Bauer v The Queen (No 2)

[2017] VSCA 176

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0218

DENNIS BAUER (A PSEUDONYM)[1] (No 2)	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2017
DATE OF JUDGMENT:	30 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 176
JUDGMENT APPEALED FROM:	R v [Bauer] (Unreported, County Court of Victoria, Judge Sexton; Conviction, 10 May 2016)

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CRIMINAL LAW — Appeal — Conviction — Sexual offending against child complainant — Complainant now adult — Re-trial after appeal — Whether trial judge erred in permitting previously recorded evidence of complainant to be tendered — Whether complainant should have been recalled — Criminal Procedure Act 2009 ss 381 and 385.

CRIMINAL LAW — Appeal — Conviction — Sexual offending against child complainant — Tendency evidence — Whether error in admitting tendency evidence — Whether error in failure to sever indictment — Evidence Act 2008 ss 97(1)(b) and 101(2) — Criminal Procedure Act 2009 ss 193 and 194 — Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; Velkoski v The Queen (2014) 45 VR 680; JLS v The Queen (2010) 28 VR 328, discussed.

CRIMINAL LAW —Appeal — Conviction — Sexual offending against child complainant — Whether substantial miscarriage of justice because of admission of ‘previous representation’ made by complainant — Whether ‘previous representation’ concerned events ‘fresh in the memory of the person’ — Previous representation elicited via guessing game — Evidence Act 2008 s 66.

CRIMINAL LAW — Appeal — Conviction — Sexual offending against child complainant — Substantial miscarriage of justice — Convictions set aside — Whether new trial should be ordered —  Criminal Procedure Act 2009 s 277(1) — R v Bartlett [1996] 2 VR 687; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 — New trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston	Doogue O’Brien George
For the Crown	Ms F L Dalziel	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
KAYE JA:

Introduction

1. This application for leave to appeal against conviction concerns sexual offending allegedly perpetrated on ‘RC’ over the course of a decade, the indictment embracing a period between 1 January 1988 and 17 December 1998. During that period, RC was aged between four and 15 years,[2] and the applicant was aged between 42 and 53 years.[3]

   [2]She is now aged 34 years. 

   [3]He is now aged 71 years.

1. Convictions were returned against the applicant in what was a retrial following an earlier successful appeal.[4]  The applicant’s first trial, in March 2013, was conducted on a joint indictment alleging sexual offending against five separate complainants, ‘GP’, ‘WC’, ‘KP’,[5] ‘TB’ and RC.  On appeal, proceedings involving the two complainants GP and WC were, in effect, permanently stayed, and a retrial was ordered on charges involving the three complainants, RC, TB and KP.  In a series of retrials — eight in total — between March and July 2016, however, guilty verdicts were returned only with respect to the charges relating to RC.[6]   

   [4]See Bauer (a Pseudonym) v The Queen (2015) 46 VR 382 (Maxwell P, Weinberg and Priest JJA).

   [5]GP and WC were the younger sisters of the applicant’s wife, and KP was the applicant’s biological daughter.

   [6]See n 13 below.

1. Thus, on 10 May 2016, a jury in the County Court found the applicant guilty of 18 charges with respect to RC, being seven charges of indecent assault[7] (charges 1, 2, 3, 4, 5, 7 and 14); five charges of sexual penetration of a child under 16 years[8] (charges 10, 11, 12, 13 and 17[9]); four charges of indecent act with a child under 16 years (charge 8, 9, 16 and 18); one charge of sexual penetration of a child under 10 years[10] (charge 15); and one charge of attempted sexual penetration of a child under 10 years[11] (charge 6).[12]  For the sake of convenience — although it is not strictly accurate to do so — in these reasons we will refer to the trial at which those convictions were returned as the applicant’s ‘second trial’ (or his ‘current trial’).[13] 

   [7]Crimes Act 1958, s 44(1).

   [8]Crimes Act 1958, s 45(1).

   [9]Charge 17 alleged that the particular sexual penetration took place when RC was under the applicant’s care, supervision and authority.

   [10]Crimes Act 1958, s 47(1).

   [11]Crimes Act 1958, s 47(2).

   [12]On 11 October 2016, the trial judge imposed a total effective sentence of nine years and seven months’ imprisonment, and fixed a non-parole period of seven years.

   [13]After the applicant’s convictions were set aside on appeal, he faced eight trials.  In five of those trials, the empanelled juries were — through no fault of the applicant’s — discharged without verdict.  He thus faced two trials with respect to charges involving TB, and three trials with respect to charges involving KP, ultimately resulting in acquittals.  With respect to RC, the applicant faced three trials — two juries were discharged — leading to the convictions the subject of the present application.  The present convictions — the only ones returned — arose out of what was chronologically the sixth of the eight trials.

1. The applicant seeks leave to appeal against the convictions returned in his second trial on four grounds:

1.   The trial judge erred in permitting the previously recorded evidence of RC to be tendered as the evidence in the re-trial, and should have ruled that the complainant be recalled.

2.   A miscarriage of justice has been occasioned by the jury being permitted to engage in tendency reasoning, namely that the applicant had a tendency to act in a particular way, i.e. to have a sexual interest in his foster daughter and a willingness to act on it.

3.   The learned trial judge erred in not finding that the presumption as to joinder was not rebutted and thus not severing Charge 2 from the Indictment.

4. The trial judge erred in admitting the evidence of [AF] as a previous statement of the complainant pursuant to s 66 of the Evidence Act 2008.

1. For the reasons that follow, leave to appeal against conviction must be granted and the appeal allowed.  Not without some hesitation, we would order a retrial.

Overview and summary

1. ‘JW’ and the applicant married on 19 December 1965.  Apart from having four children of their own, JW and the applicant took on the care of a number of foster children, including RC, born on 16 January 1983, and her half-sister, TB, born on 26 September 1984.  RC was fostered by JW and the applicant when aged two years, she having been removed from her parents by the Department of Human Services (‘DHS’).  She referred to the applicant and his wife as ‘Mum and Dad’, and lived with them at their home in country Victoria.

1. The first charge on the indictment related to a period between 1 January 1988 and 15 January 1989, when RC was about five or six years of age.  RC alleged that she had been with the family in a pool at the applicant’s home, but was sent inside because she was misbehaving.  She went into the lounge-room where the applicant was watching the cricket on television, and sat on the ground with her back against the lounge.  The applicant then put on a pornographic video and sat on the floor next to her, put RC’s hand on his penis and had her masturbate him, while he at the same time put a hand on her vagina under her bathers (charge 1, indecent assault).

1. We pause to note that, pursuant to s 97(1) of the Evidence Act 2008, the prosecution gave notice that it intended to adduce tendency evidence at the applicant’s trial, including that the applicant ‘had pornographic videos and he had the complainant watch them and then engage in the sexual activity which was depicted in the videos’.  In the result, RC gave evidence of uncharged acts, relating to the playing of pornographic videos.   She said that over a period of two years, whenever the applicant’s wife was out of the house, the applicant would take her to the lounge room, play pornographic videos and imitate what was occurring on the video.  He would have RC masturbate and suck his penis, and he would lick and digitally penetrate her vagina.

1. Somewhat unusually, TB — not RC — was the sole source of the evidence on the second charge on the indictment.  It was alleged that between 1 January 1990 and 31 December 1992,[14] TB was in the bath with the applicant, washing his back.  When RC came into the bathroom, the applicant removed the wash cloth from his genitals and put RC’s hand on his penis (charge 2, indecent assault).   In this period, RC was about six or seven years of age.

   [14]This is the period alleged in the indictment.  In her evidence, however, TB — who was born in September 1984 — said she was ‘probably about four’ when the events founding charge 2 took place.

1. Between 16 January 1990 and 31 December 1992, when the applicant and RC were travelling in the family van being driven by JW, RC was told to sit in the back seat of the van because she and TB were misbehaving.  Whilst in the back seat with her, the applicant placed a blanket over both their laps and touched RC on the vagina under her clothes, ‘stimulating’ her clitoris (charge 3, indecent assault).  At some point, the applicant unzipped his shorts, removed his penis and placed RC’s hand on it, moving her hand up and down (charge 4, indecent assault).

1. RC also gave evidence of an incident which occurred between 1 January 1991 and 31 December 1992, when she was nine years of age.  RC said that she got into TB’s bed.  (TB was not there.)  She woke to find the applicant kneeling next to the bed with his hand under the blankets, touching her vagina over her underclothes. The applicant then put his hand inside RC’s underwear and rubbed her vagina.  He then got into bed with RC under the covers and continued rubbing her vagina before inserting his finger into it (charge 5, indecent assault).  The applicant then took off RC’s pants and underwear and removed his own pants.  He rubbed his penis against RC’s vagina, asking ‘Can I put it in you?’.  The applicant could not effect penetration because it hurt RC (charge 6, attempted sexual penetration of a child under 10), but he continued rubbing his penis against RC’s vagina until he ejaculated.

1. On another occasion between 1 January 1991 and 31 December 1992, when RC was aged eight or nine, the applicant took RC to his bedroom and removed photographs from a wooden box which he then showed her.  They were black and white photographs of men and women having sex.  The applicant then undressed RC, made her lie on the bed and put her hand on his penis, which he held there with his own hand, rubbing it up and down until he ejaculated onto RC’s stomach (charge 7, indecent assault).

1. Sometime between 16 January 1992 and 15 January 1993, when RC was aged about ten, she was at home in bed, sick with a fever.  It seems that the applicant’s mother was also in the house.  The applicant went into RC’s bedroom, telling her that his mother was there.  He put his hands under the blanket and touched RC’s vagina under her clothing (charge 8, indecent act with a child under 16).

1. When RC was aged nine or 10 years, between 16 January 1992 and 15 January 1994, the applicant took her to work.  RC fell asleep on a rug on the floor of a tractor the applicant was driving.  He touched her on the vagina over her clothes, steering with one hand as he did so (charge 9, indecent act with a child under 16).

