DPP v Martin (a Pseudonym)

[2016] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0115

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
PETER MARTIN (A PSEUDONYM)[1]	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 Respondent.

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JUDGES:	REDLICH, WEINBERG and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2016
DATE OF JUDGMENT:	14 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 219
JUDGMENT APPEALED FROM:	DPP v [Martin] (Unreported, County Court of Victoria, Judge Pullen, 1 June 2016) (Ruling)

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CRIMINAL LAW – Interlocutory appeal by Crown – Applicant facing two charges of incest involving biological sister – Prosecution seeks to lead other acts of misconduct as a child as ‘context evidence’ – HML v The Queen (2008) 235 CLR 334; IMM v The Queen (2016) 330 ALR 382 considered – Whether exclusion of ‘context evidence’ substantially weakens prosecution case – Trial judge rules against admissibility – Whether error in treating presumption of doli incapax as relevant when assessing admissibility of proposed uncharged acts – Presumption not relevant in way in which invoked – Criminal Procedure Act s 295(3)(a) – Appeal allowed – Matter remitted to trial judge for reconsideration in accordance with reasons of Court of Appeal.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C B Boyce SC with Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D A Dann QC with Mr J D Kantor	Mike Wardell Solicitors

REDLICH JA
WEINBERG JA
McLEISH JA:

1. The respondent is currently on trial facing two charges of incest, the complainant being his biological sister.  The trial is to be conducted in the County Court, at Ballarat.  

1. By a ruling delivered on 1 June 2016, the trial judge held that certain acts alleged by the complainant to have been committed by the respondent, as a child, upon which the prosecution sought to rely, were inadmissible (‘the interlocutory decision’).  Her Honour referred to these acts as ‘uncharged’ acts, a term that has been criticised.  As doli incapax, unless rebutted, would provide an answer to any allegation of criminal responsibility by a child, to speak of those acts as ‘uncharged’ is undesirable but as the parties have continued to employ that expression, we shall also do so.  Evidence of such acts of sexual misconduct is often referred to as ‘relationship’, ‘context’ or ‘background’ evidence, and is a type of circumstantial evidence.  However described, it at least forms part of the background against which the complainant’s evidence is to be assessed.  In a case of this kind it may be relevant for a number of different reasons, including:  to provide a background against which to understand the charges laid, explain why the complainant complied with the sexual demands of the accused, explain why the complainant failed promptly to complain, and explain the accused’s confidence in committing the sexual acts or his control over the complainant. 

1. Pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), her Honour granted the Crown a certificate on the basis that the exclusion of this evidence ‘would eliminate or substantially weaken the prosecution case’.

1. Pursuant to s 295 of the CPA, the Director of Public Prosecutions seeks leave to appeal against the interlocutory decision. He contends that the trial judge erred in excluding the evidence of the uncharged acts.

1. The sole ground upon which the proposed appeal rests is:

Her Honour erred in taking into account the issue of doli incapax in relation to assessing the admissibility of proposed uncharged acts.

Circumstances surrounding the offending

1. The respondent was born on 14 April 1991.  He and his sister were staying at his father’s house in Ballarat on the occasion of his 16^th birthday.  It seems that he had been given a tent as a birthday present, and had set it up in his bedroom. 

1. The respondent’s sister was several years younger than him.  She was aged 11 at the time.  On that evening, the two of them were in the tent together.  She claimed that while they were in the tent, the respondent put his hands down her shorts, and inserted his fingers into her vagina.  That allegation formed the basis of Charge 1 on the indictment.

1. Several months later, on a date specified as being between 1 June and 30 June 2007, the respondent and his sister were again staying at their father’s house.  She claimed that the respondent entered her bedroom and sat on the side of her bed.  He was angry with her because she had been using his DVD player without his permission.  He ran his fingers up and down her legs, before putting his hand down her pants and once again inserting his fingers into her vagina.  He said to her ‘Don’t say anything.  I’ll get in trouble’.  He then left her bedroom, taking his DVD player with him.  This allegation formed the basis of Charge 2 on the indictment.

History of the proceedings

1. The indictment, as originally filed, contained five charges (four of incest, and one of an indecent act with a child under 16).  Three of those five charges related to conduct attributed to the respondent when he was aged between 11 and 13. 

1. At a directions hearing held on 4 May 2016, the prosecutor informed the judge then hearing the matter that the Crown would not proceed with the charges that related to the respondent’s conduct at a time when he was aged less than 14.  That intimation applied to charges 1, 2 and 3 on the original indictment.  

1. Thereafter, the Crown withdrew the original indictment, and filed over the indictment currently before the Court.  That indictment contained the two charges of incest that are the subject of this application.  Both of those charges concern conduct attributed to the respondent when he was aged 16 or thereabouts.

1. During the course of pre-trial argument on 31 May 2016, the prosecutor informed the trial judge, for the first time, that although the Crown no longer proposed to proceed with charges 1, 2 and 3, as they had appeared in the original indictment, it would seek to lead evidence of the conduct that had formed the basis for those charges.  The prosecutor added that it was proposed that the evidence of these earlier sexual assaults would be led as ‘uncharged acts’, relevant by way of ‘context’ only.  It was made clear that these uncharged acts would not be relied upon as evidence of tendency. 

1. The Crown also indicated that it would seek to rely upon one uncharged act allegedly committed after the respondent had turned 16, again by way of ‘context’.

1. Apart from that one uncharged act that was committed when the respondent was aged 16, the remainder of the uncharged acts upon which the Crown proposed to rely all involved acts committed when he was aged less than 14.  These were as follows.

1. In either 2002 or 2003, when the complainant was aged either 6 or 7, and the respondent was aged therefore either 11 or 12, the family were residing temporarily at an uncle’s house.  The children were all sleeping together in the lounge room.  The complainant claimed that she awoke to find the respondent running his hands all over her body, and particularly up and down her legs.  He touched her vagina for several minutes, before saying to her ‘Don’t tell mum and dad.  I won’t do it again ‘cos I’ll get into trouble’.

1. According to the complainant, while this was taking place, the uncle walked into the lounge room.  He saw the respondent kneeling down in front of his sister, who was at that stage covered by a doona.  The uncle expressed concern about what the respondent appeared to be doing. He told the respondent that he would inform his parents after they returned.  On the following morning, they questioned the respondent.  He denied having done anything wrong.  That was the end of the matter.

1. The complainant said that after that first incident, the respondent regularly interfered with her by touching her vagina, usually at night.  She said that this behaviour went on for between 12 and 18 months.  Over time, the respondent’s offending escalated, and eventually he began inserting his fingers into her vagina on a regular basis.

