Dun (a pseudonym) v The Queen
[2021] VSCA 286
•15 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0106
| JAXON DUN (a Pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of the complainants.
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| JUDGES: | MAXWELL P, KAYE and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 October 2021 |
| DATE OF JUDGMENT: | 15 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 286 |
| JUDGMENT APPEALED FROM: | DPP v [Dun] (Unreported, County Court of Victoria, Judge O’Connell, 20 July 2021) |
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CRIMINAL LAW – Interlocutory appeal – Incest, indecent act with child under 16 – Two complainants – Charges joined on indictment – Whether judge erred in refusing to sever charges – Whether applicant able to receive fair trial if charges tried together – Where degree of similarity in offending – Where Crown does not rely on tendency evidence – Where risk of jury engaging in tendency reasoning – Whether appropriate directions would ameliorate any unfairness – Whether nature of offending such that risk of prejudice unacceptable – Refusal to sever reasonably open – Appeal dismissed – R v TJB [1998] 4 VR 621; R v KRA [1998] 2 VR 708; GBF v The Queen [2010] VSCA 135; Hughes v The Queen (2017) 263 CLR 338, considered – Criminal Procedure Act2009 ss 193, 194.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Edney | David Luscombe & Associates |
| For the Respondent | Mr N Hutton with Ms C J Duckett | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Walker JA. I agree that the proposed orders should be made, for the reasons which her Honour gives.
KAYE JA:
I have had the advantage of reading the draft reasons of Walker JA. For the reasons given by her Honour, I agree that the applicant should be granted leave to appeal, but that the appeal should be dismissed.
WALKER JA:
The applicant is standing trial for four sexual offences: three charges of incest and one charge of indecent act with a child under the age of 16. One offence is alleged to have involved his granddaughter, SD. That charge alleges digital penetration of SD by the applicant. The other three offences are alleged to have involved his granddaughter JD. Two of those charges allege digital penetration of JD by the applicant. There is thus a degree of similarity in the offending. Nonetheless, the prosecution does not rely on the evidence of alleged offending against one granddaughter as tendency evidence in relation to the alleged offending against the other granddaughter.
The four offences are included in a single indictment. Thus, by reason of s 170(1) of the Criminal Procedure Act 2009 (‘CPA’) the charges are to be heard together unless an order is made under ss 193 or 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 not admissible on another charge’.
The applicant applied to the trial judge to sever the indictment between the two complainants. He sought an order that charge 1, involving SD, be tried separately from charges 2, 3 and 4, involving JD. The trial judge refused the application. The applicant then sought to have the trial judge certify his ruling under s 295(3)(b) of the CPA. The trial judge certified the decision not to sever the indictment as being of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
For the reasons that follow, I would grant leave to appeal but dismiss the appeal.
Factual and procedural background
The applicant has already faced one trial in relation to the four charges. He was convicted on all charges, but that verdict was overturned on appeal and a retrial was ordered.[2] For present purposes, what this means is that SD and JD have already given evidence and been subject to cross-examination, and their evidence was recorded. The applicant has also given evidence. It is proposed that the retrial is to proceed on the basis of the recorded evidence of SD and JD, so that they will not be required to give evidence again.
[2]See Dun (a Pseudonym) v The Queen [2019] VSCA 43 (‘Dun’).
As observed above, the applicant is charged with four counts of sexual offending. Charge 1 concerns SD. The prosecution case is that on 7 April 2013, SD, then aged 16, was alone in her bedroom at her father’s home. The applicant, her grandfather, then aged 72, and his wife were visiting. The applicant came into SD’s bedroom. She showed him pictures of horses for sale on her computer. At this stage, she was sitting at her table. The applicant kissed her, moved her towards the bed and inserted a finger into her vagina while his other hand rubbed her hip. He asked her if she liked it and she replied, ‘No.’ The applicant left the room.
The next morning, SD alleges, her grandfather came into her room and told her that what happened last night must not happen ever again, and that she should not tell anyone because it would ‘hurt and upset everyone’. Shortly after this event, SD made complaints about the incident to three friends. She did not complain to any adults at that time.