1. Between 16 January 1992 and 16 January 1994, when RC was nine or 10 years old, she had come with the applicant to where he was working on a farm with his son and some other young men.  After lunch, after the others had gone, RC was sitting in the passenger seat of the applicant’s truck, listening to music.  The applicant approached RC and asked, ‘Do you want a tickle?’.  He then rubbed RC’s vagina over her clothes, before putting his hands under her clothes and inserting his finger into her vagina (charge 10, sexual penetration of a child under 16).  The applicant then pulled RC’s pants and underwear down to her ankles and licked her vagina (charge 11, sexual penetration of a child under 16).  He then put RC’s hand on his penis and moved it up and down before inserting his finger into RC’s vagina (charge 12, sexual penetration with a child under 16).  Following this, the applicant asked RC to give him a ‘heady’.  The applicant then inserted his penis into RC’s mouth until he ejaculated, telling RC to swallow the ejaculate (charge 13, sexual penetration with a child under 16).

1. When RC was eight or nine years of age, between 16 January 1991 and 16 January 1992, she and the applicant were in his bed.  The applicant told RC that he wanted her to suck his scrotum, because it was ‘magic’.  RC lay on top of the applicant.  Whilst the applicant licked RC’s vagina (charge 14, indecent assault), he placed his penis into her mouth (charge 15, sexual penetration with a child under 10).

1. Another alleged incident of sexual offending took place between 16 January 1994 and 15 January 1995, when RC was aged about eleven and a half years.  She went to work with the applicant in his shed near the showgrounds of the town.  RC was in the back of the applicant’s panel van, which was parked inside the shed with its back doors open.  The applicant took off RC’s pants, then took his penis out of his pants and had her masturbate it.  He then climbed into the back of the vehicle with RC and rubbed his penis against her vagina until he ejaculated on her stomach (charge 16, indecent act with a child under 16).

1. Between 16 January 1996 and 16 January 1997, when RC was 13 or 14 years of age, RC had left the applicant’s home and was living in Melbourne.  She returned on a visit to see her sister, TB, and was sleeping in a spare room.  The applicant went into the spare room, knelt by the bed and pulled down RC’s pyjamas.  He inserted his finger into RC’s vagina (charge 17, sexual penetration of a child under 16, under care, supervision and authority) whilst masturbating himself.

1. The last charged incident of offending allegedly occurred between 15 and 17 December 1998, when RC was again on a visit to the applicant’s home to see her sister.  RC was napping in her sister’s bed, when she was awoken by the applicant kissing her on the lips.  He touched her vagina and stomach over her clothes (charge 18, indecent act with a child under 16).  The applicant left the room when RC said she did not want to do anything.  He then returned, wearing only blue shorts, which he pulled down to show RC his erect penis.  The applicant said, ‘Look what you’ve done to me’.  He asked RC to touch his penis, but she turned her back and put her face in the pillow.

1. Apart from the circumstances of charge 2, TB also provided evidence of an incident relied upon by the prosecution as tendency evidence. The incident was said to have occurred in RC’s bedroom in 1992 or 1993.  TB said she was asleep in her room at the back of the house.  She got up to go to the toilet and had to pass through RC’s room to do so.  TB took a few steps into the room and saw the applicant in RC’s bed under the blankets on top of RC moving up and down.  She asked what they were doing and the applicant yelled at TB to get back to bed.

1. RC first made a complaint to police in 2000, when still under the age of 18 years. Due to her age, DHS still had involvement with her.  RC told a DHS worker that she was questioning her sexuality, and she was thus sent to a counsellor.  She told the counsellor that the applicant had sexually assaulted her.  The counsellor told RC that the reporting of sexual abuse was mandatory, and took her to the police station, where RC made a statement.  (We pause to note that when she was aged 12 years, RC had specifically denied to a DHS worker that she had been the victim of any sexual misconduct.)  As part of the police investigation, TB was spoken to by police but made a statement denying she had witnessed anything improper.  JW also made a statement to the same effect.  Further, the applicant was interviewed and, according to a police officer called at trial, made strenuous denials (although the recording and transcript of the interview had become lost before the applicant’s first trial).

1. No charges were laid as a result of the complaint in 2000, but after the original five complainants met in 2010 and discussed having been sexually assaulted by the applicant, on 11 June that year JW went and reported the alleged assaults to the police. Police thus re-investigated,[15] and charges ultimately were laid. The applicant made ‘no comment’ when interviewed in 2011. A committal hearing took place in late February and early March 2012, and, as we have said, the first trial took place in 2013. In the first trial, the applicant’s ‘defence’ was that the alleged conduct did not occur, and that there had been collusion between the several complainants; and the defence case in the second trial simply was that the alleged conduct did not occur. The applicant did not give evidence at either the first or second trial.

   [15]TB made her first statement to police on 28 October 2010, and RC made a statement on 31 March 2011.  GP, WC and KP all made statements to police in October 2010.

Use of RC’s recorded evidence from previous trial

1. The first ground of appeal asserts that the trial judge erred in permitting the previously recorded evidence of RC to be tendered in the applicant’s second trial, and in failing to rule that RC be recalled.

1. In March 2013, RC gave evidence in the applicant’s first trial.  As we have mentioned, that was a trial on a joint indictment alleging sexual offending against five separate complainants, GP, WC, KP, TB and RC, the current trial having been conducted on an indictment containing 18 charges relating solely to RC.

1. Pursuant to s 380 of the Criminal Procedure Act 2009 (‘CPA’), the prosecution gave notice that it intended to tender a recording of RC’s evidence from the first trial to stand as her evidence in the second trial. Over objection, the trial judge ruled that the prosecution be permitted to rely on the recording of RC’s evidence from the first trial. She rejected the submission that RC should be recalled so that cross-examination of her could be conducted afresh.

1. By virtue of s 379 of the CPA, the recording of RC’s evidence from the first trial was admissible in the current trial, subject to s 381, which provides:[16]

   [16]Emphasis added to this and following section.

381  Admission of recording of evidence of complainant

(1) The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to—

(a) whether the complainant’s recorded evidence is complete, including cross-examination and re-examination;

(b) the effect of editing any inadmissible evidence from the recording;

(c) the availability or willingness of the complainant to give further evidence;

(d)whether the accused would be unfairly disadvantaged by the admission of the recording;

(e) any other matter that the court considers relevant.

(2) The court may admit the whole or any part of the contents of a recording and may direct that the recording be edited or altered to delete any part of it that is inadmissible.

1. Section 385 provides:

385  Cross-examination of complainant

(1) Subject to section 384(2),^[[17]] if a recording of the evidence of the complainant is admitted into evidence in a proceeding, the complainant cannot be cross-examined or re-examined without leave.

(2) A court must not grant leave to cross-examine a complainant unless the court is satisfied that—

(a) the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or

(b) if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or

(c) it is otherwise in the interests of justice to permit the complainant to be cross-examined or re-examined.

(3) If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined.

[17]Although not presently relevant, s 384(1) permits further evidence to be given by a complainant on the application of the prosecution.  If that course is permitted, s 384(2) permits cross-examination and re-examination.

1. In deciding whether to admit the recorded evidence of a complainant, the trial judge has a discretion to exercise.  The principal criterion animating the discretion is what ‘the interests of justice’ require in the particular case.  In determining what the interests of justice require in a particular case, the judge must have regard to several other guiding criteria, including whether:

·     the complainant’s recorded evidence is ‘complete’;

·     the effect of editing any inadmissible evidence from the recording;

·     the availability or willingness of the complainant to give further evidence;

·     whether the accused would be ‘unfairly disadvantaged’ by the admission of the recording; and

·     ‘any other matter that the court considers relevant’.

1. Once a complainant’s recorded evidence is admitted, as s 385(1) makes clear, the complainant cannot be further cross-examined without leave. A trial judge cannot grant leave unless satisfied that:

·     the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or

·     if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or

·     it is otherwise in the ‘interests of justice’ to permit the complainant to be cross-examined or re-examined. 

1. In permitting the prosecution to tender RC’s recorded evidence, the judge ruled as follows:[18]

   [18]Emphasis added.

There is no dispute that Division 7 of the [Criminal Procedure Act 2009] applies to the recording of RC’s evidence.  The test for admission is found in s 381: if it is in the interests of justice to do so having regard to factors there set out.

I take into account that the recorded evidence is a complete account and is an audio visual recording of RC’s evidence and that the parties have been discussing the possible editing required to delete any part that is inadmissible.

The prosecutor advised that the complainant is available to give evidence but does not wish to do so on the advice of her counsellor with whom she has ongoing therapy.  The real question is whether the accused would be unfairly disadvantaged by the admission of the recording.

Senior counsel, on his behalf, submitted two main reasons that he would be.  It was submitted that on the first trial it was not put to RC that she was lying and allied to that submission it was submitted that with a retrial of a single complainant using evidence recorded on a multi-complainant trial where tendency had been relied on by the Prosecution as being cross-admissible between all complainants, the accused would be at an unfair disadvantage if the cross-examination could not be undertaken afresh. 

The second submission was that RC had given many non-responsive answers with inadmissible material.  Required editing of that amount of material together with references to other complainants would, it was submitted, leave very little evidence and no puttage. 

…

The situation in this trial is exactly what Division 7 was enacted for.  It provides a process to prevent complainants in sexual assault trials from having to give evidence multiple times. 

…

I have now reread the evidence and the first thing that must be said is that previous defence counsel did put to RC that she ‘falsified these allegations’ ...  The answer, as one would expect, was a denial by RC.

While it was only put once and in a global way in the middle of cross-examination, the rule in Browne v Dunn was complied with, defence counsel met her obligations and focused the rest of her cross-examination on credit issues and reliability in what could be seen as a most comprehensive way.  

I am of the view that the accused would not be unfairly disadvantaged if the recorded evidence was tendered, as the first basis is not made out.  I would not refuse the application in order to allow new defence counsel to ‘build a different platform’ to come to the same outcome, that is, material to go to the jury and submit that RC is not truthful, credible or reliable, and the allegations are false.  

As to the second basis, I am yet to be referred to the proposed editing.  It should be borne in mind that the editing is to delete inadmissible material, not answers that a particular party may not like.  ...

