Gustav (a pseudonym) v The King
[2023] VSCA 141
•13 June 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0085
| AMAR GUSTAV (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of identifying the alleged victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, NIALL and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 June 2023 |
| DATE OF JUDGMENT: | 13 June 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 141 |
| JUDGMENT APPEALED FROM: | DPP v [Gustav] (Unreported, County Court of Victoria, 31 March 2022, Judge Hampel) |
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CRIMINAL LAW – Appeal – Conviction – Sexual offending involving children under 16 – Whether tendency evidence admitted at trial admissible – Whether refusing severance of matters amounted to unfair prejudice – Common feature to offending imbued significant probative value to tendency evidence – Appeal refused – Evidence Act 2008 ss 97, 101 – Hughes v The Queen (2017) 263 CLR 338 – R v Bauer (a pseudonym) (2018) 266 CLR 56.
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| Counsel | |||
| Applicant: | Mr N Goodfellow | ||
| Respondent: | Ms S Clancy | ||
Solicitors | |||
| Applicant: | Balmer & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
NIALL JA
TAYLOR JA:
Introduction
An indictment filed in the County Court charged the applicant with sexual offending against his granddaughter, ‘HC’, then aged eight years, on two occasions between 1 August 2015 and 30 December 2015; and against his niece, ‘KS’, then aged seven, on three occasions, in a period between 25 June 2017 and 31 March 2018.
Following a trial, on 31 March 2022 a jury found the applicant guilty of six charges, including two charges of indecent act with a child under 16,[2] relating to HC (charges 1 and 2); and two charges each of sexual penetration of a child under 16[3] (charges 3 and 6)[4] and sexual assault of a child under 16[5] (charges 5 and 8), relating to KS.[6]
[2]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, s 47(1).
[3]Crimes Act 1958, s 45(1).
[4]No verdicts were taken on charges 4 and 7, sexual assault of a child under 16, they being alternatives to charges 3 and 6 respectively.
[5]Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49D(1).
[6]On 8 June 2022, the trial judge sentenced the applicant to three years’ imprisonment on each of charges 1, 2, 5 and 8, and to six years’ imprisonment on charges 3 and 6. Orders for cumulation resulted in a total effective sentence of eight years and six months’ imprisonment, upon which the judge fixed a non-parole period of five years and six months.
The applicant now seeks leave to appeal against conviction on two grounds, which contend that the trial judge erred in —
1… ruling that the tendency evidence between each complainant was admissible.
2 … refusing severance of the matters.
For the reasons that follow, we would refuse leave to appeal.
Notice of tendency evidence
At trial, the prosecution relied on an Amended Tendency Notice (’the notice’), filed pursuant to s 97(1)(a) of the Evidence Act 2008 (‘the Act’).[7] The notice set out that the prosecution sought to rely on the applicant’s tendency to have a particular state of mind:
· to have a sexual interest in female children, who are family members, aged between 6 – 8 years, and a willingness to act on that interest;
· to have a sexual interest in the complainant [HC] and a willingness to act on that interest; and
· to have a sexual interest in the complainant [KS] and a willingness to act on that interest.
[7]The initial notice, dated 29 July 2020, was amended by leave of the trial judge on 6 May 2021 and on 17 March 2022.
The notice also set out that the prosecution sought to rely on the applicant’s tendency to act in a particular way:
· to sexually touch female children, who are family members, aged between 6 – 8 years, whilst under his care or supervision, and whilst other adults are not present;
· to sexually touch the complainant [HC], his granddaughter, aged 8 years, whilst under his care or supervision, and whilst other adults are not present; and
· to sexually touch the complainant [KS], his niece, aged between 7 – 8 years, whilst under his care or supervision, and whilst other adults are not present.
