Director of Public Prosecutions v Pell (Evidential Ruling No 1)
[2019] VCC 149
•22 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not restricted Suitable for Publication |
Case No. CR-18-00902
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| GEORGE PELL | Accused |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 and 14 February 2019 | |
DATE OF RULING: | 22 February 2019 | |
CASE MAY BE CITED AS: | DPP v Pell (Evidential Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 149 | |
REASONS FOR RULING – TENDENCY AND COINCIDENCE EVIDENCE
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Subject: Criminal law – Evidential ruling.
Catchwords: Evidence – Tendency evidence – Coincidence evidence – Multi-complainant sexual offending – Evidence does not reach significant probative value – Unfair prejudice outweighs probative value.
Legislation Cited: Evidence Act 2008, ss 97, 98, 101.
Cases Cited:McPhillamy v The Queen (2018) 92 ALJR 1045; IMM v The Queen (2016) 257 CLR 300; Hughes v The Queen (2017) 92 ALJR 52; R v Bauer (2018) 92 ALJR 846; Danny v The Queen [2018] VSCA 223; DPP v Matthews [2019] VSCA 11; R v George [1956] Crim LR 52; R v Court [1989] AC 28; R v Ellis (2003) 58 NSWLR 700; Page v The Queen [2015] VSCA 357; AE v The Queen [2008] NSWCCA 52; Ibrahim v Pham [2004] NSWSC 650.
Ruling: Prosecution applications to admit tendency evidence and coincidence evidence are refused.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Dalziel SC with Ms A. Ellis | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R. Richter QC | Galbally & O’Bryan |
HIS HONOUR:
Overview
1 By Indictment H11808513A.1[1], the accused has been charged with two charges of indecent assault of a male person under the age of 16[2], in relation to Kole Novak[3](charge 1) and Ethan Osborne[4] (charge 2)[5]. Charge 2 is a course of conduct charge.[6]
[1]This Indictment was filed on 13 February 2019, over Indictment H11808513A and served to discontinue the previous charge 1, concerning another complainant, Green (a pseudonym).
[2]Contrary to s 68(3A) of the Crimes Act 1958 (as amended by the Crimes (Amendment) Act 1967).
[3]A pseudonym name
[4]A pseudonym name
[5]For brevity I refer to the complainants hereafter by their last names only, but in doing so intend no disrespect.
[6]Pursuant to Schedule 1, Clause 4A(1)(a) of the Criminal Procedure Act 2009, being a sexual offence charge which involves more than one incident of the offence.
2 The prosecution has filed an amended summary of the prosecution opening, detailing these allegations. It is convenient to first give a short summary of the alleged offending, before giving more detail about each complaint below.
3 In relation to Novak, the offending is alleged to have occurred between 9 September 1977 and 28 February 1979, when Novak was aged between 11 and 12 years. On an occasion when Novak was at a public swimming pool, he entered the mid-part of the pool and joined boys who were waiting to be thrown in the air and into the water by the accused. When it was Novak’s turn, the accused grabbed hold of the complainant’s left arm and placed his other arm on Novak’s right buttock over his swimming shorts. While the accused’s hand was on Novak’s buttock, the accused touched one of Novak’s testicles with his finger (charge 1). The accused then lifted Novak into the air and threw him into the water. Novak states that he felt uncomfortable and did not get back in the water after this.
4 In relation to Osborne, the offending is alleged to have occurred between 1 October 1978 and 26 September 1979, when Osborne was aged between 9 and 10 years. On one occasion when Osborne was at the same public swimming pool, he was in the deeper water of the pool. The accused was playing a throwing game with boys in the pool. When it was Osborne’s turn, Osborne placed both of his feet onto the accused’s hands which were cupped in a stirrup formation. The accused released one hand from this clasp and placed his free hand between Osborne’s legs over his swimming shorts, cupping/covering his penis, testicles and anus area. While below the surface of the water, the accused touched Osborne’s testicles and anus. Osborne describes apparent fondling of the anal area, which involved some pressure being applied. At this point, the accused then propelled Osborne into the air and down into the water. This cupping/covering his groin area occurred on a number of different days when Osborne attended the pool, and a number of times on those days. Sometimes the accused would place his hand under Osborne’s swimming shorts and rock him back and forth and in so doing the accused’s fingers directly touched Osborne’s penis and testicles (charge 2). This occurred before lifting him up in the air.
5 The prosecution also detail an uncharged episode in relation to Timothy York[7], which they seek to rely on as tendency and coincidence evidence. In relation to York, the events are said to have occurred in either 1975 or 1976, when York was around 10 years of age. On one occasion, when York and his brother were playing in the water of a lake, the accused was present. The York boys were playing a game where they would jump from the accused’s shoulders into the water. The accused would hold his hands behind his head to assist the boys to climb up. Timothy York jumped from the accused’s shoulders several times. The amended summary describes that the accused would hold York by his ‘upper thighs sliding his hands up until his fingers were digging into his groin area and back, between his legs to his “bum”’.
[7]For brevity, I will also refer to Timothy York (a pseudonym) by his last name only, but in doing intend no disrespect. For convenience, I have also referred to York from time to time as complainant, but note that his evidence relates to an uncharged episode.
6 The final time that York attempted to jump, York slipped off the accused’s shoulders and fell down the accused’s front. As York slid down the accused he felt the accused’s erect penis go up the front of him and hit him in the chin. The accused allegedly smiled at York and said ‘Don’t worry it’s only natural.’
7 The prosecution has applied to admit evidence of these three complainants, being the two charged complaints (Novak and Osborne) and the uncharged complaint(s) involving a separate complainant (York), pursuant to the Evidence Act 2008 (‘the Act’) as either tendency evidence pursuant to s 97(1) or coincidence evidence pursuant to s 98(1), or both.
8 I will explain how the tendency and coincidence reasoning is argued below. I do not intend to explicitly particularise each of the arguments of counsel, but I have considered and addressed them in coming to my ultimate conclusions.
