Cano (a pseudonym) v The Queen
[2020] VSCA 308
•1 December 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0234
| ETHAN CANO (a pseudonym)[1] |
| v |
| THE QUEEN |
[1]Because this is an interlocutory appeal, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | NIALL, T FORREST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 November 2020 |
| DATE OF ORDERS: | 26 November 2020 |
| DATE OF REASONS: | 1 December 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 308 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1641 (Ruling No 1) [2020] VCC 1713 (Ruling No 2) (Judge Higham) |
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CRIMINAL LAW – Interlocutory appeal – Evidentiary ruling – Pending trial of applicant for soliciting child pornography, procuring child outside of Australia to engage in sexual activity, using carriage service to groom person believed to be under 16, and transmitting indecent communications to person under 16 – First and second complainants in Canada – Third complainant undercover operative in Australia – Tendency notice seeking cross-admissibility filed by prosecution – Whether evidence regarding each complainant cross-admissible to support proof of applicant’s belief that complainants under 16 – Applicant sought severance on charges relating to undercover operative – Tendency evidence admissible – Severance application refused – Trial judge refused to certify as decision not attended by sufficient doubt to warrant certification – Trial judge’s refusal to certify and evidentiary ruling correct – Application to review refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms R Shann and Mr R de Vietri | Victoria Legal Aid |
| For the Respondent | Mr S Ginsbourg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
NIALL JA
T FORREST JA
WEINBERG JA:
Introduction
On 26 November 2020, this Court heard an application, pursuant to ss 295(2) and 296(1) of the Criminal Procedure Act 2009 (‘CPA’), to review a trial judge’s refusal to certify, and a consequential application for leave to appeal against an interlocutory decision by that judge. At the conclusion of oral submissions, the Court ordered that the application to review the judge’s refusal to certify should be dismissed. We said that we would publish our reasons in due course. These are those reasons.
Background facts
The applicant faces trial in the County Court on an indictment charging him with soliciting child pornography[2] (three charges — charges 2, 4, and 7); procuring a child to engage in sexual activity outside of Australia[3] (one charge — charge 3); using a carriage service to groom a person believed to be under 16[4] (one charge — charge 6); and using a carriage service to transmit indecent communications to a person under 16[5] (three charges — charges 1, 5, and 8).
[2]Criminal Code Act 1995 (Cth) sch 1 s 474.19(1).
[3]Ibid s 272.14(1).
[4]Ibid s 474.27(1).
[5]Ibid s 474.27A(1).
The charged offences are alleged to have been committed against three separate complainants. The first and second, ‘TC’ and ‘MT’, were young girls who lived in Canada at the time of the alleged offending. They were then aged 14 and 13, respectively. The third complainant, ‘Hannah’ was, in fact, a member of the Australian Federal Police (‘AFP’). She was posing as a child aged between 14 and 15 at the time of the alleged offences.
By notice dated 22 July 2020, the prosecution foreshadowed that it sought to adduce evidence that would establish that the applicant had a tendency to act in a particular way, or that he had a particular state of mind.[6]
[6]The Evidence Act 2008 s 97(1) (‘Evidence Act’) sets out the tendency rule and requires the evidence in question to have ‘significant probative value’ if such evidence is to be adduced.
With regard to the applicant’s state of mind, the prosecution sought to rely upon his alleged ‘sexual interest in young girls under the age of 16.’
As regards the tendency to ‘act in a particular way’, the prosecution sought to rely on the following particulars:
(a)The accused communicated online with people whom he believed were or might be teenage girls and aged under 16 (‘the recipients’).
(b)The accused used Snapchat for nearly all of these communications, and he had a distinctive style of communicating.
(c)The accused attempted to persuade the recipients to transmit to him images, videos or live footage that was indecent or pornographic in that it would depict the recipients in one or more of the following circumstances —
(i)partially or fully naked,
(ii)showering,
(iii)washing themselves, or
(iv)engaged in a sexually suggestive activity such as sucking on an object.
(d)The accused attempted to persuade the recipients to participate in video calls in which he they could see him masturbating whilst the events of the kind referred to in paragraph (c) were occurring.
