East (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0063

TIMOTHY EAST (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of a victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2022
DATE OF JUDGMENT:	4 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 214
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Deputy Chief Judge M Sexton, 10 May 2022

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CRIMINAL LAW – Interlocutory appeal – Applicant charged with orally penetrating his daughter (Charge 1) – Applicant charged with sexually touching his daughter (Charges 2 and 3) – Evidence sought to be led of a witness’ observations of the content of a video said to depict Charge 1 – Evidence sought to be led of a witness’ observations of the content of two videos said to depict the complainant showering at the applicant’s house – Witness unsure of whether videos depicted complainant – Videos not to be produced by prosecution – Whether witness’ evidence can be characterised as circumstantial evidence – Whether evidence is relevant – whether witness’ evidence of the oral sex video is excluded by s 137 Evidence Act 2008 – Whether witness’ evidence of shower videos is excluded by s 97 and s 101 Evidence Act 2008 – Leave to appeal allowed – Appeal granted – Evidence of videos excluded from applicant’s trial.

Evidence Act, ss 55, 97 101, 137.

House v The King (1936) 55 CLR 499 and IMM v The Queen (2016) 257 CLR 300 applied.

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Counsel
Applicants:		Mr A Malik and Ms F Fox
Respondent:		Ms J Piggott
Solicitors
Applicants:	Adrian Dessi Legal
Respondent:	Office of Public Prosecutions

KYROU JA
T FORREST JA:

The applicant is indicted on one count of incest (charge 1), allegedly constituted by penile/oral sexual penetration, and two charges of intentionally sexually touching a child under 16 (charges 2 and 3). The complainant is the applicant’s biological daughter.
The offending relates to two incidents. The incest charge is said to have occurred at some time between 23 July 2018 and 31 October 2018 in the applicant’s bedroom. The second incident is alleged to have occurred between 23 July 2018 and 19 November 2018. The applicant is alleged to have touched the complainant on the breast and vagina while she showered in his bathroom.
In pre-trial argument, the applicant sought to exclude evidence of KB, the applicant’s former partner, relating to observations she asserts she made of three videos. KB is not the mother of the complainant. Those videos were said by the prosecution to depict:
(a)The complainant performing oral sex on the applicant — that is said to be the act that constitutes charge 1.
(b)The complainant in the shower (two videos). The contents of the videos are said to constitute tendency evidence that demonstrates that the applicant has a sexual interest in the complainant.
The videos themselves are not in evidence and cannot be produced by the prosecution. The evidence of them comes solely from KB.
On 10 May 2022, the trial judge ruled that evidence from KB about the contents of all videos was relevant and admissible. We shall set out the details of that ruling later in these reasons.
On the same day her Honour certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’) that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The trial date was vacated and this interlocutory appeal was instituted. The grounds of appeal are as follows:
Ground 1:
The learned trial judge erred in finding that the evidence of KB’s observations of the ‘bedroom video’ was reasonably capable of being used as evidence in support of charge 1, and accordingly, relevant as to whether the offending alleged in charge 1 occurred.
Particulars
1Her Honour erred in charactering KB’s observations of the bedroom video as a piece of circumstantial evidence.
2Her Honour erred in determining that KB’s observations of the bedroom video bore significant similarity to the circumstances alleged in charge 1.
Ground 2:
The learned trial judge erred in holding that the evidence of KB’s observations of the ‘shower video’ were admissible pursuant to s 97 and s 101 of the Evidence Act 2008.
Particulars:
1Her Honour erred in concluding that the evidence had significant probative value.
2Her Honour erred in concluding that the probative value substantially outweighed any prejudicial effect.

The alleged offending

Charge 1

The complainant was born on 11 July 2006. She states that on 31 October 2018, her brother’s birthday, she stayed away from school because she had head lice. She states that she showered and then went into her father’s bedroom to look through piles of clean clothing. Her father was in the room, lying on the bed looking at his phone. He said he would buy her a phone for her birthday present in July, but that she had to give him a ‘head job’ in order to get the present. She said he moved to stand in front of her, while she sat on the bed. He then put his penis in her mouth and told her to suck it. This went on for about five minutes. She said he had his phone in his hand and when it rang he answered it and she left. The complainant states that at this time she was not wearing clothes but was clad only in a towel. She could not remember what the applicant was wearing.

Charges 2 and 3

The complainant alleges that the applicant touched her sexually on her vagina and breasts on the one occasion in November 2018. The bathroom door was not locked and the sliding door of the shower was partially open as she showered. The applicant came in to get something from a cupboard. It is alleged he stood in front of the shower, reached in and grabbed the complainant’s breasts and squeezed them. He is then said to have reached down and rubbed the outside of the complainant’s vagina. He then left the bathroom.

Background to KB’s evidence

KB met the applicant in October 2018 and they commenced a relationship in December 2018. In about May or June 2019, KB examined a large number of the applicant’s USB or memory cards. At that stage, she had not met the complainant and did not do so until July 2019. She did not view the contents of all of the cards but saw numerous videos with sexual content, including the applicant having sex with her and other women. Amongst that material were the three impugned videos that are the subject of this interlocutory appeal. As we have said, the videos themselves are not, and will not be, in evidence in the trial. The prosecution wish to lead evidence from KB of what she says she saw on those videos.