9 However, I do want to say that I have been well assisted by counsel to determine this application. I received detailed written submissions from both parties. The oral argument ran for one full day, and the following morning. The oral argument, put on behalf of the prosecution by Ms Dalziel SC and on behalf of the defence by Ms Shann, was comprehensive.
Defence case and issues in trial
10 Broadly, the defence case is that the accused denies indecently assaulting Novak or Osborne.
11 In relation to the Novak charge, the primary issues in this trial are first, whether or not the alleged touching was deliberate and therefore indecent, and second, whether the touching occurred at all. Novak’s credibility and reliability will only be under attack in relation to the second issue.
12 In relation to Osborne charge, the primary issue in this trial is whether or not the touching occurred at all. It is accepted that, if Osborne’s account is true, the touching is obviously deliberate and indecent. Osborne’s credibility and reliability will be seriously challenged.
13 The defence also dispute that any indecent touching of York occurred.
Statutory framework and legal principles
14 The admission of tendency and coincidence evidence is controlled by the Act.
15 Section 97 of the Act contains ‘the tendency rule’ which restricts admission of tendency evidence unless certain criteria are met. Section 97 relevantly provides:
1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind 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.
….
16 Section 98 of the Act contains ‘the coincidence rule’, which restricts admission of coincidence evidence unless certain criteria are met. Section 98 relevantly provides:
1)Evidence that 2 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.
Note
One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding.
….
17 The key condition for the admission of tendency and coincidence evidence is the court’s assessment that the evidence, taken by itself or taken with other evidence adduced by the party seeking to adduce it, has ‘significant probative value’.[8]
[8]McPhillamy v The Queen (2018) 92 ALJR 1045 (‘McPhillamy’), 1048 [16].
18 The High Court has recently clarified a number of aspects concerning the admission of tendency evidence (and to a lesser extent coincidence evidence) in a series of significant cases.[9]
[9]IMM v The Queen (2016) 257 CLR 300 (‘IMM’); Hughes v The Queen (2017) 92 ALJR 52 (‘Hughes’); R v Bauer (2018) 92 ALJR 846 (‘Bauer’); (2018) 92 ALJR 1045; McPhillamy (2018) 92 ALJR 1045.
19 In Hughes, the High Court explained that an assessment of whether evidence has ‘significant probative value’ in relation to each charge involves consideration of two interrelated but separate matters: first, the extent to which the evidence supports the tendency and second, the extent to which the tendency makes the facts making up the charged offence under consideration more likely.[10]
[10]Hughes (2017) 92 ALJR 52, 66 [41].
20 When conducting this assessment, the High Court in Hughes confirmed that there is likely to be a high degree of probative value where there is strong support for both the first and second considerations.[11]
[11]Hughes (2017) 92 ALJR 52, 66 [41].
21 In the case of multi-complainant sexual offence matters, probability reasoning which underpins tendency evidence dictates that for evidence of sexual offending against one complainant to be significantly probative of sexual offending against another complainant, there ‘must ordinarily be some feature which links the two together.’[12] That is, there must be some common feature or features.
[12]Bauer (2018) 92 ALJR 846, 863 [58].
22 If the evidence satisfies the threshold test of ‘significant probative value’ in either ss 97 or 98, the trial judge must go on to consider a further restriction contained in s 101 of the Act, before the evidence can be adduced. Section 101 relevantly provides that tendency evidence cannot be adduced by the prosecution unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
23 I will come to the prosecution’s evidentiary notices shortly, but given the arguments made on these applications, it is necessary for me to make some observations about how tendency and coincidence reasoning work.
24 The key distinction between tendency reasoning and coincidence reasoning is the existence of a clear starting point.
25 In basic terms, tendency reasoning involves a form of stepping stone reasoning towards guilt, whereas coincidence reasoning is essentially conclusory.
26 Tendency reasoning uses a finding that the accused had a particular tendency to find that he acted in a similar way on another occasion (or occasions). This may make it more probable that he acted in that similar way on the charged occasion. Tendency is based upon an assumption that people act in conformity with their habits, or repeatedly act in similar ways. [13]
[13]Simplification of Jury Directions Project, A Report to Jury Directions Advisory Group, ‘the Weinberg Report’ (August 2012), 196 [4.41].
27 Tendency evidence is thus used as a stepping stone and is essentially sequential, with the finding of the tendency an intermediate step along the path of the jury’s reasoning.[14]
[14]Simplification of Jury Directions Project, A Report to Jury Directions Advisory Group, ‘the Weinberg Report’ (August 2012), 196 [4.41]; Elomar v The Queen (2014) 316 ALR 206, 278 [359]-[360].
28 The tendency to act in a particular way must have a feature about it which is common with the charged occasion, so that proof of that tendency increases the probability that the accused has committed the offence on the charged occasion (effectively in conformity with that proved tendency).[15] As the High Court has said in Bauer in relation to multi-complainant sexual offending tendency reasoning:
[15]Bauer (2018) 92 ALJR 846, 863 [58]. See also [59] where the tendency reasoning as it applies to multi-complainant cases is summarised.
If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.[16]
[16]Bauer (2018) 92 ALJR 846, 863 [59] (Emphasis added).
29 In contrast, under coincidence reasoning, the conclusion that the accused has a tendency to act in the relevant way is essentially a corollary of a finding that at least some of the charges have been made out. [17] The evidence of each witness supports that of the others because of the unlikelihood that independent witnesses would make up similar stories, or because of the unlikelihood of so many similar events occurring accidentally.
[17]Simplification of Jury Directions Project, A Report to Jury Directions Advisory Group, ‘the Weinberg Report’ (August 2012), 196 [4.41].
