Doyle v The Queen
[2015] VSCA 66
•20 April 2015 (Revised 3 October 2016 —[4]–[6] revised to preserve the anonymity of the parties)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0046
| PAUL DOYLE (A PSEUDONYM) [1] | Appellant |
| V | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Appellant.
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| JUDGES | ASHLEY and OSBORN JJA and JOHN DIXON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 16 April 2015 |
| DATE OF JUDGMENT | 20 April 2015 (Revised 3 October 2016 —[4]–[6] revised to preserve the anonymity of the parties) |
| MEDIUM NEUTRAL CITATION | [2015] VSCA 66 |
| JUDGMENT APPEALED FROM | R v [Paul Doyle] (Unreported, County Court of Victoria, |
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CRIMINAL LAW — Interlocutory appeal — Leave to appeal — Two complainants — Coincidence evidence — Severance — Leave to appeal granted — Interlocutory decision set aside — Order made in lieu.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Ms J.L. Clark | LAC Lawyers |
| For the Crown | Mr G.J.C. Silbert QC with Ms R. Champion | Solicitor for the Office of Public Prosecutions |
ASHLEY JA:
OSBORN JA:
DIXON AJA:
Before the Court is an interlocutory appeal from a decision constituted by the ruling of a County Court judge made on 4 March 2015 in the case of a man charged with 14 historical sex offences, nine against complainant A and four against her sister, B.
The judge having certified under s 295(3) of the Criminal Procedure Act 2009, the question which arises is whether the applicant, Paul Doyle, should have leave to appeal against the decision. By his grounds of appeal, he alleges that the judge erred by —
(1)concluding that the evidence in respect of charges 1, 3, 10, 11 and 12 (‘the five charges’) was coincidence evidence, that it had significant probative value, and thus that the evidence in respect of those charges was cross-admissible. We pause to say that charges 1 and 3 relate to complainant A, whereas charges 10, 11 and 12 relate to complainant B;
(2)concluding that it was not reasonably possible that the evidence of the complainants was contaminated, and was thus inadmissible as coincidence evidence;
(3)failing to order separate trials in respect of the charges referable to complainants A and B — save in respect of charge 14, which alleges very different and much later offending against complainant B, and about which we will say no more in these reasons.
Circumstances
The Crown case is broadly as follows.
Complainant A was born in 1963.
Complainant B was born in 1965.
Their childhood was relevantly spent with their parents.
At relevant times, the complainants’ grandmother lived at the adjoining premises.
The complainants’ father cut a gap in the fence between the two properties. This gap enabled access to the rear section of each of the properties.
The applicant married M in about 1975.
The complainants are the daughters of his wife’s brother and the latter’s wife.
For a period before the applicant married M, and for some years thereafter, he at first regularly visited and thereafter lived at the grandmother’s premises.
According to the indictment, the applicant committed eight offences (charges 1 to 8) against complainant A in the period between 1 June 1974 and 31 December 1975, and one offence (charge 9) between 1 January 1976 and 31 December 1976.
Further according to the indictment, against complainant B the applicant committed two offences (charges 10 and 11) between 1 January 1976 and 31 December 1977, one offence (charge 12) between 1 January 1977 and 31 December 1980, and one offence (charge 13) between 1 January 1979 and 31 December 1980.
In the case of complainant A, most of the alleged offences took place when she was aged between 11 and 12, and one when she was aged between 12 and 13.
In the case of complainant B, the offences comprehended by charges 10 and 11 occurred when she was aged between (nearly) 11 years old and 12, in the case of charge 12, when she was aged between (nearly) 12 and 15, and in the case of charge 13, when she was aged between (nearly) 14 and 15.
With respect to complainant A, the general detail of the charges is as follows —
·Charge 1: The applicant squeezed the complainant’s breast.
·Charge 2: The applicant gripped the complainant’s vagina.
·Charge 3: The applicant squeezed the complainant’s breast.
·Charge 4: The applicant rubbed the complainant’s vagina.
·Charge 5: The applicant digitally penetrated the complainant’s vagina.[2]
·Charge 6: The applicant penetrated the complainant’s vagina with his penis.
·Charge 7: The applicant digitally penetrated the complainant’s vagina.
·Charge 8: The applicant digitally penetrated the complainant’s vagina.
·Charge 9: The applicant penetrated the complainant’s vagina with his penis.
[2]The digital penetrations alleged by charges 5, 7 and 8, according to the indictment and reflective of the legislative regime at the time, are characterised as indecent assaults.