The alleged offending
In brief summary, the evidence had the following features. HC’s father, who was separated from her mother, is the applicant’s son. In July 2015, HC’s father went to live with the applicant. HC would visit the applicant’s home to visit her father every couple of months. HC’s evidence was that, on a number of occasions during these visits, the applicant sat her on his lap and stroked her inner thigh close to her vagina — moving closer to her vagina with each stroke — whilst simultaneously moving her up his leg until his penis was in contact with her coccyx (uncharged acts). On one occasion, the applicant sat her on his lap and pulled her directly onto his crotch. He then stroked up her inner thigh until his fingers touched her underwear beside her vagina (charge 1). A second charged incident involved what was referred to as the ‘train game’. During this game the applicant lay on the floor and had HC sit astride him, bouncing her up and down, and bringing her vagina into contact with his erect penis at the end of each downward bounce (charge 2). HC’s half-brother, ‘J’, was present, and had earlier been bounced on the applicant’s knee.
A couple of years later, ‘BH’, KS’s mother, took up residence close to the applicant. The alleged offending against KS occurred when the applicant was caring for her, or when BH and her family temporarily resided with the applicant. On one occasion, in the course of a game involving the applicant, KS and J, the applicant licked KS’s vagina (charge 3). On another occasion, in his bedroom, the applicant put his hand inside KS’s pants and touched her vagina (charge 5). He then asked her to suck his penis, and, when she refused, licked the inside and outside of her vagina (charge 6). On a third occasion, the applicant placed KS’s hand down his pants and made her rub his non-erect penis (charge 8).
When interviewed by police, the applicant denied touching HC and KS in the manner alleged. At trial, the central fact in issue on each charge was whether the alleged incidents occurred.
The trial judge’s ruling on tendency and severance
Pre-empanelment, counsel for the applicant submitted to the trial judge, first, that HC’s evidence could not be used to support tendency reasoning with respect to the two charges of alleged offending against her; and, secondly, that the evidence of each complainant was not admissible as tendency evidence vis-à-vis the other.[8] Consistently with the defence challenge to the cross-admissibility of the complainants’ evidence, counsel for the applicant sought severance of charges 1 and 2 (involving HC) from charges 3 to 8 (involving KS).
[8]Counsel for the applicant did not challenge the prosecution’s reliance on the evidence of KS to support tendency reasoning with respect to the charges of offending solely against her.
In ruling that the evidence of HC and KS was cross-admissible as tendency evidence, and that severance should not be ordered, the judge had regard to ss 97(1)(b), 101(2) and 137 of the Act, and to statements of principle to be found in Hughes[9] and Bauer.[10] She observed that ‘the question for determination in this ruling is whether the proposed tendency evidence, either by itself or having regard to the other evidence, has significant probative value’. The judge identified a number of similarities common to the offending against each complainant, and expressed satisfaction that the evidence ‘does strongly support proof of the tendency asserted and strongly supports the proof of a fact that makes up the offence charged’. Ultimately, the judge said:
It follows that the evidence identified in the tendency notice as sought to be relied upon as tendency evidence is evidence which satisfies s 97(1)(b). Its probative value, I am satisfied, is not substantially outweighed by the risk of unfair prejudice. For the same reasoning that I have applied there I am also satisfied that the tendency evidence should not be excluded under s 137. The application to rely on the evidence identified as capable of being relied on as tendency evidence in the notice is therefore allowed and the application to exclude it under s 137 is refused.
It follows, having regard to these findings, that the application for severance of the charges concerning the granddaughter and those concerning the niece is also refused.
[9]Hughes v The Queen (2017) 263 CLR 338 (‘Hughes’).
[10]R v Bauer (a pseudonym) (2018) 266 CLR 56 (‘Bauer’).
Submissions in this Court
In support of the first ground, counsel for the applicant submitted that the trial judge erred in holding that the evidence strongly supported proof of the tendency asserted. Relying on Hughes,[11] he submitted that the evidence did not have significant probative value. Moreover, citing Bauer,[12] counsel contended that there was no feature of or about the alleged offending which linked the offending against the two complainants together.
[11]Hughes, 356–7 [41] (Kiefel CJ, Bell, Keane and Edelman JJ).
