Buchanan (a pseudonym) v The Queen

Case [2022] VSCA 130
SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0022

ALBERT BUCHANAN (a pseudonym)[1] Applicant
v
THE QUEEN Respondent

[1]To prevent any risk of prejudice in the proper administration of justice, 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, BEACH and T FORREST JJA
WHERE HELD: Melbourne
DATE OF HEARING: 23 June 2022 
DATE OF JUDGMENT: 30 June 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 130
JUDGMENT APPEALED FROM: DPP v [Buchanan] (Ruling No 1) (Unreported County Court of Victoria, Judge Stuart, 11 August 2021)
DPP v [Buchanan] (Ruling No 2) (Unreported, County Court of Victoria, Judge Stuart, 27 October 2021)
DPP v [Buchanan] (Ruling No 3) (Unreported, County Court of Victoria, Judge Stuart, 22 February 2022)

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CRIMINAL LAW – Interlocutory Appeal – Sexual offences against teenage females – Five complainants – Offending in relation to four complainants alleged between 1985 and 1989 – Offending in relation to one complainant alleged between 2001 and 2002 – Whether judge erred in ruling complainants’ evidence was cross-admissible as tendency evidence – Whether probative value of tendency evidence substantially outweighed any prejudicial effect – Whether judge should have severed indictment – Evidence cross-admissible – No basis for severance – Leave to appeal refused – Hughes v The Queen (2017) 263 CLR 338; R v Bauer (a pseudonym) (2018) 266 CLR 56; McPhillamy v The Queen (2018) 361 ALR 13 considered – Evidence Act 2008 ss 97, 101(2).

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Counsel
Applicant: Mr G Casement and Ms L Andrews
Respondent: Mr D Glynn and Mr P Pathmaraj

Solicitors
Applicant: Tony Hargreaves & Partners
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
T FORREST JA:

Introduction

  1. Pursuant to certification[2] granted by a judge of the County Court on 22 February 2022, the applicant seeks leave to appeal against three rulings (‘the rulings’ or ‘the interlocutory decisions’).  The rulings – Ruling 1,[3]  Ruling 2[4] and Ruling 3[5] – concern the admissibility of tendency evidence under the Evidence Act 2008 (‘the Act’) and severance.  There are two principal issues.  The applicant contends, first, that the judge was wrong to find that the evidence of five complainants concerning conduct founding charges in a 10 charge indictment was cross-admissible as tendency evidence; and, secondly, that the judge erred in failing to sever the indictment.

    [2]See ss 295(3)(a) and (b) of the Criminal Procedure Act 2009 (‘CPA’).

    [3]DPP v [Buchanan] (Ruling No 1) (Unreported, County Court of Victoria, Judge Stuart, 11 August 2021) (‘Ruling 1’).

    [4]DPP v [Buchanan] (Ruling No 2) (Unreported, County Court of Victoria, Judge Stuart, 27 October 2021) (‘Ruling 2’).

    [5]DPP v [Buchanan] (Ruling No 3) (Unreported, County Court of Victoria, Judge Stuart, 22 February 2022) (‘Ruling 3’).

  2. As will appear, we consider that the judge’s decisions on both principal issues was open to him.  We would thus refuse leave to appeal.  Our reasons follow.

Background

  1. The application for leave to appeal…

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Buchanan (a pseudonym) v The Queen [2022] VSCA 130
Case
[2022] VSCA 130
Decision Date

CaseChat Overview and Summary

Buchanan appealed against the decision of a trial judge to admit cross-admissible evidence in his trial for sexual offences against five complainants. Four complainants alleged that the offences against them occurred between 1985 and 1989, while the fifth complainant alleged offences between 2001 and 2002. Buchanan argued that the trial judge erred in ruling that the complainants’ evidence was cross-admissible as tendency evidence and that the probative value of that evidence substantially outweighed any prejudicial effect it may have. He also argued that the judge should have severed the indictment. The primary issues for the court were whether the judge correctly admitted the cross-admissible evidence and whether the judge should have severed the indictment.

The court found that the judge did not err in admitting the cross-admissible evidence, as the probative value substantially outweighed any prejudicial effect. The court found that there were common features linking the offending, which was significant in demonstrating a tendency to act in a particular way, increasing the likelihood that the account of the offence under consideration was true. The court also found that there was no basis for severance of the indictment. Buchanan's argument for severance was rejected because it did not meet the threshold for severance under the Evidence Act 2008. The court held that the evidence of each complainant was relevant to proving the offences against the other complainants, and that the judge did not err in admitting the cross-admissible evidence.

The court dismissed Buchanan's appeal and refused leave to appeal to a higher court. The court found that the judge correctly admitted the cross-admissible evidence and that there was no basis for severance of the indictment. The probative value of the evidence substantially outweighed any prejudicial effect, and the common features linking the offending were significant in demonstrating a tendency to act in a particular way.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Where tendency evidence is sought to be relied upon by the prosecution in a criminal case, it is not enough for tendency evidence merely to have significant probative value. Thus, s 101(2) provides that tendency evidence cannot be used against an accused person unless the probative value of the evidence substantially outweighs any prejudicial effect it may have:101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution …(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In Bauer, the High Court made it clear that, in a case involving a single complainant, proof of the accused’s commission of a sexual offence against the complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, if the two are not too far separated in time:[45]Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together.[46] In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.[47][45]Bauer, 83 [50] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations as in original).[46]See [CPA], s 194.[47]HML v The Queen (2008) 235 CLR 334 at 397–398 [168], 401–402 [181] per Hayne J. The Court also made it clear in Bauer that, in cases such as the present which involve multiple complainants, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another, the logic of probability reasoning dictates there must be some feature of or about the offending which links the two together:[48]In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant.[49] If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.Hughes illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants.[50] It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority[51] on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.By contrast, in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. …[48]Bauer, 87–8 [58]–[60] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations as in original; emphasis added).[49]See HML v The Queen (2008) 235 CLR 334 at 354 [11]–[12] per Gleeson CJ; at 382–383 [105] per Hayne J (Gummow J and Kirby J agreeing at 362 [41], 370 [59]); GBF v The Queen [2010] VSCA 135 at [26]; BBH v The Queen (2012) 245 CLR 499 at 525 [70]–[71] per Hayne J (Gummow J agreeing at 522 [61]).[50]See Hughes v The Queen (2017) 263 CLR 338 at 358-360 [44]–[54] per Kiefel CJ, Bell, Keane and Edelman JJ.[51]Hughes v The Queen (2017) 263 CLR 338 at 361–362 [57]–[60] per Kiefel CJ, Bell, Keane and Edelman JJ.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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