Gentry (A Pseudonym) v DPP [2014] VSCA 211
[2014] VSCA 211
•2 September 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0176
| LUCAS GENTRY (A PSEUDONYM)[1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | REDLICH, TATE and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 September 2014 |
| DATE OF JUDGMENT: | 2 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 211 |
| RULING APPEALED FROM: | DPP v [Gentry] (Unreported, County Court of Victoria, Judge Quin, 8 August 2014) |
---
CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Sexual offences against child under age of 16 – Single complainant – Evidence of sexual interest in complainant and willingness to act on that interest – Velkoski v The Queen [2014] VSCA 121, considered – Use of evidence of charged acts as tendency evidence – Versi v The Queen [2013] NSWCCA 206, applied.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R S Sleeth with Ms R J Haylock | Victoria Legal Aid |
| For the Respondent | Mr P B Kidd SC with Ms D M Guesdon | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
This is an application for leave to appeal against an interlocutory decision that certain evidence was admissible as tendency evidence in the applicant’s trial for a number of sexual offences against a child under the age of 16. All charges relate to the same complainant. The trial judge certified, pursuant to s 295(3)(a) of the Criminal Procedure Act2009, that if the evidence the subject of the interlocutory decision were ruled inadmissible the prosecution’s case would be substantially weakened. The sole ground of appeal is that the trial judge erred in ruling that the evidence in question was admissible as tendency evidence.
The evidence the subject of the judge’s ruling related to the complainant’s possession of a number of items of underwear which the complainant alleges were given to her by the applicant. Three of those items contain seminal stains which upon forensic examination are said to contain the applicant’s DNA, and two of those items also contain DNA of the complainant. There is no suggested DNA of any other contributor on any of the underwear. The complainant may also give evidence regarding two other pairs of underwear which were never located but were allegedly involved in some of the alleged offending. The Crown has given notice that it relies upon this evidence as tendency evidence to show that the applicant: (i) acted in a particular way toward the complainant; and (ii) had a sexual interest in the complainant. The Crown also sought to rely on the complainant’s evidence as to the circumstances in which she came to possess the underwear and the presence of the applicant’s DNA on the underwear as evidence of context and circumstantial evidence. The judge ruled the evidence admissible as tendency evidence but deferred the question of its probative value as circumstantial evidence.
The Crown had also sought to rely upon the evidence of each charged act as tendency evidence that could support the evidence of the other charged acts. Her Honour found that the use of the evidence relating directly to each of the charged acts should not be used as a foundation for tendency reasoning, as this would make things ‘unduly complicated for the jury’ when they would have no need to resort to such reasoning.
Factual background
The alleged circumstances of the offending, as outlined in the summary of the prosecutor’s opening and in the schedule of evidence provided on the appeal are as follows.
The applicant was approximately 26 years old at the time the offending commenced. The complainant was aged between 11 and 13. The complainant was the eldest child of TN. At the time that the offending was reported to police, the complainant was 14 years old and living with her mother (TN), her half-brother and her sister, along with her mother’s de facto partner, RS, who had raised her since birth. RS’s sister, HS, was and remains in a relationship with the applicant, who was therefore referred to as ‘Uncle R’ by the complainant. The applicant moved to Australia in mid-2001 from New Zealand.
In September 2008 the complainant, then aged 11, attended at her paternal grandparents’ home for a birthday party. She and her family stayed the night, with the complainant sleeping on the couch in the lounge room and other family members in various other rooms within the house. As the complainant lay on the couch, unable to sleep, she felt the applicant breathing on her, before lifting the blanket and stroking her back. The complainant had her back to the applicant but felt him reach his hand down into her pants. He then began massaging her vagina before inserting two fingers into her vagina, whereupon the complainant felt scared (Charge 1 — sexual penetration of a child under 16 years). The complainant rolled over and the applicant removed his fingers, and then told her to go back to sleep before walking off.
On an unknown date between 1 September 2009 and 31 December 2009, the applicant picked the complainant up from school and drove her to her home. There was nobody else there when they arrived. As they walked into the house, the applicant grabbed the complainant and, turning her around, put his hands down inside her shorts. He then massaged her vagina over her underwear (Charge 2 — indecent act with a child under 16 years). As he began to lift her top up, the complainant pulled it down and told him to stop, as her mother would be home soon. The applicant went into the kitchen and TN arrived home shortly thereafter.