As RC made her first statement to police before any other complainant and, when she first made a disclosure to a counsellor, she was of the view that there was no other victim, there was very little cross-examination of her as to other complainants.  TB is another complainant and it is proposed to call her in the trial involving RC, if permitted, to give direct evidence of Charge 2, and tendency and corroborative evidence of the account given by RC.

However in my view there is very little editing required for references to TB’s own allegations in the evidence of RC.  Subject to being satisfied that the effect of editing inadmissible material does not render the recording unfair to either the prosecution or the accused, I am of the view that the admission of the recording of RC’s evidence is in the interests of justice and I do not consider that the accused would be unfairly disadvantaged by the admission.

I therefore propose to allow the prosecution to rely on the Division 7 recording and I so rule.

1. Drawing on the guiding criteria in s 381(1), counsel for the applicant in this Court contended that the interests of justice required that the prosecution not be permitted to rely on the recording of RC’s evidence from the first trial. Counsel for the applicant submitted that in deciding to admit RC’s recorded evidence:

·     first, the trial judge had misdirected herself as to the statutory criteria;

· secondly, the prosecution bore an onus of persuasion under s 379, but the judge reversed that onus;

·     thirdly, the judge should not have been satisfied on the available material that there was no ‘willingness’ on RC’s part ‘to give further evidence’, assertions from the Bar table by the prosecutor not providing a proper foundation to determine that issue;

·     fourthly, the applicant was unfairly disadvantaged by the admission of the recording since the forensic decisions of cross-examining counsel at the first trial were taken in a particular context: that is, the cross-examination in the first trial was conducted in an environment where there were five complainants; where tendency evidence was relied upon; where there was said to be cross-admissibility as between complainants; and where concoction, collusion and contamination were relied upon;

·     fifthly, the applicant was ‘unfairly disadvantaged’ by the admission of the recording because RC’s evidence under cross-examination was replete with incomplete, non-responsive answers.

1. Furthermore, although not raised by the ground of appeal or written case, counsel for the applicant sought to rely on two additional distinct complaints under the general umbrella of the first ground (which, as pleaded, was concerned with the judge permitting the previously recorded evidence of RC to be tendered, and the failure to rule that RC be recalled).  As to those additional matters, counsel relied first on the judge’s failure to give to the jury the directions required by s 382, and secondly upon additional prejudice said to flow to the applicant by the adduction of certain agreed facts.[19]  Those additional matters may immediately — and shortly — be disposed of.  We would discountenance the applicant’s reliance upon them.  They were not raised — even obliquely — by the ground as formulated.  Moreover, it seems to us that had these complaints been raised at trial they were readily capable of remedy.  They were not, however, the subject of any distinct objection or exception by trial counsel.  We cannot accept that the judge would have failed to give the direction mandated by s 382 had she been asked to do so.  Furthermore, the agreed facts were tendered with the apparent consent of the applicant’s trial counsel. 

   [19]A document, ‘Agreed Facts’, was Exhibit A.  In part, it read as follows:

   1.     The [applicant] purchased his first back hoe in August 1994.

   [A plant operator’s book showing the internal layout of the back hoe was attached.]

   2.     The [applicant] has provided the attached photographs of the Mazda E2200 (van) that is said to have been the family van and depicts the seating arrangement of the van.

   [Photographs were attached.]

   … 

1. Turning to counsel’s other submissions, the judge did not misdirect herself as to the statutory criteria bearing upon the exercise of discretion under s 381 of the CPA. As her Honour stated, correctly: ‘The test for admission is found in s 381: if it is in the interests of justice to do so having regard to factors there set out’. The trial judge then considered the various matters which she was required by subs (1)(a) to (e) of s 381 of the Act to have regard. Hence, the judge considered RC’s evidence from the first trial and expressed the view that ‘the recorded evidence is a complete account’. Next, the judge turned her mind to the editing of the recording that might be carried out. The trial judge then considered the ‘availability or willingness’ of RC to give further evidence (a matter to which we will return), and posed the ‘real question’ as being ‘whether the accused would be unfairly disadvantaged by the admission of the recording’.

1. Counsel for the applicant submitted that the prosecution bore an onus of persuading the trial judge that the proper exercise of discretion favoured the admission of the recorded evidence. So far as it goes, that submission should be accepted. It was, after all, the prosecution who sought to rely on RC’s recorded evidence in substitution for her recall as a witness; and, as s 380 of the CPA makes clear, the prosecution must serve an appropriate notice on an accused person if it ‘intends to apply to tender a recording as evidence in a proceeding referred to in section 379’. The fact that the burden of persuasion rests with the prosecution, however, does not mean that an accused person is absolved from pointing to material that might lead to an exercise of discretion adverse to the prosecution.

1. It may be acknowledged that part of the raison d’être for Division 7 (ss 378 to 387) of the CPA is the alleviation of the stress and trauma that may be occasioned to complainants by having once more to give evidence after a trial has miscarried.[20] But it must also be understood that Division 7 of the Act is not concerned to create a default position, whereby the recording of the previous evidence of a complainant in a sexual case is automatically or ordinarily or usually admitted. Thus, significantly, s 381 is concerned with the admission of evidence, not with its exclusion (or limitation of its use).[21] As s 381 makes clear, a court may only admit the recording if it is in the interests of justice to do so.  Since it is the prosecution that seeks to have the court admit the complainant’s formerly recorded evidence, it is the prosecution that must persuade the court that it is in the interests of justice to do so.

   [20]In the second reading speech to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill the Attorney-General, Mr Hulls, said (Hansard, Legislative Assembly, 17 September 2009, 3376) that:

   … in most sexual offence cases a child or cognitively impaired complainant only needs to give evidence on one occasion.  If there is a new trial following an appeal, the court can replay the recording of the complainant’s evidence.

   However, in other situations a complainant in a sexual offence case may be required to give evidence on a number of occasions.  For example, an adult complainant in a rape trial may be required to give evidence a number of times where there is a mistrial or a new trial is ordered on appeal or a mistrial.  This can be very traumatic and stressful. It may also lead to the discontinuation of a case if a complainant decides not to give evidence at a subsequent trial.

   Accordingly, the bill complements the special hearing provisions by providing that the recorded evidence of a complainant in a trial for a sexual offence can be used in a subsequent trial.

   [21]Compare, for example, Evidence Act 2008, ss 59, 82, 83, 84, 86, 114, 115, 130, 131, 135, 136, 137 and 138.

1. That said, given the policy underpinning s 381 (and other parts of Division 7), if the complainant is unavailable or unwilling to give evidence, and if, on its face, the recording of the complainant’s appears to be complete (and, for that matter, coherent, after any necessary editing), it might be expected that the proper exercise of discretion will favour admitting the recorded evidence, unless an accused person can point to reasons of substance exposing the manner in which he or she may be unfairly disadvantaged (the burden of persuading the court that there is no unfair disadvantage falling back on the prosecution).

1. In resisting the use of the recording of RC’s evidence and seeking her recall at the second trial, the applicant’s trial counsel[22] submitted to the trial judge that the applicant’s ‘real defence’ at the first trial ‘was the defence of collusion’; but that collusion is ‘of course no longer present and no longer existing in this current trial and when you remove that aspect of it and if the tendency is also removed, what you have is what I can only describe as a very bland cross-examination which doesn’t really include any substantive inconsistencies or any substantive matters of evidence’.  Counsel submitted — without elaboration — that hers ‘would be a very different cross-examination’.  Further — and again without elaboration — trial counsel told the judge that there ‘would be significantly more cross examination, significantly more challenges put on a different, on quite a different basis’.  Counsel conceded that the applicant has ‘an onus to at least articulate the sort of issues that she raises on her client’s behalf’, and that ‘the real nub of this would be to show your Honour how different the cross-examination will be compared to what happened last time for the purposes of ensuring this [sic.] fair trial’.

   [22]Different counsel cross-examined RC at the first trial, and different counsel again appeared in this Court.

1. It will be seen that, beyond mere assertion, trial counsel failed to provide the judge with any meaningful details or particulars of how her cross-examination of RC in the current trial would differ in any material respect from that conducted by counsel in the first trial. Assuming for the sake of argument that it could be said that there was some disadvantage in being unable to cross-examine RC before the jury in the current trial, there was nothing put before the judge to suggest that such disadvantage would be unfair. The judge had before her a recording of RC’s evidence that appeared to be complete, in a situation where it was contemplated that any prejudicial material flowing from the fact that the allegations of other complainants (and related evidence) had to be excised from the trial, would be edited out. In circumstances where counsel was either unable or unwilling to articulate how her cross-examination would be ‘different’, and how the applicant would be ‘unfairly disadvantaged’ by the admission of the recording (and inability to further cross-examine), there was little or nothing before the judge that could have led her to exercise the discretion under s 381(1) in a manner adverse to the prosecution.

1. Before leaving this aspect of the argument in this Court, we should note that we have read the cross-examination of RC from the first trial and watched substantial portions of the recording.  The cross-examination at the first trial impresses us as being ‘complete’ and as having been conducted with conspicuous competence.  We do not accept the description of it ‘as a very bland cross-examination which doesn’t really include any substantive inconsistencies or any substantive matters’.  Indeed, counsel exercised commendable control over a moderately difficult witness, and was astute to ensure that RC’s answers remained relevant and responsive.  Moreover, having viewed most of the cross-examination, it is obvious to us that the editing of the recorded evidence preserved its coherence and overall integrity, so that the applicant could not be said to have been ‘unfairly disadvantaged’ by its admission.  

1. Of more moment is the manner in which the prosecutor and judge approached the ‘willingness’ of RC ‘to give further evidence’. When dealing with the requirements of s 381(1)(c) — ‘the availability or willingness of the complainant to give further evidence’ — the following exchange between prosecutor and judge occurred:[23]

… (c) the availability or willingness of the complainant to give further evidence.  I’ve conferred with her.  She prefers not to give evidence. 

HER HONOUR:  But she’s otherwise available.

