DPP v Pearson (a pseudonym)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0100

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
THOMAS PEARSON (a pseudonym)[1]	Respondent

[1]To avoid the possibility of prejudice in the respondent’s trial, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	PRIEST, T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2021
DATE OF JUDGMENT:	3 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 336
JUDGMENT APPEALED FROM:	DPP v [Pearson] (Unreported, County Court of Victoria, Judge Dempsey, 22 July 2021)

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CRIMINAL LAW – Interlocutory Appeal – Review of refusal to certify – Sexual offences against children – Four charges involving three complainants – Whether judge erred in ruling complainants’ evidence not cross-admissible as tendency evidence across all charges – Whether probative value of tendency evidence substantially outweighed by prejudicial effect – Undue weight given to possibility of emotional response by jury – Failure to consider mitigating effect of jury directions – Evidence cross-admissible – Whether judge erred in severing charges from indictment – No basis for severance – Appeal allowed – Hughes v The Queen (2017) 263 CLR 338; GBF v The Queen [2010] VSCA 135; Snyder (a pseudonym) v The Queen [2021] VSCA 96 considered – Evidence Act 2008 ss 97, 101(2); Criminal Procedure Act 2009 ss 193, 194, 296.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms E Ruddle QC with Ms E James	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent:	Mr J Portelli	David Tamanika Solicitor

PRIEST JA:

Introduction

By notices dated 9 August 2021, the applicant seeks to challenge a trial judge’s ruling made 22 July 2021 refusing to admit certain tendency evidence and to sever the indictment in a trial for sexual offences (‘the ruling’ or ‘the interlocutory decision’),[2] and the judge’s subsequent refusal to certify in relation to the ruling under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’).[3]
[2]DPP v [Pearson] (Unreported, County Court of Victoria, Judge Dempsey, 22 July 2021) (‘Ruling’).
[3]DPP v [Pearson] [No 2] (Unreported, County Court of Victoria, Judge Dempsey, 30 July 2021).

T Forrest and Walker JJA, whose reasons for judgment I have had the advantage of reading in draft, would set aside the trial judge’s orders touching the admissibility of the purported tendency evidence and the severance of the indictment.

I respectfully disagree.

Although, as will become clear, I do not endorse the reasoning which underpins the ruling, I consider that it ultimately was open to the judge to find, first, that the evidence concerning the alleged offending against DF, founding charges 1 and 2, was not admissible as tendency evidence in relation to the alleged offending against HF and SF, charges 3 and 4; secondly, that the evidence concerning the alleged offending against HF and SF was not admissible on a trial of the charges against DF; and, thirdly, that the indictment should be severed, resulting in one trial of charges 1 and 2, and another of charges 3 and 4.

Given that T Forrest and Walker JJA have dealt comprehensively with the details of the alleged offending;[4] the issues confronting the trial judge;[5] the judge’s ruling and his reasoning;[6] the statutory regime in the Evidence Act 2008 (‘the Act’) and established principles governing the admissibility of tendency evidence;[7] the statutory regime dealing with severance;[8] the principles governing interlocutory appeals in criminal cases and a judge’s refusal to certify;[9] and the parties’ submissions under cover of the three grounds[10] — for which I am grateful — I am able to express my own conclusions with relative brevity.

The first and second grounds: Admissibility of evidence of DF on charges involving HF and SF, and the admissibility of evidence of HF and SF on charges involving DF

[4]At [38] and [48]–[55] below.

[5]At [41]–[42] below.

[6]At [43] and [56]–[61] below.

[7]At [62]–[70] below.

[8]At [42] below.

[9]At [46] and [105]–[114] below.

[10]At [73]–[78] (ground 1(a)); and [85]–[85] (ground 1(b)) below.

Grounds 1(a) and 1(b) assert respectively that the judge erred in ruling, first, that the tendency evidence of DF in relation to charges 1 and 2 was not admissible on the trial of charges 3 and 4 relating to HF and SF, ‘where the intentional and sexual nature of the alleged conduct is denied’; and, secondly, that the tendency evidence of HF and SF on charges 3 and 4 was not admissible on the trial of charges 1 and 2 relating to DF, ‘where the alleged conduct is denied’.

The prosecution relies on a Notice pursuant to s 97(1)(a) of the Act (‘the tendency notice’). So far as relevant, the tendency notice is in the following terms:

1. Pursuant to s 97(1)(a) of the Evidence Act 2008 (Vic) the Prosecution gives notice that it intends to adduce evidence which will establish the tendency of the Accused to have a particular state of mind and to act in a particular way. The Prosecution seek to rely upon the tendency of the Accused:
2.1. To have a particular state of mind, namely:
a) To have a sexual interest in his nieces (the complainants); and
b) a willingness to act on that sexual interest.
2.2. To act in a particular way, namely;
a) To act upon that sexual interest by engaging in sexual activity with his nieces (the complainants).

In submissions to the trial judge, the respondent’s counsel contended that there is an absence of any special feature linking the conduct alleged in the charges in a way that would meet the statutory threshold of significant probative value. A central plank of that contention was that the alleged tendency was too broadly expressed.

The judge did not accept those submissions. In the course of his ruling, he said:[11]

For the reasons advanced by the Crown, in the Tendency notice, their written outline and in oral submissions, I don’t consider this to be a tendency of a ‘high degree of generality’, but rather one that is quite specific. I find that evidence (combined with other evidence) strongly supports proof of the tendency which in turn strongly supports an element of the charges. In that sense I find that the evidence enjoys the significant probative value required under s 97 of the Act to warrant its admission.

[11]Ruling, [30].

Having found, first, that the alleged tendency was ‘quite specific’, rather than of a ‘high degree of generality’; and, secondly, that the evidence ‘enjoys the significant probative value required under s 97 of the Act to warrant its admission’ (given that, together with other evidence, it ‘strongly supports proof of the tendency which in turn strongly supports an element of the charges’), the judge proceeded to find that the probative value of the tendency evidence was outweighed by the prejudice that would be occasioned to the respondent. He said:[12]

In my view, the probative value of the tendency evidence relating to charges 1 and 2 is outweighed by the prejudice that would be occasioned to the Accused on charges 3 and 4 in any joint trial. The purported tendency evidence across all four (4) counts will not be admitted for that reason.
In foreshadowing the severance of the indictment I am about to order, I do not consider the ‘reverse position’ — namely that the admitted potential tendency said to exist as between charges 3 and 4 ought be admitted in a trial on charges 1 and 2 to be appropriate either. I do not consider the probative value of charges 3 and 4 to substantially add to the Prosecution case on the first two (2) counts involving DF.

[12]Ruling, [36]–[37].

As I will explain, I consider that the judge was correct to conclude that the evidence in support of charges 1 and 2 was not admissible as tendency evidence in support of charges 3 and 4, and that the evidence in support of charges 3 and 4 was not admissible as tendency evidence in support of charges 1 and 2, albeit that he did so for the wrong reasons. In my view, the submissions put to the judge by the respondent’s counsel — to the effect that the alleged tendency was expressed too broadly in that it did not have any sufficient feature of or about the offending which links it together — ought to have been accepted. That being so, the judge should have found that the evidence did not possess the significant probative value required by s 97(1)(b) of the Act.

In a single complainant case — the present is not such a case — proof of the accused’s commission of a sexual offence against the complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, if the two are not too far separated in time.[13] The High Court made so much clear in Bauer:[14]

Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together.[15] In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.[16]

[13]In the present case, counsel for the respondent conceded, both before the trial judge and in this Court, that as between charges 1 and 2 involving DF, the evidence on each was admissible as tendency evidence in relation to the other.

[14]R v Bauer (a pseudonym) (2018) 266 CLR 56, 83 [50] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations as in original) (‘Bauer’).

[15]See Criminal Procedure Act 2009 (Vic), s 194.

[16]HML v The Queen (2008) 235 CLR 334 at 397–398 [168], 401–402 [181] per Hayne J.