KB’s proposed evidence

Relevantly, KB initially stated in a handwritten statement taken on 18 September 2019:
•A few months back, she became curious/suspicious as the applicant had a large number of USBs and memory cards.
•She put one memory card into her phone and saw his daughter who is 11 years old giving the applicant a ‘blow job.’
•She also viewed videos of the applicant having sex with a number of women. She believed he took the videos without their consent
•There were three videos of her (KB) that she did not know about or consent to.
•She has collected a number of USBs, memory cards and other electronic devices that belong to the applicant and has given them to police.
On 29 September 2019, KB expanded upon this account in a typed police statement. Relevantly she stated:
•She knew the applicant in October 2018 and they started ‘dating’ a couple of months later. As at September 2019, she had been in a relationship with him for 9 months.
•A few months prior to making the statement, she was ‘worried about [the] relationship and [started] snooping’.
•The applicant had a large number of USBs and memory cards which she was suspicious about.
•She put one of the memory cards in her phone. She saw ‘a video of his daughter… who is 12 years old giving [the applicant] a blow job’.
•‘I know it was his daughter in the video as I can see her face in the footage and I have met her before. [The complainant] had a red coat on. [The applicant] was lying down on the bed and [the complainant] was sitting up next to him performing oral sex on him. It looks like she was wearing her pyjamas. You couldn’t see [the applicant’s] top half, but you could see his shirt which was black with white dots, that I know belongs to him. He had his blue jeans pulled down to his ankles and you could see his circumcised penis and his pubic hair. You could also hear him call [the complainant] “Mibs” which is her nickname. He asks her at the end if he could insert his penis and she says “no” and leaves the room. You could see the side and back of [the complainant’s] head and half her face. It looked like [the applicant] was holding the camera recording it’.
•The video was taken in the applicant’s bedroom at his old house. ‘The video was dated the 31^stof October 2018. I remember this as it was Halloween’.
•In December 2018, the complainant went to live with her mother in Sydney. KB had not met the complainant before she moved to Sydney.
•At the time she viewed the video it ‘was on a tiny little SD card, that fits in every [Android] phone’. At that time KB was not living with the applicant and she had taken the card home to look at.
•‘I also saw 2 other videos of [the complainant] in the shower, a week before the incident. She was not aware she was being filmed, she was just a little girl. The camera was in the roof, in the vent above the shower.’
•She went through 15 SD cards, She could not remember whether the videos she viewed were on the same SD card or a different one.
•She hid the SD card by sticky taping it to a cupboard. She believed the applicant found it .
•‘I did confront [the applicant] straight away, he admitted it to me and I didn’t know what to do.’[2]
•KB met the complainant when ‘she came [to Melbourne] in the July 2019 school holidays and stayed at [KB’s] house.’
[2]KB resiled from this during her evidence under s 198A of the CPA. It was not relied upon before her Honour, or on this application.
On 7 December 2020, a pre-trial hearing was conducted before the trial judge.[3] KB gave brief evidence in chief and was cross-examined. In her pre-trial evidence in chief, KB stated that she wished to amend her 18 September 2019 statement to read ‘I believed that it was [the complainant] giving [the applicant] a blow job I wasn’t sure.’ KB confirmed in her evidence in chief that, so amended, the statement was the truth and the statement was then tendered. KB was then taken to the 29 September 2019 statement. She made similar amendments. Referring to the oral sex video, she said she wished to amend her statement ‘I know it’s his daughter’ to ‘I don’t know if it was his daughter, I was never sure.’ She then said she wished to amend it to ‘I’m not certain [it’s his daughter]’ and ‘It is my opinion [that it’s his daughter]’.
[3]Pursuant to s 198A of the CPA.
During cross-examination on the oral sex video, KB stated:
•‘I wasn’t 100 per cent sure. It was always a bone of contention that is the reason I never came forward with it, because I wasn’t sure. There was — the videos of the other women were — there was a few. So um, I’m not sure whether — because I only look at it…once or twice and then I’m not sure. I had doubts in my mind as to whether I had identified correctly.’
•She just saw a ‘side on view’ of the female’s face in the oral sex video. That and ‘the colour of her hair’ made her think it was the applicant’s daughter.[4]
•When further challenged as to whether the female in the video was the complainant she said she ‘wasn’t sure, probably 51 per cent unsure, and 50 per cent sure.’ She then said ‘I was 50/50’.
•The oral sex video lasted for about five minutes.
•She then said she ‘wasn’t sure if it was her’.
[4]It is undisputed that the complainant has red hair.
In further cross-examination, KB said the following about the shower videos:
•‘It could have been someone else, I’m not sure. It could have been [the complainant].’
•Question: ‘Thinking back on it now, how confident are you that it was [the complainant] in the shower footage?’ Answer: ‘Um, only 50, and it was because she lived there, so I didn’t think [the applicant] had any other girls there having a shower, but I don’t know.’
•The shower door was frosted but ‘You could see…through…just hair washing and girl stuff’.
•The person in the shower videos had long hair.

