Director of Public Prosecutions v Boyle
[2015] VCC 1224
•1 September 2015
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| THOMAS SAMUEL BOYLE (A pseudonym) | Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 1 September 2015 | |
DATE OF RULING: | 1 September 2015 | |
CASE MAY BE CITED AS: | DPP v Boyle | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1224 | |
REASONS FOR RULING
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Subject:Application by prosecution to have a plea of guilty by accused to indecent act with his daughter admitted as coincidence evidence pursuant to s98 Evidence Act to prove indecent act by accused with his grand-daughter – Issue of whether the jury, after taking such coincidence evidence into account and being satisfied beyond reasonable doubt of the particular charge of indecent act with the grand-daughter, could then use such satisfaction that the accused had a sexual interest in his grand-daughter as tendency evidence on other changes on the indictment.
Catchwords:
Legislation Cited: Evidence Act 2008 ss 95, 98, 101.
Cases Cited:Velkoski v R [2014] VSCA 121, El-Haddad v R (2015) NSW CCA 10, RHB v R [2011] VSCA 295, Dupas v R [2012] VSCA 328, Versi v R [2013] NSW CCA 206, Peter Versi v R [2014] HCA Trans 163, Rapson V R [2014] VSCA 216
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Hollingworth | Solicitor for Office Public Prosecutions |
| For the Accused | Ms D Price | Mr Greg Duncan |
HER HONOUR:
1 In this matter, the accused is to stand trial on 14 charges of committing an indecent act with a child under the age sixteen and one charge of incest (“the second indictment”). The complainant on all charges is his grand-daughter, who was aged eleven to twelve years over the time of offending, which is said to have taken place in the period from 1 January 2013 to 20 January 2014.
2 On 31 August 2015, the accused pleaded guilty to sixteen charges of committing an indecent act with a child under the age of sixteen and one charge of incest (“the first indictment”). The complainant on each of those charges is his own daughter, who is presently aged twenty-seven years. The offending occurred when she was aged between eight and twelve years in the period from 3 March 1996 to 2 March 2001.
3 In order to safeguard the identity of each complainant, the accused has been assigned the pseudonym, Thomas Samuel Doyle, for the purpose of this ruling.
4 On the first indictment, Charge 4, to which the accused has pleaded guilty, is an indecent act of licking his daughter’s vagina. This occurred between 3 March 1996 and 2 March 1998, when his daughter was aged either eight or nine years. The prosecution seeks to lead evidence of the accused’s offending against his daughter on Charge 4 on the first indictment in the trial of the accused relating to Charge 5 on the second indictment. Charge 5 involves an allegation that he licked his grand-daughter’s vagina. The offending on Charge 5 is said to have occurred between 31 January 2013 and 31 December 2013, when the accused’s grand-daughter was aged eleven years. The prosecution seeks to have the evidence referable to the accused’s offending on Charge 4 on the first indictment admitted pursuant to the coincidence rule in s98 of the Evidence Act.
5 The evidence of the accused’s daughter referable to Charge 4 on the first indictment is as follows:
“The first time that dad performed oral sex on me in my bedroom was when I was around eight or nine years old. It was a night when mum was at craft and the boys were in bed asleep. I was in bed and I remember that I was uncomfortable because mum wasn’t home and I knew that meant that dad would be in to see me. He came into my bedroom and closed the door and came over to me in my bed.
He then lifted up my covers and put his head under the doona and pulled down my boxers that I wore as pyjamas. Then he spread my legs and pulled me towards the side of the bed where he was kneeling and then he started licking my vagina with his tongue. I kept my eyes shut and I didn’t say anything, neither did he. This seemed go (sic) on for ages until he stopped and then he pulled my boxers up and kissed me goodnight and he left my room.”[1]
[1]Statement of the accused’s daughter made on 21 December 2014
6 The evidence of the accused’s grand-daughter from her statement to police, which is relied upon by the prosecution in support of Charge 5 on the second indictment is, as follows:
“One time when – when I was in my bedroom and he said goodnight to me, he kissed me on the cheek and then I thought he was going to leave but, instead he pulled down my pants a bit and said, ‘Would you like a kiss?’ and – and he gave me a kiss on it and then he pulled down my pants even further and said, ‘Do you want the proper kiss?’ and he started licking my thing and I told him to stop.”’[2]
[2]Answer to Q 18 in the VARE made by the accused’s grand-daughter on 21 July 2014
Later on, the accused’s grand-daughter stated that the bedroom she was talking about was the accused’s daughter’s room, which she had as her room whenever she stayed with her grandma and grandpa. She elaborated as follows:
“I had finished my dinner and went upstairs to brush my teeth. When I was done I put on my PJs and went to say goodnight to everybody, including Luke and grandpa and grandma and even the animals and then I hopped into bed and grandpa came into my room and gave me a kiss on the check and hug and then he – and – well, actually on that day grandma was in hospital because she had something wrong with her but she’s better now and well – and – and he thought it was good chance to do it while she wasn’t at the house at all and in hospital … and we also had our cousins over.”
