Brian Cox and v The Queen and
[2015] VSCA 28
•26 February 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0046
| BRIAN COX |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
---
| JUDGES: | WEINBERG, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 February 2015 |
| DATE OF JUDGMENT: | 26 February 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 28 |
| JUDGMENT APPEALED FROM: | DPP v Cox (Unreported, County Court of Victoria, Judge Chettle, 20 February 2014) |
---
CRIMINAL LAW – Evidence – Coincidence evidence – Sexual offences committed against multiple complainants – Severance – Whether evidence of one complainant cross-admissible with evidence of other complainants – Judge’s charge on coincidence evidence – Velkoski v The Queen [2014] VSCA 121, applied – Evidence Act 2008, ss 98 and 101.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin with Mr J R Cass | Victoria Legal Aid |
| For the Crown | Mr R A Elston QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WEINBERG JA
PRIEST JA
BEACH JA:
Introduction
On 4 November 2013, the appellant was convicted, after a trial in the County Court, of five charges of rape and six charges of indecent assault. He was acquitted on two further counts of rape, and one further count of indecent assault. On 20 February 2014, he was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Indecent assault [Crimes Act 1958 s 39] 10 years 9 months 3 months 2 Indecent assault 10 years 9 months Nil 3 Indecent assault 10 years 9 months 3 months 4 Rape [Crimes Act 1958 s 38] 25 years 3 years Nil 5 Indecent assault 10 years 9 months Nil 6 Rape 25 years 4 years Base 8 Rape 25 years 4 years 2 years 9 Indecent assault 10 years 9 months Nil 10 Rape 25 years 3 years Nil 11 Rape 25 years 4 years 2 years 14 Indecent assault 10 years 9 months 6 months Total Effective Sentence: 9 years Non-parole period: 6 years Pre-sentence Detention Declared: 171 days Other orders: Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958; Sentenced as a serious sexual offender in respect of Charges 3, 4, 5, 6, 8, 9, 10, 11 and 14 pursuant to s 6F of the Sentencing Act 1991; Forfeiture order; Sex Offenders Registration with a reporting period for life pursuant to s 11 of the Sex Offenders Registration Act 2004.
The offences for which the appellant was convicted were committed against three complainants, GF, WL and SK. The offences occurred in a relatively short space of time between 2010 and 2012 at the appellant’s home. The appellant operated an alcoholic detoxification and rehabilitation organisation known as Melbourne Alcoholics Recovery Service (‘MARC’). The appellant’s home was used to provide accommodation to, and to assist in the rehabilitation and detoxification of, alcoholics.
During the course of the trial, the judge ruled that the evidence of all three complainants was cross-admissible as coincidence evidence. While the Crown also sought to lead this evidence as tendency evidence, the judge (correctly in our view) did not permit this.
On 6 August 2014, Neave JA granted the appellant leave to appeal against his convictions on the following grounds:
1The judge erred in finding that there was evidence in relation to the complainant GF that was admissible on a coincidence basis in relation to the complainants WL and SK.
2The judge’s refusal to sever the charges relating to GF from the charges relating to WL and SK resulted in a substantial miscarriage of justice.
Her Honour stated her reasons for granting leave in the following terms:
The trial judge applied the correct legal principles in determining whether GF’s evidence was cross-admissible … However as this Court acknowledged in Velkovski [sic] there have been considerable variations in the way the principles relating to admission of coincidence have been applied to particular factual circumstances. Reasonable minds may differ as to whether, on the facts in this case, the evidence of GF was admissible in determining the charges relating to the other two complainants. Moreover, even if the evidence was not cross-admissible the question is whether there was a miscarriage of justice because the charges relating to GF were not severed from the other charges.
Having regard to the difficulties applying the law to the facts which arise in this case, I consider the application for leave to appeal should be granted on Grounds 1 and 2.
