KRI v The Queen
[2011] VSCA 127
•13 May 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0040 | |
| KRI | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN, HANSEN and TATE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 March 2011 | |
DATE OF JUDGMENT: | 13 May 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 127 | |
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CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Sexual offences – Evidence – Tendency and coincidence evidence – Evidence cross-admissible – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Singh | Michael Brugman |
| For the Respondent | Mr C W Beale with Mr G Barr | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Hansen JA.
HANSEN JA:
This is an application for leave to bring an interlocutory appeal. The applicant has indicated that he will plead not guilty to an indictment charging him with 15 sexual offences committed against four complainants in 1996, 1997 and 1998.[1]There are ten charges of committing an indecent act with a child under 16, three charges of attempt to commit an indecent act with a child under 16, and two charges of sexual penetration of a child under 16. The complainants, A, B, C and D, were boys aged between seven and 13 at the time of the alleged offending.
[1]The indictment lists 15 charges, however the judge’s ruling refers to 16 charges. The disconformity seems to have arisen from the Crown opening which refers to 16 charges. It is apparent that the alleged chest-touching incident (described in the ruling and the Crown opening as charge 14) is not charged on the indictment. Accordingly, the incidents described by the judge as charges 15 and 16 respectively should be read as charges 14 and 15. When referring below to the judge’s discussion of those charges, I have amended the numbers accordingly.
The applicant lived in Corio with his wife and two sons, one of whom is referred to as ‘X’. The complainants lived nearby and were friends of X, who was born in January 1990. The offending is said to have occurred when, on separate occasions, they stayed over at the applicant’s home.
In January the Crown served four notices of tendency evidence and coincidence evidence intending that at the trial the evidence of the complainants be cross-admissible.
On 8 March 2011 a judge in the County Court at Geelong ruled that the tendency and coincidence evidence was admissible at the trial. In consequence, severance did not arise.
A voir dire was not conducted, the parties agreeing that the judge could rely on the depositions.
A jury has not been empanelled.
The applicant seeks leave to appeal against the ruling, the judge having certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009.
The charges
Charge 1 alleges an indecent act in relation to A, who lived next door to the applicant. Some time in 1996 (when he was aged 12 or 13) A stayed over and, after watching television, went to sleep on the top bunk in X’s bedroom, wearing only his jocks. He was later awoken by the applicant, mumbling something and smelling of wine, touching his penis. The applicant had his hand down A’s jocks for about ten seconds.
Charges 2 to 7 relate to B, who lived across the road from the applicant. On 10 February 1996 (when he was aged seven) B stayed over and watched a video with X. The applicant’s wife went to bed, leaving the boys and the applicant in the lounge room. The applicant put his hand down B’s pants and rubbed B’s penis; this is charge 2 – indecent act. Later B went to bed in the bottom bunk in X’s bedroom. The applicant entered the room and lay on B’s bunk, pulled down B’s pyjamas and licked his anus; this is charge 3 – indecent act. The applicant then left the room, but returned on further occasions and on each occasion licked B’s anus; these are charges 4, 5 and 6 – indecent acts. On the final occasion, after licking B’s anus the applicant got on top of B and forced his penis into B’s anus; this is charge 7 – sexual penetration.
Charges 8 to 11 relate to C who is the brother of B. C is two and a half years older than B. On a weekend when he was in grade 6 (the charge alleges at some time in 1997 when C would have been aged ten or 11), C stayed overnight at the applicant’s house. After having tea and watching television C and X went to X’s bedroom, with C sleeping on the bottom bunk. C woke to find the applicant had his hand down the front of his pants pulling his penis up and down. His penis was erect; this is charge 8 – indecent act. C then went to the toilet and upon returning to the bedroom wrapped himself up in the blanket. Later that night, the applicant came back to the bedroom, sat on the side of the bed and tried to get his hand under the blanket but he could not because of the wrapping; this is charge 9 – attempted indecent act. On a separate occasion (charged as some time in 1998), just after C commenced high school, he had tea at the applicant’s house, played Nintendo until late and then went to sleep on the bottom bunk in X’s room. He was woken in the night by the applicant who was sitting by the side of the bed with his hand down the front of his pants and he had ejaculated; this is charge 10 – indecent act. C rolled over to the wall and the applicant took his hand out. Later on the applicant returned, sat on the side of the bed and tried to get his hand under the blankets but was not able to; this is charge 11 – attempted indecent act.
