Dilan Avalos (a pseudonym)[1] v The Queen
[2020] VSCA 56
•19 March 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0032
| DILAN AVALOS (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[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: | PRIEST, NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 February 2020 |
| DATE OF ORDERS: | 28 February 2020 |
| DATE OF REASONS: | 19 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 56 |
| JUDGMENT APPEALED FROM: | DPP v [Avalos] (Unreported, County Court of Victoria) Judge Riddell, 18 February 2020) |
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CRIMINAL LAW – Interlocutory Appeal – Evidentiary ruling – Pending trial of applicant for rape, intentionally causing injury, making threats to kill, and making threats to inflict serious injury – Multiple complainants – Tendency notice filed by prosecution – Whether evidence of non-consent cross-admissible in relation to credibility of each other complainant – Tendency evidence admissible – Application for certification – Trial judge refused to certify – Decision not attended by sufficient doubt to warrant certification – Trial judge’s evidentiary ruling plainly correct – Application to review refusal to certify refused – Phillips v The Queen (2006) 225 CLR 303 and Jacobs (a pseudonym) v The Queen [2017] VSCA 309 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr P A Chadwick QC with Ms K Rolfe | Robyn Greensill & Associates |
| For the Respondent: | Dr N Rogers SC with Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA
WEINBERG JA:
Introduction
On 28 February 2020, this Court heard an application to review a trial judge’s refusal to certify under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’), and for leave to appeal against an interlocutory decision of that judge.
As will appear, we considered the judge’s ruling to be plainly correct. There was no occasion for the judge to certify under s 295(3)(b) of the CPA. At the conclusion of oral argument, the Court made orders to the effect that the application to review the judge’s refusal to certify was refused. In those circumstances, leave to appeal against the interlocutory decision cannot be granted.
The Court indicated that reasons for that decision would be published in due course. These are those reasons.
Background facts
The applicant faces trial in the County Court on an indictment charging him with rape[2] (eight charges — charges 1, 2, 3, 10, 11, 14, 17 and 18); intentionally causing injury[3] (six charges — charges 5, 6, 8, 9, 12 and 15); common assault (two charges — charges 4 and 13); making threats to kill[4] (two charges — charges 7 and 16); and making threats to inflict serious injury[5] (two charges — charges 19 and 20). The charged offences are alleged to have been committed against four complainants, all of whom were former intimate partners of the applicant.
[2]Crimes Act 1958, s 38(1) (‘Crimes Act’).
[3]Crimes Act, s 18.
[4]Crimes Act, s 20.
[5]Crimes Act, s 21.
In the County Court, by a notice dated 9 February 2020, the prosecution indicated that it sought to adduce evidence that would establish that the applicant had a tendency to have a particular state of mind and to act in a particular way.[6] In relation to the applicant’s state of mind, the prosecution sought to rely on the tendency of the applicant to:
be extremely jealous[,] without justification[,] of his intimate female partners [interacting with other men] while forming the relationship[,] and when in the relationship.
[6]Evidence Act 2008, s 97(1) 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 tendency to act in a particular way, the prosecution sought to rely on the tendency of the applicant:
[while] forming[,] and during[,] the intimate relationships with [‘AC’], [‘TS’], [‘KM’], [‘TM’], [‘MG’] and [‘BJ’,] he frequently was extremely violent towards them without provocation by (a) the use of physical force to the head region[,] and (b) by the use of physical force to other parts of the body, including with weapons.
AC, TS, KM, and TM are the complainants in the current trial. MG and BJ were also former intimate partners of the applicant. The applicant had previously pleaded guilty to separate sets of offending against both BJ and MG, both of whom are now deceased. The prosecution intended, therefore, to have the respective informants in BJ and MG’s matters read into evidence the summaries of the prosecution opening in their respective cases. The jury in the present case would also be informed that those summaries were from other matters, where the applicant had pleaded guilty.
On 12 and 14 February 2020, the trial judge heard argument from counsel in relation to the prosecution’s tendency notice. On the second day of argument, the prosecution amended the tendency notice to reflect that it no longer sought to rely on the applicant’s state of mind.
A few days later, on 18 February 2020, her Honour delivered her ruling on the matter. She excluded the evidence relating to MG, ruling that it was not to be placed before the jury. The evidence of the four complainants, and that of BJ, however, was ruled to be cross-admissible in relation to the credibility of each other complainant. Further, the judge said that in order to mitigate any prejudicial effect of BJ’s evidence, she would give clear directions to the jury as to how they were to deal with that evidence of the applicant’s prior conviction.
On 19 February 2020, counsel for the applicant requested, pursuant to s 295(3)(b) of the CPA, that the judge certify that her ruling was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[7]
[7]Initially, counsel for the applicant sought to bring his request for certification under s 295(3)(a) of the CPA. That subsection deals with interlocutory decisions concerning the admissibility of evidence. However, the judge brought counsel’s attention to PNJ v DPP (2010) 27 VR 146; [2010] VSCA 88, where 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), 153 [33] (Maxwell P, Buchanan and Bongiorno JJA).