On another date between 1 December 2009 and 13 December 2009, when the complainant was 12 years old, she was at her paternal grandparents’ house. She was asked by family members to accompany the applicant back to her home to grant him access to the house, so that he could collect some DVDs. After he had collected the films the applicant closed the door, and when the complainant asked what he was doing told her that it would not take long. The applicant then kissed the complainant on the mouth approximately four times (uncharged acts), then grabbed her hand and put it down his pants onto his penis, underneath his clothing (Charge 3 — indecent act with a child under 16 years). The complainant pulled her hand out and said that they should leave.
The applicant told the complainant that he wanted her mouth, telling her ‘just suck me and then we’ll leave’. The complainant told him that she wanted to go, but he replied that they would leave as soon as she ‘did it’. The complainant then performed oral sex upon the applicant, placing her mouth over his penis as they were at the front door. She did this for approximately five minutes until he ejaculated in her mouth (Charge 4 — sexual penetration of a child under 16 years). The applicant then suggested that the complainant spit into the sink and wash out her mouth, which she did. The two of them then returned to her grandparents’ house.
On a date between 1 March 2010 and 30 April 2010, the complainant had a friend, SB, stay at her house around the time of the latter’s birthday. The complainant was asleep on the floor of the rumpus room as SB slept on the couch when the applicant came into the house. The complainant awoke to see him in the rumpus room. The applicant told her that she should go for a ride with him, and they went to his car, which was parked down the road. He then drove her to a nearby skate park, and suggested that she get into the back seat and lie down, which she did. The applicant then pulled down the complainant’s boxer shorts and underwear, before putting on a condom, then laying on top of the complainant and penetrating her vagina with his penis (Charge 5 — sexual penetration of a child under 16 years). The complainant told him that he was hurting her, and after one or two minutes the applicant withdrew his penis. He then told the complainant to get up and return to the front seat. He dropped her off around the corner from her home, and she walked the rest of the way. Upon her return, she went back to bed in the rumpus room, telling her friend the next morning that she had left the house to meet with a guy. In a VARE recorded in March 2014, the complainant stated that during this incident the accused told her to put a pair of red underwear (‘the red underwear’) on, before asking her to remove them and lying on top of her.
On a date between 1 May 2010 and 31 July 2010, the complainant was home from school due to a curriculum day. In the early afternoon, while she was home alone using the computer, she heard a tapping on the window. She went outside and, upon returning to the kitchen, found the applicant standing in the kitchen. As she walked back to the computer the applicant followed, telling her that he had bought her something. He pulled out a pair of rose pink frilly underpants (‘the pink underwear with lace’) and told her to try them on in her room, which she did. The applicant then followed her into the bedroom, telling her that although he liked the underpants, she looked better without them. He removed the underwear and lifted the complainant onto the bed, kissing her a total of three times (uncharged acts). He then took his pants off and lay on top of the complainant, penetrating her vagina with his penis. He moved up and down for a short period of time (approximately two or three minutes) before withdrawing (Charge 6 — sexual penetration of a child under 16 years). The applicant then suggested that the complainant have a shower, which she did. When she exited the bathroom he had left.
On a date between 1 and 22 October 2010, the complainant was at home with her family when she went outside at approximately 3:00am to feed the cat. She met the accused outside, and he suggested that they go for a ride. He drove her to the home of one of his friends at an unknown address, and she waited outside until he let her into the house. The applicant had given the complainant a one-piece black outfit to wear, which she put on. In the house, he began kissing the complainant (uncharged act) before picking her up and walking into a room with a mattress. He undressed the complainant and lay her down on the mattress, before removing his own clothes and lying on top of her. He then penetrated her vagina with his penis, moving up and down for approximately three minutes before withdrawing his penis again and getting off the complainant. He was not wearing a condom (Charge 7 — sexual penetration of a child under 16 years). He then drove the complainant back to her house.
On 1 December 2010, the complainant’s mother (TN) was searching the complainant’s room for some missing money when she came upon a bag in the wardrobe containing four pairs of underwear. They were: one grey g-string, size 16; one pair of hot-pink hipster underpants with an orange coloured waistband, size 14; the red underwear; and the pink underwear with lace. The complainant’s mother recognized all but the red underwear as belonging to her.[2]
[2]There was some suggestion that the red pair of underwear belonged to the sister of the applicant’s mother, who had left them there on a visit.