At the hearing before us, the appellant sought leave to add an additional ground of appeal as follows:
3The judge erred in directing the jury about the use of coincidence reasoning in that:
(a)the direction failed to make it sufficiently clear that the jury could not treat the bare fact that there were multiple complainants as a matter which made the allegations against the appellant more likely to be true;
(b) the direction invited tendency reasoning; and
(c)the direction failed to make it sufficiently clear that a coincidence inference could only be drawn if a jury was satisfied beyond reasonable doubt that the witnesses’ accounts were independent.
The circumstances of the offending
The first complainant
The first complainant, GF, was a Salvation Army volunteer. The appellant had met her more than 10 years previously, when she had drug and alcohol problems. At that time she had stayed at the appellant’s house for about a month after leaving another rehabilitation centre. Later she had seen him at Alcoholics Anonymous meetings while she was living in Melbourne. They kept in touch after she moved to Albury.
GF had volunteered to come to Melbourne to assist the appellant at MARC. Her father had recently died and she thought that volunteering might help alleviate her grief. The appellant drove to Albury to pick her up, and they returned to Melbourne on 4 January 2011. The appellant told GF that she could stay in a bungalow at the rear of the appellant’s home. When they arrived in Melbourne early in the morning the appellant offered her some sleeping tablets, which she believed were Valium. She initially declined but later took the tablets. That evening, GF was watching television and the appellant asked her to come and sit next to him and give him a kiss. The complainant refused.
On the following evening, the appellant walked up to the complainant wearing only his underpants. He grabbed her on the breast, twisted her nipple, causing her some pain, saying that he wanted ‘a root’ (charge 1).
The next day the appellant and GF went to Flemington Racecourse where an altercation took place between them after she attempted to talk to a woman to whom the appellant gave some tablets, which he had said she needed to help her detoxify from alcohol. GF said she argued with the appellant and told him that he should not be giving Valium to a woman who was so vulnerable.
When they returned to the appellant’s home in Preston, he took off his clothes and lay on the couch in his underpants. The complainant was crying and distressed and went to the bungalow. Soon after, she returned from the bungalow and made the appellant a cup of tea, in the hope that it would calm him down. The appellant and GF then went to Northland Shopping Centre.
After they returned to the house, GF was standing at the sink when the appellant approached her from behind, spun her around and pressed his mouth against hers. The appellant had an erection, which he pressed against GF. She pushed him away. The appellant then grabbed his penis and said, ‘Look what you've done to me, you've given me a fat’ (charge 2). During this incident the appellant placed his hand between GF’s legs and grabbed her (charge 3). After this incident GF was distressed and shaking. She called a friend in Albury who arranged for her to be picked up and taken to a motel.
The second complainant
The appellant met the second complainant, WL, through Alcoholics Anonymous. In around September 2010, WL was preparing to face a court proceeding for drink driving charges and she contacted the appellant for assistance. The appellant picked WL up at her parents’ home and took her to a bottle shop, which was closed, and then to a ‘pokies’ venue, where she bought alcohol with money provided by the appellant.
The appellant then drove WL back to her parents’ house and stopped the car in the street while they discussed assistance for her in court. When WL told the appellant that she did not have any money to pay him, he said that she was a ‘horny bitch’ and that he wanted to ‘fuck her’. The appellant then motioned to his groin and undid his fly so that WL could perform oral sex on him, which she proceeded to do. The prosecution relied on this conduct (which may, in fact, have been ‘consensual’) as an ‘uncharged’ sexual act which demonstrated the nature of the relationship between the appellant and WL.
In around December 2010, WL contacted the appellant to tell him that she had lost control of her drinking. The appellant drove to her parents’ house to pick her up and took her to his home where he provided her with alcohol, gave her Staminade, some vitamins and some Valium. The appellant then put WL to bed, in his bed, and told her that he was going out. WL woke in the morning to find the appellant in bed with her with his hands down her pants and his fingers in her vagina (charge 4). The appellant also touched her breasts (charge 5). WL tried to push the appellant away, but felt too weak and ill to resist. The appellant provided WL with a tablet to prevent her from being sick, then proceeded to insert his penis into her vagina until he ejaculated (charge 6). After the incident the appellant told WL that, ‘If you ever speak up expect to die. If you walk across the road expect to get run over’.