Charges 2 and 3 concern JD (SD’s younger sister). The prosecution case is that on around 24 August 2014, the applicant visited JD’s home. It was arranged that JD was to sleep with her grandmother and the applicant was to sleep in JD’s bedroom. That night, JD came into that bedroom to say goodnight to her grandfather who was in bed. As she turned away from the applicant, he held her by her pyjama pants, pulled her back towards him, placed his hand down her pyjama pants and inserted his finger into her vagina (Charge 2). The applicant then kissed her breasts (Charge 3). JD left the room and went back to bed. JD was then aged 13.
Charge 4 also concerns JD. The prosecution case is that between 28 August 2015 and 30 August 2015, JD went to the applicant’s house and stayed overnight. She slept in. She stated that, at around 12 pm, she was sitting on the lounge room floor eating toast. The applicant sat behind her on the couch, took hold of her pyjama pants and pulled her towards him. He placed his hands down her pants and inserted his fingers into her vagina. JD left the room. JD was then aged 14.
In early September 2015, about a week after the incident comprising Charge 4, JD complained to a friend, and to her friend’s foster mother, of the incidents the subject of charges 2, 3 and 4. Following that complaint the police were contacted and JD completed a recorded interview (‘VARE’) on 7 September 2015.
Later in September 2015 the applicant and his wife arranged to drop off a table at SD’s new home. In her evidence at the first trial, SD stated that her grandfather told her that he wanted to speak to her alone in the car as they were leaving (‘the car conversation’). In her evidence she described what happened in the following terms:
PROSECUTOR: When your grandparents were at your place at [location], did you speak to your grandfather?
SD: Grandpa wanted to speak to me alone in the car.
PROSECUTOR: Whose car?
SD: My grandpa’s car.
PROSECUTOR: Did you do that?
SD: Yes.
PROSECUTOR: Where was your grandmother when that happened?
SD: My grandma was told to wait away from the car. She was pacing back and forth in front of my house and if she came near the car, my grandpa told her to go away because she was making him nervous.
PROSECUTOR: Did you discuss what — the situation with [JD] with your grandfather?
SD: Yes.
PROSECUTOR: What did he say about it?
SD: My grandfather told me that my sister would request to sleep um with my grandma and then when my grandma fell asleep, that she would sneak into his room and she would make an advance on him and when my grandpa would tell her to leave the room, she was angry and so she went to the police and she um said that he had molested her, because he — because he rejected her advances on him.
PROSECUTOR: Did you discuss with him what had happened in relation to yourself?
SD: I asked my grandpa what he did to my sister, what my sister was saying he did to her.
PROSECUTOR: Yes?
SD: And he said that my sister was - - -
PROSECUTOR: Hang on, I’m asking about what happened to you now?
SD: - - - Okay.
PROSECUTOR: You’ve described — in relation to [JD] - - -?
SD: - - - Okay.
PROSECUTOR: - - - you said he gave this account of how she — he rejected her and that she’d gone to the police. Did you get onto the topic of what had happened to you?
SD: Yes.
PROSECUTOR: Yes?
SD: Yes.
PROSECUTOR: What did he say about what had happened to you?
SD: He said that what happened to me, we both wanted it to happen, um and I said that ‘I didn’t want it to happen’ and he told me that I mustn’t tell anyone about what happened to me.
PROSECUTOR: Did he say why?
SD: Because it would upset everyone.
A few days after the car conversation SD complained to her father about the applicant’s offending against her. She gave a statement to police in January 2016.
Relevant statutory provisions and legal principles
The CPA allows an indictment to contain charges for related offences, which are offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.[3] Section 170(1) of the CPA relevantly provides that if an indictment contains more than one charge, the charges must be heard together unless an order is made under s 193.
[3]CPA s 3, sch 1 cl 5(1).
Where an indictment contains multiple charges, the court retains a discretion to order separate trials in relation to one or more of the charges. In that regard, ss 193 and 194 of the CPA relevantly provide as follows:
193 Order for separate trial
(1) If an indictment contains more than one charge, the court may order that any one or more of the charges be tried separately.
...
(3) The court may make an order under subsection (1) ... if the court considers that—
(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or
...
(c) for any other reason it is appropriate to do so.
(4) The court may make an order under subsection (1) ... before trial or during a trial.
...
194 Order for separate trial—sexual offences
...
(2) Despite section 193 and any rule of law to the contrary (other than the Charter of Human Rights and Responsibilities), if in accordance with this Act 2 or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together.
