Hicks (a Pseudonym) v the Queen
[2015] VSCA 201
•4 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0001
| GARY HICKS (A PSEUDONYM)[1] |
| v |
| THE QUEEN |
[1]To ensure that there is no possibility of identification of the victim 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 and WHELAN JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 July 2015 |
| DATE OF JUDGMENT: | 4 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 201 |
| JUDGMENT APPEALED FROM: | DPP v [Hicks] (Unreported, County Court of Victoria, Judge Cotterell, 4 December 2014) |
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CRIMINAL LAW – Conviction – Sexual offences against a child – Crown alleged applicant committed sexual offences against his half-sister – Tendency evidence led by Crown, over defence objection – Directions on ‘sexual interest’ given over objection by Crown and defence and despite the Crown’s notice not extending to ’sexual interest’ – Directions expanded Crown case – Subsequent directions did not cure or withdraw erroneous directions – Observations on model charges on tendency evidence in Victorian Criminal Charge Book – Appeal allowed and retrial directed – Observations on matters that may be relevant to retrial, including approach to question of reasonable possibility of collusion and youth of applicant when considering admissibility of tendency evidence – Observations on directions on collusion – Observations on directions on absence of evidence of motive to lie – Evidence Act 2008 (Vic) s 97; Velkoski v The Queen [2014] VSCA 121; SLSv The Queen [2014] VSCA 31.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Barton | Malcolm D Motherwell |
| For the Respondent | Ms F Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
WHELAN JA
CROUCHER AJA:
Overview
On 3 October 2014, the applicant was convicted of 11 charges of sexual offending against his half-sister following a nine-day trial in the County Court. The indictment contained 14 charges. There were four charges of incest, six charges of indecent assault, and four charges of gross indecency. The jury was directed to acquit the applicant on one charge of incest and one charge of gross indecency (charges 1 and 2). One of the indecent assault charges (charge 12) was an alternative to one of the incest counts upon which the applicant was convicted (charge 11).
On 4 December 2014, the applicant was sentenced as follows:
Charge on Indict-
mentOffence Maximum Sentence Cumulation 3 Gross Indecency [Crimes Act1958 as amended by the crimes (Sexual Offences) Act 1980 s 50(1)] 2 years’ imprisonment 6 months’ imprisonment 1 month 4 Indecent Assault [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 44(1)] 5 years’ imprisonment 3 months’ imprisonment Concurrent 5 Gross Indecency [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 50(1)] 2 years’ imprisonment 10 months’ imprisonment 1 month 6 Incest [Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 s 52(4)] 7 years’ imprisonment 3 years’ imprisonment Base 7 Gross Indecency [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 50(1)] 2 years’ imprisonment 10 months’ imprisonment 1 month 8 Incest [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 52(4)] 7 years’ imprisonment 3 years’ imprisonment 6 months 9 Indecent Assault [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 44(1)] 5 years’ imprisonment 3 months’ imprisonment Concurrent 10 Indecent Assault [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 44(1)] 5 years’ imprisonment 1 month’s imprisonment Concurrent 11 Incest [Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 s 52(4)] 7 years’ imprisonment 3 years’ imprisonment 6 months 13 Indecent Assault [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 44(1)] 5 years’ imprisonment 4 months’ imprisonment 1 month 14 Indecent Assault [Crimes Act1958 as amended by the Crimes (Sexual Offences) Act 1980 s 44(1)] 5 years’ imprisonment 4 months’ imprisonment 1 month Total Effective Sentence: 4 years and 5 months’ imprisonment Non-Parole Period: 3 years and 4 months Pre-sentence Detention Declared: 62 days Other orders:
- Forensic sample
- Sex Offenders Registration (life reporting)
- Sentenced as a Serious Sexual Offender on charges 8, 9, 10, 11, 13 and 14.
The applicant now applies for leave to appeal against conviction.
Initially, he raised six proposed grounds of appeal. Three of those grounds were abandoned either before or during the hearing. The remaining grounds are as follows:
1The learned trial judge fell into error directing the jury about the use of tendency evidence by commenting about sexual interest when the Crown did not lead the evidence of PM for that purpose.
