Green (a pseudonym) v The Queen
[2015] VSCA 279
•19 October 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0073
| KARL GREEN (A PSEUDONYM)[1] | Applicant |
| V | |
| THE QUEEN | 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.
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| JUDGES: | REDLICH, KAYE JJA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 October 2015 |
| DATE OF JUDGMENT: | 19 October 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 279 |
| JUDGMENT APPEALED FROM: | DPP v [Green] (Unreported, County Court of Victoria, Judge Mullaly, 11 December 2014 (conviction)) |
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CRIMINAL LAW – Appeal – Conviction – Incest, indecent assault, indecent act with a child – Whether judge erred in not permitting tender into evidence of letter written by complainant – Whether letter relevant – Whether tone of letter sufficient to permit tender at trial – Whether disclosure of content of letter would contravene prohibition against questions concerning complainant’s sexual activities pursuant to section 342 of the Criminal Procedure Act 2009 – Evidence to be adduced must have capacity to rationally affect or bear on probabilities of a fact in issue – Whether judge gave correct directions to jury in relation to standard of proof applicable specific uncharged acts – R v Sadler (2008) 20 VR 69 – Leave to appeal refused – Evidence Act 2008 (Vic) s 55.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Randazzo SC | Doogue O’Brien George |
| For the Crown | Mr B F Kissane QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
KAYE JA
BEALE AJA:
The applicant was convicted, by the jury empanelled on his trial, of four charges of sexual offences committed against his then stepdaughter, AM, between 2000 and 2009. Following a plea, he was sentenced to a total effective term of 5 years and 2 months’ imprisonment, with a minimum non-parole period of 3 years and 4 months’ imprisonment.
The charges, on which the applicant was convicted, were:
Charge 1:Incest between 24 February 2002 and 26 February 2002 contrary to s 44(1) of the Crimes Act 1958.
Charge 2:Indecent act with a child between 27 August 2004 and 26 August 2006 contrary to s 47(1) of the Crimes Act.
Charge 3:Indecent assault between 1 January 2009 and 31 December 2009 contrary to s 39(1) of the Crimes Act.
Charge 4:Indecent assault between 27 August 2009 and 31 December 2009 contrary to s 39(1) of the Crimes Act.
The applicant seeks leave to appeal against his conviction on two grounds:
(1)The judge erred in not permitting the cross-examination of the complainant and tender of an entire letter written by the complainant in 2008 at the commencement of Year 11.
(2)The judge erred in not directing the jury that they should be satisfied beyond reasonable doubt as to events alleged to have occurred in Tasmania and Queensland, before they could rely on those acts on proof of the charged acts.
Background
The applicant married AM’s mother in 1995, and was stepfather to AM (who was born in 1991) until the couple separated in 2011. AM gave evidence that, in addition to the four charged acts, the applicant sexually abused her when she was between the age of 8 years and the age of 18 or 19 years (2000 to 2009) on a daily basis. In addition, the applicant also gave evidence of offending against her by the applicant during a family trip to Tasmania in 2003 (when she was aged 11 to 12 years) and during a family trip to Queensland in 2005 (when she was 14 years of age). The prosecution led that evidence as context to the charged acts.
The principal witness for the prosecution was AM. In addition, the prosecution called six other witnesses. The applicant did not give evidence or call any witnesses on his behalf.
The evidence of AM
AM gave evidence that her parents separated when she was approximately 18 months old. A short time later, her mother met and married the applicant. They lived together as a family. Two further children were born of that relationship, her sisters BM and CM. When AM was six years of age, the family moved house, where she lived with them until the age of 18 years.
The complainant then gave evidence concerning the offence constituting charge 1. On the day of the christening of her sister CM, her other sister, BM, suffered an asthma attack. AM’s mother took her to hospital, leaving AM at home with the applicant. AM was permitted to stay up late to watch a movie on television. On her way to bed, the applicant pushed her against a stair banister, put his hand down the front of her pyjama pants and into her underwear, and began rubbing her vagina before penetrating her with his finger. While the applicant did this, he told AM to open her legs. He said that it was his reward and he deserved it. The touching lasted for a while. AM did not say anything during the incident, because she was scared and did not understand what was happening.