The Court in Bauer also made clear, however, that in multiple complainant sexual cases such as the present, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another, there must be some feature of or about the offending which links the two together:[17]

In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant.[18] If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
Hughes illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants.[19] It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority[20] on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.
By contrast, in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. …

[17]Bauer, 87–8 [58]–[60] (emphasis added).

[18]See HML v The Queen (2008) 235 CLR 334 at 354 [11]–[12] per Gleeson CJ; at 382–383 [105] per Hayne J (Gummow J and Kirby J agreeing at 362 [41], 370 [59]); GBF v The Queen [2010] VSCA 135 at [26]; BBH v The Queen (2012) 245 CLR 499 at 525 [70]–[71] per Hayne J (Gummow J agreeing at 522 [61]).

[19]See Hughes v The Queen (2017) 263 CLR 338 at 358-360 [44]–[54] per Kiefel CJ, Bell, Keane and Edelman JJ.

[20]Hughes v The Queen (2017) 263 CLR 338 at 361–362 [57]–[60] per Kiefel CJ, Bell, Keane and Edelman JJ.

In Hughes, the issue reduced ‘to the question of whether proof that a man of mature years has a sexual interest in female children aged under 16 years (“underage girls”) and a tendency to act on that interest by engaging in sexual activity with underage girls opportunistically, notwithstanding the risk of detection, is capable of having significant probative value on his trial for a sexual offence involving an underage girl’.[21]
[21]Hughes v The Queen (2017) 263 CLR 338, 344 [2] (Kiefel CJ, Bell, Keane and Edelman JJ) (‘Hughes’).

The indictment in Hughes charged the appellant with 11 counts of sexual offences committed against five underage girls aged between six and 15 years at the date of the offending. Pre-trial, the prosecution served the appellant with notice of its intention to adduce tendency evidence at the trial. The acts charged in each count and the circumstances of their commission varied, and the notice particularised differing forms of sexual conduct. An important feature of that conduct, however, was its occurrence in the vicinity of other adults in circumstances in which the appellant courted a real risk of detection by another adult. Charged conduct included digital penetration of the vagina of a girl aged 14 or 15 years; procuring a girl aged between six and eight years to masturbate him; indecently rubbing his erect penis against a nine-year-old girl; encouraging a 15-year-old girl to touch his penis; and indecently exposing himself to girls aged nine and 12 or 13 years. The prosecution also sought to adduce tendency evidence from three women who described occasions when they had been at the appellant’s home as young girls and the appellant had either touched them in a sexual way or exposed his penis in their presence. Three other women who had worked with the appellant described occasions, when they were aged in their late teens or early twenties, when the appellant had inappropriately sexually touched them or exposed himself to them.

Shortly before turning to consider the evidence relating to one complainant, ‘JP’, who was assaulted in her bed when the appellant and his wife were dinner guests at her home, the majority observed that: an inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience; evidence of such an inclination will often include evidence of grooming of potential victims so as to reveal a ‘pattern of conduct’ or a ‘modus operandi’; the particular tendency evidence in the case showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by (such level of disinhibited disregard of the risk of discovery by other adults being even more unusual as a matter of ordinary human experience); the defence case on each count was that the complainant had fabricated her account; and without the impugned tendency evidence, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults.[22]
[22]Ibid 361 [57]–[58].

The majority continued:[23]

Considered in isolation, JP’s evidence might have seemed inherently unlikely: the appellant, a family friend, at dinner in JP’s home, absented himself from the party and came into her bedroom, and without making any attempt to ensure her silence, commenced to invasively sexually assault her while his daughter lay sleeping in the same bed. The jury might well be disinclined to accept JP’s evidence as satisfying it, beyond a reasonable doubt, that the appellant had, in fact, engaged in conduct which was so much at odds with the jury’s experience of the probabilities of ordinary human behaviour. Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised.

[23]Ibid 361–2 [59] (emphasis added).

Ultimately, the majority in Hughes concluded:[24]

When considered together, all the tendency evidence provided strong support to show the appellant’s tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection.
The probative value of the evidence of each complainant and [other witnesses] lay in proof of the tendency to act on the sexual attraction to underage girls, notwithstanding the evident risks. The fact that the appellant expressed his sexual interest in underage girls in a variety of ways did not deprive proof of the tendency of its significant probative value.
The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant. …

[24]Ibid 362–3 [62]–[64] (emphasis added).

In the present case, the alleged tendency amounts to no more than the respondent having a sexual interest in his nieces — the prosecution does not rely in the tendency notice on the fact that they were ‘underage’[25] — and a willingness to act on that sexual interest ‘by engaging in sexual activity’ with them. Thus, beyond the fact that the complainants are the respondent’s nieces, the alleged tendency does not possess a particular feature such as that obtaining in Hughes — a tendency to engage opportunistically in sexual activity with underage girls despite a high risk of detection — the only feature ‘of or about the offending’ linking that against DF to that against HF and SF being a family connection. To my mind, although not irrelevant, that mere family connection does not constitute a feature of or about the offending imbuing the evidence with significant probative value.
[25]The three complainants were all underage at the time of the alleged offending: DF was aged eight or nine years; SF was aged 14; and HF was 15.

As I have endeavoured to convey, it appears that the majority in Hughes concluded that the tendency evidence impugned in that case had significant probative value because it made probable that which would otherwise be considered to be improbable; that is, that the appellant would engage in sexual conduct with underage girls in circumstances in which he ran a palpable risk of discovery by other adults. Had that particular feature been absent, it appears that the majority would not have concluded that the tendency evidence possessed significant probative value.

Unlike Hughes, there is no particular feature or features present in this case bestowing significant probative value upon the challenged evidence. In my view, the mere fact that an accused person is proven to have committed a sexual offence against a female who is his niece is not of itself significantly probative of the accused person having committed a sexual offence against another female who is also his niece. I consider that something more is required: a feature of or about the offending against one of the female complainants which links it to the offending against another.

Although the majority in Hughes made it plain that s 97(1) ‘does not condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue’,[26] and that there are ‘dangers in focusing on single labels such as “underlying unity”, “pattern of conduct” or “modus operandi”’,[27] similarity of conduct nonetheless may — depending on the issues in the trial — still be significant in establishing a relevant tendency.[28] Indeed, similarity in conduct might be a feature of or about particular offending against a complainant which links it to the offending against another.
[26]Hughes 355–6 [39].
[27]Ibid 356–7 [41].
[28]Ibid 355–6 [39].

In the instant case, it does not appear to have been disputed that the conduct founding the charges involving DF, charges 1 and 2, is qualitatively different to that founding the charges involving HF and SF, charges 3 and 4. Indeed, the non-consensual penetrative offending alleged for the purposes of charges 1 and 2 is substantially dissimilar to the touching alleged for the purposes of charges 3 and 4. The only relevant feature connecting the charged conduct is the fact that the three complainants are the respondent’s nieces (the prosecution not having relied in its tendency notice on their ages as part of any alleged tendency). As I have said, I consider that the complainants being second-degree relatives of the respondent is not a feature of or about the offending which relevantly links the offending against DF to the offending against HF and SF. And, of course, the reverse is also true.

Finally, I would observe that, although the main thrust of the respondent’s counsel’s submissions in this Court was directed to contending that the trial judge had made no House[29] error, and the statutory criteria in ss 295(3), 296(4) and 297(1) of the CPA had not been met, he did not abandon the primary submission to the trial judge that there is an absence of any special feature linking the alleged conduct in a way that would meet the statutory threshold of significant probative value in s 97(1) of the Act. There is thus no obstacle to this Court acting on that submission, despite no distinct challenge to the trial judge’s finding that the impugned evidence had significant probative value.[30]
[29]House v The King (1936) 55 CLR 499.
[30]Cf [71] below.