[12]Bauer, 87 [58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The applicant’s counsel submitted that the alleged offending against each complainant was different. Hence, the first incident of alleged offending against HC involved her sitting on the applicant’s lap, and him touching her upper thigh, in the vicinity of — but not on — her vagina (charge 1). The second alleged incident of offending — the ‘train game’ — involved HC sitting on top of the applicant while bouncing up and down (charge 2). On both occasions, the applicant and HC were fully dressed; there was nothing of a sexual nature said; and there was no overtly sexual context. By way of contrast, counsel submitted, the alleged offending involving KS was significantly more serious, involving two acts of penetration and sexual touching. Thus, the applicant was alleged to have licked and touched KS’s vagina and placed her hand on his penis. Counsel submitted that there was no unique common feature which links the offending, so much being illustrated by the significant differences in the timing, circumstances, and gravity of the alleged offending.
Counsel for the applicant submitted that the evidence in relation to HC, taken as a whole, and at its highest,[13] did not strongly establish that the applicant had a sexual interest in female children, who are family members aged between six and eight years, and a willingness to act on that interest. That asserted tendency was so broad it covered most cases of sexual offending involving children. The evidence in relation to HC did not strongly support the allegations that he sexually assaulted KS as alleged and was not significantly probative of the allegations.
[13]IMM v The Queen (2016) 257 CLR 300, 314–6 [49]–[54] (French CJ, Kiefel, Bell and Keane JJ).
But even if the evidence did have significant probative value, counsel submitted, its probative value did not substantially outweigh its prejudicial effect. There was significant prejudice caused to the applicant by permitting evidence of the conduct involving KS to be used as tendency evidence in relation to the charges pertaining to HC. The prejudice arose because the jury would be unable properly and fairly to consider the elements of the offences against HC, which involved an assessment by the jury of the applicant’s state of mind and whether the acts occurred in indecent circumstances. The evidence with respect to KS would have overwhelmed the jury’s ability to properly consider these critical features. Counsel submitted that the jury would inevitably have given the tendency evidence disproportionate weight and be satisfied of indecency without adequate consideration of the evidence. The prejudice caused by the tendency evidence was not overcome by judicial directions, since the seriousness of the offending alleged against KS and the unavoidable emotional response would irreversibly have clouded the collective mind of the jury.
Under the cover of ground 2, counsel for the applicant submitted that, despite ss 194(2) and (3) of the Criminal Procedure Act 2009 (‘CPA’), the charges involving HC should have been severed from those involving KS. Citing TJB,[14] Papamitrou,[15] Demirok[16] and other authorities,[17] counsel submitted that the prejudice suffered by the applicant was not merely a consequence of the offending involving sexual misconduct against children. When confronted with the alleged offending against KS, the jury would have been unable to give the required consideration to the specific elements of the offending against HC. The only cure for this unfair prejudice was severance.
[14]R v TJB [1998] 4 VR 621, 630.
[15]R v Papamitrou (2004) 7 VR 375, 388.
[16]R v Demirok [1976] VR 244, 254.
[17]DPP v Pearson (a pseudonym) [2021] VSCA 336; R v CHS (2006) 159 A Crim R 560.
In response, counsel for the respondent submitted that the impugned evidence had significant probative value that was not outweighed by the danger of unfair prejudice. Moreover, counsel submitted, the trial judge gave clear and readily comprehensible directions about the permissible and impermissible use of the tendency evidence, such that there was no meaningful risk that the jury would reason in any impermissible manner.[18] The trial judge specifically directed the jury several times that they could not convict the applicant of any charged act unless satisfied beyond reasonable doubt of the commission of that act, and, in relation to charges 1 and 2, that the act was intentional and had a sexual connotation.
[18]Dempsey (a pseudonym) v The Queen [2019] VSCA 224, [101].
Further, counsel submitted, the trial judge directed the jury that they could not substitute a finding that the applicant had a sexual interest in the complainants and a willingness to act on that interest for the conduct that was alleged in any particular charge. The respondent’s counsel submitted that, while undoubtedly serious, the alleged sexual penetrations of KS were unlikely to invoke an emotional response in the jury which could not be put to one side in accordance with clear judicial directions.