[PROSECUTOR]:  She’s otherwise available.  She’s had counselling.  I can get some evidentiary material if I need to but if the court is prepared for the moment at least to take it from the prosecutor that I’ve conferred with her.   Her strong preference, based on advice from counsellors and others is to avoid giving evidence if at all possible.  That is her preference.

HER HONOUR:  So it’s counselling undertaken since the first trial?

[PROSECUTOR]:  It’s continuous counselling that’s part of the process but certainly my impression was that it was counselling in recent times but would the court just defer acting on that until I confirm that.  I’m pretty sure that’s what the effect of her statement to me was but it might be we’ll just check with her on that.  I suggest it will be (d) that will be a major issue in this case and that is whether the accused will be unfairly disadvantaged by the admission of the recording. …

[23]Emphasis added.

1. Self-evidently, a ‘preference’ not to give evidence is not unwillingness to do so.  As a matter of ordinary language — and in context — ‘willingness’ is preparedness to do something — that is, give further evidence — and a complainant is unwilling if he or she is not so prepared.  By way of contrast, a person has a ‘preference’ if he or she considers one course to be more agreeable than another.  It is unsatisfactory that the prosecutor simply asserted from the Bar table that the complainant had a preference not to give evidence.  Evidence in proper form that there was an absence of ‘willingness’ on the part of the complainant was required (assuming, of course, no concession was forthcoming from the applicant).

1. In our view, the prosecutor’s assertion from the Bar table that RC had a ‘preference’ not to give evidence could not satisfy the pre-condition to admissibility found in s 381(1)(c). Furthermore, the judge was wrong to act on the prosecutor’s assertions from the Bar table. In the absence of any concession from the defence, a proper evidentiary basis was required to establish an absence of ‘willingness’ on the part of the complainant. Given our conclusions on ground 2, however, it is unnecessary to reach a final view as to whether this error alone would have been sufficient to constitute a substantial miscarriage of justice. But it might be expected that, if the prosecution seeks to rely on recorded evidence in the event of a new trial, the court will determine admissibility according to these reasons.

Tendency evidence

1. Ground 2 asserts that justice miscarried as a result of the jury being permitted to engage in tendency reasoning.

1. Prior to trial, the prosecution served a ‘further amended’ notice under s 97(1) of the Evidence Act 2008 that it intended to rely on tendency evidence.  In part, it recited:

4.   The tendency sought to be proved is the tendency of [the applicant] to act in a particular way, namely:

i.to have a sexual interest in his foster daughter [RC] …; and

ii.a willingness to act on that sexual interest in respect of [RC] …

And the following was footnoted:

Each charged act of sexual misconduct [reference to particulars] and each uncharged act [reference to particulars] show, once established, the accused had a tendency to have a sexual interest in [RC] and a willingness to act on that sexual interest and commit sexual acts on [RC].  This renders it more probable that the accused committed the (other) charged acts.  Thus each charged act of sexual misconduct [reference to particulars] is cross-admissible and each uncharged act [reference to particulars] is admissible in proof of each charged act.

1. Counsel for the applicant objected to the prosecution’s reliance on tendency evidence on several bases.  It was submitted:

·     first, the tendency notice was defective in a fundamental way, taking a ‘broad-brush’ and failing ‘to identify which charged and uncharged acts are cross-admissible in relation to which charges and for what purpose’, so that it was impossible to ‘meaningfully’ respond to it;

· secondly, TB’s evidence did not have significant probative value which substantially outweighed its prejudicial effect (and, in any event, it should be excluded pursuant to s 137 of the Act or the common law unfairness discretion) because:

·     there are significant differences between the two incidents related by TB and the charged acts (and indeed uncharged acts) related by RC, and any similarities are ‘superficial’;

·     the probative value of TB’s evidence regarding the uncharged act in RC’s bedroom is reduced by virtue of the fact that there is no evidence as to precisely what the accused is alleged to have been doing at that time;

·     the probative value of the evidence is also reduced on account of TB’s tender age (five or six years) at the time of the alleged incidents, and the time which has since elapsed (about 25 years); and

·     the probative value of the evidence is further reduced by the evidence demonstrating contamination between the accounts of RC and TB;

·     thirdly, the evidence overall did not have significant probative value, since  the proposed tendency evidence would do no more than ‘prove a disposition to commit crimes of the kind in question’;[24] and

·     fourthly, the facts of this case are indistinguishable from IMM.[25]

[24]Velkoski v The Queen (2014) 45 VR 680, 717–18 [164].

[25]IMM v The Queen (2016) 257 CLR 300.

1. The judge refused to exclude tendency evidence.  She ruled that the ‘evidence from RC as to charged and uncharged acts is admissible as tendency evidence in respect of all the charges on the indictment’;[26] and, in a later ruling,[27] confirmed her ‘preliminary view’ that ‘the evidence of the act alleged in charge 2 proposed to be led from TB, and the evidence from TB about the uncharged act referred to as Table B, particular no. 1[28] is admissible as tendency evidence in respect of the (other) charges’.  We will later return to the judge’s rulings.

   [26]Ruling No 2.

   [27]Ruling No 3.

   [28]The evidence relating to this particular is set out at [20] above.

1. Section 55(1) of the Evidence Act 2008 provides that ‘evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.  By virtue of s 56(1), save as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible; and by virtue of s 56(2), evidence that is not relevant is not admissible.  Although the expression ‘fact in issue’ is not defined in the Act, in a criminal trial facts in issue in the proceeding will be those that bear on the existence of the elements of the offence (or offences), and behind those there will be facts relevant to those facts in issue.[29]  The principal fact in issue in this case on each charge was whether the sexual activity alleged had occurred.  Therefore, to be relevant and admissible, evidence in the case needed to be capable of rationally affecting the assessment of the probability of whether the charged sexual activity had occurred.

   [29]Smith v The Queen (2001) 206 CLR 650, 654 [7] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

1. As we have mentioned, the prosecution sought to rely on the tendency evidence set out in its notice, the alleged tendency being ‘to act in a particular way’ (rather than to have a particular state of mind). The admissibility of tendency evidence is governed by s 97(1) of the Act, which relevantly provides:[30]

   [30]Emphasis added.

97.   The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless —

…

(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

1. The Dictionary to the Act defines the probative value of evidence as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. To be admissible, however, it is not sufficient that tendency evidence merely have probative value, since s 97(1)(b) provides as a threshold to admissibility that tendency evidence must possess significant probative value.[31] The high threshold of admissibility for tendency evidence is further emphasised by s 101(2) of the Act, which provides that in a criminal case tendency evidence adduced by the prosecution cannot be used against an accused person unless its ‘probative value substantially outweighs any prejudicial effect it may have’.

   [31]See Semaan v R (2013) 39 VR 503, 510–11 [36]–[38] (Priest JA). Compare JLS v R (2010) 28 VR 328, 333 [18] (Redlich JA).

1. Gageler J — whose observations on this aspect are not diminished in force by reason of his Honour differing from the majority as to the ultimate disposition of the appeal — explained the scheme of the Act in Hughes:[32]

The scheme of the Uniform Evidence legislation is that no evidence is admissible at all in a civil or criminal proceeding unless it is evidence that could (if accepted) rationally affect the assessment of the probability of the existence of a fact in issue.[33]  Tendency evidence adduced about a defendant by the prosecution in a criminal proceeding is subject to the special rule that it cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect on the defendant.[34]  On top of all that, a court has discretion to refuse to admit evidence the probative value of which is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, or be misleading or confusing, or cause or result in undue waste of time.[35]  And on top of all that again, a court in a criminal proceeding has an overriding duty to refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant.[36]  Given all of those other potential barriers to its admissibility and use, why is there added this particular barrier to the admissibility of evidence that has the potential rationally to affect the assessment of the probability of the existence of a fact in issue by contributing to proof that a person has or had a tendency to act in a particular way or to have a particular state of mind?

[32]Hughes v The Queen [2017] HCA 20, [69] (‘Hughes’).

[33]Sections 55 and 56. 

[34]Section 101. 

[35]Section 135.

[36]Section 137.

1. In the context of a case such as the present, prior to Hughes it had been acknowledged in this State that evidence that supports an inference that the accused had a sexual attraction for the complainant, and was prepared to act on that attraction, is tendency evidence caught by the provisions of ss 97(1) and 101(2) of the Act.[37]

   [37]Murdoch (a Pseudonym) v The Queen (2013) 40 VR 451, 473 [89].

1. Priest JA remarked in Murdoch[38] that tendency reasoning seems to be underpinned by the notion that human behaviour occurs in patterns, and imports the notion that because a person has acted in a particular way (or had a particular state of mind) in the past, he or she on other occasions will act in a particular way (or possess a particular state of mind).   In Elomar, the New South Wales Court of Criminal Appeal (Bathurst CJ, Hoeben CJ at CL and Simpson J) characterised tendency reasoning as a form of syllogistic or deductive[39] reasoning:[40] 

   [38]Ibid 471 [81].

   [39]Gageler J described it as ‘inductive’. See [53] below.

   [40]Elomar v The Queen (2014) 300 FLR 323, 398 [359]–[360].

[P]roof that a person has or had a tendency (whether to act in a particular way, or to have a particular state of mind) of itself goes nowhere.  Tendency evidence is evidence that provides the foundation for an inference.  The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings.  Tendency evidence is a stepping stone.  It is indirect evidence.  It allows for a form of syllogistic reasoning.

The process of reasoning is:

• on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;

• it can therefore be concluded or inferred that the person had a tendency to act in that way;

• by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.

Alternatively:

on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;

• it can therefore be concluded or inferred that the person had a tendency to have that state of mind;

• by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person’s state of mind conformed with that tendency.

Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.