When the complainant’s mother questioned the complainant about the underwear, the complainant told her that she had been given them by the applicant, and then disclosed the offending to her mother and RS. According to RS’s recollection, the complainant told him that she had had intercourse with the applicant on six occasions.
RS then contacted his sister HS, the applicant’s partner, who came to the complainant’s home and was informed of the disclosures. HS and HS’s mother informed the applicant of the allegations on 2 December 2010. Police had been contacted the day before, and the complainant attended at the police station and took part in a VARE on 3 December 2010. The applicant was arrested the following day. He took part in a taped record of interview in which he denied the allegations and denied giving the complainant any underwear. He provided police with a Buccal swab which was later used in DNA analysis of the underpants.
All four pairs of underwear were examined by police, with traces of semen detected in the grey g-string, the red underwear and the pink underwear with lace. These three pairs of underwear were then sampled for DNA. The applicant’s DNA was detected on the sperm fraction and non-sperm fractions of the samples taken from each of those three pairs. It was extremely likely that the complainant was a contributor to the non-sperm fraction of DNA located on the red underwear, and the pink underwear with lace. TN was excluded as the source of all DNA on all three pairs of underwear sampled.
The complainant said that all of the underwear found in the complainant’s room, in the bag in the wardrobe, had been given to her by the applicant. Photographs of the four pairs of underwear were shown to the complainant. She did not remember the grey g-string pair or the hot pink pair, but stated that the red pair had been given to her at the skate park, several weeks after she was discharged from hospital.
In the VARE, the complainant made reference to an incident where the applicant was outside her house and tapped on her window. When she went outside he grabbed a green/turquoise pair of underwear off the line and told her to try them on. The complainant did not know who they belonged to; she did not own a pair like that. She tried them on standing next to the clothesline, then the accused removed them, picked up the complainant and started kissing her and then had sex with her against a brick wall (uncharged acts).
The application for the admission of tendency evidence
By a notice dated 1 August 2014, the Crown indicated its intention to adduce tendency evidence in relation to the central fact in issue relating to each charge: namely, whether the applicant had inserted his penis into the complainant’s vagina (Charges 1, 6 and 7) or the complainant’s mouth (Charges 4 and 5) on the occasions alleged, whether he had placed the complainant’s hand on his penis (Charge 3), and whether he had touched the complainant’s vagina with his fingers (Charge 2). The tendency sought to be proved was the tendency of the accused:
· to act in a particular way toward the complainant (including to engage in sexual conduct with her and to take advantage of his access to the complainant through their de facto familial relationship); and
· to have a particular state of mind, namely to have a sexual interest in the complainant.
The Crown submitted that each charged act of sexual misconduct, along with each uncharged act (the giving of the green/turquoise underwear to try on, and the giving of adult underwear on four or five occasions and asking the complainant to try them on) would, once established, show that the applicant had the tendencies in question.
The current application
The applicant submits that the evidence of the accused’s semen on the underwear is not relevant to the trial as the prosecution is not in a position to say how or when it came to be there. He notes that the evidence is capable only of establishing that the underwear, which belonged to the complainant’s mother, was accessed by the complainant at some stage which must, it is argued, be considered in the context of evidence from the complainant’s mother that the applicant had expressed a sexual interest in her. It is submitted that inconsistencies in the evidence given by the complainant in a number of the VAREs, including her assertion that the complainant had given her four or five pairs of adult underwear in VARE 3, in ‘the context of other unreliable and demonstrably wrong evidence’, means that the evidence in question could not be said to have any real probative value. Attention is also drawn to the fact that the third VARE, in which the green/turquoise pair of underwear is mentioned for the first time, took place several years after the first VARE and contained other evidence which was objectively wrong, as well as evidence which contradicted that given in the first VARE. This, it is argued, removes any probative value that the third VARE may have.
Before the trial judge, both parties proceeded on a mistaken view of the effect of this Court’s decision in Velkoski v The Queen[3] concerning tendency evidence. The prosecution approached Velkoski as though it had changed the law as to tendency evidence as it relates to multiple complainants but said it had not changed the law with respect to a single complainant. The defence contended that it had altered the law with respect to both a single complainant and multiple complainants. On appeal, Ms Sleeth for the applicant withdrew that contention, acknowledging that Velkoski did not change the law with respect to a single complainant.
[3][2014] VSCA 121 (‘Velkoski’).
