Darius Donald Sheppard (a pseudonym)[1] v The Queen
[2017] VSCA 36
•3 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0101
| DARIUS DONALD SHEPPARD (A PSEUDONYM)[1] | 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: | WARREN CJ, PRIEST JA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2017 |
| DATE OF JUDGMENT: | 3 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 36 |
| JUDGMENT APPEALED FROM: | DPP v [Sheppard] (Unreported, County Court of Victoria, Judge Stuart, 22 March 2016 (Conviction)) |
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CRIMINAL LAW – Appeal – Conviction – Incest – Where complainant’s evidence of sexual interest admitted as tendency evidence over objection – Directions on use of evidence – Whether evidence ultimately left to the jury as tendency evidence – Where defence counsel declined to request further directions – Leave to appeal refused – IMM v The Queen (2016) 330 ALR 382.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | James Dowsley & Associates |
| For the Crown | Ms E Ruddle | Mr J Cain, Solicitor for Public Prosecutions |
WARREN CJ
PRIEST JA:
Substantially for the reasons advanced by Kidd AJA, whose judgment we have had the considerable advantage of reading in draft, we agree that this application for leave to appeal against conviction should be refused.
We specifically agree that, given that the resolution of this case turns upon the manner in which the jury was directed on the use (and non-misuse) of the evidence of uncharged acts of sexual misconduct, it is unnecessary to consider the potential ramifications of IMM[2] with respect to tendency evidence emanating from a single complainant.
[2]IMM v The Queen (2016) 330 ALR 382.
KIDD AJA:
Introduction
On 22 March 2016, the applicant, who was born on 17 November 1945 and was 72 years of age at the time of the hearing of his appeal, was convicted of one charge of incest following a trial by jury in the County Court. After a plea hearing on 3 May 2016, the applicant was sentenced on 3 May 2016 to 5 years 6 months imprisonment with a non-parole period of 3 years.
The trial evidence and cases at trial
The complainant
The complainant lived with her mother and her step-father, the applicant. The prosecution case, based largely upon the evidence of the complainant, was that, on one day between 1 January 2000 and 31 December 2001 (and probably on or around 1 February 2001) the applicant sexually assaulted the complainant. He did so by digitally penetrating her vagina while she was using the computer, which was located
in the lounge room of their home. She was ‘chatting’ to a friend in America using MSN messenger, a computer-based online chat program. She was sitting on a swivel chair and wearing a dress. The applicant approached the complainant from the left-hand side, swivelled the chair around, and penetrated her vagina with his finger. She continued to type. After a while, he walked away. In evidence in chief the complainant said that at that time she thought she was around 16 or 17 years old and in high school. In cross-examination email exchanges were tendered which led the complainant to state that the sexual assault the subject of the charge occurred on 1 February 2001 when she was using the computer in the lounge room to correspond with a particular person in the United States. She was in fact 14 years of age at this time.
There was also evidence from the complainant that there had been a sexually abusive relationship between the complainant and the applicant since the complainant was around 13 years old. The applicant would play music loudly and drink a significant amount of alcohol. This was said by the complainant to be ‘the trigger’. The applicant would then quietly enter her room. Sometimes the complainant was asleep and other times she would pretend she was asleep. He would then digitally penetrate her vagina. Sometimes he would feel her breasts. According to the complainant, this happened ‘many times’ or ‘very often’. None of this conduct was the subject of any charge. I shall refer to this conduct as the bedroom misconduct evidence.
There was also evidence from the complainant and from the complainant’s husband that in 2012 the complainant confronted the applicant about what he had done to her. The complainant’s husband gave evidence that the complainant said words to the effect that she could not see the applicant anymore and needed to heal and move on. According to the husband, the complainant’s mother (who died prior to the trial) had then said to the applicant that ‘it’ should never have happened and the applicant responded that if he could change ‘it’ he would and that he was sorry. The applicant fell to the floor. The complainant gave evidence in substantially similar terms. The prosecution at trial relied upon this as an admission and the bedroom misconduct. The prosecution at trial contended that this amounted to an admission by the applicant that there had been a sexual relationship and provided support for the occurrence of the bedroom misconduct.[3]
Complaint evidence
[3]This evidence was led over the objection of trial defence counsel. The ruling which permitted the reception of this evidence is not the subject of complaint on this appeal.