(e)The means of persuasion used by the accused included the following —
(i)telling the recipients that he was romantically interested or sexually attracted to them, and
(ii)telling the recipients that they would gain his trust if they complied.
(f)The accused later threatened the recipients who provided these images and videos that he was going to disseminate the material.
In pre-trial written submissions dated 7 August 2020, the applicant sought, pursuant to s 193(3) of the CPA, to have charges 1–5 (relating to TC and MT), severed from charges 6–8 (relating to Hannah). This was said to be on the basis that:
[I]f the application to adduce tendency evidence brought by the prosecution is unsuccessful [sic] there would be clear prejudice to the accused such that the severance sought should be ordered.
Between 25 and 28 August 2020, the trial judge heard detailed argument in relation to the prosecution’s tendency notice, and in relation to the application for severance. Just under two months later, on 15 October 2020, his Honour delivered his ruling on the matter. Largely by reference to Hughes v The Queen,[7] he held that the evidence concerning charges 1–5 would be cross-admissible in relation to charges 6–8 and, conversely, that the evidence relating to charges 6–8 would be cross‑admissible as regards charges 1–5. He ruled that all of this evidence was admissible, pursuant to s 97 of the Evidence Act, as tendency evidence bearing upon the prosecution’s contention that the applicant believed, at all material times, that the recipients of his communications were all under 16.
[7](2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).
The judge said that in order to mitigate any prejudicial effect which that evidence might otherwise have, he would give directions to the jury making it clear how they were to deal with it. In addition, having ruled that the evidence was cross‑admissible, his Honour refused the application for severance.
On 29 October 2020, counsel for the applicant asked his Honour, pursuant to s 295(3)(b) of the CPA, to certify that his ruling was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[8] Later that same day, his Honour ruled that although he accepted that his decision regarding cross‑admissibility met the statutory requirement of ‘sufficient importance’ to the trial, it was not attended by ‘sufficient doubt to warrant certification.’[9] Accordingly, the request to certify was refused.
[8]DPP v [Cano] (No 2) [2020] VCC 1713, [2]. In PNJ v DPP (2010) 27 VR 146; [2010] VSCA 88, this Court held that ‘where the question of cross-admissibility is bound up with the question of separate trials, the interlocutory decision should not be characterised as a decision concerning evidence. In substance, if not in form, the decision concerns the whole of the trial’ and that, accordingly, such an application be brought under s 295(3)(b), rather than s 295(3)(a), at 153 [33].
[9]DPP v [Cano] (No 2) [2020] VCC 1713, [3].
By notices dated 10 November 2020, the applicant sought, firstly, a review of the judge’s refusal to certify, pursuant to s 295(3)(b). That application was based on a single ground:
That his Honour erred in failing to find that his ruling was attended by sufficient doubt to warrant an appeal.
Secondly, the applicant sought leave to appeal against the judge’s evidentiary ruling, and his refusal to grant severance.
There were three grounds in support of that application for leave to appeal:
1.That his Honour erred in finding that the tendency evidence has significant probative value, in particular:
(a)in finding that the evidence on charges 1 to 5, that relate to the first and second complainants, has the capacity to make more probable to a significant degree the defendant’s belief that the third complainant was under the age of 16;
(b)in finding that the evidence on charges 6 to 8, that relate to the third complainant, has the capacity to make more probable to a significant degree the defendant’s belief that the first and second complainants were under the age of 16;
(c)in finding that the evidence in relation to the third complainant in which requests were made for shower pictures and the use of trust as a means to obtain intimate images makes more probable to a significant degree that the sexualised requests, conversations and sending of files occurred as alleged by the first and second complainants; and
(d)in finding that the probative force described in particular (c) above was not diminished by any knowledge the third complainant (an under-cover operative) may have had of the communications of the first and second complainant, and her direction, if any, of the conversation with the accused.
2.That his Honour erred in finding that the probative value of the tendency evidence was not significantly outweighed by the prejudicial effect on the accused.
3. That his Honour erred by failing to sever charges 6 to 8.
The judge’s evidentiary ruling
The judge, in his evidentiary ruling, set out the following passage from Hughes:
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 potential victims such as to demonstrate a ‘pattern of conduct’ or ‘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.[10]
[10]DPP v [Cano] (No 1) [2020] VCC 1641, [58] (‘Reasons’), quoting Hughes (2017) 263 CLR 338, 361 [57] (Kiefel CJ, Bell, Keane and Edelman JJ).
