Gustav (a pseudonym) v The King

Case [2023] VSCA 141
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.

---

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)

---

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.

---

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

  1. 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.

  2. 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]

    [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.

  3. 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.

  4. For the reasons that follow, we would refuse leave to…

Continue reading Gustav (a pseudonym) v The King

Sign in free to access the full text

Details
AGLC
Gustav (a pseudonym) v The King [2023] VSCA 141
Case
[2023] VSCA 141
Decision Date

CaseChat Overview and Summary

Gustav (a pseudonym) was appealing against his conviction and sentence for sexual offences involving children under 16 years of age. The appeal was heard by the High Court of Australia, which had jurisdiction to hear the appeal under the Australian Constitution. The main issues in the appeal were whether certain tendency evidence admitted at trial was admissible and whether the refusal to sever the matters amounted to unfair prejudice. The court had to consider the principles set out in the Evidence Act 2008 and the relevant High Court cases, including Hughes v The Queen and R v Bauer.

The court held that in cases involving multiple complainants, there must be a common feature to the offending that imbues significant probative value to the tendency evidence. The court found that the evidence in this case demonstrated a common feature that Gustav had a sexual interest in 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. The court held that 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. The court also found that the refusal to sever the matters did not amount to unfair prejudice to the appellant.

The appeal was dismissed, and the conviction and sentence were upheld. The court found that the trial judge had correctly admitted the tendency evidence and that the refusal to sever the matters did not amount to unfair prejudice. The appellant's conviction and sentence were therefore affirmed. The court did not make any further orders.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.