offending on another unless there are significant or remarkable similarities as between previous acts and the act in question, or as between the circumstances in which previous acts were committed and the circumstances in which the act in question was committed or, more compendiously, unless the evidence reveals a pattern of conduct, modus operandi or some other underlying unity, which logically implies that, because the accused committed the previous acts or committed them in particular circumstances, he or she is likely to have committed the act in issue.
In … R v Ford, Campbell JA observed that :
‘In my view there is no need for there to be a “striking pattern of similarity between the incidents”. All that is necessary is that the disputed evidence should make more likely to a significant extent, the facts that make up the elements of the offence charged.’
… it is important to understand the context in which Campbell JA was speaking. In Ford the court was concerned with a case in which the tendency sought to be proved was one to act in a particular way, namely, sexually to assault young women who: (1) had stayed over at the accused’s house after attending a party there, (2) had consumed a significant amount of alcohol, (3) were asleep, and (4) where there was a risk of the applicant’s offending being discovered by others. In effect, it was a case in which the evidence revealed a modus operandi that was substantially probative of the offence alleged. One argument put against that conclusion was that the sexual offences alleged were unremarkable, and thus lacking such striking similarity as to make offending on one occasion probative of offending on the other. Campbell JA rightly rejected the argument on the basis that the modus operandi was capable in itself of being sufficiently probative of the offending in issue. As his Honour noted, the way in which it was put by one of the two judges who had considered the problem at first instance, and whose treatment of the problem was approved of on appeal, was that the evidence established a tendency on the part of the accused ‘to do something unusual, that is to indecently assault women who are asleep at his place after having attended a party there’. In that context, Campbell JA’s statement does not suggest that his Honour had in mind any departure from previous authority. To the contrary, we see his Honour’s analysis as an affirmation of established principles as they applied to the facts at hand.
Under s 101 of the Act, tendency evidence adduced by the Crown cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In that context, prejudicial effect means the risk that, despite appropriate directions, the jury may reason improperly from the fact that the accused had committed previous offences, that he is the kind of person who would have committed the subject offences. In effect, the section calls for the application of a balancing process which is to be conducted on the facts of each case. The court is required to give consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh. The process is similar to that by which Victorian courts were required to assess whether the probative value of tendency evidence so much outweighed its prejudicial effect as to make it just that it should be admitted under s 398A of the Crimes Act 1958.[6]
[6]GBF v The Queen [2010] VSCA 135, [25]–[30] (citations omitted); cf R v Doyle [2014] NSWCCA 4.
Applying those considerations to the facts of this case, it appears to me that:
a) the evidence relating Charges 3 and 4 was cross-admissible in proof of Charges 3 and 4;
b) the evidence relating to Charges 6 and 8 was cross-admissible in proof of Charges 6 and 8, and the evidence of the Witness X was admissible as tendency evidence in proof of Charges 6 and 8; and
c) the evidence relating to Charges 9, 10, 11, 12 and 13 was cross-admissible in relation to the proof of Charges 9, 10, 11, 12 and 13.
Otherwise, I think it reasonably arguable that the evidence relating to the remaining charges was not cross-admissible in proof of any other charge, with the exception perhaps of the evidence relating to Charge 7.
In brief my reasons are as follows. First, it appears to me to be arguable that the evidence relating to Charge 1 was not admissible as tendency evidence in proof of Charge 2, or vice versa, because there was not sufficient similarity or other underlying unity to make one significantly probative of the other. In Charge 1, the applicant was alone by himself with A after inviting A into his room. The alleged sexual conduct was to masturbate A and himself in A’s presence. In Charge 2, the applicant was with other priests in the semi-public environment of a dormitory. B and three other boys were compelled to go into a room at the end of the dormitory for a ‘medical inspection’. The sexual conduct was that the applicant fondled B’s testicles for 60 seconds in the presence of two other priests in the course of the ‘medical examination’. Given those differences, it is hard to see how proof of one offence would be significantly probative of the other; apart, of course, from demonstrating, impermissibly, that the applicant was the sort of man who was prone to commit sexual offences on his students. Contrary to the Crown’s submission, I do not accept that the probative value of evidence that a priest is prone to take a sexual interest in his students generally can be equated with the probative value of evidence that an accused has a sexual interest in a particular complainant. The reasons why that is so are set out in the passage from GBF v R extracted above.
