Director of Public Prosecutions v Bauer (a pseudonym) ruling No 4
[2016] VCC 1517
•28 April, 11 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00618
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENNIS BAUER (a pseudonym) No.2 |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2016 | |
DATE OF RULING: | 28 April, 11 October 2016 | |
CASE MAY BE CITED AS: | DPP v Bauer (a pseudonym) ruling No 4 | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1517 | |
REASONS FOR RULING No. 4
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Subject: Criminal Law, Tendency Evidence
Catchwords: Tendency evidence,
Legislation Cited: Evidence Act
Cases Cited: JLS v R [2010] VSCA 209, (2009-10) 28 VR 328, Velkoski v The Queen [2014 VSCA 121, MR v The Queen [2011] VSCA 39, PCR v The Queen [2013] VSCA 224, Lucas Gentry (a pseudonym) v The Queen [2014] VSCA 211, DPP v Martin [2016] VSCA 219
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Papas QC | Office of Public Prosecutions |
| For the Accused | Ms. C. Randazzo SC with | Doogue O’Brien George |
HER HONOUR:
Introduction
1 On 31 March 2016, I ruled that tendency evidence was admissible from the complainant RC in her own trial (Ruling No. 2), and later the same day, I ruled that tendency evidence was admissible from a witness TB in that trial (Ruling No. 3). Those rulings were based on the law in Victoria for the admission of tendency evidence in a single complainant case, according to the principles outlined in JLS[1], and confirmed in Velkoski[2], MR[3], PCR[4] and Gentry[5]. They need to be read together with this ruling and are attached as Appendix A.
[1] [2010] VSCA 209; (2009-10) 28 VR 328
[2] [2014] VSCA 121
[3] [2011] VSCA 39
[4] [2013] VSCA 224
[5] [2014] VSCA 211
2 The tendency evidence relied on from RC was her evidence of the alleged acts in charge 1 and charges 3-18, and the evidence of other sexual misconduct not the subject of the charges, as outlined in the Tendency Notice dated 16 March 2016 at Table C, Particulars 19-24. In effect, this tendency evidence consisted of the whole of the sexual activity RC alleged the accused had perpetrated on her over a period of 10 years, 1988-1998, from when she was aged 4-5 years.
3 In Ruling No. 2, I applied the principles from the cases referred to above, and I was satisfied that the proposed tendency evidence to be led from RC was relevant and admissible and had high probative value. I said that the evidence to be given by RC of the acts constituting the charges and of other sexual acts was potentially capable of supporting the hypothesis that the accused was engaged in a continuing course of sexual misconduct with her[6], had the capacity to show that the accused had an ongoing sexual interest in her[7], and if it was accepted by the jury that he had that particular tendency, it could make it more probable that he acted on that sexual interest to commit the act alleged in any particular charge[8]. I found that the probative value of the proposed evidence outweighed its prejudicial effect[9].
[6]JLS, [29]
[7] Ibid, [30]
[8]Gentry, [29], [39]
[9] Section 101(2) Evidence Act
4 In Ruling No. 3, I applied the same reasoning to the proposed tendency evidence to be given by TB. TB was to give direct evidence, as an observer, of the act alleged to have been committed by the accused against RC for charge 2, and also direct evidence of an uncharged act, as an observer of the accused in bed on top of RC in Shepparton (as outlined in the Tendency Notice dated 16 March 2016 at Table B, Particular 1, and Table C, Particular 2).
5 The evidence from TB about something she heard one night from the bedroom RC was in, on an occasion when the family visited Port Macquarie, was not relied on as tendency, that is, as showing that the accused had a sexual interest in RC. It was relied on as evidence that generally supported RC’s account that the uncharged act that RC referred to in Port Macquarie did occur, which was an act relied on to show the tendency of the accused to have a sexual interest in RC (Tendency Notice dated 16 March 2016 at Table C, Particular 20).
6 The trial involving RC was one of three separate trials to be held in respect of this accused. (TB was a complainant in another trial). Following delivery of Ruling No.s 2 and 3, the trial involving RC commenced on 6 April 2016. On 7 April, the jury was discharged without verdict, and it was decided to proceed with the other trials before returning to the one involving RC.