AM then gave evidence concerning the uncharged incident in Tasmania. In 2003, when AM was in Grade 6, she travelled to Tasmania with her mother, her sister BM and the applicant for Melbourne Cup weekend. AM’s mother suffered a seizure while the family was on a walk, as a result of which she was hospitalised for a few days. One night, AM and BM stayed at a hotel with the applicant. On that night, the applicant came to AM’s bed while she was asleep on her stomach. She said that she slept in that position because it made it more difficult for the applicant to touch her. He put his hands under the covers, and began rubbing her back, before putting his hands under the bottom of her pyjama pants, and rubbing her vagina. The applicant did not say anything, and afterwards he went back to his bed.
The next incident was the uncharged act that occurred in Queensland. In 2005, AM travelled to Queensland with her family for a holiday. They stayed in a hotel. AM and BM shared a bedroom. On one night, BM decided to sleep on the sofa bed, leaving AM sleeping in their room alone. The applicant entered the room early in the morning. AM was again sleeping on her stomach. She pretended to remain asleep, and the applicant began to rub her back. AM tried to push the applicant’s hands away, while still pretending to be asleep, but he continued to put his hands down her pyjama pants, past her bottom, and around her vagina, which he began to rub. The applicant eventually desisted, and left the room.
AM stated that she did not tell anyone about the above incidents with the applicant, because she was scared of him, and she was concerned about how her mother would deal with it. She said that the applicant was extremely intimidating to live with, and she felt that she was always ‘walking on egg shells’ to avoid provoking his temper.
The next incident constituted charge 2. That occurred when AM was 13 or 14 years of age. On that occasion, she left the bathroom after having had a shower, with a towel around her. While she was drying herself in front of the floor-length mirror in her room, she noticed the applicant lying under her bed with a camera. AM screamed at the applicant to get out. He told her that it was her fault, because she took too long in the shower. The applicant then left the room. AM continued to get ready for school, and the applicant drove BM and her to school. Their mother had already left earlier in the morning for work.
AM gave evidence that, during her high school years, she would catch the applicant watching her while she was in the shower through a crack in the door. There were two doors to the bathroom, one of which opened to the master bedroom where the applicant and AM’s mother slept, while the other door opened to the rest of the house. The applicant would watch her through the door which led to the master bedroom. At times he would react to being seen by AM by shutting the door. On other occasions, he would tell AM that he was checking to make sure that she was washing herself properly.
The incident constituting charge 3 occurred when AM was in Year 10. On that occasion, AM was in her bedroom lying on her stomach asleep. The applicant entered her bedroom, knelt by the door and began rubbing her back under her pyjamas. AM tried to push his hands away, but the applicant continued to touch her. AM then reached over and grabbed a hockey stick which she had next to her bed, and swung it at the applicant, trying to hit him on the head. She thought she hit him, but she was unsure. The applicant reacted by making a funny noise. AM took the hockey stick and locked herself in the bathroom. While she was there, she could hear the applicant walking around. If he got too close to the bathroom, AM would bang the hockey stick hard on the tiles and she could hear him walking away a bit. Eventually she came out of the bathroom and went back to bed.
The incident constituting charge 4 occurred in 2009, when AM was in Year 12 at school. On that occasion, she was video chatting in her room with her boyfriend at the time, JA. They would often video chat with each other, using the video function but chatting by typing. On this occasion, AM was topless, wearing only her underpants. At some stage the applicant barged into her room. She screamed at him to leave, and he left immediately. She then put on a tee-shirt. The applicant knocked on her door and sat on her bed. He discussed with her the dangers of being semi-naked on the internet. AM asked the applicant why he did the things he used to do to her. The applicant responded by looking sad, shaking his head and giving a shrug. AM told him that she forgave him, not for him, but for herself and her mother’s sake. They hugged and the applicant left the room. That was the first occasion upon which they discussed the incidents.
On the next morning, AM was lying on her stomach, half asleep, when the applicant entered her bedroom, knelt next to the bed, and put his hands under the blanket and under her pyjamas. He started to try to rub her back again. AM tried to push him away. The applicant would not desist, so AM grabbed a Stanley knife that she kept under her pillow, and hit him with the blunt end of it on the head. The applicant fell backwards and made a funny sound. AM did not remember what happened after that.