In the case of complainant B, the indictment alleges that —
·Charge 10: The applicant grabbed the complainant’s breast and squeezed her nipple.
·Charge 11: The applicant twisted/pinched the complainant’s nipples.
·Charge 12: The applicant grabbed the complainant’s breasts and commented on the size of her breasts.
·Charge 13: Having shown the complainant a pornographic magazine, the applicant rubbed his hand against the complainant’s upper leg.
With the exception of the offence alleged by charge 13, all the offences are alleged to have been committed when the applicant accosted the particular complainant either in the backyard of the grandmother’s premises, or at different places inside those premises. No more specific site of offending is identified.
As will be apparent, seven instances of offending conduct are alleged in respect of complainant A. All of them involved either touching or penetrating the vagina. Two of those instances also involved the applicant squeezing the complainant’s breast — that is, as part of an incident also involving the applicant gripping or rubbing the complainant’s vagina.
All of the instances of alleged offending against complainant B involve squeezing of a nipple or touching/grabbing a breast. No touching of the vagina, or vaginal penetration, is alleged.
Tendency and coincidence notices
The prosecution initially served tendency notices only, under s 97(1), Evidence Act2008 (‘the Act’). It was initially sought to prove that the applicant had a tendency to act in a particular way — that is, to have a sexual interest in each of the complainants and to engage in sexual acts with them. By a later notice, the prosecution sought also to prove that the applicant had a tendency to act in the way specified in the coincidence notice to which we refer at [23] below.
The judge ruled that the prosecution could not rely upon tendency evidence. That ruling is not now challenged, and we say nothing more about it.
The prosecution served a coincidence notice dated 2 March 2015, under s 98(1) of the Act. It described the events the subject matter of charges 1, 3, 10, 11 and 12. The substance of the notice read as follows:
The coincidence evidence will be adduced to prove that:
(a)[Paul Doyle] did a particular act, namely:
(i)squeezed/grabbed/pinched/touched the breasts over the clothes of females who were:
(1)his relatives
(2)aged between 10 and 15
(3)in or near their grandmothers’ backyard
…
(b)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.
The prosecution conceded in argument that not all of the evidence in relation to all of the charges was cross-admissible. It argued that the evidence of the complainants was cross-admissible in respect of the five charges.
The judge’s reasons
Having considered relevant authorities, including Velkoski v R[3] and Rapson v The Queen,[4] the judge first addressed the question whether the prosecution had negated the reasonable possibility of concoction, collusion, collaboration or contamination between the complainants’ versions. He noted the submissions for the applicant as follows:
[3][2014] VSCA 121, particularly [173]-[175].
[4][2014] VSC 216, [16]-[17].
35.In this case, Ms Clark submitted that the prosecution are unable to exclude the possibility of contamination between the complainants’ versions. Ms Clark relied upon the depositions to establish the following propositions:
(i)Both complainants, [A] and [B], attended the police station together on 9 February 2012 to complain about the accused. No statement were taken from either complainant that day. [A] told the police that she had been raped, but did not make allegations of touching her breasts in the way she now alleges in respect of Charges 1 and 3.
(ii)Prior to attending at the police station there had been extensive discussions about the offending between both complainants and another witness, [J], another uncle of both complainants.
(iii)Between the time of attending at the police station in February 2012 and the making of formal statements in October 2012 there was contact and discussion between the complainants about the accused.
(iv)Prior to the revelations in 2012, although there had been some reference to general allegations against the accused, no details of alleged offences were disclosed by [A].
(v)The version of events given to police by [A] in October 2012 could have been influenced by her discussions with her sister [B] over the year or more prior to the making of her statement.
36.As I understand the submission, essentially Ms Clark submits that [A’s] version in relation to the accused touching her breasts at her grandmother’s house could have been innocently affected or influenced by [B’s] version as to what happened to her.
37.In support of her submission Ms Clark took me to excerpts from the depositions, and asserted that the prosecution could not exclude the reasonable possibility of such contamination, and, as such, the alleged coincidence evidence was inadmissible because it did not have the quality of independence necessary to achieve the probative value required by s 101 of the Evidence Act.
His Honour concluded that:
39.There is no evidence of any innocent infection, collusion or concoction in this case. The evidence clearly establishes that from time to time the complainants had discussions. Such is unremarkable. They are sisters. The evidence further discloses that there was a distinct lack of detail provided by either complainant when they discussed the case. Relevantly, [A] said that her sister did not go into detail in relation to what occurred to her, and [B] said that she did not discuss what occurred to her in any detail with [A]. She said indeed that she was reluctant to go into details.