The prosecution also adduced evidence of complaint from two witnesses. The complainant’s boyfriend said that when the complainant was about 16 she told him the applicant was going into the complainant’s room and touching her up. When the complainant was 17 years of age, the complainant told her aunt that the applicant had been ‘touching her’ since she was 13 and that he had put his hands down her pants.
Applicant’s record of interview
In his police interview adduced by the prosecution, the applicant denied the allegations. He admitted there had been a confrontation but denied knowing that he was responding to allegations of sexual abuse. His version was that he said to the complainant that he was so sorry and he could not explain what this was all about. He said he told the complainant he was sorry that she had interpreted the ‘silly carrying on and flirting’ between them as something else. He then referred to it having no significance in his head and it was just stupid like a silly pat on the bum and ‘stuff like that’.
The defence case
The defence did not call any evidence. The defence case was that the alleged conduct constituting the charge did not take place; there was no sexual contact or relationship between the applicant and complainant at any stage. The defence case was that the complainant was lying about the sexual abuse. As for the confrontation, the defence case was that what was said by the applicant did not constitute an admission of any kind and in that regard the defence relied upon the fact that at no point was there any statement about sexual acts or sexual touching in this discussion.
The impugned tendency evidence ruling
At trial, the prosecution sought to lead the bedroom misconduct evidence as tendency evidence. The tendency which was sought to be proved (by the bedroom misconduct evidence) was the tendency of the applicant to have a sexual interest in the complainant and to have a willingness to act on that sexual interest in respect of the complainant. In the notice, the fact in issue to which the tendency was said to relate was whether the applicant digitally penetrated the complainant on the charged occasion. Thus, it was relied upon as an inferential step in proof of the charged conduct.
It was common ground between the parties at trial (and on this appeal) that the bedroom misconduct evidence was properly admissible as context evidence. However, the defence objected to the evidence being used as tendency evidence.
The learned trial judge ruled, by way of an ex tempore ruling, that the evidence possessed significant probative value and was admissible as tendency evidence under ss 97 and 101 of the Evidence Act 2008 (‘the Evidence Act’). He found that in light of the authorities such as JLS v The Queen:[4]
To view this evidence simply as context evidence would deny the prosecution the ability to present its case in a fulsome [sic] way. It would deny the prosecution the argument that the alleged offence in Charge 1 occurred not simply in a context of other such offending but further as part of the nature of the relationship between the two, it being a relationship of him having a sexual interest in her, in a prepubescent or pubescent girl.
[4]JLS v R (2010) 28 VR 328 (‘JLS’).
While his Honour did not explicitly state that the fact in issue to which the tendency related was whether the applicant engaged in the charged conduct, his Honour stated that the evidence possessed significant probative value essentially for the reasons contained in JLS. In JLS Redlich JA found that the other sexual misconduct in that case (which revealed a sexual interest and a willingness to give effect to that interest) was admissible as evidence of tendency in that it made it more probable that the applicant committed the sexual acts which were the subject of the five charges.[5] As I read the ruling, his Honour was ruling that the evidence of the ‘relationship’ could be used as tendency evidence (in addition to it being used as context evidence), in conformity with the reasoning identified in the tendency notice.
[5]JLS (2010) 28 VR 328, 337 [28].
The trial judge also found the evidence had significant probative value, and that there was no prejudice which would warrant its exclusion under s 101.
Applicant’s arguments on appeal
The application for leave and the appeal were heard together. There was a single discrete ground of appeal:
The learned trial judge erred by ruling, over objection, that evidence of certain uncharged acts was admissible as tendency evidence.
The applicant relied upon the majority judgment (French CJ, Kiefel, Bell and Keane JJ) in the case of IMM v The Queen[6] (which was delivered subsequent to the trial judge’s ruling). In that case, the High Court considered whether sexual interest evidence in relation to a single complainant (derived solely from the complainant’s evidence) could possess significant probative value and thus be admissible as tendency evidence under s 97 of the Evidence Act. The applicant placed particular reliance upon the following passages in the majority judgment in IMM:
In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant’s account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant’s unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.
Evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant’s account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X’s account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.[7]
[6](2016) 330 ALR 382 (’IMM’).
[7]IMM v R (2016) 330 ALR 382, 394–5 [62]–[63].