The pre-trial submissions

The applicant objected to KB’s evidence on the following bases:
•The oral sex video was irrelevant to any issue in the trial (s 55 of the Evidence Act 2008) .
•If this video was relevant, it was only marginally so, with a low probative value and this was outweighed by the danger of unfair prejudice (s 137 of the Evidence Act).
•KB’s evidence was far from conclusive and there were significant dissimilarities between her account, and the complainant’s account.
•Given that the complainant’s evidence was that there was only one occasion when she performed oral sex on the applicant, and given the dissimilarities between the two accounts, the jury could not conclude that what KB described was the conduct that constituted charge 1, or that the female participant was the complainant.
•If the oral sex video were to be admitted into evidence there was a real danger of unfair prejudice. Notwithstanding any judicial direction, the jury, even if not satisfied the video depicted the complainant, may reason that if the applicant is the sort of person who films himself having oral sex with a young person, then he is more likely to have committed the charged offences. Further prejudice may arise if KB had to be cross-examined about her motives for making up a story about videos, in the midst of an acrimonious and allegedly violent end to her relationship with the applicant.
•Insofar as the shower videos were concerned, the purported identification of the complainant was so speculative as to be devoid of probative value. It did not support the tendency alleged — namely a tendency for the applicant to have an improper sexual interest in his daughter, and a preparedness to act upon it.[5] If it had any probative value, it was not significant.[6] Further, whatever probative value it did have did not substantially outweigh the prejudicial effect its introduction into evidence may have on the applicant.[7] The jury may reason, even if they were not satisfied that the subject was the complainant, that if the applicant is the sort of person who would covertly film female persons in his shower, then he is more likely to have committed the charged offences.
[5]Evidence Act s 97.
[6]Evidence Act s 97(1)(b).
[7]Evidence Act s 101.
The respondent submitted to her Honour that it was open to a jury to accept that the oral sex video that KB stated she had seen was a video of the activity that constituted charge 1. There was sufficient similarity between KB’s evidence of what she saw, and the complainant’s account for the jury to conclude they were one and the same. In particular, the respondent emphasised that the following evidence demonstrated that similarity:
•Both stated the act occurred in the applicant’s bedroom.
•KB stated that the female in the oral sex video has red hair; the complainant has red hair.
•KB identified the applicant by his distinctive shirt.
•KB stated that she heard the nickname ‘Mibs’ which she said was the applicant’s nickname for the complainant.
•KB said that the date on the video was 31 October 2018. This coincided with a date nominated by the complainant as to when charge 1 occurred and which she remembered was her brother’s birthday.
In discussion, the prosecutor conceded that it could not be established that the video viewed by KB was in fact made on 31 October 2018.
The respondent further submitted that it was open to the jury to conclude that the shower videos did depict the complainant, and if so, that she was the focus or target of the applicant’s covert filming activities because when the videos were apparently taken KB understood that the complainant was the only female likely to use the applicant’s shower.

The judge’s rulings

The judge dealt initially with KB’s evidence about the oral sex video. Her Honour noted that the ‘first application is by the defence to exclude evidence of witness KB’s observations of the accused on a video recording receiving oral sex by a female that the prosecution submit is the accused’s daughter.’ The judge rehearsed the defence submission that KB’s evidence was ‘not relevant and … highly prejudicial because the accused is restricted in cross-examination of … KB to avoid placing evidence before the jury of the circumstances in which the police became aware of KB’s observations …’ namely family violence. The defence further contended that there was a danger of unfair prejudice arising from the fact that, if the jury concluded that what KB says she observed was a separate incident, the jury may view it as an uncharged act.
Her Honour observed that the prosecution submitted that KB’s evidence of observation ‘is relevant, highly probative, and is direct evidence of the allegation of oral penetration in charge 1. It is not relied on as tendency or coincidence.’
The judge observed that there was direct evidence from the complainant of the facts in issue in charge 1 — that is that the complainant was orally penetrated by the applicant. The judge set out the complainant’s evidence as to this event in essentially identical terms to that set out at [7] above.
No complaint is taken with her Honour’s summary of the complainant’s evidence.
The judge then correctly stated the effect of s 55(1) of the Evidence Act. To be relevant, KB’s evidence must ‘be capable of rationally affecting directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceeding.’
The judge then reviewed KB’s evidence. She noted that KB was a reluctant witness who had given evidence in the s 198A proceeding in 2020 ‘with some difficulty’ and who had recently failed to answer a subpoena to attend court on Friday 6 May.
Her Honour stated that she ‘must take the proposed evidence at its highest when assessing its relevance’ and then set out KB’s evidence of what she said she saw of the oral sex video, in similar terms to [10]–[11] above.
Her Honour noted that the prosecution submitted that the similarities between KB’s observations and the complainant’s account were ‘striking’. Those striking similarities were submitted to be ‘the same date is nominated by each, being 31 October 2018’; ‘the reference to hair colour where the complainant has vibrant red hair’; ‘[n]ext, the same sex act being oral penetration of the complainant by the accused is referred to’; ‘[n]ext the same location is referred to, being the accused’s bedroom’; ‘[n]ext is the same estimated duration of five minutes’; ‘[b]oth refer to the accused having his phone with him, and KB said she heard the use of the nickname, which the complainant confirms is what her mother and father called her’.
The judge then referred to the prosecution submission that the differences between the complainant’s account and KB’s evidence were explicable by either or both of the witnesses misremembering certain details. These differences included the position of the accused during the alleged event in charge 1, either standing or lying; the clothing of the female participant — either in a towel or a red coat and pyjamas; and the complainant’s certainty of the date 31 October 2018 being her brother’s birthday, and also the day of a school excursion when school records contradict her evidence in this regard. Further the records show she attended school on 31 October 2018.