While the judge accepted that her ruling had met the statutory requirement of ‘sufficient importance’, she noted that she was further required to assess whether her ruling was attended by sufficient doubt to warrant an appeal.[8] In that regard, she also referred to this Court’s decision in Lewis (a pseudonym) v The Queen,[9] where it was said that a requirement to certify was more than a mere formality.[10] Her Honour, therefore, concluded that there was not sufficient doubt to warrant certification. Accordingly, the request to certify was refused.
[8]McDonald v DPP (2010) 26 VR 242; [2010] VSCA 45, 245 [15]–[17] (Ashley JA, Neave JA agreeing at 246 [18], Redlich JA agreeing at 246 [20]), 246 [21] (Redlich JA) (‘McDonald’); Wells v The Queen (No 2) [2010] VSCA 294, [7] (Ashley and Redlich JJA, Weinberg JA agreeing at [42]); and MA v R (2011) 31 VR 203; [2011] VSCA 13, 205 [6] (Redlich JA, Weinberg JA agreeing at 211 [32], Bongiorno JA agreeing at 211 [33]).
[9][2018] VSCA 40.
[10]Ibid [41], quoting Frazier v The Queen [2017] VSCA 370, [7]–[8].
In this Court, by notices dated 21 February 2020, counsel for the applicant sought, first, a review of the judge’s refusal to certify. That application was based on two grounds. They were:
1.That [h]er Honour having found that the test in s 295(3)(b) [of the CPA] was satisfied[,] erred in finding that her ruling was not attended by sufficient doubt to warrant an appeal.
2.That [h]er Honour erred by failing to give reasons for her finding that her ruling was not attended by sufficient doubt to warrant an appeal.
Secondly, the applicant sought leave to appeal against the judge’s evidential ruling. That application was also based on two grounds, which were:
1.That [h]er Honour erred in finding that Jacobs (a pseudonym) v The Queen [2017] VSCA 309[11] allowed for the possibility of some cases where evidence might be cross admissible in proof of both the state of mind of the complainant and the accused …
2.That [h]er Honour further erred in [the] application of [Jacobs] in finding ‘clear links and common features’ between complainants bore on the uses of the state of mind of the complainant and the accused and were ‘capable of affecting the jury’s assessment of the likelihood that the accused committed the offences against each other complainant’ …
[11](‘Jacobs’).
Applicant’s submissions
The refusal to certify
In his written summary of contentions, the applicant submitted that because the judge had accepted that her ruling was sufficiently important to the trial to justify it being determined on an interlocutory appeal, she had erred in refusing to certify. The applicant submitted that s 295(3)(b) did not afford a discretion to the judge to refuse to certify once the provision has been met.
Further, the applicant submitted that when the judge refused the application to certify, she was required to provide reasons, which she did not do.
The interlocutory appeal
As indicated and set out at [13], the applicant sought to rely upon two grounds of appeal. In his written summary of contentions, he sought to add a number of particulars to the first ground. That first ground challenged the judge’s finding that Jacobs allowed for the possibility of cases where evidence might be cross‑admissible in proof of both the state of mind of the complainant and the applicant. Those particulars allege that her Honour erred:
(a)In finding that the evidence was relevant and admissible on the issue of consent and the applicant’s belief in consent;
(b)In finding that the evidence possessed significant probative value;
(c)In finding that the probative value of the evidence sought to be led substantially outweighed the prejudicial effect of the evidence.
With regard to particular (a), the applicant submitted that Phillips v The Queen[12] did not allow for the evidence from one complainant that they did not consent to sexual activity with the applicant to be cross-admissible in relation to whether another, unrelated, complainant also did not consent to other sexual activity. It was also submitted that such evidence from a complainant was not relevant or admissible on the issue of the applicant’s belief in consent.
[12](2006) 225 CLR 303; [2006] HCA 4 (‘Phillips’).
The applicant submitted that once the evidence fell into the category described in Phillips, ‘it is not otherwise sufficiently relevant to any fact in issue in the trials of the applicant to warrant its reception …’
In turning to particular (b), the applicant submitted that the judge had misunderstood the test in Phillips. This was said to have been supported by the following remark in her Honour’s ruling:
In some cases, whether one consented cannot be said to be probative of whether another complainant consented (or equally to the issue of the accused’s state of mind).
It was also submitted that the judge had misapplied Jacobs, in that she had conflated the state of mind of each complainant and that of the applicant, said to be demonstrated in the following remark, that Jacobs:
Referr[ed] to both the state of mind of the complainant and the accused.
We interpolate to note that these passages, when read in context, provide a far clearer insight into her Honour’s reasoning. Those passages read as follows:
So although there was a concession by the prosecution that in some cases, whether one complainant consented cannot be said to be probative of whether another complainant consented (or equally to the issue of the accused’s state of mind) — the situation here is different.