The applicant argued that the complainant was effectively the sole source of the alleged bedroom misconduct evidence or, at most, there was only limited and ambiguous supporting evidence (in the nature of the implied admission arising from the confrontation). The applicant further argued that the bedroom misconduct evidence was vague and lacked a degree of similarity with the charged act to support tendency reasoning. It was thus contended that the evidence of other sexual misconduct given by the complainant did not qualify as having significant probative value and was not admissible under s 97 of the Evidence Act. He further contended that as a result of the prosecution being permitted to rely on tendency evidence, there had been a substantial miscarriage of justice.
Respondent’s arguments on appeal
The respondent argued that the majority judgment in IMM allows for the possibility that a complainant’s evidence of other (uncharged) sexual misconduct may have some ‘special features’ which give it significant probative value. In this case, there was a significant degree of similarity between the bedroom misconduct episodes and the charged episode – both involved digital penetration under clothes. This case concerned an ongoing relationship and repeated similar sexual acts. The facts in IMM (which concerned only one uncharged act) are distinguishable. The respondent also relied upon the fact that there was evidence of complaint (although, as the respondent conceded at the hearing, this was not independent evidence).
Further, the respondent argued that unlike in IMM, the other misconduct evidence in this matter derived from evidence other than from the complainant, namely the evidence of the confrontation (which was said to amount to an admission by the applicant to the bedroom misconduct).
Finally, the respondent also embraced the argument that the bedroom misconduct evidence was not ultimately left to the jury as tendency evidence, even if it had been purportedly admitted as tendency evidence.
Was the evidence left to the jury as tendency evidence?
It emerged during oral argument that an issue in this case was whether the trial judge actually left the bedroom misconduct evidence to the jury to use as tendency evidence (ie for a tendency purpose).
The applicant accepted on the appeal that if the bedroom misconduct evidence was not ultimately left to the jury to use as tendency evidence then any erroneous decision to admit the evidence as tendency evidence (or purported tendency evidence) could not have occasioned a substantial miscarriage for justice. It follows that it is only if the jury was actually invited to use the evidence as tendency evidence that it will become necessary to examine whether the evidence was properly admitted as such.
In the circumstances it is convenient to first examine the trial judge’s charge to see how the trial judge treated the bedroom misconduct evidence.
The directions on permissible uses
The trial judge first directed the jury on the permissible uses of the bedroom misconduct evidence.
As to context (or relationship[8]) evidence his Honour said the following:
There are two aspects to this evidence. The first is using that evidence as evidence of context. This evidence is led in order to place the alleged offence of incest in a complete and realistic context and setting. It may enable you to understand [the complainant’s] state of mind, her conduct, that she might have submitted to the acts in question or the act in question, the subject of Charge 1.
It may assist you in understanding the state of mind and the conduct of [the applicant], in that he felt able to act in a particularly brazen way, the subject of the charge of incest in the lounge room and further, that it may be used by you to understand that absent, that other evidence, the charged act did not occur out of the blue. Those are the ways that you may use that evidence. Whether you do is a question for you to determine. That is evidence that you can use in those ways to better understand what might otherwise have been incomprehensible evidence. To understand the state of mind of her and [the complainant] and how they conducted themselves.
[8]My reference to ‘relationship’ evidence is a reference to the non-tendency contextual use of the relationship setting.
The direction was unremarkable.[9] While the law in this field is still not entirely free from controversy,[10] the applicant’s counsel, both at trial and on appeal, accepted that the bedroom misconduct evidence was properly received as context (or relationship) evidence, independently of it being admissible as tendency evidence.[11]
[9]See Martin (A Pseudonym) v The Queen [2016] VSCA 219 (‘Martin’), [102]–[105] (in which this Court examined the principles in relation to ‘context evidence’); Ashley v The Queen [2016] VSCA 246 (‘Ashley’).
[10]Martin [2016] VSCA 219, [102]–[105]; Murdochv The Queen [2013] VSCA 272, [11]–[12] (Redlich and Coghlan JJA), [62]–[93] (Priest JA).
[11]The Court in IMM (2016) 330 ALR 382 did not appear to question the admissibility of the other misconduct evidence in that case as context evidence.
