Jacobs (a pseudonym) v The King
[2024] VSCA 309
•11 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0122 |
| MICHAEL JACOBS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]In order not to prejudice the administration of justice, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 November 2024 |
| DATE OF JUDGMENT: | 11 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 309 |
| JUDGMENT APPEALED FROM: | DPP v Jacobs (a pseudonym) [2024] VCC 878 (Judge Trapnell) |
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CRIMINAL LAW – Interlocutory appeal – Sexual offences against children – Fourteen charges involving three complainants – Whether probative value of tendency substantially outweighed by prejudicial effect – Sexual interest and willingness to act on that interest – Significant probative value – Charges linked by familial connection and trust – Risk to prejudice can be overcome with jury directions – Evidence is cross-admissible – Correctness standard of appellate review applied – Leave to appeal refused.
Crimes Act 1958, ss 49A(1), 49D(1); Criminal Procedure Act 2009, s 295(3)(b); Evidence Act 2008, ss 97(1), 101(2).
Dempsey (a pseudonym) v The Queen [2019] VSCA 224; Harris (A Pseudonym) v The Queen [2024] VSCA 43; Hughes v The Queen (2017) 263 CLR 338; Moore (a pseudonym) v The King (2024) 419 ALR 169; R v Bauer (2018) 266 CLR 56; TL v The King (2022) CLR 83, applied; Clark (a pseudonym) v The Queen [2015] VSCA 297; DPP v Pearson (a pseudonym) [2021] VSCA 336; Elomar v The Queen (2014) 316 ALR 206; Gardiner v The Queen (2006) 162 A Crim R 233; RWC v R [2010] NSWCCA 332, considered.
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| Counsel | |||
| Applicant: | Mr CK Wareham with Mr R Robertson | ||
| Respondent: | Mr JCJ McWilliams with Ms P Long | ||
Solicitors | |||
| Applicant: | Dribbin & Brown Criminal Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
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PRIEST JA
T FORREST JA:
The applicant is currently the subject of a 14-charge indictment in the County Court. It is alleged that the applicant sexually offended against three complainants: ‘AB’, ‘CD’ and ‘EF’.
The charges against AB
Charges 1 to 5 allege that the applicant intentionally sexually penetrated AB, a child under the age of 12 years, in various ways.[2] Charges 6 and 7 allege that the applicant sexually touched, AB, a child under 16 years, in circumstances contrary to community standards of acceptable conduct.[3] These offences were alleged to have been committed between 1 April 2018 and 30 June 2021.
[2]Contrary to s 49A(1) of the Crimes Act 1958.
[3]Contrary to s 49D(1) of the Crimes Act 1958.
The charges against CD
Charges 8 to 12 allege the applicant sexually touched CD, a child under the age of 16 years, in circumstances contrary to community standards of acceptable conduct.[4] These offences were alleged to have been committed between 1 April 2018 and 31 July 2021.
[4]Contrary to s 49D(1) of the Crimes Act 1958.
The charges against EF
Charges 13 and 14 allege the applicant sexually touched EF, a child under the age of 16 years, in circumstances contrary to community standards of acceptable conduct.[5] These offences were alleged to have been committed between 1 January 2021 and 31 July 2021.
[5]Contrary to s 49D(1) of the Crimes Act 1958.
The tendency notice
The prosecution intend that all charges be heard together in the one joint trial. It proposes that all charged acts are cross-admissible as tendency evidence,[6] relevant to all three sets of charges. The Amended Tendency Notice[7] is annexed to these reasons. The defence accept that the evidence of CD and EF is properly admissible as tendency evidence in a joint trial of charges 8–14, but contends that the evidence concerning AB (charges 1–7) infringes the tendency rule and is accordingly inadmissible in relation to charges 8–14, which ought to be severed as a consequence. Although the defence did not concede the obverse — namely, that the evidence relating to charges 8–14 (against CD and EF) was admissible as tendency evidence relevant to charges 1–7 (against AB) — the main focus of argument before the judge and before this Court was allowing the graver alleged circumstances of the AB charges to be led as tendency evidence in the proceedings for the comparatively less serious CD and EF charges.
[6]Pursuant to s 97(1) of the Evidence Act 2008.
[7]The notice is dated 9 November 2023. A written notice of intention to adduce tendency evidence must be produced by the party intending to adduce the tendency evidence, pursuant to s 97(1)(a) of the Evidence Act 2008.