(3) The presumption created by subsection (2) is not rebutted merely because evidence on one charge is inadmissible on another charge.
The predecessors to ss 192 and 194, namely ss 372(3AA) and (3AB) of the Crimes Act 1958 (the ‘predecessor provisions’), were introduced to overcome a relatively strict approach to the severance of charges involving sexual offences. Previous practice had been that trials for sexual offences involving different complainants were heard separately unless the complainants’ evidence was cross-admissible.[4] The new provisions were intended to make it easier for multiple complainant sexual offending cases to be tried together. In that regard, the Explanatory Memorandum to the Crimes (Amendment) Bill 1997, which inserted the predecessor provisions, stated that the provisions:
[create] a presumption that sexual offence counts properly joined pursuant to the joinder provisions in the Crimes Act 1958 will not be severed. The presumption is not rebutted merely because evidence on one count is not admissible on another count on the presentment. This provision is in accordance with the approach of the House of Lords in R v Christou [1995] 2 AC 596, and overrules De Jesus v R (1987) 61 ALJR 1.[5]
[4]See, eg, De Jesus v The Queen [1987] HCA 65; Sutton v The Queen (1984) 152 CLR 528; [1984] HCA 5.
[5]Explanatory Memorandum, Crimes (Amendment) Bill 1997 (Vic) 2.
In R v Christou Lord Taylor said as follows:
[T]he essential criterion is the achievement of a fair resolution of the issues. That requires fairness to the accused but also to the prosecution and those involved in it. Some, but by no means an exhaustive list, of the factors which may need to be considered are: how discrete or inter-related are the facts giving rise to the counts; the impact of ordering two or more trials on the defendant and his family, on the victims and their families, on press publicity; and importantly, whether directions which the judge can give to the jury will suffice to secure a fair trial if the counts are tried together. In regard to that last factor, jury trials are conducted on the basis that the judge’s directions of law are to be applied faithfully. Experience shows ... that juries, where counts are jointly tried, do follow the judge’s directions and consider the counts separately.
Approaching the question of severance, as indicated above, judges will often consider it right to order separate trials. But I reject the argument that either generally or in respect of any class of case, the judge must so order.[6]
[6][1997] AC 117, 129.
The predecessor provisions were considered by this Court in R v TJB.[7] Callaway JA (with whom Phillips CJ and Buchanan JA agreed) observed that, notwithstanding the presumption relevant to sexual offences, the courts retained a discretion to order separate trials. His Honour set out the following principles to guide the exercise of the discretion to sever charges:
1.A presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so. In that respect sexual offences are no different from other offences.
2.One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to propensity evidence and again is not peculiar to trials of sexual offences ...
3.It is usually to be assumed that the jury will comply with any directions they are given by the judge. A fair-minded lay observer takes that very factor into account in considering whether a trial is fair.
4.There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion.
5.There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose or the judge rules that it is inadmissible because of prejudice.[8]
[7][1998] 4 VR 621 (‘TJB’).
[8]Ibid 630–1 (emphasis in original) (citations omitted).
As I discuss further below, proposition 5 has particular relevance in the present context.
In R v KRA this Court considered TJB and made the following observations:
[W]e do not read the comments of this Court in TJB as by any means compelling the conclusion that the judge was in error in failing to accede to the application to discharge the jury in this case. As we see it, the Court in TJB recognised that the Parliament of this State had intended, by the amendments to s 372 of the Crimes Act, to alter the rule of practice which had previously existed, and, whilst giving some guidance as to how the court’s discretion might now be exercised, was careful not ‘to circumscribe it by judge-made rules’. Although the Court pointed out that it is usually to be assumed that the jury will comply with directions which they are given by a judge, there are ‘nevertheless cases where the risk of prejudice is unacceptable’. Whilst the Court suggested that such a risk will often be found in the case of offences ‘of an unnatural character or offences that arouse strong emotions or excite revulsion’, it should not, we think, be forgotten that the amendments to s 372 of the Crimes Act are specifically directed towards the joint trial of ‘sexual offences’ and that the experience of this Court is that a large number of such offences tried in this State are offences which involve young children and, consequently, excite emotion and revulsion. Indeed it is difficult to imagine any such case which would not do so. Nor, in our view, should it be lightly assumed that juries are incapable of following instructions given to them by the judge in such cases. This case, as it seems to us, amply demonstrates that proposition, because, in acquitting the applicant on count 5, the jury has obviously heeded the judge’s warning to ignore the evidence of ‘uncharged acts’ given by B. In our opinion the presumption in favour of trying jointly sexual offences, contained in s 372(3AA) of the Crimes Act, is predicated upon the assumption that juries will heed appropriate warnings given to them by the trial judge.