She went on to say that her female cousin “was going to be sharing my bed, like, but she was doing her teeth I'm pretty sure anyway, he closed the door and kissed on top of my vagina and then he said ‘Do you want a proper kiss?’ and I didn’t say anything and he pulled down my pants all the way and then started licking up and down on, like, with my legs wide open and my vagina. After a while I told him to stop ‘cause I didn’t know what he was doing and thought he was crazy.”[3]
[3]Answer to Qs 206, 207, 212 and 213 in the VARE made by the accused’s grand-daughter on 21 July 2014
7 On 27 August 2015, the prosecution served a notice of coincidence evidence pursuant to s98(1) of the Evidence Act upon the accused. It set out that the events detailed by the accused’s daughter in relation to the accused licking her vagina and the events detailed by the accused’s grand-daughter in relation to the accused licking her vagina would be adduced to prove that the accused did a particular act, namely entered the bedroom at night of young females aged eight to twelve years, who he was related to, and sleeping at his home; and approached the bed of the sleeping females and pulled back or pulled off the bedclothes; and pulled down the clothes of the females and then licked the females on their vagina with his tongue. Further, that the similarities in the circumstances in which the alleged offending took place, together with the alleged events themselves, are such that it is improbable that the alleged offences coincidentally occurred.
8 Section 98 of the Evidence Act states:
“(1) Evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless –
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”
9 In written submissions, in paragraph 18, Ms Price, for the accused, had raised that the prosecution had not complied with the practice direction regarding the filing of coincidence notices. However, she made no reference to this in oral submissions. In any event, in the circumstances of this case, I consider that there has been reasonable notice given and, if asked, I would have given the accused further time to consider the matter. Thus, I proceed on the basis that the issue for my determination is whether the evidence sought to be adduced pursuant to s98 has significant probative value and, if so, pursuant to s101(2), whether the probative value of the evidence substantially outweighs any prejudicial effect it may have upon the accused.
10 Ms Price, on behalf of the accused, submitted that the purported similarities relied upon by the prosecution were so non-specific as to reveal anything distinctive about the alleged act and are not sufficient to render coincidence evidence admissible. She submitted that there are significant differences in the nature and circumstances of the two events, including the age of the complainant, the occurrence or otherwise of conversation before and after the act, and whether others present in the house were awake or asleep. Further, the allegation of licking of a vaginal area is a common feature of offences against children and there is nothing sufficiently distinctive or unique between the two events, to satisfy the criteria of s98. She further submitted that the probative value of the evidence was weakened by the fact that the event referable to the accused’s daughter was some 15 years ago. In addition it was a single instance and was an event so general that any probative value would fall below the requirement of significance.
11 Ms Price submitted, further, that, even if the Court was satisfied that the requirements of s98 had been satisfied, in conducting the balancing exercise required by s101, the Court should find that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. She submitted that this was so because a jury would be shocked and overwhelmed by the admission of the offending against the accused’s daughter and be diverted from proper consideration of evidence relating to proof of the charge before them and would engage in rank propensity reasoning that he was the kind of person who would commit indecent acts on children related to him, would substitute the conceded evidence of the accused’s daughter for the offence relating to his grand-daughter and be diverted from proper consideration of the evidence relating to the remaining 14 charges which did not involve any allegation of licking of the complainant’s vagina. She submitted that these risks could not be overcome by a judicial direction.
12 In Velkoski v R,[4] although the Court of Appeal was dealing with tendency evidence under s97 of the Evidence Act, it held that the relevant principles in relation to coincidence evidence are, in many respects, the same. In particular, the court stated:
[4][2014] VSCA 121
“Plainly, coincidence reasoning can be invoked if there are similarities in the conduct of the accused on different occasions which reveal a pattern from which it may be inferred that he or she did a particular act or had a particular state of mind. Such reasoning can, for example, apply to render it improbable that a series of events occurred by accident or by sheer coincidence.