The Amended Tendency Notice alleged the applicant’s tendency to:
(a)have a particular state of mind, namely:
(i)a sexual interest in young female children in his care, aged between 6 and 10 years;
(ii)a willingness to act upon this interest;
(b)and to act in a particular way, namely:
(i)to exploit his position of trust as a family member or close friend to enable him to access the complainants and to act on that interest without detection; and
(ii)to exploit situations where playing games with children and to act on that interest without detection.
The above was alleged to occur in the following circumstances:
•where the applicant was entrusted to be alone with the complainants;
•in the presence of other adults and children in the house;
•in a brazen manner which entailed a high risk of detection;
•in the course of playing games with children; and
•the applicant would gain the complainants’ trust through buying them toys and gifts (‘the circumstances’).
The applicant denies that any of the charged acts occurred. The prosecution seeks to use the tendency alleged as evidence that makes the occurrence of the charged acts more likely.
The judge ruled in favour of the prosecution on this evidentiary argument and subsequently certified that the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.[8]
[8]Criminal Procedure Act 2009, s 295(3)(b).
We have determined that the judge was correct to allow the impugned evidence to be led, and we will dismiss this application for leave to appeal. What follows are our reasons for this conclusion.
The standard of review
There are two relevant standards of appellate review in respect of first instance judicial decisions: the correctness standard and the House v The King[9] (‘House’) standard. In Moore (a pseudonym) v The King (‘Moore’),[10] the High Court held that the House standard applies where the legal issue to be determined ‘tolerates a range of outcomes’ whereas the correctness standard applies where the legal issue to be determined ‘demands a unique outcome’.[11] In Moore it was held that the legal criterion under s 137 of the Evidence Act 2008 (‘the Act’)[12] demands a unique outcome.[13] There is no range of outcomes for tendency evidence arguments; the evidence is either inadmissible or it is not, depending upon whether the party seeking to lead it can bring the evidence within the statutory exception.[14]
[9](1936) 55 CLR 499; [1936] HCA 40.
[10](2024) 419 ALR 169; [2024] HCA 30 (‘Moore’). See also DPP v Pham (a pseudonym) [2024] VSCA 266.
[11]Moore (2024) 419 ALR 169, 174 [15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); [2024] HCA 30.
[12]Evidence Act 2008, s 137.
[13]Moore, 174 [15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ); [2024] HCA 30.
[14]Ibid.
In this application, the parties approached the argument from the ‘correctness’ standard and that is the standard that we have applied.
The judge’s ruling
The judge provided a concise summary of the allegations in his ruling.[15] No issue was taken with this summary on this application and we shall reproduce it.
[15]DPP v Jacobs (a pseudonym) [2024] VCC 878 (‘Reasons’).
AB allegations
Charges 1 to 7 concern AB and are alleged to have occurred between 1 April 2018 and 30 June 2021.
The prosecution alleges the accused inserted his finger in AB’s vagina at the Sunnyside house (charge 1). Charge 1 is the first occasion AB can recall. It is further alleged the accused played ‘chasey’ with AB and inserted his finger in her vagina (charge 2). This charged act is particularised as occurring in the kitchen of the Sunnyside house.
On one occasion when AB stayed at the accused’s house with her sister, RB, the accused played a game of ‘hide and seek’ with the children. When he located AB under his bed, the accused allegedly placed her on the bed and inserted his finger in her vagina (charge 3). AB shouted for her sister and the accused allegedly told her to ‘shut up’ and said ‘I just want to do this, let me do this’.
Charge 4 is alleged to have taken place at the accused’s house when AB was visiting. On this occasion AB was sitting on the bed in the spare room of the house, getting dressed into her pyjamas. The prosecution alleges the accused walked into the room and said, ‘you’re hot’, before he lifted up AB’s legs and inserted his tongue in her vagina. AB told him to stop and the accused left.
During another visit at the accused’s house, AB was taking a bath. The accused allegedly undressed and got into the bath with her. He told AB that she was ‘very beautiful’ and pulled her legs towards him to move her closer. It is alleged that the accused then inserted his penis into the AB’s vagina (charge 5). The penetration lasted for a few minutes before he got up and laid the complainant down. The complainant states that he crouched over her and ‘put this milk stuff on me … it was from his peewee’. He then told her to have a shower and left the room.
Charge 6 is alleged to have occurred near the front door of the Sunnyside house as AB said goodbye to the accused. On this occasion, whilst hugging AB, the accused allegedly kissed her mouth and inserted his tongue.