Charges 12 to 15 relate to D who, on weekends, stayed with his mother who lived near the applicant. One evening (when he was aged nine or ten), after D had played with X, eaten tea and watched movies in the lounge room, X fell asleep. The applicant had been drinking port in the kitchen and came and sat beside D on the couch. He tried to put his hand down D’s pants but D pushed his hand away; this is charge 12 – attempted indecent act. The applicant removed his erect penis from his pants and told D he would give him $300 if he gave him a ‘head job’; this is charge 13 – indecent act. D refused, went to X’s bedroom and woke up X, and they played computer games. D eventually went to sleep in the bottom bunk.
It is convenient to mention that some hours later D awoke and saw the applicant had entered the room. He came and sat on the bottom bunk and put his arm around D. D moved away but the applicant moved closer and kept trying to touch D on the chest; this is referred to in the Crown opening and the judge’s ruling as charge 14 – indecent act. However, as noted earlier, the indictment does not charge this incident, and it is not referred to in the tendency and coincidence notices. I mention it because of D’s evidence that in the course of this incident, he (D) kicked the wall and woke up X who told the applicant to get out of the room; this is relevant to a submission of the applicant’s counsel which I refer to later.
Returning to the charges in the indictment, about two and a half weeks later, D again had tea at X’s house. While watching television X fell asleep, X’s mother and brother went to bed and the applicant, who was drinking in the kitchen, came into the lounge room and watched television with D. He then put his hand on D’s thigh and his other arm behind D’s back. He pulled out his penis and then took out some money from his pocket and said ‘I’ll give you $400 if you give me a head job’; this is charge 14 – indecent act. D told him to go away and the applicant returned to the kitchen. Later that night, when the boys were asleep in the bunks, D awoke to find the applicant lying on top of him (on the bottom bunk) trying to push his erect penis into D’s bottom. D said it was very painful causing him to scream out. This caused the applicant to jump off D, then X awoke and told his father to get out; this is charge 15 – sexual penetration.
The alleged offending came to light as follows. When D was about 16, in 2003 or 2004 based on his date of birth being 1987, although the judge said it was in 2005 or 2006, he told his aunt and uncle what had happened. In July 2004 B told his aunt what had happened and then made a statement to police. In July 2004 B also asked C whether anything had happened to him. C initially denied that anything had happened, but later spoke of the incidents and made a police statement in August 2004. Then, B told A’s sister, N, that the applicant had done something to him, and that it may have happened to A as well, so N should speak to A. N duly spoke to A, who broke down and told her that the accused had touched him. A made a statement to the police in August 2009. The police also contacted D who made a statement in June 2009. The applicant was interviewed by the police in September 2009 and denied all the allegations.
It is to be noted that X made a statement in January 2010. While confirming that the complainants stayed overnight at his house, he could not recall that on any such occasion the applicant came into the bedroom. The applicant’s wife, in a statement also made in January 2010, said that at the time the applicant was a heavy drinker and often stayed up later than she or slept on the couch in the lounge.