For the foregoing reasons, I consider that the judge’s order refusing to admit the impugned tendency evidence was open to him, albeit that his reasons for doing so were flawed. In my opinion, the judge should have accepted the submissions of the respondent’s counsel to the effect that there is an absence of any special feature linking the conduct alleged in the charges in a way that would meet the statutory threshold of significant probative value, a central plank of that contention being that the alleged tendency was too broadly expressed. That being so, I would refuse the application to review the judge’s refusal to certify, and, if necessary, refuse leave to appeal on grounds 1(a) and 1(b).

The third ground: Severance

Ground 1(c) asserts that the judge erred in ruling that the ‘DF matters (charges 1 and 2) be tried separately to the HF and SF matters (charges 3 and 4)’.

So far as severance is concerned, once more I consider that it was open to the judge to make the order that he did, albeit once more I do not subscribe to the reasons underpinning his decision.

The judge’s ruling on severance proceeded on the assumption that the purported tendency evidence had significant probative value[31] — I have expressed my reasons for disagreeing — but that ‘the allegations made in charge 2 would be likely to overwhelm a jury’s considerations [sic] when turning to charges where HF and SF are complainants’, so that the resulting potential for unfair prejudice should result in charges 3 and 4 being heard separately from charges 1 and 2.[32]
[31]Although it is not entirely clear, the judge also appears to have proceeded on the basis that the evidence on charges 1 and 2 was tendency evidence for the purposes of charges 3 and 4, but would not be admitted for that purpose because of the prejudice that would be occasioned in a joint trial. That is, save for the fact that the probative value of the tendency evidence relating to charges 1 and 2 was outweighed by the prejudice that would be occasioned to the applicant on charges 3 and 4 on a joint trial, the evidence would otherwise be cross-admissible. See Ruling, [36]–[37] at [10] above.
[32]Ruling, [41]–[42].

By s 194(1) of the CPA, if charges for two or more sexual offences are joined in the same indictment, ‘it is presumed that those charges are to be tried together’; and s 194(2) provides that the ‘presumption created by subsection (2) is not rebutted merely because evidence on one charge is inadmissible on another charge’. Notwithstanding the ‘presumption’ in s 194(2), the effect of ss 193(1) and (3) is that, if an indictment contains more than one charge, ‘the court may order that any one or more of the charges be tried separately’ if ‘the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment’, or if ‘for any other reason it is appropriate to do so’.

Many of the relevant legal principles informing the application of the provisions of ss 193 and 194 were recently discussed in Dun, in which a number of the relevant authorities were considered.[33] I need not recapitulate them in any detail.
[33]Dun (a pseudonym) v The Queen [2021] VSCA 286, [15]–[24] (Walker JA, Maxwell P and Kaye JA agreeing) (‘Dun’).

Plainly, an indictment should be severed where that is both desirable and practicable in order to ensure a fair trial.[34] Put another way, I consider that an indictment should always be severed if failure to do so will result in an unfair trial. Indeed, where the failure to sever an indictment will result in an unfair trial, it is difficult to envisage circumstances in which the ‘presumption’ in s 194(2) of the CPA will not be overcome. On the other hand, where the evidence on each charge in the indictment is cross-admissible, an order for severance generally will be pointless (putting to one side, for example, cases in which the indictment is overloaded).
[34]R v TJB [1998] 4 VR 621, 630–1 (Callaway JA), cited in Dun, [19].

In the present case, as I have explained, the evidence on the charges relating to DF is not cross-admissible on the charges relating to HF and SF (the reverse also being the case). Failure to sever charges 1 and 2 from charges 3 and 4 will thus result in unfair prejudice to the respondent, especially on a trial of charges 3 and 4. In particular, not only is the alleged conduct founding charge 2 egregiously more serious than that founding charges 3 and 4 — with the potential to arouse strong feelings in the average juror — but the risk of improper tendency reasoning is appreciable. In those circumstances, it is entirely proper that severance should have been ordered.

Although trial by jury in criminal cases requires the assumption that, as a general rule, juries understand and follow the directions given by trial judges, it does not involve the assumption that jurors’ decision-making is unaffected by matters of possible prejudice.[35] It is, in my view, beyond doubt that charges for any and all alleged sexual offending against children do arouse strong visceral responses in jurors — no matter where the particular alleged offending stands on an scale of objective seriousness — thereby creating a real risk of unfair prejudice to an accused in a joint trial of charges of sexual offences where the evidence is not cross-admissible as between those charges. In this case, that potential for unfair prejudice can be eliminated by an order for severance.
[35]Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J).

Turning to the matters of public interest which generally inform whether joinder of charges in a single indictment is proper, the Court made the following observations in Demirok:[36]

The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.

[36]R v Demirok [1976] VR 244, 254 (Young CJ, Lush and Crockett JJ) (‘Demirok’).

Most of the Demirok considerations are, however, of limited relevance in a case such as the present. In particular, the VARE[37] and special hearing[38] procedures generally employed in trials for sexual offences involving children, usually means that witnesses will ‘not be required to give evidence of the same events at a succession of trials’, and ‘administrative matters of court time spent and public expense incurred if more than one trial is to be conducted’ will be confined.
[37]Video and audio recorded evidence. See CPA, s 367; and Criminal Procedure Regulations 2009, Part 2.
[38]See CPA, ss 366(2) and 369(2).

In the instant case, the risk of unfair prejudice — and thus the prospect of an unfair trial — can be removed by severance of the indictment. Moreover, as I have said, the matters of public interest that generally dictate that charges not be severed are of limited relevance. I consider that those factors in combination overcome the presumption in s 194(2) of the CPA. In those circumstances, it was open to order severance of the indictment.

I would not uphold proposed ground 1(c).

T FORREST JA

WALKER JA:

The respondent, Mr Pearson, is charged with four sexual offences alleged to have been committed against three of his nieces, HF, SF and DF, on four different occasions. The alleged offending took place while HF, SF and DF (or some of them) were being cared for at the respondent’s residence from time to time.

(a) Charge 1 involved an allegation of digital penetration while the respondent was giving DF a ‘piggy back ride’, in early 2016. DF was then nine years of age.

(b) Charge 2 involved an allegation that the respondent took DF into a bedroom and forcibly digitally penetrated her, sometime between late 2018 and early 2019. DF was then 12 years of age.

(c) Charge 3 involved an allegation that the respondent touched HF on the stomach and moved his hands towards her vagina and underneath the elastic of her pants while the respondent and HF were sharing a bed, between June and July 2018. HF was 15 years of age.

(d) Charge 4 involved an allegation the respondent touched HF on the stomach and moved his hands towards her vagina and underneath the elastic of her pants while the respondent and SF were sharing a bed, between August and September 2018. SF was 14 years of age.

The prosecution gave notice pursuant to s 97(1)(a) of the Evidence Act 2008 that it seeks to adduce tendency evidence. That evidence is directed to establishing that the respondent has a tendency:

(e) to have a particular state of mind, namely a sexual interest in his nieces and a willingness to act on that sexual interest; and

(f) to act in a particular way, namely to act upon that sexual interest by engaging in sexual activity with his nieces.

The issues in the case to which the tendency evidence is relevant are:

(g) whether the acts constituting the alleged offences occurred; and

(h) whether the acts alleged to constitute charges 3 and 4 were intentional.

The prosecution sought to rely on the tendency evidence across all the alleged offending. The respondent conceded that the prosecution could rely on tendency evidence in relation to the conduct referable to charges 1 and 2 relating to the same complainant, DF. The respondent also conceded that the prosecution could rely on tendency evidence in support of charges 3 and 4, which relate to complainants HF and SF. However, the respondent submitted that the prosecution could not rely on tendency evidence across all of the charges, as proposed. That is, the respondent submitted that evidence concerning the alleged offending against DF (charges 1 and 2) was not admissible as tendency evidence in relation to the alleged offending against HF and SF (charges 3 and 4). Similarly, the respondent submitted that evidence concerning the alleged offending against HF and SF was not admissible in relation to the alleged offending against DF.

