Director of Public Prosecutions v Wesley Matthews (a pseudonym)[1]
[2019] VSCA 11
•7 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0259
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| WESLEY MATTHEWS (a pseudonym)[1] | Respondent |
[1]Because this is a interlocutory proceeding, a pseudonym has been used in place of the name of the respondent and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | MAXWELL P and TAYLOR AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 December 2018 |
| DATE OF ORDERS: | 10 December 2018 |
| DATE OF JUDGMENT: | 7 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 11 |
| JUDGMENT APPEALED FROM: | DPP v [Matthews] (Unreported, County Court of Victoria, Judge Brookes, 27 November 2018) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Tendency evidence – Tendency to act on sexual interest with children – Sexual offences – Two complainants – Judge ruled evidence not cross-admissible – Judge refused to certify – Whether probative value substantially outweighed prejudicial effect – Availability of defences not relevant to determining probative value or possible prejudicial effect – Leave to appeal granted – Appeal allowed – R v Bauer(a pseudonym) (2018) 359 ALR 359, Hughes v The Queen (2017) 344 ALR 187 – Criminal Procedure Act 2009 s 296, Evidence Act 2008 ss 97(1), 101(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A J Grant | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr C K Wareham | Slades & Parsons |
MAXWELL P
TAYLOR AJA:
Summary
The respondent (‘WM’) is facing trial on five sexual offence charges. They comprise four charges of taking part in an indecent act with a child under 16, the alleged victim being a 12-year-old girl (‘R’). The fifth charge is of sexual penetration of a child under 16, the alleged victim being R’s sister (‘T’), who was aged nine at the time.
At a pre-trial hearing, the prosecutor submitted that the charges should be heard together and that the evidence to be given by each complainant was cross-admissible as tendency evidence. On 27 November 2018, the trial judge rejected the prosecution submission, ruling that the evidence was not cross-admissible and ordering that charges 1 to 4 be tried separately from charge 5. Later that day, his Honour refused the prosecution’s application for certification under s 295(3)(a) of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’).
The prosecution subsequently applied to this Court under s 296 of the Criminal Procedure Act to review the judge’s refusal to certify. That application was heard on 10 December 2018. At the conclusion of argument, we announced that the application would be granted and that, pursuant to s 296(4)(b) of the Criminal Procedure Act, the applicant would have leave to appeal against the ruling. We ordered that the appeal be allowed, the judge’s decision set aside and the evidence ruled cross-admissible. We said we would give our reasons in due course. These are those reasons.
As will appear, the judge upheld a defence submission that the evidence to be led in support of charges 1 to 4 would adversely affect WM’s ability to advance a defence of accident to charge 5. This in turn affected his Honour’s assessment of both probative value and possible prejudicial effect, for the purposes of ss 97(1) and 101(2) of the Evidence Act 2008 (‘Evidence Act’). As a result, the ruling involved error of law, as the availability of defences is not a relevant consideration in the making of those assessments.
The hearing at first instance
In early 2015, WM and his 11-year-old daughter visited the home of a friend of his, AB, who is the father of the complainants. During those visits, it is alleged, WM had contact with the complainants and engaged in sexual activity, as follows:
(a) charge 1 involved WM brushing his hand over the buttocks of the complainant R, over her clothing, while he was in close proximity to her. (It is further alleged that he was involved in the same behaviour on other occasions. That behaviour is not the subject of a charge.);
(b) charge 2 involved WM reaching over R’s shoulders and grabbing her breasts with both of his hands, over her clothing, while he was in close proximity to her;
(c) charge 3 involved WM cupping R’s buttocks with his hands, over her clothing, while he was in close proximity to her;
(d) charge 4 involved WM brushing his hand over R’s vagina, over her clothing, while he was in close proximity to her; and
(e) charge 5 involved WM pushing his finger against and into the vagina of the complainant T, over/through her clothing, while he was giving her a ‘piggy back’ in the pool and rolling horizontally under water.
The prosecutor submitted that, even though charge 5 alleged the more serious offence of sexual penetration of a child under 16, the charge involved alleged offending of ‘an extremely similar type’ to that alleged in charges 1 to 4. Charge 5 involved a brief touching on and through the complainant’s bathers. Any prejudice would be more than adequately cured by the direction that the jury must consider each charge separately.
The evidence was to be led to show that WM had a tendency to have a particular state of mind ― a sexual interest in underage females ― and to act on it in a particular way, by using his position as the father of an underage female to engage with the complainants who were underage females. The evidence was said to be capable:
(f) of establishing that WM had a sexual interest in each of the complainants. It was submitted that s 97(1) of the Evidence Act explicitly provides for tendency evidence to prove a state of mind; a sexual interest in young children is a particular state of mind; and, in cases involving charges of sexual offending against young children, proof of that state of mind may have significant probative value;[2] and
(g) of being relevant to whether either or both of the complainants had fabricated the allegations;[3] and to whether the prosecution had rebutted the defence of accident.
[2]See Hughes v The Queen (2017) 344 ALR 187, 197 [32], 199 [39] (‘Hughes’); R v Bauer (a pseudonym) (2018) 359 ALR 359, 375–6 [51] (‘Bauer’).