Tendency and coincidence notices
The Crown seeks to lead the evidence of each complainant as both tendency evidence pursuant to s 97 of the Evidence Act 2008 and coincidence evidence pursuant to s 98. Accordingly, the Crown filed four separate tendency notices and four separate coincidence notices. Both before the judge and in this Court, the argument focused on tendency evidence notice 4B, but of course not overlooking coincidence notice 4B. Hence the judge in his ruling approached the matter on that basis, and it is convenient to do the same on the present application. Relevantly, the tendency evidence notice 4B stated that the tendency evidence related to the fact, or act of the applicant, in issue in each charge, for instance whether on charge 1 the applicant touched A’s penis. The notice stated that:
The tendency sought to be proved is the tendency of [the applicant] to:
(a) act in a particular way, namely:
To sexually assault the child complainant (who is friends with the defendant’s son and visiting at the defendant’s home) by touching his penis and or licking his anus and or inserting his penis into the complainant’s anus on the couch or in the bedroom while the defendant’s son is present and on all but one occasion is asleep and his partner has gone to bed
(b) have a particular state of mind, namely:
To have a sexual interest in the friend of the defendant’s son who is present in the home and sitting on the couch, watching TV or sleeping in the defendant’s son’s bedroom and a willingness to act upon it or attempt to act upon it in the presence of his son who on all but one occasion is asleep.
The particulars of conduct relied on were, in essence, each complainant’s evidence of the circumstances of each charge relating to him, as recounted above.
The coincidence evidence notice 4B relied on the same matters, the difference being to substitute ‘coincidence’ for ‘tendency’.
The judge’s reasons
Before the judge, the applicant submitted that the proposed evidence was inadmissible for a tendency or coincidence purpose. And, if the evidence was inadmissible for those purposes, the indictment should be severed so as to provide for separate trials of the charges relating to each of the four complainants.
In considering the tendency evidence, the judge referred to a number of authorities; R v Papamitrou,[2] JLS v R,[3] NAM v R,[4] R v PWD,[5] R v Cittadini,[6] R v Fletcher,[7] and Ford v R[8] where Campbell JA said:[9]
In my view there is no need for there to be a ‘striking pattern of similarity between the incidents’. All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged.
[2](2004) 7 VR 375, 389-390, [30].
[3][2010] VSCA 209, [30].
[4][2010] VSCA 95, [27].
[5][2010] NSWCCA 209.
[6][2008] NSWCCA 256, [22]-[23].
[7][2005] NSWCCA 338, [67].
[8][2009] NSWCCA 306.
[9]Ibid [125].
The judge also referred (in a footnote) to GBF v R[10] where this Court cited the above passage statement of Campbell JA and said:[11]
With great respect, his Honour was surely correct. But in view of some of the observations of the judge in this case, we add that it is important to understand the context in which Campbell JA was speaking. In Ford the court was concerned with a case in which the tendency sought to be proved was one to act in a particular way, namely, sexually to assault young women who: (1) had stayed over at the accused’s house after attending a party there, (2) had consumed a significant amount of alcohol, (3) were asleep, and (4) where there was a risk of the applicant’s offending being discovered by others. In effect, it was a case in which the evidence revealed a modus operandi that was substantially probative of the offence alleged. One argument put against that conclusion was that the sexual offences alleged were unremarkable, and thus lacking such striking similarity as to make offending on one occasion probative of offending on the other. Campbell JA rightly rejected the argument on the basis that the modus operandi was capable in itself of being sufficiently probative of the offending in issue. As his Honour noted, the way in which it was put by one of the two judges who had considered the problem at first instance, and whose treatment of the problem was approved of on appeal, was that the evidence established a tendency on the part of the accused ‘to do something unusual, that is to indecently assault women who are asleep at his place after having attended a party there’. In that context, Campbell JA’s statement does not suggest that his Honour had in mind any departure from previous authority. To the contrary, we see his Honour’s analysis as an affirmation of established principles as they applied to the facts at hand.
[10][2010] VSCA 135.
[11]Ibid [29].
The judge then referred to the tendency notice, describing it as ‘perhaps an extremely detailed one’. His Honour stated that, in essence, the Crown sought to prove:
… a tendency that the accused had a sexual interest in the child complainants who were friends of his son who came to visit and slept over at [his] house and that he had a particular state of mind, and that is a willingness to act on that sexual interest and, in fact, to do acts, as have been described, such as, touching his penis, licking an anus or inserting his penis into a complainant’s anus, in accordance with, or acting out upon the state of mind or the sexual interest in the complainant.