There will, no doubt, be some cases where the perceived prejudice to the accused will be so great that the trial judge will consider that no judicial direction will overcome that prejudice and that circumstance will play a dominant role in the exercise of his discretion, notwithstanding the legislative policy expressed in the amendments to s 372. Each case will necessarily depend upon its own facts and, as in the case of all discretionary exercises, rarely will a decision in one case provide a precedent for another.[9]
[9][1998] 2 VR 708, 716 [22]–[23] (emphasis added) (citations omitted); [1998] VSCA 157 (‘KRA’).
The Court in KRA also cited with approval Lord Taylor’s remarks in Christou, quoted above.[10]
[10]Ibid 714 [20].
Although the five principles in TJB have been oft-cited since, some care is needed in applying them. In particular that is so in relation to the proposition that the risk of prejudice to the accused may be unacceptable in cases involving ‘unnatural offences’ that ‘arouse strong emotions’. In Baker (a Pseudonym) v The Queen this Court rejected a submission that TJB is authority for a general proposition that there is an unacceptable risk of prejudice in conducting a joint trial involving more than one complainant in respect of allegations of sexual offences against young children.[11] The Court held that the correct approach to s 194 of the CPA is that stated in GBFv The Queen, as follows:[12]
[Section 194 of the CPA] provides that, if two or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together and the presumption is not rebutted merely because evidence of one charge is inadmissible on another charge. As is explained in R v TJB, that is so because it is usually assumed that the jury will comply with any direction they are given by the judge. Nevertheless, there are cases where the risk of prejudice is unacceptable. ...
Ordinarily, in a multi-complainant sexual offence case, the jury can be directed either that they may take the evidence given by one complainant into account as tendency evidence in determining whether the Crown has established the offences alleged to have been committed against another complainant, or that they are to put the evidence of one complainant completely out of mind as they consider whether the Crown has established guilt in relation to the offences alleged to have been committed against the other complainant. In such cases, the mere fact that there are two complainants is not ordinarily regarded as sufficient reason to sever the indictment.[13]
[11][2015] VSCA 323, [69] (‘Baker’).
[12]Ibid [69].
[13]GBF v The Queen [2010] VSCA 135, [51]–[52] (citations omitted) (‘GBF’).
The approach in Baker was most recently confirmed in Brewer (a Pseudonym) v The Queen.[14]
[14][2017] VSCA 117, [117]–[118] (‘Brewer’).
The trial judge’s ruling
The trial judge commenced his consideration of the application for severance by considering this Court’s reasons for allowing the applicant’s appeal against conviction following the first trial. He observed that in the course of those reasons, the Court had said as follows:[15]
The prosecution specifically disavowed reliance on tendency reasoning. The above pithy recitation of the facts of the alleged offending is sufficient to illustrate the very real danger that existed in this case for impermissible tendency reasoning. We consider that, absent a strong direction about the specific evidence that could and could not be used in relation to each charge, the temptation for the jury to use the evidence of one granddaughter as probative of the charge(s) involving the other granddaughter was nigh on irresistible.[16]
[15]DPP v [Dun] (County Court of Victoria, Judge O’Connell, 20 July 2021) [21] (‘Reasons’).
[16]Dun [2019] VSCA 43, [42] (emphasis added).
The trial judge observed that it could be suggested that that reasoning ‘implicitly recognised that strong jury directions, carefully fashioned and explained, would ameliorate the types of concerns’ raised by the applicant. ‘So much might be implied from the finding that an extended separate consideration direction together with an anti-tendency direction should have been given by the trial judge.’[17] He went on to say this:
Nonetheless, I think it would be wrong to determine this application on that basis. First, because severance was not expressly argued or decided, and, second, because the prejudice or potential prejudice of which [the applicant’s counsel] complains should I think be considered afresh in light of what is likely to happen on the re-trial.[18]
[17]Reasons [22].