AM was cross-examined in some detail about each of the incidents that she had described in her evidence in chief. She was cross-examined about the fact that she did not make any complaint to her mother or her sister following those incidents. She was also cross-examined about her feelings towards the applicant, and in particular, about her powerful hatred of him.
In the course of that cross-examination, counsel for the applicant sought to introduce two letters, which AM had written to herself, and in each of which she had expressed strong animosity towards the applicant. The first, undated letter, was admitted as an exhibit in evidence. In circumstances that I shall shortly describe while dealing with ground 1 of the application, the judge ruled that counsel not be permitted to introduce the second letter, dated 6 February 2009, into evidence. However, his Honour permitted cross-examination on those parts of it in which AM expressed her animosity towards the applicant.
In the course of that cross-examination, AM agreed that, in the second letter, she had strongly criticised the applicant, and stated that she hated him. She also agreed that despite expressing her hatred of him, she did not say anything in that letter, or in the undated letter that was tendered in evidence, about the fact that the applicant had sexually abused her. She said that she had written other letters, which she had destroyed, in which she had stated that she hated the applicant because he had abused her. In re-examination, AM said that she had destroyed those letters, because she did not want her mother to see them. She said that the main reason she hated the applicant was because he had sexually assaulted her.
AM stated that when she was about 13 or 14 years of age she told a friend, RM, that she had been sexually abused. RM asked her if it was her stepfather, and AM responded ‘no’. She said that she responded to RM in that way, because she did not want to tell anyone who was abusing her at that time. Subsequently, after the incident that constituted charge four, she told her boyfriend, JA, what had happened after the video chat. In addition, in 2010, she told a friend, SM, that the applicant had sexually abused her while she was growing up. SM persuaded AM to consult a counsellor at Headspace, which she did.
RM, JA and SM each gave evidence as to what AM told them on those occasions.
Ground 1
The letter dated 6 February 2008 was written by AM to herself. She commenced by expressing her warm affection for her then boyfriend. She stated that she loved her family, although they were sometimes annoying, but that she hated the applicant. AM then discussed her feelings towards each member of her family, including her siblings, her mother and her father. She said of the applicant, ‘I hate [Karl Green]. That will never change’.
Later in the letter she said:
Life at home is frustrating. [Karl] helped me with maths but I don’t think he’ll keep helping me, he never finishes anything. He walks around, plays that stupid game, thinks he’s top shit and nothing else on his days off. When he’s at work it’s heaps better.
AM then continued the discussion of other members of her family. The letter contained her personal thoughts and hopes for her relationship with her then boyfriend, including whether she would engage in sexual activity with him.
Shortly after the commencement of the cross-examination of AM, counsel for the applicant informed the judge that she had shown the two letters (including the letter of 6 February) to the prosecutor, and that she wished copies of them to be shown to AM, who was giving her evidence from another location. Counsel provided a copy of the letters to the judge. Having read them, his Honour expressed concerns about the letter dated 6 February. He questioned counsel as to why she sought to adduce that letter in evidence. In the course of discussion at that stage, and submissions that subsequently followed, counsel for the applicant stated that she wished to have the letter tendered for two reasons. First, it contained expressions of hatred by AM towards the applicant at the time of the alleged events, but it did not contain any reference to any sexual abuse of her by the applicant. Secondly, it was submitted that the jury should be able to read the letter, because the tenor of it, and the manner in which it was written, were inconsistent with a person who had been sexually assaulted and abused by the applicant repeatedly over a number of years.