Such reasoning can also be invoked where there are similarities in the accounts given by two or more witnesses regarding the conduct of the accused which make it improbable, in the absence of concoction or contamination, that the witnesses are telling lies.
The greater the number of such witnesses, the less need there will be for their evidence to be ‘distinctive,’ still less, ‘strikingly similar’. It must be remembered, however, that it is a pre-requisite to the use of coincidence reasoning that there be such ‘similarities’ between the accounts given by the various witnesses (whether as to the events themselves, or the circumstances in which they occurred), that it is ‘improbable that the events occurred coincidentally’. In addition, of course, it must be shown that the evidence sought to be adduced will, either by itself, or having regard to other evidence, have ‘significant probative value’”.[5]
[5]Paragraphs [174] – [176]
13 In the Dictionary of the Evidence Act, the following definition is given:
“probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;”
14 In the Explanatory Memorandum to the Evidence Bill 2008, it was noted that:
“Although the term ‘significant’ is not defined, it is not intended to mean ‘substantial’. The 2005 LRCs’ report concluded that the term is well defined in common law, and means something more than mere relevance but less than a substantial degree of relevance.”[6]
[6]Page 33 of the Explanatory Memorandum
15 The concept that significant probative value means something more than mere relevance but something less than a substantial degree of relevance has been adopted in a number of cases, most recently in El-Haddad v R,[7] although Leeming JA also noted that to say that “’significant probative value’ amounts to a probative value which falls short of ‘substantial probative value’ is an inquiry which seems unlikely to assist and may, indeed, distract.”[8]
[7](2015) NSW CCA 10 (20 February 2015) at paragraphs [63] to [65]
[8]Ibid, paragraph [64]
16 Courts have been cautious in admitting what was formerly referred to as “similar fact” evidence unless such evidence has a degree of cogency and is strongly probative of the relevant fact in issue. In Velkoski, the Court of Appeal made it clear that similarities are now the touchstone of admissibility.[9] Although striking similarities are not required, it should be considered whether there are any remarkable, unusual or distinctive features. If not, similarities of conduct or surrounding circumstances will need to be close similarities.[10]
[9]Velkoski at paragraph [82]
[10]Velkoski at paragraph [118] – [120]
17 In this case, I have determined that the evidence of the accused’s admitted conduct constituting Charge 4 on the first indictment in relation to his daughter does possess significant probative value in relation to the conduct alleged in support of Charge 5 on the second indictment relating to the accused’s grand-daughter. Whilst it is true, as a Ms Price submits, that the licking of a child’s vagina is a not uncommon form of offending of an adult against a child, the coincidence rule in s98 makes it plain that it is not simply the act, itself, but similarities in both events and the circumstances in which they occurred, which may make it improbable that the events occurred coincidentally. In this case, apart from the alleged offending by licking each complainant’s vagina, there are the following similarities:
(i) Each complainant was a young girl well under the age of sixteen years. The accused’s daughter was either eight or nine years at the time of the commission of the conduct constituting Charge 4 on the first indictment. The accused’s grand-daughter was eleven years at the time of the conduct alleged to constitute Charge 5 on the second indictment. I do not regard a difference of some two or three years in the ages of the complainants as being of significance in the context of this case.
(ii) Each complainant is a blood relative of the accused.
(iii) Each complainant was in the care of the accused at the relevant time, that is, the accused’s daughter was living at the accused’s home when the offending occurred against her, and the accused’s grand-daughter was spending the night sleeping at the accused’s home when the alleged offending occurred against her.
(iv) On each occasion the accused’s wife, who was the only other adult who lived at the accused’s home, was absent from the home. In the case of the accused’s daughter, the accused’s wife was at craft class. In the case of the alleged offending against the accused’s grand-daughter, the accused’s wife was in hospital.
(v) Each event took place in the same bed and in the same bedroom at the accused’s house. This was the bedroom of the accused’s daughter when she had been living at home and it was the bedroom where the accused’s grand-daughter slept when she stayed overnight at her grandparents’ home.
(vi) On each occasion the complainant had got into bed to go to sleep for the night.
(vii) On each occasion the accused came to say goodnight to the complainant.