In either late January or February 2011, the appellant picked WL up from her parents’ house in a state of intoxication. He took her to his house and gave her Staminade, Valium and Vitamin B and she went to sleep in the appellant’s bed. When she awoke the appellant was penetrating her with his penis (charge 8).[1]
[1]The appellant was acquitted of charge 7, a charge of raping WL.
On a third occasion, also in around January or February 2011, the appellant picked up WL, who was intoxicated, gave her Valium and put her to bed. WL woke to the appellant touching her breasts and placing his fingers in her vagina. The appellant then raped her by placing his penis in her vagina (charges 9, 10 and 11).
The third complainant
The third complainant, SK, also met the appellant through Alcoholics Anonymous. In December 2011, she attended a meeting with him and then accompanied him to his home. On the way, he became angry with her. Once they arrived, the appellant told SK that she needed to take a greyish blue pill. This caused SK to have difficulty seeing and standing up and she collapsed on the bed.
The following day, the appellant and SK went to another Alcoholics Anonymous meeting. After the meeting, they returned to the appellant’s home. Again, the appellant told her that she needed to take a pill. The appellant attempted to force SK to swallow this pill. SK told the appellant the pill was much too strong and managed to avoid swallowing it, retreating to the bungalow at the rear of the premises to spit it out. While she was in the bungalow, SK telephoned a friend for help. During the call the appellant forced his way into the bungalow. The appellant was swearing and yelling. He pushed SK onto the bed, licked her, kissed her and said that he loved her. The appellant then pinned her down by the arms and shoulders and lay on top of her (charge 14).[2] SK told the appellant to get off, grabbed the telephone and managed to leave the room. SK climbed the fence, ran through a neighbour’s property and was picked up by a friend who had come to her assistance.
[2]The appellant was acquitted of charges 12 and 13, two charges of raping SK.
The tendency and coincidence ruling
The judge’s ruling on cross-admissibility deals also with the question of severance. While the appellant conceded at trial that the evidence of WL and SK was cross-admissible (and that no question of severance arose in respect of the charges involving those complainants), the appellant disputed the cross-admissibility of GF’s
evidence, and contended that the charges in respect of GF should be severed from the indictment.[3]
[3]There was a fourth complainant S, the charge in respect of whom the judge severed, and about which no complaint is now made.
Having identified the charges, the judge said that, as he had previously foreshadowed with counsel, he would not allow the Crown to run both tendency and coincidence in the same trial. As the judge put it (correctly in our view), ‘it is simply too complicated and too difficult’.
The judge then said:
Properly analysed, the only basis for joinder in this case [the GF charges with the WL and SK charges] is on a coincidence basis as there is such an underlying unity between the allegations made by each of the complainants that warrants them being joined. In my view, there is nothing to displace the presumption of joinder under s 193 of the Criminal Procedure Act.
Turning then to the underlying unity, the judge said:
As to the GF charges, in my view there is as I have said, an underlying unity between the evidence of all the remaining complainants [GF and WL and SK]. Each of the complainants may be described as vulnerable women or classed as vulnerable women. They all met the accused through Alcoholics Anonymous and became involved with him because of his work with alcohol affected women. Indeed, at the time of the alleged offences each of them were involved with him in his work either as a proposed alcohol counsellor in the case of GF, or as an alcohol dependent client in relation to the other two complainants.
Each of them were supplied with Valium by the accused man. All were sexually assaulted in one way or another by the accused man. All were sexually assaulted by him when they were staying at [the accused’s home], the detoxification house, and all were allegedly assaulted in that house.
The judge went on:
What is necessary is that the disputed evidence should make more likely to a significant extent the facts that make up the elements of the offence charged. In my view there is that underlying unity demonstrated by the factors that I have indicated.