30 The trial judge’s assessment under both ss 97 and 98 must therefore centre upon what each complaint has the capacity to prove and any nexus it may have with the features of the charged conduct under consideration. By way of example, in determining whether the Novak complaint is admissible as tendency evidence in proof of the Osborne charge, I must determine what Novak’s complaint has the capacity to prove (taken at its highest).
31 The assessment of the probative value of the tendency evidence under s 97 or the coincidence evidence under s 98 requires a consideration of other evidence in the case.[18]
[18]Hughes (2017) 92 ALJR 52, 66 [40].
32 I accept, however, the defence submission, that when considering tendency evidence, the charged event itself under consideration cannot be used to prove the tendency to be inferred from the other event or events, as this would involve circular or ‘bootstrap’ reasoning. [19]
[19]Hughes (2017) 92 ALJR 52, 69 [61]-[62]. See also Bauer (2018) 92 ALJR 846, 861 [50].
33 As the prosecution acknowledges, a consideration of whether the evidence has significant probative value under s 98 requires a consideration of the degree of similarities between the complaints. The cases recognise that the trial judge will need to identify similarities in respect of a distinctive or unusual feature (or features) of the complaint or a combination of features of the complaint or the circumstances in which it occurred. There must be similarities which would make coincidence or invention improbable.[20]
[20]Page v The Queen [2015] VSCA 357 (‘Page’) [58].
34 When assessing the probative value of each of the complaints as tendency or coincidence evidence, I am required to take the evidence at its highest. I must assume credibility and reliability. However, as the High Court recently confirmed in IMM, it must be understood that:
…the basis upon which a trial judge proceeds, [that] the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all.[21]
A preliminary question: tendency or coincidence reasoning?
[21]IMM (2016) 257 CLR 300, 315 [50].
35 According to the tendency notice, the prosecution rely upon the tendency of the accused to:
a) Use the playing of games with boys in the water of a swimming pool or other large body of water as an opportunity and cover for intentionally touching boys on their groin, genitals and bottoms, in a sexual manner; and
b) Intentionally touch boys indecently whilst playing games with them in the water of a swimming pool or other large body of water.
36 The prosecution argued that the evidence of Osborne, Novak and York, taken at its highest, is that on multiple different occasions, the accused touched boys on their genitals, groin or anal region, in the course of a game in a body of recreational water. The prosecution say that the accused did so on multiple times and with multiple boys provides strong support for the propositions that:
a) The accused used the game as an opportunity for touching the boys in the manner alleged;
b) The touching of each boy in the area of their genitals, groin, or anal region was intentional; and
c) That the touching was indecent.
37 So far as the coincidence notice is concerned, the prosecution seek to argue that it is improbable that:
a) each of these witnesses was accidentally touched in such a similar manner and in such similar circumstances (that is, it is improbable that such similar acts coincidentally occurred by accident); and
b) each of the three witnesses would make such similar allegations if the events they describe did not occur.
38 Significantly, the prosecution summarised their tendency and coincidence arguments together:
In summary, the prosecution seeks to rely on tendency and coincidence reasoning to make arguments to the jury that:
a) The evidence of Novak, Osborne and York demonstrates a tendency on the part of the Accused to use the opportunity presented by playing games in the water to intentionally indecently touch boys on their groin, genitals or bottoms;
b) The circumstances provided not only the opportunity to so touch the boys, but also a ready excuse if his behaviour were called into question;
c) The repeated nature of the conduct founding the tendency reasoning provides strong support for the contention that the acts were intentional; and
d) The improbability that three men would make such similar allegations if the events they describe did not happen.
39 There was a degree of conflation in the prosecution’s argument and it tended to slide from tendency reasoning to coincidence reasoning. The holistic nature of the prosecution’s argument is redolent of coincidence reasoning. It is illustrative that the prosecution described this reasoning process by using a ‘baking of the cake’ metaphor. The prosecution contended that an inference of guilt (and in particular an inference that any touching was deliberate and therefore intentionally indecent) is the only conclusion to be drawn from a collective consideration of all the complaints. In other words, when viewed together the alleged touching could not be explained as a series of coincidences – they all occurred, and they were each deliberate. That all said, both forms of reasoning were pressed, and both require consideration.
Some preliminary observations about each complaint
40 Both ss 97 and 98 require scrutiny of what is asserted by each complainant, and what each complaint is capable of proving.
41 A cursory assessment might suggest that the evidence of each complainant in turn establishes that the accused had a tendency to deliberately touch young boys with indecent intent, under the guise of throwing games in water notwithstanding the evident risk of detection.
42 In accordance with the reasoning of Hughes, proof that the accused had a tendency to engage in deliberate furtive sexual touching in similar or related contextual circumstances would be likely to have significant probative value in relation to each complaint. Each complaint would be likely to convincingly strengthen the other, and remove doubts which might otherwise exist, such as accident or misinterpretation.
43 It would not matter that the precise particulars or operative features of the actual charged (or uncharged) conduct may have varied in each case or that some touching may have taken place above the water surface and some below. Such differences would not, on the reasoning of Hughes, rob the evidence of its fundamental cogency.
44 There are two recent cases from the Victorian Court of Appeal which have highlighted how this tendency evidence can be cross-admissible in multi-complainant child sexual offence cases – Danny v The Queen[22] and DPP v Matthews[23]. Critically, in both of those cases each complaint involved a clearly sexual act and each complaint was of deliberate touching.
[22][2018] VSCA 223 (‘Danny’).
[23][2019] VSCA 11 (‘Matthews’).
45 A further observation to be made is that, in most multi-complainant sexual offence cases where tendency and coincidence evidence is admitted, the evidence for each complaint is capable of proving the relevant sexual offending in its own terms. Coincidence and tendency evidence is usually employed to support rather than supplant proof of an element.
46 As will become apparent, a detailed enquiry into the conduct the subject of each complaint in the tendency and coincidence notices shows that this case is quite different from cases like Danny and Matthews.