7 On 14 April, the High Court delivered its judgment in IMM[10]. I brought this case to the attention of counsel, seeking submissions as to whether I should re-visit the rulings on tendency, and on 26 April, I confirmed that I would hear further argument. I heard those submissions on 27 April. During those submissions, I indicated that I was not inclined to re-visit Ruling No. 3.
[10] [2016] HCA 14
8 On 28 April, I delivered a short ruling in which I announced my view that the effect of IMM was such that did not require me to re-visit Ruling No. 2 or Ruling No. 3 relating to the trial in which RC was the complainant. In other words, those rulings were confirmed, and I said that I would publish my reasons in due course.
9 These are my reasons.
10 For completeness, I note that the trial in which RC was the complainant re-commenced on 28 April and directions were given to the jury as to the use to which the tendency evidence could be put. On 10 May, the accused was found guilty on all charges[11].
[11] 7 charges of indecent assault; 4 charges of indecent act with a child under 16; 1 charge of attempted sexual penetration of a child under 10; 1 charge of sexual penetration of a child under 10; 4 charges of sexual penetration of a child under 16; and 1 charge of sexual penetration of a child under 16 under care, supervision or authority.
11 The two other trials, held separately, resulted in acquittals. A plea has been heard and the prisoner is to be sentenced on 11 October 2016.
Submissions
12 Senior counsel for the accused relied on written submissions dated 19 October 2015, and supplementary submissions dated 27 April 2016. On 27 April, she spoke to these, with the discussion appearing on transcript.
13 In brief, it was submitted that the case before me was indistinguishable from IMM, as it involved a single complainant for whom there was no support; that Ruling No.s 2 and 3 should be re-visited; and applying the principles in IMM from the majority judgement and the judgement of Gageler J, I should find that the evidence of the charged acts and other sexual misconduct from RC did not meet the test in s97, and neither did the evidence from TB, so that the proposed evidence was not admissible as tendency evidence.
14 As to Ruling No. 3, the defence submitted that the evidence given by TB on charge 2 did not meet the test in s97, because the evidence of TB did not in any way corroborate an account given by the complainant herself. There seemed to be some misunderstanding during submissions about the other piece of evidence from TB. What was relied on by the prosecution as tendency evidence was TB’s account that she saw the accused moving on top of RC in bed at Shepparton one night, that the accused saw TB observing him and that he told her to get back to bed. The prosecution did not rely on any observations of TB at Port Macquarie as tendency evidence.
15 The prosecutor provided written submissions dated 18 March 2016. He submitted on 27 April that I did not need to re-visit either ruling, as the tests under ss97 and 101 had been applied, and nothing in IMM changed the law as to the application of those tests.
IMM
16 In IMM, a long history of alleged sexual acts by the accused against the complainant was led as context only, and in the majority judgement, the admission of that evidence for that purpose was confirmed. A single uncharged act was admitted by the trial judge as tendency[12]. The majority confirmed the trial judge’s ruling that this evidence was relevant because it was capable of showing that the appellant had a sexual interest in the complainant[13]. Evidence is relevant if it could rationally affect the assessment of the probability of the existence of the fact in issue[14]. However, the majority and Gageler J held that the evidence did not have significant probative value.[15]
[12]IMM, [1], [2], [60] and [118]
[13] Ibid, [61]
[14] Section 55 Evidence Act
[15]IMM, [64] (the majority); Gageler J, [107]
17 In reaching its conclusion, the majority said[16]
“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.”
[16] Ibid, [62]
18 What is meant by ‘a case of this kind’ is uncertain[17]. It could mean a case with only one uncharged act relied on as tendency where the sole source is the complainant; or a case with multiple uncharged acts where the sole source is the complainant; or a case with multiple uncharged acts admitted for differing purposes, either tendency or context, where the sole source is the complainant. All of these applied to the circumstances in IMM.
[17] See also DPP v Martin [2016] VSCA 219, [106]
19 None of those applied to the case before me. In contrast, the complainant, RC, was not the sole source of the proposed tendency evidence; the whole of the history of alleged sexual abuse, whether charged or uncharged, was sought to be led as tendency, not just one uncharged act; that evidence was led for the dual purposes of tendency and context; there were two specific acts relied on as tendency evidence where the source was independent of the complainant, being provided by TB; and there was further evidence capable of supporting the credibility of RC from TB.