His Honour accepted that there was sufficient commonality in the evidence concerning the applicant’s communications with Hannah (as to the content of which there was no dispute) to support the inference that he, at all material times, believed she was 15.
The judge also concluded that the evidence with regard to TC and MT, which the applicant conceded was cross-admissible as regards charges 1–5, rendered it significantly more probable, as a matter of logic and common sense, that he believed Hannah was under 16, and had not merely been ‘testing her out’ as he claimed.
The judge held, therefore, that the evidence with regard to TC and MT had significant probative value in relation to the charges arising out of the communications with Hannah. He observed that this tendency evidence would assist in overcoming any hesitation, on the part of the jury, as to whether the applicant genuinely believed Hannah when she said that she was only 15.
Further, the judge concluded that the evidence of the applicant’s communications with Hannah rendered it significantly more probable, as a matter of logic and common experience, that the offending concerning TC and MT had occurred, as they claimed. His Honour added that this evidence concerning the conversations with Hannah would bolster the credibility of TC and MT when they claimed that they had told the applicant their true ages.
Finally, the judge concluded that the probative force of the evidence of the conversations with Hannah was not relevantly diminished by the fact that the AFP operative had knowledge of certain of the communications with TC and MT, though not all.
Overall, the judge was satisfied that this tendency evidence rendered it significantly more likely that each of the elements of the charged offences would be established. He concluded that the evidence of the applicant’s communications ‘almost bears a hallmark of a significant modus operandi’[11] and that, either on its own, or with the other evidence, would have significant probative value.
[11]Reasons [62].
As to unfair prejudice, the judge made it clear that he would issue a strong direction to the jury as to how this tendency evidence could permissibly be used. He said:
They will be told in the clearest terms that evidence of tendency alone can never support a verdict of guilty beyond reasonable doubt. They will be told that a verdict of guilty can only be reached if satisfied of the charge under consideration beyond reasonable doubt …[12]
[12]Ibid [65].
Applicant’s written submissions
The refusal to certify
In his written summary of contentions, the applicant merely repeated what had been set out in his notice seeking review of the refusal to certify. In other words, he argued that, contrary to the judge’s finding, his ruling was attended by sufficient doubt to warrant certification.
The interlocutory appeal
With regard to ground 1, the applicant submitted that even a pre-existing sexual interest in persons of a particular age group (under 16), combined with a willingness to act on that interest, could not rationally affect the assessment of whether he had an actual knowledge, or belief, that the recipients of his communications were aged under 16. He argued that such a tendency could only be relevant in a very general sense, but could not, as a matter of logic, be significantly probative of his actual knowledge or belief regarding the complainants’ ages. He submitted that the particulars relied upon by the prosecution, in its tendency notice, did not demonstrate a sufficient commonality to meet the statutory requirement, in s 97(1), of ‘significant probative value’.
The applicant also submitted that the evidence regarding the offences involving Hannah (charges 6–8) was of limited probative value, particularly in relation to charges 1–5. This was because, unbeknown to the applicant, she was actually an undercover AFP operative, seeking to ‘entrap’ him into communications of a sexual nature. It was contended, therefore, that the evidence of his dealings with Hannah did not ‘go far to illuminate … the applicant’s inherent tendency to have a particular state of mind or engage in particular acts.’
As to ground 2, it was submitted that even if the evidence concerning the communications with Hannah were otherwise to be regarded as significantly probative, the fact that they were the product of an AFP ‘agenda’ meant that they would import into the trial a high level of unfair prejudice. This would outweigh any probative value they might otherwise have had. A jury would be unlikely to be able to distinguish the topics of conversation that were raised by the applicant, of his own volition, and those which had been prompted by the AFP operative. It was said that it might, therefore, give this evidence more weight than it properly merited.
Finally, as regards ground 3, the severance ground, the applicant conceded that the fate of this ground was entirely dependent on whether the Court accepted grounds 1 and 2.