The judge then stated that ultimately the prosecution submission was that KB’s evidence was relevant and of high probative value which outweighed the danger of unfair prejudice pursuant to s 137 of the Evidence Act.
The judge then briefly summarised the defence submissions concerning KB’s evidence about the relevance of the oral sex video to any fact in issue. The judge said that ‘the defence submit that KB’s evidence is not relevant because of the uncertainty as to date, the uncertainty of the identification of the female in the video and the significant differences in the descriptions of alleged event depicted in the video to the description of the alleged offending by the complainant’.
Her Honour noted that ‘Even if it is relevant, say the defence, it is of very low probative value because of the difference in accounts … and the lack of the positive identification by KB even after she had met the complainant subsequently’ and that this very low probative value could not outweigh the substantial danger of unfair prejudice arising from speculation that there was another uncharged incident. The judge also referred to the difficulty in cross-examining KB as to her motive to fabricate her account without disclosing the family violence background to her statement to police; and the difficulty about her 50 per cent certainty that the video depicted the complainant without disclosing the basis ‘for KB’s mistake’ which would be that there were a number of other sex videos that KB said she observed with other females. Finally the judge noted the defence submission that no directions could cure this prejudice.
Her Honour made the following findings in relation to the oral sex video:
27The evidence of KB as to the observations of the bedroom video is circumstantial evidence that is relevant to Charge 1. It is not identification evidence. Her observation, whilst not a positive identification, is a piece of evidence that has significant similarities to the allegation in Charge 1 which could affect the assessment of the probability of the existence of a fact in issue for that charge, being whether the accused orally penetrated his daughter on an occasion between 23 July and 31 October 2018. I consider the probative value of KB’s evidence of the bedroom video to be high.
28The danger of unfair prejudice can be managed in my view by careful questioning of the witness KB. For example, there is no need to refer to any other videos and / or to suggest that she is mistaken in her 50 per cent certainty that the bedroom video shows the complainant. It can simply be put to her that she is lying about what she observed and lying about the existence of the video. It can be further put that at the time she spoke to police about what she said she had seen some time earlier, she was angry with the accused and so had a motive to lie. There is no need to go into the background of why she was angry with the accused.
29Further, there is no need in my view to refer to the police attendance at the house being due to the family violence allegation. The ultimate submission to the jury can be made that she is lying, has a motive to lie about the bedroom video and, if wished it can also be said that the complainant in her own evidence made no reference to the event in Charge 1 being recorded, and of course the differences between the complainant’s account and the account of KB can be highlighted.
30Lastly, in my view, careful directions as settled with counsel can avoid the possibility of the jury mistaking this evidence of the bedroom video for an uncharged act.
31Therefore, having found that the proposed evidence of the bedroom video is relevant, and its probative value is not outweighed by the danger of unfair prejudice, I decline to exclude that evidence under s 137 [Evidence Act].[8]
[8]Unreported, County Court of Victoria, Deputy Chief Judge M Sexton, 10 May 2022, [27]–[31] (‘Ruling’) (citations omitted) (emphasis in original).
We pause to observe that the judge, correctly in our view, did not accept KB’s evidence concerning the oral sex video as identification evidence. The judge went on, however, to consider that evidence as a piece of circumstantial evidence, which taken at its highest and in conjunction with the other evidence in the case, could establish that what KB saw on the video was the conduct said to give rise to the incest charge. The judge found there were sufficient similarities between the complainant’s allegations and what KB says she saw on the video to affect the probability that the applicant acted as the complainant says he did. The applicant complains in ground 1 that the judge erred in characterising KB’s purported observations as ‘a piece of circumstantial evidence’. We observe that, although the prosecutor did not specifically contend that KB’s evidence was ‘circumstantial evidence’, her submissions[9] effectively advanced the case on that basis. In our view it was open to the judge to consider KB’s evidence on that basis. We further observe that, in her reasons, the judge did not articulate the ‘significant similarities’ that she identified, nor did she articulate a reasoning path towards her conclusion that the ‘probative value of KB’s evidence of the bedroom video [is] high.’ We shall proceed on the footing that her Honour accepted the prosecutor’s submission on these issues. It will be recalled that, in her written case, the prosecutor identified various asserted similarities including the nickname similarity (Mibs) and that the date on the video coincided with a date nominated by the complainant as to when the offending the subject of charge 1 occurred.
[9]Set out at para [16] above.
The judge then turned to KB’s evidence of the two shower videos. The judge noted that the evidence was sought to be admitted as tendency evidence. The evidence was said to be ‘…observations of a girl, as opposed to an adult, filmed in the shower at the accused’s home dated about a week before 31 October 2018. No specific date is given by KB.’
The judge stated the tendency alleged was of the accused ‘to have an improper interest in his daughter and a willingness to act upon it’. The tendency evidence was said to be relevant to charges 1, 2 and 3. For charges 2 and 3, the fact in issue is whether the accused sexually touched his daughter in two ways whilst she was in the shower on one occasion between 23 July and 19 November 2018.
The judge observed that the defence disputed that the proposed evidence met the tests in ss 97 and 101 of the Evidence Act. The judge summarised KB’s evidence which we shall not repeat.[10]
[10]It can be found at [10] – [14] above.
Her Honour then summarised the parties’ submissions. She noted that the prosecution contended that KB’s evidence that she found and watched two videos of 5 and 15 seconds in length respectively that depicted a female with long hair walking to the shower from the door of the bathroom, were in fact recordings of the complainant because, at the date recorded on the video — mid October 2018 — no other females lived at the applicant’s house. It was therefore a recording of the complainant and thus evidence capable of demonstrating that the applicant had a sexual interest in his daughter, and a preparedness to act upon it.
The judge then observed that the ‘defence submit the proposed evidence has no probative value because there is the possibility that other females could have attended the house and been the target of the recordings’.
The judge ruled as follows:
40Taking the proposed KB evidence of the shower videos at its highest, and having regard to other evidence to be led, I find that it is open to conclude that the complainant was the intended target of the recordings and therefore the target of sexual interest by the accused. The evidence from the VARE is that the complainant was the only female living at the accused’s house in October 2018 and that the accused had no girlfriend at that time. The observations of KB are of a ‘little girl’, with hair long enough to be put in a towel and flicked up into a turban, which fits the description of the complainant, who was aged 12 years in October 2018.
41KB is 50 per cent confident it is the complainant, and similar to the bedroom video, that is a piece of circumstantial evidence that is part of the evidence that I am considering. According to KB, the shower videos are dated a week before 31 October 2018, and that time frame means that they are recorded within three to four weeks before the allegations in Charges 2 and 3 of the accused coming into the bathroom while the complainant was showering and sexually touching her.
42I find that the proposed evidence of the shower videos is relevant and is evidence which supports the asserted tendency of the accused having a sexual interest in the complainant to a significant extent and also makes the allegations in Charges 2 and 3 more likely to a significant extent. The location of the recordings, being in the bathroom where the shower is located and being the location where Charges 2 and 3 are alleged to have taken place, makes the happening of the events in Charges 2 and 3 more likely.
43It is also apparent that – if accepted, which I must at this point of the proceeding – the accused acted on his sexual interest by recording the complainant in the shower. Further, the actions alleged against the accused in Charges 2 and 3 in the shower demonstrate his willingness to act on his sexual interest generally, including in the bathroom when the complainant is in the shower. Once there is proof of a tendency to have a sexual interest in his daughter, and proof of his willingness to act on that interest, and each proof has significant probative value to the fact in issue because of the demonstration of his sexual interest, that tendency applies to all Charges 1 through to 3.
44For completeness, I note that it is not disputed that ‘internal’ or ‘single complainant’ tendency between Charges 1 to 3 can be relied on by the prosecution. I am satisfied that the evidence of the complainant on Charges 1 to 3 has significant probative value to the facts in issue on all charges, and is not excluded under s 101 [Evidence Act].
45I turn, then, to consider whether the proposed tendency evidence from KB, which has significant probative value, is nevertheless excluded by s 101 [Evidence Act]. The main prejudicial effect pointed to is the difficulty of putting to a jury through cross-examination of KB the possibility that other females could have been at the house showering, and been recorded, and that therefore the complainant was not the target of the sexual interest. As I have set out, that is not the direction to which the evidence points, which is that the complainant was the only female who was living at the house and that the accused had no girlfriend, therefore no other female was likely to be showering at that house.
46Further, it seems to me to be a risky cross-examination to contemplate in any event. It is not prejudicial to permit evidence to be led as tendency and the defence not to be able to rely on risky or prejudicial cross-examination to address the tendency evidence.
47However, to address the potential prejudicial effect raised by the defence of the prosecution contention that it is unusual to have a camera in a bathroom vent, I will not allow that argument to be advanced by the prosecution.
48Finally in terms of prejudicial effect, because it is intended to pre-record KB's evidence, should she answer the subpoena and the warrant from which she was bailed to appear today, any prejudicial material that does arise because of the volatility of the witness can be edited.[11]
[11]Ruling, [40]–[48] (citations omitted).
The judge summarised her conclusions as follows:
· the observations of the bedroom video by KB are relevant and admissible EA as a piece of circumstantial evidence going to proof of Charge 1 and not excluded under s 137 [Evidence Act]; and
· the observations of the shower videos have significant probative value and are admissible as evidence of a tendency of the accused to have sexual interest in his daughter, which applies to all charges and is not excluded under s 101 [Evidence Act].[12]
[12]Ruling, [49].

