Di Natale (a pseudonym) v The Queen
[2022] VSCA 99
•26 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2022 0006
| DOMINIC DI NATALE (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | T FORREST, EMERTON and MACAULAY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 May 2022 |
| DATE OF JUDGMENT: | 26 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 99 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1812 (Judge D Sexton) |
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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether admission of evidence of tendency by accused to have sexual interest in complainant resulted in substantial miscarriage of justice – Whether evidence had significant probative value – Whether probative value substantially outweighed prejudicial effect – Tendency of evidence significantly probative to central issues in trial – Trial judge’s directions to jury limited risk of prejudice to acceptable degree – Hughes v The Queen (2017) 263 CLR 338 and R v Bauer (a pseudonym) (2018) 266 CLR 56 considered – Evidence Act 2008, ss 97(1) and 101(2) – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Mr J O’Connor and Ms J Ellis | Marco Man & Associates |
| For the Respondent | Ms J Warren | Ms A Hogan, Solicitor for Public Prosecutions |
T FORREST JA
EMERTON JA
MACAULAY JA:
On 25 June 2021 the applicant was found guilty by a jury of one charge of indecent assault[2] of his daughter, Angela.[3] The offence was said to have been committed between 1 January 1984 and 31 December 1985. The applicant was then aged 37 or 38 years and his daughter 11 or 12 years. The applicant was sentenced to two years and six months’ imprisonment.[4] The judge declared that one year and eight months of that sentence was suspended for two years.[5]
[2]Contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980.
[3]A pseudonym.
[4]DPP v Di Natale (a pseudonym) [2021] VCC 1812.
[5]By operation of s 27 of the Sentencing Act 1991, which is now repealed but continues to apply to sentencing in the County Court for offences committed before 1 September 2013: see s 149C(3).
In this application the applicant advances a single proposed ground of appeal, expressed as follows:
The admission of evidence as evidence of a tendency by the accused to have a sexual interest in the complainant resulted in a substantial miscarriage of justice.
Background
The proposed ground of appeal is quite narrow and a bare summary of the relevant evidence will suffice. The complainant stated that at a time when she was halfway through grade 5 and up until the end of grade 6, she would get into the applicant’s bed. She would lie on her side, as would the applicant. The applicant’s ‘front was to [her] back’. On one occasion the applicant put his hand under the waistband of her pants and ‘started playing with [her] vagina’. This went on ‘for several minutes’. The complainant gave evidence that the applicant’s hands were ‘inside the lips of [her] vagina’.
A pretext call between the complainant and the applicant was played to the jury. The call was made on 5 August 2017. At this stage the applicant was aged 70 and the complainant was 44 years old. The complainant, who made the call, stated to the applicant that she needed to talk. Initially the applicant was reluctant to talk on the telephone but ultimately the two conversed. Amongst other things, the applicant admitted the following:
[ANGELA DI NATALE]:
Can you tell me what happened?
[DOMINIC DI NATALE]:
You, ok, I can tell you what happened. I’ll start from close to the beginning ok. It was you and the [kids], Glen and um Mathew [the complainant’s brothers] had come back from Sydney. Right? And you were staying with me. Right? Now, all my life when your mum left, I always believed she was going to come back. That’s why I waited. Right? Now, and in the end she did come back, both times. But the second time she didn’t really want to but she came back ’cause you kids came back to me. Right? Um, we were at home in the lounge room, I was depressed, right? And I now understand my depression and why but I was depressed and I was drinking Gin and Tonics and you, I don’t know [whether] it was you or Glen, I asked to bring them in but you were bringing them in to me while I was watching television. Right? And it got to the stage where I went back to, went to bed. I was in a bad state. And you followed me in to give me a hug. Ok?
[ANGELA DI NATALE]:
[Yep].
[DOMINIC DI NATALE]:
And you did that. But at the same time, I was in a trance. Right? And as far as I was concerned at that moment, you were your mum, ok. And I touched you. And I shouldn’t have done that…
[ANGELA DI NATALE]:
Where? Where did you touch me? I want to know if you remember what I remember.
[DOMINIC DI NATALE]:
Right, well where I touched you. I put my hand down your pants and touched you on the pussy with my fingers.
[ANGELA DI NATALE]:
[Yep].
[DOMINIC DI NATALE]:
And that was it. I didn’t do any more than that. Although, if you hadn’t hopped out of bed, I don’t know if I would have gone further. Ok. And you did. You hopped out of bed and walked out. And that’s what happened…
[ANGELA DI NATALE]:
You remember the same incident as me.