40.In my view, an examination of the evidence reveals that although there was ample opportunity for each of the complainants to discuss the details of the offending against them, and perhaps therefore influence each other’s version, there is simply no evidence that that occurred. The evidence establishes that although there was discussion, no detail of the sort alleged by the accused was provided. As Hansen JA said in the decision of KRI v R:
“[T]he possibility of conscious or unconscious influence between complainants must be a real possibility and not just potential for concoction based upon an opportunity.”
As the Court of Appeal in Velkoski said, mere speculative suggestion will not afford any such foundation.
41.In my view, no issue of innocent infection properly arises in this case, and there is no basis for ruling that the evidence is inadmissible on the basis of any alleged contamination.
His Honour then addressed the question of similarities and underlying unity between the five charges ‘alleged to involve coincidence reasoning’. His Honour noted that the prosecution relied upon:
42….
(i)Firstly, the prosecution point to the fact that all five charges occur when each of the complainants were at, or on their way to, their grandmother’s house.
(ii)Secondly, each of the alleged offences occurred near or at the rear door of the premises at the time each complainant arrived at the premises.
(iii)Thirdly, each of the complainants were of a similar age.
(iv)Fourthly, each of the offences occurred at roughly the same time; that is, between 1975 and 1980.
(v)Fifthly, each of the complainants had the same relationship to the accused. Each were his niece by marriage.
(vi)Sixthly, the offending on each charge commenced with the accused touching the relevant complainant’s breasts.
His Honour summarised the submissions for the applicant as follows:
44.Ms Clark, on behalf of the accused, asserted that there was a difference between the allegations of [A] and [B], in that [A] alleged that her breast was squeezed, whilst [B] referred to her nipples or breasts being pinched. Secondly, Ms Clark submitted that there was a fundamental difference between the offending involving [A] and that involving [B], in that Charges 1 and 3 were accompanied by the behaviour the subject of Charges 2 and 4 respectively; Ms Clark submitted, there was further sexual activity involved allegedly between the first complainant and the accused than that alleged by the second complainant, [B]. In essence, Ms Clark submitted that there was a great difference between the allegations made by each complainant.
His Honour concluded that:
45.In my view, although there is some factual difference as to what occurred between [A] and the accused after the touching of the breasts to the version related by [B], that difference does not displace what is an essential similarity pattern or underlying unit between the five offences. In the absence of collaboration, concoction or innocent infection, in my view a jury could well be satisfied that it is improbable that each of the accused’s nieces would allege conduct that is essentially similar occurring in the same place at roughly the same time in similar circumstances unless each of them were telling the truth and the events actually occurred. The conduct alleged by both complainants demonstrates an underlying unity that cogently increases the probability of the occurrence of the charge in issue.
46.Accordingly, I rule that the evidence in relation to Charges 1, 3, 10, 11 and 12 is cross-admissible. In my view there is significant probative value in such evidence.
His Honour rejected a submission that, if the evidence was ruled cross-admissible, it would be impossible for the court to give appropriate directions. We note, in particular, his Honour’s conclusion that:
This case is not one such as existed in Rapson where charges that the Court determined should have been severed involved allegations of anal rape and violence that were conceded by the Prosecution to have been inflammatory and likely to unduly influence the jury.
His Honour concluded that a single trial should proceed on all charges, the presumption in s 194(2) of the Act not having been displaced.
Nature of appeal
This Court has held, in the context of ss 97 and 101 of the Act, that an interlocutory appeal is governed by the principles stated in House v The King.[5][6] Logically, the same situation applies in the case of a ruling made with respect to the admissibility of coincidence evidence.
[5](1936) 55 CLR 499.
It was not submitted by the written case for either party that the judge acted upon a wrong principle. But it seems clear, and indeed it was conceded by the Chief Crown Prosecutor who appeared for the Crown in this Court, that his Honour overstated the position when he said, at [28] in his reasons, that ‘[i]n my view, Velkoski makes it clear that the principles set out in relation to tendency evidence apply equally to coincidence evidence’. Velkoski did not go so far. [7] Perhaps, treating the principles as being the same in the two situations explains what, in the end, we are satisfied was a conclusion which cannot stand.
[7]Velkoski v The Queen [2014] VSCA 121, [174]-[176]. The same point emerges in the judgment of Leeming JA in El-Haddad v R [2015] NSWCCA 10 [46].