The Novak complaint (charge 1)
47 Certainly, deliberate touching of a testicle carries with it an overt sexual connotation. The question therefore is whether the touching of the testicle was deliberate.
48 In my view, when one takes Novak’s complaint at its highest (which I am required to do)[24] any inference of deliberateness which may arise from the touching of his testicle, without more, is, at best, a very faint one:
[24]IMM (2016) 257 CLR 300, 315 [50].
· First, the touching occurred in the course of what the Crown accepts was an otherwise legitimate and innocent activity (i.e. throwing of a boy into water), which took place during the mechanism of throwing.
· Second, the touching was of the briefest of possible durations. While it cannot be measured precisely, it is common ground that it occurred in a split second, as the accused propelled Novak into the air.
· Third, it was not a grabbing, rubbing or molestation of his genitalia. It was a superficial or light touching with a solitary finger. The evidence of Novak that it ‘felt like’ he had been touched on the testicle by the accused’s finger strongly suggests that any contact was of a glancing or fleeting kind.
· Fourth, there is otherwise nothing in the evidence which would imbue the episode with an obvious sexual connotation.
49 The Crown readily accepted during argument that Novak’s complaint (on its face) was essentially not one of deliberate (and thus) indecent touching. The Crown accepted that on the question of whether the touching was deliberate or accidental, Novak’s complaint is intractably neutral. It is not surprising the Crown conceded that Novak’s account, on its face, is not capable of sustaining a conviction of indecent assault.
50 The complaint of Novak is no better than intractably neutral, in the sense that the complaint could not, on its face, be regarded as more consistent with guilt (deliberate touching) than with innocence (accident). The highest it can be put (from the prosecution’s perspective) is that these inferences are equally open and thus any inference of intent could not be safely drawn. My view is that the inference of accident is demonstrably stronger than any inference of deliberate touching. On any view, this is not a complaint where the evidence simply falls a little short of proving an intentional element. There is either no evidence of an intention to sexually assault or, if there is, it is slight or extremely tenuous.
51 What this means is that the charged Novak conduct is incomplete. There is an elemental deficiency. In this case the Crown seek to rely upon the complaint of Osborne and the complaint of York to supply the evidence (or most of it) for that absent element. The Crown seek to effectively or largely fill an elemental gap in the complaint of Novak through the evidence of other complainants.
52 This is different from the typical multi-complainant sexual offence case where each complainant otherwise gives some cogent evidence in support of each element and where this evidence is buttressed, supplemented or enhanced by tendency or coincidence evidence.
53 Further, while it is unremarkable for tendency or coincidence evidence to be used to rebut the otherwise reasonable possibility of accident, the Crown is seeking to do more than that here. The prosecution is seeking to effectively convert the intrinsic character of the Novak event - which is one of apparent accidental touching - into an act of deliberate indecent touching.
The Osborne complaint (charge 2)
54 By contrast with the complaint of Novak, the complaint of Osborne is in the nature of deliberate touching for sexual gratification. As I have summarised, Osborne’s evidence was that the accused would effectively fondle or molest his penis, testicles and anus area prior to throwing him in the air and that the accused would do this with one hand. Osborne says that about half the time the accused would fondle his private parts over his bathers, and about the half the time the accused would put his hand under his bathers and touch Osborne’s genitals directly. Osborne also speaks of fondling, with pressure, of his anus.
55 It is unsurprising that the issue in this trial with respect to Osborne is whether the offending occurred at all. There is virtually no room left for the possibility of accident or misinterpretation.
56 Unlike the Novak complaint, Osborne’s complaint is ostensibly - at its highest - capable of proving the charged conduct. There is at least some evidence in support of each element. The Osborne complaint does not suffer from a patent elemental deficiency.
57 Again, by contrast with the complaint of Novak, which was a momentary isolated act, the Osborne complaint is pleaded on the Indictment as a course of conduct charge. This charge encompasses an allegation of persistent and repeated sexual abuse, directed at one complainant. Self-evidently, this is qualitatively different from the Novak complaint (isolated and solitary act) and indeed the York complaint (confined to one day).
The York complaint (uncharged)
58 York essentially makes two quite separate complaints that potentially involve acts with a sexual connotation. I will address these separately.
59 The first act is that immediately prior to York jumping from the accused’s shoulders, the accused would hold him by his upper thighs and the accused would slide his hands up higher until his fingers were digging into what York said was ‘my groin area and back, between his legs to my bum.’ Beyond this, York does not seem to give any further clarification about what ‘groin area’ meant to him. What was meant by ‘groin area’ is vague and uncertain. The prosecution accepts, however, that York’s description does not encompass his genitalia or anal area. Further, on any view this touching occurred during an apparently innocent and legitimate action. At committal, York confirmed that the accused would hold him by his thighs as high up as he could so that he could steady him prior to York jumping. In my view, the touching is highly equivocal, in the sense that it may or may not have sexual connotation. It is equivocal on the question of where he was touched, and on the question of what inference or inferences could be drawn in relation to the accused’s state of mind.
60 The second act complained of by York concerns, in part, the accused having an erect penis. Initially, the Crown alleged that this erection was temporally associated with a touching towards York’s groin area. During oral argument, the Crown conceded that the evidence of the erect penis could not be temporally linked to any touching on or near the groin area (whatever might be encompassed in that area, as understood by York). The Crown accepted that the erection occurred on an occasion (the last occasion) when the accused only held York around the thighs, at which time York fell off, and that this touching was an intrinsically legitimate and innocuous act. This touching is incapable of possessing a sexual connotation. The erect penis is therefore not associated with any overt improper touching. Nor is it associated with any equivocal touching (such as touching which may or may not have a sexual connotation).
61 To be clear, there is no evidence that the accused had the erection during a previous throwing where York was touched on or near the groin area and the Crown accept that the erection was not caused by this touching. In oral argument, the Crown appeared to concede that this episode did not support the tendency, which was contained in their tendency notice.