Charge 7 relates to an occasion in the driveway of the Sunnyside house when AB was saying goodbye to the accused. It is alleged the accused placed his mouth on AB’s mouth and used his tongue to open her mouth.
CD and EF allegations
Charges 8 to 12 concern CD and are alleged to have occurred between 1 April 2018 and 31 July 2021.
Charge 8 relates to an occasion at the accused’s house when CD was sitting on a sofa in the lounge room playing video games. It is alleged the accused placed his hand down CD’s pants and underwear and touched her bottom. She moved to another sofa. The accused sat next to her and allegedly touched her bottom again.
Charge 9 is also alleged to have occurred on the sofa in the lounge room of the accused’s house. While CD was playing on an iPad the accused sat next to her and allegedly placed his hand in her leggings. It is further alleged the accused touched CD’s vagina under her clothing.
Charge 10 is alleged to have occurred during a family Christmas dinner in the dining area of CD’s grandmother’s house. CD was playing a game while the rest of the family was outside. The prosecution alleges the accused sat next to CD, placed his hands in her underwear and felt her bottom. The accused allegedly held his hand there for about a minute.
Charge 11 is alleged to have occurred when CD was lying down in the spare bedroom of the accused’s house. The accused entered the room and laid down next to her in the bed. The accused allegedly touched CD’s chest area, vagina and bottom with his hand under her clothing. It is further alleged the accused began to take off CD’s pants and underwear but left the room when she told him to stop.
Charge 12 relates to an offence allegedly committed in the front lounge room of the accused’s house. The accused and CD were playing together while the accused’s wife was in the room. At one point, it is alleged the accused lifted CD up in the air and had one hand placed on her groin. CD asked him to put her down on the sofa and once he did this she began to play videogames. When the accused’s wife left the room, the accused moved closer to CD and allegedly placed his hand under her clothing. It is alleged the accused touched her vagina and chest area. CD said to the accused, ‘Stop. I don’t like it and I don’t feel comfortable. Can you please not do that to me ever again’. The accused responded by saying ‘sorry’.
Charges 13 and 14 concern EF and are alleged to have occurred between 1 January 2021 and 21 July 2021. Charge 13 relates to an alleged occasion when EF was sitting on the sofa in the accused’s lounge room. It is alleged the accused pulled down EF’s pants and underwear and rubbed his hand on her vagina for several seconds. The accused did not say anything and EF asked him to stop. Charge 14 is alleged to have occurred in the accused’s bedroom at his house. It is alleged the accused laid EF on her back, lifted her legs and removed her underwear. He rubbed her vagina with his hand for several seconds. She told him to stop.[16]
[16]Reasons, [8]–[24].
The judge set out the structure and substance of the tendency notice and reviewed the parties’ submissions. The judge then set out the relevant legal principles by reference to ss 97(1) and 101(2) of the Act.[17] Again we shall not rehearse them as we refer to those correctly stated principles in paragraph [23] of these reasons.
Legal principles regarding severance
[17]Evidence Act 2008, ss 97(1) and 101(2).
The judge outlined the legal principles the court must consider in order to determine if the tendency evidence should be severed:
Section 193 of the [Criminal Procedure Act (‘CPA’)] empowers the Court to order separate trials of the charges on this indictment if:
(a)the case of the accused may be prejudiced because he is charged with more than one offence on the same indictment; or
(b) for any other reason it is appropriate to do so.
Section 194 of the CPA establishes a statutory presumption that if two or more charges for sexual offences are joined in the same indictment, those charges are to be tried together. This includes charges involving different complainants. The presumption is not rebutted merely because evidence of one charge is inadmissible on another charge. Nonetheless, I must consider any prejudice the accused may suffer by trying the charges involving AB together with the charges involving CD and EF and the likely effectiveness of any jury directions I might give in order to overcome that prejudice.
In order to rule on the severance application, I must first determine the admissibility of the tendency evidence.
The primary issue in this trial is whether the conduct comprising the charged events occurred. The tendency contended for is led to prove those facts in issue.[18]
Significant probative value
[18]Reasons, [64]–[67] (citations omitted).
In considering whether the tendency evidence possessed considerable probative value, the judge said:
‘Significant probative value’ requires more than the mere fact that an accused has, on more than one occasion, committed a similar offence. The fact an accused has, on a different occasion, committed a like offence does no more than prove a disposition to commit crimes of the kind in question.