A little later in the call, the applicant said:
It was a situation that happened that shouldn’t of [sic] happened, right and as the adult I should have not let it happen. Right, but in the situation I was in, I wasn’t in control of myself right, you know that, that’s not an excuse.
On 8 September 2017, the applicant was interviewed by police. He stated, amongst other things:
·There was a night when the complainant came into his bed.
·He had been drinking ‘too heavily’ on this night.
·His wife, Mary Rigoni,[6] had left him a year and a half before and he missed her badly. He always believed she would return.
·‘[Angela] could see I was upset, and she came into the bed’.
·‘I suppose I’d say I went into some sort of a trance, but what happened happened. I put my hand down — believing she was [Mary], by the way — and I put my hand down and just touched her pubic area, right, and then realised I was doing something wrong and stopped.’
·‘[S]he got out of the bed, and I regretted it ever since that day.’
[6]A pseudonym.
The applicant also stated that he told ‘anyone that needed to know about it’, including his former wife, ‘all of [his] family’ and his current partner. He and the complainant had never spoken about it, but he had sent her a letter six months earlier suggesting that they talk about it. This invitation had been prompted by the complainant ‘threatening me that if I don’t do certain things, right, she’ll go to the police about this and — as far as I’m concerned, it’s the best thing she could ever do.’ The context for the threat, he said, was his decision to sell the business that was run by his son.
At trial the prosecution gave notice under s 97(1)(a) of the Evidence Act 2008 (the ‘Act’) that it intended to adduce tendency evidence. The ambit of the tendency sought to be established, and the evidence said to support the said tendency, was reformulated and reduced in oral argument. The tendency ultimately relied upon was the tendency to ‘have a sexual interest in the complainant’. The evidence said to support this tendency was a statement by the applicant to his then-wife to the effect, ‘I’d love to see [Angela’s] tits because I’ve never seen budding tits.’[7] At trial, Ms Rigoni stated that that conversation occurred when the complainant was 11, 12 or 13 years of age.
[7]In her police statement the witness said that the applicant said words to the effect, ‘I would love to see [Angela’s] tits because I’ve never seen the young developing tits.’ Nothing turns on the slight variation in this regard between the relevant portions of the witness’s police statement and her trial evidence.
Submissions at trial
At trial the applicant submitted that it was unclear whether the impugned statement was made before or after the charged incident. It was further submitted that this evidence, being confined to mere words, was not therefore evidence of the applicant’s willingness to act on that sexual interest. It was not evidence of a continuing state of mind, being evidence of one conversation only, and whilst it may meet the bare test of relevance,[8] its probative value was not high. In McPhillamy v The Queen,[9] the High Court identified that generally it is the tendency to act on a sexual interest that gives the relevant tendency evidence its probative value.[10] Thus, it was submitted, the probative value of this evidence was not high — the evidence could not rationally affect the assessment of the probability of the existence of a fact in issue in this trial to a significant extent.[11] Further, using the words of s 101(2) of the Act, the applicant submitted that the probative value of the evidence did not ‘substantially outweigh the prejudicial effect of the evidence’, and, having regard to the nature of the evidence, there was a grave danger that the jury would misuse it.
[8]See Evidence Act 2008, s 55.
[9](2018) 92 ALJR 1045; [2018] HCA 52 (‘McPhillamy’).
[10]Ibid 1050 [27] (Kiefel CJ, Bell, Keane and Nettle JJ, Edelman J agreeing at 1051 [33]).
[11]See Hughes v The Queen (2017) 263 CLR 338, 348 [16] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20 (‘Hughes’), citing IMM v The Queen (2016) 257 CLR 300, 314 [46] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14 (‘IMM’).
The prosecutor contended that a comment alone could clear the significant probative value hurdle set by s 97(1) of the Act. He contended that the High Court in McPhillamy did not set out an invariable rule and that the decision was limited by its unusual facts. He then referred the judge to the New South Wales case of ABR (a pseudonym) v The Queen,[12] which concerned a single female child complainant and an accused who had conducted many internet searches for female child pornography. In that case, the New South Wales Court of Criminal Appeal considered the statutory test of ‘significant probative value’ to be met without the accused having previously demonstrated a preparedness to act upon his sexual interest in young female children. The prosecutor submitted that on this issue of tendency, ABR was analogous to the applicant’s case.
[12][2020] NSWCCA 33 (‘ABR’).