The four offences were included in a single indictment. Thus, by reason of s 170(1) of the Criminal Procedure Act 2009 (‘CPA’) the charges were to be heard together unless an order was made under s 193 or s 195 of the CPA. Section 193 provides that the court may order one or more charges on the indictment to be tried separately if the court considers that the accused’s case may be prejudiced by the joinder or, for any other reason, it is appropriate to do so. However, s 194 of the CPA creates a presumption that where two or more sexual offences are joined on the same indictment those charges should be heard together. Section 194(3) provides that the presumption is not rebutted ‘merely because evidence on one charge is inadmissible on another charge’. The respondent submitted that, if the evidence for all charges was not admitted on a tendency basis, then charges 3 and 4 should be severed from the indictment and heard separately. The respondent also sought a permanent stay of charges 3 and 4, on the basis that those charges were inevitably bound to fail.

The primary judge held that evidence concerning the alleged offending against DF (charges 1 and 2) was not admissible as tendency evidence in relation to the alleged offending against HF and SF (charges 3 and 4), and that evidence concerning the alleged offending against HF and SF was not admissible in relation to the alleged offending against DF. The judge also held that charges 3 and 4 should be severed from the indictment. However, his Honour refused the application for a permanent stay.

The primary judge subsequently refused an application by the prosecution to certify his interlocutory rulings pursuant to s 295 of the CPA.

The prosecution now seeks to review the judge’s refusal to certify. Three proposed grounds of appeal are advanced:

(i) that the judge erred in ruling that the tendency evidence of DF is not admissible upon the trial of charges 3 and 4 (the HF and SF matters);

(j) that the judge erred in ruling that the tendency evidence of HF and SF is not admissible upon the trial of charges 1 and 2 (the DF matters);

(k) that the trial judge erred in ruling that the DF matters (charges 1 and 2) be tried separately from the HF and SF matters (charges 3 and 4).

At the outset we observe that an interlocutory appeal from a ruling on admissibility of evidence, and from a discretionary decision whether to sever charges on an indictment, is governed by the principles in House v The King.[39] Thus it is necessary for the prosecution to either establish specific error or, in the absence of specific error, that the relevant decision was not reasonably open to the primary judge. The prosecution relied upon both specific errors and residual House v The King errors in the present case.
[39](1936) 55 CLR 499; [1936] HCA 40. See, eg, Erickson (a pseudonym) v The Queen [2021] VSCA 234, [41] (concerning admissibility of tendency evidence); Dun (a pseudonym) v The Queen [2021] VSCA 286, [33] (‘Dun’) (concerning severance of charges).

For the reasons that follow, we would grant leave to appeal and allow the appeal on all grounds. In the present case it is appropriate for this Court to re-exercise the functions conferred on the trial judge, rather than to remit the matter for reconsideration. In that regard, we would rule that the evidence of each of DF, HF and SF is cross-admissible as tendency evidence on each of the charges. We would further decline to sever the charges.

The alleged offending and the respondent’s case

Charge 1 involves an allegation that the respondent digitally penetrated DF’s vagina. The offending was alleged to have occurred at the respondent’s home, when he was looking after DF while her mother and her grandparents were out, in early 2016. DF was nine at the time, and the respondent was 22. DF says that she was changing from her pyjamas into her clothes in a bedroom, and the respondent opened the door and stood at the doorway and watched her getting changed. She asked him to leave, but he didn’t. He offered her a piggy back ride, and after she was finished changing they went out into the living room and he gave her a piggy back around the house. In the course of the piggy back, DF says the respondent moved his hands down under her shorts and underwear and that he put his fingers inside her. She asked him to stop the piggy back ride because she felt sick, but he didn’t stop until she had asked him a few times.

The respondent acknowledges that he had given DF piggy backs in the past, but denies intentionally penetrating DF at all.

Charge 2 also involves an allegation made by DF that the respondent digitally penetrated DF’s vagina. This offending was alleged to have occurred at the children’s grandparents’ house, where the respondent also lived, during the summer holidays in 2018 to 2019. DF was 12 at the time, and the respondent was 25. The respondent was looking after DF while her mother was out (and when her grandparents were out). DF says that the respondent dragged her from the couch when it was time for her to go to bed, which DF described as being ‘like, a game’. She says that the respondent dragged her along a corridor into the spare bedroom where she was to sleep, and put her on the bed. DF was wearing pyjamas, and she says that the respondent pulled down her pants, put his hands inside her underwear and touched her vagina. He put his fingers inside her. DF told him to stop. She was crying. She resisted and tied to push his hands away, and pull up her pants, but he moved her hands out of the way and continued the assault. DF says that the offending stopped when she eventually got up from the bed and left the room, and went back to the living room.

In his record of interview, the respondent admitted that he did drag DF, SF and HF around the house on their backs sometimes, playfully, and that he used to do that to his own sisters as well. But the respondent denies that the conduct alleged to have occurred in the bedroom ever occurred.

Charge 3 involves an allegation that the respondent sexually assaulted HF. This offending was alleged to have occurred at the children’s grandparent’s house, where the respondent also lived, between June and July 2018. HF was 15 at the time, and the respondent was 25. HF and her sisters DF and SF were staying at their grandparents’ house while their mother worked a night shift. Only the respondent was home. It was a cold night, and the respondent suggested that HF share his bed. HF says that she went to sleep in a bed with the respondent and woke to him touching her leg. She ‘flicked’ him away. She fell asleep again, and woke when the respondent grabbed her thigh firmly with his hand. This time she picked his hand up and moved it away. The next time HF woke she found the respondent’s arm ‘wrapped around [her] stomach, like a cuddle’. She was on her side and he was close behind her, in a ‘spooning position’. While in this spooning position, the respondent began sliding his hand down HF’s stomach, toward her vagina and underneath the elastic of her pants. HF says that he was moving his hand to ‘the bottom of my belly ... like, the top of the actual vagina region … but not actually on it’; and that ’his thumb started to go in the elastic of my pants’. This stopped when HF got out of bed and left the room.

The respondent admits that on past occasions he has shared a bed with HF. He denies intentionally touching her in the manner alleged. Further, insofar as touching may have occurred, he denies that the touching was sexual in nature, or contrary to community standards of acceptable conduct.

Charge 4 involves an allegation that the respondent sexually assaulted SF. This offending was also alleged to have occurred at HF’s grandparent’s house, where the respondent also lived, between August and September 2018. SF was 14 at the time, and the respondent was 25. SF was staying at her grandparents’ house while her mother went to Hawaii on a short holiday. She was unsettled by stormy weather, so her grandmother suggested that she sleep in the respondent’s bed as he had gone out that night. The respondent returned home and got into bed with SF. She told him why she went into his bed, then went to sleep. SF says she woke to find the respondent’s hands around her waist, and she could feel his hands on her skin, indicating that her top was lifted. SF told police that each time she exhaled, he moved his hand down a little. SF removed the respondent’s hand, but he persisted. She felt the elastic on her pyjama pants ‘flicking’, and could tell that his fingers were nearly in her pants, so she pulled his arm away, but he put it back. SF felt ‘his fingers starting to go under [her] pants’, just under her belly button. She then moved his arm before he could get into her underwear. SF then sat up, got out of bed and walked off. The respondent asked what she was doing, and she said she was just going to the toilet. She did not return to the respondent’s bedroom.

The respondent admits that on past occasions he has shared a bed with SF. He denies intentionally touching SF in the manner which she alleges. Insofar as touching may have occurred, he denies that the touching was sexual in nature, or contrary to community standards of acceptable conduct.