That is what the court in Jacobs allowed for: the possibility that there may be some cases where evidence might be cross-admissible in proof of an accused’s state of mind. ‘The modus operandi similarities will often be highly relevant to prove … disputed conduct relevant to consent’, and by that I take the court to be referring to both the state of mind of the complainant and the accused.[13]
[13]DPP v [Avalos] (Unreported, County Court of Victoria) Judge Riddell, 18 February 2020) [90]–[91] (citations omitted).
In oral submissions, and in response to a question from the Court, counsel for the applicant conceded that if the matter had proceeded with separate trials for each complainant, the evidence of violence would be relevant to the evidence of actual consent, and to the applicant’s belief in consent.
Returning to the applicant’s written summary, with regard to particular (c), he submitted that the judge’s assessment of the probative value of the evidence was linked to her conclusion that the evidence could be used to rebut consent, and to rebut the applicant’s defence of belief in consent. He asserted that it was impermissible for her Honour to use the evidence to come to the first conclusion. In relation to the second conclusion, it was submitted that ‘the ability to quarantine [that evidence’s] misuse as propensity evidence is questionable.’
In the alternative, he submitted that if the judge’s assessment of the ‘common features’ of each account was erroneous,[14] then ‘that error will have infected the finding that the probative value of such evidence substantially outweighed its prejudicial effect.’ During oral submissions, counsel for the applicant endeavoured to submit that, somehow, the difficulty in charging a jury would be cause to enliven s 101(2) of the Evidence Act.[15]
[14]As he submitted in Ground 2.
[15]That section provides that tendency evidence about an accused cannot be used against that accused unless the probative value of the evidence ‘substantially outweighs’ any prejudicial effect it may have on the accused.
In relation to Ground 2,[16] the applicant contended that the judge was required, in accordance with Hughes v The Queen,[17] to closely analyse the differences in the evidence of each complainant. He submitted that, instead, the judge drew upon the common features of the evidence of each of the complainants. He noted that the commonalities in the offending against each of the complainants (except for BJ) were not consistent.
[16]Set out above at [13].
[17](2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).
Respondent’s submissions
The refusal to certify
In its written summary of contentions, the respondent submitted that the judge’s requirement to assess whether her ruling was attended by sufficient doubt was supported by clear authority.[18] Further, the judge’s oral ruling regarding the refusal to certify adequately set out how she came to that view.
[18]McDonald (2010) 36 VR 242; Stannard v DPP (2010) 28 VR 84; [2010] VSCA 165, 90 [27] (Redlich JA, Bongiorno JA agreeing at 91 [32], Hansen AJA agreeing at 91 [33]).
The interlocutory appeal
In its written summary, the respondent addressed the applicant’s complaint with the judge’s application of Jacobs. The respondent emphasised the following passage from Phillips, which was cited in Jacobs:
In this case, none of the [common law criteria] are met — either on the issue of whether in relation to any particular charge the appellant committed the acts of assault or intercourse alleged, or on the issue of whether he did so being honestly and reasonably mistaken about consent.[19]
[19]Phillips (2006) 225 CLR 303, 321 [55], quoted in Jacobs [2017] VSCA 309, [37].
In Jacobs, this Court said of the above passage:
[W]e do not think that their Honours’ conclusion [in Phillips] necessarily excluded the possibility that evidence might be cross-admissible in a particular case in proof of an accused’s state of mind.[20]
[20]Jacobs [2017] VSCA 309, [38].
Further, it was noted in Jacobs that ‘[m]odus operandi similarities will often be highly relevant to prove identity, or disputed conduct relevant to consent …’[21] It was submitted, therefore, that the judge was correct in finding that violence by the applicant was relevant to consent.
[21]Ibid [48].
In response to Ground 2, the respondent submitted that it was open to the judge to find commonalities in the offending that occurred against the complainants. It was noted that the tendency of the applicant’s use of violence was expressed with sufficient particularity.
During oral argument, senior counsel for the respondent, after seeking instructions from the Director, informed the Court that the prosecution no longer sought to rely on BJ’s evidence. That was, if we may say so, a proper and sensible concession. BJ’s evidence had about it a number of features that rendered it problematic, so far as cross-admissibility was concerned, and it also carried with it an element of prejudice to the applicant that would be difficult to overcome by direction.
Conclusion
As we have previously stated, the judge’s ruling refusing to certify was, in our view, plainly correct, save potentially in respect of the evidence of BJ, which is no longer in issue. The applicant’s challenge to that ruling was based, in part, upon a number of misconceptions regarding the relevant principles that govern the decision whether or not to certify that are adequately exposed in the respondent’s submissions, set out above.
This was not merely a case where the ruling was not attended by sufficient doubt to warrant certification. The ruling, at least as regards the four complainants, was completely orthodox, unimpeachable, and accorded entirely with the principles laid down in Hughes.
For these reasons, we refused to review the judge’s refusal to certify.
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