62 Finally, as to the accused’s statement ‘it is only natural’, the Crown did not appear to rely upon this as any evidence that furthers the argument that York’s complaint supports a tendency to deliberately indecently touch boys. In any event, the statement is ambiguous and just as the erection is temporally removed from an improper touching, so too is this statement.
63 The York complaint is uncharged. The prosecution accepts the complaint is not capable of safely sustaining a criminal conviction, in part because of issues associated with the quality of York’s evidence.
64 While I do not need to resolve this issue, it is at least questionable whether an inherently innocuous touching can amount to an indecent assault even if accompanied by evidence of sexual gratification.[25] However, this serves to highlight the different nature of this act from those acts sought to be proved in the charges and from the tendency sought to be established in the notices.
Tendency evidence application
[25]R v George [1956] Crim LR 52; R v Court [1989] AC 28.
65 Having conducted a survey of what each of these complaints prove taken at their highest, I now turn to specifically address the tendency reasoning argument.
The Novak and York complaints in support of the Osborne charge
66 I have concluded that neither Novak’s nor York’s evidence is capable of significantly bearing upon proof of the Osborne charge, even when their evidence is combined.
67 The only issue with respect to the Osborne charge is whether the allegation occurred. As I have said above, if it did occur then it had to be deliberate and thus indecent. So the question here is does the evidence of the complaints from Novak and York, individually or together, support the relevant tendency and to such an extent to make it significantly more probable that the Osborne offending occurred.
68 As I have said above, I am first required to determine the extent to which the evidence is capable of proving the relevant tendency. The relevant tendency is a tendency of the accused to intentionally touch boys in a sexual manner, under the cover of playing throwing games in water.
69 Turning first to Novak.
70 The Novak complaint does not disclose a tendency to deliberately touch. On that point, it is intractably neutral at best.
71 I am required to look at the common features between the tendency evidence (in this case, the complaint of Novak) and the charged sexual misconduct (the Osborne charge). While I recognise that there are some common features (touching of a boy’s private area in the course of a game played in water), Novak’s complaint bespeaks of accidental touching, whereas Osborne’s is unequivocally of deliberate sexual touching.
72 As the Court of Appeal in Matthews recently observed, a complaint of deliberate touching may be significantly probative of another complaint of deliberate touching. The Court concluded that a crucial feature which made the complaints significantly probative of each other was that they were of deliberate touching to rebut a defence of accident.[26]
[26]See Matthews [2019] VSCA 11 [14]-[17].
73 I do not consider that an isolated, fleeting, apparently innocent touching of one boy (Novak) can shed any real light, let alone significant light, on whether a complaint of obviously deliberate and persistent sexual groping is true (Osborne).
74 The complaint of Novak, which is not one of deliberate touching, and which occurred on a solitary occasion over a split second, falls significantly short of providing strong support for the proposition that the accused persistently molested Osborne.
75 Turning now to whether the York complaint is significantly probative of the Osborne charge.
76 I will first address the complaint of touching near to the groin area.
77 The York complaint proves that on another day the accused touched a boy on a part of his body which was not inherently sexual (i.e. not genitalia or anus), but which nonetheless may have been sufficiently proximate to these areas as to constitute sexual touching. Whether or not the touching had a sexual connotation is ambiguous.
78 On any view, York’s complaint is not one of demonstrable sexual molestation. If it does support any tendency to deliberately touch, the ambiguity of York’s complaint would imbue the tendency with ambiguity.
79 As to the extent to which this supports the Osborne charge, I allow that the York complaint may have some probative value, given there is an inference open that the touching involved sexual connotation, but it falls well short of significant probative value. At its highest, it provides weak or limited support. This support is also limited because it is only one episode (accepting as I have that the Novak episode is of nil value). At least to some extent, tendency reasoning turns upon the number of similar complaints made. I take this point up further when considering coincidence reasoning below.[27]
[27]See below [115].
80 I do not think that York’s complaint makes it more probable - to a significant degree – that the persistent sexual molestation of Osborne occurred.
81 Turning now to the question of the erect penis. In my view, the evidence of the erect penis can have little bearing upon whether the Osborne complaint of persistent physical molestation occurred.
82 It is true that on the evidence the accused appears to have obtained sexual gratification from the holding of York’s thighs, as evidenced by the erection. For a number of reasons, in my view this does not assist the Crown’s tendency application, or at least not to the degree required.
83 The Crown seeks to prove, by the notice, a tendency of the accused to touch boys on an overtly sexual part of the body, namely ‘their groin, genitals and bottoms’. In short the Crown seeks to establish a tendency of the accused to engage in deliberate improper touching for sexual gratification.
84 The erection per se does not involve any improper touching. At most it reveals sexual interest, but sexual interest alone is not what the Crown are seeking to prove by way of their tendency notice. (It is to be remembered also that the accused, on York’s account, never intended for York to see or otherwise come into contact with his penis).
85 It is true that the erect penis is associated temporally with touching, but it was touching of a palpably innocuous kind (holding the thighs during a legitimate steadying action), which is different from what the tendency notice alleges (intentionally touching boys indecently to the groin, genitals or bottom).
86 It is difficult to see how evidence of sexual arousal (which was not intended to be seen) as a result of touching one boy in a demonstrably innocent way (York) can be significantly probative of whether the accused deliberately touched two other boys (including Osborne) on an obviously sexual part of the body.
87 That is so even if the evidence of his sexual arousal (when accompanied by innocuous touching) can illuminate to some degree the character of his earlier touching of York (to the groin area). The association of the erection with the groin touching remains remote, which limits the degree to which it can illuminate the nature of that groin touching.
88 In my view, the probative value of the York and Novak complaints are so lacking that adding them together cannot change their character. By way of example, the inherent character of Novak’s complaint is of accidental touching and York’s complaint – which is itself significantly equivocal - does not alter this. Similarly, taken in combination, they do not render Osborne’s account – of unambiguous persistent molestation for sexual gratification – significantly more probable.