The judge’s decision

The judge observed that the manner in which he was to consider the admissibility of the tendency evidence, in light of Hughes v The Queen,[40] IMM v The Queen[41] and R v Bauer,[42] was as follows:

Stage 1: consider whether the disputed evidence meets the threshold for relevance (s 55)
Stage 2: consider whether the disputed evidence meets the threshold for significant probative value (s 97)
Stage 3: consider whether the probative value of the disputed evidence (even if significant) substantially outweighs any prejudicial effect on the accused (s 101)
Stage 4: consider whether, the disputed evidence ought to nevertheless be excluded under the relevant exclusionary provisions (s 135 or s 137)
Stage 5: consider whether any special terms ought to be imposed on the admission of the disputed evidence (s 192)[43]

[40](2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).

[41](2016) 257 CLR 300; [2016] HCA 14 (‘IMM’).

[42](2018) 266 CLR 56; [2018] HCA 40 (‘Bauer’).

[43]DPP v [Pearson] (County Court of Victoria, Judge Dempsey, 22 July 2021) [25] (‘Ruling’).

As to stages 1 and 2, his Honour held as follows:

(l) Stage 1: The evidence met the threshold for relevance, as the respondent accepted.[44]

(m) Stage 2: The alleged tendency was not of a ‘high degree of generality’, as the respondent had submitted below, but rather was quite specific. His Honour found that the evidence (combined with other evidence) ‘strongly supports proof of the tendency which in turn strongly supports an element of the charges’. Thus his Honour concluded that the evidence satisfied the requirement of ‘significant probative value’ imposed by s 97 of the CPA.[45]

[44]Ruling [26].

[45]Ruling [30].

Stage 3 was the critical aspect of his Honour’s reasoning on the admission of the tendency evidence, for the purposes of this appeal. The judge stated that he was concerned about ‘the danger that a jury will give undue weight to the alleged tendency’. He relied on the following passage from Hughes, to which his Honour added emphasis within a longer quotation:[46]

In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence.[47]

[46]Ruling [33].

[47](2017) 263 CLR 338, 349 [17] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.

His Honour observed that charges 3 and 4 were of a qualitatively different kind to the penetrative offences alleged in charges 1 and 2. He held that the probative value of the tendency evidence relating to charges 1 and 2 was outweighed by the prejudice that would be occasioned to the respondent on charges 3 and 4 in any joint trial. He thus declined to admit the tendency evidence across all four counts.[48]
[48]Ruling [35]–[36].

His Honour went on to make the following observation:
In foreshadowing the severance of the indictment I am about to order, I do not consider the ‘reverse position’ — namely that the admitted potential tendency said to exist as between charges 3 and 4 ought be admitted in a trial on charges 1 and 2 to be appropriate either. I do not consider the probative value of charges 3 and 4 to substantially add to the Prosecution case on the first two (2) counts involving DF.[49]
This is referred to as the ‘reverse position ruling’.
[49]Ruling [37].

Having dealt with the questions of cross-admissibility, his Honour went on to consider the respondent’s application that charges 3 and 4 be severed from the indictment. The judge observed that, absent cross admissibility of tendency evidence across the whole of the indictment, the respondent sought to rebut the presumption of joinder under s 194(2) of the CPA for the charges relating to HF and SF, and have those charges severed under s 193.[50] In dealing with this issue, the judge said as follows:

I have already expressed the matters that concern me about the gravity of what is alleged in charge 2 and what effect the allegations are likely to have on any jury hearing all four charges simultaneously. Charge 2 is of a significantly different magnitude to charge 1, but even more so when compared against charges 3 and 4. As I have noted elsewhere, the circumstances of charge 2 are likely to engender very strong emotions in any jury.
Despite judicial warnings about the use to be made of the evidence of charges 1 and 2 when considering 3 and 4, I am of the view that the allegations made in charge 2 would be likely to overwhelm a jury’s considerations when turning to charges where HF and SF are complainants.
It is the potential for that kind of unfair prejudice that has caused me to order charges 3 and 4 be heard separately from charges 1 and 2.
It is true that there is a ‘common factual matrix’ that underpins all the allegations that means that some witnesses may have to give evidence more than once. The Crown referred me to matters that favoured joinder, but pointed to no meaningful prejudice to the Prosecution regarding this aspect of the case if the charges were severed. The special hearings of the three complainants are to be conducted over consecutive days commencing 28 July 2021. Two witnesses are professional witnesses from the DHHS and there is of course the Informant. One witness is a child, who will only give evidence once, given she is the complaint witness for SF only. The evidence of the complainant’s mother (and for that matter their grandmother) can no doubt be pre-recorded on a single day with the co-operation of the parties. I don’t consider that the manner in which the Crown case would be presented to successive juries is a burdensome duplication of resources, nor would it artificially fragment the Crown case in each trial. I consider severance of the kind I have just outlined necessary to ensure the fair trial of the Accused.[51]
[50]Ruling [39].
[51]Ruling [40]–[43] (citations omitted).

Principles applicable to tendency evidence

In relation to the admissibility of tendency evidence, s 97 of the Evidence Act relevantly provides as follows:

97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

In Hughes, a majority of the High Court noted that the text of s 97(1)(b) does not include a reference to similarity, or to the concepts of ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’. The majority held that the omission of those familiar common law concepts (which underpinned the admissibility of similar fact evidence) reveals a legislative intention that the admissibility of evidence under s 97(1)(b) is not limited to evidence which contains those features.[52]
[52](2017) 263 CLR 338, 356–7 [41] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.

The majority also observed that the probative value of the tendency evidence sought to be relied on would depend on the nature of the fact in issue which that evidence is adduced to prove. Thus, their Honours stated:

Commonly, evidence of a person’s conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court’s assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence.[53]

[53](2017) 263 CLR 338, 355–6 [39] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.

The majority also observed that ‘logic and human experience’ suggest that ‘proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded’.[54]
[54](2017) 263 CLR 338, 356 [40] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.

Although s 97 thus permits the admission of tendency evidence, s 101 of the Evidence Act restricts the use of that evidence, as follows:

101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
(3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the accused.
(4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the accused.

As the High Court observed in Bauer, although, unlike s 137, s 101(2) does not include the word ‘unfairly’ before the word ‘prejudicial’, the provision is concerned with the same idea: harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way.[55]
[55](2018) 266 CLR 56, 93–4 [73] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations omitted); [2018] HCA 40. See also Clark (a pseudonym) v The Queen [2015] VSCA 297, [46] (Maxwell P, Priest and Kaye JJA).

Thus, as this Court observed in GBF v The Queen:

In effect, the section calls for the application of a balancing process which is to be conducted on the facts of each case. The court is required to give consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh. The process is similar to that by which Victorian courts were required to assess whether the probative value of tendency evidence so much outweighed its prejudicial effect as to make it just that it should be admitted under s 398A of the Crimes Act 1958.[56]

[56][2010] VSCA 135, [30] (Nettle, Harper JJ and Hansen AJA) (‘GBF’).

In Hughes the majority explained the kinds of prejudicial effect with which s 101 is concerned as follows:

The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.[57]

[57](2017) 263 CLR 338, 349 [17] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.

However, as this Court observed in Dempsey (a pseudonym) v The Queen, prejudice that might be occasioned by the reception of tendency evidence may be able to be dealt with by appropriate directions to the jury, so that there is no meaningful risk that the jury will reason in an impermissible manner.[58]
[58][2019] VSCA 224, [101] (Beach, Kaye and Ashley JJA).

Admissibility of the tendency evidence in this case

As noted above, the trial judge held that the evidence in issue — that is, the evidence of DF in relation to charges 3 and 4, involving HF and SF, and the evidence of HF and SF in relation to charges 1 and 2, involving DF — was relevant and was of significant probative value. The respondent did not challenge that finding on the appeal, either in his written submissions or in oral argument. It is thus appropriate to proceed on the basis that the evidence satisfied ss 55 and 97 and was prima facie admissible. For completeness, we note that we consider that his Honour was correct in so finding.

The real gravamen of the appeal concerns the next step in his Honour’s reasoning: that the probative value of the evidence did not substantially outweigh its prejudicial effect.