1. The complainant said that in either 2004 or 2005, when she was aged either 8 or 9 (and the respondent was therefore aged either 13 or 14) he told her to accompany him into the toilet and to get undressed.  She said that she did so.  He then took off his pants, and made her sit on top of him.  At that stage he inserted his penis into her vagina. 

1. It should be noted, however, that when the complainant first spoke of this incident, she made no mention of any act of penile penetration.  She only volunteered that information while under cross-examination at the committal hearing.

1. Also in either 2004 or 2005, the complainant said that she and her brother were together at their grandmother’s home.  They were playing hide and seek.  At one point they were both under a bed.  He made her pull her pants down and inserted his penis into her vagina.  While that was happening, their grandmother came into the bedroom.  The respondent put his hand over his sister’s mouth, and told her not to say anything.

1. On yet another occasion, at an unspecified date, but certainly before the respondent turned 14, the two of them were together in the backyard of their home.  They were searching for a ball belonging to their dog.  At that stage the respondent asked her to have sex with him.

1. Throughout the period of these ‘uncharged acts’, the respondent was aged between 11 and 13.  Accordingly, had the original indictment stood, and the respondent faced at least some of these uncharged acts as specific counts, the issue of doli incapax would have arisen.[2]  That issue would have been central to whether criminal responsibility could be sheeted home to the respondent, given his age at the time. 

   [2]In Victoria, there is a rebuttable presumption that a child aged at least 10 but less than 14 is incapable of committing a criminal act.  There is an irrebuttable presumption that a child aged less than 10 is incapable of committing an offence.  See Children, Youth and Families Act 2005 s 344.

1. Having elected to abandon any attempt to prosecute these particular ‘uncharged acts’ as specific charges, the prosecutor nonetheless submitted that evidence concerning them should be admitted on the basis that it would be relevant by way of context. 

1. In her ruling, the trial judge  recorded the prosecutor’s  submission as to the way in which the prosecution wished to utilise the evidence as follows:

[The prosecutor], submitted this evidence of ‘other sexual misconduct’ should be permitted to be led to provide context to the sexual misconduct alleged in the two charges.  That evidence, she submitted, showed a continuing course of conduct by the accused offending against [the complainant]. 

[She] submitted this ‘other sexual misconduct’ was relevant to the fact in issue in this trial, being whether the alleged sexual acts in charges 1 and 2 occurred.  She submitted the proposed evidence had high probative value, and that to not lead this evidence would mean the complainant would not be able to give a coherent account of the occurrence of the two charged acts.  The offences charged, she submitted, could then be seen in their complete and realistic context, and that without that evidence the jury would have a misleading impression that the two charged acts occurred ‘out of the blue’.

The proposed evidence, the prosecutor submitted, was also relevant to rebut any suggestion the alleged two charges were isolated incidents. 

[The prosecutor] conceded regarding the allegations of penile/vaginal penetration issues of prejudice to the accused arose, however submitted the allegations were relevant as part of his continuing offending against the complainant.  [The prosecutor] submitted the charge consistent with 4.15.8 ‘Other forms of Other Misconduct Evidence’ in the JOIN Charge Book should be given to the jury and would appropriately direct the jury regarding misuse of that evidence.[3] 

[3]DPP v [Martin] (Unreported, County Court of Victoria, Judge Pullen, 1 June 2016) [10]–[13] (‘Ruling’).

1. In other words, the uncharged acts were said to be relevant for the limited purpose of establishing that the complainant’s allegations had not been made suddenly, and ‘out of the blue’, but were rather the culmination of several years of the respondent’s continual offending against her.  It was also said that the uncharged acts were relevant in a different way, but still as going to context.  Evidence concerning them might explain why the complainant had not, immediately, told anyone about the two acts of incest that formed the basis of the charges now brought.[4] 

   [4]See generally HML v The Queen (2008) 235 CLR 334 where the position at common law, regarding ‘uncharged acts’ led as ‘context’ evidence was discussed, but with no clear ratio as to the circumstances under which such evidence should be admitted. Even the very term ‘context’ was subjected to criticism by some of the members of the Court. See in particular D Hamer, ‘Admissibility and use of relationship evidence in HML v The Queen: One step forward, two steps back’ (2008) 32 Crim LJ 351.

Trial judge’s ruling

1. The trial judge, having had the benefit of detailed submissions regarding the admissibility of this evidence, delivered a ruling excluding the uncharged acts from the trial. That ruling was based primarily upon s 137 of the Evidence Act, but also upon what might be termed the residual ‘general unfairness’ discretion.[5] 

   [5]Haddara v R (2014) 43 VR 53.

1. Her Honour was satisfied that the evidence of these uncharged acts met the test of relevance.  By that, of course, she meant relevant as to ‘context’, since the Crown did not seek to lead it for any other purpose, and specifically disavowed any desire to do so.

1. However, as the trial judge noted, ‘context evidence’ had to be approached with ‘great caution’. Part of the balancing exercise that she undertook, pursuant to s 137, involved a consideration of whether there was a risk that the jury might make impermissible use of such evidence which could not be overcome by any directions that her Honour might give.

1. It should be noted, at this stage, that the argument before her Honour took a somewhat unusual course.  The prosecutor’s initial submission was straightforward.  She accepted that, if the uncharged acts were admitted as going to context, the jury would be told that the Crown would have to rebut the presumption of doli incapax  before the jury could make use of that evidence.  In other words, the prosecutor accepted that, as a condition of being able to use uncharged acts as bearing circumstantially upon guilt, the Crown would have to satisfy the jury that whatever it was the respondent may have done when he was aged less than 14, he was fully aware at that time that his conduct was ‘seriously wrong’.[6] 

   [6]The test for rebuttal of the presumption of doli incapax was laid down in these terms by the House of Lords in C (a minor) v Director of Public Prosecutions [1991] 1 AC 1. See also R v ALH (2003) 6 VR 276.

1. The prosecutor’s initial position as to the issue of doli incapax was  described in these terms in the judge’s ruling:

[The prosecutor] submitted that from the surrounding circumstances in this trial, the jury could infer the accused knew his acts were ‘seriously wrong’.  In that regard, [the prosecutor] referred to his statements to the complainant, which included ‘don’t tell mum and dad, I won’t do it again cause I’ll get into trouble’, and also the statement by the accused’s uncle to the accused that the accused’s conduct was wrong. 

[The prosecutor], in her initial submission, prior to obtaining further instructions, said I would need to direct the jury relevant to the ‘other sexual misconduct’ alleged when the accused was between 10-14 years of age.  That the jury would need to be satisfied he knew what he was doing was ‘seriously wrong’ before they could make a finding about the ‘other sexual misconduct’. 