Having heard those submissions, the judge ruled that counsel not be permitted to tender the letter in evidence. The judge noted that the parts of the letter, in which AM expressed her sexual feelings towards her boyfriend, did not strictly fit within s 342 of the Criminal Procedure Act 2009, but he considered that the tender of the letter, containing those expressions, would not be consistent with the intended purpose of those provisions. The judge stated that he was not persuaded that that part of the letter was relevant. His Honour ruled that therefore it was not to be tendered in evidence, nor to be the subject of cross-examination of AM. The judge ruled that counsel for the applicant would be entitled to ‘utilise’ the parts of the letter that indicated that by 6 February 2008 AM hated the applicant. His Honour was concerned that if the letter was tendered in evidence in a redacted form, the jury might indulge in speculation concerning the redacted parts in a manner that was adverse to the interest of the applicant. He considered that the probative value of the letter, in any event, was slight, but that if it were tendered, in a redacted form it would distract the jury. The judge concluded his ruling by stating:
That part of the evidence is not admissible and I expect (the) cross-examiner … will be able to deal with the rest of it in the appropriate way without the document being put to the witness or put before the jury which I rule is not to occur.
After hearing the ruling, counsel for the applicant sought some clarification as to how she might be permitted to cross-examine in relation to the contents of the letter. The judge indicated that it would be not necessary to put the letter into the hands of AM, and then stated:
You might be able to say … you have — you wrote or you articulated yourself in similar terms of where you wrote — where you would write down that you hated him and you liked your family and he didn’t help with maths. Whatever you want.
Counsel then continued to cross-examine AM concerning the alleged offences. Having done so, she then told AM that she wanted to ask her questions about ‘a letter that you wrote to yourself dated 6 February 2008’. Counsel proceeded to put to AM the first paragraph of the letter. Upon that question being asked, the judge then asked the jury to leave the court, and had a discussion with counsel.
In that discussion, the judge sought to clarify with counsel for the applicant as to how she might use the contents of the letter. The judge indicated that counsel was not entitled to refer to the letter, but that she could refer to ‘those things that have already been canvassed’ in a general way by asking the witness if she wrote letters to herself, and asking her about the contents of those letters. The judge then canvassed with counsel the questions that she wished to ask AM arising out of the contents of the letter of 6 February. Counsel responded by pointing to the part of the letter in which she indicated that life at home was frustrating, and that the applicant had helped her with mathematics. She also indicated that she wished to put to the witness the last paragraph of the letter, in which AM had said:
Be happy, if things have changed either for better or worse, they were meant to and you can still fix things or make things better for yourself.
The judge expressed concern as to whether, in that passage in the letter, AM was referring to her relationship with her then boyfriend. As a result, counsel cross-examined AM on a voir dire, in which AM stated that, by that last paragraph in her letter, she was referring generally about her life, and not to her boyfriend specifically.
The judge then asked counsel as to what parts of the letter she wished to raise with AM, to which counsel responded ‘just those ones, your Honour’.
When the jury returned, in further cross-examination, AM agreed that she wrote letters in which she said things like that she hated the applicant and that would never change. She said that she did not say anything about the applicant abusing her in ‘that letter’. She agreed that she wrote the last paragraph of the letter, and she agreed that that paragraph indicated how she felt in February 2008. Following that line of questioning, counsel then cross-examined AM about the contents of the undated letter, which became tendered in evidence.
In submissions before us, it was contended that the judge erred in not permitting the tender of the second letter, and in disallowing more complete cross-examination as to its content. In particular, it was submitted that, by his ruling, the judge precluded the applicant from having the opportunity to contend to the jury that the ‘tenor’ and the ‘lightness’ of the letter was inconsistent with the allegations by AM of daily and prolonged sexual abuse of her by the applicant over many years, including at the time that AM wrote the letter. In the course of submissions before us, counsel modified that contention by submitting that the entire contents of the letter were admissible, because the expressions in it, indicating that AM was happy with her family environment, were inconsistent with the feelings of a young teenager who had been traumatised by continuous sexual abuse at the hands of her stepfather.
In response, counsel for the respondent submitted that the parts in the letter, that related to AM’s boyfriend, and to AM’s thoughts about having sex with him, were irrelevant. Counsel submitted that, otherwise, the judge, by his ruling, did not prohibit counsel for the applicant from cross-examining on any other matter that was contained in the letter. In particular, counsel was entitled to cross-examine AM about her feelings about her family, and also that her feelings of antipathy towards the applicant. It was further contended that it was open to the judge to consider that the basis for tendering the letter relied on by the applicant, namely, that it disclosed a ‘tenor of lightness’, was not a sufficient ground to permit the tender of the whole of the letter, in circumstances in which it contained immaterial content.