The trial judge then proceeded to instruct the jury on the purported tendency use:
There is a second way in which you can use that evidence and that is this; the prosecution rely upon this evidence as demonstrating that [the applicant] had a sexual interest in his step-daughter and that he was prepared to act on that sexual interest. If you are satisfied that (1), he had that sexual interest and; (2), that he was prepared to act on that sexual interest, then you may, whether you do or not is a matter for you, then you may conclude it is more likely that [the applicant] committed the charged act of incest.
Pausing there, the applicant argued that this was an invitation to use the evidence as tendency evidence. He contended that evidence used to reason that it is more likely that the applicant committed the charged act because he had a sexual interest in the complainant (and a willingness to act upon it), is tendency evidence. For reasons which I am about to come to, I agree. However, the trial judge immediately and significantly qualified that direction with the following:
This is because the prosecution argue that it bolsters the credibility, the reliability of the complainant's evidence in her account and makes it more likely that her account of what occurred in the lounge-room at the computer, to be true, if [the applicant] had a sexual interest in her and was prepared to act upon it. Now those are the ways that you may use that evidence.
Given this qualification, in my view the jury was not invited to reason that the bedroom misconduct occurred, that it revealed a sexual interest in the complainant and a willingness to act upon it, and that rationally this made it more likely that the charged computer incident occurred. That would undoubtedly have amounted to tendency evidence.
Rather the evidence was left to the jury solely upon the basis that it could support the credibility of the complainant (by making it more likely that her account of what occurred in the lounge-room at the computer was truthful and reliable). There is a question about whether evidence, used or relied upon in this way, is tendency evidence under s 97 of the Evidence Act.
In most single complainant sexual offence cases, the main fact in issue is whether the charged sexual activity alleged occurred at all. It has hitherto been generally accepted that tendency evidence in relation to a single complainant case was relevant to the issue of whether the charged act or acts took place at all. The other (uncharged) sexual misconduct evidence is adduced to demonstrate that the accused had a sexual interest in the complainant upon which he is prepared to act[12]. The jury may then use that finding of tendency on the part of the accused (directed as it is to the complainant) to reason that he acted in accordance with that tendency (against the complainant) on the charged occasion. In this way, the evidence increases the probability that the charged offence or offences were committed. The two most often cited authorities in support of this reasoning are HML[13] and JLS.[14] It is consistent with tendency reasoning generally.[15] As Keifel J (as her Honour then was) said in HML:[16]
Where the relationship evidence shows that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed. It may be concluded that the accused is prepared to act upon the tendency to an extent that it may be inferred that the accused will continue to do so. The evidence may then render more probable the commission of the offences charged. [17]
…
The reason that the relationship evidence is highly probative is because it is of the same type and it is specifically directed towards the complainant. It is used to establish the accused’s propensity and then to reason as to the likelihood of the commission of the offences.[18]
[12]That is, a tendency ‘to act in a particular way, or to have a particular state of mind’ within the meaning of s 97 of the Evidence Act which governs the admissibility of tendency evidence.
[13]HML v The Queen (2008) 235 CLR 334 (‘HML’), 382 [103] (Hayne J, with whom Gummow J agreed), 376 [77] (Heydon J), 501 [510] (Kiefel J), 478 [426] (Crennan J). See also stated in KRM v The Queen (2001) 206 CLR 221, 233 [31] (McHugh J).
[14]JLS (2010) 28 VR 328, 337 [24]–[28]. As to some other Victorian authorities, see R v BJC (2005) 13 VR 407; R v VN (2006) 15 VR 113; GBF v The Queen [2010] VSCA 135 [26]; MR v The Queen [2011] VSCA 39 [14]; Velkoski v The Queen (2014) 45 VR 680, 718-9 [166]–[171]; Gentry (A Pseudonym)v The Queen [2014] VSCA 211 [28]–[29].
[15]Elomar v The Queen (2014) 316 ALR 206, 260 [253], 278 [360].
[16]HML (2008) 235 CLR 334
[17]HML (2008) 235 CLR 334, 501 [493].
[18]HML (2008) 235 CLR 334, 501 [510].
While this mode of reasoning involves inferential reasoning, tendency evidence of this kind has sometimes been described as a form of ‘direct evidence relevant to the commission of the offence charge’, to be contrasted with evidence which is relevant in a more general and less direct way through the bolstering of the complainant’s credibility.[19]
[19]Qualtieri v The Queen (2006) 171 A Crim R 463, 494 (Howie J).