[18]Ibid [23].
The trial judge then proceeded to consider the matters put by the applicant in support of his application. The trial judge accepted that there was a real danger of the jury engaging in impermissible tendency reasoning. As he observed, that fact underpinned the Court of Appeal decision. He concluded, however, that the danger was not so unacceptable as to require separate trials, assuming careful guidance in the form of strong directions.[19] In that regard, he considered that his task — of directing the jury to consider the evidence relevant to each charge — was realistic, and that the jury’s task — of applying those directions — whilst requiring care, should not be overly difficult. In particular that was so because there were only two complainants and four charges.[20]
[19]Ibid [26].
[20]Ibid [27].
His Honour did not accept the applicant’s submissions that the evidence in the proceedings could be completely or largely compartmentalised as between the two complainants. In particular, he did not consider that the evidence concerning the car conversation could be easily compartmentalised. In an earlier ruling, the trial judge had concluded that the car conversation was an important part of the prosecution case, because the applicant’s comments about JD were probative and admissible in respect of charges 2 and 3, and because SD’s response to those comments was relevant to charge 1 in that it explained the timing of her formal complaint. In that respect the trial judge considered that there was some interconnectedness between the two complainants’ allegations, and that separate trials would prejudice the prosecution to some extent, by distorting the narrative.[21]
[21]Ibid [31]–[33].
Notwithstanding that interconnectedness, and the overlap of the allegations in the car conversation, his Honour did not consider that this gave rise to an unacceptable risk of the jury using each complainant’s allegations in support of the other, provided careful directions were given.[22]
[22]Ibid [34].
Ultimately, his Honour accepted that there was ‘some danger’ that the jury might use coincidence reasoning, and that there was ‘likely’ to be a temptation for the jury to engage in tendency reasoning, but that both those risks could be managed by strong and specific jury directions; and that such directions could be readily understood and fairly applied. The evidence admissible in support of each charge could be specifically identified in an extended separate consideration direction.[23]
[23]Ibid [37]–[39].
The parties’ arguments
The applicant submits that in this unusual and exceptional case, the need to secure a fair trial for the accused means that the proper exercise of discretion comes down on the side of granting separate trials. The applicant relied on eleven matters[24] as requiring a departure from the statutory presumption. It is not necessary to set out each of those matters in detail. Rather, in short, the applicant’s case is that there is such a risk of prejudice arising from the likelihood of tendency and coincidence reasoning, that it cannot be overcome by directions from the trial judge. Furthermore, the applicant submits that the evidence of the two complainants concerns events that are sufficiently separate that their recorded evidence can be suitably ‘partitioned’ for the purposes of two separate trials. However, he conceded in oral argument that SD would likely need to be recalled if separate trials were ordered; but only on one discrete topic (namely the car conversation).
[24]At trial the applicant relied on eight matters; three additional matters were put to this Court but not advanced below.
In contrast, the respondent contended that, while there was some risk of prejudice to the applicant by reason of the risk of impermissible tendency or coincidence reasoning, that prejudice could be overcome by careful directions from the trial judge, as routinely occurs in cases of sexual offending involving multiple complainants.
Consideration
As the authorities discussed above reveal, ss 193 and 194 repose in a trial judge a discretion to sever charges joined on a single indictment, even where the presumption in s 194(2) is engaged. In my opinion, it would have been open for the trial judge to have severed the charges. The question on the appeal is whether he was required to do so; that is, whether it was not open to him to decline to sever. Since a decision under ss 193 and 194 is an exercise of judicial discretion, appellate review of such a decision is governed by House v The King.[25] There is no allegation of specific error by the trial judge; thus the question is whether his decision not to sever the indictment was reasonably open.
[25](1936) 55 CLR 499; [1936] HCA 40. See GBF [2010] VSCA 135, [55]; Brewer [2017] VSCA 117, [118].
In my view, the trial judge was correct to consider the matter afresh and not to rely on the comments in the reasons in the applicant’s earlier appeal as amounting to a determination that appropriate directions would be sufficient to deal with the risk of prejudice to the applicant arising from the potential for tendency reasoning, such that severance would not be required. No argument was put to that effect on the earlier appeal, and nor was the Court there in a position to assess the question of severance by reference to the manner in which the second trial is to be run.