This appeal

Where a question is raised on an interlocutory appeal that concerns the admissibility of evidence, appellate intervention is limited by the review of the discretion principles stated in House v The King.[13] The question is whether the judge’s decision was reasonably open, not whether it was correct.[14] It must appear that the judge has either acted on the wrong principle, or been guided by extraneous or irrelevant matters, mistaken the facts, or has not taken into account some material consideration. It may not be readily apparent how the primary judge has reached the relevant result, but, if upon the facts it is unreasonable or plainly unjust, this Court may infer that in some way there has been a failure, properly to exercise that discretion.
[13](1936) 55 CLR 499.
[14]McCartney v The Queen (2012) 38 VR 1; [2012] VSCA 268.
Whilst the various sections of the Evidence Act relevant to this appeal[15] are not framed in discretionary language, they may involve fine questions of judgment upon which reasonable minds may differ. We must approach this appeal, therefore, according to the above House v The King principles.[16]
[15]Sections 55, 97, 101 and 137.
[16]KJM v The Queen (No 2) (2011) 33 VR 11; [2011] VSCA 268; CGL v DPP (No 2) (2010) 24 VR 382; [2010] VSCA 24; Bray (a pseudonym) v The Queen (2014) VR 623; [2014] VSCA 276; Pope (a pseudonym) v The Queen [2017] VSCA 324; Ramaros v The Queen [2018] VSCA 143.
Evidence is relevant in this proceeding if it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue[17]. If evidence is relevant in this sense, the applicant contends that it ought to be excluded by the engagement of s 137 of the Evidence Act. That provision will be engaged if the probative value of the impugned relevant evidence is outweighed by the danger of unfair prejudice to the accused. In this event a judge is obliged to exclude the evidence.[18]
[17]Evidence Act s 55.
[18]Evidence Act s 55(1): The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding; s 55(2): In particular, evidence is not taken to be irrelevant only because it relates to – (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence; s 137: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
In IMM v The Queen,[19] the majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) explained the assessment of ‘probative value’ and its relationship to the related concept of ‘relevance’. The assessment of probative value of evidence involves an assessment of the extent of the effect that makes the evidence relevant pursuant to s 55. The enquiry as to extent involves the same considerations as the initial relevance inquiry. The words ‘if it were accepted’ in s 55 should be understood to be imported into s 137. It follows that a trial judge must proceed on the basis that the relevant evidence will be taken at its highest for the prosecution, and that, as with the relevance assessment, there is no call for a trial judge to assess the credibility or authenticity of the evidence. They are matters for the jury[20].
[19](2016) 257 CLR 300; [2016] HCA 14. (‘IMM’)
[20]IMM 312–13 [37]–[44], 314–15 [47]–[52].
The majority carefully explained the position on the issue of reliability. An example was cited with approval from an article by J D Heydon QC, where an identification was made briefly in foggy conditions and in bad light by a witness who did not know the person identified. One approach, said the majority, was ‘to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing’.[21] The majority explained that in assessing probative value the statute requires the latter approach.
[21]IMM 314–15, [50].
It follows that whilst a judge must eschew consideration of factors that may impact upon credibility or reliability of a witness’ account, the court must not lose sight that the account itself, taken at its highest, may not be particularly good.[22] ‘A witness may be perfectly honest and impeccably reliable as an historian but his or her description of an event may be subject to all sorts of limiting factors which have nothing to do with that witness’s honesty or reliability’.[23]
[22]R v Debresay (Ruling No 1) [2016] VSC 487.
[23]Ibid [14].