Of course, once the complainant’s version is adduced as tending to show the accused did the act in question (ie as tendency evidence), it tends to make the complainant’s evidence that the accused did the act more credible.[20] But this support for the credibility of the complainant has been seen by some authorities as an incidental effect of the evidence being otherwise properly admissible for the conventional tendency purpose (to establish the accused’s tendency and then to reason as to the probability of the commission of the offences).[21] The point is exposed in the judgment of Ireland J (with whom Hunt CJ at CL and Levine J agreed) in R v AH.[22] Having referred to the two bases for the admissibility of uncharged sexual act evidence in relation to a single complainant — as context evidence or as tendency evidence — his Honour went on to say:
The evidence — once admissible for either or both of those purposes — will also necessarily make the complainant's evidence more credible in relation to the events upon which the charges were based.
…
Where the Crown does wish to use the evidence of guilty passion as tending to show that the accused did do the act in question (and thus that the complainant's evidence that the accused did the act in question is more credible), it is tendency evidence and so must comply with s 97 and s 101 before it may be used for that purpose.[23]
[20]R v AH (1997) 42 NSWLR 702, 708–709; DPP v Martin (A Pseudonym) [2016] VSCA 219 [96]; Qualtieri v The Queen (2006) 171 A Crim R 463, 494 (Howie J).
[21]Ibid.
[22](1997) 42 NSWLR 702, 708–9.
[23]Ibid 708–9 (emphasis added).
Certainly, sexual relationship evidence adduced solely to support the credibility of the complainant is historically more redolent of context (or relationship) evidence than tendency evidence. The underlying cogency of context (or relationship) evidence is that it assists the complainant’s credibility. It does this because the complainant’s version of the charged incident might be more capable of belief when seen in the context of what the complainant says was the sexually abusive relationship with the accused.[24] Such evidence explains, on the complainant’s version, why the complainant and the accused acted as they did in circumstances where without the context of relationship those acts might be inexplicable.[25]
[24]R v AH (1997) 42 NSWLR 702, 708–9; Qualtieri v The Queen (2006) 171 A Crim R 463, 494 (Howie J).
[25]Qualtieri v The Queen (2006) 171 A Crim R 463, 494 (Howie J).
That said, in their attempts at characterising (uncharged) sexual relationship evidence as tendency evidence in a single complainant case, the authorities have not always drawn a sharp distinction between the ‘direct‘ use of such evidence in proof of the actual facts alleged in the charges on the one hand and the (ancillary) use of the evidence to support the complainants’ credit (by making more likely that the complainant’s account of the charged offences is true) on the other hand. [26]
[26]R v Beserick (1993) 30 NSWLR 510, 555 (D–F)
In this case the trial judge did not leave the evidence in question as being ‘directly’ probative of guilt (in the sense described in the authorities like HML and JLS) but confined its relevance to a consideration of the complainant’s credibility (by making it more likely that her account of what occurred in the charged offence was true). The trial judge’s directions seemed to assume that the ‘fact in issue’ to which the tendency evidence related was not whether the accused engaged in the charged conduct but whether the complainant’s account of the commission of the charge was both truthful and reliable. On previous authority,[27] it would have been at least questionable that this is tendency evidence.
[27]See [31]–[34] above
As it happened, however, his Honour’s charge on this topic did not stop at this point. For reasons which will become apparent, I have concluded that even if this form of reasoning did amount to tendency evidence, his Honour’s subsequent directions removed this form of reasoning from the jury’s consideration. It is therefore unnecessary to consider further whether evidence of this kind is properly characterised as tendency evidence. That being the case, there is no need to examine the implications of paragraphs [61]–[63] of the majority judgment in IMM[28], either in relation this narrow question concerning the characterisation of single complainant tendency evidence, or in relation to the broader questions concerning the admissibility of such evidence.
[28]IMM (2016) 330 ALR 382.
The directions on non-use
His Honour went on to direct the jury as to the impermissible or prohibited uses of the bedroom misconduct evidence. This can be broken down into four parts.
First, his Honour commenced with the following direction:
However, there are ways that you cannot use this evidence. This evidence of sexual interest and preparedness to act on that sexual interest and this evidence of putting the charged act in a context, cannot enable you - cannot enable you to reason well he did this other act or acts and therefore he did the charged acts. You cannot do it, you cannot fill in gaps, you cannot import evidence of other acts to fill in or to add to the evidence in relation to the charged acts.