In my opinion it was open to the trial judge to reach the conclusion he reached, essentially for the reasons that he gave.
Bearing in mind the statutory presumption concerning joinder of trials involving sexual offences, in my view the fundamental question on the appeal is whether severance of the charges was required in order to ensure that the applicant could receive a fair trial. If a fair trial could not occur without severing the indictment, then it would follow that it was not open to the trial judge to decline to sever the indictment. It was common ground that the presumption created by s 194(3) does not displace the fundamental principle that a criminal trial is to be a fair trial.
The prosecution accepted, and the trial judge held, that there was a ‘real danger’ of prejudice to the applicant by virtue of tendency reasoning.[26] The trial judge also accepted that there was some risk of prejudice by virtue of coincidence reasoning.[27] The real question is whether it was open to the trial judge to conclude that these risks could be overcome by appropriate jury directions.
[26]Reasons [26]. See also [35].
[27]Reasons [37].
In my opinion it is something of a distraction to focus at this point in the analysis on the practicalities of editing the evidence already given, and the need to recall SD if the trials are severed. I accept that editing the evidence already given might be entirely impracticable, and both parties accepted that SD would need to be called to give evidence again in both new trials, if the indictment is severed. As I discuss below, those matters were important for the trial judge in determining whether, in the exercise of his discretion, to sever the charges.
These practicalities do not, however, have any bearing on the question whether the nature of the evidence to be given by each complainant is such that, even with anti-tendency and anti-coincidence directions from the trial judge, the applicant cannot receive a fair trial. If that is the case then the charges would have to be severed and it would not have been open to the trial judge to hold otherwise, even given the effect on the prosecution case and the prosecution witnesses. That is consistent with the observation in KRA that there may be cases where the prejudice to the accused will be so great that ‘no judicial direction can overcome that prejudice’.[28] The question is whether this case is in that territory.
[28][1998] 2 VR 708, 716 [23]; [1998] VSCA 157. See also R v Papamitrou (2004) 7 VR 375, 388 [27]; [2004] VSCA 12, where Winneke P observed that ‘the capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion’.
In order to deal with this fundamental issue, it is necessary to identify the nature of the prejudice to the applicant. It is common, in cases where sexual offending against different complainants is alleged in a single indictment, and where the evidence given by one is not cross-admissible in relation to the charges concerning the other complainant or complainants, for the trial judge to give careful directions to the jury to ensure that the jury does not engage in tendency or coincidence reasoning. As in all criminal trials, it is assumed that the jury will follow those directions, even though they hear evidence from one complainant that might appear to them to corroborate or otherwise support the evidence of another complainant. Further, the consistent experience of the courts is that juries do ordinarily heed those directions. There are numerous examples in cases involving more than one complainant of juries convicting an accused person of offending against one complainant but acquitting the accused of the charges involving another complainant. Similarly juries often convict an accused on some charges in relation to a single complainant, but not in relation to other charges concerning that same complainant.
Of course, in many cases where an anti-tendency direction is given, the evidence in question will not be cross-admissible precisely because it does not meet the requirements for tendency evidence. That is, the evidence in such a case — of offending against one complainant — is not strongly probative of the alleged offending against a different complainant on a different occasion.
In contrast, in this case the evidence in question, although not sought to be admitted as tendency evidence, is said by the applicant to fall within the scope of evidence that could be properly relied upon as tendency evidence.[29] The only reason it is not so relied on in the present case was procedural in nature: the prosecution had not served a tendency notice at the first trial, and accepted that it was unfair for it to serve a tendency notice at the second trial. There is much force in this submission.
[29]In that regard, the applicant referred to Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’) and R v Bauer (a Pseudonym) (2018) 266 CLR 56; [2018] HCA 40.
Under s 97(1) of the Evidence Act, evidence of a person’s conduct is ‘admissible to prove that a person has or had a tendency … to act in a particular way, or to have a particular state of mind’, but only where a notice is served and where the court considers that the evidence would have ‘significant probative value’. The evidence given by each of the complainants in the present case is such that, in my opinion, had a tendency notice been relied upon, the evidence would have been properly admitted as tendency evidence. That is for the following reasons:
(a) it concerned sexual offending against children by an adult;
(b) it concerned two granddaughters of the applicant;
(c) each complainant was a similar age when the offending was said to have occurred;
(d) on each occasion the same sexual conduct was said to have occurred, that is digital penetration of the complainants by the applicant;
(e) in each case the alleged offending occurred in the context of an otherwise ordinary interaction between granddaughter and grandfather; and
(f) in relation to two of the relevant occasions (one involving SD and the other involving JD), the alleged offending occurred when another adult was nearby, and with an open door.