The Osborne and York complaints in support of the Novak charge
89 I have concluded that neither Osborne’s nor York’s evidence is capable of significantly bearing upon proof of the Novak charge, even when their evidence is combined.
90 A central issue to which the tendency evidence is directed is whether the accused deliberately touched Novak’s testicle.
91 The Osborne complaint, and the York complaint (in so far as it concerns the touching near to the groin area), do provide some support for the tendency alleged, namely, deliberate touching of boys under the guise of games in the water. Clearly though, the Osborne complaint provides much stronger support for this tendency than the York complaint.
92 However, my assessment of whether or not the evidence has significant probative value requires me to further consider the extent to which tendency is probative of the charge under consideration (i.e. the Novak charge).
93 As I have said above, there is an elemental deficiency or defect in the Novak charge. The fundamental character of the Novak charge, on the face of the complaint, is one of accident. At a best, it is intractably neutral.
94 The prosecution is not merely seeking to use the Osborne or York complaints to remove the possibility of accident so as to expose the element of intention otherwise present on the evidence. In this case the evidence for an element concerning one complainant’s charge (Novak) is being largely or almost entirely sourced from the complaints of other complainants (i.e. Osborne and York). In this context, to be significantly probative in this case the evidence would have to be of the most cogent and powerful kind. Further, it must also be compelling in order to substantially outweigh the risk of substitution reasoning[28] (I shall return to this).
[28]R v Ellis (2003) 58 NSWLR 700, 718 [96].
95 I do not think that York’s complaint reaches this probative strength. As I have observed, taken at its highest, whether the touching was indecent, is equivocal.[29]
[29]I note that the Crown are not able to charge this complaint, at least in part, because there are evidential deficiencies.
96 In my view, York’s complaint, which is of itself equivocal on the question of whether the accused deliberately touched for sexual gratification, cannot make it significantly more probable that the accused deliberately touched Novak, in circumstances which are at least intractably neutral.
97 The same observations I have made about the lack of probative value of the York complaint concerning the erect penis in support of the Osborne charge equally apply to the Novak charge.
98 As for the Osborne complaint, taken at its highest, it clearly shows a tendency to indecently assault a boy during games in the water, but it does so in circumstances of persistent and obvious molestation, which are a long way from the apparent accidental touching of Novak.
99 The problem with the Osborne complaint being used is two-fold. First, his complaint is the only one of clearly deliberate touching and as such its predictive value is limited. Second, it is being sought to transform a complaint which is intractably neutral at best and intrinsically accidental at worst. In my view, as a matter of common sense and experience, it does not have the capacity to alter the fundamental character of the Novak complaint.
100 The evidence of Novak bespeaks so strongly of accident that it is difficult to postulate how evidence of other complainants could theoretically supply evidence for the element of deliberateness. It may be that the sheer volume of many other complaints of deliberate touching by many different boys could, in combination, eventually reach that point. If there were other occasions against other complainants of such fleeting touching to sexual parts of the body, but accompanied, say, by admissions of sexual intent (or even a conviction), these might have the capacity to supply the relevant element for Novak. The evidence may well be more probative if there was other touching against the same complainant, thus revealing a specific interest in that complainant (i.e. Novak). We do not have these scenarios or such evidence here.
101 In my view, neither the Osborne nor York complaints, whether viewed alone or in combination, are sufficiently probative to supply the element of deliberateness to the Novak charge.
102 It is true that part of the tendency reasoning also goes to the issue of whether the Novak touching occurred at all (as distinct from whether it was deliberate). The defence has indicated that the question of whether the touching occurred would be an issue at trial.
103 That said, a reading of the Crown’s tendency notice indicates that central to the relevant tendency of the accused sought to be proved is that the accused acted intentionally or deliberately when touching. The tendency notice provides that the prosecution seek to rely on the tendency of the accused to:
Act in a particular way, namely:
a) To use the playing of games with boys in the water of a swimming pool or other large body of water as an opportunity and cover for intentionally touching boys on their groin, genitals and bottoms, in a sexual manner;
Have a particular state of mind, namely:
b) Intentionally touch boys indecently whilst playing games with them in the water of a swimming pool or other large body of water.[30]
[30]Emphasis added.
104 Having expressed it in this way, I think it is plain that the prosecution does not seek to separate out the issues of whether the touching occurred and whether it occurred deliberately.
105 In any event, insofar as consideration of the Novak charge is concerned, it would be wholly unrealistic to try to separate out these issues. It would be nigh on impossible for a jury to confine its consideration of the tendency evidence to the issue of whether the Novak touching occurred at all, even with the benefit of judicial instruction. The issue of whether the Novak touching was deliberate or accidental looms large. Proof that the touching occurred, would still leave unresolved this fundamental question. If the Osborne and York complaints were admitted on the issue of whether the Novak touching occurred, a jury could not reasonably be expected to put this evidence out of their minds when considering the issue of the accused’s intent when touching Novak.
106 It follows that in order for this evidence to be admitted, it must be significantly probative on the issue of deliberateness. I have found that it is not.
107 That being said, I am also of the view that the complaints of Osborne and York are not significantly probative on the issue of whether the touching of Novak occurred at all (as distinct from whether it was deliberate). There are only two other complainants in this matter: the touching against one of them (Osborne) is of a vastly different nature (persistent molestation, as distinct from a solitary glancing touch) and it is not clear whether the touching of the other (York) was to a sexual part of the body.
Coincidence evidence application
108 The prosecution contend that there is such a degree of similarity between the events described by each of the complainants that their evidence is strongly supportive of the propositions that:
a) The touching upon their groin/genitals/anal region was intentional rather than accidental, by reason of the improbability that such similar acts occurred accidentally rather than intentionally; and/or
b) It is highly unlikely that three complainants would make such similar allegations if the events described did not happen in the manner alleged.