20 As I mentioned in discussions with counsel, the statement referred to above by the majority at [62] that the probative value lies in the capacity of the evidence to support the credibility of the complainant seems to be at odds with all previous authority, including from the High Court[18], and from NSW and Victoria under the Uniform Evidence Act, which stated that the probative value of evidence of uncharged acts is to be found in its potential to permit probability reasoning that the charged offences are more likely to have occurred. Probability also forms the foundation of relevance[19]. However, there is no reference to these precedents, including those of the High Court, by the majority or by Gageler J.[20]
[18] See eg, HML (2008) CLR 334, [277] per Heydon J.
[19] Section 55 Evidence Act ; referred to by the majority in IMM, [10], [38]-[40], [42], [44], [48], [49], all preceding the statement in [62]; and probability reasoning referred to by Gageler J, [80], [83], [90], [99], [103]-[104] and [106]-[107].
[20] HML is referred to in the judgement of Nettle and Gordon JJ, who were in the minority on this point concerning tendency. See also Martin, [104].
21 In the submissions before me, it seems that the parties were in agreement that it was not necessary for me to decide whether those precedents have been overturned. The parties agreed that what must be done is to apply the test in s97 as confirmed in IMM.
22 Where the parties disagreed was over the issue of whether I applied the test correctly. The defence submitted that I needed to re-visit the rulings because although I applied s97, I did so having regard to authorities that seem to be in conflict with the way that the majority and Gageler J approached the interpretation of the probative value of sexual interest evidence for the purpose of admissibility as tendency under s97; whereas the prosecution submitted that regardless of my reference to those other authorities, I applied the test in s97 correctly, and there is no need to re-visit either ruling.
23 It is highly likely that the law relating to sexual interest / uncharged acts / propensity / tendency, as it has variously been described over the years, when applied to cases where the sole source of that evidence is the complainant, was changed by the judgments of the majority and Gageler J in IMM. It may well be that tendency evidence where the sole source of that evidence is the complainant will now rarely be admitted, unless some ‘special features’[21] are present[22]. Whether or not that comes to pass, I have decided that in considering whether to re-visit these rulings, I should proceed on the basis of the statements made by the majority in paragraphs [61]-[63], and Gageler J at [99]-[104].
[21]IMM, [62]
[22] Cf. Martin, [105]
Conclusion – Ruling No. 3 – proposed tendency evidence from TB
24 Dealing first of all with the proposed tendency evidence that I ruled was admissible in Ruling No. 3, I confirm the view I expressed during submissions, and have decided not to re-visit that ruling. Unlike IMM, in the case before me, two pieces of evidence relied on as tendency were from a witness other than the complainant, and thus in that sense, from a source independent of RC[23]. The majority in IMM said at [62] that where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met.
[23] During Ruling No.s 2 and 3 I did consider whether the reliability of the evidence could possibly be infected by concoction, and found that it could not. Since IMM, that is no longer a necessary consideration.
25 It is my view that the law was not changed by IMM with respect to tendency evidence from a source other than complainant. I applied ss97 and 101 in Ruling No. 3, and nothing has been put before me to require me to re-visit that ruling.
26 For completeness, and in the terms used in IMM[24], I state that I remain satisfied that there was a high degree of probative value in TB’s evidence, as it had a significant capacity to support the credibility of RC’s account that the accused sexually abused her on the occasions the subject of the charges. Indeed, one of the acts is itself the subject of a charge (charge 2). While it was direct evidence for that charge, that did not prevent its use as tendency evidence for the charges for which RC gave evidence. Together with the other act relied on as tendency, TB’s proposed evidence reached the required degree of probative value, as I found TB’s evidence had the capacity to show that the accused had a sexual interest in RC, thereby having the capacity to support RC’s credibility when she made those allegations in her evidence. A jury could rationally conclude that RC’s account of charged acts of sexual misconduct was truthful, because TB gave an account that showed that on other occasions, the accused exhibited sexual interest in RC and was willing to act on it.
[24] At [63]
27 Put further in terms as discussed by Gageler J[25], it was open to the jury, as a step in reasoning from the testimony to the conclusion that the existence of the fact in issue is more or less probable, rationally to find that the testimony of TB was credible. The evidence was of significant probative value having regard to the issues which arose for the consideration of the jury in reasoning that the evidence made the fact in issue – whether the accused committed the alleged acts in each charge - more or less probable and having regard to the other evidence bearing on the existence of that fact from RC.