Subject to this last observation, the question is whether the applicant can establish that the judge took into account an irrelevant matter, made a mistake as to the facts, ignored some relevant matter, or reached a result so unreasonable or plainly unjust that it might be inferred that an error had been made, although the nature of the error might not be discoverable.[8]
[8]Paraphrasing House v The King (1936) 55 CLR 499, 505.
We turn to the principles relating to severance. As we have already noted, the judge held that the presumption created by s 194(2) of the Act was not displaced. This was on the footing that the jury could be directed suitably, and that there was no reason to believe that it would not be able to suitably perform its task. As we have also noted above, his Honour referred in that connection to Rapson v The Queen.[9] There, this Court referred to GBF v The Queen.[10]
[9][2014] VSC 216.
[10][2010] VSCA 135, [51], (‘GBF’).
In GBF, the Court considered that the directions which might have to be given on retrial — where tendency reasoning and thus cross-admissibility would apply in the case of some, but not all, charges — might be regarded by some as ‘bordering on metaphysical’; and said that there should be severance of counts relating to one of two complainants. In so concluding, the Court, in substance, adopted two aspects of what was said by Callaway JA in R v TJB.[11] First, that s 194 ‘confers a discretion that an appellate court should review only on the ordinary principles that apply to discretionary judgments’. Second, that considerations pertaining to the exercise of the discretion stated by Callaway JA in TJB[12] continue to inform the exercise of the discretion.
[11](1998) 4 VR 621.
[12]Ibid, [630]-[631].
Assuming for the moment that the judge did not err in concluding that the evidence on the five charges was cross-admissible as coincidence evidence, the question would be whether, in accordance with principles relating to discretionary judgments, this Court should interfere with the judge’s exercise of a discretion. But if it was concluded that the judge did err with respect to his coincidence evidence ruling, then the severance ruling would be impugned, as having proceeded from an incorrect starting point.
Analysis
There is not a shadow of doubt that the judge applied himself conscientiously to the difficult question whether the evidence which could be given with respect to the five charges satisfied the requirements for coincidence evidence and was thus cross-admissible. Although, in the end, we are persuaded by the application of House[13] principles that his Honour erred, we should not want it thought that this conclusion implies any want of attention to the problem by his Honour.
[13]House v The King (1936) 55 CLR 499.
We turn first to the contamination issue, simply to put it aside. Despite the submissions for the applicant below, amplified in this Court, we are not persuaded that his Honour’s conclusion that the Crown had negatived concoction, collusion, collaboration or contamination can be successfully impeached on any of the bases stated in House. Indeed, we agree with his Honour’s conclusions at [39] and [40] of his reasons, which we have set out above. Each of the complainants, and their uncle J, was pressed quite hard by applicant’s counsel when giving evidence at the committal about this issue. The cross-examination was, in our opinion, essentially unrewarding from the applicant’s standpoint.
We now focus upon his Honour’s conclusion that
… Although there is some factual difference as to what occurred between [complainant A] and the accused after the touching of the breasts to the version related by [complainant B], that difference does not displace what is an essential similarity pattern or underlying unity between the five offences,
upon his Honour’s conclusion that —
…there is significant probative value in such evidence,
and upon his Honour’s conclusion, implied but not discretely stated,[14] that the probative value of the evidence substantially outweighed any unfair prejudicial effect it might have on the applicant.
[14]His Honour did refer specifically to s 101 of the Act, but only in the context of the contamination argument.
Although each case turns upon its own facts (his Honour’s conclusions resting upon consideration of the circumstances revealed by the depositions and committal hearing evidence) and although his Honour’s conclusions in part required a value judgment in balancing out probative value and prejudicial effect, in our respectful opinion his Honour’s conclusions do not withstand scrutiny.
This Court accepted in Rapson[15] that —
… there may be such similarity in the respective accounts of the alleged preparatory conduct that the other evidence would have significant probative value, notwithstanding that the sexual acts ultimately engaged in varied markedly as between one case and another. Conversely, there may be such similarity in the particular form of sexual activity engaged in with individual complaints that an absence of similarity in the surrounding circumstances would not deny the other evidence significant probative value.
[15]Rapson v The Queen [2014] VSCA 216.