Counsel for the respondent submitted that, when regard is had to the trial judge’s directions, there is no meaningful risk that the jury failed to assess the evidence in relation to charges 1 and 2 and determine the applicant’s guilt on each charge on the whole of the evidence. The fact that the jury may have had regard to KS’s evidence to reason that the applicant had a sexual interest in six to eight-year-old girls in his family, and a willingness to act on that sexual interest, and used that finding when assessing whether there was a reasonable possibility that the applicant’s touching of HC was accidental or non-sexual, so much was not a source of unfair prejudice.
Finally, counsel for the respondent submitted that, having found the evidence of the two complainants to be cross-admissible as tendency evidence, there was no occasion for the trial judge to sever the charges.
Discussion
Section 97(1)(b) of the Act provides that evidence of a tendency that a person has (or had) to act in a particular way, or to have a particular state of mind, is not admissible unless the evidence has significant probative value. It is in the following terms:
97The tendency rule
(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—
…
(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.
In a criminal case, it is not enough for tendency evidence merely to have significant probative value. By virtue of s 101(2), the probative value of the evidence must substantially outweigh any prejudicial effect it may have:
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
…
(2)Tendency evidence about an accused, or coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
The High Court has held that, in a case for sexual offences involving a single complainant, proof of the accused’s commission of a sexual offence against the complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, so long as they are not too far separated in time. Hence, in Bauer, the High Court said:[19]
Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together.[20] In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.[21]
[19]Bauer, 83 [50] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations as in original).
[20]See [CPA], s 194.
[21]HML v The Queen (2008) 235 CLR 334 at 397–398 [168], 401–402 [181] (Hayne J).
In Bauer the Court also made it clear that, in cases involving multiple complainants, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another, the logic of probability reasoning dictates there must be some feature of or about the offending which links the two together:[22]
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant.[23] If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
Hughes illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants.[24] It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority[25] on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence.
By contrast, in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other. …
[22]Bauer, 87–8 [58]–[60] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citations as in original; emphasis added).
[23]See HML v The Queen (2008) 235 CLR 334 at 354 [11]–[12] (Gleeson CJ); at 382–383 [105] (Hayne J; Gummow J and Kirby J agreeing at 362 [41], 370 [59]); GBF v The Queen [2010] VSCA 135 at [26]; BBH v The Queen (2012) 245 CLR 499 at 525 [70]–[71] (Hayne J; Gummow J agreeing at 522 [61]).
[24]Hughes v The Queen (2017) 263 CLR 338 at 358–360 [44]–[54] (Kiefel CJ, Bell, Keane and Edelman JJ).
[25]Hughes v The Queen (2017) 263 CLR 338 at 361–362 [57]–[60] (Kiefel CJ, Bell, Keane and Edelman JJ).
As we have said, counsel for the applicant in this case submitted that the conduct alleged in relation to KS was qualitatively different to that alleged in relation to HC. He submitted that the evidence did not demonstrate any common feature attaching to the offending alleged in relation to each complainant. It is significant, however, that Hughes was also a case which involved evidence of qualitatively different alleged offending against several complainants.
Hughes involved an 11 count indictment alleging sexual offences committed against five underage girls, ranging in age between six and 15 years. The charged conduct included digital penetration of the vagina of a girl aged 14 or 15 years; procuring a girl aged between six and eight years to masturbate him; indecently rubbing his erect penis against a nine-year-old girl; encouraging a 15-year-old girl to touch his penis; and indecently exposing himself to girls aged nine and 12 or 13 years. Notwithstanding that the acts charged in each count and the circumstances of their commission varied, however, an important feature of the alleged conduct in Hughes was that it occurred in the vicinity of other adults in circumstances in which the appellant was exposed to a real risk of detection by another adult. Given those circumstances, the majority concluded that the putative tendency evidence had significant probative value because it made probable that which would otherwise have been considered improbable; that is, that the appellant would engage in sexual conduct with underage girls in circumstances in which he ran a palpable risk of discovery by other adults. If that particular feature had been absent, it could not have been concluded that the tendency evidence possessed significant probative value.[26]
[26]See also McPhillamy v The Queen (2018) 361 ALR 13, 17 [16], 19 [26]–[27] and 20 [31]–[32] (Kiefel CJ, Bell, Keane and Nettle JJ).