2The learned trial judge erred in admitting the evidence of PM as tendency evidence when the evidence did not have ‘significant probative value’ between the acts alleged that the applicant committed against her and the act committed against the complainant.
6The learned trial judge’s directions to the jury as a whole were not balanced as the forensic disadvantage direction given early on day 2 was not emphatic enough about the nature of the forensic disadvantage and points of disadvantage.
The charged events were alleged to have occurred in Victoria when the complainant was aged about 13 or 15 and the applicant was about 22 or 23. Evidence was also led by the prosecution that the applicant, from about the age of 14, engaged in (uncharged) acts of a sexual nature with the complainant, from about the age of five, when the family lived in Mauritius prior to migrating to Australia.
PM is the applicant’s full sister. Evidence was led by the prosecution from her about three (uncharged) incidents of a sexual nature involving her and the applicant also when the family lived in Mauritius. PM was aged about 10 and 12 or 13 at the relevant time, and the applicant was aged about 14 and 16 or 17.
In the course of argument on the application, matters of concern in addition to those raised by the proposed grounds of appeal were canvassed. Those matters concerned the way in which the judge had dealt with the possibility of concoction or collusion between the complainant and PM, both when determining whether evidence was admissible as tendency evidence under s 97 of the Evidence Act2008 and in subsequent directions given to the jury on that topic, and the directions given to the jury concerning the existence or otherwise of a motive in the complainant or PM to lie. As those matters were not addressed in the proposed grounds of appeal, the Court made directions concerning obtaining further transcript and further submissions addressing any additional proposed grounds of appeal.
Having reserved to consider the matter, however, it became clear that ground 1 must succeed, that leave to appeal must be granted and that the appeal must be allowed. As the applicant is in custody, and as we have reached the firm view that the appeal must be allowed, it is undesirable to await the further material and further submissions which were the subject of the directions.
Since there will be a retrial at which the admissibility of the tendency evidence may be raised again, we shall make some remarks about the issue of the possibility of concoction or collusion between the complainant and PM and other matters that were raised on the application touching upon the admissibility of the tendency evidence. We also consider it desirable to make some remarks about the directions given to the jury concerning the absence of a motive in the complainant or PM to lie.
Ground 1 – Directions about the use of tendency evidence
Notice under s 97
It is unnecessary to go into detail about the particular facts of the case.
Prior to the trial, the prosecution gave the applicant a notice pursuant to s 97(1) of the Evidence Act dated 20 August 2014. That notice was detailed and confined in its scope. For present purposes, it relevantly read as follows:
The tendency sought to be proved is the tendency of [the accused] to:
(a) act in a particular way namely:
Table B — The accused purported to educate his younger siblings [complainant], [PM] and [another sibling] about sex and how to engage in sexual acts through demonstration.
Table C — The accused masturbated in the presence of his underage sisters [complainant] and [PM].
Table D — The accused observed his underage sisters [complainant] and [PM] undress.
Table E — The accused asked his underage sister [complainant] to pull her clothing tight so that he could observe her emphasised breasts.
Notwithstanding the designation ‘(a)’, that passage stated the full extent of the tendency which the prosecution sought to prove. The prosecution did not give notice of an intention to prove any particular state of mind.
During the course of the hearing of the application, we were told that there had been an earlier notice under s 97 which had notified an intention to prove what is sometimes referred to as ‘guilty passion’ or ‘sexual interest’. We were told that a more conservative approach had been determined upon following this Court’s decision in Velkoski v The Queen.[2]
[2][2014] VSCA 121 (‘Velkoski’).
Initial directions given
Immediately after PM’s evidence, the trial judge gave the jury a direction on the tendency aspects of her evidence. That direction concluded with the following:
However, the questions that you have to ask yourself when you are eventually considering this is does this evidence establish the pattern of conduct and a sexual interest and does that make it more likely that the accused committed the offence, provided that you do not use it to say that if he committed those, he must have committed the offences charged. This is just one small part of the evidence and you need to look at it all.