Respondent’s written submissions
The refusal to certify
In the respondent’s written summary of contentions, it was submitted that, as with applications for leave to appeal against interlocutory decisions in criminal matters, House v The King[13] principles governed applications for review of refusals to certify.[14] It was noted that this Court had, on a number of occasions, made it clear that it would ordinarily give considerable weight to a trial judge’s refusal to certify. It was submitted that this same restrictive approach should be adopted in this case.
[13](1936) 55 CLR 499; [1936] HCA 40 (‘House’).
[14]Peterson(a pseudonym) v The Queen (2019) 57 VR 521, 524 [11]; [2019] VSCA 12.
The interlocutory appeal
The respondent’s overall submission was that the judge’s application of the principles in Hughes, and his subsequent ruling, had been correct. With regard to Hughes, counsel observed that in a matter involving sexual offending against children, the effect of that decision is that significant probative value is more readily established than it might be in other areas of the law.
Counsel contended that the judge had been correct to find distinctive commonalities in the alleged offending against each of the complainants. These included the applicant’s sexualised requests to TC and Hannah for videos while they showered, his requests to TC and MT for videos of them sucking objects, and to Hannah for a video of her sucking her fingers.
They also included the distinctive way in which the applicant communicated with TC and MT (which involved him having created false personas), which was said to be a technique by which he succeeded in manipulating them.
In response to the applicant’s ‘entrapment’ argument, counsel for the respondent submitted that the judge had correctly rejected it. While the AFP operative may have instigated certain topics of conversation, it was the applicant who would persist, often in a highly sexualised manner, in discussing those matters.
As to whether the evidence concerning the applicant’s conversations with TC and MT were cross-admissible in relation to the charges involving Hannah, counsel submitted that the judge had correctly ruled in the affirmative. That evidence could be used to ‘assist in overcoming any hesitation’ the jury might have as to the applicant’s belief that Hannah was under 16, and would be significantly probative in that regard.
With regard to ground 2, the respondent submitted that the trial judge correctly concluded that a clear direction to the jury would reduce the risk of any unfair prejudice. It was further contended that there was no basis for speculating that a jury might reason in an irrational manner.
The oral submissions
At the commencement of oral argument, Ms Shann, appearing for the applicant, contended that Hughes had not lowered the standard of admissibility of tendency evidence in cases involving sexual offending against children. She submitted that the ratio of that case was that where a party sought to lead evidence of a tendency to act in a particular way, or to have a particular state of mind, it was necessary to identify, with sufficient particularity, what that tendency happened to be.
According to Ms Shann, it was only then that the evidence could be ‘significantly probative’ so as to meet the statutory requirement in s 97 of the Evidence Act. Her overall submission was that the prosecutor and, subsequently, the judge, had approached the alleged tendency in a broad and unstructured manner, and had, as a result, applied a lower hurdle for the prosecution to overcome than that which had actually been set down by Hughes.
Ms Shann also submitted that the prejudice to the applicant, by the prosecution and the judge’s use of this ‘lower hurdle’, would be compounded by the fact that the jury would be required to deal with a number of different burdens and standards of proof as regards the various charges. She noted that as regards charges 1, 3, and 5, it was incumbent on the applicant to prove, on the balance of probabilities, that he had a reasonable belief that TC and MT were each over 18. In relation to charges 2 and 4 (the child pornography charges), the prosecution will be required to prove that the applicant was reckless as to his belief that TC and MT were not under 18. Finally, with regard to the charges relating to Hannah (charges 6–8), the prosecution bear the burden of proving beyond reasonable doubt that the applicant believed that she was a child.
When the Court took Ms Shann through each of the particulars set out in the tendency notice, she agreed that the evidence regarding particulars (a)–(c) related to all three complainants. As regards particular (d), she noted that that particular only related to communications between the applicant and TC.
With regard to particular (e)(i), Ms Shann accepted that the evidence supported that alleged tendency in relation to TC, but submitted that it was ‘not altogether clear’ regarding MT. Further, as regards Hannah, Ms Shann accepted that there had been references to sexual attraction in the communications, but submitted that it was by no means clear how such references had been used ‘as a means of persuasion’.
