Kristopher Aleski (a pseudonym)[1] v The Queen
[2020] VSCA 124
•15 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0242
| KRISTOPHER ALESKI (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identifying the alleged victim of 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: | MAXWELL P, NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 March 2020 |
| DATE OF JUDGMENT: | 15 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 124 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2101 (Judge Johns) |
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CRIMINAL LAW – Appeal – Conviction – Indecent act with or in presence of a child under 16 – Sexual assault of a child under 16 – Sexual penetration of a child under 16 – Whether context or relationship evidence was admitted in error – Evidence Act 2008 s 137 – Whether guilty verdicts were unreasonable and unsupported by the evidence – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Dr M FitzGerald | Doogue + George Defence Lawyers |
| For the Respondent: | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA
WEINBERG JA:
Following a trial before Judge Johns and a jury, the applicant was convicted of six sexual offences against a single complainant, BC.[2] The offending spanned 2016 to 2018 when BC was between 10 and 12 years of age and the applicant was aged between 16 and 18 years. The applicant was the boyfriend of BC’s older sister, CC, who was two years older than BC.
[2]Charge 2 was an alternative to charge 1 and it is convenient to refer to six charges.
The offending occurred inside the complainant’s family home. During that time, BC lived with her mother and two younger siblings in a three bedroom house. During this period, CC and the applicant lived at various places and moved a number of times. However, for at least part of the time the applicant and CC lived in the family home and shared a bedroom with BC, which contained a bed on which they slept and a couch on which BC slept. In October 2017, the applicant and CC had a child, a boy, who also lived at the house.
On 1 March 2018, police conducted a video recorded interview (‘VARE’) with BC. That recording constituted her evidence in chief at the trial and the principal evidence in support of the charges.
In addition to evidence relating to the charges, BC referred in her VARE to a number of uncharged acts. With one exception, the uncharged acts were admitted as tendency evidence to prove that the applicant had an improper sexual interest in BC and a willingness to act on it. The single exception was evidence that on one occasion the applicant had lifted up BC’s skirt with his foot. The judge ruled that the evidence was not admissible as tendency evidence but was admissible as context or relationship evidence. The admission of that evidence forms the subject of proposed ground 1. We shall return to it after recounting the evidence.
BC said that her older sister, who was aged 16, introduced her to the applicant in 2016. After a couple of months, the applicant started being ‘really weird’ around her, touching her arms and trying to kiss her. She recalled an incident where he had pushed her onto a bed, so that she was lying on her back, and tried to kiss her on the lips. This was the first uncharged act identified in a tendency notice served by the prosecution, which is described below.
On a date which the prosecution sought to place between 13 November 2016 and 12 November 2017, BC said that she, a friend and the applicant were outside their house. The applicant was sitting on a bench. BC was standing opposite the applicant, who tried to lift up her skirt using his legs and exposed her underpants (the ‘skirt incident’). This incident was witnessed by BC’s friend, BD. It was the second uncharged act and, for present purposes, the most important.
The first charged incident occurred when BC, the applicant and her younger brother and sister were sitting on their mother’s bed playing video games. The two siblings were at the foot of the bed and the applicant and BC lay side-by-side under the bed covers. BC’s older sister was in another room. The applicant placed his hand underneath the bed covers and touched BC’s vagina under her clothes. BC pulled the applicant’s hand away and told him to stop, which he did after a number of attempts. The applicant then moved BC’s hand underneath his pants onto his penis. The pair then engaged in a play fight on the bed and the applicant kissed BC on the back. The touching of the vagina constituted charge 1 and was alleged to have occurred between 13 November 2016 and 30 June 2017.[3] The later aspects involving placing her hand on his penis and kissing her back were the third uncharged acts.
[3]The alternative charge, charge 2, was alleged to have occurred between 1 July 2017 and 12 November 2017.
The next charged incident occurred on a couch in BC’s bedroom between 15 and 30 January 2018 when BC was on school holidays at the end of grade 6. The applicant had recently returned from a trip to Sydney and he and CC had moved back into the house. On that occasion, the applicant entered BC’s bedroom and approached her, forcing her legs apart. The applicant then pulled her pyjama shorts and underwear to one side and introduced his fingers into BC’s vagina. BC felt pain and told him to stop. Shortly thereafter, the applicant left the room. This incident was the subject of charge 3.