If the jury accepts beyond reasonable doubt that sexual activity alleged by any one of the complainants occurred, they could use that fact in determining whether or not sexual activity of the type alleged by the other complainants occurred. That is, how likely is it or how improbable is it that three women in such similar circumstances would make what the jury may find are similar allegations against the accused man, especially in the context of him making blanket denials in his record of interview of any sexual activity at all.
In my view the evidence of each complainant has significant probative value in relation to the evidence of the other complainants, such probative value outweighs any potential prejudice to the accused in joinder of the charges.
The cross-admissibility of GF’s evidence as coincidence evidence: ground 1
The principles in relation to the reception of coincidence evidence were discussed by this Court in CV v DPP.[4] In CV, the Court said:
Although coincidence reasoning — the improbability that different events occurred coincidentally having regard to the similarities in the events or in the circumstances in which they occurred — owes its origins to similar fact reasoning at common law, which required the evidence to possess ‘striking similarity’, it is not necessary that the evidence possess that specific characteristic.The probative value of evidence may not lie in it displaying a ‘striking similarity’, ‘system’ or ‘pattern’, all of which might require the identification of points of similarity or in there being an ‘underlying unity’ in the events relied upon.[5] In Phillips v The Queen,[6] the High Court considered whether the evidence of five different complainants who alleged they were raped by the appellant was cross-admissible as similar fact evidence under s 132A of the Evidence Act 1997 (Qld). In the joint judgment of the Court, it was observed that it was not a necessary condition for admissibility that the features of striking similarity, underlying unity, or pattern or signature system need be present so long as for some identifiable reason the high probative value necessary to overcome prejudice existed.[7]
There may be such a relationship between the events in purpose, circumstances and mode of conduct that coincidence reasoning will be open. The necessary relationship is not confined to events, each of which possesses unusual characteristics in its execution. The evidence of each may provide strong support for the others, making it just to admit them all notwithstanding the prejudicial effect of admitting the evidence.[8]
The cogency and significance of the events or the surrounding circumstances will depend on the issue to be proved, as well as on the nature of the evidence. The issue may be whether a particular person committed the acts, whether the acts were committed at all, or the state of mind of the person performing the acts. Crown notices of coincidence reasoning generally include ‘state of mind’ as an issue to which the evidence the subject of the notice is directed. Where the offences charged do not require proof that a specific intent accompanied the actus reus of the offence, the primary issue will most often be whether the events the subject of the coincidence evidence occurred or the identity of the person who committed the acts, the intention of the person to commit the acts rarely being a real issue.[9]
[4][2014] VSCA 58 (‘CV’).
[6](2006) 225 CLR 303.
[7]KRI v The Queen (2011) 207 A Crim R 552; GBF v The Queen [2010] VSCA 135, [28]; R v Ford(2009) 201 A Crim R 451, 465-6 [38]; R v PWD(2010) 205 A Crim R 75, 87–8 [64]–[65].
[8]DPP v P [1991] 2 AC 447, 462 (Lord Mackay of Clashfern LC).
[9]Ibid [9]–[11] (citations in original). See further, Velkoski v The Queen [2014] VSCA 121, [166]–[177].
The issue at trial was whether the appellant had performed the acts about which the complainants gave evidence. That issue had to be resolved against the background of the defence advanced in the appellant’s record of interview that not only had those events not occurred, but that he had no sexual interest whatsoever in any women at that stage of his life (he being aged 70 at the time). In his charge, the judge summarised the prosecution’s case on coincidence reasoning in the following terms:
Now, in addition, in this case the prosecution rely upon coincidence reasoning. That is, it claims that it is improbable that all of these allegations by the three complainants separately occurred by coincidence. The prosecution point to what it claims are similarities in the allegations of all the complainants, both in relation to what is said to have occurred to them and the circumstances in which they occurred and its surrounding circumstances and argue that it is unlikely or improbable that each of these complainants would make similar complaints unless the events alleged actually occurred.