Analysis

On this interlocutory appeal, the respondent very fairly made the following significant evidentiary concessions, one of which was not before the judge:
(a)While KB stated that the oral sex video was dated 31 October 2018 this was not necessarily indicative of when the video came into existence. It may also have been evidence that the video was dealt with in some other way on that day. This concession was made by the prosecutor during the pre-trial hearing, and repeated during this appeal. Her Honour made no mention of this concession during her evidentiary ruling.
(b)The complainant’s nickname, used by the applicant, was not ‘Mibs’ but ‘Bibby’. This concession was not made before her Honour, and it appears that her Honour accepted the prosecution assertion that ‘Mibs’ was in fact the complainant’s nickname.

Oral sex video

As we have set out, her Honour ruled that it was open to the jury to conclude that KB had viewed a video of the events said to constitute charge 1, and that KB’s evidence was relevant and of high probative value. This ruling was not reached by considering KB’s evidence in isolation, but after a consideration of other pieces of evidence in the case which, in conjunction with KB’s evidence, were said to support this conclusion. This approach explains why the judge treated KB’s observations as circumstantial evidence, (as opposed to identification evidence) to be considered along with other evidence in the case.
The evidence apparently accepted by the judge to operate in combination to allow the jury to reach this conclusion is as follows:
(a)KB’s final position was that she was 50 per cent certain that the female in the oral sex video was the complainant.
(b)The act of fellatio is common to KB’s observations and the allegations said to constitute charge 1.
(c)The period over which the oral sex act occurred on the video was assessed by KB to be 5 minutes. This coincides with the complainant’s evidence.
(d)The date of 31 October 2018 was nominated by KB as being observed by her on the video. It was also nominated by the complainant as one of the days upon which the act could have occurred.
(e)KB recognised the scene of the video as the applicant’s bedroom and the shirt worn by the applicant as identical to a shirt possessed by the applicant.
(f)KB states the video appeared to be taken by a mobile phone. The complainant stated that the applicant had his phone with him during the oral sex.
(g)KB states that the female in the video had red hair. It is not disputed that the complainant has red hair.
(h)The male, according to KB, referred to the female as ‘Mibs’ — ‘KB had not met [the applicant’s] daughter at that point but knew her nickname was Mibs’.[24]
[24]Ruling, [11].