Velkoski did not change the law in this State in any respect.[4] In the case of multiple complainants, it identified a common principle that had been consistently applied in this Court in determining whether evidence was capable of supporting tendency reasoning. The authorities considered in Velkoski showed that any differences in outcome were fact specific and the result of the application of the same principle to the facts of each different case. Velkoski said nothing that altered the law with respect to tendency evidence concerning charged and uncharged acts relating to the same or multiple complainants. The trial judge rightly rejected the parties’ submissions that Velkoski had altered the law.
[4]See especially ibid [173].
In the case of a single complainant, it is convenient to refer to the reasoning in JLS v The Queen[5] concerning multiple events of sexual misconduct whether charged or uncharged. There, the only source of evidence was the single complainant herself. The appellant had contended that, because the evidence of the uncharged acts came solely from the complainant, the evidence did not have significant probative value and was not admissible as tendency evidence. The Court rejected that contention, stating:
Evidence by a complainant of uncharged sexual acts by the accused which are not remote in time from the act or acts charged and which are of the same nature as those charged will ordinarily permit probability reasoning that the offence or offences charged are more likely to have occurred. The cogency of evidence that the accused has previously committed sexual acts of a similar nature to the act charged with the same victim and for the same reason, needs no elucidation.[6]
[5](2010) 204 A Crim R 179 (‘JLS’).
[6]Ibid 189 [28].
The appellant in JLS had also contended that the uncharged acts (hugs in a sexual manner and digital penetration) were not the kind particularised (such as rubbing, licking and penetrating the vagina) and could not therefore be acts capable of proving tendency. The Court said:
Tendency evidence given by the complainant may have very considerable probative value even though it is not identical with the acts constituting the offence … Here the evidence of different sexual acts to those particularised on the five occasions had the capacity to show the applicant to have an ongoing sexual interest in the complainant. Such evidence also potentially demonstrated the particular modus operandi by which the applicant gave effect to his ongoing sexual interest.[7]
[7]Ibid 190 [30] (citation omitted).
The applicant sought to distinguish JLS before the trial judge on the basis that the risk of unfair prejudice was not regarded as great in that case because the complainant was the sole source of the tendency evidence. Here, in contrast, it was argued that the probative value of the seminal staining on the underwear is likely to be overestimated and so cause the jury too readily to accept other prosecution evidence and distract the jury from the issues at trial.[8]
[8]Ibid [32].
MR v The Queen[9] also dealt with multiple charges involving a single complainant and different conduct. The prosecution in that case sought to lead evidence that photographs and a video that the accused had taken of his young daughter were admissible as tendency evidence on a further charge of indecent act with a child, with the tendency sought to be led as a sexual interest by the accused in his young daughter. The Court held that the evidence was so admissible with the photographs and the video ‘capable of demonstrating that the accused had a sexual interest in his daughter and was prepared to act upon that interest’.[10] Although the acts in question differed, the Court found that there was a ‘commonality of acts manifesting and pursuing an unnatural interest in [the accused’s] daughter’.[11]
[9][2011] VSCA 39 (‘MR’).
[10]Ibid [140].
[11]Ibid.
The common law has long recognised so-called ‘guilty passion’ evidence — now to be referred to as evidence demonstrating a ‘sexual interest’[12] — consisting of evidence that an accused has acted in a sexual way towards the complainant on one or more occasions as a type of tendency evidence.[13] Such evidence may be admitted to prove that the accused had an improper sexual interest in the complainant and a willingness to express that interest.[14] As was recognised in Velkoski, ‘where all the tendency and charged acts relate to the same victim’, the relationship between an offender and a victim may itself support tendency reasoning.[15]
[12]HML v The Queen (2008) 235 CLR 334 (‘HML’); R v BJC (2005) 13 VR 407.
[13]See HML (2008) 235 CLR 334; R v McKenzie-McHarg (2008) 189 A Crim R 291.
[14]See HML (2008) 235 CLR 334; R v Sadler (2008) 189 A Crim R 310.
[15]Velkoski [2014] VSCA 121, [168].
In cases involving a single complainant, generalised evidence of an accused’s sexual interest in and sexual misbehaviour towards the complainant may have a highly probative value, and may legitimately contribute to an assessment of the probability of the charged acts having occurred. Such evidence is demonstrative of a specific tendency of the applicant to show a sexual interest in and commit sexual offending against a particular victim. The vice identified in Velkoski, in contrast, was the prosecution’s reliance upon an offender’s state of mind to cover the offender’s general sexual interest or predilection in relation to a class of persons.