The events giving rise to charge 4 occurred in very similar circumstances to charge 3 and soon after that offence, also during the school holidays. The applicant again went into BC’s bedroom and found her on the couch. He again moved BC’s shorts and underwear to the side and introduced his fingers into her vagina. BC felt pain, the applicant heard someone and stopped.
BC also said that during those holidays the applicant would slap her backside, feel her vagina outside of her clothes and kiss her. This evidence constituted the fourth uncharged acts.
Charges 5 and 6 occurred on a single occasion between 1 and 28 February 2018, once school had started. BC said that by this time, she had begun to sleep in the living room because she did not want to sleep in her bedroom. The applicant approached and pulled her shorts to the side and penetrated her vagina with his finger whilst kissing her (charge 5). The applicant then pulled down his pants, took BC’s hand and placed it on his penis. BC tried to remove her hand and the applicant held her hand to his penis and had BC masturbate him (charge 6).
BC said that the offending was interrupted by her younger brother coming out of his bedroom to get a drink from the kitchen. At that point, the applicant went back to his room before being seen and BC’s brother saw BC crying.
The last incident, the subject of charge 7, was alleged to have occurred between 14 November 2017 and 28 February 2018. It will be necessary to describe in some detail the circumstances in which charge 7 was placed on the indictment, but for present purposes it is convenient to outline the offending. On that occasion, BC said she was looking after the infant child of the applicant and BC’s sister. BC was lying on the bed, feeding the child, and the applicant came beside her, pulled her shorts and underwear to the side and introduced his fingers into her vagina.
Shortly after the final incident, BC told her sister and mother what had occurred. This resulted in a confrontation between the applicant and CC. As a result, the applicant and BC’s sister moved out of the family home. BC said that she had told her friend LD about the incidents.
On 19 March 2018, police conducted a VARE with BD, BC’s friend, who was aged 12 at the time of the interview. She said that she knew the applicant was BC’s sister’s boyfriend. She recalled being outside BC’s house on a little fence and the applicant was sitting on it. She saw the applicant lift up BC’s skirt with his legs and BD was able to see her underwear. BD described the clothes that BC was wearing and said that seeing the applicant lift up her skirt had made her feel uncomfortable. She was cross–examined remotely at the trial. It was put to her that she had spoken to BC about the incident before speaking with the police, that BC or someone else had told her about the skirt lifting incident and that she had decided to back up BC’s story. BD denied each of those propositions.
On 28 October 2018, police conducted a VARE with LD. LD said that in 2018, at the start of year 7, she saw that BC was upset. That morning, some boys in her school had spoken about rape which she and BC had heard and BC had become upset. She said that BC had told her that the applicant had sexually assaulted her.
LD recounted that BC had told her that the applicant would grab her, try to kiss her, push her up against the wall with all his strength and try to rape her. She said that BC had told her that the applicant had bitten her neck, pushed her down on the bed and ‘put his front part inside her front part’ and she screamed and was crying and bleeding.
She said that BC had told her that the applicant had raped her ‘more than several times, like, every day or, like, every week and he wouldn’t stop…’.
LD said that BC had told her about a specific incident in which BC described feeding her sister’s baby with a bottle whilst on a bed when the applicant took off his pants and raped her while she was still trying to feed the baby.
Subsequently, police spoke to BC about the incident with the baby that LD had described in her VARE. As will appear, BC denied to police that that incident had occurred before the trial commenced and it was not the subject of a charge. BC’s account that this had not occurred was not recorded in a VARE.
Tendency evidence
As noted, on 5 July 2019, the prosecution gave a notice pursuant to s 97(1)(a) of the Evidence Act 2008 (the ‘Evidence Act’) of its intention to adduce tendency evidence. The notice identified that the prosecution would seek to rely on the evidence to establish the tendency of the applicant to have a particular state of mind, namely, a tendency to have a sexual interest in the complainant and a willingness to act on that interest.
A table attached to the notice identified the relevant evidence, which included the charged acts and the uncharged acts we have identified above.
In addition to evidence of the charged acts, the tendency evidence, in summary, included pushing the victim, getting on top of her and trying to kiss her on the lips; grabbing the victim’s hand and putting it under his pants as she kept pulling it away; kissing her on the back; slapping her on the backside, feeling her vagina over her clothes and trying to kiss her; and kissing her. Evidence of those uncharged acts was admitted as tendency evidence and no complaint is made in that regard.