Second, his Honour then said:
Putting it differently, you cannot use the other alleged acts of sexual activity as a substitute for what is alleged to have happened in the lounge-room. It is only part of the evidence. Other bad behaviour in the past or around that time of the alleged offence, cannot prove guilt of the offence charged, that comes from her in relation to her evidence of what happened in the lounge-room at the computer screen.
Third, his Honour continued:
Furthermore, you cannot use the evidence to reason [the applicant] is the kind of person who would commit an offence of this kind of incest and therefore he is more likely to have committed the offence charged. You must make your decision on the evidence in relation to the charge and not on any views about what type of person [the applicant] is.
Fourth, his Honour finished the direction on how they were not to use the evidence with the following:
Further, you must not allow the evidence of the other sexual acts to cause you to close your mind against [the applicant] or pay less attention to the other evidence. Evidence of those other acts as she has described them is only part of the evidence that the prosecution relies upon and when making your decision you must consider all the evidence, including, of course, his record of interview which has just been played to you. If you do not accept this evidence of other acts occurring, you put it entirely aside.[29]
[29]His Honour concluded this part of the charge by briefly summarising the above directions, which did not substantially alter what had been previously said.
The italicised passages, at least when combined, amounted to an anti-tendency direction. Indeed I think the last highlighted passage in the third part does so by itself.
In my view the directions did more than guard against reasoning towards guilt from a general disposition to commit crime or sexual crimes.[30] Importantly, the trial judge told the jury that if the bedroom misconduct evidence established that the applicant had a tendency to commit an offence of this kind of incest they could not reason that this tendency made it more likely he committed the offence charged. While it may not be entirely clear what the term an offence of this kind of incest embraced, it is very likely to have been understood to include incestuous offending of the very type alleged in the bedroom and the very type particularized in the charge (digital penetration against his step daughter).
[30]Even a warning against reasoning towards guilt from a general disposition inevitably risks undermining or reversing a direction as to specific permissible tendency use. See Lancaster v The Queen [2014] VSCA 333 [97]; KRM v The Queen (2001) 206 CLR 221, 235 (McHugh J). That is the reason why the Jury Directions Act 2015 (ss 28 and 29) contemplates that where evidence is adduced as tendency evidence, the trial judge is not required to warn the jury not to use the evidence as tendency evidence (or to warn the jury against substitution reasoning).
If treated as tendency evidence, the cogency of the bedroom misconduct evidence was that it revealed a specific disposition on the part of the applicant to commit an offence of this kind of incest which then made it more likely he behaved in that way on the charged occasion. Yet the jury was told they could not use it in this way.
In my view, the trial judge’s injunction was so specific that the jury must have taken it to mean that it prohibited any tendency reasoning from the bedroom misconduct evidence at all. It severed any possible contribution which the applicant’s tendency (if proven) might have made in the jury’s reasoning towards guilt for the charged offence.
It follows that if the trial judge’s initial instructions to the jury as to the credibility use of the bedroom misconduct evidence did involve a component of tendency reasoning, in my view the subsequent directions in relation to impermissible use removed that form of tendency reasoning from the jury’s consideration. The jury must have understood that they could not reason that the complainant’s evidence was more likely to be true because the applicant had a tendency to have a sexual interest in the complainant and a willingness to act upon it. Again, that is because this was the very tendency they were explicitly told they could not act on.
When the instructions on the use (including non-use) of the bedroom misconduct evidence are read as a whole, the use was confined to context (or relationship) evidence: that is, the jury could use it to reason that the complainant‘s evidence was more capable of belief when seen in the context of what she said was her sexual relationship with the applicant.
I am untroubled by the direction that the bedroom misconduct evidence could be used to make it more likely that the applicant committed the charged offence. This did not disqualify the evidence from being characterised as context or relationship evidence: such evidence does have probative value in proof of the charged acts (and thus can make them more likely to have occurred),[31] at least in a general way by making the complainant more credible.[32]
The prosecutor’s address
[31]HML (2008) 235 CLR 334, 447 Heydon J); Lancaster v The Queen [2014] VSCA 333 [97]; R v Leonard (2006) 67 NSWLR 545, 557 (Hodgson JA)
[32]R v AH (1997) 42 NSWLR 702, 708–9; Qualtieri v The Queen (2006) 171 A Crim R 463, 494 (Howie J).