I discussed, at that time, with [the prosecutor] the type of direction anticipated which would avoid impermissible reasoning by the jury and the difficulty in my opinion referrable to the standard of proof of the ‘other sexual misconduct’, which [the prosecutor] submitted would not require proof beyond reasonable doubt.[7] 

[7]Ruling [16]–[18].

1. The trial judge then summarised the defence position regarding the admissibility of these uncharged acts.  She said:

[Defence counsel], on behalf of the accused, raised concerns about those tests, beyond reasonable doubt on the one hand, and on the other whether the jury accepted the other sexual misconduct alleged was true. 

He also referred to the ‘serious nature’ of the ‘other sexual misconduct’ referrable to penile penetration of the complainant as the two charges on the indictment referred to digital penetration.  Leading of this evidence of penile penetration, he submitted, would be unfairly prejudicial to the accused. 

[Defence counsel] submitted the proposed evidence of the ‘other sexual misconduct’, which pre-dated the allegations in the charges, should be excluded pursuant to s 137 Evidence Act 2008.  I stress I am referring in this ruling to the proposed evidence that pre-dates the two charges.[8]

[8]Ruling [19]–[21].

1. However, after obtaining further instructions, the prosecutor resiled from this  submission, and radically changed her position.   She submitted that the uncharged acts were admissible, irrespective of whether the Crown could rebut the presumption of doli incapax.  Indeed, she went further.  She submitted that when uncharged acts were led as relevant to context, the issue of doli incapax (and any broader question of criminal responsibility on the part of the respondent), would be entirely irrelevant.  Proof of the physical acts alleged would be sufficient to enable the jury to assess the complainant’s evidence properly, without their having to consider any question of fault on the respondent’s part. 

1. Her Honour in her ruling summarised the change in the prosecutor’s position as follows:

[The prosecutor] obtained further instructions over the luncheon adjournment and clarified the prosecution position.  [She] submitted doli incapax was only relevant to proof of charged acts and that in relation to establishing the ‘other sexual misconduct’ there was no requirement to establish the accused’s capacity. 

[The prosecutor]  submitted the accused’s state of mind was not relevant to the ‘other sexual misconduct’.  That the prosecution only had to establish those acts had occurred. 

Relevant to the ‘other sexual misconduct’, [the prosecutor] submitted it was not a requirement that the prosecution prove the accused knew his conduct was ‘seriously wrong’.[9] 

[9]Ruling [22]–[24].

1. Ultimately, her Honour came to the nub of her reasons for excluding this evidence.  She said:

The prosecution seeks to lead this evidence of ’other sexual misconduct’ as context.  ‘Context evidence’ must be admitted with great caution.  It may be the evidence proposed to be led is relevant however I am required to carefully weigh the probative value of the proposed context evidence against the prejudicial effect upon the accused in admitting the evidence (s 137 Evidence Act). 

Part of that assessment involves consideration of whether, by any directions given to the jury, the risk of impermissible use of the evidence would be avoided. 

What makes this case somewhat ‘unusual’ is the age of the accused at the time of the ‘other sexual misconduct’ allegations. 

The prosecution submits that evidence can be led without the need to direct the jury regarding the accused’s age at the time of those acts. 

Ultimately, I have concluded that whilst the proposed evidence is relevant and its probative value reasonably high, in that the complainant gives evidence of the accused behaving towards her in a highly sexualised way on occasions prior to that alleged in charges 1 and 2, in my opinion the prejudicial effect of this evidence being led in the way proposed by the prosecution outweighs its probative value. 

The way the prosecution has elected to proceed is by not charging the accused with the offences relied upon as ‘other sexual misconduct’, despite, as I have previously stated, specificity of many of the complainant’s allegations.[10] 

[10]Ruling [27]–[32].

1. Her Honour then explained precisely why she considered the evidence of uncharged acts to be inadmissible, whether pursuant to s 137 or as part of the residual unfairness discretion. She said:

It seems to me that it is a matter of fundamental unfairness that the prosecution could use the alleged acts of an 11-14 year old child, who, as a matter of law, the prosecution has accepted did not appreciate the seriousness of those acts, in aid of proof of subsequent serious criminal acts at a time when he did have full appreciation of those acts.

The unfairness is all the more increased when the forensic decision of the prosecution not to challenge the rebuttable presumption of understanding results in the proof of those earlier acts to a standard lower than that of beyond reasonable doubt. 

In addition, the prosecution submitted no direction would need to be given to the jury regarding the accused’s age at the time of the ‘other sexual misconduct’.  In my opinion, given the accused’s age at the time, the question of capacity arises as a matter of law. 

Without appropriate directions that address this issue of the accused’s age there is also the risk the jury will engage in impermissible propensity reasoning, despite being directed consistent with JOIN charge 4.15.8, of course as amended to reflect the facts in this case.

Further, whilst the allegations by the complainant of penile/vaginal penetration may be relevant, the probative value of that evidence is also outweighed by the danger of unfair prejudice to the accused.  That potential unfairness was conceded by the prosecution although not accepted that it would mean it was inadmissible.[11]

[11]Ruling [33]–[37].

The Director’s submissions before this Court

1. The Director submitted that the trial judge erred in ruling that the evidence of other sexual misconduct sought to be led was inadmissible. He submitted that her Honour, having concluded that the evidence in question was relevant and that its probative value was ‘reasonably high’, ought to have permitted it to be led as going to ‘context’. Indeed he submitted that this evidence fell within the general category of ‘other misconduct evidence’ as defined by s 26(d) of the Jury Directions Act 2015.   

1. The Director submitted that, although the prosecutor below had initially accepted that the issue of doli incapax would be relevant as a matter for the jury to consider in the event that this evidence was led as going to context, her revised submission stated the law correctly.  That was, namely, that the question of doli incapax had nothing whatever to do with the admissibility of this evidence, and that the jury would not be concerned to consider that issue when assessing what weight to accord to the evidence of other sexual misconduct.  In other words, the fact that the respondent might not have been criminally responsible for any of the uncharged acts that were alleged did not mean (a) that he had not committed them or (b) that they were not relevant as context to the charges brought.

1. The Director submitted that the evidence of the other sexual misconduct in this case was plainly of significant probative value.  It showed that the respondent had been molesting his sister for some years before the two counts of incest.  As the prosecutor had submitted below, proof of that fact would enable the complainant to give a coherent account of the two charges of incest that were proceeding.  The jury, once it had evidence of the other misconduct, would be able to view the complainant’s evidence in a complete and realistic context, understanding that she did not suggest that these were isolated incidents that had suddenly occurred.