1. More recently, in Hughes, Gageler J — whose  observations on this aspect again are not undermined by virtue of his being a minority judgment —  immediately following the passage cited above,[41] described tendency reasoning as ‘inductive’ reasoning:[42]

To answer that question, it is necessary to be clear about the problem to which the tendency rule is directed.  The problem arises from the cognitive process necessarily involved in using tendency evidence to assess the probability of the existence of a fact in issue.  The cognitive process is that mapped out in the statement of the tendency rule itself.  Tendency evidence — be it of character or reputation or of conduct other than an occasion in issue in a proceeding — is evidence that is used to prove to the tribunal of fact that a person has or had a tendency to act in a particular way or to have a particular state of mind.  The tendency so proved to the tribunal of fact is then used by the tribunal of fact to predict or (to adopt terminology which describes the process of reasoning employed more accurately) to ‘postdict’[43] the action or state of mind of the person on the occasion or occasions in issue in the proceeding.  Applied to evidence of past conduct, tendency reasoning is no more sophisticated than: he did it before; he has a propensity to do this sort of thing; the likelihood is that he did it again on the occasion in issue.

Tendency reasoning, as courts have long recognised, is not deductive logic.  It is a form of inferential or inductive reasoning. What it involves is ‘admeasuring the probability or improbability of the fact ... in issue ... given the fact or facts sought to be adduced in evidence’.[44] …

[41]At [50].

[42]Hughes, [70]–[71] (emphasis added).

[43]Saks and Spellman, The Psychological Foundations of Evidence Law, (2016) at 151. 

[44]Martin v Osborne (1936) 55 CLR 367 at 385; [1936] HCA 23, quoted in Hoch v The Queen (1988) 165 CLR 292 at 294; [1988] HCA 50.

1. Until Hughes was decided, the approach to tendency evidence was as explained in Velkoski.[45]  The Court (Redlich, Weinberg and Coghlan JJA) summarised the position as follows:[46]

   [45]Velkoski v The Queen (2014) 45 VR 680.

   [46]Ibid 717–18 [164].

Section 97(1)(b) is intended to address the risk of an unfair trial through the use of tendency reasoning by ensuring a sufficiently high threshold of admissibility. We consider the approach currently taken by the New South Wales Court of Criminal Appeal to tendency and coincidence goes too far in lowering the threshold to admissibility. To remove any requirement of similarity or commonality of features does not in our respectful opinion give effect to what is inherent in the notion of ‘significant probative value’. If the evidence does no more than prove a disposition to commit crimes of the kind in question, it will not have sufficient probative force to make it admissible. This view, we think, clearly represents the present position of our court reflected in the long line of authority to which we have referred.

The Court also said:[47]

[47]Ibid 719–20 [173].

It seems to us that a number of further principles can be distilled from the authorities.

(a) The test laid down in Hoch[48] and Pfennig[49] (to the effect that similar fact evidence will only be admitted if there is no reasonable explanation for such evidence other than ‘the inculpation of the accused in the offence charged’) has no application to the admissibility of tendency or coincidence evidence under the Evidence Act.

(b) Neither s 97 nor s 98 of the Evidence Act should be interpreted as having reinstated the test formerly laid down by the House of Lords in Director of Public Prosecutions v P, or by the Victorian Parliament in s 398A of the Crimes Act.

(c) As the law currently stands,[50] the finding, in any case involving multiple complainants, that it is ‘reasonably possible’ that there may have been ‘concoction’, ‘collusion’, ‘collaboration’ or ‘contamination’ among them renders tendency or coincidence evidence inadmissible.[51]  If contamination or concoction is to be relied upon, it should, of course, be raised, on behalf of the accused, before the trial judge.[52]  There must be a basis, in the evidence, for any such conclusion, beyond mere opportunity for it to have occurred.  Mere ‘speculative suggestion’ will not afford any such foundation.[53]

(d) Where the issue of ‘concoction’, ‘collusion’, ‘collaboration’ or ‘contamination’ relevantly arises and has been raised by evidence, the Crown bears the onus of negating any such reasonable possibility.[54]

(e) The presumption in s 194(2) of the Criminal Procedure Act, that sexual offences should be tried together, is of course to be given full weight. However, that presumption is rebuttable. The principles governing severance, notwithstanding that presumption, are those laid down by this Court in GBF.[55]

(f) The offender’s state of mind is frequently relied upon in the Crown’s notice of tendency evidence to cover the offender’s interest in particular victims and his willingness to act upon that interest.  That the offender has such a state of mind discloses only rank propensity which is not admissible as tendency evidence.  It shows only that he is the kind of person who is disposed to and commits crimes of the type charged.   Resort to that particular state of mind to support tendency reasoning is impermissible, highly prejudicial and unnecessary.  Once the jury is satisfied that the acts relied upon as tendency have been committed, the offender’s state of mind adds nothing.  Reference to it is calculated to divert the jury from focussing upon the extent to which the similar features of the previous acts render the occurrence of the offence charged more likely. …

[48](1988) 165 CLR 292.

[49](1995) 182 CLR 461.

[50]SLS (2014) 42 VR 64 at 93, [170].

[51]KRI (2011) 207 A Crim R 552 at 559, [33], 563, [56]; CEG [2012] VSCA 55 at [24]–[27].

[52]SPA v R [2011] VSCA 306 at [11].

[53]Ibid.

[54]SLS (2014) 42 VR 64 at 94, [173].

[55][2010] VSCA 135 at [51]–[55].

1. Much of the accepted approach to tendency evidence in this State — digested and explained in Velkoski — must now be significantly qualified in light of the treatment of the subject by the majority in Hughes.[56]

   [56]Hughes, [12].

1. In Hughes — a case of sexual offending against five underage girls — the majority (Kiefel CJ, Bell, Keane and Edelman JJ) recognised that although a pattern of conduct or modus operandi may establish significant probative value, there are other ways in which significant probative value may be demonstrated (at least in a case of sexual offending involving ‘unusual interactions’ pursued whilst displaying a ‘disinhibited disregard to’, and courting, a ‘substantial risk of discovery’):[57]

An inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience.  Often, evidence of such an inclination will include evidence of grooming of potential victims so as to reveal a ‘pattern of conduct’ or a ‘modus operandi’ which would qualify the evidence as admissible at common law.  But significant probative value may be demonstrated in other ways.  In this case the tendency evidence showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by.  This level of disinhibited disregard of the risk of discovery by other adults is even more unusual as a matter of ordinary human experience.  The evidence might not be described as involving a pattern of conduct or modus operandi — for the reason that each alleged offence involved a high degree of opportunism; but to accept that that is so is not to accept that the evidence does no more than prove a disposition to commit crimes of the kind in question.

Given the complainants’ ages, consent was not an issue in any of the counts.  It was the defence case on each count that the complainant had fabricated her account.  That the tendency evidence did more than prove a disposition to commit crimes of the kind in question, and was actually of significant value as proof of his guilt of the offences charged, can be illustrated by hypothesising separate trials in respect of each complainant with the only evidence against the appellant being the evidence of the complainant.  In each such case, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults.

[57]Ibid [57]–[58] (emphasis added to this and following passages).

1. Having considered Velkoski, the majority in Hughes made plain, however, that similarity of the conduct said to be tendency evidence with the conduct in issue is not necessarily a condition for its admissibility:[58]

Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue.  Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue.  The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove.  In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence.  Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.

In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted.  Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded.  The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s 97(1)(b) is as stated in Ford:[59] ‘the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged’. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself.^[[60]]  It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.  Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters.  The first matter is the extent to which the evidence supports the tendency.  The second matter is the extent to which the tendency makes more likely the facts making up the charged offence.  Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters.  By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’.  In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.  

[58]Ibid [39]–[41].

[59](2009) 201 A Crim R 451 at 485 [125].

[60]These words emphasised in original.

1. The issue in Hughes reduced to the question whether proof that a man of mature years has a sexual interest in female children aged under 16 years (‘underage girls’) and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value on his trial for a sexual offence involving an underage girl.[61]  An indictment against the appellant charged him with 11 counts of sexual offences committed against five underage girls aged between six and 15 years at the date of the offending.  Prior to the trial, the prosecution served the appellant with notice of its intention to adduce tendency evidence at the trial.  The acts charged in each count and the circumstances of their commission varied, and the notice particularised differing forms of sexual conduct with underage girls.  One particular and important feature of that conduct, however, was its occurrence within the vicinity of another adult in circumstances in which the appellant courted a real risk of detection by another adult.  The charged conduct included digital penetration of the vagina of a girl aged 14 or 15 years; procuring a girl aged between six and eight years to masturbate him; indecently rubbing his erect penis against a nine year old girl; encouraging a 15 year old girl to touch his penis; and indecently exposing himself to girls aged nine and 12 or 13 years.  The prosecution also sought to adduce tendency evidence from three women who described occasions when they had been at the appellant’s home as young girls and the appellant had either touched them in a sexual way or exposed his penis in their presence.  Another three women who had worked with the appellant described occasions, when they were aged in their late teens or early twenties, when the appellant had inappropriately sexually touched them or exposed himself to them.

   [61]Hughes, [2].

1. Immediately before turning to consider the evidence relating to one complainant, ‘JP’, who was assaulted in her bed when the appellant and his wife were dinner guests at her home, the majority had — as we have earlier mentioned[62] — observed first, that an inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience; secondly, that evidence of such an inclination will often include evidence of grooming of potential victims so as to reveal a ‘pattern of conduct’ or a ‘modus operandi’; thirdly, that the particular tendency evidence in the case showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by (such level of disinhibited disregard of the risk of discovery by other adults being even more unusual as a matter of ordinary human experience); fourthly, that the defence case on each count was that the complainant had fabricated her account; and fifthly, that without the impugned tendency evidence, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults .  The majority continued:[63]

Considered in isolation, JP’s evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP’s home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed.  The jury might well be disinclined to accept JP’s evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury’s experience of the probabilities of ordinary human behaviour.  Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised.

[62]See [56] above; Hughes, [57]–[58].

[63]Hughes, [59].

1. Ultimately, the majority in Hughes concluded:[64]

… When considered together, all the tendency evidence provided strong support to show the appellant's tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection.

The probative value of the evidence of each complainant and [other witnesses] lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks.  The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value.

The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency.  The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged.  This will necessarily involve a comparison between the tendency and the facts in issue.  A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency.  But it will also mean that the tendency cannot establish anything more than relevance.  In contrast, a tendency expressed at a level of particularity will be more likely to be significant. …

[64]Ibid [62]–[64].