109 The argument thus turns upon there being a high degree of similarity between each of the complainant’s accounts.
110 I recognise that there a number of similarities between the complaints, such as:
· They each occurred in the mid to late 1970s;
· They each occurred in a body of water;
· They each occurred while playing a ‘throwing’ game;
· They each involve touching to their private parts or proximate to these areas (with the exception of the York act involving the erect penis);
· They each occurred while other people were around;
· Each complainant was a pre-pubescent or young adolescent boy.
111 The similarities, however, are not as great as they may first appear.
112 Much of my analysis of the evidence in relation to tendency reasoning[31] carries over to my consideration of coincidence reasoning and I adopt it. I will not repeat it all, but wish to reiterate the qualitative character of each complaint, which in turn informs the question of whether there are sufficient similarities to raise coincidence reasoning:
[31]Cf. [65]-[107] above.
· One involves demonstrable, seemingly calculated persistent sexual molestation (Osborne);
· One involves an isolated fleeting, glancing touching which bespeaks of accident (Novak);
· One (York) involves at least equivocal touching (the groin area) and separately, sexual arousal accompanied by innocent touching (York – holding on the thighs followed by erect penis).
113 It is therefore apparent that this is not a case of three boys making a series of complaints of patently deliberate touching. If that were the case, there might be an attractive - even powerful - coincidence reasoning argument. Each would reinforce the other.
114 The fundamental character of the Novak account is of a materially different quality from the Osborne account, as I have detailed above. My value judgment is that marrying them together, even with the York account, does not raise or is not capable of raising, as a matter of common sense and experience, the improbability of invention or accident.
115 Coincidence reasoning, to some extent at least, turns upon the number of similar complaints independently made. The greater the number of complainants the more improbable coincidence becomes as a matter of logic, and the less distinctive or similar the evidence needs to be satisfy the coincidence reasoning.[32]
[32]Page [2015] VSCA 357 [58].
116 Here, at most there are three complainants and only one is a complaint of unequivocal deliberate touching (Osborne). Combining them all does not equate to a disposition to deliberately touch.
117 The evidence of each complaint would only be admitted as coincidence evidence if, by reason of the similarities which do exist, it raises in relation to the Osborne charge the improbability that the events are not true and in relation to the Novak charge the improbability that the touching was accidental.[33]
[33]These are the two principal issues in relation to these two charges. Cf. [67] [90] [102].
118 It is my view that such similarity as does exist between the complaints is not sufficiently distinctive or similar to raise the improbability of coincidence.
Unfair prejudice and section 101
119 In my view, none of the complaints reaches the required significant probative value to justify admission under ss 97 or 98 of the Act.
120 However, if I am wrong, and the evidence does possess significant probative value, it would barely reach that threshold and I would nevertheless exclude this evidence under s 101.
121 In my view, the risk of unfair prejudice to the accused in admitting this evidence substantially outweighs the probative value. That risk comprises a combination of matters, which I shall now discuss.
Disproportionate weight and substitution danger in proof of Novak
122 There is a very significant disparity in the quantity and quality of the evidence of deliberateness and indecency between the Novak complaint on the one hand (which conveys accident or is at least intractably neutral) and the Osborne complaint on the other hand (which signifies clear deliberate touching).
123 This case carries with it the real risk that a jury may too readily use the Osborne complaint (and to a lesser extent York’s complaint) to supply what is effectively the missing intentional element with respect to the Novak complaint. In so doing the danger is that the jury will be diverted from critically assessing the neutral nature of the Novak episode, or the evidence which is highly suggestive of accident.
124 The risk could be characterised as substitution reasoning: namely, that because the accused touched Osborne deliberately (and indecently), then so too must the touching of Novak have been deliberate (and indecent).
125 In considering the Novak charge, the jury may thus over-estimate the probability that the accused acted on the tendency to deliberately indecently touch.
126 To be clear, this danger would not be nearly as great if the Osborne complaint were being relied upon merely to clarify or fortify some existing reasonable evidence of deliberate touching. The jury would then have some real evidence of intent to work with, and would have a focus upon Novak, thereby reducing the risk of precipitously leaping to a conclusion. So if Novak had made a complaint of fondling of his genitals, the danger would either not exist or would be greatly diminished.
127 During the course of argument the prosecution drew upon the metaphor of baking the cake. The prosecution submitted that when each of the complaints are thrown into the mix, a conclusion of guilt can be drawn in relation each charge. This approach obscures the need to assess what each complaint is about and any deficiencies.
128 There is a further related source of prejudice. The Osborne complaint is one of persistent sexual molestation. Acceptance of the Osborne complaint, would likely lead the jury to conclude that the accused was a man who was prepared to act repeatedly and grossly in order to satisfy his perverted sexual appetite. This risks overwhelming the jury’s consideration on the Novak charge as to the accused’s state of mind. There is also a danger that the jury may confuse what appears to be a sexual interest in Osborne, with a sexual interest in boys generally.
Prejudice from York complaint regarding standard of proof for Novak charge
129 There is also a risk that the jury will use the York complaint alone to supply the missing element in the Novak charge.
130 In order for the jury to return a verdict of guilty in relation to the Novak charge the jury will have to be directed that they must be satisfied of the element of intention beyond reasonable doubt.
131 As I have previously found, there is virtually no evidence in support of the intentional element from Novak in relation to the Novak charge.
132 The prosecution seek to supply the evidence – or much of it - for that element from the tendency and coincidence evidence. As a species of circumstantial evidence, tendency and coincidence evidence attract no particular standard of proof.
133 Further, as the York complaint is uncharged, the jury will never be invited to consider whether that complaint has been established beyond reasonable doubt (unlike the Osborne complaint, which is charged).