1. The Director acknowledged that there was some risk of prejudice associated with the introduction of the evidence of other sexual misconduct, (and particularly the acts of penile penetration). He submitted, however, that the trial judge had erred in ruling that the risk of this prejudice warranted exclusion of the evidence pursuant to s 137. Her Honour having concluded that the probative value of this evidence was ‘reasonably high’ could not have been justified in exercising that power. That was particularly so since the jury would be told, in the event that this evidence was led, that they were not to engage in impermissible tendency reasoning.

1. The Director focused upon paragraphs [33] to [37] of the trial judge’s ruling, set out in these reasons for judgment at [35] above.  Although it was not spelt out clearly in the Director’s written case, it was implicit in the written submissions that the particular error that lay at the heart of this application was the notion, which it was said influenced the judge, that it was in some way ‘unfair’ to use the alleged acts of a child aged 11 to 14 as evidence of context when, as a matter of law, the prosecution ‘accepted’ that it could not establish that he did not appreciate the seriousness of those acts.  The Director submitted that the prosecution had never accepted any such thing.  It had merely submitted below that the prosecution did not have to establish any such appreciation on the respondent’s part.

1. The Director implicitly suggested, in his written case, that the trial judge had erred in viewing the decision to withdraw the uncharged acts as having been made for some tactical gain, so that, for example, the prosecution did not have to prove beyond reasonable doubt that the respondent was aware that what he was doing was seriously wrong.  He submitted there was no basis for any such criticism. 

1. The Director further submitted that there was no additional risk that the jury might engage in impermissible propensity reasoning, despite being warned against doing so, merely because the respondent was aged less than 14 at the time of the commission of the uncharged acts.  To the extent that the trial judge viewed the matter in that light, her Honour’s reasoning was simply untenable.

1. Finally, the Director submitted that the mere fact that the uncharged acts included acts of penile penetration, as distinct from the digital penetration encompassed within the two charged acts of incest, did not warrant the conclusion that this evidence should be excluded pursuant to s 137.

1. It must be said that the Director’s written case consisted largely of argument by assertion. The points now raised in oral argument were not apparent  from the written argument although it did refer to two authorities, R v West[12] and R v DM[13] both of them English, and both of them on point. 

   [12][2003] EWCA Crim 3024.

   [13][2016] EWCA Crim 674.

The respondent’s submissions

1. It was submitted on behalf of the respondent that the trial judge had correctly excluded the evidence of other sexual misconduct in this case, both pursuant to s 137 and, alternatively, pursuant to what was described as the ‘general discretion to exclude otherwise admissible evidence in order to ensure a fair trial’.[14]

   [14]Reference was made to Luna v The Queen [2016] VSCA 10 [43]–[47].

1. It was submitted that the proposed ground of appeal, which contends that the trial judge erred ‘in taking into account the issue of doli incapax’ when assessing the admissibility of the proposed uncharged acts, could not be sustained.  Self-evidently, her Honour had been entitled to take that issue into account insofar as it was put that the Crown had sought some improper tactical advantage by withdrawing the uncharged acts as specific counts, but seeking to rely upon them as going to ‘context’.[15] 

   [15]By reason of s 61 of the Jury Directions Act 2015, ‘context’ evidence is admitted as circumstantial evidence, and the facts alleged would only have to be established on the balance of probabilities. 

1. In addition, the respondent submitted that, in assessing the probative value of the evidence of the uncharged acts, the trial judge was clearly entitled to have regard to the fact that the law presumed, in the absence of strong evidence to the contrary, that the respondent was unaware that his alleged conduct was ‘seriously wrong’.  It was submitted that the presumption extended beyond merely providing a possible defence to a charge brought against an accused who was aged below 14 at the time of the alleged offending.  It was also a factor properly to be borne in mind when a judge weighed the probative value of the evidence as against its likely prejudice.

1. Actus reus alone, without proof of mens rea, would not ordinarily suffice to constitute serious criminality.  And, so it was submitted, nothing short of proof of serious criminality could legitimately be used by the Crown by way of context.

1. It was further submitted that the trial judge had been entitled to conclude that in the absence of any direction on doli incapax, there would be a serious risk that the jury, however carefully directed, might engage in impermissible propensity reasoning.

1. Finally it was submitted that neither R v West, nor R v DM supported the Director’s case that doli incapax was irrelevant when considering the admissibility of these uncharged acts.

1. In addition to addressing the merits of the proposed ground of appeal, the respondent submitted that the trial judge should not have certified, as she did, that this case was suitable for an interlocutory appeal.  The respondent maintained the submission advanced below, that the exclusion of the evidence of uncharged acts, while it undoubtedly would weaken the prosecution case, would not ‘substantially’ do so.  

1. More specifically, the respondent submitted:

Given the limited permissible use that can be made of context evidence and given that the prosecution can rely on other context evidence in this trial, this court could not be satisfied that the exclusion of the evidence would substantially weaken the prosecution case.  The High Court has recently commented on the generally limited probative value of a complainant’s evidence that other sexual misconduct (beyond that which forms the basis of the charges) has occurred.[16]

[16]IMM v The Queen (2016) 330 ALR 382, [60]–[64]; [2016] HCA 14.

Legal analysis

1. The respondent’s submission that the appeal fails at the threshold, because the judge was entitled to take the issue of doli incapax into account in the context of considering whether the Crown sought an unfair tactical advantage, should be rejected.  Although the ground of appeal is narrowly drawn, in light of the way in which the appeal was conducted it is not to be construed in too literal a fashion.  We proceed therefore to address the substantive issue that was argued.

1. The basis upon which the trial judge was asked by the Crown, in its revised submission, to admit evidence of the other sexual misconduct in this case, was that the prosecution would assume no burden whatever to displace the presumption of doli incapax.  If carried through to its logical conclusion, that submission would ensure that the evidence of context sought to be adduced would be immune from a number of the protective safeguards traditionally granted to children faced with criminal proceedings. 

1. Theoretically, this might mean that even a child aged less than 10, who is, of course, incapable in law of committing any criminal offence whatsoever, could find his or her conduct at that age led in support of a charge involving offending said to have been committed a number of years later. 

1. The Director’s case, as set out in his written submission, is largely based upon the two English authorities to which we have previously referred.  Clearly, they require careful scrutiny. 

1. The first of the two cases is R v West,[17] a judgment of the Court of Appeal Criminal Division.  The appellant stood trial in the Crown Court at Lincoln and was convicted of one count of indecent assault (count 1) and one count of buggery (count 2).  On count 3, charging buggery, the jury acquitted.  The trial judge directed acquittals on counts 4 and 5, each alleging indecent assault.  Counts 3, 4 and 5 all related to a time when the complainant had reached the age of 16, and there was evidence suggesting that he may have consented to the activities in question.  Counts 1 and 2, however, related to a time when the complainant was under age, and accordingly, incapable of giving consent. 