So, what the prosecution are relying upon are the totality of the evidence and asking you how probable or improbable is it that these three women would say the same - what they suggest to you, the same sort of thing happened to them in similar circumstances. So, indeed, it is effectively asking you to look at the total picture when you consider individual counts.
The prosecution say that you should view the evidence of each of GF, SK and WL as independent witnesses. They did not know each other, and there is no suggestion, the prosecution say, that there has been any collusion or concoction or, indeed, innocent infection of the evidence between them. Each, the prosecution argue, had an alcoholic background. Each met Mr Cox through Alcoholics Anonymous or MARC. Each were vulnerable women. SK and WL were alcoholics and GF an ex alcoholic, grieving for the loss of her father. Each were staying at [the appellant’s home], where each of the alleged offences occurred, all in the same location. All the alleged offences were said to be non-consensual activity with the accused man and all took place in approximately the same timespan over a period of less than 12 months and all complainants were allegedly given medication by [the appellant]. As far as GF was concerned, it apparently had no effect, but there was no legitimate reason why she would be given that medication, and the inference the Crown invites you to draw is that it was given to try and, in effect, make her more amenable to sexual approach.
The prosecution invite you to draw an inference from these similarities. They argue that it is utterly improbable that three independent women would make up such similar allegations, each alleged to have occurred in such similar circumstances. The only reasonable inference open, contend the prosecution, is that they say such similar things about crimes at the hands of the accused because they are each telling the truth, that is, that the events actually occurred.
In summary, the judge put to the jury that the similarities in the circumstances and conduct of the appellant’s alleged offending that would permit the jury to engage in coincidence reasoning were as follows:
(a) each complainant had an alcoholic background;
(b)each complainant met the appellant through Alcoholics Anonymous or MARC;
(c) the complainants were vulnerable women;
(d)each complainant was staying at the appellant’s home, where each of the alleged offences occurred;
(e)all of the alleged offences involved non-consensual activity with the appellant;
(f)the offences occurred in approximately the same timespan over a period of the order of 12 months;
(g)all of the complainants were allegedly given medication by the appellant;
(h)there was no legitimate reason for the appellant to give each of the complainants Valium or, indeed, any other medication.
One might debate the relevance of the alleged offences being non-consensual, and precisely what might be meant by the expression ‘vulnerable’, but no objection was taken by the appellant’s counsel at trial to the way in which the judge put the similarities contended for by the Crown to the jury. In any event, looking at the matter for ourselves, we are not persuaded that the judge erred in ruling that coincidence reasoning was open to the jury in respect of the three complainants. While one could identify differences between the conduct and circumstances in relation to GF on the one hand, and the conduct and circumstances in relation to WL and SK on the other hand, we are not persuaded that those differences required the judge, in the proper application of ss 98(1) and 101(2) of the Evidence Act 2008, to reject the Crown’s application to rely upon the evidence of all three complainants as coincidence evidence.
In our view there was a sufficient underlying unity between the circumstances of the offending in the case of each complainant and the appellant’s conduct to permit the prosecution to go to the jury on the basis that coincidence reasoning was available in respect of all three complainants. Specifically, there was an underlying unity in the facts that each of the complainants had met the appellant through Alcoholics Anonymous or MARC; the complainants were each staying in the appellant’s home, and being cared for, or looked after, by him, when and where the offending occurred; and the circumstances of the offending involved the prior giving of Valium or consciousness-impairing medication by the appellant to each complainant.
In argument, counsel for the appellant sought to diminish the use that might be made of the evidence that the appellant gave each of the complainants Valium by pointing to other parts of the evidence that suggested that the appellant had given Valium to people other than the complainants on other occasions. In our view, while such evidence had the capacity to diminish the significance (in terms of the existence of a relevant similarity or underlying unity) that might be placed upon the evidence of the appellant giving the complainants Valium as part of the circumstances permitting coincidence reasoning to be engaged in, ultimately this issue was a matter for argument in front of the jury. It was not a matter which, of itself, negated the cross-admissibility of the evidence as coincidence evidence.