As in Hughes, the defence case is that each complainant fabricated her account.[30] To adapt what was said in that case, proof of the applicant’s tendency to engage in a particular form of sexual activity with his teenaged granddaughters, opportunistically, and notwithstanding the risk of being discovered, was capable of removing a doubt that the nature and circumstances of the applicant’s conduct might otherwise have raised.[31] The tendency aspect of the two complainants’ evidence is logically relevant[32] to an assessment of whether the applicant committed the offences with which he is charged. Thus the tendency aspect of the complainants’ accounts appears in my opinion to be ‘significantly probative’ of guilt.[33]
[30]Hughes (2017) 263 CLR 338, 361 [58]; [2017] HCA 20.
[31]Ibid 361–1 [59].
[32]See, eg, Hughes (2017) 263 CLR 338, 356 [40].
[33]Hughes (2017) 263 CLR 338, 362 [60]; [2017] HCA 20.
Thus, this case is in the territory of the fifth matter identified by Callaway JA in TJB, which bears repeating:
There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose or the judge rules that it is inadmissible because of prejudice.[34]
[34][1998] 4 VR 621, 631 (emphasis in original).
As observed in KRA, Callaway JA did not, in TJB, lay down any absolute rule in relation to evidence of this kind. Rather, he identified a factor that may elevate the relevant risk.[35] Ultimately, each case must be considered by reference to its particular facts and circumstances.
[35][1998] 2 VR 708, 716 [22]; [1998] VSCA 157.
In the present case, evidence that as tendency evidence would be significantly probative of guilt is to be given in a trial where, nonetheless, that evidence is not admissible as tendency evidence (because no notice was given). In that regard, there is a danger of prejudice to the applicant, as all parties and the trial judge accepted. As I have said, the question is whether the trial judge could reasonably have concluded that the risk of prejudice to the applicant could be overcome by careful and strong directions to the jury. That is, could such directions prevent the jury from engaging in reasoning of a kind that is entirely logical and, in many cases, legally permissible?
In my opinion it was open to the trial judge to conclude that a direction will be effective in this case. My reasons for that conclusion are as follows.
First, and importantly, I do not think that the probative value of the tendency evidence in this case is as strong as it was in Hughes. Two related points stand out about Hughes. First, the evidence of each complainant was supported by tendency evidence from seven others (the four other complainants and three witnesses who gave evidence about occurrences at the accused’s home).[36] Second, there was a common thread through the accounts of all of these witnesses, in that they all demonstrated the accused’s ‘tendency to act in the vicinity of others’, thus ‘causing a substantial risk of discovery’.[37] It was the combined effect of the evidence which, in the High Court’s opinion, gave it such strong probative value:
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.[38]
[36]Hughes (2017) 263 CLR 338, 344–5 [3]–[5]; [2017] HCA 20.
[37]Ibid 361 [57].
[38]Ibid 362 [62].
Here, as the respondent pointed out, there are only two complainants and only three occasions. That fact alone means that the probative value of the evidence, while sufficient to satisfy the requirement of s 97(1)(b) of the Evidence Act, is less than the probative value of the evidence considered in Hughes.
Second, this case is not complex. It involves two complainants, three discrete occasions of offending, and four charges. It will not be difficult for the trial judge to craft a direction that the jury will be able to understand.
In that regard, there is no other evidence that is to be relied upon as tendency evidence (such as tendency evidence based on uncharged acts). Thus the jury will not have to receive complicated instructions concerning some evidence that can be used as tendency evidence and some evidence that cannot.
Nor is there tendency evidence in relation to one charge, but not others. In that regard the matter is again different from Hughes, where there were three further tendency witnesses who gave evidence about occasions at the accused’s workplace. The judge ruled that their evidence was relevant to only one of the eleven charges, and the jury was so directed.[39] Neither the Court of Criminal Appeal nor the High Court articulated any concern that the need for the jury to compartmentalise the tendency evidence in this way would have presented any particular difficulty. To the contrary, the Court of Criminal Appeal held that the direction given in relation to this evidence were clear and free of error.[40] That conclusion was not challenged on appeal to the High Court.[41]
[39]Ibid 346 [8].