No concern was raised by counsel at that point. The reference to ‘sexual interest’ could only have been a reference to a sexual interest in PM or a sexual interest which encompassed PM.
When the judge first addressed the issue of tendency evidence during the course of the charge she said the following:
To find [the accused] guilty of an offence, you must be satisfied that the prosecution have proven all of the elements of that offence beyond reasonable doubt. Now in doing that I am going to tell you now about the evidence that has been called which is tendency evidence. There are two classes of that evidence.
One is the evidence of [PM] who is the sister, the full sister of [the accused] and the half-sister of [the complainant] and her evidence is of events which occurred in Mauritius and they are not the subject of charges because obviously there is no jurisdiction. She cannot be — he cannot be charged, [the accused], with offences which occurred in another jurisdiction. They have to have occurred in Victoria. There is evidence that she gave.
There is also evidence that [the complainant] gave about events which occurred in Mauritius which are not subject to charges. However, you are entitled to use that evidence and it is led by the prosecution to show that the accused man had a tendency to act in a certain way with his younger sisters and that was to use an educative introduction by way of a conversation and then to indulge in sexual acts with them and the prosecution [led] that to show that there was that tendency and there are similarities between those acts and I am going into those in some detail.
Then the other evidence that is led in relation to tendency and in relation to sexual interest is the evidence of [the complainant] about the actual offences which occurred in Victoria which are subject to the charges together with other matters which occurred in Victoria which are not subject to charges.
And the prosecution lead that evidence to prove that there was a tendency for the accused man to act in a certain way, to engage his younger sibling in sexual matters and to experiment with her, to masturbate in front of her and that there was - also the evidence is led to show that he had a sexual interest in his younger sister on which he was prepared to act by carrying out or by committing those offences which are charged and some which are not charged.[3]
[3]Italics added.
Two matters are significant in this direction. First, the judge again referred to the prosecution as leading the evidence, and as relying upon it, in order to establish a sexual interest. Secondly, it is ambiguous as to whether that sexual interest related solely to the complainant or to both of the ‘younger sisters’.
Counsel raise concerns
The trial judge took a break immediately after the passage quoted and in the absence of the jury the prosecutor raised what she had said about ‘sexual interest’. The trial judge and the prosecutor had an interchange on the issue in the course of which the prosecutor eventually indicated that sexual interest should not be referred to, as the evidence was led only to show a tendency to act in a particular way. In response the judge observed:
I won’t refer to the sexual interest at this stage but how I’m going to fix that, I’m not quite sure.
The interchange referred to occurred just before a luncheon adjournment. Upon resuming, the prosecutor raised the issue again.
The prosecutor said that she had ‘unravelled’ the issue and referred to the model charges in the Victorian Criminal Charge Book. The model charge she first referred to was the charge which then appeared at 4.16.2 which was entitled ‘Charge: Tendency Evidence (General Charge)’. The notes to that model charge indicated that it was to be used where evidence had been admitted to prove that the accused had a tendency to act in a particular manner. That model charge contained no reference to sexual interest.
Her Honour then said that she had the model charge 4.16.3. This was entitled ‘Charge: Tendency Evidence (Guilty Passion Evidence)’. The notes to that model charge indicated that that was to be used if evidence was admitted that the accused had an improper sexual interest in a single complainant. That model charge had been updated on 1 August 2014. One of the changes made was to introduce into the note concerning when that model charge should be used the word ‘single’. This was no doubt in response to the decision in Velkoski.
The prosecutor then referred to the model charge 4.16.4 entitled ‘Charge: Tendency Evidence (Multiple Sexual Complainants)’. The notes to that model charge indicated that it was to be used if evidence was admitted as tendency evidence of the accused’s sexual acts with multiple complainants. The notes did not refer to sexual interest, but the charge itself did do so in two places.
Both the model charges, 4.16.3 (single complainant) and 4.16.4 (multiple complainants), concluded as follows:
Ultimately the questions for you in dealing with this evidence are: does it establish the alleged sexual interest and does this then make it more likely that the accused committed the offence(s) charged?