With regard to particular (e)(ii), Ms Shann submitted that the way that ‘trust’ arose in the conversations with Hannah (as compared with how that matter arose with TC and MT), was of a quite different order. She accepted that the applicant had used ‘trust games’ in his communications with TC and MT. In those messages, he demanded videos of those complainants performing sexually suggestive acts, essentially as a means to gain his trust. On the other hand, it was Hannah who had first raised the question ‘what can I do to make you trust me?’ Ms Shann submitted that, accordingly, the concept of trust could ‘not properly [be] characterised as a game’, so far as Hannah was concerned.
Finally, as regards particular (f), Ms Shann submitted that the applicant, in his dealings with TC and MT, had made threats to disseminate the photographs and videos that they had sent to him. He had not, however, made any such threats to Hannah.
Ms Shann’s overarching submission was that the prosecution’s argument that a sexual interest in girls under 16, and a willingness to act upon that interest, provided only a weak evidentiary foundation for cross-admissibility. That tendency was neither sufficiently particular, nor sufficiently common, across the three complainants to meet the threshold of significant probative value. In granting the prosecution’s application to lead tendency evidence, the trial judge had reduced the particulars specified down to a ‘generic’ tendency, as manifested, in particular, in relation to the use of trust as a connecting factor.
When the Court reminded Ms Shann that it had been firmly established that applications to review refusals to certify were governed by House principles, she submitted that even if this was so, the judge’s finding that his ruling was not attended by sufficient doubt to warrant certification had been plainly wrong in that regard.
Mr Ginsbourg, appearing for the respondent, began by submitting that the High Court’s decision in Hughes had established that the ‘paramount influence of tendency may be sufficient [to meet the threshold test of “significant probative value]”, even if there is no more than a common thread of opportunism.’ He submitted that his Honour had been correct to apply the principles laid down in Hughes in the manner which he had.
With regard to the evidence concerning Hannah, Mr Ginsbourg submitted that it was sufficiently probative, by way of supporting the credibility of the accounts given by TC and MT, that the applicant, whilst aware that they were under 16, was prepared to act upon his sexual interest in girls of that age.
Further, as regards the applicant’s complaint of having been ‘entrapped’ by Hannah (which was said to distinguish her case from that of TC and MT), Mr Ginsbourg submitted that Hannah had been ‘friendly but not flirtatious’. He argued that it was the applicant, and not Hannah, who turned their non-sexual, but friendly, conversations into highly sexualised encounters. He submitted that the applicant’s behaviour was sufficiently distinctive to be maintained across a variety of circumstances, and that it had been well open to the judge to conclude that it had significant probative value.
Finally, Mr Ginsbourg submitted that, even if that threshold were met, the applicant’s contention that the judge should have refused cross-admissibility, on the basis that the probative value was ‘substantially outweighed’ by any prejudicial effect, should be rejected. He maintained that, given proper directions to the jury, there would be no such prejudicial effect of a kind contemplated by s 101(2) of the Evidence Act.
Conclusion
Before turning to the merits of the proposed application for leave to appeal, there are several preliminary obstacles that the applicant must overcome. The first is the judge’s refusal to certify, and the weight that should be accorded to it.
In Frazier (a pseudonym) v The Queen,[15] the following important statement of principle was laid down.
Given the significance which the legislation attaches to the requirement of certification, this Court will ordinarily attach considerable weight to the assessment made by the judge. As we have said, the statutory scheme makes certification a precondition of an application for leave to appeal.
…
Unmeritorious applications of this kind [involving, in Frazier, a complaint of lack of adequate particulars] are a misuse of Court time and a waste of (mostly public) money. Legal advisers to parties in criminal proceedings should bear steadily in mind that the procedure for interlocutory appeals is to be invoked responsibly and sparingly.[16]
[15][2017] VSCA 370 (‘Frazier’).
[16]Ibid [33], [36] (emphasis added).
To the same effect was the decision of this Court in Peterson (a pseudonym) v The Queen.[17] That case involved a challenge to an interlocutory decision permitting the prosecution to lead certain tendency evidence in a case involving sexual offending against a child. The tendency in question was described as being a ‘particular state of mind’, namely, a sexual interest in young female family members in the applicant’s care, and a willingness to act upon that interest.