(viii) On each occasion the accused closed the door after he entered the bedroom.
(ix) On each occasion other children were present elsewhere in the house, so it might be characterised as brazen offending, in the sense that there was a possibility of the accused being interrupted in his activity in the bedroom. In the case of the accused’s daughter, her brothers were in bed asleep in the house. In the cased of the accused’s grand-daughter, her brother and, also, two of her cousins were present in the house. I do not regard the accused’s daughter’s statement that her brothers were in bed asleep at the relevant time as constituting such a material difference as to detract from the behaviour being characterised as brazen.
(x) On each occasion the accused is said to have pulled down the pants of each complainant.
(xi) On each occasion each complainant described her legs being spread apart on the bed as the accused licked her vagina. I do not regard the evidence of the accused’s daughter that the accused pulled her towards the side of the bed where he was kneeling as being materially different from the account of the accused grand-daughter (which is silent upon the matters of the actual position adopted by the accused while he was licking her vagina and whether he moved her at all).
18 I do not regard the fact that the offending against the accused’s daughter occurred between five or seven years earlier as detracting from the similarities with the circumstances of the offending relied upon in support of Charge 5 on the second indictment. In this regard, I note the submission of Ms Hollingworth for the prosecution that a much larger gap of two decades or more was not regarded as sufficient to defeat an application in relation to tendency evidence in the case of RHB v R.[11]
[11][2011] VSCA 295 29 September 2011
19 In all the circumstances, I consider that there are sufficient similarities between the two events or circumstances in which they occurred as to make proof of one significantly probative of the proof of another. Moreover, I note that there is no suggestion of collusion or contamination in this case. The accused’s grand-daughter made a statement to police on 21 July 2014. At that stage, apparently the accused’s daughter was overseas. Following her return to Australia in or about October 2014, upon learning of her niece’s disclosure, she told her de facto partner about her father’s offending against her, and made a statement to police concerning same on 21 December 2014.
20 Having determined that the admission by the accused of the offending constituting Charge 4 on the first indictment has significant probative value that the accused did commit the alleged offence constituting Charge 5 on the second indictment, I must undertake the balancing exercise required by s101 of the Evidence Act. Section 101(2) makes it clear that such coincidence evidence cannot be adduced by the prosecution against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
21 Ms Price, on behalf of the accused, submitted that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused because a jury would be shocked and overwhelmed by the accused’s having admitted sexual offending against his daughter and would thus be diverted from proper consideration of the evidence relating to the proof of the charge before them. Ms Price submitted that the jury would engage in propensity reasoning that the accused was the kind of person who would commit offences against children, that is, employ impermissible tendency type reasoning and would likely substitute the conceded evidence relating to the accused’s daughter for evidence in support of Charge 5 relating to the accused’s grand-daughter. Further, Ms Price submitted that, as coincidence evidence is relied upon in support of only one of the 15 charges, the jury would be diverted from proper consideration of the evidence relating to the remaining 14 charges.
22 In performing the balancing exercise, it is appropriate to take into account any directions that may be given to a jury to address prejudice and to assume that juries will ordinarily follow directions.[12] I do consider that the evidentiary value of the coincidence evidence substantially outweighs any prejudicial effect it may have upon the accused. The jury can be clearly directed that the evidence referable to the accused’s daughter may be used only in considering whether it finds Charge 5 on the second indictment proven, and that it must not engage in impermissible propensity reasoning in reaching this verdict or any other charge. Accordingly, I rule that the prosecution is entitled to lead the evidence as to the accused’s admission of guilt of the offending against his daughter on Charge 4 on the first indictment as coincidence evidence pursuant to s98 of the Act in relation to Charge 5 on the second indictment.
[12]Dupas v R [2012] VSCA 328 at paragraph [144] and [177]
23 Ms Hollingworth, on behalf of the prosecution, made a further submission which is as follows: If the jury are entitled to use the coincidence evidence to determine Charge 5 and were satisfied of the guilt of the accused on that charge beyond reasonable doubt, then the prosecution is entitled to rely upon “a tendency notice ‘up and down the indictment’”. In other words, Ms Hollingworth submitted that, if the jury were satisfied beyond reasonable doubt that the accused had committed Charge 5, then it could be satisfied that the accused had a sexual interest in his grand-daughter and could use that sexual interest in a tendency way in considering the other charges on the indictment.