In short, we see no error in the judge’s coincidence ruling concerning the principles to be applied[10] — or the application of those principles — in accordance with the requirements of ss 98 and 101 of the Evidence Act 2008.[11]
[10]Velkoski v The Queen [2014] VSCA 121; CV v DPP [2014] VSCA 58; R v Papamitrou (2004) 7 VR 375.
[11]Cf Dibbs v The Queen (2012) 225 A Crim R 195, 211-212 [78].
Severance in respect of the charges relating to GF: ground 2
There being no error in the judge’s ruling that the evidence of GF was cross-admissible with the evidence of WL and SK, there is no basis for contending that the judge was wrong to decline to sever the charges relating to GF from the indictment. Accordingly ground 2 must be rejected.[12]
[12]Cf ss 193 and 194 of the Criminal Procedure Act 2009.
The judge’s charge about coincidence reasoning: proposed ground 3
In seeking leave to add proposed ground 3, the appellant contended that the judge’s charge in relation to coincidence evidence was defective in three respects. First, it was submitted that the judge charged the jury that coincidence reasoning was available simply because there were three complainants. Secondly, it was submitted that at one point in his charge the judge gave a direction more appropriate to tendency reasoning, and that this part of the charge ‘almost invited the jury to engage in propensity reasoning’. Thirdly, it was submitted that in one sentence of his charge the judge appeared to reverse the onus of proof — suggesting that it was for the appellant to establish as a ‘reasonable prospect’ that one or more of the complainants’ accounts were the subject of an outside influence or contamination.
There is no substance to any of these submissions. In the course of his charge, the judge made it plain that it was not the mere fact that there were three complainants that permitted coincidence reasoning to be engaged in — but rather (if the jury so found) it was the similarities in the accounts given by the three complainants, and therefore the underlying unity between them, that enlivened the ability of the jury to engage in coincidence reasoning.
As to the appellant’s second submission (that the judge’s charge contained material more appropriate for a case involving tendency evidence and that this part of the charge, in effect, invited propensity reasoning), the judge gave a clear and detailed direction to the jury that they were not to engage in propensity reasoning. Additionally, the judge directed the jury that they were not to substitute the evidence of one complainant to bolster or prop up the prosecution case in relation to another complainant. At no time did the judge say anything that might have invited the jury to engage in propensity reasoning.
So far as the appellant’s third complaint is concerned, the judge said:
It is for you to determine whether or not GF, SK and WL are telling the truth. However, you may only draw an inference from the fact that they have given similar accounts if you are satisfied beyond reasonable doubt that their accounts were not contaminated or influenced in the way suggested to you by the defence. If you thought there was a reasonable prospect that one or more of their accounts were influenced or contaminated in the way that [the appellant’s counsel] suggested to you, you, of course, could not draw any conclusion from similarities because they are not in — the whole basis of the coincidence reasoning is that they are independent, uncontaminated versions.
It is the third sentence in this part of the charge that the appellant takes issue with. While it may have been better if the judge had not said what he said in the third sentence, this sentence immediately follows the judge telling the jury that they must be satisfied beyond reasonable doubt that the complainants’ accounts were not contaminated or influenced in the way suggested by the defence. Further, this direction repeated what the judge had previously said on a number of occasions. When one reads the impugned sentence in its context, one is left in no doubt that the judge conveyed to the jury, in the clearest of terms, that they had to be satisfied beyond reasonable doubt that the complainants’ evidence was independent and uncontaminated before they could engage in coincidence reasoning. We are fortified in this view by the fact that trial counsel for the appellant took no objection to this part of the charge, nor made any submission that at any point in the charge the judge did, or might have, reversed the onus of proof.
In the result, proposed ground 3 is without substance. Accordingly, the appellant’s application to add proposed ground 3 will be refused.
Conclusion
The appeal must be dismissed.
- - -
[5]Thompson v The Queen(1989) 169 CLR 1, 39–40 (Gaudron J).
5
0