At its highest, KB’s evidence is capable of demonstrating that on an uncertain date but on or before 31 October 2018, the applicant had 5 minute penile/oral sex with a young red headed female with the nickname ‘Mibs’, which he recorded using his phone. The female bore a resemblance to the complainant whom KB had not met at the time of viewing the video. The video is not available and cannot be shown to the complainant to confirm if she is the female participant. In our view, considered alone, KB’s evidence about this video is relevant to the prosecution case in proving charge 1, however its probative value must be evaluated by reference to the other evidence in the case.
In our opinion, given the concessions made by the respondent on this appeal the judge, in her evaluation of relevance and probative value of the oral sex video, proceeded on two flawed factual bases. First, the use of ‘Mibs’ appeared to be powerful evidence of the identity of the female participant. It resolved an otherwise speculative hypothesis. The chances of the applicant independently indulging in oral sex with a different young red headed female who had the same nickname as the complainant are sufficiently remote as to be fanciful. Approached this way, the probative value of KB’s evidence was clearly significant. It was a critical piece in the circumstantial matrix of facts that could establish the identity of the female participant. The red head became the complainant, notwithstanding KB’s 50 per cent uncertainty. However, the factual premise that underpinned this reasoning path was flawed.
In her VARE the complainant stated:
Q … did your dad ever have any nicknames for you?
A He used to call me Bibby…
The potency of the nickname reference within KB’s evidence about what she saw and heard on the video falls away. True it is that ‘Mibs’ sounds reasonably similar to ‘Bibby’, but that is all. It is a piece of evidence to be considered in the mix but the sting is gone. In proceeding on the basis that the complainant’s nickname was ‘Mibs’, the judge did so on a mistaken factual basis.
The other flawed factual basis upon which the judge appears to have proceeded relates to the 31 October 2018 date. The prosecution in written submissions to the judge described this date, having been assertedly observed by KB in this way ‘[t]he evidence of (KB) demonstrates the same sexual activity occurs on the same date as alleged by the complainant 31 October 2018’. The assumption that underpinned this submission was that the video was created on the same day as KB asserts was apparent on the video footage. The assumption appears to have been accepted by the judge. As we have said, the prosecutor resiled from this factual position both before her Honour and before this Court. Assuming KB saw that date on the video she viewed, at its highest, it is evidence that the video was dealt with in some way on that day. It is not evidence that it was created on 31 October 2018. It may alternatively indicate that the video was labelled, stored, filed, moved or in some other way dealt with on that day. Other evidence in the case further weakens the probative value of the 31 October 2018 aspect of KB’s evidence. The complainant stated that she remembered the date of 31 October 2018 because it was her brother’s birthday and she was home from school on that day because she had head lice. She also said that there was a school excursion on that day which she missed. It is common ground that school records demonstrate that the applicant was at school on 31 October 2018, and that there was no school excursion on that day. The potency of this evidence also falls away. We consider that her Honour, in apparently accepting that the oral sex video was created on 31 October 2018, proceeded on a mistaken factual basis.
In a circumstantial case, the probative value of a piece of circumstantial evidence, which may appear anodyne (or devastating) by itself must be measured against all the circumstantial evidence, and not just a just a selection of evidence that suits the prosecution hypothesis of guilt. In this case, as we have said, it is plain enough that KB’s evidence, if accepted, is capable of demonstrating that the applicant engaged in a five minute act of oral sex with a young red headed female, nicknamed ‘Mibs’, in his bedroom, either on 31 October 2018 or at some indeterminate earlier date; and there is a 50 per cent chance that the female participant was the complainant; and that the applicant videoed the sexual act. The fact in issue to be proved is that the applicant had oral sex with his daughter. Other evidence in the case would appear to cut across the prosecution hypothesis that the female video participant was the complainant. For example, the complainant says she was clad only in a towel. KB says that the videoed female participant was wearing a red coat and what appeared to be pyjamas. Another example of this is the different positions described by KB and the complainant. The complainant states that she sat on the bed and the applicant stood in front of her when he put his penis into her mouth, and he remained so positioned for the next five minutes. KB, on the other hand, describes the applicant as lying on the bed with the female sitting next to him performing oral sex.
We are satisfied that the judge has mistaken two facts that were significant to the assessment of the relevance of the impugned evidence and its probative value. As we have explained, her Honour acted upon the basis that the applicant’s nickname, articulated according to KB in the oral sex video was ‘Mibs’. Devastating and definitive if that were the complainant’s nickname, but it was not. Her Honour also appeared to accept the initial (but recanted) prosecution assertion that 31 October 2018 appearing on the video meant that it was created on that day, which happened to coincide with the complainant’s evidence of when the event occurred. Again highly probative if that was when the video was created and the 31 October 2018 date nominated by the complainant was accurate. Neither seem to be able to be established on all the evidence.
We infer from this that there has been a failure to properly exercise the judge’s ‘discretion’ to exclude KB’s impugned oral sex evidence.
In this appeal, ground 1 was directed solely to the issue of relevance and did not articulate a contention dealing with s 137 of the Evidence Act. As we have explained, relevance and probative value are closely related concepts and the applicant’s argument before us, as it did before the judge, proceeded on both a relevance and s 137 basis. No objection was taken by the respondent to this approach, and given that both parties addressed the s 137 aspect no prejudice has been occasioned. We shall treat ground 1 as relating both to relevance and her Honour’s s 137 evaluation.
As we have said,[25] we consider the impugned evidence to be relevant. At its highest, it could rationally affect the assessment of the probability of the existence of a fact in issue — namely, the identity of the female participant in the video that KB observed, and thus the establishment of the acts said to constitute charge 1. By itself, it does not establish that the female participant was the complainant. It is part of a larger body of evidence that offers some support for the prosecution hypothesis and in other respects strongly contradicts it. Taking the impugned evidence at its highest, we consider it to be of relatively modest probative value in proving the relevant fact in issue.
[25]See [49] and [54] above.
We consider the danger of unfair prejudice to be considerable. Exploring KB’s motive to fabricate the evidence may well involve raking over the coals of the acrimonious and violent end to the couple’s relationship. Further, testing KB’s ‘50 per cent likeliness’ of the complainant may require cross-examining counsel to explore with KB the number and nature of videos that she examined, which in turn would disclose to the jury the applicant’s activities in filming his sexual exploits with other females. We consider the former of these outcomes the more likely than the latter, but both carry with them the potential, or danger for unfair prejudice.
Another danger of unfair prejudice is that, if admitted, the jury may treat KB’s evidence as proving more than it can. They may reason that if the applicant is the sort of person who films himself receiving oral sex with a young woman, regardless of her identity, then he is the sort of person who would do the same with his daughter. Whilst many of these dangers may be ameliorated, at least in part, by judicial direction, we are left with the strong impression that the modest probative value of the oral sex video evidence is outweighed by the danger of unfair prejudice. These competing considerations are of course incommensurable, but that is our strong impression. Given that we have concluded that the judge proceeded on an incorrect understanding of two significant facts in her analysis of the evidence, we are satisfied that appellate intervention is required. We shall order that KB’s evidence concerning the oral sex video be excluded from evidence in the applicant’s trial.