   [17][2003] EWCA Crim 3024 (‘West’).

1. It seems that the indictment in West originally contained many more counts than the five to which reference has been made.  All of them alleged sexual abuse on the part of the appellant.  The counts upon which the trial proceeded covered a period when the appellant was aged between 14 and 20. 

1. Count 1 referred to an occasion in April 1988 when the complainant was aged 10 and the appellant 14.  Count 2 concerned an allegation of buggery at some time between April 1988 and 1990.  The matter first came to the attention of police many years later, in or about October 2001.

1. The trial judge in West permitted evidence to be led from the complainant of a number of sexual assaults perpetrated upon him during the years before 1988, at a time when the appellant was not yet aged 14.  As the Court of Appeal noted, the trial judge admitted that evidence ‘not under the similar fact principle, but as background to the counts charged in the indictment.’[18]

   [18]Ibid [14].

1. On appeal, it was submitted that this evidence should not have been permitted to be led.  The Court of Appeal noted that the trial judge, when directing the jury regarding these ‘uncharged acts’, had explained that evidence concerning them was led ‘because [the complainant’s] account would be incomplete without them, to the point of being incomprehensible.’  He added that it was the prosecution case that the complainant:

was conditioned from an early age to submit to sexual acts from Mr West and that explains what might otherwise be difficult to explain, namely his submission to such acts right through his teens and up to the age of 16.[19] 

[19]Ibid [15].

1. He added,

[the uncharged acts] are relevant to the Crown’s case that this was a coercive and manipulative relationship between these two young people, but they do not themselves prove or go towards proving the specific charges in the indictment.[20]

[20]Ibid.

1. Before the Court of Appeal, West’s counsel relied primarily on the doli incapax principle, that at the time about which the background evidence was given, his client was ‘incapable of crime’.  Moreover, he was specifically incapable at that time, as a matter of law, of the particular crime of buggery, which was referred to in the background evidence. 

1. In effect, the submission was that, since there was a presumption that, in the period before 1988, the appellant could not commit a crime, the evidence of his conduct at that time should not have been admitted, even if that evidence might otherwise have been relevant background to offences alleged to have been committed after 1988.

1. The Court of Appeal rejected that submission.  Lord Justice Pill, delivering the judgment of the Court, said:

The law gave a protection from conviction to those under the age of 14 but that protection does not extend to rendering evidence of relevant conduct inadmissible.  Moreover, the fact that the appellant was at the material time incapable in law of committing the offence of buggery does not prevent the admission, if otherwise admissible as relevant background, of evidence about his conduct about the material time.[21]

[21]Ibid [24].

1. This ruling by the Court of Appeal that the evidence of conduct said to have occurred before the appellant reached the age of 14 was nonetheless admissible as ‘background’, supports the Director’s proposed ground of appeal in the application before this Court. 

1. The second of the two cases upon which the Director relies is the decision of the Court of Appeal Criminal Division in R v DM.[22]  There, the first issue that arose on the appeal was whether the trial judge had been correct to admit evidence of the appellant’s bad character in relation to two incidents that were said to have occurred when he was aged less than 14. 

   [22][2016] EWCA Crim 674 (‘DM’).

1. The prosecution had led that evidence under two separate limbs of s 101(1) of the Criminal Justice Act 2003 (UK).  Relevantly that section was in the following terms:

101     Defendant’s bad character

(1)In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if —

…

(c)        it is important explanatory evidence;

(d)it is relevant to an important matter in issue between the defendant and the prosecution,

…

(2)Sections 102 to 106 contain provision supplementing subsection (1).

(3)The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

…

1. Section 102 provided as follows:

102     “Important explanatory evidence”

For the purposes of section 101(1)(c) evidence is important explanatory evidence if—

(a)without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b)its value for understanding the case as a whole is substantial.

1. Lord Justice Simon, who delivered the judgment in DM, posed the question whether the appellant’s age at the time of the uncharged acts led against him required exclusion of this evidence on the basis of doli incapax.  It is fair to say that his Lordship dismissed that contention summarily.  He stated simply that the appellant was not facing a criminal charge in relation to the two incidents, and therefore doli incapax had no application so far as admissibility was concerned.

1. His Lordship referred to an earlier decision of the Court of Appeal, R v H,[23] where a similar submission had been considered and rejected.  In that case Pill LJ who, it will be recalled, had some years earlier delivered the judgment in West, had adhered to the view that he expressed in that earlier case, and rejected the doli incapax argument. 

   [23][2010] EWCA Crim 312.

1. It should be noted, however, that Lord Justice Simon, in DM, emphasised the importance in a case involving uncharged acts and doli incapax of careful directions being given to the jury, ensuring that they were aware of the need to be satisfied beyond reasonable doubt that the appellant had, in fact, committed the uncharged acts, and of the need to use such evidence in a legitimate manner. 

1. This was of critical importance in DM because the evidence was relied upon not just because it was said to have ‘explanatory’ force, but also because it was said to be relevant by way of propensity.  Ultimately it was held that there was a fatal defect in the trial judge’s direction to the jury, which had nothing to do with the fact that the prosecution relied upon uncharged acts in both those ways.  The error arose because the actual charges laid concerned conduct allegedly committed by the appellant when he was aged 13.  Accordingly, he could not be convicted of the offences charged without rebutting the presumption of doli incapax.  That presumption could only be rebutted by clear, positive evidence, not consisting merely of the evidence of the acts amounting to the offence itself, that the appellant knew that his acts were seriously wrong, ‘as distinct from mere naughtiness or childish mischief.’[24]  The trial judge’s failure to have directed in those terms led to the conviction having to be quashed.

   [24]DM [27]. See also C (a minor) v DPP [1996] 1 AC 1, 38; R v ALH (2003) 6 VR 276, 280–1, [24], 297–8 [86].

1. We consider that the Director was justified in calling in aid not just West and DM, but also R v H, in support of his contention that the evidence of uncharged acts by a child aged less than 14 may be admissible as ‘context evidence’, having explanatory force in relation to offences allegedly committed by the child after he or she had reached 14, without having regard to doli incapax. 

1. Senior counsel for the respondent submitted before this Court that nothing in either West or DM supported the conclusion for which the Director contended.  He noted that both cases had been decided under a different legislative framework.  He further submitted that although these decisions could fairly be read as lending support for the proposition that the doli incapax issue would not automatically lead to exclusion of the evidence of uncharged acts, they certainly did not establish that doli incapax was irrelevant, when considering whether the probative value of that evidence outweighed the risk that it might be unfairly prejudicial.  