That observation was made with respect to tendency evidence, and there must be difficulty in applying it literally in respect of coincidence evidence — where similarities in events and/or the circumstances in which they occurred are the particular focus for examination.[16] The gist of s 98 is that it permits, in some circumstances, what has been called ‘objective improbability reasoning’.[17] Whilst it may be accepted that dissimilarities in the events or the circumstances in which they occurred will not necessarily deny coincidence reasoning, there must be a limit to permitted deviation or else the core concept of coincidence will be destroyed.
[16]‘Similarities’ is referred to, specifically and understandably, in s 98(1). Although there will be consideration of similarities in a s 97 context, the word itself is not found in that section.
[17]See the judgment of McHugh J in Pfennig v The Queen (1995) 182 CLR 461, 531. His Honour used that description in the context of the common law, but it is not for that reason inapt.
Allowing, then, that there may be similarities sufficient to attract the operation of s 98 despite there being some dissimilarities in the identified events and/or the circumstances in which they occurred, we cannot accept that it was possible to conclude that there was ’an essential underlying pattern or underlying unity between the five offences’, the evidence in respect of which had significant probative value. Focusing upon the way in which the prosecution put the matter, we consider that the events and circumstances relied upon did not permit coincidence reasoning. We further consider that even if those events and circumstances could permit such reasoning, the weakness of the asserted coincidence features of the evidence would not permit a conclusion that the evidence possessed significant probative value by way of improbability reasoning.
In part, the problem is revealed by the language used in support of the application of s 98 — as to which see [27] above. Thus, for instance, his Honour noted submissions that the offending (that is, which related to the five charges) occurred when the complainants were ‘at, or on their way to, their grandmother’s house’; that the complainants were of ‘a similar age’; that each of the offences occurred at ‘roughly the same time’; and that ‘the offending on each charge commenced with the accused touching the relevant complainant’s breasts’.
Within each of those contentions there was much imprecision. Dissimilarities were both exposed and disguised. So, for instance, the offending the subject of the five charges did not occur at any particular location, but rather randomly within the area encompassed by the rear of the grandmother’s premises and the back door of her residence. Further, to say that the offending occurred at ‘roughly the same time’ made a virtue of imprecision. Again, the submission that the offending in each instance began with the applicant touching the particular complainant’s breasts ignored substantial differences in the conduct alleged by the two complainants. Not only was the conduct of the applicant in touching the complainants’ breasts or nipples differently described by the complainants in their statements and in evidence at the committal hearing, in the case of complainant A his conduct allegedly involved a level of violence which required strong response. On the other hand, complainant B described touching which was not violent in the same way. She was able to ‘brush’ the applicant’s hand away on at least two of the occasions to which charges 10-12 related. It could not be said, in our view, that the described conduct was in truth similar. Further still, to say, as the prosecution in effect asserted, that it was distinctive that the complainant touched the complainants ‘over [their] clothes’ attempted to make something of that circumstance which we cannot accept was warranted.
Counsel for the applicant orally submitted that the coincidence evidence case advanced for the prosecution centred upon what the Crown asserted was the similarity of the offending. The other circumstances relied upon were not only imprecise, but in truth inconsequential. If they had been of any force, then the prosecution might equally have relied — which it did not do — upon their presence in the case of the offending comprised by every charge except for charge 13. There being a want of similarity in the offending comprehended by the five charges, the other circumstances carried the matter no further.
There was, in our opinion, merit in that argument, although it could be carried too far. The prosecution did rely upon the accumulation of circumstances. Nonetheless, the submission threw into focus the centrality of the conduct constituting the five charges.
Thus far we have approached the matter by reference to the way that the prosecution put its case. But another circumstance requires consideration.
We would accept that, if there was plain evidence of coincidence in the events the subject of the five charges and/or the circumstances in which they occurred, then the events to which such reasoning applied in the case of complainant A would not lose that character because, almost contemporaneously, the applicant also engaged in other sexual misconduct which had no replica in his conduct towards complainant B. But that is not this case. In that event, it seems to us to be permissible to bring to account the circumstances in which the events occurred; and in that connection there was in each instance conduct of a kind towards complainant A, almost contemporaneously with the events relied upon to found coincidence reasoning, which was not present in the case of the offending alleged in relation to complainant B. That is, the applicant gripped (charge 1) and rubbed (charge 2) the complainant’s vagina. The intimate temporal connection between the events constituting charges 1 and 2, and between the events constituting charges 3 and 4 is made crystal clear by paragraphs 17 and 18 of complainant A’s statement dated 9 October 2012, which read as follows:
17.One time I remember I was going to my grandmother’s house and [Doyle] was in her backyard. As soon as [Doyle] saw me he came towards me and squeezed my breast, he then put his hand in-between my legs, on my vagina. It was like he was griping [sic] with his whole hand trying to get through my clothes. With one hand he grabbed my breast and with the other hand he was trying to pull me towards him. I felt confused and scared. It almost felt like I was being punished for something. I didn’t say anything to him; I just remember trying to fight him to stop it. It seemed to go on for a long time, until I just got away. I was 11 years old close to turning 12 years old. After that time it was anytime he had a chance to get me.
