Director of Public Prosecutions v Roder (a pseudonym) (Ruling)

[2023] VCC 2487

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN RODER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2023
DATE OF SENTENCE:	12 September 2023
CASE MAY BE CITED AS:	DPP v Roder (a pseudonym) (Ruling)
MEDIUM NEUTRAL CITATION:	[2023] VCC 2487

RULING
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Subject: CRIMINAL LAW - RULING

Catchwords:              Uncharged acts as tendency evidence; standard of proof; jury directions.

Legislation Cited: s19 Jury Directions Act 2015 (Vic); s62 and s61 Jury Directions Act 2015 (Vic).

Cases Cited: R v Bauer [2018] HCA 40; Hughes v R [2017] HCA 20; R v Dempsey [2009] VSCA 224.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Hancock	Solicitor for the Office of Public Prosecutions
For the Accused	Mr S. Anger	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

1The first matter which needs to be decided in this case in regard to Roder is the question of pre-text conversation.  The prosecutor seeks to use a pre‑text conversation with [EW] on the first day of December 2019 with Mr Roder.  The initial question is as to whether it is really open upon reading the relied upon passage, as detailed in [57] of the further amended particulars, dated 12 September 2023. 

2The prosecution seeks to use such passages as circumstantial evidence in support of the tendency evidence, having specifically disavowed using them as an admission of post conduct incriminating evidence, on the basis, of course, that no notice has been served as required by s19 of the Jury Directions Act, and alternatively to use such to provide evidence as to context. 

3To fully appreciate the alleged statement, one must read all of the conversation in pre-text, being both on 1 December 2019, which is the date relied upon, and on 2 December 2019, which is detailed at pp216 to 246 in the depositions.

4To be admissible, there needs to be a degree of specificity in the alleged conduct, and a statement made by Mr Roder, which evokes an awareness of the offences alleged (in this case, the 11 charges against). 

5Having read the transcription, I find neither aspect demonstrated.

6I therefore find such statements inadmissible, as being:

(a)   not relevant under s55; and

(b)   not capable of being used as evidence supportive of the proof of a sexual tendency, and acting on the same, or alternatively, as context evidence.

7Then coming to the next issue, which is the issue of tendency evidence.  An amended notice of 12 September 2023 has been filed.  Mr Anger, on behalf of Mr Roder, did not dispute the cross-admissibility of all the 27 charges in the new indictment, no.2A – and actually I did not confirm this with you, Mr Anger.  Does that concession relate now to all of the uncharged acts that is A to F?

8MR ANGER:  It does, in relation to the indictment, yes, Your Honour.

9HIS HONOUR:  Thank you.  And the uncharged acts detailed A to F in the amended s97(1)(a) notice, dated 18 September 2023. Such, it seems to me, is an appropriate concession, given the principles espoused in R v Bauer [2018] HCA 40, in [58] and [59], and in Hughes v R [2017] HCA 20, [41] and [56] to [58], with the common features in this case, as detailed in the notice, being (a), the use of a position of trust; (b), the opportunity; (c), the brazenness to indulge in such acts while there was a high risk of detection; (d) the use of threats as intimidation and to maintain secrecy.

10The issue before the Court is the competing submissions as to the standard of proof, which should attach to the use of the charged acts when used as probability reasoning to establish a sexual interest in his two step-children and a willingness to act upon same, thereby being able to be used in the process of probability reasoning in regard to each charged act, as to making it in each case more likely that the facts found in the charges occurred.  It should be noted that the uncharged acts have not been part of the tendency notice until the above-referred amendment.

11In a ruling on this circuit last week, I decided, in a single complainant case, that the charged acts had to be proved beyond reasonable doubt (see my ruling in the case of Roder on 5 September 2023), such ruling being made against the submission put by the prosecutor, upon instructions. 

12Two weeks before that, I charged in exactly the same way, in a two-complainant case where the prosecution, upon instructions, submitted that given the case of R v Dempsey [2009] VSCA 224, at [76], that such was the way that I should charge. This determination was also based on the reference to standard of proof in the Bench Book on tendency evidence, chapter 4.17, [56]. The case I referred to is Hubeek, in which there were 17 charged acts and eight acts of misconduct.