1. As mentioned, the proposed ground of appeal in the present interlocutory application is drafted in narrow and specific terms.  It complains of the trial judge having taken into account the presumption of doli incapax when her Honour determined to exclude the evidence of uncharged acts, either pursuant to s 137, or pursuant to the residual unfairness discretion. The issue of doli incapax on any view had to be addressed because the respondent had submitted that it was relevant to the question whether the Crown was seeking an unfair tactical advantage.  The real question is whether the judge erred in her approach to that matter.

1. There were of course other matters which her Honour took into account in the course of the ruling.  None of these matters are the subject of the appeal, but it is convenient to mention them briefly before proceeding to the appeal.

1. Had the uncharged acts continued to be pressed as specific counts, the Crown would have been obliged to prove not merely the commission of those acts beyond reasonable doubt, but also to rebut the presumption. Used circumstantially, however, s 61 of the Jury Directions Act 2015 would become relevant.  The standard of proof required to establish the conduct in question would reduce to one of balance of probabilities.  In the view of the trial judge, that in itself would be productive of unfairness.  In those circumstances, the trial judge considered it appropriate to invoke the general discretion to exclude evidence, the admission of which would result in an unfair trial.

1. The trial judge also considered that there were two additional factors at play.  The first was that evidence of these particular uncharged acts would be particularly prejudicial since they involved penile penetration.  The charged acts, in stark contrast, were of a different character, being acts of digital penetration.  The fact that the law draws no particular distinction between penile and digital penetration, so far as the offence of rape is concerned, does not mean that a jury will view them in the same light. 

1. The other matter that the trial judge regarded as significant, in deciding to exclude the evidence of the uncharged acts, lay in her concern that, in the particular circumstances of this case, a direction not to engage in tendency reasoning may not have had the desired protective effect. 

1. Before determining the outcome of this application, it is necessary to consider, albeit briefly, the current state of the law regarding so-called ‘context evidence’, particularly with regard to sexual offences. 

1. The High Court addressed that issue in HML v The Queen.[25]  The case concerned three separate, unrelated trials in the District Court of South Australia in which three men were convicted of sexual offences, all of them involving a female relative who was at the time a minor.  In each case the complainant gave evidence of previous acts of the accused against her which were additional to the acts with which he was charged. 

   [25](2008) 235 CLR 334 (‘HML’).

1. In the first of the three cases, HML, the question was whether ‘relationship evidence’ could be admissible to provide ‘context’, and/or to support ‘propensity reasoning’.  There appeared to be broad agreement amongst members of the Court that evidence of uncharged sexual offences could be received and then used as evidence of one or other, or both, context or propensity. 

1. Three members of the Court, Gleeson CJ, Crennan and Kiefel JJ, held that insofar as the evidence explained and rendered intelligible the complainant’s account of the charged acts, or showed that she was not purporting to describe an isolated event in circumstances where, otherwise, her account might appear implausible, it was admissible subject to the general principles concerning probative value and prejudicial effect. 

1. Three other members of the Court, Gummow, Kirby and Hayne JJ, took a different view.  They said that the only relevant basis for admitting such evidence was to show that the accused had a sexual interest in the complainant, and that he had given effect to that desire by action.  The trial judge had erred in admitting the evidence for any other purpose. 

1. Justice Heydon concluded that the evidence of uncharged acts was admissible similar fact evidence capable of being used to establish propensity on the part of the accused to assault his daughter sexually, as a step towards proving his guilt of the charged acts.  In those circumstances, it was unnecessary to decide whether the tender of that evidence could have been supported on any other basis, had that been the only basis relied upon.  Once admitted, the evidence was capable of being employed for the other purposes relied upon which were incidental to, and not inconsistent with, the particular propensity purpose. 

1. In the circumstances the appeal in HML was dismissed.

1. In the second of the three cases, SB, the trial judge had specifically directed the jury that the evidence of uncharged acts was potentially helpful in evaluating the complainant’s evidence of the charged acts which ‘may otherwise appear to be unreal or not fully comprehensible’.  He had warned the jury against using the evidence to establish propensity. 

1. In that case, the appeal was dismissed.

1. In OAE, the third of the three cases before the Court, the trial judge permitted the evidence of uncharged acts to be led as being relevant to show the nature of the relationship between the accused and the complainant, and to show that the alleged rape ‘did not happen out of the blue’.  He warned the jury against using the evidence to establish propensity.  However, he did not give a direction about the standard of proof required of the evidence of other conduct. 

1. In relation to this matter, the Court held by a 4 to 3 majority, that the appeal against conviction should be dismissed. 

1. Gleeson CJ concluded that the only question to be determined by the trial judge in a case of this kind was one of relevance, not requiring a separate direction about the standard of proof of uncharged acts.  Heydon and Crennan JJ expressed no opinion on this point.  Kiefel J regarded a finding of propensity on circumstantial evidence as one involving a finding of an intermediate fact which ordinarily should be proved beyond reasonable doubt. 

1. In separate judgments, the minority, Gummow, Kirby and Hayne JJ, concluded that the evidence of other sexual misconduct was so intertwined with the charged acts that a direction should have been given that the jury could not act upon it unless satisfied of the allegations beyond reasonable doubt.  Their Honours added that the admissibility of evidence of uncharged acts was not to be determined by asking whether that evidence would put evidence about the charges being tried ‘in context’, or by asking whether it described or proved ‘the relationship’ between the complainant and the accused.  The determinative question was whether there was a reasonable view of the similar fact evidence consistent with innocence, as stated in Pfenning v The Queen.[26]  If so, the evidence should be excluded.

   [26](1985) 182 CLR 461.

1. It has been suggested that, as a result of HML, it remains unclear whether or not relationship evidence can avoid the propensity exclusionary rule by being treated as context evidence.[27]  Certainly, Gummow, Kirby and Hayne JJ, in their respective judgments, expressed doubts as to whether relationship evidence could ever be admitted purely in order to provide ‘context’, and it might be thought that Heydon J expressed similar doubts.  However, his Honour was of the view that if such evidence was admissible as going to propensity it could also allow the evidence to be used to provide ‘context’.

   [27]D Hamer, ‘Admissibility and use of relationship evidence in HML v The Queen: One step forward, two steps back’ (2008) 32 Crim LJ 351.

1. Kirby J was particularly critical of the use of terms such as ‘context’ or ‘background’.  He regarded these terms as too vague to justify bypassing the exclusionary rule.  He said:

If such a vague criterion were adopted, virtually any evidence of discreditable conduct, uncharged in the information or indictment, would arguably be relevant and admissible in such a trial because every alleged crime has a ‘context’.[28]

[28]HML 370 [60].