The judge’s ruling
The trial judge rejected the defence argument that the evidence relied upon by the Crown to establish tendency, particularly that relating to the provision of four or five pairs of underwear to the complainant by the applicant, was rank propensity relating only to a sexual interest in the complainant and was thus not admissible. Her Honour, as I have said, found that Velkoski had not changed the position regarding tendency evidence in Victoria in circumstances where there was only one complainant, and that the principles established in cases relating to single complainants such as JLS,[16] MR,[17] and PCR v The Queen[18] still applied. Her Honour cited Buchanan JA’s remarks in the latter case:
[G]eneralised evidence of sexual attraction and misbehaviour to several persons is in a different category to evidence of sexual attraction and misbehaviour to the same complainant. Evidence of the latter kind has a powerful probative effect.[19]
[16](2010) 204 A Crim R 179.
[17][2011] VSCA 39.
[18](2013) 279 FLR 257.
[19]Ibid 262 [37] (Neave and Priest JJA agreeing).
Her Honour also address the question of whether the acts on which the prosecution relied increased the probability of the applicant having committed the offences charged. She found that, although the contention in the tendency notice that the evidence relating to each of the charged acts was cross-admissible was ‘correct as a matter of technical analysis’, the use of such evidence as a foundation for tendency reasoning in circumstances where the acts related directly to charged acts would make things unduly complicated for the jury. Her Honour concluded:
It is difficult to understand how, if the jury was satisfied as to the charged acts either individually or in total there would be any need for them to engage in tendency reasoning. I would not allow the tendency evidence in items 1 to 6 [those relating to charged acts] to be used for a tendency purpose.
As regards the evidence of the uncharged acts, however — which comprise items 7 and 8 on the schedule in the tendency notice, referring to the applicant giving the complainant a pair of green/turquoise underwear to try on before taking them off and having sex with her, and the applicant giving her four or five pairs of adult underwear to try on — the trial judge found that the evidence could, if accepted by the jury, provide the foundation for tendency reasoning in relation to the charged acts. The presence of the DNA on the underwear provided a link between the applicant and the underwear in circumstances where he had denied giving the underwear to the complainant in the context of the evidence regarding the finding of the underwear in the complainant’s bedroom. Her Honour did not consider that any question of unreliability so affected its probative value to the extent that it would not be admissible under s 97 of the Evidence Act 2008.
Finally, her Honour found that although she was satisfied that the DNA underwear evidence was admissible for tendency purposes, it would be premature to decide whether it was admissible as direct or circumstantial evidence. That matter was to be reconsidered after the special hearing or at the close of evidence if counsel so chose.
Analysis
The primary arguments before the trial judge and in this Court were that as the Crown cannot establish how the semen came to be on the underwear and as the complainant has not given a consistent account as to the circumstances in which the applicant came to give her each item, the DNA evidence was irrelevant, or alternatively should in any event have been excluded in the exercise of the judge’s discretion pursuant to s 101. Those contentions are, in my view, unsustainable.
During the course of oral argument, Ms Sleeth, who appeared for the applicant, advanced an alternative argument that any link of the underwear to the applicant provided by the DNA was so prejudicial as to warrant its exclusion because it rendered more likely that sexual activity occurred when the complainant had given no evidence at any time that she wore any of the underwear after penile intercourse had occurred. This argument overlooks the fact that the jury may not accept the complainant’s account in its entirety. They may conclude, contrary to her recollection, that she did put on the underwear after intercourse or that by some other means, the applicant’s DNA came to be on the relevant piece of underwear as a consequence of that intercourse.
The absence of evidence from the complainant as to how the seminal stains came to be on the underwear does not render the DNA evidence irrelevant. It may be that in cross-examination or by other evidence adduced, some innocent explanation for the presence of that DNA may emerge. But the seminal DNA evidence may, depending upon the state of the evidence, permit an inference that the underwear was at some point in the applicant’s possession or that he engaged in penile sexual activity with the complainant at or about the time she wore that underwear, or at a time when the underwear was proximate to the applicant and complainant at the time of or shortly after the act of intercourse. There may be direct evidence which the jury could accept that particular items of underwear were used at the time of a charged act. The discovery of the underwear in the complainant’s wardrobe would support reasoning that the applicant is implicated in sexual activity with the complainant. The potential cogency of such circumstantial reasoning is not diminished because the DNA evidence does not establish that the semen was necessarily placed there during a charge or uncharged sexual activity between the applicant and the complainant.