Ground 1: Admissibility of DF’s evidence in relation to charges involving HF and SF

The parties’ submissions

Proposed ground 1 is that the primary judge erred in ruling that the evidence of DF is not admissible upon the trial of the charges involving HF and SF. On this ground the prosecution submitted that the judge departed from Hughes, and focused unduly on the fact that charge 2 was ’qualitatively different‘ from charges 3 and 4 in finding the probative value of DF’s tendency evidence was outweighed by prejudice to the respondent on charges 3 and 4.[59] Relying on Hughes, the prosecution submitted that similarity between the relevant offences is relevant but not necessary.[60] Further, the prosecution submitted that the acts in charges 1 and 2 bear relevant similarities to the acts in charges 3 and 4. The prosecution pointed to a shared factual matrix of family relationship, unsupervised access, offence location, and physical acts cloaked in ‘innocent’ conduct.
[59]The prosecution referred to Ruling [30], [34]–[35].
[60]See Hughes (2017) 263 CLR 338, 354 [34], 355 [37], 355–6 [39], 360 [56] (Kiefel CJ, Bell, Keane and Edelman JJ), 363 [63] (Gageler J); [2017] HCA 20.

The prosecution submitted that to focus on qualitative differences in charges, rather than features of the alleged acts, ‘unduly inhibits the use of tendency evidence’. Further, the prosecution observed that courts have held that, where evidence is significantly probative of the asserted tendency, objectively more grave conduct than that charged is admissible.[61]
[61]The prosecution referred to Peterson (a pseudonym) v The Queen (2019) 57 VR 521; [2019] VSCA 12 (‘Peterson’).

The prosecution also submitted that the judge erred by failing to consider the mitigating effect of jury directions on any prejudicial effect of the tendency evidence.[62]
[62]The prosecution referred to Ruling [36].

Further, the prosecution submitted that the exclusion of DF’s tendency evidence substantially weakens the prosecution case ‘by rendering the asserted tendency a nullity, and substantially restricting evidence necessary to proof of the ”sexual” and ”intentional” elements of charges 3 and 4’. In that regard the prosecution submitted that DF’s tendency evidence was ‘more significantly probative than HF and SF’s evidence to rebut the respondent’s position that the alleged touching was exaggerated, unintentional and non-sexual’.

In contrast, the respondent submitted that the trial judge carefully considered the decision in Hughes. He pointed out that the trial judge’s weighing of the probative value of the evidence as against its prejudicial effect was clearly set out at [25] and again at [31]–[37] of the Ruling, and that the trial judge explicitly considered that the risk ‘of improper, unfair use of the evidence by the jury’ could not be properly guarded against through the mitigating effect of jury directions.

The respondent further submitted that the Ruling could not be said to substantially weaken the prosecution case, and that the judge was entitled to consider the qualitative differences in the charges. Having considered the probative value of the evidence referrable to charges 3 and 4, the respondent contended that it was ‘clearly open’ to the trial judge to determine that it did not substantially add to the prosecution case on charges 1 and 2.

Consideration of ground 1

As set out above, the applicant contended that his Honour placed significant emphasis on the proposition that the offending in charges 3 and 4, which did not involve penetration, was ‘qualitatively different’ from the offending in charges 1 and 2, which did involve penetration. That is, his Honour considered the offending in charges 1 and 2 to be more grave than the offending in charges 3 and 4 (which it undoubtedly was). That informed his Honour’s conclusion that the probative value of DF’s evidence did not outweigh its prejudicial effect. It appears that his Honour’s process of reasoning was that there was a risk that the jury may have a strong emotional reaction to the conduct in charge 2, in particular, and the qualitative difference between that charge and charges 3 and 4 meant that that emotional reaction would lead to a risk that the jury would give undue weight to the alleged tendency in considering the less grave conduct alleged in charges 3 and 4.

Two points may be made in relation to this aspect of his Honour’s reasons. First, as we noted above, s 97(1)(b) of the Evidence Act involves a deliberate legislative choice to depart from the prior common law requirement for similarity in conduct. However, we do not think that that legislative choice means that the differences between the conduct are legally irrelevant to the different task to be undertaken in relation to s 101(2). That task is directed to the prejudicial effect of the tendency evidence, and in our opinion it is permissible for a judge to consider the differences or similarities in the conduct alleged in the different charges in evaluating the prejudice likely to be caused to the accused. The differences or similarities will, of course, vary from case to case, and the weight to be given to them is a matter for the trial judge to evaluate. In the present case, the judge did not err in considering this issue under s 101(2).

The second point to make, however, is that great care must be taken in relying upon the danger of a jury’s decision-making being compromised by emotional responses to evidence relating to sexual offending against a child. As this Court observed in Snyder (a pseudonym) v The Queen, in the context of an application to exclude evidence under s 137 of the Evidence Act, that is ‘a feature that is common to all jury trials of alleged sexual offending against children’.[63] The Court there held that the possibility of an emotional response by the jury, whether ‘alone, or in combination with other factors, … could not lead to the exclusion under s 137 of highly probative evidence’.[64] In our view that proposition applies with equal force to exclusion of tendency evidence under s 101(2). To the extent that this concern was the basis for his Honour’s decision as to the admissibility of DF’s evidence on charges 3 and 4, we consider it reveals error.
[63][2021] VSCA 96, [70] (Priest, Kyrou and Kaye JJA).
[64][2021] VSCA 96, [70] (emphasis added) (Priest Kyrou and Kaye JJA), referring back to matters identified in [64].

We also consider that the prosecution has made good its contention of specific error by reason of his Honour’s failure, in determining the admissibility of DF’s evidence as tendency evidence on charges 3 and 4, to consider the mitigating effect of jury directions in relation to the permissible use of the tendency evidence. Although his Honour considered the use and likely effect of jury directions in his reasons concerning severance, that occurred at a point in the analysis where his Honour had already found that the tendency evidence was not cross-admissible. The jury directions to be given in that context would be quite different from the jury directions to be given where the evidence is cross-admissible. But, as the respondent accepted, his Honour did not, in the Ruling, expressly consider whether, having identified a prejudice to the respondent arising from the admission of DF’s evidence on charges 3 and 4, that prejudice could be addressed and cured by the giving of appropriate directions. As the respondent also accepted, that matter was relevant to the assessment his Honour was called upon to make. That is because if the identified prejudice could be cured or substantially reduced by appropriate directions, then the significant probative value of the evidence could outweigh the limited risk of prejudice. Thus the balancing exercise required by s 101(2) would not weigh in favour of exclusion of the evidence.

The respondent submitted that the judge should be understood to have considered the potential for jury directions to mitigate prejudice and thus impact on the s 101(2) analysis, even though he did not refer to that issue, because that issue was raised in oral argument before him by the prosecution. However, in our opinion where a matter is not dealt with in the judge’s reasons it is not appropriate to conclude, from the fact that a matter was put in oral argument, that the trial judge would have considered, or did consider, that matter. That is particularly so where the matter raised was significant to the analysis required, as was the case here.

In our opinion, ground 1 is made out.

Ground 2: Admissibility of HF’s and SF’s evidence in relation to charges involving DF

Proposed ground 2 is that the primary judge erred in ruling that the evidence of HF and SF is not admissible upon the trial of the charges involving DF. On this ground the prosecution submitted that the judge erred in his ‘reverse position’ ruling, which is a reference to his Honour’s conclusion that he ‘did not consider the probative value of charges 3 and 4 to substantially add’ to the prosecution case on the first two counts. The prosecution submitted that the judge ‘mis-stated the law, and/or applied the incorrect test’, because his Honour ‘did not assess whether prejudice (if any) outweighed the significant probative value of the tendency evidence’, as required by s 101 of the Evidence Act.