[17](2019) 57 VR 521; [2019] VSCA 12 (‘Peterson’). See also, Lewis (a pseudonym) v The Queen [2018] VSCA 40, [42]; DPP v Jacobs (a pseudonym) [2020] VSCA 266.
The Court in Peterson noted that the requirements of certification in s 295(3) were intended to limit interlocutory appeals, thereby avoiding the fragmentation of criminal trials. Moreover, the legislature, by allowing for such appeals, did not intend the work of this Court to be inundated with evidentiary applications. Citing Director of Public Prosecutions v Pace[18] with approval, it was said that the regime for interlocutory appeals was not designed to cater for routine evidentiary rulings made in the course of criminal trials.[19]
[18](2015) 45 VR 276, 284 [26]; [2015] VSCA 18.
[19]Peterson (2019) 57 VR 521, 523 [8].
It was for that reason that s 295(3) erects a ‘barrier to certification’ in stringent terms.[20] Certification is not to be regarded as a mere formality. An application to review a refusal to certify faces a greater hurdle than does an application for leave to appeal where certification has been granted. The Court went on to say that the jurisdiction to review a refusal by a trial judge to certify is to be invoked ‘responsibly and sparingly’.[21]
[20]Ibid 523 [9]. See also DPP v Paulino (2017) 54 VR 109, 112 [8]; [2017] VSCA 38 (Weinberg JA).
[21]Peterson (2019) 57 VR 521, 524 [12], citing Frazier [2017] VSCA 370, [36].
The trial judge, having found that the ruling was of ‘sufficient importance’ to the trial to warrant certification, nonetheless refused to certify. His Honour concluded that his decision to permit cross-admissibility, and deny severance, was not attended by sufficient doubt to warrant certification.
In approaching the matter in that way, his Honour acted in accordance with a number of decisions of this Court in relation to interlocutory appeals in criminal matters. It is clear that even if one of the relevant limbs of s 295(3) is met, the judge must also consider whether the interlocutory decision is attended by sufficient doubt to warrant an appeal. A judge should refuse to certify any interlocutory decision where the appeal would be hopeless, or the decision is not attended by sufficient doubt.[22]
[22]See generally McDonald v DPP (2010) 26 VR 242; [2010] VSCA 45; Wells v The Queen (No 2) [2010] VSCA 294; MA v The Queen (2011) 31 VR 203; [2011] VSCA 13. See also, R v Bufton (Ruling No 2) [2019] VSC 264. Further, Croucher J recognised in R v Cerantonio (Ruling No 19) [2018] VSC 725, [10] that this can be an awkward task, as it involves consideration of whether one’s own decision might be wrong. His Honour observed that it is natural for a person to believe that their carefully and considered decision is correct. Nonetheless, that is the task that any trial judge, who is asked to certify, must confront.
The challenge to the judge’s refusal to certify, on the basis that, in his Honour’s opinion, his ruling was not attended by sufficient doubt to warrant certification, must confront the significant obstacle presented by the application of House principles. In other words, the applicant must either show that it was not open to his Honour to come to that conclusion (and that the only finding that was reasonably open was that the ruling was subject to sufficient doubt to justify the matter being dealt with by this Court), or that the decision itself was vitiated by House error.
It is clear from his Honour’s analysis of the tendency notice that he had regard to all relevant authorities dealing with the admissibility of such evidence, in particular, in relation to cross-admissibility and severance. He referred at some length to the decisions of the High Court in Hughes, R v Bauer (a pseudonym),[23] and McPhillamy v The Queen.[24] His discussion of the principles laid down in those cases was not challenged before this Court. Rather, the attack upon the interlocutory decision was based upon the application of those principles to the facts of this case itself.
[23](2018) 266 CLR 56; [2018] HCA 40 (‘Bauer’).
[24](2018) 361 ALR 13; [2018] HCA 52 (‘McPhillamy’).
Clearly, a decision of that kind involves an exercise of judgment in which a range of factors are at play. It also involves questions of fact and degree. The judge, who has, of course, had very considerable experience in dealing with sexual offences, including those against children, obviously put a deal of care and effort into his ruling. He identified, with precision, those factors that he considered brought this case within the ambit of Hughes (as explained in Bauer and McPhillamy). That analysis resulted in his ruling that the evidence concerning the applicant’s dealings with TC and MT was admissible in the case involving his communications with Hannah, and vice versa. Self-evidently, once the evidence was held to be cross‑admissible, there was little or no basis for any argument as to severance.