Accordingly, said the judge, a fact in issue is whether the applicant has this tendency and whether he acted upon it in respect of the incidents alleged on the indictment.
The judge analysed the evidence and observed that:
(a)Except for charges 2, 12, 13 and 15, the sexual interference occurred when the applicant came into X’s bedroom and commenced while the complainants were asleep;
(b)Charges 2, 12, 13 and 15 occurred in the lounge room when the applicant, X and the complainant (B as to charge 2, and D as to charges 12, 13 and 15) were watching television;
(c)A number of acts occurred on the same night with the applicant touching the complainant in the bedroom then leaving the room and returning later (charges 3 to 11) (B and C), or an incident occurred in the lounge room and the applicant later entered the bedroom to sexually interfere with the complainant (charges 2 to 7 (B) and 12 to 15) (D);
(d)On all occasions X was nearby and asleep, although in relation to D, X woke up.
The judge concluded that:
… taken at its highest the evidence of each of the complainants if accepted tends to establish that the accused had a sexual interest in the young boys and further, he was willing to act on this interest by fondling or by licking or by penetrating a complainant or by asking a young complainant to give him oral sex.
While one group of offences, the fondling or trying to fondle may be different expressions of this sexual interest than, for instance, the anal penetration, these differences are not such as to render the evidence as not properly characterised as evidence going to establish the particular tendency alleged.
In addition, the judge noted that ‘In the argument in the end [the applicant’s counsel] conceded the evidence was properly assessed as tendency evidence or evidence going to establish that the applicant had the tendency alleged’. Furthermore, ‘throughout the course of the argument … both parties accepted that all the evidence was relevant’.
As the judge said, however, that was not the end of the matter. Section 97 required not only that the evidence be probative of a fact in issue, but also that it have ‘significant probative value’. Probative value is defined in the dictionary to mean ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’. As to that, the judge concluded that:
The evidence of the alleged incidents and the surrounding circumstances makes the existence of the alleged tendency more likely and it makes it more likely that the accused was willing to act on the tendency or that he did act in accordance with the tendency and committed the offences alleged.
As to whether the evidence had ‘significant probative value’, he noted that the term is not separately defined, but that the authorities have made clear that the evidence must be of importance or consequence in the sense of its relevance to the events giving rise to the offence.[12] In this regard, the judge referred to the applicant’s two main submissions. First, that the evidence lacked probative value because there were occasions when some of the complainants stayed at the house and nothing happened, and that sometimes the complainants did not leave immediately but waited until the morning, and indeed with the exception of A the complainants returned to the house on later occasions. Secondly, that the evidence was potentially contaminated because one complainant, B, spoke to his brother C about the matter and then indirectly to A and via a police officer with D before making police statements.
[12]See JLS v R [2010] VSCA 209, [18]; R v Lockyer (1996) 89 A Crim R 457, 459; R v Lock (1997) 91 A Crim R 356; R v AH (1997) 42 NSWLR 702, 709.
The judge rejected both these submissions.
As to the first issue, the judge considered that the submissions went to the reliability of the complainants. He referred to the authorities in New South Wales,[13] followed in Victoria,[14] to the effect that reliability is a matter for the jury to assess, and that it is not the trial judge’s role to usurp the jury’s assessment of reliability in determining admissibility. The judge considered that he was ‘bound not to take into account the reliability of the complainants, but take their evidence at its highest and consider whether it is capable of having significant probative value.’
[13]R v Shamouil [2006] NSWCCA 112, [60]; Ford v R [2009] NSWCCA 306, [42]-[49].
[14]NAM v R [2010] VSCA 95, [23]; DPP v McRae [2010] VSC 114, [18]; THD v R [2010] VSCA 115, [26]; JLS v R [2010] VSCA 209, [26]; PG v R [2010] VSCA 289, [77]; MA v R [2011] VSCA 13, [17].