All these model charges have now been superseded.
After the references to the model charges, there was a further interchange with counsel, in the course of which counsel for the applicant said:
So it’s my submission that sexual interest should be withdrawn from the jury.
In response, her Honour said:
I’ll just have to bat on, I think.
A little later the following interchange occurred:
[COUNSEL FOR THE APPLICANT]: Just if the sexual interest part could be withdrawn [from] the jury and then Charge 4.16.2.
HER HONOUR: Well I don’t see how I can withdraw it.
[PROSECUTOR]: It might be better to start again and go over it.
HER HONOUR: Might be better.
[COUNSEL FOR THE APPLICANT]: Perhaps if your Honour could say please disregard my comment about sexual interest, but I don’t know if my learned friend ‑ ‑ ‑
HER HONOUR: Because in the end that’s what they’re going to find. That’s the difficulty.
[COUNSEL FOR THE APPLICANT]: It’s the way it’s said, disregard my comments about sexual interest, perhaps if it’s emphasised like that to them, that may leave them with the impression that they could ‑ ‑ ‑
HER HONOUR: I don’t think I should say anything about it.
[PROSECUTOR]: I think it’s best not to say ‑ ‑ ‑
HER HONOUR: Because otherwise it’s going to be — they won’t even know. I don’t think that’s the best way to go because then there’ll be a whole lot of ‑ ‑ ‑
[COUNSEL FOR THE APPLICANT]: Matter for the court.
Directions resumed
When the jury returned, her Honour said the following:
Thank you, ladies and gentlemen. Just before lunch I was telling you that the Crown have led evidence which we call tendency evidence and I told you something about that earlier. The tendency that the Crown are seeking to establish on the evidence they lead is to establish that the accused man had a tendency to educate his siblings and to engage in sexual acts through demonstration.
I think before I said educative introduction to carrying out sexual acts; secondly, that he had a tendency to masturbate in the presence of his under-age sisters, [PM] and [the complainant]; that he further had a tendency to observe his under-age sisters when they were undressing and finally, he had a tendency to pull the clothing of [the complainant] tight across her chest to emphasise her breasts. So those are the tendencies that the prosecution are seeking to prove a tendency that he had to act in that way.
Her Honour then detailed what the evidence relevant to alleged tendency to act had been and gave directions as to use of that evidence which included the following two passages:
This evidence, and the sexual interest that the prosecution says it reveals, is only part of the evidence. Other bad behaviour in the past cannot alone prove guilt so you have to be satisfied beyond reasonable doubt of — in this case you have to accept the evidence of the complainant in relation to each of the actual charges and this is evidence that you can only use in a very limited way.
…
Ultimately, the questions for you in dealing with this evidence, that is the tendency evidence, is does it establish a sexual interest in the complainant, and does this then make it more likely that the accused committed the specific offences with which he is charged. So that is how you can use the tendency evidence and I will go through the evidence in relation to each charge in just a moment.[4]
[4]Italics added.
The jury then left the court on a break.
Counsel raise concerns again
The prosecutor again raised the references made to ‘sexual interest’. The judge said that she was ‘just reading from the charge that you asked me to use’. Counsel for the prosecution then said she was ‘satisfied’ with that.
Counsel for the applicant referred to the tendency notice and to the fact that ‘sexual interest’ had not been referred to in that notice. He submitted that the evidence had not been led for the purpose of ‘guilty passion’, that it was solely relied upon as ‘pattern of behaviour’, and that the applicable model charge was 4.16.2. That model charge makes no reference to sexual interest.
The prosecutor and the trial judge then had an interchange in the course of which the following was said:
[PROSECUTOR]: It is confusing the multiple sexual complainants charge includes sexual interest.
HER HONOUR: That’s the one I’m using because it’s between the - the similarity is also between the evidence of [the complainant] and [PM].
It is clear from this interchange that her Honour was relying upon the model charge 4.16.4. The confusion referred to arose from the fact that the notes to that model charge indicated that it was to be used where the evidence of multiple complainants had been admitted as tendency evidence. That is what had occurred. The notes did not refer to sexual interest but the text of the model charge did.