1. In our view, at least the following may be drawn from the reasons of the majority in Hughes:

·     first, the probative value of tendency evidence will vary depending upon the issue that it is adduced to prove;

·     secondly, the particularity of the tendency, and its capacity to affect the rational assessment of whether the prosecution case is proved, will depend upon a consideration of the circumstances of the case;

·     thirdly, the admissibility of tendency evidence does not depend on the assessment of any operative features of similarity with the conduct in issue; 

·     fourthly, although there are dangers in focusing on labels such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’, nonetheless conduct of the kind embraced by those labels may have significant probative value;

·     fifthly, however, significant probative value may be demonstrated in other ways;

·     sixthly, tendency evidence is likely to possess a high degree of probative value where the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and the tendency strongly supports the proof of a fact that makes up the offence charged; and

·     seventhly, in the circumstances of that case, it was the appellant’s attraction to underage girls and his willingness brazenly to act on it with a disinhibited disregard of the evident risks of discovery when committing the offence in question, that imbued the evidence with significant probative value.

1. In essence, the tendency evidence in Hughes had significant probative value because it made probable that which would otherwise be regarded as improbable; that is, engaging in sexual conduct in circumstances in which the appellant ran a real risk of discovery by other adults.  Had that singular feature been absent, it may be inferred that the evidence would not have been considered to possess the requisite degree of significant probative value.

1. As has been seen, the tendency evidence in Hughes flowed from the five complainants and several other witnesses.  In the present case, however, the evidence of the relevant tendency — that the applicant had ‘a sexual interest in his foster daughter [RC]’ and ‘a willingness to act on that sexual interest in respect of [RC]’ — flowed principally from a single source, RC.

1. In Murdoch,[65] in the course of discussing tendency evidence, Priest JA observed — citing JLS[66] — that ‘[t]his court has also expressed the view — one to which, with respect, I am not immediately attracted — that tendency evidence may be of significant probative value even though it is proved by only a single complainant’.[67]  We similarly are unattracted to the view that tendency evidence may be said to possess significant probative value when its sole source is a single complainant.  With that in mind, it is necessary to turn, first, to the judge’s ruling admitting tendency evidence, and, secondly, to JLS.

   [65]Murdoch (a Pseudonym) v The Queen (2013) 40 VR 451.

   [66]JLS v The Queen (2010) 28 VR 328 (Redlich, Mandie and Bongiorno JJA) (‘JLS’).

   [67]Ibid 471 [83].

1. In ruling that RC’s evidence concerning charged and uncharged acts was admissible as tendency evidence, the judge stated that she applied the principles in JLS.  In the course of her ruling, she said:

The starting point is JLS.[68]  The court held[69] that in a single complainant case, the trial judge was right to distinguish the authorities of CGL[70] and PNJ[71]  because each dealt with cross-admissibility between multiple complainants.  Adopting the meaning given to ‘significant probative value’ in New South Wales, it was said to be an ‘inescapable’ conclusion that the evidence of other sexual conduct given by a sole complainant had significant probative value.  

… [T]he court referred to the long line of authority^[[72]] as to the relevance of uncharged acts between an accused and a [single][73] complainant; that at common law, sexual interest and willingness to give effect to that interest has been regarded as having a ‘sufficiently high degree of relevance to justify its admission’, making it more likely that the offence charged was in fact committed; the cogency of such evidence and its admissibility remained largely unaffected in New South Wales following the introduction of the Evidence Act 1995 which governed its admissibility; and the sexual desire or feeling of the accused for the complainant is directly relevant to proving the offence charged.

[68](2010) 28 VR 328.

[69]Ibid 332 [13].

[70](2010) 24 VR 486.

[71](2010) 27 VR 146.

[72]JLS, 334–5 [19]–[21].

[73]This parenthesis in original.

1. In ruling that the evidence of TB was admissible as tendency evidence, the judge said that she applied ‘the principles for the reception of evidence as tendency evidence outlined in JLS[74] which have been confirmed in Velkoski,[75] MR,[76] PCR[77] and Gentry’.[78]  Significantly, after the judge ruled — in reliance upon JLS — that the evidence of RC and TB was admissible as tendency evidence, the High Court delivered its decision in IMM;[79] however, when asked to revisit her rulings in light of IMM, the judge declined to do so.     

   [74](2010) 28 VR 328.

   [75][(2014) 45 VR 680.]

   [76][2011] VSCA 39.]

   [77][(2013) 279 FLR 257.]

   [78][(2014) 244 A Crim R 106.]

   [79]IMM v The Queen (2016) 257 CLR 300 (‘IMM’).

1. JLS was an interlocutory appeal. The applicant was charged with a single count of maintaining a sexual relationship with a child under the age of 16, contrary to s 47A(1) of the Crimes Act 1958. In its draft opening, the prosecution had set out particulars of five specific occasions which it was said satisfied the requirements of s 47A(2) of the Act, and also set out particulars of evidence of uncharged acts on which it intended to rely for the purposes of showing ‘tendency’ and ‘context’. The applicant’s primary submission was that where the sole source of other sexual misconduct is the evidence of the complainant, such evidence cannot be admitted under s 97 as it will not have ‘significant probative value’ in proof of a charged sexual offence. In that case, the only source of evidence that the applicant engaged in any of the sexual acts with the complainant comprising the five occasions founding the charge — or the other uncharged acts of sexual misconduct — was the complainant herself. In her VATE,[80] the complainant described multiple incidents of sexual misconduct as part of an ongoing sexual relationship between her and the applicant.  The complainant was unable to give evidence as to specific dates or times of the incidents, but she was able to say that one or more of the types of sexual misconduct forming the charge occurred on each of the five occasions nominated in the prosecution’s opening, as well as on many other occasions.  The trial judge admitted the evidence of uncharged acts.  She held that the evidence of other sexual misconduct was relevant to the fact in issue in that it would render it more probable that the applicant committed at least three sexual offences relied on as the particulars of maintaining a sexual relationship, and that he had a sexual interest in the complainant and was willing to act on this sexual interest.

   [80]Video and Audio Taped Evidence. 

1. On appeal, the applicant’s primary submission was that where the sole source of other sexual misconduct is the evidence of the complainant, such evidence cannot be admitted under s 97 of the Evidence Act 2008 since it will not have ‘significant probative value’ in proof of a charged sexual offence.  Redlich JA (with whom Mandie and Bongiorno JJA agreed) thought the impugned evidence to be admissible.  His Honour was of the view that, in the post-Evidence Act era, the common law ‘has continued to provide a useful guide in the evaluation of whether the tendered evidence would have significant probative value’;[81] and observed that evidence of uncharged acts between an accused and a complainant in sex offence cases ‘has long been recognised as tending to explain the relationship between the parties and explain why the complainant did not rebuff the accused or showed no distress or resentment, or to make it more probable the charged acts occurred’.[82]    Redlich JA further observed that a sexual interest and willingness to give effect to that interest has been regarded as having a sufficiently high degree of relevance to justify its admission, ‘making it more likely that the offence charged was in fact committed’.[83]

   [81]Ibid 334 [20]. See, however, [70] below.

   [82]Ibid 334 [19].

   [83]Ibid.

1. Although one aspect of JLS was referred to with apparent approval in Velkoski,[84] it does not appear that the Court gave distinct approval to the notion that supposed tendency evidence flowing from a single complainant may meet the high threshold for admissibility imposed by ss 97(1)(b) and s 101(2) of the Evidence Act.  In any event, JLS must now be considered in light of the High Court’s decision in IMM.[85] 

   [84]Velkoski, 701 [92]–[93], citing JLS, 332 [13].

   [85]IMM v The Queen (2016) 257 CLR 300 (‘IMM’).

1. In IMM, the appellant was found guilty of two counts of indecently dealing with a child and one count of sexual intercourse with a child under the age of 16 years. The complainant, the appellant’s step-granddaughter, alleged a course of sexual misconduct from when she was four years old until she was 12 years old. Hers was the only direct evidence of the commission of the offences. Over objection, the prosecution was permitted to adduce ‘tendency evidence’ from the complainant that while she and another girl were giving him a back massage, the appellant ran his hand up the complainant’s leg. Ruling that the evidence had ‘significant probative value’ for the purposes of s 97(1)(b) of the Evidence Act, the trial judge admitted the evidence on the basis that it was capable of showing that the appellant had a sexual interest in the complainant.  On appeal from the Northern Territory Court of Criminal Appeal (which had upheld the trial judge’s approach), French CJ, Kiefel, Bell and Keane JJ observed:[86]

   [86]Ibid 311 [35].

The issue here concerning a trial judge’s assessment of the probative value of the evidence in question arises in the context of a statute that was intended to make substantial changes to the common law rules of evidence. The statute’s language is the primary source,[87] not the pre-existing common law.

1. Furthermore, given our conclusion that the impugned tendency evidence should not have been admitted, it is also unnecessary to say anything much of counsel’s criticism of the prosecution’s tendency notice.  It was submitted that the tendency notice was defective in that it took a broad-brush approach and failed to identify which charged and uncharged acts were cross-admissible in relation to which charges and for what purpose. 

1. We note that in Hughes, Gageler J made the following observations about tendency notices:[96]

Making the evaluative judgment required of a court in the implementation of the tendency rule is facilitated by the procedural requirement that a party must ordinarily give notice of an intention to seek to adduce tendency evidence.[97]  The utility of the tendency notice goes beyond providing procedural fairness to other parties.  The tendency notice provides the court, at the critical time of assessing the admissibility of tendency evidence, with a statement of the particular tendency which the party seeking to adduce the tendency evidence seeks to prove by it.  The importance of explicitly identifying in the notice the particular tendency that is asserted, as Howie AJ put it in Bryant v R,[98] ‘should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence’.  By identifying the particular tendency that the evidence is asserted to prove, the notice allows the court to evaluate the strength of the connection between the evidence and the tendency and the strength of the connection between the tendency and the fact in issue.

[96]Hughes, [105].

[97]Section 97(1)(a) and (2).