His Honour concluded that:
… the evidence, including the similarities of some of the acts and the similarities in the surrounding circumstances, makes the tendency evidence of significant probative value. Its probative value is of importance and is of real consequence in assessing whether the accused had the alleged tendency and acted in accordance with it. It makes it significantly more likely that the accused committed the offences alleged.
He added that the fact that the tendency evidence came from multiple complainants made its probative value stronger.[15]
[15]See Stubley v Western Australia [2011] HCA 7, [143].
As to the second issue, the judge stated that the possibility of conscious or unconscious influence between complainants must be a real possibility and not just potential for concoction based upon an opportunity. He noted that no request was made to cross-examine the complainants or any witness on a voir dire to challenge the provenance or authenticity of the complaints. As to B speaking to his brother C, and indirectly to A, nothing in the circumstances showed a real possibility of concoction. And D had spoken to relatives years before. The judge noted further that given some of the differences in the allegations made by the brothers, ‘it seems clear that the two did not get their heads together to ensure identical or very similar allegations were made’. He observed that while the applicant’s counsel might seek to raise the risk of ‘joint concoction’ with the jury, it remained a jury issue which did not render the evidence of less than significant probative value.
The final question was whether the probative value of the tendency evidence substantially outweighed the prejudicial effect it may have on the applicant, as required by s 101(2). As the judge said, again the evidence is taken at its highest and issues of reliability are for the jury. The judge noted that the applicant’s counsel could not point to any unfair prejudice, or any particular factual circumstances which would make the jury unable to follow and apply directions on tendency or coincidence evidence or separate consideration warnings. It followed that the tendency evidence was admissible.
As to the coincidence evidence, the judge noted that ‘the need for similarities in the events or in the circumstances are much more to the fore’. He noted the relevant similarities in the age of the complainants and their evidence as to the place and manner of the assaults. He further noted that the applicant’s counsel conceded that there were some similarities but submitted that the differences (to which the judge referred) meant that the evidence was not of significant probative value. The judge referred to the questions posed by this Court in CGL v DPP,[16] all of which were to be answered in the affirmative. I interpolate that the first of those questions is whether the similarities in the specified events and/or the circumstances in which they occurred are such that it is improbable that the events occurred coincidentally? The judge answered in the affirmative, and concluded that the coincidence evidence was of significant probative value. He reiterated his rejection of the submission as to joint concoction, and concluded that the requirement of s 101(2) was also met.
[16][2010] VSCA 26, [22].
Appeal
In seeking leave to appeal the applicant relies on the following grounds:
(1)the judge erred in not properly assessing the cogency of the evidence, which resulted in an erroneous finding that the evidence was both probative and significantly probative;
(2)the judge failed to give proper weight to the fact that the accused had no control over the number, or time, that children would visit and stay, and that they visited and stayed before and after the alleged incidents occurred;
(3)the judge erred in ruling the evidence admissible on the basis the complainants were young, because they were all of the same or similar age to X;
(4)the admission of the evidence will result in the applicant not having a fair trial; and
(5)the judge erred in not granting separate trials.
Counsel for the applicant spoke to a written submission which combined grounds 1, 2 and 3. As before the judge, the argument was addressed first and primarily to the tendency evidence with little additional reference to coincidence evidence. Counsel then dealt with grounds 4 and 5 together.
Commencing with the tendency evidence, counsel submitted that for evidence to demonstrate a tendency, there must be ‘a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others’, that is, an ‘underlying unity’ between the evidence of each complainant; see R v Papamitrou.[17]Counsel conceded that in this case there need not be a ‘striking similarity’, as the only fact in issue is whether the matters alleged occurred, and identity is not in issue.
[17](2004) 7 VR 375, 390, [31].
In developing this submission two strands emerged, concerning respectively the cogency of the evidence and whether it could constitute evidence of a tendency.