The judge’s ruling on tendency evidence
In comprehensive and careful reasons,[13] the judge set out the background to the alleged offending conduct, the anticipated evidence of the impugned statement said to be admissible as tendency evidence and the submissions of the parties. His Honour concluded:
[13]DPP v [Di Natale] (Ruling) (County Court of Victoria, Judge D Sexton, 23 June 2020) (‘Ruling’).
·The central fact in dispute in the applicant’s trial was whether the prosecution could prove to the criminal standard that the applicant intentionally sexually touched his daughter, or had believed her to be his absent wife.[14]
[14]Ruling [4].
·Thus the capacity of the asserted tendency to disprove that the contact with the complainant was unintentional was central to the assessment of its probative value required by s 97(1) of the Act.[15]
[15]Ruling [13].
·The impugned remark demonstrated a sexual interest held by the applicant in his daughter. The content of the comment, the fact that it was uttered at about the same time as the offending was said to have occurred[16] and the fact that the comment was specifically referable to the same person alleged to have been the subject of the offending combined to make the comment highly probative of the applicant’s state of mind when he was alleged to have carried out the offence.
[16]It was described by the judge as having ‘sufficient contemporaneity’ with the alleged act as to be capable of demonstrating a sexual interest in the complainant: Ruling [28].
·There was no apparent non-sexual or innocent motivation behind the remark.[17]
[17]Ruling [25].
·The four questions posed in the recent case of Dempsey (a pseudonym) v The Queen[18] could be answered as follows:
[18][2019] VSCA 224, [59] (Beach, Kaye and Ashley JJA).
(a) The remark supports the particular tendency relied upon.
(b) The evidence is relevant, in that the applicant’s remark is capable of rationally affecting the probability of the existence of a fact in issue — namely, that the subject of the applicant’s physical attentions was thought by the applicant to be his estranged wife.
(c) The remark has significant probative value in respect of this fact in issue.
(d) The probative value of the evidence significantly outweighs its prejudicial effect, after that prejudicial effect is ameliorated by a strong judicial direction.[19]
[19]Ruling [25]−[34].
This appeal
The applicant’s written case rehearsed the able submissions put at trial. The impugned statement should not have been admitted in evidence as:
(a) The evidence was not significantly probative. Whilst it may have had some bare or basal relevance to the issue of the applicant’s sexual interest in his daughter, that tendency did not make more likely the facts making up the charged offence of indecent assault.
(b) The evidence comprised one brief statement made within a year either side of the charged offence.
(c) No other similar statements or sexual interest in the complainant (or young girls more generally) had ever been exhibited by the applicant during his lengthy marriage.
(d) There was nothing in the statement, or the applicant’s actions, that indicated any preparedness to act upon the established sexual interest. As a general proposition, ‘it is the tendency to act on sexual interest that gives tendency evidence in sexual cases its probative value’.[20]
(e) In the event that the evidence did have ‘significant probative value’ for the purposes of s 97(1)(b) of the Act, the probative value of that evidence did not substantially outweigh its prejudicial effect as required by s 101(2) of the Act.
[20]McPhillamy (2018) 92 ALJR 1045, 1050 [27] (Kiefel CJ, Bell, Keane and Nettle JJ); [2018] HCA 52 (emphasis in original).
In oral submissions senior counsel for the applicant developed these submissions. He reminded us that the question of this application is not whether it was open to the judge to rule as he did, but rather whether the applicant had demonstrated that the ruling was erroneous. There were said to be six points that in combination demonstrated errors. Leaving aside duplication those points were:
(i) This was a very brief, one-sentence remark in a lengthy marital setting.
(ii) There was no other like expression or act that indicated any sexual interest held by the applicant in his daughter.
(iii) The impugned remark was not strictly contemporaneous with the alleged offending conduct.
(iv) The statement disclosed no intention to act upon any sexual interest it may have established. It was confined to looking, not touching.
The applicant then submitted that the way the jury were directed was to the effect that the tendency, if established, made it more likely that the applicant committed the offence charged. The offence alleged had two components in issue before the jury:
(f) The actus reus. The complainant asserted the applicant digitally internally penetrated her and rubbed her vagina over a course of several minutes. The applicant admitted that he fleetingly touched the complainant’s pubic mound before withdrawing his hand from that area.
(g) The mens rea. The prosecution alleged the applicant intentionally indecently assaulted the complainant in the manner alleged. The applicant contended that he believed he was touching his absent wife and that as soon as he realised his mistake he withdrew his hand from that area.