[25] At [99], [103]
28 Further, I remain satisfied that the proposed tendency evidence from TB outweighed any prejudicial effect on the accused.[26]
[26] Section 101(2) Evidence Act
Conclusion – Ruling No. 2 – proposed tendency evidence from RC, the complainant
29 Turning then to the tendency evidence where the sole source is the complainant, I am of the view that the case before me was distinguishable from IMM in a number of ways.
30 First, as already mentioned, in IMM only one uncharged act not at all similar to the alleged offending was relied on as tendency. Despite the lack of similarity, the majority accepted that it was relevant as showing a sexual interest by the accused in the complainant[27]. In contrast, in the case before me, the whole of the history of alleged sexual activity given by RC, whether charged or uncharged, was relied on as showing the asserted tendency that the accused had an ongoing sexual interest in RC[28]. I remain of the view that the evidence was relevant, the evidence had the capacity to show that tendency, and that it had probative value.
[27]IMM, [61]
[28] See analysis of the alleged offending in Ruling No. 2 at paragraphs [33]-[36]
31 Next, the majority in IMM allowed the possibility that there may be some special features of a complainant’s account of an[29] uncharged act which give it[30] significant probative value. I take that to mean a single uncharged act, which was the subject of discussion in IMM. In the case before me, as I have said, there were multiple charged and uncharged acts relied on as tendency in the evidence of RC, not a single uncharged act. Therefore I am of the view that the statements made by the majority at [62] as to the possibility of, or need for, the existence of special features to give an[31] uncharged act the required significant probative value do not apply to this case[32].
[29] Emphasis added
[30] Emphasis added
[31] Emphasis added
[32] See also Martin, [105]
32 If I am wrong about that, and a special feature is required to give the multiple uncharged acts the required level of probative value, then I am of the view that such a feature exists in the case before me: while evidence as to most of the alleged sexual activity came from the complainant, two specific acts came from another witness, TB, as I have outlined.
33 To admit the evidence as tendency the court is required by section 97(1)(b) to think that the evidence has significant probative value either by itself or having regard to other evidence. In the case before me, the evidence of RC, having regard to the tendency evidence from TB, achieves the required level of significance. The significance of the probative value of RC’s evidence falls to be gauged having regard to the issues which arose for the consideration of the jury in reasoning that the evidence of the whole history of the sexual misconduct made the fact in issue – whether the accused committed the alleged acts in each charge - more or less probable and having regard to the other evidence bearing on the existence of that fact from TB[33].
[33] Per Gageler J. – IMM, [103]
34 At the end of [62], the majority judgement concluded that
“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.”[34]
[34] See also, Martin, [105]
35 Putting to one side whether that statement should only be applied to a case where there is only “an[35] occasion other than the charged acts”, as I have said now a number of times, there was ‘more’ in the case before me: the evidence of other conduct of a sexual kind came from a source other than the complainant for charge 2 and so is not uncharged, and the evidence of TB as to an uncharged act in Shepparton, is also from a source other than the complainant.
[35] Emphasis added
36 Further, the evidence from TB as to what she heard in Port Macquarie was capable of being found by the jury to be a reference to the same occasion as the uncharged act occurring at Port Macquarie given in the evidence of RC. The evidence from TB about Port Macquarie was not relied on as tendency; however, if accepted, it, like the tendency evidence from TB, also had the capacity to support the credibility of RC, both as to the uncharged act at Port Macquarie, and generally, and regard must be had to that evidence when considering if RC’s tendency evidence had the requisite probative value[36].
[36] Section 97(1)(b) Evidence Act
37 Having regard to the fact that the evidence adduced to show the accused’s sexual interest came from a witness other than the complainant, and to the fact that further supporting non-tendency evidence was derived from a source other than the complainant, I think that the tendency evidence where the complainant was the source did have a significant capacity to rationally affect the probability that her account of the charged acts, other than charge 2[37], was true[38].
[37] Charge 2, of course, arose from the evidence of TB.
[38] Cf. IMM, [63]
38 I remain satisfied that the tendency evidence from the complainant, having regard to the tendency and other evidence to be adduced, had significant probative value[39].
[39] Section 97(1)(b) Evidence Act
39 I therefore declined to re-visit Ruling No. 2, other than in the manner in which I have in the course of these reasons.
40 And I so rule.
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