As to the former, counsel submitted that by reason of inconsistencies and inherent improbabilities in the evidence, the evidence lacked cogency and thus did not possess probative value let alone significant probative value. He relied on the following matters. First, each complainant stayed at the applicant’s home before or after (or both) of the occasions of offending, without making complaint. C stayed before and a few years later lived with the applicant for one to two years. B stayed over about six months later. A may have stayed over before and did later. D stayed before and after the first offending and subsequently returned about two weeks later (when further offending occurred). Further, the offending with A and B occurred on a single night, while with C and D it occurred on two separate occasions.
The second matter was charge 2 where the offending was improbable in view of the fact that X was also on the couch watching television but said nothing while the applicant masturbated B, there was no blanket or materials covering them.
The third matter was that X does not recall the applicant coming into his bedroom when his friends slept over, whereas C states that twice X told the applicant to leave his room.
The fourth matter, which would seem to go more to the tendency issue, was that the offending the subject of charge 3 concerning B did not occur with the other complainants.
The fifth matter is the time elapsed, about 14 to 15 years, since the events occurred, with the first complaints occurring between 2004 and 2009.
These matters were to be considered in light of the applicant’s denial in his statement to the police that any of the events occurred.
Counsel submitted that the cogency of the complainants’ evidence was ‘much reduced’ by these matters, such that it lacked ‘sufficient cogency’ to allow it to be properly regarded as probative or of significant probative value.
As to the second issue, counsel submitted that the ‘few occasions’ of alleged offending did not reveal a tendency. As to this, he referred to the following matters. As between the complainants, there were differences in the applicant’s alleged behaviour. Then, the complainants attended and stayed at the applicant’s home voluntarily as friends of X, a boy of similar age, not at the invitation of the applicant, or under his control as in PNJ v DPP.[18]Regarded overall, and with reference to observations in GBF v R,[19] the applicant’s alleged conduct was unremarkable and of no significant probative value.
[18][2010] VSCA 88, [19].
[19][2010] VSCA 135, [27].
In relation to the coincidence evidence, counsel generally relied on the submissions in relation to tendency. Further, however, he submitted that with coincidence evidence it was more relevant to demonstrate a modus operandi, as to which he referred to several authorities including CGL v DPP.[20]
[20][2010] VSCA 26, [29]-[31].
As to grounds 4 and 5, counsel submitted that if the evidence of the four complainants is cross-admissible the prejudicial effect of the evidence will be insurmountable, no matter what directions a trial judge may give. That is because the cumulative effect of all of the evidence will promote a prejudice that cannot be cured by a direction. It was submitted that on a joint trial the jury may well have difficulty in properly understanding the use it could make of the different directions in respect of the different counts.
In my opinion the judge was correct in each of his rulings.
Sections 97 and 98 of the Evidence Act 2008 respectively state what constitutes tendency and coincidence evidence. Section 97 provides as follows –
(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) … ; 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.
Section 98 provides –
(1)Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
(a) …; 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.
The first issue raised by the applicant in objecting to the admission of the evidence concerned its so-called cogency. This submission must confront the difficulty identified by the judge, that the accepted position in New South Wales and this State[21] is that, subject to possible exceptions, reliability is not considered in determining whether evidence is admissible as tendency or coincidence evidence within the meaning of s 97(1) and s 98(1). The reason why that is so lies in the proper understanding of the operation and effect of the definition of ‘probative value’ as meaning ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[22] The critical words in that definition are ‘could’ and ‘rationally affect’. As Spigelman CJ pointed out in R v Shamouil,[23] the word ‘could’ puts the focus on capability as distinct from likelihood of conclusion. That is, evidence has ‘probative value’ if it is capable of supporting a verdict of guilty. That understanding is reinforced by the requirement that the evidence ‘rationally affect’ the assessment. Evidence could only rationally affect the assessment if it is accepted. The consequence of this analysis is that the evidence is considered on the basis that it is accepted, or, as it is said, taken at its highest, in determining whether it is probative, and indeed of significant probative value. It is thus incompatible to consider credit and reliability in this consideration.
[21]See [30] above.
[22]Emphasis added.
[23](2006) 66 NSWLR 228, 237 [61].