Section 55 of the Evidence Act 2008 defines relevance in terms of evidence that could rationally affect the probabilities of a fact in issue, either ‘directly or indirectly’. The broad terms in which relevance is defined suggest a reasonably wide focus to the inquiry as to whether a particular piece of evidence has the necessary probative force required by s 55.[2] The threshold for relevance, for an accused, is quite low, because the evidence, to be adduced on behalf of an accused, need only be capable of rationally affecting the probability of the existence of a fact in issue by raising a doubt in respect of it.[3] Accordingly, a trial judge should be slow to exclude evidence, sought to be adduced on behalf of an accused person, unless it is clear that the evidence does not satisfy the definition of relevance contained in s 55.
[2]R v Vinh Le [2000] NSWCCA 49, [19] (Sully J).
[3]Cf R v Lockyer (1996) 89 A Crim R 457, 459–60 (Hunt CJ); R v Cakovski (2004) 149 A Crim R 21, [36]–[37] (Hodgson JA); R v White [2012] NSWSC 467, [58] (Hulme J).
Nevertheless, in our view, the judge was correct in ruling that the references in the letter to AM’s boyfriend, and to her thoughts about having sexual relations with him, were irrelevant. Those parts of the letter did not relate to AM’s feelings about her family, or to the home environment in which she was living in the same residence as the applicant. There was nothing in the parts of the letter, relating to the boyfriend, which a jury could reasonably consider to be inconsistent with the feelings or views of a teenager who had been subjected to the abuse alleged by AM.
In the course of submissions before us, counsel for the applicant fairly conceded that, apart from that matter, she was not otherwise precluded by the ruling of the judge from putting any of the other matters, that were contained in the letter, to AM in cross-examination. That concession is plainly correct. In his ruling, the judge focused on his concerns as to the parts of the letter that related to AM’s relationship with her boyfriend and her feelings about him. The judge was concerned that those matters were irrelevant, and that they were at odds at least with the spirit of s 342 of the Criminal Procedure Act 2009. Notwithstanding the judge’s concerns, it might have been better if the judge had permitted the letter to have been tendered in evidence, with the passages relating to the boyfriend being redacted. However, as has been conceded, counsel for the applicant was not constrained by the judge’s ruling, or his explanation of it, from cross-examining AM as to the other aspects of the letter ,which counsel considered to be apposite for the point that she was seeking to make in relation to it. For those reasons, while the balance of the letter was relevant, nevertheless no substantial injustice has been occasioned to the applicant by reason of the ruling by the judge that the letter not be received into evidence in a redacted form.
Counsel for the applicant at trial, and on this application, also sought to rely on what she described was the ‘lightness of tone’ of the letter which, it was contended, was inconsistent with the type of letter that might have been written by a young teenager who had been subjected to sexual abuse by her stepfather.
As we have stated, under s 55 of the Evidence Act, the bar, as to relevance, for an accused is set quite low. Nevertheless, the evidence that is sought to be adduced, on behalf of the accused, must have the capacity to rationally affect, or bear on, the probabilities of a fact that is in issue in the case. The applicant, in effect, sought to have the letter admitted into evidence, so as to invite the jury to draw a conclusion, not from its contents, but rather from its ‘tone’, as to the state of mind of AM when she wrote it, and to invite the jury to consider that that ‘tone’ was in some way not consistent with the ‘tone’ which might be adopted by a 16 year old who had been subjected to the sexual abuse alleged by AM.
Expressed in that way, it is evident that the argument sought to be made on behalf of the applicant is based on a considerable degree of conjecture. In particular, it would invite the jury to speculate, from the ‘tone’ of the letter, as to the frame of mind of AM when she wrote the letter, and to speculate as to how a 16 year old might be expected to have expressed herself, in writing such a letter, if she had been subjected to the sexual abuse of the type alleged by AM.
In our view, the degree of speculation involved in that proposition is such that it could not be said that the ‘tone’ or ‘lightness’ of the letter could rationally affect (whether directly or indirectly) the assessment by the jury of the probability of the allegations by AM as to the offences, that she claimed had been committed against her by the applicant.