[98](2011) 205 A Crim R 531 at 540 [50].

1. The tendency notice in Hughes[99] did not seem to suffer from the vices attributed to the notice in the present case.  In the circumstances, however, it is unprofitable to say any more about the notice given in this case.  If there is to be a retrial, the tendency notice relied upon at the second trial will be irrelevant.

   [99]See Hughes, [107].

1. As we have indicated, ground 2 is made out.

Failure to sever charge 2

1. We would uphold the third ground, which contends that the trial judge erred in ‘finding that the presumption as to joinder was not rebutted and thus not severing Charge 2 from the Indictment’. 

1. As we have mentioned, an unusual feature of charge 2 was that TB was the sole source of the evidence establishing the indecent assault upon her sister, RC.  The submissions of the applicant’s counsel in support of this ground were very much tethered to the proposition that the evidence of TB on charge 2 was not admissible as tendency evidence in proof of the other charges.

1. Self-evidently, with respect to all of the other charges on the indictment, charge 2 was a ‘related offence’, since it was ‘founded on the same facts’ or formed, or was part of, ‘a series of offences of the same or a similar character’.  It was thus properly joined on the indictment with the other offences.[100] 

   [100]CPA, Schedule 1, cl 5(1).

1. Section 193(1) of the CPA permits a trial judge to order that any one or more of the charges on an indictment be tried separately. By virtue of s 193(3), the judge may make such an order if he or she considers that the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment, or for any other reason it is appropriate to do so. Section 194(2) provides that, despite any rule of law to the contrary, if in accordance with the CPA two or more charges for sexual offences are joined in the same indictment, ‘it is presumed that those charges are to be tried together’; and s 194(3) makes clear that the ‘presumption created by subsection (2) is not rebutted merely because evidence on one charge is inadmissible on another charge’.

1. Had charge 2 related to offending against TB, it may have been proper to order its severance from the indictment in circumstances where the evidence relating to it was not cross-admissible.  Significantly, however, TB’s evidence was the foundation of a charge relating to RC, and formed part of a series of offences against RC of the same or a similar character.

1. Notwithstanding that the evidence of TB was the very foundation of charge 2, counsel for the applicant submitted that the proper exercise of discretion under s 193(3) should have resulted in an order for a separate trial of that charge from charge 1 and charges 3 to 18. Counsel acknowledged that, as s 194(3) makes clear, the absence of cross-admissibility alone does not justify severance. In this case, however, the evidence on charge 2 had no legitimate probative value with respect to the other charges on the indictment. Therefore, counsel contended, the applicant’s case was unacceptably prejudiced, since it would be very difficult (if not impossible) ‘for a jury not to engage in tendency and even rank propensity reasoning if they were to hear evidence in support of charge 2 from TB and evidence in support of the other charges from RC’. For these reasons, the ‘presumption’ in s 194(3) was ‘rebutted’.

1. In KRA,[101] the Court was called upon to consider the (since repealed) provisions of ss 372(3AA) and (3AB) of the Crimes Act 1958, which closely mirror ss 194(2) and (3) of the CPA.[102] The Court acknowledged that although it is usually to be assumed that the jury will comply with directions which they are given by a judge, nevertheless there will be cases — for example, involving offences of an unnatural character or offences that arouse strong emotions or excite revulsion — where severance of charges for sexual offences is warranted,[103] and said that the presumption in favour of jointly trying sexual offences, contained in s 372(3AA), was predicated upon the assumption that juries will heed appropriate warnings given to them by the trial judge. But the Court went on to say:[104]

There will, no doubt, be some cases where the perceived prejudice to the accused will be so great that the trial judge will consider that no judicial direction will overcome that prejudice and that circumstance will play a dominant role in the exercise of his discretion, notwithstanding the legislative policy expressed [ss 372(3AA) and (3AB)].  Each case will necessarily depend upon its own facts and, as in the case of all discretionary exercises, rarely will a decision in one case provide a precedent for another. …

[101]R v KRA [1999] 2 VR 708 (Winneke P, Brooking and Ormiston JJA) (‘KRA’).

[102]We note, however, that s 372(3AA) provided that where two ‘or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together’; whereas s 194(2) provides that if two ‘or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together’.

[103]KRA, 716 [22].

[104]Ibid 716 [23].

1. The trial judge in the present case refused severance of charge 2 on the basis that TB’s evidence with respect to it amounted to tendency evidence, upon which the prosecution could rely in proof of the other charges of the indictment. As we have indicated, however, TB’s evidence could not properly be so used. To that extent the trial judge’s exercise of discretion under s 193 of the CPA miscarried.

1. In our view, a separate trial should have been ordered with respect to charge 2.   In Demirok, the Full Court considered the matters of public interest which must inform a decision whether to grant separate trials of offenders or of charges.   The Court (Young CJ, Lush and Crockett JJ) said:[105]

The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows.  In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted.  These matters will in many cases not be of very great weight, in others they may assume real significance.  Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial.  Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required.  Fourthly, the convenience of witnesses must be considered.  The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.

[105]R v Demirok [1976] VR 244, 254.

1. To those considerations might be added several others identified in Christou as being important in cases of sexual offences.  Lord Taylor observed:[106]

… They will vary from case to case, but the essential criterion is the achievement of a fair resolution of the issues.  That requires fairness to the accused but also to the prosecution and those involved in it.  Some, but by no means an exhaustive list, of the factors which may need to be considered are: how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family; on the victims and their families; on press publicity; and importantly, whether directions the judge can give to the jury will suffice to secure a fair trial if the counts are tried together.  In regard to that last factor, jury trials are conducted on the basis that the judge’s directions of law are to be applied faithfully.  Experience shows … that juries, where counts are jointly tried, do follow the judge's directions and consider the counts separately.  Approaching the question of severance, as indicated above, judges will often consider it right to order separate trials.  But I reject the argument that either generally or in respect of any class of case, the judge must so order.

[106]R v Christou [1997] AC 117, 128–9. See also KRA, 714–15 [20].

1. In the present case — particularly given its history — a separate trial on charge 2 is unlikely to add much to court time or public expense, or to impose much in the way of an additional burden upon the two principal witnesses, RC and TB.  On the other hand, a trial in which charge 2 remains to be tried with all the other charges on the indictment — in circumstances in which the evidence on charge 2 is not admissible as tendency evidence (or for any other purpose) — is likely to be attended by unacceptable prejudice to the applicant.  It is inevitable, in our view, that notwithstanding firm directions to the jury, there is a strong possibility (if not a likelihood) that the jury will indulge in illegitimate tendency or propensity reasoning or otherwise use the evidence in an impermissible way.

1. Putting tendency to one side, counsel for the respondent did not submit that the evidence on charge 2 was otherwise admissible in proof of any of the other charges, or that the evidence on the other charges was otherwise admissible in proof of charge 2.  In those circumstances, charge 2 should have been severed (or vice versa).  Ground 3 should, as we have said, be upheld.

‘Complaint’ evidence

1. Ground four, which asserts that the trial judge erred in admitting the evidence of ‘AF’ ‘as a previous statement of the complainant pursuant to s 66 of the Evidence Act 2008’, should be upheld.

1. AF’s recorded evidence from the first trial was played to the jury in the second.  Her evidence was to the effect that she had a conversation with RC in 1998, which proceeded with AF guessing what had allegedly happened between the applicant and RC.  AF suggested sexual acts, and RC agreed or disagreed that they had occurred.

1. In her evidence, AF said that RC was a boarder at her school in Year 8.  The two became close and, after AF had asked her parents whether RC could live with them, RC moved into AF’s family home in the holiday period between December 1997 and January 1998.  RC then lived with them for three or four years until RC finished Year 12.  Shortly after she moved in, RC told AF that she missed having a real family and was sad that her father had died, and she said something happened while she was with her foster family.  RC said that her foster mother, JW, was mean to her and made her do a lot of chores.  She also said her foster father did ‘something’.  RC then made AF guess what her foster father had done, and answered ‘yes’ to the question, ‘Was it sexual harassment?’.  The following passage conveys the flavour of AF’s evidence:

I asked her what he did to her and she didn’t want to tell me.  She asked me to guess.  So I guessed a few things. … Well, the words I used were thing like, ‘Did you toss him off?’ … She said ‘Yes’.  She – and I said ‘Did you have to’ – you know – ‘suck him off’ is the word [sic] I used at the time, and she said ‘Yes’.  And I remember she said that he made her watch pornographic videos and make her act out what was done in those videos … 

1. Counsel for the applicant objected to the admission of AF’s evidence.  The judge did not give a detailed ruling[107] — in a report to this Court the judge advised that she was not asked to provide a formal ruling[108] — but immediately following delivery of a ruling on the admissibility of tendency evidence, Ruling No 2, the judge said:

Now in respect of ruling No.3 which is the complaint evidence, because of the time that I spent on the ruling that I have just delivered, I am not in a position to deliver a ruling with reasons so I simply announce that I have considered the matter, reread the evidence and the cases to which I was referred and others, and in my view the evidence of complaint from [AF] is admissible and I will provide full reasons in due course if required.

[107]In the written case, it was asserted that there were ‘no reasons given’ and that ‘a formal ruling was not delivered’.

[108]The judge reported that she heard submissions ‘as to the admissibility of the impugned complaint evidence’; and that, immediately following her rulings on tendency evidence, she said what is extracted at [104] above. Her Honour then reported that, ‘No request was ever received for full reasons’; and that, ‘As to the ruling itself, I believe that at this time there is nothing I can usefully add to what appears in the transcript of the discussion with counsel …’.

1. The admissibility of RC’s previous statements fell to be considered according to the provisions of s 66 of the Evidence Act 2008. In the course of argument, the prosecutor submitted that s 66 is not concerned with a ‘recent’ complaint, but with a representation of an asserted fact that is ‘fresh in the memory’, prompting the judge to observe: ‘The common law also used to say it had to be a spontaneous unvarnished narrative. It’s certainly not that’.