[3]See also Hughes (2017) 344 ALR 187; Thrussell (a pseudonym) v The Queen [2017] VSCA 386 [53].
According to the prosecutor’s submission to the judge, the probative value of the evidence substantially outweighed any prejudicial effect that it might have, since:
(h) the alleged offending involved WM engaging in sexual activity, with two underage females, which was of substantially the same character;
(i) the complainants were sisters aged 12 and 9 years at the relevant time;
(j) the alleged offending occurred over the same short period while WM was visiting the family of the complainants; and
(k) each of the events had a special, particular or unusual feature, in that the acts were carried out in close proximity to other family members and involved a ‘brazen disregard of the risk of discovery’.[4]
[4]See Hughes (2017) 344 ALR 187; Bauer (2018) 359 ALR 359, 378–9 [58]–[59]; Bauer (a pseudonym) v The Queen [No 2] [2017] VSCA 176 [62].
Counsel for WM accepted that the evidence which formed the basis of charges 1 to 4 was admissible as tendency evidence in respect of those charges, but objected to the evidence to be given in support of those charges being admitted as tendency evidence in respect of charge 5. Counsel submitted that there were significant differences in the behaviour described. His principal submission, however, was directed at the prejudice said to flow from the fact that different defences were to be advanced.
As to charges 1 to 4, counsel accepted that what was alleged was deliberate touching, which left no room for the possibility of accident. The defence to those charges would simply be that the alleged conduct did not occur. In relation to charge 5, however, the defence would be accident. What was alleged by counsel was ‘a scenario just so inherently likely to be accidental’. The danger, counsel submitted, was that the focus ― in relation to R’s allegations ― on whether the acts occurred at all would lead the jury to ‘put aside the nuances of whether [what was alleged by T] was an accident or not’.
In the course of exchanges with the prosecutor, the judge appeared to accept the submissions directed at the similarity of the conduct alleged, and at the common feature of brazenness. But his Honour indicated that he saw force in the defence contention about the adverse impact on the proposed defences of accident, and sought further submissions from the prosecutor. In the event, his Honour regarded this as the decisive factor.
His Honour’s conclusion was expressed in these terms:
In my view the two main distinguishing features between Charges 1 to 4 on the one hand, and Charge 5 on the other, is that Charges 1 to 4 involve behaviour that is clearly deliberate, whereas Charge 5 is open to the defence of accident. In other words there is a different modus operandi with regard to the two complainants.
Further, the fact that there is no misbehaviour on the part of the accused with respect to T, either occurring before or after the alleged conduct of Charge 5 means that the tendency evidence of Charges 1-4, if so admitted would have an undoubted prejudicial effect.
In my view the evidence with respect to Charges 1 to 4 does not have significant probative value with respect to Charge 5 and I do not consider that the evidence with respect to Charge 5 has significant probative value with respect to the charges laid out, Charges 1 to 4.
If I am wrong in that finding I am not satisfied that given that there was significant probative value that that probative value substantially outweighed any prejudicial effect. In my view the prejudicial effect in the circumstances set out substantially outweighs the probative value.[5]
[5]Emphasis added.
Consideration
Before evidence can be admitted as tendency evidence, the court must be satisfied that the evidence will have significant probative value[6] and that its probative value ‘substantially outweighs any prejudicial effect it may have on the accused’.[7] In making those assessments, the court must proceed on the assumption that the evidence will be accepted by the jury.[8]
[6]Evidence Act s 97(1)(b).
[7]Ibid s 101(2).
[8]IMM v The Queen (2016) 257 CLR 300, 313–14 [42]–[45].
In the present case, accordingly, his Honour was required to assume that the jury would accept the accounts to be given by R and T respectively. As the defence accepted, R’s account was of deliberate touching on a number of occasions. Crucially, T’s account was also of deliberate touching ― in her case, an act of penetration. On the assumption which the judge was required to make, there was no difference in WM’s modus operandi as between the two complainants.
The fact that the defence to charge 5 was that of accident was irrelevant to the assessment of the probative value of T’s evidence. In the same way, the fact that a different defence position was to be adopted with respect to charges 1 to 4 was irrelevant to the assessment of any unfair prejudice which would flow from the admission of R’s evidence as tendency evidence in the trial of charge 5.
The evidence of each complainant was of significant probative value. As the judge appeared to accept, there was a high degree of similarity between the acts alleged by the respective complainants. And, as he also appeared to accept, there was a very significant common feature linking the evidence of the two complainants. It was the common feature identified by the majority in Hughes v The Queen,[9] later characterised by a unanimous Court in Bauer[10] in these terms:
a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection.[11]
As the Court said, the existence of such a common feature
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.[12]
[9](2017) 344 ALR 187, 203–4 [57]–[60].
[10](2018) 359 ALR 359.
[11]Ibid 378–9 [59].
[12]Ibid 378 [58].
The fact that R’s evidence of deliberate touching might tend to support T’s evidence of deliberate touching (and hence defeat the defence of accident) was not ‘unfair prejudice’ for the purposes of s 101 of the Evidence Act. On the contrary, it was prejudice of the legitimate kind invariably associated with evidence which is probative of a charge.
For these reasons, we concluded that the evidence of each complainant had significant probative value and that its probative value substantially outweighed any prejudicial effect it might have on WM.
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