For those reasons, the applicant has failed to demonstrate any error resulting in a substantial miscarriage of justice arising from the ruling by the judge excluding the letter dated 6 February 2008 from the evidence. Accordingly, ground 1 of the application must fail.
Ground 2
After AM had completed giving her evidence, the judge gave the jury a direction as to the relevance of the evidence relating to the uncharged acts, including the incidents that were alleged to have occurred in Tasmania and Queensland, and the judge directed the jury as to the purposes for which that evidence could not be used. The judge repeated those directions to the jury in his final charge.
In particular, the judge reminded the jury that AM had given evidence that the sexual contact, that had been alleged to constitute charges 1, 3 and 4, had been a regular occurrence from when she was 8 years of age until she left home when she was about 18 years of age. The judge also referred to the incidents that were alleged to have occurred in Tasmania and Queensland. He told the jury that, because those incidents were alleged to have occurred interstate, they could not be charged or dealt with in the Victorian courts. The judge instructed the jury that the evidence, as to the uncharged acts, was relevant, because it might place the alleged offences in their ‘complete and realistic context setting’. In that way, it might allow the jury to answer questions, such as whether the charged events happened ‘out of the blue’ as isolated incidents, and it might also explain why AM submitted during the incidents, or did not complain about the incidents that comprised the charges. Further, the judge stated that the evidence might explain why the applicant felt that he could continue that sort of conduct.
The judge then directed the jury that it was not entitled to use the evidence of the uncharged acts to reason that, if the applicant committed those other acts, he must therefore have committed the offences that were charged. In addition, he cautioned the jury that it must not use the evidence to reason that the applicant was the kind of person who committed offences of that nature. He directed the jury that it must not substitute the evidence of the contextual acts for the offences. He stated that proof of those other acts is ‘not the same as proof of the offences charged’.
Ground 2 of the application focuses on the two uncharged events that were alleged to have occurred in Tasmania and Queensland. It is contended that the judge erred by not directing the jury that, in order to be able to use the evidence as to those events for the purposes outlined by the judge, the jury must be satisfied beyond reasonable doubt as to those events.
In support of that proposition, it was submitted that the two interstate acts were in the nature of specific ‘charged acts’, in that they comprised specific and detailed allegations of sexual assaults, similar to three of the four acts charged. Further, they were alleged to have occurred during the same time period as those offences. The judge himself differentiated between those two interstate acts, and the other evidence of general non-specific sexual abuse, by telling the jury that the two interstate acts could not be the subject of charges in Victoria. Thus, it was submitted that there was a danger that the jury would treat the evidence, as to those two events, as evidence of tendency, regardless of the purpose for which the prosecution sought to rely on them. In those circumstances, it was submitted that the judge erred by not directing the jury that it must apply the criminal standard of proof in respect of those two events.
In response, it was submitted on behalf of the respondent that the judge gave the jury clear directions that the evidence as to the incidents that were alleged to have occurred in Tasmania and Queensland, together with the evidence as to the other uncharged acts, could only be used as evidence of context. The judge gave the jury careful directions as to how it might use the evidence in that way. In addition, the judge specifically directed the jury that it could not reason from acts to conviction. It was submitted that there was no risk that the jury would misuse the evidence, as to the events that occurred in Tasmania and Queensland, to engage in tendency or other impermissible reasoning. The judge’s directions to the jury eliminated any risk that the jury would use the evidence for an impermissible purpose. It would be illogical to direct the jury not to engage in such reasoning, but then to require it to be satisfied beyond reasonable doubt as to the evidence, in order to guard against the jury impermissibly using such evidence.
The relevant principles, as to the issue raised by the applicant in respect of ground 2, were stated by this Court in R v Sadler.[4] The court, having examined the recent decision of the High Court in HML v R[5] in some detail, said:
… On a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant’s evidence as to the uncharged acts and as to the charged acts.