The central issue in this trial will be whether the prosecution can prove, to the requisite standard, that the applicant either knew, or believed, that the recipients of his various communications were under 16. On the prosecution case, all three complainants told the applicant in terms that they were under 16. There is no doubt, in the case of Hannah, that this was so, although the applicant claims that, as regards her, he did not, at any stage, believe her. He claims that, instead, he merely went along with her in order to ‘test her out’, while being suspicious of her age and whether she was genuine.
So far as TC and MT are concerned, there seems to be no independent proof that they told the applicant that they were under 16. They claim that they did so. However, he denies that either of them said any such thing.
This takes us to a consideration of the ambit of Hughes. The case concerned the admissibility of tendency evidence of a sexual interest, involving multiple child complainants. The accused argued that the other allegations had to share distinctive similarities with the particular charged offence in order to satisfy s 97, and the requirement of significant probative value. That contention was rejected.
The appellant in Hughes was the former star of ‘Hey Dad’, a television show. He was convicted in the District Court of New South Wales on 10 separate charges of child sexual abuse against four complainants. The evidence of those complainants was held, by the trial judge, to be cross-admissible as tendency evidence, as was evidence given by a number of further tendency witnesses.
The issue upon which special leave to appeal was granted was whether the tendency evidence possessed sufficiently distinctive similarities to acquire ‘significant probative value’. It was submitted that the nature and circumstances of the various instances of alleged misconduct were too broad to sustain admissible tendency reasoning. It was submitted in that regard that the earlier decision of this Court in Velkoski v The Queen,[25] which was understood to support the narrower view of admissibility, should be followed.
[25](2014) 45 VR 680; [2014] VSCA 121 (‘Velkoski’).
The High Court, by a majority of four to three,[26] in a joint judgment, held that the tendency evidence in question met the condition imposed by s 97(1)(b) in relation to each count in the indictment. Their Honours observed that in the trial of a mature adult for a sexual offence involving a female child aged under 16 (in which the complainant’s evidence of the conduct the subject of the charge was in issue), proof of a sexual interest in female children, and of a tendency to act opportunistically on that interest notwithstanding the risk of detection, is capable of having significant probative value. They went on to say that although evidence of a person’s conduct which is adduced to prove a tendency to act in a particular way will commonly bear similarity to the conduct in issue, s 97(1) does not condition the admissibility of tendency evidence on the precise degree of similarity with the conduct in issue.
[26]The majority consisted of Kiefel CJ, Bell, Keane and Edelman JJ. The minority consisted of separate judgments by each of Gageler, Nettle and Gordon JJ.
Ms Shann, in a careful and well considered submission, argued that the decision in Hughes has been misunderstood as suggesting that the threshold for admissibility of tendency evidence in relation to sexual offending against children had been significantly lowered. She drew attention to the fact that Hughes itself involved, as distinctive characteristics, the willingness to act ‘opportunistically’ and in circumstances of a high risk of detection. It was those features of Hughes, and not the similarity of the mode by which the sexual offending took place, that provided the commonality, or underlying unity, that enabled cross-admissibility in that case.
The difficulty with Ms Shann’s argument is that, even if it be fully accepted, it does not avail the applicant in this proceeding. Mr Ginsbourg, in his oral submissions, identified a number of features of the applicant’s conduct, as alleged, which he submitted easily met the threshold for cross-admissibility in this case.
With regard to the applicant’s requests for videos from the complainants, Mr Ginsbourg agreed that there were some minor differences in what the applicant had specifically sought. For example, in the case of TC and MT, he was said to have asked them to suck on the end of a hairbrush. In the case of Hannah, he asked her to suck her fingers, which were displayed close to her mouth in a short video that she sent him. It was submitted that despite this difference, there was a sufficient particularity, and commonality, in the requests concerning ‘sucking’ that suggested or simulated sexual acts, as to be significantly probative.
As to the requests for videos of the complainants showering, it was accepted that these related only to TC and Hannah, and not MT. Both requests had been preceded by the complainant telling the applicant that they were going to have a shower. In both cases, he was said to have responded along the lines of ‘I would like to watch’.