Here however, the disputed evidence goes much further. On analysis, it reveals a sexual interest by the accused in the children of a close female friend (DM) and the young nieces of his then domestic partner (MT) who were in his care, and to whom he had access. It also demonstrates a willingness to act on that sexual interest.
The alleged offending occurred when the children were aged between six and ten and were either staying with the accused or visiting him in his house (nine charges), at the complainant’s house (four charges) or at the complainant’s grandmother’s house (one charge).
Although the children were different ages at the time of the alleged offending, they were all prepubescent girls. They were also vulnerable by virtue of the disparity in age when compared to the accused, and by virtue of their status as the children of the accused’s close friend or domestic partner’s siblings, which created a position of trust which the accused allegedly abused.
Moreover, the periods of alleged offending overlap, being all between 1 April 2018 and 31 July 2021, a period of about 3 years and 4 months.
It is in the context of the relationship with the complainants that the evidence is led to establish the accused would take advantage of occasions where the children were in his care or, at least, in his presence at his home or a house associated with the relevant complainant, and often during family occasions, such as Christmas dinner, and often when adults were present nearby.
I acknowledge the conduct intended to be covered in the tendency notice is quite broad, as the prosecution seeks to rely on evidence of conduct both in the presence of other people (whether they be adults or children) and conduct that occurred when the complainants were alone with the accused. Nonetheless, the similarities between the circumstances of the alleged offending are sufficient to provide the link necessary to render the tendency evidence in relation to AB of significant probative value in relation to the charges involving CD and EF.
While the two charges which allege the accused kissed AB in a sexual manner are different from the other alleged offending conduct, they demonstrate the accused had a sexual interest in AB, and that evidence is admissible as tendency evidence in relation to the other charges involving AB. Moreover, I am of the view that that alleged conduct is also evidence of a sexual interest in prepubescent female children related to his then sexual partner (CD and EF) to whom he had unsupervised access and a willingness to act upon that sexual interest.
I consider the Court of Appeal’s reasoning in Harris is apposite in the present case. The close relationship the accused had with the complainants and their mothers provided him with the opportunity to offend, both alone and in the company of others, and demonstrates why or how he was prepared to act upon his sexual attraction.
I conclude that the evidence of the three complainants reveals the accused had a sexual interest AB, the daughter of his former partner, and CE and EF, the daughters of his then partner’s brother and sister who were in his care and to whom he had access. The evidence of the three complainants also reveals the accused’s willingness to act on that sexual interest.
By way of completeness, I accept the ‘common features’ relied upon by the prosecution in the prosecution tendency evidence submissions at [20] and [22] are present in this case.[19]
[19]Ibid [68]–[78] (citations omitted).
The judge then concluded:
For the reasons discussed above, I am satisfied all the tendency evidence the prosecution seeks to lead in this joint trial will, either by itself or having regard to other evidence to be adduced by the prosecution, have significant probative value and is, therefore, cross-admissible in relation to all complainants and all charges. I am also satisfied the probative value of that evidence substantially outweighs any prejudicial effect it may have on the accused. In this regard, I consider the risk the jury might misuse the evidence or give the evidence too much weight can be overcome by appropriate judicial directions.
Accordingly, I am satisfied that the presumption in CPA s 194(2) applies in this case and the severance application is refused.[20]
[20]Ibid [79]–[80].
The submissions on appeal
Applicant’s submission
The applicant narrowed and clarified his position at the outset of the oral hearing before this Court. If the applicant were to be successful in his argument, the evidence of CD and EF would be cross-admissible on the charges relating to each other, but ought not be cross-admissible (for tendency purposes) with the AB charges. If the argument was accepted, then the indictment would be severed to excise the AB charges from the CD and EF charges, resulting in two separate trials.
The applicant then submitted that the disputed evidence did not support the asserted tendency to act in a particular way. It sought to ‘cover the field’. The applicant contended that the notice alleged offending in private and in company, and also when the applicant was entrusted with the care of a child, and other times when he was not.
Further, the applicant contended that the notice was too broadly drawn as to demonstrate probative value of any weight, and certainly not to the level required by s 97(1) of the Act.[21] Here, it was submitted, save for the ages of the complainants, there is no inherent common feature that links the conduct set out in the notice; it was contended the alleged acts are different and the circumstances are different.
[21]Evidence Act 2008, s 97(1).