The relevant interchange concluded in the following passage:
[PROSECUTOR]: And you referred the jury to the similarities so I think that’s quite clear and that’s what the prosecution is leading. I think it’s just that the charge book’s perhaps ‑ ‑ ‑
HER HONOUR: It’s just been amended. This is the first time I’ve seen this because I have been away, so. Anyway, well what I will do is ‑ ‑ ‑
[PROSECUTOR]: It’s the pattern of behaviour.
HER HONOUR: Yes, I’ll say that it’s ‑ ‑ ‑
[PROSECUTOR]: As long as that’s clear I don’t think it matters that there is the words ‘sexual interest’ in there.
[COUNSEL FOR THE APPLICANT]: Yes it did. As I understand it, Your Honour has used pattern of behaviour and sexual interest in the same sentence.
HER HONOUR: Yes.
[COUNSEL FOR THE APPLICANT]: Just if more weight could be given to pattern of behaviour.
HER HONOUR: I think — here it has sexual interest and I made it pattern of behaviour. All right. I’ll leave that. I’ll just say, I’ll just stress to them now that the evidence is to — it’s for you to find if it establishes a pattern of behaviour.
[PROSECUTOR]: Yes.
[COUNSEL FOR THE APPLICANT]: Yes.
[PROSECUTOR]: That couldn’t be any clearer, Your Honour, so.
HER HONOUR: Does it establish a pattern of behaviour. I’ll get them back. I’m now going on to deal with the elements, so I’m going more into the evidence and I was actually using some of that in remembering the details. Yes, so we’ll get the jury back in.
Re-directions
When the jury returned the judge said the following:
Right. Thank you, ladies and gentlemen. Just to return very briefly to the tendency evidence. It is led to establish a pattern of behaviour which if you find that there is a pattern of behaviour you can then use that evidence to say is it more likely that the accused committed the particular offence which is charged. That of course is up to you to decide whether or not there is that pattern of behaviour.
Later in the charge when referring to the evidence of uncharged acts the judge said:
These matters are not the subject of charges and the prosecution has called that evidence in order to show that the accused had a tendency to act in a certain way, and that this constitutes a pattern of behaviour towards his sister. He used an educational method of discussion about sex and would then engaged in sexual acts when she was younger.
That evidence is called to show that the offending, with which the accused has been charged, did not just happen out of the blue. It was part of an ongoing pattern of behaviour. It commenced when she was five, on her evidence, and it is also to provide context to the offending and what the environment was in which this offending occurred. You now know quite a lot about the family. You have heard quite a lot about the way people get on and who does not get on. That was the family in which this alleged offending is supposed to have occurred.
Then, when referring to PM’s evidence, the judge said:
In the evidence of [PM], you may find some supports for the evidence of the complainant, insofar as it may help to prove a tendency of the accused to behave in the manner that they have each separately described.
Submissions on ground 1
On behalf of the applicant, it was submitted that the trial judge had ‘conflated’ the issue upon which the Crown had relied, tendency to act, with the concept of ‘sexual interest’, upon which the Crown had not relied. Further, it was submitted that what the trial judge had said could have led to the jury reasoning that PM’s and the complainant’s evidence was led to establish a relevant ‘sexual interest’. It was submitted this was contrary to the decision in Velkoski.
Counsel for the prosecution accepted on the application that the judge’s references to ‘sexual interest’ had expanded the Crown case and had gone beyond the s 97 notice which had been given. The submission put on behalf of the Crown was that the re-directions quoted above rectified the position. Counsel conceded that the judge never retracted what she had said to the jury earlier about ‘sexual interest’.
Ground 1 – Analysis
The further directions relied upon by the Crown did not rectify the error which had been made. Perhaps the Crown could have relied upon the tendency evidence led from the complainant as showing a sexual interest in the complainant consistently with Velkoski but it did not do so. Further, the trial judge treated the sexual interest issue in a way which related it to both the complainant and PM. It is difficult to see how that could have been done consistently with Velkoski.[5]
[5][2014] VSCA 121, [173(f)].