Nevertheless, in Shamouil Spigelman CJ said[24] that there may be some, although limited, circumstances in which credibility and reliability will be taken into account when determining probative value, referring in this respect to a statement of Simpson J in R v Cook[25] in the context of the exclusion of evidence under s 137. In the passage to which Spigelman CJ referred, Simpson J said that:
There will be occasions when an assessment of the credibility of the evidence will be inextricably entwined with the balancing process. That means that particular caution must be exercised to ensure that the balancing exercise is not confused with the assessment of credibility, a task committed to the jury. There may, for example, be occasions on which the accused’s response is so preposterous as to give rise to the conclusion that it could be accepted by no reasonable jury. The credibility exercise, in those circumstances, is to determine whether the evidence given by (or on behalf of) the accused is capable of belief by the jury. If it is, then its prejudicial effect must be considered. If it is not, then the balancing exercise may well result in an answer favourable to the Crown. That is essentially because any prejudice arising to an accused from putting a preposterous explanation to the jury would not be unfair prejudice.
[24]Ibid 236-237 [56].
[25][2004] NSWCCA 52, [43].
In addressing his submissions as to a lack of cogency and thus of probative value, counsel for the applicant relied on the possible exceptional case mentioned by Spigelman CJ. He submitted that the present case fell within the exception. In my view, to describe the various circumstances relied upon as constituting a lack of cogency was no more than another way of submitting that the evidence should be regarded as lacking reliability if not credibility. But these are primarily questions for a jury as Spigelman CJ pointed out.[26] In my opinion none of the matters referred to, whether considered individually or together, could be regarded as being within the limited exception referred to by Spigelman CJ. They all are matters which essentially lie in the province of the jury to consider in determining questions of credibility and reliability. For these reasons, which it is unnecessary to develop, the submission as to a lack of cogency must be rejected.
[26](2006) 66 NSWLR 228, 238 [64].
Another issue dealt with by the judge was that of the possibility of contamination or corruption of the evidence. For the sake of clarity I observe that it was both open to the judge, and correct, to conclude as he did on this issue.
That brings me to the issue as to whether the judge was correct in concluding that the evidence was tendency evidence within the meaning of s 97(1). Whether that was so is a question of fact to be answered in light of the facts and circumstances of the particular case. The question is whether the evidence established, or might be taken by a jury to establish, a tendency of the applicant to act in a particular way or to have a particular state of mind. The Crown identified the evidence in this way, that the alleged offending involved male complainants of a similar age group (seven – 13) who were assaulted over a three year period (1996-1998) at the applicant’s house while they were visiting the applicant’s son, with many of the assaults occurring whilst the complainants were asleep. While there were some differences in the particular acts of the applicant, they all were of a sexual nature which manifested not merely a sexual interest in the mind of the applicant in these young visitors at his home but an intention and willingness to act on that state of mind. The tendency notice described the acting and state of mind in a more particular way in that it referred to and identified the particular way of acting. The facts showed that the offending occurred in the same situation, that is the applicant’s house, in similar circumstances of a boy staying overnight and the applicant exploiting the opportunity thus occurring to pursue a sexual interest in such young boys. It is not that he himself induced them into the setting in which he was able to do what he did but that in the setting that obtained he acted opportunistically to pursue his sexual interest. Further, as the Crown emphasised, the applicant’s degree of persistence towards the boys (except A) was a relevant matter going to the circumstances and pattern of conduct said to reveal the tendency alleged. It is not to the point, or at least it is no answer, that he might not on every occasion of a boy staying over at his house have pursued this interest. The question is whether the evidence shows such a sufficiency of commonality in acting in relation to young boys staying over in his home as to be able to establish a tendency in the applicant to act in a particular way or to have a particular state of mind. In my opinion it does and the judge was correct to so rule.