Secondly, I think it reasonably arguable that, although the evidence relating to Charges 3 and 4 is cross-admissible as between Charges 3 and 4, it not probative of any of the other charges. In the case of Charge 1, the offending occurred in the privacy of the applicant’s study and in the case of Charge 2, the offending occurred in the relatively public environment of the ‘medical inspection’ in the presence of other priests. In the case of Charges 3 and 4, the offending occurred in the relatively public circumstances of the dormitory but the applicant first dosed each of the boys with a soporific and he went from boy to boy looking at each of their penises before he ultimately grabbed and squeezed C’s testicles, verbally abused him and punched him in the stomach. Perhaps, the grabbing and squeezing of testicles is similar to the fondling of testicles in Charge 2. But it involved a degree of violence, the infliction of pain and the use of a soporific which were not involved in Charge 2. Accordingly, the only tendency pertinent to Charges 1 and 2 of which proof of Charges 3 and 4 would appear to be probative is a tendency on the part of the applicant to commit sexual offences against his students; and, as I have said, I do not consider the fact that a priest commits sexual offences against boys in his charge to be so extraordinary as to make that of itself the criterion of admission. Recent publicity if not common experience suggests that the phenomenon was, at relevant times, endemic among church institutions.
Thirdly, although the circumstances of the offending comprising Charge 5 were similar to those of Charge 1, inasmuch as the applicant invited the complainant into the applicant’s room, the inducement was different. In the case of Charge 1 it was to talk and, in the case of Charge 5, it was the opportunity to play on the applicant’s computer and the offer of sweets and cigarettes. Moreover, and more importantly, the sexual offending was different. In the case of Charge 1, it was to masturbate A at the same time as the applicant masturbated himself. In the case of Charge 5, it was to grab D’s testicles and lean in and attempt to kiss D.
Fourthly, it also appears that the circumstances of offending and conduct comprising Charge 6 were significantly different to those of the other charges. In the cases of Charges 1 and 2, the complainants were either invited into the applicant’s room for the immediate purpose of engaging in a sexual offence or subjected to a forceful sexual attack in relatively public environment. In the case of Charge 6, E was in the habit of going to the applicant’s room to drink whisky with the applicant and, on the occasion in question, they had consumed three quarters of a bottle between them before matters came to a head. The sexual conduct was also unlike that in the case of Charges 1 and 2 inasmuch as it consisted of the applicant rubbing E’s leg and ultimately E’s penis from outside E’s clothing rather than placing his hands inside the complainant’s clothing to masturbate or squeeze E’s genitalia. The conduct comprising Charge 6 was different to that comprising Charges 3 and 4 because it did not involve the use of a soporific, it was an attack on only one victim rather than several and there was no masturbation or squeezing of genitalia.
Fifthly, as I have said, I think that the conduct and circumstances involved in Charge 6 were sufficiently similar to that associated with Charge 8 to make the evidence of each cross-admissible in proof of the other. In each case, the inducement offered was Scotch whisky and, in each case, the applicant put his hands over the complainant’s leg, penis and scrotum from outside the complainant’s clothing.
Sixthly, Charge 7 was different again because, although in that case the applicant offered the use of his computer as the inducement to lure the complainant to his room, and that was like Charge 5, in the case of Charge 7 the applicant used a soporific to anaesthetise the complainant before penetrating the complainant’s anus. The use of the soporific was in some ways similar to the use of a soporific in Charges 3 and 4, but the offence was committed in private rather than the relatively public environment of the dormitory and the act of penetration makes it a very different class of offence to either Charge 5 or Charge 7.
Charges 9 10, 11, 12 and 13 are all cross-admissible because they relate to the one complainant and demonstrate that the applicant had a perverted sexual interest in that complainant which the applicant was prepared to act upon in order to gratify his lust. Charges 9, 10, 11, 12 and 13 also stand separate and apart from the other charges in that they are the only charges which involved penal anal intercourse. Certainly, Charge 7 involved anal penetration of some kind and in a sense that made it similar to Charges 9, 10, 11, 12 and 13. But the differences are significant. Charge 9 was committed by means of a combination of inducement and the use of a soporific. Charges 10, 11, 12 and 13 were all the result of a combination of straight up brute force, physical attack and emotional terrorism.
I regard the evidence of witness X as admissible in proof of Charges 6 and 8 because of similarity in relation to both inducement and sexual conduct. It is like the similarity of technique which High Court identified in BRS v The Queen.[7]
[7](1997) 191 CLR 275, 283–4.
Conclusion
In the result, I grant leave to appeal on Ground 1.
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