Finally, the applicant submitted that even if the impugned evidence made it through the gateway of s 97(1), it could not be said that the probative value of the evidence substantially outweighed the prejudicial effect it may have on the applicant as required by s 101 of the Act.[22] It was contended that this prejudice could not be cured by judicial direction. In oral argument, counsel for the applicant explained that the prejudice that the applicant identified was the use of the AB evidence of grave sexual offending as tendency evidence in support of the occurrence of the CD and EF charges, which involved comparatively less grave misconduct. He was not contending that the obverse was objectionable.
Respondent’s submission
[22]Ibid ss 97(1) and 101.
The respondent submitted that the applicant had picked around the margins of the notice, but overlooked that there was a central unifying aspect that embraced each of the impugned acts. That unifying feature was the applicant’s relationship with each complainant’s family which facilitated the occurrence of the sexual conduct in every instance; it was contended that he was able to engineer time alone with the complainants because of his relationship with the families.
Consideration
Legal principles
Section 97(1) of the Act provides that:
(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.[23]
[23]Ibid s 97(1).
Section 101(2) of the Act relevantly provides:
Tendency 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.[24]
[24]Ibid s 101(2).
In short compass:
•Tendency evidence is a form of circumstantial evidence that invites inferential reasoning.[25] The jury is asked to reason that a person who is shown to have a tendency to act in a particular way, or to have a particular state of mind, will behave in conformity with that tendency on other occasions. This makes it more probable that the person acted in that similar way on the charged occasion.[26]
[25]RWC v R [2010] NSWCCA 332, [123] (Simpson J, Price J agreeing at [151], Garling J agreeing at [152]). See also, Elomar v The Queen (2014) 316 ALR 206, 278 [360] (Bathurst CJ, Hoeben CJ at CL and Simpson J); [2014] NSWCCA 303. In Hughes v The Queen (2017) 263 CLR 338, 206 [70]–[71] (‘Hughes’), Gageler J in his minority judgment observed that tendency reasoning is not deductive logic, but is a form of inferential or inductive reasoning.
[26]Gardiner v The Queen (2006) 162 A Crim R 233 [124] (Simpon J); [2006] NSWCCA 190.
•To be admissible as tendency evidence, the Court must determine that the impugned evidence, taken by itself or in combination with other evidence, has significant probative value.[27]
[27]Evidence Act 2008, s 97(1)(b).
•‘Probative value’ means the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue.[28]
[28]Evidence Act 2008, Dictionary Pt 1 (definition of ‘probative value’).
•Evidence will have ‘significant probative value’ if it could rationally affect the assessment of the probability of a fact in issue to a significant extent.[29] The evidence must be important or of consequence to that evaluation.[30]
[29]Hughes, 348 [16] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
[30]Ibid 336 [41].
•It is necessary to identify with precision the tendency alleged and the facts in issue.[31]
[31]Hughes, 363 [64] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20; Dempsey (a pseudonym) v The Queen [2019] VSCA 224, [60] (Beach, Kaye and Ashley JJA) (‘Dempsey’).
•The assessment of ‘significant probative value’ involves an assessment of:
(a)the extent to which the evidence supports the tendency; and
(b)the extent to which the tendency makes more likely the facts constituting the charged offence.[32]
•In a muti-complainant case, the question that arises is whether the evidence that the accused committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant.[33] Ordinarily, there must be some feature of or about the offending which links the two together; if there is some common feature, it may demonstrate a tendency to act in a particular way, proof of which increases the likelihood that the account under consideration is true.[34]
•In Harris (a pseudonym) v The Queen,[35] a critical underlying feature of the offending conduct was the domestic context in which the offending occurred: the applicant was either a parent or a carer. The relationship provided the opportunity and explained the circumstances in which the applicant was prepared to act on his sexual interest.[36]
•There is a risk that tendency evidence may be given too much weight, either as a result of a jury understanding the number of persons who share the tendency, or misapprehending whether the tendency contributed to the alleged act occurring.[37] The evaluation of tendency evidence ‘may be clouded by the jury’s emotional response’ to it,[38] and prejudice may also arise if an accused is required ‘to answer a raft of uncharged conduct stretching back, perhaps, over many years’.[39]
Sexual interest and willingness to act on that interest
[32]TL v The King (2022) CLR 83, 95 [28] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35; Hughes, 356 [41] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
[33]R v Bauer (2018) 266 CLR 56, 87 [58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40 (‘Bauer’).
[34]Ibid.
[35][2024] VSCA 43.
[36]Ibid [68] (Niall, Boyce and T Forrest JJA).
[37]Hughes, 349 [17] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
[38]Ibid.
[39]Ibid.