The shower videos

It will be recalled that, in her statement of 29 September 2019, KB stated:
•‘I also saw 2 other videos of [the complainant] in the shower, a week before the incident. She was not aware she was being filmed, she was just a little girl. The camera was in the roof, in a vent above the shower.’
•‘I hadn’t met [the complainant] before she moved to Sydney, but she came down in the July 2019 school holidays and stayed at my house.’
In the s 198A CPA hearing, after expressing her uncertainty about the complainant’s identity in the oral sex video, KB stated about the shower videos:
•‘It could have been someone else, I’m not sure. It could have been [the complainant].’
•Asked about her level of confidence, she replied: ‘Um, only about 50, and it was because she lived there, so I didn’t think [the applicant] had any other girls there having a shower, I don’t know.’
•The shower door was frosted but ‘You could see … through … just hair washing and girl stuff.’
•The person in the shower videos had long hair.
We have set out the applicant’s submissions at trial at [15] above. On this appeal, the applicant repeated these submissions and contended that the judge erred in mischaracterising KB’s evidence as ‘KB viewing a little girl with long hair long enough to put in a towel’. The applicant further contended that there was insufficient evidence from which it could be concluded that the complainant was depicted in the videos or that she was the applicant’s intended target, given his propensity to film other women. The applicant also contended that the judge erred in finding that the shower videos were taken at a time proximate to the oral sex videos.
The respondent contended that there was sufficient evidence for the jury to conclude that the subject of the videos was the complainant. While KB was only 50 per cent sure of her identity, the subject of the videos had long hair, like the complainant, and the videos appeared to have been taken at a time when the complainant was the only female that was likely to us the bathroom at the applicant’s house. KB also stated the subject of the video was ‘a little girl’. In the circumstances, so the respondent submitted, it would be open to the jury to conclude that the applicant had filmed the complainant, had a tendency to have a sexual interest in her and was prepared to act upon it.
We accept that KB’s evidence about the shower videos is capable of demonstrating that the applicant had a sexual interest in whoever it was who was depicted in the videos. We consider the jury could infer that he installed the camera, filmed the person using the shower as described by KB, and preserved the two videos. In our view, that would be sufficient to demonstrate, at least, a tendency to have a sexual interest in the subject of the video and perhaps a preparedness to act upon it.
There is, however, scant evidence that the subject of the video was the complainant.
•KB’s ultimate position was that she was just 50 per cent confident that the videos she saw depicted the complainant.
•It seems KB’s process of reasoning was that, as the videos were taken shortly before the oral sex video was taken then, at this time, the complainant, to KB’s knowledge, was the only female member of the household. The problem with this analysis is, as we noted in relation to the oral sex video, the actual production date of the oral sex video is far from certain and may well not be 31 October 2018 at all. Similarly, assuming KB’s evidence to be that she saw a date on these videos that was a week or so before 31 October 2018, that earlier date too is beset with uncertainty. It may be the date of the shower itself, or it may simply be a date where the footage was electronically dealt with in some way.
•We agree with the applicant that the judge somewhat overvalued KB’s ‘little girl’ evidence and fell into factual error. The judge stated ‘the observations of KB are of a little girl with hair long enough to put into a turban, which fits the description of the complainant who was aged 12 years in October 2018’. In fact, KB’s evidence on this issue (see [11] above) was ‘She was not aware she was being filmed, she was just a little girl. The camera was in the roof, in the vent above the shower’. On this appeal, counsel for the respondent, who was the trial prosecutor, accepted that this sentence is at best ambiguous. In our view, the use of the phrase ‘she was just a little girl’ given its context is overwhelmingly more likely to be used as an explanation for the (assumed) complainant’s failure to notice the camera, rather than an assertion that the person KB saw on the video was ‘just a little girl’. We consider that the judge proceeded on an incorrect factual basis in stating that the observations of KB were of ‘a little girl’.
•It follows then that KB’s ultimate position taken at its highest is that she saw on the videos a female, with long hair who put it up in a turban, over the course of about 15 seconds. She is 50 per cent confident it is the applicant’s daughter.
We consider that, upon close analysis, the probative value of KB’s ‘shower videos’ evidence is very modest, verging on guesswork. For reasons we have set out, we do not consider her speculation as to the subject of the videos to be supported in any significant respect by the other evidence in the case. This is an entirely shaky foundation upon which to base tendency reasoning.
Conversely, we consider the prejudicial effect that may be occasioned to the applicant is considerable. The jury may reason, even if they are not satisfied that the videos KB says she saw depicted the complainant, that if the applicant is the sort of person who covertly records and preserves videos of naked females showering in his bathroom, then he is the sort of person who would readily commit the charged offences. We doubt that any judicial direction, however firm, would cure this prejudice.
It follows that we consider that the judge proceeded on an incorrect factual basis on both the ‘little girl evidence’ and by apparently acting on the basis that the shower videos were taken on the date recorded on their face as recounted by KB. As we have said, we consider the probative value of KB’s evidence to be very modest and not ‘significant’[26] and that it does not outweigh any prejudicial effect.[27] We are satisfied that appellate intervention is required and we shall order that KB’s evidence concerning the shower videos be excluded from evidence in the applicant’s trial.
[26]Evidence Act s 97.
[27]Evidence Act s 101.

Conclusion

We shall grant leave to appeal on both grounds of appeal and we shall allow the appeal. We shall order that KB’s evidence, as it relates to the oral sex video and the shower videos, be excluded from evidence at the applicant’s trial.
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[2022] VSCA 214

4 October 2022