The applicant submitted that the jury were directed that they could use the tendency evidence in respect of both elements. He referred to the judge’s direction in respect of the use of this evidence:
And I give you this direction of law. If you find that the accused had a sexual interest in the complainant, then you can use that to find that it is more likely that he acted on that interest, that he committed the indecent assault alleged.
According to the applicant, the jury were, at least by implication, directed that if they accepted that the impugned remark was made, that evidence could be used first to find that the applicant had a sexual interest in the complainant and, if the jury made that finding in the affirmative, that finding could then be used to find that it was more likely that the applicant acted on that sexual interest in that he committed the indecent assault alleged (the first element) and that he did so knowing or believing that it was the complainant as distinct from his wife (the second element).
The applicant went on to submit that the probative value of the tendency towards sexual interest in the applicant’s daughter did not amount to ‘significant probative value’ having regard to the way in which the jury was told it could use the tendency evidence. Senior counsel submitted that for the probative value to be established as ‘significant’ it would need to be significantly probative to both mens rea and actus reus. No authority was cited for the proposition — senior counsel submitted however that it necessarily followed from the judge’s direction to the jury.
Should the court determine that the impugned remark was significantly probative for the purposes of s 97(1)(a) of the Act, the applicant then repeated his written submission that this probative value did not substantially outweigh its prejudicial effect as required by s 101(2) of the Act.
The respondent submitted that the impugned remark had a significant probative value because:
(h) The unprompted comment was a most unusual comment to make by a father concerning his prepubescent daughter and there is no apparent non-sexual motivation for it.
(i) Taken at its highest, it strongly supports the existence of a tendency in the applicant to have a sexual interest in his daughter.
(j) The comment was made at about the time of the occurrence of the alleged offending.
(k) Whilst ordinarily it is a tendency to act on an established sexual interest that will give tendency evidence its probative value,[21] in this case the specific tendency of the applicant to be sexually interested in his daughter bore heavily on the central issue in the case — whether the prosecution could prove that he knew he was indecently touching his daughter and not his wife. Thus this case could be distinguished from McPhillamy (where the tendency was to have a sexual interest in a class of persons, specifically male children in their early teenage years).
[21]See McPhillamy (2018) 92 ALJR 1045, 1050 [27] (Kiefel CJ, Bell, Keane and Nettle JJ); [2018] HCA 52.
The respondent further submitted that the probative value of the remark was significantly greater than its prejudicial effect, particularly as this latter aspect ought be evaluated after the ameliorating effect of a strong judicial direction designed to counter any prejudicial effect.
In oral submissions counsel for the respondent accepted that if the applicant was successful in his argument under this ground, in the absence of the impugned remark, a conviction for indecent assault would not have been inevitable. In this event it follows, in line with the principle set out in Baini v The Queen,[22] that the applicant will have succeeded in establishing that there has been an error in the trial and that as a consequence there has been a substantial miscarriage of justice. Unsurprisingly, the applicant agreed with this concession.
[22](2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
Consideration
(i) Does the remark possess ‘significant probative value’?
Evidence will possess ‘significant probative value’ if it is capable of rationally affecting the assessment of the probability of a fact in issue ‘to a significant extent’.[23] This assessment ‘requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest.’[24] The significance of the probative value of tendency evidence
must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.[25]
[23]IMM (2016) 257 CLR 300, 336 [138] (Nettle and Gordon JJ); [2016] HCA 14.
[24]Ibid 313 [44] (French CJ, Kiefel, Bell and Keane JJ).
[25]Ibid 314 [46] (French CJ, Kiefel, Bell and Keane JJ).
Thus the assessment as to significant probative value under s 97(1)(b) of the Act requires consideration of the extent to which the evidence supports the tendency, and the extent to which the tendency renders more likely the facts making up the charged offence.[26]
[26]Hughes v The Queen (2017) 263 CLR 338, 356−7 [41] (Kiefel CJ, Bell, Keane and Edelman JJ); (2017) HCA 20.
In this case there was a factual dispute as to what constituted the conduct alleged against the applicant. As we have observed, he maintained[27] that at the time where he believed he was touching his wife his hand briefly wandered towards his daughter’s vagina, touching the pubic mound, but no further, for three seconds at which time he woke from his ‘trance’ and removed his hand from that area. The complainant, contrastingly, said that the applicant put his hand under her waistband and started ‘playing with [her vagina]’ for several minutes with his hands/fingers ‘inside the lips of her vagina’.