The prosecution referred to the features enumerated in Velkoski which may be relied upon in assessing tendency: the number of occasions on which the alleged sexual misconduct relied upon occurred; the time gap between those occasions; the degree of similarity between the conduct on each occasion; and the degree of similarity between the circumstances in which the conduct took place.[20] It was submitted that an analysis of the circumstances at hand in accordance with these categories led to the conclusion that the totality of the evidence had the capacity to demonstrate that the applicant had an ongoing sexual interest in the complainant and engaged in ongoing acts of sexual misconduct with her. This in turn made it more probable that he committed the charged acts with the DNA evidence on the underwear tending to support the tendency in question.
[20]Velkoski [2014] VSCA 121, [166].
Any evidence of a sexual interest by an accused in an individual complainant demonstrated by a charged or an uncharged act or other conduct[21] may be relevant to other charges of sexual offending against the same complainant. Leaving to one side the issue of the complainant’s reliability, a matter which the trial judge intends to address after the special hearing, the factors identified above from Velkoski, which are relevant to the assessment of the tendency evidence, provide ample grounds for the trial judge’s conclusion that from the evidence sought to be admitted, the jury could infer that the applicant had a sexual interest in the complainant and a willingness to act upon that interest.
[21]R v EF (2008) 189 A Crim R 463; R v McKenzie-McHarg (2008) 189 A Crim R 291.
The prosecution relied on the similarities in the conduct in question, the primary similarity being that each act of sexual contact involved the same complainant, thereby demonstrating a particular ongoing sexual interest in the complainant. In such circumstances, the relationship is a relevant operative factor. The alleged sexual misconduct is said to have occurred on eight different occasions (Charges 1–7 and an uncharged act of sexual penetration). Further, six of the eight incidents allege vaginal contact; six involve penile penetration of the complainant; and on each of the four occasions on which it is alleged that penile vaginal penetration took place, the applicant allegedly brought adult women’s underwear for the complainant to try on before asking her to remove them prior to engaging in the penetration. There was also some level of similarity in the circumstances in which the conduct took place (a category which contains some conceptual overlap with the category of similar conduct). Each piece of tendency evidence involved the same complainant; each involved the applicant having access to the complainant through family connection; and six of the eight occasions allegedly took place at the complainant’s home when nobody else was present. The totality of the tendency evident is capable, in my view, of demonstrating an ongoing sexual interest in the complainant. As such, it could enhance the probability of the charged acts having occurred.
The trial judge deferred consideration of the question of whether the evidence should also be allowed as ‘direct’ or ‘circumstantial’ evidence of the applicant’s guilt on particular charges. The challenged evidence is not direct proof of any charged acts. Subject to the trial judge’s view of the reliability of the complainant, her evidence may connect a particular piece of underwear to a particular charged act in which case that evidence has the potential to acquire additional probative value. It would then be circumstantial evidence that tends in a more particular way to support the commission of a particular charged act.
The written submissions suggest that the inconsistencies with regard to the underwear in the complainant’s VAREs, and which took place over a period of several years, render the content of the later VARE of no probative value. VAREs involving child complainants, which are conducted at intervals of years, will frequently contain such inconsistencies and the reasons for that may be many and various.[22] These matters are ordinarily dealt with in the context of the trial. Issues of reliability remain predominantly within the province of the jury who are generally capable of evaluating the relevant issues with the benefit of correct judicial instruction. If the trial judge concludes that the complainant’s reliability is of such an order or nature as to doubt the jury’s ability to comprehend its infirmities despite proper judicial instruction, thereby creating an unfair prejudice that the evidence of the DNA may be given more weight than it should, then the evidence should be excluded.[23]
[22]Martin v The Queen [2013] VSCA 377.
[23]Dupas v The Queen (2012) 218 A Crim R 507, 524–5 [63]; Velkoski [2014] VSCA 121, [179].
The trial judge ruled that the evidence of the acts the subject of each charge was not to be treated as tendency evidence as it would complicate the jury’s task. I very much doubt that her Honour was ruling that such evidence lacked the necessary quality to be tendency evidence. That would have been an error as there is no logical basis for treating tendency reasoning in relation to the charged acts differently from tendency reasoning in relation to the uncharged or other acts. Rather, it appears that her Honour thought firstly that it would complicate the jury’s task and, secondly, that if one or more charges were proved to the jury’s satisfaction, there would be no need for the jury to engage in tendency reasoning. It is, of course, open to a trial judge to decline to direct a jury that evidence which has a cogent probative value not be so used. That power is necessary so that the trial judge can ensure a fair trial. But there must be some foundation for the decision to deny a party the use of such admissible evidence. There was no discernible impermissible prejudice suggested in the evidence of a charged act, as distinct from the potential inculpatory consequences of its proper use,[24] which might have enlivened exclusionary provisions such as ss 101 or 137.