The point here, however, is a simple one. The trial judge expanded the prosecution case. It was pointed out that that had occurred. The position was not rectified by accurately articulating the basis upon which the tendency evidence had been led and was relied upon without retracting the erroneous statements which had already been made.
It is necessary to observe that the reason why this position arose appears to have been confusion in both the judge and the prosecutor as to which of the then current model charges was applicable. Counsel for the applicant correctly identified 4.16.2 as the correct one in the circumstances. Counsel for the prosecution maintained at times that no reference to ‘sexual interest’ ought to be made, but the interchange between the prosecutor and the judge seems to have been premised on the assumption that 4.16.4 was applicable. We think it is clear the judge was using model charge 4.16.4. Neither the heading nor the notes suggested that that model charge should not be used unless there was reliance on sexual interest, but the text refers to sexual interest in two places. It is fairly clear that that is the source of the errors. Both the prosecutor and the judge thought model charge 4.16.4 was applicable whenever evidence of multiple complainants was led as tendency evidence. That was not so. In particular, it was not so here, where the s 97 notice had not relied on sexual interest and the evidence had been led solely to establish a tendency to act in particular specified ways.
This case reveals the undesirability of relying on the model charges divorced from consideration of the legal principles upon which they are based.
For the foregoing reasons, there was a substantial miscarriage of justice. Accordingly, ground 1 is made out, leave to appeal must be granted and the appeal must be allowed. The matter should be remitted for retrial.
Ground 6
While our conclusion on ground 1 means that it is unnecessary to consider ground 6, we are of the view that that ground could not succeed. Counsel for the applicant advanced no oral argument on this ground. Instead, he relied on his written submissions. In our view, the directions on forensic disadvantage did not lack balance or emphasis.
Observations relevant to retrial
We turn now to other matters raised on the application which may have a bearing on the retrial.
Admissibility of tendency evidence
Collusion
The trial judge rejected a submission by defence counsel that the tendency evidence should be excluded on the basis that there was a reasonable possibility of collusion with the complainant.
There was evidence before the trial judge that established that, on the days when the complainant and PM made statements to investigating police, they had conversed by telephone or SMS text and discussed the fact that they intended to make allegations to police concerning the applicant. In committal proceedings, both witnesses were questioned about the possibility that they had colluded; but, in broad terms, they denied that they had discussed the details of their allegations.
The trial judge found that the evidence showed an opportunity for collusion but no more than a remote possibility that collusion had actually occurred. Her Honour took into account the complainant and PM’s evidence of denials in finding that a reasonable possibility of collusion had not been established.
On the application in this Court, counsel for the respondent submitted that, without some evidence that the complainant and PM had informed each other of the detail of their allegations, the evidence could not support the conclusion that there was a reasonable possibility of collusion or concoction.
Neither the applicant’s ground of appeal challenging the decision to admit the tendency evidence (ground 2) nor his written case challenged the trial judge’s decision to admit the evidence on the basis that she erred in her approach to, or conclusion on, the question of the reasonable possibility of concoction or collusion. The applicant could have relied upon this Court’s decision in SLS v The Queen in that regard.[6]
[6][2014] VSCA 31.
In the circumstances of this particular case, we do not consider it appropriate to determine whether the judge was in error to fail to exclude the evidence on this basis.
That said, we are of the view that, if the tendency evidence is sought to be led at the retrial and its admissibility is challenged, and the evidence on the voir dire is in substance the same as that which was disclosed at the first trial, it will be open for the trial judge to determine that the tendency evidence must be excluded on the basis that there is a reasonable possibility that the complainant and PM discussed the detail of some or all of their allegations at the relevant time and colluded with each other. Whether that conclusion might be reached by the trial judge necessarily will depend upon his or her assessment of the evidence before the court at that time, mindful of the observations in SLS as to the limited use that may be made of the credibility of witnesses’ denials.[7]
[7]Ibid [178].