In addition, the prosecution relied on the second uncharged act and submitted that BD’s evidence that the applicant had tried to lift up her skirt was admissible to prove the relevant tendency, namely, an improper sexual interest in BC and a willingness to act on it. In the course of argument, the judge indicated that the evidence might also be seen as part of the narrative, ‘in a circumstantial evidence sense’, in that it indicated a progression of interest in BC, not necessarily a sexual interest, that had contextual relevance.
Ultimately, the judge ruled that the evidence of lifting the skirt was not admissible as tendency evidence. In a brief oral ruling given during the running of the trial, the judge concluded that the evidence lacked significant probative value in demonstrating a sexual interest by the applicant in the victim.
However, reflecting his earlier indication in argument, the judge ruled that the evidence remained relevant and admissible as context or relationship evidence. He concluded:
it is relevant as part of the sequence in the narrative as a marker on the time continuum, if you like, that it would be unfair to deprive the prosecution of that step in the process or developing nature of the contact that is alleged between the accused man and [BC] … .
The special hearing
The applicant was arraigned before the judge on an indictment containing six charges, including charge 2, which was an alternative to charge 1. The indictment did not contain any allegation concerning an incident when BC was holding a baby.
On 10 September 2019, BC was cross–examined at a special hearing under s 370 of the Criminal Procedure Act 2009 (‘CPA’). We note that her evidence was elicited with the assistance of an intermediary and after a ground rules hearing was conducted by the judge.[4] The judge gave directions under s 389E of the CPA in relation to the conduct of the special hearing. He directed that there be a maximum of 20 minutes of continual questioning before a break and that, as far as possible, the cross–examination of BC be concluded at around the two hour mark.
[4]See pt 8.2A of the CPA.
In that respect, the judge acknowledged that cross–examination may need to go longer, particularly because the applicant had indicated a desire to put prior inconsistent statements to the complainant. The judge directed counsel not to challenge the witness, or cross–examine on the basis of her blunt demeanour or latent emotional responses to questioning. The judge also directed counsel to avoid starting a question with ‘why’. The judge directed that compound questions be avoided, the witness be given sufficient time to process the question and that counsel follow a meaningful and sequential manner of questioning. The judge also permitted the witness to use cue cards and the presence of a therapy dog.
Early in the cross–examination, BC was asked about the living arrangements, which required her to share a bedroom with her elder sister, the applicant and their baby. Counsel suggested that she was a bit upset and randomly fought with her elder sister. BC accepted that this was true.
BC was then tested on the account of rape that she had given to LD. In cross–examination, BC admitted that she had told LD that the applicant had raped her and that this was not true. She was cross–examined specifically about the account that she had given LD, that the applicant had raped her while she was feeding her sister’s baby. As we have noted, that incident did not feature in BC’s VARE, was denied by her in a subsequent discussion with the informant and was not the subject of any charge.
BC agreed that she had told LD that the applicant had given her the baby to hold and asked her to feed the baby and that when she was feeding the baby the applicant had raped her. She denied telling LD that she had ended up with injuries from this rape and said that she could not remember whether she had told LD that it had caused bleeding. She accepted that the applicant did not rape her when she was holding the baby.
BC was then asked: ‘is there a reason you told [LD] that you were raped by [the applicant] when you were holding the baby?’ to which she replied ‘yes’. When BC was asked to say what the reason was, the intermediary interrupted, indicating that the witness had pointed to a cue card that said: ’I don’t want to say’. The matter was then stood down for a brief time. During the interlude, counsel for the applicant submitted that the witness should be directed to answer the question. That remained his position, saying to the judge that he would have to make a forensic decision depending on the answer.
After a short break, the witness was recalled. The judge explained to the witness that it was necessary to know the answer to the question that counsel had asked. The judge, with the concurrence of counsel, then asked the question himself. He asked the witness what was her reason for saying to LD that the applicant had raped her while she was holding the baby.
The witness then responded to the judge’s question by saying:
Um, because something did happen whilst I was holding the baby but it wasn’t rape and I didn’t mention it to the police … it was hard to talk about.