Additionally, the majority in Hughes observed that: an inclination on the part of a mature adult to engage in sexual conduct with underage girls and a willingness to act upon that inclination are unusual as a matter of ordinary human experience; evidence of such an inclination will often include evidence of grooming of potential victims so as to reveal a ‘pattern of conduct’ or a ‘modus operandi’; the particular tendency evidence in the case showed that the unusual interactions which the appellant was alleged to have pursued involved courting a substantial risk of discovery by friends, family members, workmates or even casual passers-by (such level of disinhibited disregard of the risk of discovery by other adults being even more unusual as a matter of ordinary human experience); the defence case on each count was that the complainant had fabricated her account; and without the impugned tendency evidence, the jury would be presented with a prosecution case inviting it to conclude beyond reasonable doubt that the appellant had engaged in behaviour towards the complainant which involved predatory sexual activity pursued by taking opportunistic advantage of a social or family or work occasion in circumstances in which the appellant courted a real risk of discovery by other adults.[27]
[27]Hughes, 361 [57]–[58] (Kiefel CJ, Bell, Keane and Edelman JJ).
In the present case, an important feature that was common to the offending alleged against HC on charge 2, and against KS on charge 3, was that it was said to have occurred in the course of a ‘game’. That feature, in my view, imbued the putative tendency evidence with significant probative value. Hence, we consider that a finding that the applicant had licked KS’s vagina in the course of a purported game — self-evidently, it could not reasonably be concluded that any such licking was unintentional — might well inform a consideration of whether the contact of the applicant’s penis with HC’s vagina in the course of a similar game was unintentional. The common feature of the alleged offending against the two complainants on those two charges was that the sexual contact occurred in the context of a game, in circumstances where it might properly be inferred that the game in each case was a device to accomplish that contact.
Quite apart from the common feature of a game, there were other common features which provided the alleged tendency evidence with significant probative value. Those features included: each child was of a similar age; HC and KS were relatives, which facilitated the applicant’s contact with them in the absence of other adults; the conduct in each case involved genital touching (whether the applicant was touching the child’s genitals or procuring the child to touch his); and the touching occurred in the presence of another child.
Moreover, there was nothing in the nature of the evidence which might dictate a conclusion that its probative value was outweighed by the risk of unfair prejudice. Although any alleged sexual offending against children is liable to arouse strong feelings in the average juror, trial by jury contemplates that prejudice to an accused person in such cases may ordinarily be mitigated adequately by appropriate judicial direction. As to that, we consider that the conduct alleged in this case was not so rebarbative in nature as to engender a real risk that the jury would have been incapable of following the judge’s directions to put aside prejudice when considering the evidence.
It is clear, in my view, that the trial judge gave specific directions that were adequate to guard against impermissible reasoning. Hence, the judge directed the jury on several occasions that they could not convict the applicant of any charged act unless satisfied beyond reasonable doubt of the commission of the particular act; and, in relation to charges 1 and 2, that the act alleged was intentional and had a sexual connotation. Furthermore, the trial judge directed the jury that they could not substitute a finding that the applicant had a sexual interest in the complainants and a willingness to act on that interest for the conduct alleged in any particular charge. As to the risk that the jury’s consideration of charges 1 and 2 might be compromised by an emotional response flowing from the evidence of KS, the trial judge clearly directed the jury that they must not decide this case on the basis of feelings of sympathy or prejudice, since, even if they found that the applicant did have a sexual interest in eight-year-old female relatives to whom he had access and a preparedness to act on it, they still needed to consider dispassionately and carefully by reference to the evidence whether they were satisfied the particular act the subject of a charge occurred.
We consider that it was open to the judge to find that the impugned evidence was admissible pursuant to ss 97(1)(b) and 101(2) of the Act, and to reject any contention that it was caught by s 137. She was also correct to conclude that the risk of prejudice could be cured by judicial direction. That being so, the judge clearly was correct to refuse severance; since, once she determined that the evidence had significant probative value, and that the probative value of the evidence substantially outweighed any prejudicial effect it may have, there was nothing to rebut the presumption in s 194(2) of the CPA.
Leave to appeal against conviction must accordingly be refused.
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