24 In support of her argument, Ms Hollingworth relied upon the authority of Versi v R, a decision of the New South Wales Court of Criminal Appeal,[13] which was the subject of an unsuccessful application for special leave to the High Court by Versi. I am troubled by the reliance upon this authority for the proposition asserted. The issue which was the subject of the application for special leave to appeal to the High Court was whether the evidence of SD1 should have been admitted as evidence of coincidence supporting a conclusion of guilt on Count 2. However, as was made apparent in discussion between Mr Jackson for the applicant in the High Court and Bell J, that the applicant at trial had made “no challenge to availability of the evidence on each count as admissible on the other by reason of tendency, that being a tendency that might be described as a sexual interest in the complainant.”[14]
[13][2013] NSW CCA 206 (14 November 2013)
[14]Peter Versi v R [2014] HCA Trans 163 at page 6, lines 202 to 205
25 Bell J did go on to state:
“As I understand the reasoning of the Court of Criminal Appeal, it is that if, in relation to Count 1, one achieves a level of satisfaction beyond reasonable doubt that the complainant’s account is true, taking into account the coincidence evidence of SD1, that conclusion respecting the credibility of the complainant as to the sexual incident charged in Count 2 may bear relevantly on a conclusion that the complainant’s account of the event charged in Count 3 was proved beyond reasonable doubt.”[15] However, the High Court was not called upon to determine the issue of whether that tendency reasoning, in fact, was permissible, on other counts. Mr Jackson had submitted that the coincidence evidence was admitted in the first place subject to a condition that it could only be used in relation to Count 2. However, Bell J responded:
“That was in the context of a concession that the evidence on one count was admissible on the other as evidence of tendency identified as a sexual interest in the complainant.”[16]
[15]Ibid page 8, lines 286 to 294
[16]Ibid page 15 , lines 601-3
26 In the absence of any such concession by the accused in this case, it seems to me to be erroneous to rule that once the coincidence evidence is permitted as proof of Charge 5 then, if the jury are satisfied beyond reasonable doubt of that charge, they may use tendency reasoning as to the accused’s sexual interest in his grand-daughter in relation to each and every other charge on the indictment.
27 I am mindful that s95(1) of the Evidence Act states:
“Evidence that under this part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose.”
The only way in which tendency evidence is admissible is set out in s97. I consider that Ms Price’s submission against the tendency reasoning argument of the prosecution is correct, namely, that the prosecution would still need to meet the criteria of s97 and s101, including establishing that there was some similarity or commonality of features in the acts relied upon as the basis of Charges 1 to 15, and that Versi does not provide a shortcut to the admissibility of proposed tendency evidence. The prosecution has not sought to satisfy the criteria of s97 and s101 in this way. Accordingly, I rule that such tendency evidence is not open to be relied upon by the prosecution.
In Versi’s case, no reference was made to the decision of Velkoski, which sets out the essential principles for determining the admissibility of evidence in Victoria. These were adopted and summarised in Rapson V R[17] as follows:
[17][2014] VSCA 216 (11 September 2014)
“1 To be admissible the other evidence must have significant probative value, which requires far more than ‘mere relevance’.
2 To satisfy that requirement, there must be sufficient similarity or commonality of features, between the other conduct and the charged conduct, that the other evidence cogently increases the likelihood that the charged conduct occurred.
3 In deciding whether there is sufficient similarity or commonality between the features of the other conduct and the features of the charged conduct, it remains:
apposite and desirable to assess whether those features reveal ‘underlying unity’, a ‘pattern of conduct’, ‘modus operandi’, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the other evidence its relative strength.’
5(sic) Commonality of relationship between offender and victims is a relevant factor, but will not ordinarily be sufficient to give the other evidence significant probative value. In the ‘not so uncommon’ situation of parent and child or teacher and pupil, some other features of similarity must be present.
6(sic) In such cases, commonality of relationship must be accompanied by some degree of similarity or commonality in either the nature of the sexual misconduct, or the surrounding circumstances, or a combination of both.”[18]
[18]Rapson at page 9
28 The above principles would need to be addressed by the prosecution in order to satisfy the requirements in s97 and, then, pursuant to s101(2), the Court would need to be satisfied that the probative value of the evidence substantially outweighs any prejudiced effect it may have on the accused. No attempt has been made to satisfy the criteria of s97 or s101. Accordingly, I rule against the tendency reasoning sought to be relied upon by the prosecution.
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