18.There was another time I remember that [Doyle] was in the back area of my grandmother’s house near the toilet. This area of the house we used to call it the cement area because it was all closed in. I remember on this occasion I opened the back door and [Doyle] was standing behind the back door from the inside of the house, as I went inside he grabbed me. He pushed me up against the toilet door, and squeezed my breast with one hand and with his other hand he held my hand. He then moved his hand from my breast, and rubbed my vagina on the outside of my clothing. I tried to fight him, and I tried to get away. I don’t remember screaming, I was scared. I didn’t know if anyone was inside the house but nobody came out.
But his Honour, in analysing the presence and strength of events and circumstances relied upon to found coincidence reasoning, attached little importance in that analysis – see the reference to ‘some factual difference’ at [45] in his Honour’s ruling, cited at [29] above — to a circumstance which in each instance was closely attendant upon the events the subject of charges 1 and 3, and which in our opinion, the evidence otherwise being tenuous, was in fact important. It told strongly against the application of s 98 in the particular case.
There is another aspect to his Honour’s ruling which requires mention. As we have already said, his Honour did not, in terms, address the question whether the coincidence evidence which he discerned had a probative value which substantially outweighed any prejudicial effect it might have on the applicant.[18] But his Honour impliedly resolved that question adversely to the applicant. It seems very likely that, assuming cross-admissibility of evidence in respect of the five charges, he concluded that any unfair prejudicial effect could be sufficiently reduced by a strong direction to the point that it could be said that the probative value of the evidence would outweigh such effect.
[18]See s 101(2), Evidence Act2008.
With respect, upon the assumption just mentioned, we do not accept that his Honour’s implicit conclusion was tenable. The gist of the prosecution case against the applicant in respect of complainant A was one of escalating sexual interference involving vaginal touching, then digital penetration, then penile penetration. The subject-matter of charges 1 and 3 was of marginal significance in the overall scheme of things. But to the contrary, the gist of the prosecution case in respect of complainant B was one of touching of the breasts/nipples without any vaginal touching (or worse) at all. There was a very great risk that the permitted coincidence reasoning would lead to the jury being overwhelmed, in considering guilt or innocence on the five charges, by the evidence pertaining to the alleged vaginal touching in the context of the case as a whole.
That conclusion has implications for severance. As we have already said, the judge’s refusal to sever the charges with respect to the two complainants had as its starting point his conclusion that their evidence was, in part, cross-admissible. His Honour’s ruling as to severance falls away in light of our conclusion about cross-admissibility. The question then becomes whether an order for severance should be made. This Court is empowered to make such a decision.[19]
[19]See s 300(2)(b), Criminal Procedure Act 2009.
In our opinion, the Court should make an order severing the indictment, so that the charges in respect of complainant A should proceed at one trial, and the charges in respect of complainant B should proceed at another trial. In substance, the Chief Crown Prosecutor understandably conceded that this should be so. As we have observed, the essence of the charges relating to the two complainants is radically different. The prospect of the applicant being seriously prejudiced, particularly so far as his trial in respect of the charges involving complainant B is concerned, by his alleged offending against complainant A, would, in our opinion, be too great if the trial of all charges was to proceed at the same time. We accept, as junior counsel for the Crown submitted in writing, that jury directions would be straightforward on the assumption that coincidence reasoning was not permitted. But there is a point at which the law’s repeatedly stated faith in juries obeying directions has in the past yielded to concerns about the risk of prejudice in the context of severance; and in our opinion, this is such a case.
Conclusion
In the event, we would grant the applicant leave to appeal, set aside the decision made below that the evidence on charges 1, 3, 10, 11 and 12 was coincidence evidence and cross-admissible, and that the indictment should not be severed. We would instead order, upon a conclusion that the evidence on the five charges could not stand as coincidence evidence, that the indictment should be severed in the manner which we have described.
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[6]KJM v R (No 2) (2011) 33 VR 11, [9]-[14]. See also WEA v R [2013] VSCA 386, [20]-[21] and [25].
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