[27]In his police interview.
The two major questions of fact for the jury to determine beyond reasonable doubt were:
(l) Whether the applicant touched his daughter in the extended sexualised and penetrative manner alleged by the prosecution, as opposed to the brief ‘pubic mound’ touching as asserted by the respondent; and
(m) Whether the applicant knew when he was touching his daughter in this way that the object of this activity was, in fact, his daughter, as opposed to his wife, as asserted by the respondent.
The case went to the jury in such a way that the prosecution, in order to achieve a conviction, needed to satisfy the jury of both these propositions affirmatively and to the criminal standard.
In our view, the evidence supports the tendency alleged, that is, that the applicant had a sexual interest in his daughter. Although the remark was disputed at trial, this Court, for the purpose of deciding whether the evidence was admissible as tendency evidence, is obliged to accept that the remark was made. Taking the evidence ‘at its highest’ requires this, and it requires us also to take ‘at its highest’ the possible use to which the evidence might be put, that is, to found an inference that the applicant had a sexual interest in the complainant.[28]
[28]IMM (2016) 257 CLR 300, 313 [44] (French CJ, Kiefel, Bell and Keane JJ); [2016] HCA 14.
In our view, the impugned remark is a most unusual remark for a father to make to his wife about his prepubescent daughter: ‘I would love to see [his daughter’s] tits. I’ve never seen budding tits.’ We agree with the judge that this remark reveals a desire by the applicant ‘to see the developing breasts of his young daughter’[29] and that ‘it is difficult to attribute any non-sexual or innocent motivation to the [applicant]’ in making the remark.[30] As we have said, taking the evidence at its highest, it supports the inference that the applicant had a sexual interest in his daughter.
[29]Ruling [25].
[30]Ibid.
The assessment of whether the impugned remark has a bare or basal relevance/probative value was conceded by the applicant at trial and senior counsel for the applicant (perhaps a little reluctantly) did not disavow that concession.
In our view, the tendency of the applicant to have a sexual interest in his daughter was significantly probative of both central issues in the trial. First, remembering that the applicant’s case was that this was an example of mistaken identity, an established sexual interest in his daughter bore, powerfully, we consider, upon whether the applicant was truly in a trance and believed he was touching his wife (even though she had left him) or whether he was simply pursuing his sexual interest in his daughter. Put plainly, if he was sexually interested in his daughter he was more likely to form an intention to touch her in a sexual way (the ‘mens rea’).
Secondly, the tendency evidence bore upon the manner in which the applicant touched the complainant. We have reviewed the two accounts of the touching in [3] to [6] above. The complainant said that the touching was prolonged and involved penetration; the applicant denied prolonged penetrative touching and asserted a fleeting superficial touch. As the case went to the jury it was incumbent upon the prosecution to prove the complainant’s version; proof of a fleeting touch to the pubic mound was insufficient to prove the indecent assault alleged. Even if the jury accepted that the applicant knew he was touching his daughter, the prosecution still needed to prove the manner of touching, which was hotly disputed at trial. If the applicant had no tendency to have a sexual interest in his daughter, he was considerably less likely to have touched her penetratively for minutes on end. Put in more positive language, the established tendency to have a sexual interest in his daughter, in our view, was powerful evidence in support of the complainant’s account of the conduct alleged to constitute the offence (the ‘actus reus’).
The timing of the impugned statement, while not demonstrated to be precisely contemporaneous with the offending, was accepted by the parties to be within a year of the offending — either before or after. This is sufficiently close to the offending itself as not to cause any meaningful diminution in the overall probative value of the tendency evidence in the unusual circumstances of this case.
The applicant relies on a passage from McPhillamy, where the Court stated in relation to s 97(2)(b): ‘Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value.’[31] In the present case the applicant contended that the existence of tendency did not disclose any tendency to act on a sexual interest, nor any expression of an intention to act, and thus the probative value of the tendency evidence is weak.
[31]McPhillamy (2018) 92 ALJR 1045, 1050 [27] (Kiefel CJ, Bell, Keane and Nettle JJ); [2018] HCA 52 (emphasis in original).