Notably, Mr Ginsbourg submitted, the request to Hannah had been made before TC had notified police that the applicant had asked to watch her showering. Hannah could not, therefore, have used that information to set up a scenario similar to that involving TC. Mr Ginsbourg submitted that at least as far as ‘showering’ was concerned, this fact took a great deal of the sting out of the ‘entrapment’ submission.
Regarding the topic of ‘trust’, Mr Ginsbourg emphasised that the prosecution’s position was
that the accused was offering his trust to the girls as a form of affirmation and attention because he realised that these girls, like many teenagers, craved affirmation and attention from older boys and men.
In relation to the tendency itself, Mr Ginsbourg stated:
[I]t’s about the applicant dealing with the complainants in the belief that they were children and they would want him to trust them … so they are, in summary form, the common features of the offending … to prey upon their emotional and psychological vulnerability because they were children.
In summary, therefore, Mr Ginsbourg identified at least three features that, he submitted, were sufficiently distinctive to warrant cross-admissibility, even under the common law, or the law as it had been stated in Velkoski. The fact that this higher threshold would also have been met meant that there was no substance at all in the applicant’s submissions that the judge had erred in his application of Hughes, which, on any view, had lowered the threshold somewhat for cross-admissibility. As will be seen, we accept that submission.[27]
[27]It should be noted that the applicant accepted that the evidence of TC and MT was cross‑admissible. The only challenge was to the cross-admissibility of the evidence of Hannah.
Further, neither Bauer nor McPhillamy changed the test of admissibility, as set down in Hughes. In Bauer, the High Court distinguished the particular circumstances of that case from Hughes. It did not, however, alter the test in any way. Unlike Hughes, which involved multiple child complainants and offending over a period of time, Bauer concerned offending against only one complainant. The High Court held that in that case, there was no requirement to establish any ‘special feature’ in order for her evidence to be cross-admissible in proof of the other episodes of offending against her.[28]
[28]See Bauer (2018) 266 CLR 56, 89 [62].
In McPhillamy, the High Court reiterated that Hughes set out the relevant test, stating that ‘[t]he scheme of the Evidence Act with respect to the admission of tendency evidence about a defendant adduced by the prosecution in a criminal proceeding is explained in Hughes v R.’[29] Nonetheless, the appeal in McPhillamy succeeded on the basis that the alleged tendency to have a particular state of mind, namely, a sexual interest in young teenage boys, may well have met the basal test of relevance, but was not, on its own, capable of meeting the requirement of significant probative value for admission as tendency evidence. The facts in McPhillamy did not sufficiently establish a tendency to act upon that sexual interest, the lengthy period between the offending against the two boys designated as ‘B’ and ‘C’, and the allegations involving the complainant ‘A’ militating against that conclusion.
[29]McPhillamy (2018) 361 ALR 13, 17 [16] (citation omitted) (Kiefel CJ, Bell, Keane and Nettle JJ), 21 [34]–[35] (Edelman J).
In our view, the fact that an accused can be shown to have had a particular state of mind, amounting to a tendency, towards taking a sexual interest in girls under 16, and in acting upon that sexual interest, must, logically, enhance the strength of the prosecution case as regards the applicant’s belief that Hannah was under 16. That tendency undercuts his defence that he was simply ‘testing’ Hannah out by way of banter. In the same way, the applicant’s belief that Hannah was under 16, if that is established, must logically strengthen the prosecution case that TC and MT did, as they assert, tell the applicant that they were only aged 14 and 13 respectively. Any other result seems, to us, to defy common sense.
So far as there were differences in how the tendency was manifested, this is explicable by reference to the fact that the communications with each of the complainants escalated to varying degrees of intimacy. As indicated, TC complied with the applicant’s requests for sexually suggestive videos, whereas MT and Hannah did not. The level to which the communications escalated by no means undermines the points of similarity between the three complainants.
No successful attack has been made upon the judge’s conclusion that his ruling, in favour of cross-admissibility, was not attended by sufficient doubt to warrant certification. Indeed, we would respectively endorse that conclusion.
For the reasons set out above, the application for review of the refusal to certify was dismissed.
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