GGG v YYY

[2011] VSC 365

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2814 of 2010

GGG	Plaintiff
v
YYY	Defendant

---

JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2011
DATE OF RULING:	2 August 2011
CASE MAY BE CITED AS:	GGG v YYY
MEDIUM NEUTRAL CITATION:	[2011] VSC 365

---

EVIDENCE – Tendency evidence – Where plaintiff alleges sexual abuse by uncle – Preliminary objection to admission of evidence of abuse of plaintiff’s two brothers – Whether significant probative value – Where sufficient common pattern – Where some evidence sought to be led also hearsay evidence – Sufficient common pattern unable to be identified or established in hearsay evidence – Evidence Act 2008 s 97, 135.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC with Ms B Knoester	Holding Redlich
For the Defendant	Mr J Ruskin QC with Ms A Magee	Rigby Cooke

HIS HONOUR: 

1. The plaintiff is a 44 year old man who alleges he was sexually abused by his uncle between 1976 and 1980.  The defendant denies the abuse occurred. 

1. I propose first to grant leave to amend the statement of claim in the terms discussed at the conclusion of yesterday's hearing.  Those amendments will make clear that prior to the incident at the Ambassador Hotel in December 1979, the incidents of sexual penetration which the plaintiff alleges are incidents of digital penetration.  The incident at the Ambassador Hotel involved acts which included ‘partial’ penile penetration of the plaintiff's anus. 

1. The plaintiff's statement of claim includes allegations that the defendant at a series of locations and at different times: 

(a)       touched and rubbed the plaintiff's genitals;

(b)      masturbated the plaintiff; and

(c)       penetrated the plaintiff's anus with his finger.

1. It is specifically alleged that the defendant between March 1976 and December 1979 frequently attended the plaintiff's home, entered the plaintiff's bedroom where he masturbated the plaintiff and penetrated the plaintiff's anus with his finger. 

1. It is further specifically alleged that between the same dates the defendant took the plaintiff driving in the defendant's car on a regular basis and among other things masturbated the plaintiff and penetrated the plaintiff's anus with his finger. 

1. It is further alleged that in December 1979 the defendant took the plaintiff to the Ambassador Hotel, Ballarat, where a series of sexual acts occurred, accompanied by force, including partial penile penetration of the plaintiff's anus and digital penetration of the plaintiff's anus. 

1. The plaintiff has filed and served notices of intention to call tendency evidence from his brother RA, as well as AH and JH. 

1. The evidence sought to be adduced from RA is of conduct which is alleged to have occurred in 1968 when RA was approximately nine years of age.  The defendant was at RA's home. RA's parents were not at home. The defendant entered RA's bedroom and started to touch RA inappropriately, including touching around RA's genitals. 

1. The evidence sought to be adduced from AH is of an indecent assault of the plaintiff's brother NA, now deceased, which AH witnessed in 1975.  The indecent assault took place in a vehicle owned by the defendant, AH and NA were in the back seat of the vehicle and the defendant was in the front seat.  The defendant touched NA's genitals and placed his hand up the leg of NA's shorts. 

1. The evidence proposed to be called from JH is that on numerous occasions commencing in 1981, NA told her that he had been raped by the defendant.  The conversations took place at a bakery operated by JH and at her former home. 

1. The tendency notices allege that the matters asserted prove the defendant had a tendency to:

(a)       act in a particular way, namely:

·     to be sexually attracted to young males under the age of 16; and

·     to act upon a sexual attraction to young males under the age of 16; and

·     to commit indecent acts on young males under the age of 16; and

·     that the acts before the Court were not isolated incidents.

(b)      have a particular state of mind, namely a sexual interest in two brothers when both were under the age of 16 and the defendant was willing to act on this sexual interest.

(c)       Alternatively, have a particular state of mind, namely a sexual interest in three brothers when each was under the age of 16 and the defendant was willing to act on this sexual interest. 

1. The defendant has, at the outset of the trial, made preliminary objection to the evidence foreshadowed in the notices.

1. Section 97 of the Evidence Act 2008 (‘the Act’) states:

(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)       Subsection (1)(a) does not apply if—

(a)the evidence is adduced in accordance with any directions made by the court under section 100; or

(b)the evidence is adduced to explain or contradict tendency evidence adduced by another party.

Note

The tendency rule is subject to specific exceptions concerning character of and expert opinion about an accused (sections 110 and 111).  Other provisions of this Act, or of other laws, may operate as further exceptions.

1. ‘Probative value’ is defined in the dictionary to the Act to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.

1. In JLS v R,[1] the Court of Appeal at [18] adopted the view taken by New South Wales authority that ‘significant probative value’ means:

Its degree of relevance to the events giving rise to the offence charged is important or of consequence.

[1][2010] VSCA 209.

1. In GBF v R,[2] the Court of Appeal stated at [25]-[26] that:

25… Tendency evidence has probative value if it can rationally affect the assessment of the probability of the existence of a fact in issue  and it has significant probative value if it has a significant important or substantial degree of relevance, having regard to the nature of the fact in issue. 

26Whether tendency evidence has significant probative value depends on the nature of the tendency.  For example, evidence that an accused had a sexual interest in a complainant might be significantly probative of an allegation that he committed a sexual offence against that complainant.  But, without more, it would not be significantly if at all probative that he committed a sexual offence against someone other than the complainant.[3] 

[2][2010] VSCA 135.