[24]Festa v The Queen (2001) 208 CLR 593, 602–3 [22] (Gleeson CJ).
It is not uncommon for a trial judge to give both a conventional direction that the jury must separately consider the evidence on each charge and a tendency direction as to charged acts. Such a direction was the subject of consideration in Versi v The Queen[25] where Adams J (Basten JA and Latham J agreeing) said:
The tendency identified as available following proof of one or more of the counts was that the applicant had a sexual interest in the complainant and was willing to act upon it. The judge warned the jury that this was the only way in which a finding of guilt could be used. (This was rather favourable to the applicant, since the jury were also entitled to draw adverse findings as to honesty in respect of the applicant and, at least, as to reliability in respect of Mrs Versi, if they found the applicant guilty of one or more of the charges.) His Honour warned the jury that they were not to substitute or replace the evidence of the other acts which they found were committed for the evidence of the specific charges and emphasised that the jury must not reason that because the accused had committed one offence or more on another occasion, even if that is an occasion for which he had been charged, he must have done so in respect of the particular charge under consideration. Certainly, the global way in which the trial judge dealt with the consequences of a guilty finding on one charge for the other charges did not make for clarity. It is obvious that one would only need to consider tendency where there was an outstanding charge under consideration. I am quite satisfied that the jury would have understood this. Again, no application was made for any redirection by Mr Odgers for the applicant. I am satisfied that there was no material misdirection and certainly no miscarriage arose from it.[26]
[25][2013] NSWCCA 206 (‘Versi’).
[26]Ibid [143].
A tendency direction as to charged acts permits the jury to reason that satisfaction that the offender has committed a sexual act the subject of one charge could reveal a sexual interest in the complainant upon which the offender was willing to act which increased the likelihood of the occurrence of another sexual act with the same complainant, the subject of another charge. To that effect, Adams J also observed in Versi:
If it were correct (and it must be) that a determination of the applicant’s guilt of any one, two, or three of the counts in the indictment established that the applicant had a sexual interest in the complainant, then that evidence could be used as supporting the Crown case on the remaining count or counts as one of the circumstantial facts which the jury was entitled to take into account. Of course, merely because a person has a sexual interest in a child does not mean that that person has committed some sexual misconduct in relation to the child but it is, nevertheless, a fact able to be taken into account. (This, of course, is tendency evidence; I will come to the applicant’s complaint about the directions in this regard shortly.) Furthermore, the guilt of the applicant in respect of count 2 (or, for that matter, of the other counts) necessarily involved satisfaction beyond reasonable doubt that he was lying (at, in all likelihood, that his wife’s evidence was unreliable) in respect of that offence and the jury would be entitled to use that finding in considering the other counts.[27]
[27]Ibid [128].
The High Court refused special leave in Versi, stating that it had not been demonstrated, having regard to the appropriate use of tendency reasoning from a finding of one count to a finding on another, that there was a danger of unfair prejudice giving rise to a miscarriage of justice.[28]
[28]Transcript of Proceedings, Versi v The Queen[2014] HCATrans 163 (14 August 2014).
Once the jury has been given a direction as to why tendency evidence could assist their reasoning, they would undoubtedly be mystified by a direction that if they are satisfied as to one charged act, they could not use the evidence in support of that charge to support tendency reasoning. The complainant’s evidence may be that a number of the items of underwear provided by the applicant are connected to particular charged acts. If some of that underwear has seminal stains linked to the
applicant, a jury might consider the pieces of evidence in combination to have a particular cogency. With respect, it is simply not possible to say whether a jury, once satisfied that one charge has been proved, may have no need to engage in tendency reasoning in order to be satisfied as to other charges.
Following the special hearing, the trial judge will have the opportunity to further consider the matters addressed in this appeal.
Accordingly, I would refuse the application for leave to appeal.
TATE JA:
I agree with the learned presiding judge.
PRIEST JA:
I also agree.
- - - - -
4
14
0