It should be immediately observed that the tendency alleged in McPhillamy and the subsequent conduct were very different to the case this Court is considering. In McPhillamy, the accused had been tried and convicted of sexually assaulting an 11-year-old boy on two separate occasions. The prosecution sought to lead as tendency evidence that, in a different context and about 10 years earlier, McPhillamy had sexually assaulted two boys in their early teenage years. This was said to demonstrate that he had a sexual interest in young teenage boys and was prepared to act upon it. The High Court (Kiefel CJ, Bell, Keane, Nettle JJ, with Edelman J in agreement) allowed the appeal, making the observation set out at [33] of these reasons. The Court also stated that ‘where, as here, the tendency evidence relates to sexual misconduct with a person or persons other than the complainant, it will usually be necessary to identify some feature of the other sexual misconduct and the alleged offending which serves to link the two together.’[32]
[32]Hughes v The Queen (2017) 263 CLR 338, 363 [64] (Kiefel CJ, Bell, Keane and Edelman JJ; R v Bauer (a pseudonym) (2018) 266 CLR 56, 87 [58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40 (‘Bauer’), cited in McPhillamy (2018) 92 ALJR 1045, 1051 [31] (Kiefel CJ, Bell, Keane and Nettle JJ).
It is plain from the use of the word ‘generally’ in the passage cited above that the High Court was not intending to lay down some immutable rule in the evaluation of what is ‘significant probative value’. Tendency evidence, as defined in s 97 of the Act includes evidence of a tendency to have a particular state of mind. The plurality in Hughes said:
Section 97(1) in terms provides for the admission of evidence of a person’s tendency to have a particular state of mind. An adult’s sexual interest in young children is a particular state of mind. On the trial of a sexual offence against a young child, proof of that particular state of mind may have the capacity to have significant probative value.[33]
[33]Hughes (2017) 263 CLR 338, 354 [32] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
Whether evidence of tendency to have a particular state of mind will carry with it a significant probative value will depend on the tendency alleged and its place in the prosecution case. In this case the nature of the two central facts in issue and the importance of the impugned evidence to those facts in issue, as we have explained, have led us to conclude that the tendency evidence, taken at its highest, has significant probative value.
(ii) Does the probative value of the evidence substantially outweigh any prejudicial effect it may have on the accused?
Section 101(2) prohibits the use of tendency evidence about an accused, unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The measurement of ‘any prejudicial effect’ must occur after consideration of the extent to which judicial directions have ameliorated or cured that prejudicial effect.[34] Further the ‘prejudicial effect’ on the accused is a reference to ‘unfair prejudice’ as countenanced by s 137 of the Act.
[34]See, eg, Bauer (2018) 266 CLR 56, 97−8 [86]−[87] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40; Dupas v The Queen (2008) 40 VR 182, 219 [142] (Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA); [2012] VSCA 328; DPP v Madina (a pseudonym) [2019] VSCA 73, [68] (Priest AP and T Forrest JA).
For the reasons that we have set out at [22] to [32], we consider the probative value of the evidence to be significant.
The applicant contended that there was a risk that the evidence could provoke ‘an emotional response’ prompted by ‘what the jury would likely [perceive] as a perverse interest by a father in his daughter’s physical development’ and further that the jury would give the evidence, comprising only one comment made at an indeterminate date, excessive weight. These two factors, if not identical, are closely related and, as the applicant accepted, resulted in the one potential consequence — that there was a danger that the evidence could be overvalued by the jury and occupy a disproportionate place in the prosecution’s case, incapable of sufficient amelioration by direction.
In this case the judge gave the jury a comprehensive direction aimed to ensure the proper use of the evidence. We shall set out that direction:
If you find that the accused had a sexual interest in the complainant, then you can use that to find that it is more likely that he acted on that interest, that he committed the indecent assault alleged. You must keep this evidence in perspective. It is only one part of the prosecution’s case. It is not enough to convict the accused that you find that he had a sexual interest in the complainant at around the time period of the alleged act. You can only find the accused guilty of the charge if you are satisfied of his guilt of that charge beyond reasonable doubt based on the whole of the evidence.
As I have told you, you must not decide the case on the basis of feelings of sympathy or prejudice, because of what you learn about the accused. This evidence has been led for the limited purpose of helping you understand the circumstances surrounding the alleged offending, and to show that the accused had a sexual interest in the complainant and so he is more likely to have committed the offence charged. You must not use the evidence for any other purpose.
Whilst we accept that in cases like this, where a sexual interest in an applicant’s child or children is relied upon, there will very often be some residual risk of prejudice to an accused that will survive judicial direction, in this case the judge’s clear and strong direction limited that risk to an acceptable degree. We consider that the significant probative value of the tendency evidence substantially outweighed any prejudicial effect it may have had on the applicant.
The applicant has failed to establish any error on the part of the trial judge and leave to appeal must be refused.
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