[40]Hughes v The Queen (2015) 93 NSWLR 474, 524 [233]; [2015] NSWCCA 330.
[41]Hughes (2017) 263 CLR 338, 346 [8]; [2017] HCA 20.
Third, although the necessary direction to the jury will be that it must not engage in a form of reasoning that is otherwise logical, there are other circumstances where the jury must be directed in that way, and it is well accepted that such directions can ordinarily be effectively given so as to ensure a fair trial. Examples include directions concerning incriminating conduct under ss 22 and 23 of the Jury Directions Act 2015, directions on the accused not giving evidence or calling a witness under s 41 of the Jury Directions Act, and directions that the jury must not give less weight to the evidence of an accused just because the accused has an interest in the outcome of the trial, under s 44I of the Jury Directions Act.
Additionally, as in other cases involving multiple complainants alleging sexual offending, and as the trial judge recognised, there will be some risk that the jury might engage in impermissible coincidence reasoning. Thus it may also be necessary for the judge to give a suitable direction in that regard. Again, as the trial judge observed, specific directions will need to be given as to which evidence is specifically admissible in support of each charge. I consider that the jury can be expected to adhere to those directions, for the reasons I have given in relation to the direction on tendency reasoning.
Ultimately, although it is conceivable that the jury will have both anti-tendency and anti-coincidence directions, I do not think that this will overly complicate the exercise for the jury. The applicant submits that this is a ‘perverse outcome’ because the prosecution does not rely upon tendency or coincidence reasoning and such directions will only highlight and magnify those issues for the jury, to the detriment of the accused. I reject that submission. Anti-tendency and anti-coincidence directions only fall to be given where the prosecution does not rely on tendency or coincidence reasoning; this cannot be a ‘perverse outcome’. Nor do I think that the giving of such directions can properly be said to be to the detriment of the applicant in this case.
That is, I consider it was open to the trial judge to conclude that a properly directed jury will be well able to resist engaging in tendency or coincidence reasoning. As discussed above, the experience of the courts is that juries are quite capable of adhering to a trial judge’s directions in relation to tendency and coincidence evidence. As already noted, the trial judge correctly recognised that in this case there would need to be careful and strong anti-tendency directions.
In oral argument, and in his written submissions, the applicant relied upon the fourth proposition in TJB to argue that the alleged offending — the sexual abuse of his granddaughters — is such as to ‘excite passions and feelings of prejudice’ against him. However, as indicated above, caution is required in relying on this principle. There is no general proposition that there is an unacceptable risk of prejudice in conducting a joint trial involving more than one complainant in respect of allegations of sexual offences against young children, even though offending of that kind will often (perhaps always) arouse strong emotions.[42] I do not consider that the fact that the children in this case are the applicant’s granddaughters has the consequence that the jury will not be capable of adhering to the trial judge’s directions.
[42]Baker [2015] VSCA 323, [69].
The applicant also submitted that this case is ‘unusual’ because ‘the credibility and reliability of the account of the complainants and the accused are at the heart of the issues to be decided’. In that context, he submitted, a joint trial ‘may permit the “balance” of the trial to “tip” towards the prosecution’ because in assessing credibility, ‘the jury have the potential “makeweight” of the “other” complainant’. I do not accept that argument. It is not ‘unusual’ that the credibility and reliability of the complainants and the accused are in issue. That will commonly be the case where an accused gives evidence and the defence case is that the complainants have fabricated their accounts.
Finally, it was open to his Honour to have regard to the fact that the evidence of SD was not capable of being easily ‘compartmentalised’. I also note that the applicant conceded that if the indictment was severed, SD would need to be recalled to give further evidence at both the new trials. That fact supports the trial judge’s discretionary decision not to sever the trials once he had, correctly, concluded that the prejudice to the applicant from the risk of impermissible tendency or coincidence reasoning was not insurmountable.
Conclusion
This case raised the fifth principle outlined by Callaway JA in TJB. That is a matter of broader public importance, beyond merely the circumstances of this case. For that reason, I would grant leave to appeal. But, for the reasons given, I would dismiss the appeal.
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