1. Viewed in the way that some members of the Court in HML described, relationship evidence arising out of what were characterised as ‘uncharged acts’ serves as a form of credibility bolstering.  No doubt that incidental effect is open, as well, where the evidence is also admissible for a propensity purpose.  The problem that arises is what happens when, as in the present case, propensity reasoning is eschewed, and the evidence is sought to be led as context only?

1. That question and the directions to be given to a jury about the standard of proof of uncharged sexual acts were considered in Sadler v The Queen[29] following the High Court decision inHML.  The Court (Nettle, Redlich and Dodds-Streeton JJA) said:

   [29](2008) 20 VR 69.

With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating thecontextin which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant’s evidence as to the uncharged acts and as to the charged acts.

If so, it follows that the standard of proof applicable to uncharged acts, and the directions to be given to the jury as to the use which they may and may not make of evidence of the uncharged acts, will continue to vary according to whether the Crown relies on the evidence of uncharged acts to establish a propensity to commit acts of the kind which are charged or merely for contextual and explicative purposes ...

Prior to HML, the position under the pre-Hoch test which applies in Victoria was that:

1) The Crown was not to be permitted to rely on evidence of uncharged acts as establishing a propensity to commit acts of the kind charged unless the uncharged acts were strikingly similar to the charged acts or it was otherwise possible to discern such an underlying unity between the uncharged acts and the charged acts as to make coincidence an affront to common sense.

2) If the Crown satisfied that test and was thus permitted to rely upon evidence of uncharged acts as evidence of propensity to commit offences of the kind charged, the jury had to be directed that the uncharged acts as well as the charged acts must be proved beyond reasonable doubt.

3) The Crown was permitted to rely on evidence of uncharged acts for a purpose other than establishing propensity to commit offences of the kind charged (for example, to make intelligible a complainant’s account of the charged acts, or to show that a complainant was not purporting to describe an isolated event or where a complainant’s account might otherwise appear implausible) if the probative value of the evidence for that purpose so much outweighed its prejudicial effect as to make the receipt of the evidence just.

4) If the Crown satisfied that test, and was thus permitted to rely on evidence of uncharged acts for such a purpose only, but not for the purpose of establishing a propensity to commit offences of the kind charged or as making it more likely that the accused committed the crime (probability reasoning):

a)the judge would ordinarily have directed the jury that they may only use the evidence for the purpose for which it has been admitted and for no other purpose; that the offences charged can only be proved by the evidence relating to those charges and not by evidence relating to the uncharged acts; and that they are not to reason from the evidence of the uncharged acts that the accused is the sort of man who is likely to have committed the offence charged; and

b) in this circumstance, the judge was not required to give separate directions about the standard of proof applicable to that evidence. -

Now, because of the limited ratio ofHML, it appears that the position in Victoria remains largely the same. But having regard to what was said by Kirby, Hayne (and thus Gummow) and Heydon JJ, as to the likelihood of a jury treating uncharged sexual acts as evidence of propensity (regardless of the purpose for which it is tendered or the directions which may be given as to its use), we consider that there is one critical difference.  Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt. [30]

[30]Ibid 88-9 [62]-[65] (citations omitted).

1. Subsequently in Roach v The Queen,[31] the High Court inhttp:// - both the plurality judgment and the judgment of Heydon J briefly consideredHML.  In Roach, the trial judge directed the jury that the evidence of uncharged acts was led solely for the purpose of providing ‘a true and propercontext ’ to enable the jury to ‘properly understand’ the events that were the subject of the count of assault on which the accused was presented.  The plurality judgment stated that, in these circumstances, it was neither necessary nor appropriate for the trial judge to give the jury any direction about the standard of proof to be applied to the evidence of uncharged acts.[32]

   [31](2011) 242 CLR 610; [2011] HCA 1.

   [32]Ibid 626 [49].

1. As a consequence of s 61 and s 62 of the Jury Directions Act 2015, the only matters that the trial judge may direct the jury require proof beyond reasonable doubt are the elements of the offence and the absence of a relevant defence.  Common law rules requiring that a matter be proved to the criminal standard, and which would have included the ‘prudential direction’ suggested in Sadler, have been abolished. 

1. Thus the approach which judges are now obliged to take in the common circumstance where the prosecution relies upon uncharged acts as the context in which the jury should view the charged acts, is to instruct the jury as to the limited permissible use that can be made of the context evidence, and the way in which it may not be used, but to give the jury no instruction as to the standard of proof for such evidence.

1. It must be acknowledged that HML has left the scope of the exclusionary rule at common law ‘clouded in obscurity’.[33]  Certainly, there are problems associated with terminology in this area.  There is a difference between speaking of ‘uncharged acts’, which suggests acts that but for some particular technical or other like impediment could have been the subject of particular counts, and acts of sexual misconduct which may not have that particular flavour.  In that sense the case of unrebutted doli incapax fits more comfortably into the description ‘relationship’, or ‘background’ or ‘context’ than it does into ‘uncharged acts’.  The term ‘sexual misconduct’ falls somewhere between the two categories. 

   [33]D Hamer, ‘Admissibility and use of relationship evidence in HML v The Queen: One step forward, two steps back’ (2008) 32 Crim LJ 351, 367.

1. Recently, in IMM v The Queen,[34] the High Court once again grappled with similarly complex issues.  After a trial in the Supreme Court of the Northern Territory, the appellant was convicted on various charges involving sexual offending with a child under the age of 16.  The complainant was his step-granddaughter, she alleged a course of sexual abuse extending over a period of eight years from when she was four until she was 12.  Hers was the only direct evidence against the appellant.

   [34](2016) 330 ALR 382; [2016] HCA 14 (‘IMM’).

1. Over objection from the defence the prosecution was permitted to adduced both ‘tendency’ evidence and ‘complaint’ evidence. The ‘tendency’ evidence was to the effect that while the complainant and another girl were giving the appellant a back massage, he ran his hand up the complainant’s leg. This evidence was admitted as ‘tendency’ evidence, capable of showing that the appellant had a sexual interest in the complainant, and was said to have ‘significant probative value’. The ‘complaint’ evidence was of complaints made to various others by the complainant concerning the appellant. That evidence was admitted as an exception to the hearsay rule under s 66 of the Evidence Act (NT). The trial judge declined to exclude it under s 137 of that Act.

1. The High Court, by majority, upheld the appeal.  In doing so, it made no mention whatever of its earlier judgment in HML.  In a joint judgment, French CJ, Kiefel, Bell and Keane JJ (with whom Gageler J relevantly agreed), made the following observation that is not easily reconciled with that earlier decision.  For example,

[i]n a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant’s account.  In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met.  That is not to say that a complainant’s unsupported evidence can never meet that test.  It is possible that there may be some special features of a complainant’s account of an uncharged incident which give it significant probative value.  But without more, it is difficult to see how a complainant’s evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.[35]

[35]Ibid 394 [62].