134 This all raises the danger in this case that the jury may fill the elemental gap in relation to the Novak charge (which of course must be proved beyond reasonable doubt) with evidence sourced from York (without it having been proved to the criminal standard), thus undermining the requirement that the Novak charge, and its constituent elements, be proved beyond reasonable doubt.
135 The Crown seek to rely upon the York charge in circumstances where it accepts the York complaint is incapable at law of supporting a criminal charge beyond reasonable doubt. For that reason also the Crown has accepted it would be wrong for the jury to be invited to supply the intentional element for Novak from the complaint of York alone.
136 The Crown submits that this risk could be sufficiently addressed by a direction to the jury that they cannot meet the intentional element in relation to the Novak through the evidence of York alone; they could only use the York evidence in combination with the Osborne complaint.
137 The problem with this approach is that the jury will see that the York complaint could be used alone in proof of the Osborne charge. The jury would likely ask themselves the natural question: if the York complaint alone is good enough to support one charge (Osborne), why not the other (Novak)? In these circumstances, it may be hard for a jury to follow these directions.
Disproportionate weight will be given to York complaint (erection)
138 The evidence of the erection detailed in York’s complaint is likely to evoke a significant degree of unfair prejudice.
139 There is a risk that the jury will temporally connect the accused’s erection and sexual arousal to his touching of York in or near the groin area. As I have explained above, it is not so connected. Even the prosecution conflated these two events before conceding in fact that they were not contemporaneous. I do not raise this as a criticism of the Crown, only to illustrate the presence of the risk.
140 Even though the erect penis is unrelated to any improper touching and was never intended to be exposed to York, it is evidence of sexual arousal in the presence of a boy during a throwing game in the water. The jury would likely be all too easily tempted to reason that because the accused is sexually aroused by the presence of one boy in the course of throwing games while swimming, he must have been sexually aroused when touching Novak, when there is in fact no evidence that he was ever sexually aroused in the presence of Novak. The risk here is that the jury will superimpose the evidence of sexual arousal arising from the York incident (which involved no overtly indecent touching) onto the Novak incident.
141 The degree of risk of the jury over-estimating the weight of the evidence of the erection in relation to the Osborne charge is less. However, any evidence that the accused was sexually aroused around another boy (in the absence of inappropriate touching), whilst playing games in water, carries with it a risk that the jury will reason too quickly that the events as detailed by Osborne – which patently involve repeated molestation for sexual gratification – occurred.
142 I appreciate that the risks associated with the introduction of the evidence concerning the erection can be addressed by excluding that evidence. This danger would not otherwise result in the exclusion of the balance of the tendency and coincidence evidence. However, this would not address the risks of prejudice I have identified elsewhere in relation to the remainder of York’s complaint (i.e. the other act) or the other evidence.
Circular reasoning involved with Novak complaint and Osborne charge
143 Circular reasoning is always a danger where all the acts that are the subject of the tendency or coincidence reasoning are disputed. Conversely, the absence of dispute means that the risk of circular reasoning will not arise.[34]
[34]Page [2015] VSCA 357 [50]; AE v The Queen [2008] NSWCCA 52; Ibrahim v Pham [2004] NSWSC 650.
144 Here the risk is real, at least in so far as the Novak and York complaints are relied upon as tendency evidence in proof of the Osborne charge.
145 When considering the Osborne charge, the jury will be invited to act upon the Novak complaint as tendency evidence, which itself needs significant shoring up. The Novak complaint is extremely weak, even defective, on its face – there is virtually no evidence of intention or deliberateness. This can be contrasted by the force of the Osborne charge. In these circumstances the jury will be tempted to use the Osborne charge to shore up the Novak complaint. Once they have so reasoned, they might then use the Novak complaint (strengthened by the Osborne complaint) to resolve the dispute in relation to the Osborne charge. This would represent impermissible circular reasoning.
146 A similar point can be made with respect to reliance on the York complaint, itself equivocal, in proof of the Osborne charge.
Conclusion
147 By way of conclusion, two of the complaints by themselves are incapable of sustaining a conviction for a criminal charge – the Novak complaint is effectively missing an element (deliberateness) and the Crown has accepted that the York complaint remains uncharged, in part, because of the quality of the evidence (I have highlighted some of its deficiencies).
148 The prosecution relies upon tendency and coincidence evidence (Osborne and York) to effectively supplant rather than merely support an element of the Novak charge: accepting that tendency and coincidence evidence can be used in such a novel way, this is a very high bar to jump and it has not been cleared in this case.
149 Further, an isolated complaint which is not of deliberate touching (Novak) and a complaint which is equivocal on that point (York) do not strongly support the occurrence of a complaint of persistent overt deliberate touching (the Osborne charge).
150 Approaching the evidence more holistically in order to raise coincidence reasoning is no more convincing. This simply risks glossing over the depth of the evidential deficiencies in relation to two of the complaints (Novak and York), and invites a superficial overestimation of the unity between all three complaints. It does not raise, to the requisite degree, the improbability that these events all occurred by coincidence.
151 In any event, the admission of the evidence would work an unacceptable unfairness to the accused, for the reasons I have outlined.
152 The function of tendency and coincidence evidence is undoubtedly to strengthen complaints and to make the whole stronger than the sum of its parts. However, in this instance, the whole has not been made greater than the sum of its parts, at least not to the extent necessary to justify the admission of the evidence.
153 There is a limit to what the law allows. Parliament recognises this limit through the imposition of admissibility restrictions via ss 97, 98 and 101. It is one thing to strengthen or reinforce individual complaints through the lens of the collective weight of the complaints, it is quite another to seek to cure fundamental defects and weaknesses or to change or obscure a complaint’s essential character. The tendency and coincidence applications seek to do the latter here. There is a limit to what can be saved.
154 For all of the reasons I have detailed above, the prosecution’s applications to admit evidence of the complaints of Novak, Osborne and York as either tendency evidence pursuant to s 97(1) or coincidence evidence pursuant to s 98(1), or both, are refused.
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