The tendency alleged by the respondent is led to prove that the offending acts underpinning all charges actually occurred. This is the central issue in the proposed joint trial.
In our view the evidence of all three complainants reveals a sexual interest held by the applicant in all three female children:
(a)aged between 6 and 10 years;
(b)with whom the applicant had a close domestic relationship — the child of a close female friend (‘DM’, mother of AB) or the nieces of his then domestic partner (‘MT’, aunt of CD and EF);
(c)who were in his care;
(d)were entrusted to the applicant to care for them during the relevant mother’s absence;
(e)who were the subject of the applicant’s grooming;
(f)over the overlapping time periods (all offending allegedly occurred between 1 April 2019 and 31 July 2021).
The evidence also clearly discloses a willingness to act on this sexual interest.
Thus the judge was correct to conclude that the evidence disclosed the alleged sexual interest and to conclude that the evidence disclosed a willingness to act on that interest.
Specificity
The judge was also correct, in our view, to conclude that there was sufficient specificity in the tendency alleged to support an inference of significant probative value. Whilst there are some dissimilarities in the conduct alleged — for example whether occurring privately or in company — we agree with the judge (and the respondent) that there is a central unifying aspect that overlays each of the charged acts: the applicant’s relationship with each complaint through a familial connection and the trust that was reposed in him as a product of that connection.
The applicant contended that the kissing offences concerning AB (charges 6 and 7) did not show a sexual interest, and it would need to be determined by the jury whether the alleged touching occurred, whether it was sexual and whether it was contrary to community standards of acceptable conduct.[40] In our view, these alleged offences, when considered with all other evidence in the case, are capable of supporting the alleged sexual interest and the applicant’s preparedness to act upon it.
[40]Crimes Act 1958, s 49D.
Thus, the evidence of the three complainants is capable of demonstrating:
(a)the applicant had a sexual interest in the three children;
(b)he was prepared to act upon that interest.
We consider that the evidence has significant probative value, and subject to s 101(2) of the Act, is cross-admissible in all charges relating to all three complainants.[41]
Prejudicial effect can be managed by jury direction
[41]Evidence Act 2008, s 101(2).
The applicant relied on s 101(2) of the Act and contended that any probative value attaching to the impugned cross-admissible evidence would not substantially outweigh the prejudicial effect it may have on the applicant at trial.[42]
[42]Ibid.
As the High Court commented in R vBauer,[43] although — unlike ss 135 and 137 of the Act[44] — s 101(2) does not include the word ‘unfair’ or ‘unfairly’ before ‘prejudicial’, the statutory provision is concerned with the same notion: harm to the interests of the accused by reason of the risk that the jury will improperly use the evidence in some way.[45]
[43](2018) 266 CLR 56; [2018] HCA 40.
[44]Evidence Act 2008, ss 135, 137.
[45]Bauer, 93–4 [73] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40. See also Clark (a pseudonym) v The Queen [2015] VSCA 297, [46] (Maxwell P, Priest and Kaye JJA); DPP v Pearson (a pseudonym) [2021] VSCA 336, [32], (Priest JA) [67], [92], [97] (T Forrest and Walker JJA) (‘Pearson’).
We consider that there is some prejudice to the applicant by allowing the impugned evidence to be cross-admissible as tendency evidence. In argument, the applicant contended that the ‘unfair’ prejudice was the risk that the grave allegations that constituted charges 1 to 5 (each involving some form of sexual penetration) would swamp the less serious alleged offending in charges 6 to 14 (which involved kissing and non-penetrative touching). We accept that there is some risk of an emotional response to charges 1 to 5 (particularly charge 5) clouding the jury’s thinking in relation to the other charges, however, we consider this risk can be managed by strong direction as to the permissible uses to which the tendency evidence may be put.[46]
[46]See, for example, Dempsey [2019] VSCA 224, [101] (Beach, Kaye and Ashley JJA); Pearson [2021] VSCA 336, [91], [96], [101].
The balance of the prejudicial component of this impugned tendency evidence is not ‘unfair’ prejudice. It is the prejudice caused to the applicant’s position at trial arising from the significant probative value of the evidence itself. There is nothing improper about its reception or its proper use.
Conclusion
Leave to appeal under s 295(3) of the Criminal Procedure Act 2009 is refused.
The judge was correct to allow the impugned evidence to be used as cross-admissible tendency evidence, and was also correct to refuse the application for severance of the indictment.
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Annexure 1 — Amended Tendency Notice
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