[3]Ibid, [25]-[26] (citations omitted).

1. In CGL v DPP,[4] the Court of Appeal stated, again in the context of a criminal trial that:

As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has ‘significant’ probative value and — even more so — to demonstrate that its probative value ‘substantially outweighs’ the very real prejudicial effect of evidence of this kind.[5]

[4](2010) 24 VR 486.

[5]Ibid, 497.

1. In the present case I do not have the benefit of depositions nor have I yet heard the evidence from the plaintiff.  Nevertheless, the plaintiff's case raises allegations which have the following features in common with the foreshadowed evidence from his brother RH, and AH:

·     acts of touching and rubbing of the genital area;

·     in the case of the plaintiff and RH in the bedroom at their home;

·     in the case of the plaintiff and NA (as observed by AH) in the defendant’s car;

·     when the victims were under 16;

·     and nephews of the defendant;

·     in circumstances where he had access to them by reason of this relationship; and

·     they were alone or expected by the defendant to be alone.

1. I accept that as Mr Ruskin submits, this is not tendency evidence with respect to the same complainant.  Further, there is a significant spread of time between the alleged incident involving RH and the incident allegedly observed by AH.  Nevertheless, in my view there is a sufficient common pattern[6] to render the evidence potentially evidence of significant probative value.  It is a pattern of remarkable and unusual behaviour in the language of the Court of Appeal in the case of GBF to which I was referred.  I would admit the evidence of RH and of AH subject to the defendant's right to reopen his objection at the conclusion of the plaintiff's case. 

   [6]Cf the observations of Winneke P in R v Papamitriou (2004) 7 VR 375, 390 [31] concerning propensity evidence.

1. Section 97(1)(b) specifically refers to the potential relevance of other evidence to be adduced by the party seeking to adduce the tendency evidence. It may be that the objection assumes a different complexion when the plaintiff's case is completed and, in my view, the just course is to leave the possibility of further objection explicitly open.

1. In reaching my conclusion as to the question of significant probative value I have had regard to the fact that this is a civil matter to be determined on the balance of probabilities.  The strength of the evidence necessary to establish a fact on the balance of probabilities will vary according to the nature of what is sought to be proved.[7]  Nevertheless, it seems to me that the evidence is of potentially significant probative value in determining whether the plaintiff's evidence as to the course of the defendant's conduct should be accepted.  At para 97.17 of the textbook The New Law of Evidence: Annotation and Commentary on the Uniform Evidence Act, the authors suggest a number of factors that may ultimately be relevant to assessing probative value: 

   [7]Briginshaw v Briginshaw (1938) 60 CLR 336, 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 110 ALR 449.

·     the other evidence that has been or will be adduced;

·     whether the tendency evidence is disputed.  For example, where the evidence is insufficiently cogent because there is a real chance that the complainants collaborated to concoct allegations of sexual assault.

·     whether the tendency evidence goes to a critical fact in the prosecution case, in which case the probative value may need to be higher to be significant;

·     when the other conduct occurred.  For example, it may be that in general the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity;

·     the number of incidents establishing the tendency;

·     the degree of similarity between other incidents and also between the other incident/s and the subject event;

·     whether the evidence discloses unusual features, an underlying unity, system or pattern;

·     the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue had occurred; and

·     the onus and standard of proof on the party adducing the evidence.[8]

[8]Jill Anderson, Neil Williams SC, Louise Clegg, The New Law of Evidence:  Annotation and Commentary on the Uniform Evidence Act, (2009, 2^nd ed) 381-382 (footnotes omitted).

1. It can be seen that the ultimate judgment which the court must make under s 97 of the Act is one of fact and degree and may involve multi-faceted matters. As I have said, the admission of the evidence must, in my view, remain open to a right of further objection once the plaintiff's case is completed. The underlying reason for this is that the matrix of fact in which the court must form its opinion may change.

1. I turn then to the proposed evidence from JH.  That evidence is hearsay which does not state the date or dates, place or places, nature or natures of the rapes complained of by NA.

1. Further, although the other tendency evidence, viewed in the context of the plaintiff's case as a whole, might be said to show a continuing pattern of behaviour and modus operandi, the plaintiff's case is one of a single incident of penile penetration (which was not expressly pleaded until yesterday).  In turn, complaints by NA of ‘rape’ may be understood to relate to behaviour of a different nature and arguably greater culpability than the majority of the serial behaviours of which the plaintiff otherwise complains.

1. It may be that a final judgment as to the admissibility of the evidence of JH in terms of s 97 cannot strictly be made at this point in the trial. Nevertheless, in my view, the evidence should be excluded pursuant to s 135 of the Act. Its probative value is inherently weak. It is hearsay of a generalised sort relating to another alleged victim expressed in terms which do not permit detailed aspects of commonality with the facts in issue to be identified. Further, it is not susceptible of clarification or meaningful challenge because of the death of NA. Lastly, it relates to events of many years ago and is put forward when the defendant is now himself 81 years old. This context confirms what the factors first mentioned demonstrate namely that the probative value of the evidence would be substantially outweighed by the danger that the evidence may be unfairly prejudicial to the defendant.

1. I accept Mr Tobin's submission that the test under s 135 differs from that under s 137 but nevertheless the evidence here in issue does not meet that test.