13The prosecution has submitted in this case – that is, this case now about to be heard – that the tendency goes to state of mind.  It can be differentiated because it does not concern a single complainant, and does not involve the sequential risks which were the concern of the Court in Dempsey.  The prosecutor submitted that to charge otherwise than in the manner than the prosecution submits is to ignore the provisions of s62 and s61 of the Jury Directions Act.

14Mr Anger submitted that I should follow Dempsey and charge as to the charged acts that they should be proved beyond reasonable doubt, and to do otherwise would lead to circularity of reasoning and the risk that each individual charge was not considered separately upon all the relevant evidence in regard to that charge. 

15I accept that in Dempsey, the evidence in Charge 1 was being used as both coincidence and tendency evidence to prove relevant intention in regard to Charge 2, and that the coincidence and tendency evidence in regard to Charge 2 was being used to prove identity in Charge 1.

16As the Appeal Court said strictly under s61, it need not be necessary to prove those facts beyond reasonable doubt for that purpose, [76].  However, the Court in that paragraph, went on to say:

“However, if directions were given to the jury regarding the use that might be made of the evidence on Charge 1 as coincidence or tendency evidence on Charge 2, by reference to a standard of proof lower than the criminal standard, then that would confuse and would be calculated to undermine the criminal standard of proof that must be applied by the jury for it to convict on Charge 1.”

17They continued:

“Accordingly ... it would be necessary for the jury first to be satisfied beyond reasonable doubt of the guilt of the applicant on Charge 1.”

18I find that to apply in this case two different standards to each charged act would be an act of sophistry and would undermine the criminal standard of proof. 

19Where a finding as to the charged acts occurring requires satisfaction of the elements which the jury will be instructed upon, I Find, s61 of the Judicial Directions Act must apply.

20To instruct the jury to apply a lesser standard of satisfaction as to the charged acts for the purpose of tendency/probability reasoning and then instruct them to be satisfied beyond reasonable doubt as to the individual charges would not only be confusing for the jury but may well lead to the risk of injustice to the accused.  I therefore intend to charge as I indicated, as detailed in the references I have already made to the Bench book.

21I Find that charging in such way, will at least intellectually discriminate between sexual misconduct and charged acts which would justify discrimination as to standard of proof, that is, that the sexual misconduct evidence must be found to have occurred to be used as tendency evidence and the charged acts must be proved beyond reasonable doubt. 

22Support for such discrimination is provided by what was said by the majority in Hughes at [63] in that the tendency is proved by the evidence of both complainants as to a variety of sexual actions which is of significant probative value.

23However, as detailed in the next paragraph, [64], the probative value of such evidence makes more likely the happening of the elements of the offences charged, and a tendency expressed is at a level of particularity which will be more likely to be significant. 

24In this case, the prosecution has chosen to be used, as evidence of tendency, the particularity of the acts as detailed in the notice being each actual charge under the Crimes Act.

25In such circumstances, to charge as the prosecutor submits would, as I have said, be an act of sophistry. 

26Hence, I have determined the jury will be instructed sequentially as follows:  firstly, I would recommend to the jury, not that I can determine how and what they do when they are in the jury room, that they decide firstly as to whether they are satisfied that the six acts of sexual misconduct occurred.  I would not suggest to them that there is any standard involved in that consideration.  In particular, I would not charge them that they must be satisfied as to the civil standard.

27Secondly, when they come to Charge 1, I would tell them that they can take account of the principles of tendency and probability reasoning as put in the prosecution case, as I would explain to them what that means, based upon the number of the six acts of sexual misconduct that they are satisfied occurred.

28When we then come to Charge 2, I will direct them that they can take into account the principles of tendency and probability reasoning as put in the prosecution case upon the number of the six acts of sexual misconduct which they find occurred and Charge 1 if proved beyond reasonable doubt, and so on, sequentially. 

29And that would obviously, depending on the number of charges found proved, increase the incidence, if I put it that way, of evidence relied on to prove the tendency and to allow such tendency to be utilised as probability reasoning. And I so Find.

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