In support of this ground the prosecution also submitted that the exclusion of HF and SF’s tendency evidence would substantially weaken the prosecution case, by ‘removing independent evidence necessary to rebut assertions of fabrication and [the] improbability of DF’s complaint’. The prosecution contended that its case on grounds 1 and 2 turned upon the credit and reliability of DF, and thus HF’s and SF’s tendency evidence was ‘essential to the jury’s assessment of the charges’.[65]
[65]The prosecution referred to IMM (2016) 257 CLR 300, 318 [62] (French CJ, Kiefel, Bell and Keane JJ);[2016] HCA 15.

In contrast, the respondent submitted that the prosecution did not identify any House v The King error in respect of the Ruling as to the admission of this tendency evidence. The respondent accepted that the exclusion of this tendency evidence ‘does somewhat weaken the prosecution case’, but submitted that it ‘falls well short of reaching the well-established threshold in circumstances where the jury will be directed on single complainant tendency evidence in the trial of DF’.

As to the alleged errors said to affect the ‘reverse position’ ruling, the respondent pointed out that the trial judge expressly referred to s 101 of the Evidence Act at [25] of the Ruling, and that his Honour’s application of the provision at [31]–[37] appears under the heading ‘Does the probative value outweigh the prejudicial effect?’ Thus, he contended, the judge applied the correct legal test and did not misstate the law in any way.

Consideration of ground 2

Proposed ground 2 turns on the ‘reverse position ruling’ identified earlier, where his Honour stated that he did not consider ‘the probative value of charges 3 and 4 to substantially add to the Prosecution case on the first two (2) counts involving DF’.[66] That conclusion was, in our opinion, inconsistent with his Honour’s earlier conclusion that the tendency evidence — including SF’s and HF’s evidence —had ‘significant probative value’ (as required by s 97 of the Evidence Act).
[66]Ruling [37].

We also accept the prosecution submission that, in relation to the use of HF’s and SF’s evidence as tendency evidence on charges 1 and 2, the judge did not identify any prejudice to the respondent and nor did he go on to assess whether the (necessarily significant) probative value of the tendency evidence substantially outweighed such prejudice. His Honour’s concern about the jury’s emotional response to the alleged offending appeared to be — and, logically, could only have been — confined to the admissibility of DF’s evidence on charges 3 and 4.

Reconsideration of admission of the tendency evidence

Specific error having been made out, it is appropriate to consider whether the tendency evidence was admissible. As already noted, there was no dispute before this Court that the evidence was significantly probative of a fact or facts in issue. There is no need for us to revisit that matter, and given that we did not hear argument on this issue it would be inappropriate to do so. Rather, the question is whether the evidence ought to be excluded under s 101(2) of the Evidence Act. In our opinion, it should not be so excluded. We consider that, when one takes account of the directions that would be given to a jury if this evidence is admitted, the probative value of the evidence significantly outweighs its prejudicial effect on the respondent.

In relation to the evidence of DF being admissible on charges 3 and 4, DF’s evidence of deliberate (albeit more egregious) sexual assault is probative of the respondent’s tendency to have a sexual interest in his nieces (all of whom were children at the relevant times) and to act upon that interest in circumstances when he is caring for them alone. That tendency supports HF’s and SF’s evidence of deliberate indecent touching and, importantly, assists in defeating the respondent’s contention that the touching did not occur or that, if it did occur, it was accidental and/or non-sexual in nature.[67] That, of course, is not ‘unfair prejudice’ for the purposes of s 101 of the Evidence Act. To the contrary, ‘it was prejudice of the legitimate kind invariably associated with evidence which is probative of a charge’.[68]
[67]See, eg, Danny (a pseudonym) v The Queen [2018] VSCA 223, [29], [34] (Whelan, Priest and Kaye JJA); DPP v Matthews (a pseudonym) [2019] VSCA 11, [17] (Maxwell P and Taylor AJA).
[68]DPP v Matthews (a pseudonym) [2019] VSCA 11, [17] (Maxwell P and Taylor AJA).

We accept that it is possible that, given the more egregious nature of the sexual assault alleged by DF, as compared to the sexual touching alleged by HF and SF, a jury might have an emotional response to the tendency evidence. However, that possibility is always present in cases where there are multiple counts of sexual offending against children being heard together, because such offending is inherently abhorrent. We do not consider that s 101(2) of the Evidence Act should be applied in such a way that it would routinely exclude tendency evidence in cases of that kind because of a concern about the possibility of the jury having an emotional response.

In the present case, the offending alleged against DF was not of the most grave kind: it was not attended with additional violence or unusually degrading or abhorrent characteristics. In that sense, as the respondent accepted, there was nothing unusual about this case. In our opinion there was nothing about the conduct alleged in charge 2 that was likely to generate the kind of emotional reaction that could require the exclusion of DF’s evidence as tendency evidence on charges 3 and 4.

We also accept that the admission of HF’s and SF’s evidence could give rise to the possibility that the jury might fail to allow that, even if the respondent has a tendency to have a sexual interest in his nieces, and to act on that tendency, he may in fact not have acted on that sexual interest on the occasions in issue. In that sense, the tendency evidence might be given disproportionate weight. Again, this is a risk that arises in the context of any trial where multiple counts of sexual offending against children are being heard together.

In our opinion both these risks, while real, are not significant and can be addressed by appropriate directions to the jury.

This is not a case where the directions that would need to be given could be described as ‘bordering on metaphysical’, or would be such that ‘a jury would find it very difficult to comprehend or accept the logic of them’.[69] As the respondent correctly accepted, if the evidence is cross-admissible, no ‘anti-propensity’ or ‘anti-tendency’ direction would be required.[70] Thus this is not a case where the jury would need to be directed not to engage in tendency reasoning, even though that kind of reasoning might appear entirely logical and reasonable.[71] Nor would the jury be directed that some evidence is admissible as tendency evidence, but other evidence is not so admissible, with the attendant risk that the jury might confuse the two categories of evidence or otherwise misunderstand the direction. Rather, it is a case where the jury will be directed that they can rely on tendency reasoning, but must ensure that they do not permit the nature of DF’s evidence to improperly influence their decision in relation to charges 3 and 4. Such a direction would not be complex or difficult to follow. The consistent experience of the courts is that juries do ordinarily heed the trial judge’s directions. As this Court observed in Dun, there are many examples in cases involving several complainants of juries convicting an accused person of offending against one complainant but acquitting the accused of charges involving another complainant.[72]
[69]Contrast GBF [2010] VSCA 135, [54] (Nettle, Harper JJ and Hansen AJA).
[70]The terms ‘anti-propensity warning’, ‘propensity warning’, ‘anti-tendency direction’ and ‘tendency warning’ are often used interchangeably: see, eg, Quinn (a pseudonym) v DPP [2018] VSCA 82, [17] and footnote 15. In our opinion, the term ‘anti-tendency direction’ is preferable, given that the Evidence Act uses the language of ‘tendency’, and the direction required is one that is to direct the jury not to use tendency reasoning.
[71]Contrast Dun [2021] VSCA 286, [47] (Maxwell P, Kaye and Walker JJA).
[72]Dun [2021] VSCA 286, [40] (Maxwell P, Kaye and Walker JJA).

Further, as the prosecution pointed out, it is not the case that evidence of more grave offending is never admissible as tendency evidence in relation to charges involving less grave offending.[73] While there might be cases where the disparity in the offending is such that the risk of prejudice is too great, in the present case we do not consider that the risk was so significant that it could not be cured by appropriate directions to the jury.
[73]See, eg, Peterson (2019) 57 VR 521; [2019] VSCA 12.

For those reasons, we consider that the significant probative value of DF’s evidence in relation to charges 3 and 4 significantly outweighs any prejudicial effect it may have on the respondent.

In relation to the evidence of HF and SF being admissible on charges 1 and 2, their evidence of deliberate indecent touching is again probative of the respondent’s tendency to have a sexual interest in his nieces (all of whom were children at the time) and to act upon that interest in circumstances where he is caring for them alone. That tendency supports DF’s evidence of deliberate sexual assault in relation to both charges. In relation to charge 1, it assists in defeating the respondent’s contention that that offending against DF did not occur, and any potential claim that, if penetration occurred during the piggy back ride, it was unintentional. In relation to charge 2, the tendency would assist in defeating the respondent’s contention that that offending against DF did not occur, and any suggestion that the charge is based on fabrication by DF.