While the applicant’s counsel before us realistically acknowledged that the directions on non-use amounted to an anti-tendency evidence direction, at one point he fastened onto part of the prosecutor’s final address to the jury. In his address the prosecutor made the following submission:
It’s extremely important, because, for several reasons, and the law recognises these things, as His Honour will tell you, direct you, because if you accept that he had a sexual relationship and a sexual interest in his stepdaughter, first of all, that makes it, as a matter of common sense and experience, more likely that he’s committed the charged sexual act, the computer incident, and the law acknowledges that, as His Honour will tell you.[33]
[33]The prosecutor then immediately went onto identify and explain how they might use this evidence as context evidence.
The prosecutor’s address did invite the jury to engage in conventional single complainant tendency reasoning. However, in my view, there is no real risk that the jury might have acted upon the submission and used the evidence for a tendency purpose. I say that for four reasons.
First, this one comment was superseded by the judge’s charge and, in my view, the impact of the prosecutor’s single comment is likely to have been overshadowed. When the trial judge referred to how it was that the prosecutor relied upon this evidence his Honour made no reference to the prosecutor’s argument that the jury might reason from the bedroom misconduct evidence that it is ‘more likely that he's committed the charged sexual act, the computer incident’. Rather, the trial judge mischaracterised the prosecution argument as, ‘it bolsters the credibility, the reliability of the complainant's evidence in her account and makes it more likely that her account of what occurred in the lounge-room at the computer, to be true, if [the applicant] had a sexual interest in her and was prepared to act upon it’. This alone is likely to have deflected the jury from the tendency argument actually put by the prosecutor.
Second, even if the jury did recall the prosecutor’s tendency reasoning argument, the jury understood that they were bound to follow what the judge said on the law. Indeed, the prosecutor himself effectively said to the jury that what he had to say on the topic was subject to the trial judge’s directions. And, as I have found, the trial judge’s direction on non-use removed this form of tendency reasoning from the jury’s consideration. Effectively, these directions squarely contradicted the prosecutor’s tendency reasoning argument.
Third, I am comforted by the fact that the prosecutor himself seemed to take the view that his tendency evidence argument had been vitiated by the trial judge’s charge. He took exception to the charge upon the basis that it did not authorise the jury to reason from the bedroom misconduct evidence that it was more likely that the applicant committed the charged act, which he maintained was the only real fact in issue.
Unsurprisingly, when asked whether there was a need for further direction (after the prosecutor’s exception), trial defence counsel was emphatic that none was needed, submitting that his Honour had ‘done it to death’. The directions were to the considerable advantage of the defence. The learned trial judge declined to re-direct the jury on this point.[34]
[34]No complaint was made on appeal in relation to the trial judge’s charge despite appeal counsel for the applicant being given the opportunity by this Court to seek leave to add a ground of appeal. Of course, the apparently considered decision of trial counsel to discourage his Honour from re-directing would have presented as a very serious obstacle to the making of any complaint about the charge on this appeal. See R v Wright [1999] 3 VR 355, 356.
Fourth, the prosecutor also addressed the jury on the context (or relationship) use of the evidence. As I have outlined above, the trial judge confirmed in his charge the availability of this non tendency use. This reinforces in my mind that the jury must have understood this to be the limited basis upon which the evidence could be used by them.
Conclusion
In all the circumstances, I do not think there was any realistic possibility that the jury might have used the evidence as tendency evidence.
As I have concluded that the bedroom misconduct evidence was ultimately not left to the jury for them to use as tendency evidence, I have concluded there has been no substantial miscarriage of justice. This is so even if the evidence had been purportedly and wrongly admitted as tendency evidence. Accordingly, it is unnecessary to consider further the correctness or otherwise of the trial judge’s tendency evidence ruling.
Finally as the outcome of this case turns upon the specific manner in which the jury was charged on the use of the ‘uncharged’ or ‘other’ sexual misconduct evidence, this is not the appropriate vehicle in which to explore the implications of IMM and its impact upon the admissibility and characterisation of tendency evidence in relation to a single complainant.
For the above reasons, in my opinion, the application for leave to appeal should be refused.
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