1. This passage, upon which the respondent placed particular reliance, has given rise to concern, since on a literal interpretation of what their Honours said, evidence of other sexual misconduct involving the same complainant, led as to context, would rarely be admissible.  Such evidence, led to support the credibility of a complainant’s account, will seldom itself be bolstered by evidence from a source independent of the complainant.  Sexual offending against children normally takes places in circumstances of secrecy.  As regards the possibility that there may be ‘some special features’ of a complainant’s account of an uncharged incident that give it ‘significant probative value,’ the difficulty is in understanding what precisely the members of the Court had in mind in that regard. 

1. Although the passage is prefaced by the expression ‘in a case of this kind’, and the case involved both tendency and non-tendency (complaint) reasoning, the better view is that their Honours were in this passage directing attention to the tendency aspect of the judgment.  That is consistent with the heading before the relevant paragraphs of the reasons.  It is also consistent with the use of the term ‘significant probative value’ in the passage, that being the language of the tendency rule in s 97(1)(b) of the Evidence Act, and the concluding phrase ‘the requisite degree of probative value’.  Any other reading of that passage would constitute a radical departure from well-established principles governing the admissibility of other acts of misconduct not led as tendency, but rather as having explanatory force, by way of context. 

1. An interlocutory appeal as narrowly focused as this one happens to be is not the appropriate vehicle for attempting a lengthy exposition of what otherwise might present as something of a conundrum.  For present purposes, it is sufficient for us to say that we do not regard the particular passage in IMM, to which we have referred, as having brought about any significant change to the principles governing the admissibility of other misconduct evidence led, not as tendency, but rather as having explanatory force by way of context.

Conclusion

1. Whatever else may be said about the trial judge’s ruling, it is plain that her Honour erred in a number of important ways in her reasons for rejecting this evidence. 

1. First, at [33] she misunderstood the Crown’s position and wrongly proceeded upon the basis that the prosecution had accepted that the respondent, as an 11 to 14 year old child, had not, as a matter of law, appreciated the seriousness of his acts.  There was no warrant for that conclusion.  The prosecutor at no stage made any such concession.  She simply indicated that, on her revised submission, the Crown did not have to rebut the presumption of doli incapax. 

1. Second, whether or not as a result of that misunderstanding, at [35] it appears that her Honour proceeded upon the basis that as a matter of law the question of the applicant’s ‘capacity’ would arise.  Implicit in the judge’s reasoning appears to be the view that the prosecution would have been bound to address that issue.  As we have said, that was incorrect.  The presumption did not apply to evidence of other sexual misconduct led as context only.  The relevance of the respondent’s acts was to be viewed from the perspective of the victim, and not through the prism of the respondent’s criminal responsibility.

1. Third, contrary to the judge’s view at [33], no fundamental unfairness arose from proof of those acts in the absence of proof that the applicant did not appreciate the seriousness of those acts. 

1. Fourth, at [36] her Honour concluded that the probative value of the evidence was ‘reasonably high’ but found the prejudicial effect of the evidence outweighed its probative value.  Her Honour identified two sources of prejudice.  The first was the risk of propensity reasoning.  There was a distinct error in the trial judge’s reasons where she opined that there was a heightened risk by virtue of the respondent’s age that the jury might engage in impermissible propensity reasoning despite being directed not to do so.  Her Honour gave no reasons for that conclusion, and we can think of none.  Nor, it should be said, could senior counsel for the respondent.  As was observed during the course of argument, the age of the respondent, if anything, made propensity reasoning less likely.  There was nothing in the context evidence in this case that would elevate the risk of propensity reasoning beyond the risk in any other prosecution in which context evidence was relied upon.  The second reason given was that the allegation of penile/vaginal penetration carried with it a distinct risk of unfairness.  That was rightly conceded by the prosecution.  Such evidence might have been excluded.  But that source of prejudice did not necessarily warrant the exclusion of the entire body of context evidence.

1. Fifth, as we have said, the criminal standard is not applicable to uncharged acts led as context evidence but no instruction as to the standard of proof is required.  So much is clear from Roach and the Jury Directions Act provisions to which we have referred.  The fact that the criminal standard was inapplicable to context evidence was not productive of any unfairness. 

1. The trial judge’s ruling involved the exercise of a discretion.  It is to be approached, in any event, for the purposes of an interlocutory appeal under House v The King[36] principles.  The errors set out above are material, and vitiate the exercise of the discretion. 

   [36](1936) 55 CLR 499.

1. As mentioned, the judge’s ruling involved considerations other than doli incapax, including the question whether any unfairness arose from the manner in which the Crown was conducting the case and the significance of the introduction of evidence of penile/vaginal penetration as distinct from digital penetration.  The ruling must now be revisited afresh, without reference to the irrelevant consideration of doli incapax. 

1. We are conscious of the submission advanced below, and repeated before this Court, that her Honour should not have certified in this case because the requirements of s 295(3)(a) of the Criminal Procedure Act were not satisfied.  In our opinion, that submission was correctly rejected below, and is again rejected here.  The evidence of the other sexual misconduct, if ruled inadmissible, would substantially weaken the prosecution case, particularly because, to some degree at least, there was some independent support from her uncle for at least one of the complainant’s allegations.  To that extent, the matters to which the majority adverted in [62] of IMM to which we have previously referred are reflected in the decision to certify. 

1. In Russell (a pseudonym) v The Queen,[37] this Court  repeated the observations of Nettle JA in ZL v The Queen.[38] in which he adopted the meaning given to ‘substantially weakened’ by Spigelman CJ in R v Shamouil,[39] that the withholding of evidence of ‘cogency or force’ may result in a case ‘which is otherwise likely, even very likely, to succeed’ still being ‘substantially weakened’.  To that Nettle JA added the important rider, approved in Russell,[40] that the evidence must be ‘of major importance or at least is very important to the Crown case under consideration.’[41]

   [37][2016] VSCA 196 (‘Russell’).

   [38](2010) 208 A Crim R 325, 329 [18]–[20] (emphasis altered) (citations omitted) (‘ZL’).  See also CJD v The Queen [2012] VSCA 329 [16] (Osborn JA with Buchanan JA agreeing).

   [39](2006) 66 NSWLR 228, 234 [37]; [2006] NSWCCA 112. See also R v SJRC [2007] NSWCCA 142 [56] (Rothman J).

   [40]Russell [32].

   [41]ZL [20].

1. The appropriate course in these circumstances seems to us to be to grant leave to appeal, treat the appeal as having been heard instanter and allowed, set aside the decision below and remit the matter to the trial judge for reconsideration in accordance with these reasons. 

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