If so, it follows that the standard of proof applicable to uncharged acts, and the directions to be given to the jury as to the use which they may and may not make of evidence of the uncharged acts, will continue to vary according to whether the Crown relies on the evidence of uncharged acts to establish propensity to commit crimes of the kind which are charged or merely for contextual and explicative purposes … .[6]
[4](2008) 20 VR 69 (‘Sadler’).
[5](2008) 235 CLR 334.
[6](2008) 20 VR 69 87–8 [62]–[63] (Nettle, Redlich and Dodds-Streeton JJA); see also PPP v R (2010) 27 VR 68, 74–5 [19] (Redlich JA); Scetrine v R (2010) 28 VR 213, 223–4 [48]; Neubecker v R (2012) 34 VR 369, 375–6 [21].
The court further stated:
Now, because of the limited ratio of HML, it appears that the position in Victoria remains largely the same. But having regard to what was said by Kirby, Hayne (and thus Gummow) and Heydon JJ, as to the likelihood of a jury treating uncharged sexual acts as evidence of propensity (regardless of the purpose for which it is tendered or the directions which may be given as to its use), we consider that there is one critical difference. Pending further guidance from the High Court, a judge should ordinarily assume that there is a real risk of the jury using evidence of uncharged sexual acts as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of those acts beyond reasonable doubt.[7]
[7](2008) 20 VR 69, 89 [65].
The directions given by the judge to the jury, in respect of the unspecific uncharged acts, and also in respect of the incidents that were alleged to have occurred in Tasmania and Queensland, were orthodox directions, which, on their face, complied with the principles outlined in Sadler. In particular, the directions made it plain to the jury that it was not entitled to engage in propensity or tendency reasoning against the applicant. The judge explained in some detail how the jury was entitled to use the evidence, in providing the relevant background or context to the events alleged in respect of the four charges being considered by the jury.
The judge did not direct the jury that it should not conclude, from the evidence of the uncharged acts, that the accused had a sexual interest in the complainant, unless the jury were satisfied of those acts beyond reasonable doubt. However, the direction given by the judge to the jury made it plain that the evidence as to the uncharged acts (including those that were alleged to have occurred in Tasmania and Queensland) was only to be used by the jury to explain the context and background of the four charges against the applicant. The question whether a judge, in having given such an instruction to the jury, should also give the prudential direction mentioned by the Court of Appeal in Sadler in the last paragraph that we have quoted, is very much a matter for the judgment of the judge in the context and atmosphere of the trial. In the present case, there would have been a tension, if not inconsistency, between such a prudential direction on the one hand, and the careful directions given by the judge as to the purposes for which the jury were entitled to use the evidence of the uncharged acts, and as to how the jury must not use that evidence. Accordingly, such a prudential direction was not required.
It is the long experience of the courts that juries are ordinarily conscientious in following and applying directions of the kind given by the judge to the jury in this case. In our view, the directions given by the judge were sufficient to ensure that the jury would not misuse the evidence in the manner apprehended by the applicant. It is true that, in his preliminary directions after AM had completed her evidence, the judge explained to the jury that the two events, in Tasmania and Queensland, could not form the subject of charges in the present case, because they occurred interstate. No doubt the judge felt that that explanation was necessary, lest the jury not properly understand why those events were not the subject of specific charges. By giving that explanation to the jury, the judge enabled the jury to understand why there was a necessary distinction between, on the one hand, the incidents that were the subject of the charges, and the other uncharged incidents, including those which were alleged to have occurred in Tasmania and Queensland.
On the other hand, if the judge were to have given the direction sought by the applicant, there is a risk that the jury may have been confused by it, and been induced to engage in impermissible reasoning in respect of the two interstate incidents. Such a direction would have differentiated between those incidents, on the one hand, and the other unspecific uncharged incidents. Thus, such a direction would have highlighted the interstate incidents, and, at least to that extent, placed them in the same footing as the incidents that were the subject of the charges. In that way, such a direction might have had the potential to work to the detriment of the applicant.
For those reasons, we consider that the judge gave the correct directions to the jury concerning the incidents that were alleged to occur in Tasmania and Queensland. Accordingly, ground 2 must fail.
Conclusion
For the foregoing reasons, the applicant has not succeeded on either of the two grounds contained in the application for leave to appeal against conviction. It follows that the application should be refused.
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