I do not consider that the case of PNJ v DPP[27] compels a contrary conclusion. It is important to bear in mind that each case is a decision on its own facts. In PNJ the Court considered as critical the fact that the complainants came to the Youth Training Centre as inmates where the accused worked in a supervisory role as a youth officer, and that the boys’ presence at that place and in those circumstances was something outside the accused’s control. In short the Court considered that there was a lack of distinctiveness about the way in which the accused took advantage of the setting or context to engage in the alleged sexual activity with the complainants, the location merely reflecting the custodial setting, and the acts being otherwise unremarkable. There being no distinctive feature, or pattern, the evidence was considered not to constitute tendency or coincidence evidence. It was in reliance on this decision that the applicant submitted that a critical feature in the present case was the lack of ‘control’ of the applicant in relation to the presence of the complainants at his house. That is, they came voluntarily to see his son, X, and not in any way under or in virtue of any control, direction or plan of his. Accordingly, the alleged offences were to be seen, as in PNJ, as lacking any distinctiveness or pattern. As I have said, each case is to be decided on its own facts, the question being whether the evidence proposed to be adduced is tendency or coincidence evidence as stated in s 97(1) and s 98(1). In my opinion the evidence proposed to be adduced in the present case does establish a modus operandi or pattern of conduct and a state of mind sufficient to bring it within the terms of s 97(1).
[27][2010] VSCA 88.
In my view the judge was correct to conclude that the complainants’ evidence was tendency evidence, that it had significant probative value and that that value substantially outweighed any prejudicial effect it may have on the applicant, as required by s 101(2).
That leaves the question whether the evidence satisfied the requirements for coincidence evidence in s 98(1).
In my view the judge’s reasons show that he was attentive to the terms and requirements of s 98(1) and reasoned closely on the requirement of similarity in the complainants’ evidence as to the alleged offending and the circumstances in which it occurred to conclude that it was improbable that the events occurred coincidentally. His Honour considered the context and content of the allegations including the surrounding circumstances. It is unnecessary to set out the lengthy analysis of the events in which the judge identified the many similarities in the events, and differences, and concluded that the situation was entirely different to the circumstances in PNJ. Before the judge, and before this Court, counsel conceded that there were similarities but it was submitted they were not enough and together with the differences meant that the evidence was not of significant probative value.
In my opinion, the judge was correct in ruling that the evidence did constitute coincidence evidence, and in the further rulings as to concoction or corruption, and that the probative value of the evidence substantially outweighed the prejudicial effect it may have on the defendant, as required by s 101(2).
That leaves for consideration grounds 4 and 5. There is no substance in ground 4 which contends that the admission of the complainants’ evidence will result in the applicant not having a fair trial. The judge dealt with this point. Any prejudicial effect of the evidence will be met by appropriate directions from the trial judge including as to separate consideration. As to ground 5, that separate trials should have been ordered for each complainant, for like reasons there is no substance in the contention that in a joint trial the jury may have difficulty in properly understanding the use it can make of the different directions in respect of the different counts, or to put it another way, that there is a risk that the jury may misuse the evidence. I do not accept that that is so. In the present case, counsel could point to no particular features of the evidence which made it likely that the jury would be confused by the directions they may be given as to the use of the evidence, or that any unfair prejudice would arise. The present case is far removed from the situation in GBF where the evidence was only partially cross-admissible, thus necessitating a complex set of directions ‘bordering on metaphysical’ which the jury may well have found difficult to apply.[28] In my view, the judge was correct to conclude that the matter can be dealt with, in the usual way, by appropriate directions. It must be expected that the jury will diligently attend to the evidence in the course of the trial, follow the judge’s directions as to their consideration of that evidence, and give a verdict accordingly.
[28][2010] VSCA 135, [54].
In these circumstances, the judge was correct to refuse to order separate trials.
For these reasons, leave to appeal should be refused.
Finally, I should add that I have considerable doubt that the judge should have granted a certificate. His ruling, which was well reasoned, did not detract from the Crown case and the applicant would in the event of conviction be able to raise his objection by way of application for leave to appeal against conviction, which right he will still have notwithstanding the present decision of this Court.
TATE JA:
I agree with the judgment of Hansen JA.
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