1. At common law, recent complaint by the complainant in the case of a sexual offence was admitted solely to buttress the complainant’s credibility, and was not admitted to prove any of the facts stated in the complaint or to prove lack of consent.  Evidence of recent complaint was admissible only if it was made at the first reasonable opportunity; and if, in the circumstances in which it was uttered, it served to buttress the complainant’s credit as a witness by demonstrating consistency.  Its admissibility depended on whether the complaint could be regarded as a spontaneous and unvarnished narrative.  Thus, a complaint fell to be excluded if it was not made as soon as could reasonably be expected in the circumstances after the event, or was the product of suggestion or intimidation, or may have been induced as a consequence of the relationship between the complainant and the person to whom the complaint was made.[109]

   [109]R v Freeman [1980] VR 1, 5 (Starke, McInerney and Murphy JJ).

1. In light of the foregoing, it is doubtful that RC’s statements to AF in 1997 or 1998 would have been admissible as evidence of complaint at common law. Common law conceptions, however, had no relevance to the assessment of the impugned statements in the applicant’s trial, since the admissibility of RC’s statements in the present case fell to be considered solely by reference to the dictates of s 66 of the Evidence Act 2008.[110] So far as relevant, s 66 provides:

   [110]Papakosmas v The Queen (1999) 196 CLR 297, 309 [33].

66  Exception—criminal proceedings if maker available

(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2)If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—

(a)  that person; or

(b)  a person who saw, heard or otherwise perceived the representation being made—

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A)In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—

(a)  the nature of the event concerned; and

(b)  the age and health of the person; and

(c)  the period of time between the occurrence of the asserted fact and the making of the representation.

Note:  Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.

…  

1. The effect of s 66 is that the hearsay rule does not apply to a representation made by the person if the occurrence of the asserted fact was ‘fresh in the memory’ of the person who made the representation at the time that the representation was made. In determining whether the occurrence of the asserted fact was fresh in the memory, the court may take into account all relevant matters, including the age and health of the person making the representation; the nature of the event concerned; and the period that has elapsed between the occurrence of the asserted fact and the making of the representation.

1. In this Court, counsel for the applicant submitted that the evidence of RC’s statements to AF should have been excluded because there was no (or insufficient) evidence that the alleged offending was fresh in RC’s memory at the time of the complaint. RC moved into AF’s family home in December 1997 or January 1998. It seems the ‘complaint’ was made a few months later, against the background that the alleged offending against RC was said to have commenced some ten or 11 years previously. Counsel submitted that RC gave no evidence as to the state of her memory when she made the representations and AF gave no evidence of RC saying anything to her to indicate that any occurrence was fresh in her memory at the time that the representations were made. There were no specifics, and no references to ages, dates or times. The applicant’s counsel argued that it was AF who initiated the conversation about ‘sexual harassment’. She made suggestions in the course of a ‘guessing game’ in which RC responded to her questions. Counsel also contended that, if technically admissible under s 66, the representations should nonetheless have been excluded by reason of the common law ‘unfairness discretion’ or by reason of s 137 of the Evidence Act 2008.

1. Pate[111] involved representations made by a complainant to her boyfriend some 12 years after alleged sexual offending. Weinberg JA held that the relevant representations were not admissible under s 66, observing:[112]

It does not follow that a delay of that order is, in and of itself, too great to qualify for admissibility under s 66(2A). There is no single bright line figure beyond which a representation made long after an event cannot be ‘fresh in the memory’. Plainly, however, the greater the period that has passed, the greater the need for there to be some reason why the event would be ‘fresh’ in the memory. LMD provides a useful example of the kind of evidence that might be sufficient to overcome the time barrier in the notion of something being fresh.  There was no evidence of that kind in Clay, and in my view, there was equally no evidence of that kind in the present case.

[111]Pate (a Pseudonym) v The Queen (2015) 250 A Crim R 425 (‘Pate’).

[112]Ibid 437–8 [65].

1. In Pate, Priest JA said:[113]

   [113]Ibid 455 [133].

Upon the assumption that consideration of whether a memory is ‘fresh’ is no longer to be confined to the time that has elapsed between the occurrence of the asserted fact and the representation, nonetheless the effluxion of time will remain relevant (and, in some cases, decisive). Given that s 66(2A) invites a more flexible approach, however, to the concept of ‘freshness’[114] — and invites consideration of factors beyond time — it may be that greater attention will need to be given to the subjective features of the person making the representation than was hitherto the case.

And:[115]

… given that determination of ‘freshness’ of memory is not confined simply to temporal proximity, when assessing whether an asserted fact is ‘fresh in the memory’, consideration might also be given to whether the particular memory can be said to be free of factors which potentially might taint or influence it (such as — to use a non-exhaustive example — psychological counselling or therapy).

[114]Stephen Odgers offers an interesting suggestion in Uniform Evidence Law in Victoria (2nd ed), at [1.3.2320], fn 259:

Some limited assistance might be gained by analogies to such objects as fruit.  A fruit will be ‘fresh’ when it is in substantially the same condition as when picked.  Usually this will depend on the passage of time, but certain techniques might be utilised (for example, freezing) in an attempt to maintain ‘freshness’.  Different types of fruit will remain fresh for different periods of time and in different conditions.  However, fruit that appears ‘fresh’ may not be, in fact, ‘fresh’.  Fruit that looks in good condition, or even tastes good, may still not be ‘fresh’.

[115]Pate, 456 [146].

1. The touchstone for the admissibility of any previous representation is that the occurrence of an asserted fact was fresh in the memory at the time that the representation was made;[116] but there was no evidence in this case that the occurrence of any relevant asserted fact was ‘fresh in the memory’ of RC at the time that she made the previous representations upon which the prosecution sought to rely.[117] Any representation that she made was generic and non-specific as to activity, surrounding circumstances, date or time, and was made in response to suggestions made to her in the course of AF’s questioning. For these reasons, the evidence of the representations made by RC to AF did not satisfy the principal statutory criterion for admissibility in s 66. The evidence should have been excluded.

   [116]Boyer (a Pseudonym) v The Queen (2015) 47 VR 640, 654 [68].

   [117]Compare R v XY (2010) 79 NSWLR 629, 643–4 [77]–[79]; LMD v The Queen [2012] VSCA 164, [23]; ISJ v The Queen (2012) 38 VR 23, 37 [49].

1. Even if it could be considered that the impugned evidence had some probative value, however, given the manner in which the representations were elicited as part of a ‘guessing game’, any probative value that the evidence possessed would be slight, and would not outweigh the risk of unfair prejudice. The risk of unfair prejudice flows from the possible misuse of the evidence. In particular, the jury might have used the evidence as supporting the credibility of RC in circumstances where, given the manner in which the representations were drawn out of RC by AF’s questioning, the evidence could not properly have been used for that purpose. Section 137 of the Evidence Act 2008 ought to have dictated the exclusion of the evidence.[118]   

   [118]Cf IMM, 320 [74] (French CJ, Kiefel, Bell and Keane JJ); 329–30 [109]–[111] (Gageler J); 354 [105] (Nettle and Gordon JJ).

1. A substantial miscarriage of justice resulted from the admission of the evidence of RC’s representations to AF.

New trial or acquittal?

1. Upon allowing an appeal against conviction, in a case such as the present, two courses are open to the Court: first, to order a new trial; or, secondly, to enter a judgment of acquittal.[119]

   [119]CPA, ss 277(1)(a) and (b).

1. Counsel for the applicant submitted that, should the appeal succeed, the Court should make orders acquitting her client.  She relied principally on her client’s age; the fact that he had endured nine trials (taking into account the first trial, the current trial and those that aborted); the fact that ‘the matter has been hanging over his head since 2000’; and the fact that he had spent an extended period — more than ‘900 days’ — in custody.

1. In Rabey,[120] it was observed:

Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion.  The public interest in securing a fair trial of an alleged wrongdoer must be weighed against the public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spent some time in prison and who has already been through one trial and an appeal.

[120]Rabey v The Queen [1980] WAR 84, 95–6.

1. But as Winneke P said in Bartlett:[121]

In normal circumstances it would be proper to direct a new trial if there is evidence upon which a reasonable jury could, assuming a trial in accordance with law, convict.  However the court has a discretion not to order a re-trial if there are circumstances which would render it unjust to require the applicant to stand his trial again: see Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; 58 ALJR 469; 55 ALR 175 at 630 (CLR); R v Talia [1996] 1 VR 462; (1995) 82 A Crim R 373 at 477 (VR).

[121]R v Bartlett [1996] 2 VR 687, 698.

1. In Fowler, a two-stage test was propounded by the High Court:[122]

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had.  In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case ... Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

[122]Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630. See also R v Thomas(No 3) (2006) 14 VR 512; R v Tang [2007] VSCA 144.

1. As the authorities recognise, in exercising the discretion whether to direct a new trial or to order an acquittal, the interests of the community as well as the interests of the accused need to be brought into balance.[123]  The circumstances in which the discretion will be exercised so as not to order a new trial will vary, there being no fixed criteria.  Length and complexity of a re-trial, together with inadequacies in the way in which the case has been presented, may militate against ordering a new trial.[124]  The advanced age and ill health of a successful applicant of previously good character, coupled with the fact that much of the sentence had been served, might militate against an order for re-trial.[125]  So, too, several trials and long periods in custody might also dictate there be no re-trial.[126]

   [123]Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630.

   [124]R v Wilson [1995] 1 VR 163.

   [125]R v Bartlett [1996] 2 VR 687.

   [126]R v Clune (No 2) [1996] 1 VR 1.

1. Balancing the various competing factors, not without hesitation, we have concluded that a new trial should be ordered.  True it is that the applicant has had to endure a number of trials, but it is also true that he has twice been convicted of very serious charges relating to RC.  The length of a new trial will not be inordinate, and, particularly given the conclusions on ground two, the trial should not be one of great complexity.  Further, although the applicant is aged 71 years, nothing was put before us to indicate that he suffers under a burden of ill health.  Additionally, although the applicant had served a substantial period in custody, a very substantial period of the sentence imposed upon him remains (less than half the non-parole period having been served).

1. The fact that the Court has ordered a new trial is, of course, no bar to a discontinuance of proceedings by the Director.

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