In our opinion, the only unfair prejudice to which the admission of HF’s and SF’s evidence as tendency evidence on charges 1 and 2 might give rise is, again, the risk that the jury might accept that the respondent has a tendency to have a sexual interest in his nieces, and to act on that tendency, but fail to allow for the possibility that he may in fact not have acted on that sexual interest on the occasions in issue. That is, the tendency evidence might be given disproportionate weight. Again, in our opinion, that risk, while real, is not significant and can be addressed by appropriate directions to the jury.

For those reasons, we consider that the significant probative value of HF’s and DF’s evidence in relation to charges 1 and 2 significantly outweighs any prejudicial effect it may have on the respondent.

Thus we would permit the evidence of DF to be admitted as tendency evidence on charges 3 and 4, and the evidence of HF and SF to be admitted as tendency evidence on charges 1 and 2.

Consideration: Severance

Given our conclusion on cross-admissibility, it follows that the judge erred in severing the charges on the basis that the evidence was not all cross-admissible. Once cross-admissibility is accepted, there is no basis to sever the charges, as the respondent correctly accepted.

The refusal to certify

As noted above, the primary judge refused to certify his rulings under s 295 of the CPA. As to the decision concerning the admissibility of the tendency evidence, his Honour considered that that evidence did not meet the test in s 295(3)(a); that is, it was not the case that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. As to the decision to sever the charges, his Honour considered that that decision did not meet the test in s 295(3)(b): namely that it was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

The applicant having applied for a review of the trial judge’s decision not to certify, s 296(4) provides for this Court to ‘consider’ the matters referred to in s 295(3) and, if we are ‘satisfied’ as required by s 297, we may give the applicant leave to appeal against the interlocutory decision. Section 297(1) provides that the Court may give leave to appeal against an interlocutory decision only if it is ‘satisfied that it is in the interests of justice to do so’, having had ‘regard to’ certain specified matters. It is not, strictly speaking, necessary for this Court to identify error in the judge’s decision not to certify before we grant leave to appeal from an interlocutory decision. Nor, strictly speaking, is it necessary for the Court to be satisfied of the relevant matters set out in s 295(3), so long as the Court has ‘considered’ those matters. Rather, the Court’s power to grant leave is conditioned upon the Court being satisfied that it is in the interests of justice to do so. That is a phrase of broad import. Nonetheless, plainly the matters set out in s 195(3) are of significant weight in reaching a conclusion as to whether it is in the interests of justice to grant leave.

On an application to review a refusal to certify, this Court will ordinarily attach considerable weight to the assessment made by the judge.[74] Further, such an application has been said to face a greater hurdle than does an application for leave to appeal where certification has been granted.[75] The jurisdiction to review a refusal by a trial judge to certify is to be invoked ‘responsibly and sparingly’.[76] As this Court observed in Peterson:

It is axiomatic that evidence ruled admissible by a trial judge is probative of the prosecution case and that, accordingly, if it were excluded, it would weaken that case. But that is not nearly sufficient to meet the onerous test of ‘eliminate or substantially weaken’ in s 295(3) of the Act.
As explained by Weinberg JA in Paulino, those words have considerable work to do. And the trial judge will usually be in the best place to decide whether the test has been met. Where, as here, the judge decides that it has not been met, this Court will be slow to conclude that the decision was not reasonably open.[77]

[74]Frazier (a pseudonym) v The Queen [2017] VSCA 370, [33] (Maxwell P and Kyrou JA) (‘Frazier’).

[75]Cano (a pseudonym) v The Queen [2020] VSCA 308, [51] (Niall, T Forrest and Weinberg JJA).

[76]Peterson (2019) 57 VR 521, 524 [12] (Maxwell P and Taylor AJA); [2019] VSCA 12, citing Frazier[2017] VSCA 370, [36] (Maxwell P and Kyrou JA).

[77]Peterson (2019) 57 VR 521, 524 [12]–[13] (Maxwell P and Taylor AJA); [2019] VSCA 12.

This Court has also observed that the phrase ‘substantially weaken the prosecution case’ is a stringent one. Thus, in an oft-quoted passage in Director of Public Prosecutions v Paulino, Weinberg JA said as follows:

The word ‘eliminate’ has only one possible meaning. It connotes that there must be no case at all without that evidence. The alternative limb, namely ‘substantially weaken’, clearly involves questions of degree, and matters of discretion. The word ‘substantial’ is not a word with fixed meaning in all contexts. It is susceptible of ambiguity, and can conceal a lack of precision. On any view, it should be read in context and, in accordance with the Latin maxim, noscitur a sociis [the meaning of a word is known from the accompanying words]. Thus, ‘substantially weaken’, in the context in which that expression is used, suggests something not very far short of elimination, rather than merely significant, or important.[78]

[78](2017) 54 VR 109, 112 [9] (citations omitted); [2017] VSCA 38 (‘Paulino’).

His Honour went on to observe that for evidence to satisfy the requirement for certification of an evidentiary ruling, it must be the case that ‘if the evidence is ruled inadmissible, its exclusion could realistically be expected to affect the outcome of the trial’.[79]
[79]Paulino (2017) 54 VR 109, 112 [10]; [2017] VSCA 38.

We consider that the relevant standard has been met in the present case.

First, we accept that DF’s evidence, if ruled inadmissible on charges 3 and 4, would substantially weaken the prosecution case on those charges. In our opinion DF’s evidence is very significant in relation to two important aspects of the respondent’s defence, namely whether the respondent’s alleged conduct in relation to HF and SF, if it occurred, was intentional and whether it was sexual in nature. In the absence of DF’s evidence, there is a real prospect that the jury would accept that the conduct in relation to HF and SF, if it occurred, was neither deliberate nor sexual in nature. That is so even though the evidence of HF and SF would be cross-admissible as tendency evidence in a separate trial on charges 3 and 4. In our opinion, the exclusion of DF’s evidence on the trial of charges 3 and 4 could ‘realistically be expected to affect the outcome of the trial’.

Secondly, we also accept that HF’s and SF’s evidence, if ruled inadmissible on charges 1 and 2, would substantially weaken the prosecution case on those charges. In relation to those charges, the respondent denies that the conduct occurred at all. In our opinion their evidence, if accepted by the jury, is very significant in assisting the prosecution to prove that the offending did occur, by demonstrating the respondent’s tendencies as described above. Without that tendency evidence the prosecution is left only with the uncorroborated evidence of DF. While that does not eliminate the prosecution case, in our opinion it would substantially weaken it. There would be a real possibility that the jury could conclude that DF’s account was not to be believed. Again, the exclusion of DF’s evidence on the trial of charges 3 and 4 could ‘realistically be expected to affect the outcome of the trial’.

In relation to the decision to sever the charges, we consider that that decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. While severance will not always, or routinely, satisfy that requirement, in our view when the ruling on severance is considered together with the tendency rulings in this case, it meets this requirement.

Ultimately, we are satisfied that it is in the interests of justice to grant leave to appeal in the present case. The appeal will resolve significant issues of evidence and procedure that are necessary for the proper conduct of the trial. There is nothing to suggest that a grant of leave will cause any disruption or delay to the trial process.

Conclusion

For these reasons, we would give leave to appeal and allow the appeal. We would set aside the orders made by the trial judge refusing to admit DF’s evidence on charges 3 and 4, and SF’s and HF’s evidence on charges 1 and 2, and the order severing the indictment.

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Citations

Director of Public Prosecutions v Pearson (a pseudonym) [2021] VSCA 336

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R v Villella (Rulings 1-3) [2022] VSC 535

Cases Citing This Decision

8

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[2021] VSCA 336

3 December 2021