In this context we also observe that the trial judge in her charge gave directions which, on one view, entirely removed the issue of possible collusion from the jury’s consideration. We have not had the benefit of considered submissions on that issue, and the transcript of the final addresses, which we have also not yet obtained, may affect the consideration of what was said, but those directions are a cause for concern. The issue will obviously need careful consideration on the retrial.
Other matters relevant to admissibility of the tendency evidence
So to say is not to exclude other considerations that might touch upon the question of the admissibility of the tendency evidence at the retrial.
For example, on the application before this Court, counsel submitted that the applicant’s age at the time of the alleged events involving PM rendered the evidence inadmissible as tendency evidence supporting the charged allegations. PM said that she was about 10 and then 12 or 13 when the incidents involving her occurred. Given their respective dates of birth, this meant that the applicant was only about 14 and then 16 or 17 at those times. At the time of the charged allegations concerning the complainant, however, the applicant had to be about 22 to 23. It should also be noted that the uncharged allegations of the complainant included sexual behaviour by the applicant towards her commencing when he was only 14.
The submission in this Court was that, even if the evidence were capable of being accepted, a child’s behaviour at 14, and perhaps even at 16 or 17, was not a safe basis on which to reason in a tendency fashion in respect of charged events said to have occurred when he was aged 22 and 23. Some of the alleged early behaviour, it was submitted, was more in the nature of child-like exploration of anatomy than truly sexualized behaviour of the type alleged in the charged allegations.
For the respondent’s part, it was submitted that tendency reasoning was open, particularly in circumstances where the age difference between the complainant and the applicant was in the order of eight-and-a-half years.
This issue was raised for the first time in this Court. No additional evidence was put before the trial judge (or this Court) that might suggest anything about the applicant’s level of sexual maturity at 14 and 16 or 17, and no submissions were made suggesting that he was not sufficiently mature to have engaged in the uncharged acts alleged. In those circumstances, and given that there will be a retrial in any event, we do not consider it appropriate for this Court to resolve the issue. Rather, we consider it appropriate that, if this issue is to be pursued, it should be dealt with by the trial judge who, by that stage, will have had the benefit of hearing any relevant evidence and submissions on a voir dire.
In this Court, under cover of ground 2, counsel also submitted that there were several differences between the uncharged allegations relied on as tendency evidence and the charged allegations, such that the evidence did not have the significant probative value required to render the evidence admissible under s 97 of the Evidence Act.
Counsel for the respondent submitted that there were several similarities and that such differences as there were did not deny the evidence of its significant probative value for the purposes of s 97.
Again, we take the view that it is preferable that these matters be left to the trial judge to consider on the retrial. This is particularly so when it may well be that, in light of the foregoing discussion in respect of ground 1, the Crown determines that it should file a new tendency notice on the retrial.
Directions on motive to lie
The applicant’s defence was that the entirety of the complainant’s and PM’s allegations were deliberately false. The applicant did not seek to attribute a motive to lie to either witness, whether in cross-examination of them by his counsel or during his own evidence.
Presumably, out of a concern that the jury might think there was an onus cast on the applicant to proffer a motive to lie, the trial judge sought to give the jury a cautionary direction on that topic. Her Honour instructed the jury that, although the applicant could offer no motive for the applicant to lie, the absence of such evidence was irrelevant, and could not be used against the applicant or to strengthen the Crown case.
Absent either party raising the absence of motive, which might have given rise to the risk that the jury would view the applicant as having some burden of proof in this respect, it is not readily apparent why any instruction about motive was necessary at all. Further, the terms in which the direction was given suggested the applicant was in fact unable to suggest any motive to lie.
At this point, we should add that trial counsel did not object when the judge foreshadowed that she would give a direction on motive to lie. Nor did counsel take any exception to the direction once it was given. Again, the fact that we do not have a transcript of counsel’s final addresses means we are deprived of information which might shed light on the judge’s decision to direct as she did.
Orders
Leave to appeal must be granted and the appeal must be allowed. The matter should be remitted for retrial.
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