The matter was then stood down again. In the absence of the witness, the judge said to counsel that he did not know whether what happened was of a sexual nature or not. The witness was then recalled and counsel for the applicant asked her whether there was a reason she had told LD that she had been raped by the applicant when holding the baby. The witness replied in the affirmative and repeated:
Something did happen when I was holding the baby but it was not rape and I didn’t mention it to the police.
BC was then cross-examined in some detail about what she had told LD and on some other topics. The cross-examiner returned to the topic again a little later and directed BC’s attention to her earlier evidence where she had said that something had happened to her while she was holding the baby. The cross–examiner asked directly ‘what happened?’ to which BC replied:
Um, he, like, he put his fingers in, in me.
A little later, the cross–examination again returned to the incident with the baby and BC was asked about a further conversation she had with the informant in November 2018. BC accepted that she told the informant that the applicant had never raped her and that specifically the applicant had never raped her whilst holding the baby. She accepted that she had told the informant that she had made up the story about the applicant raping her whilst holding the baby but could not recall whether she had told the informant why she had made up the story.
BC accepted that she had not told the police about this incident before. In re-examination, the prosecutor took the witness to the questions about what had happened when she was holding the baby. The witness described what she was wearing and said that the applicant had pulled her shorts and underwear to one side and put his fingers in her vagina for a couple of minutes.
The prosecutor asked whether there was a reason she had not mentioned the matter to the police, to which she replied:
Yeah, cause it was really hard to talk about and I didn’t want to - like, because I was trying to - I don’t know - protect my sister as in not, like, I don’t know. I was trying not [to] ruin my sister’s life or her kids.
BC said that the incident happened when the baby was about three or four months old. She said that her younger brother and sister were in the house but her elder sister, CC, the baby’s mother, was at a friend’s house. BC explained that she was helping minding the baby because the applicant had not been feeding the baby properly and he had given the baby to BC to feed.
Two days later, a new indictment was filed over with the addition of charge 7, based on the evidence given by BC at the special hearing, and which alleged that the applicant intentionally took part in an act of sexual penetration with BC, a child under the age of 16 years.
The trial before the jury
The applicant was then arraigned before the jury on the fresh indictment containing seven charges. We note that the prosecution were permitted to rely on the facts supporting charge 7 as evidence of tendency and cross-admissible on the other charges. The need for an amended tendency notice to reflect this change was dispensed with.
In addition to the evidence of BC, BD and LD, which we have set out above, CC and BC’s mother also gave evidence. In a VARE, played to the jury, CC said that she met the applicant at school. She said that BC had told her that the applicant had ‘fingered her’, which she did not believe. She said that she had never left the applicant and BC alone and that they had ’been under my supervision’. The prosecution was given leave to cross–examine CC under s 38 of the Evidence Act on the level of supervision that she claimed to have exercised. She adhered to her evidence that whenever the applicant and BC were together she was also present.
BC’s mother said in her evidence that on two occasions the applicant and CC had stayed at the house for more than two months. Although she was uncertain as to dates, she said that the second occasion was when CC’s son was born. Aside from those occasions, she said that CC and the applicant stayed over on average three or four times a month.
BC’s mother said that when CC and the applicant slept over occasionally, the applicant would sleep on the couch and BC and CC would share the bed in BC’s bedroom. She said that on the second extended occasion, BC alternated her room with the applicant and CC, either staying with her mother or on the couch in the living room. There were a few occasions when BC slept in the same room as the applicant and CC, with cushions on the ground.
BC’s mother acknowledged that there had been friction between her and CC and that CC had moved out of the family home a number of times. She said that when the applicant and CC moved back with the baby, there were some arguments between BC and CC. BC was worried about having her own space and did not want to move out of her bedroom.
The informant, Detective Leading Senior Constable Maxine Anne Welsh, also gave evidence at the trial. In cross-examination, she said that on 9 November 2018 (following the VARE with LD, which had taken place in October 2018) she had a telephone conversation with BC. She told BC that she had taken a statement from LD and wanted to know if BC had left anything out. BC replied that she had probably said something to LD and the informant asked whether it was about the baby. The informant’s notes recorded that ‘[BC] advised that she had told the truth in her VARE statement and had embellished her story to [LD] slightly’. The informant said that in her conversation with BD, she did not refer to being raped.
The judge’s charge
The judge directed the jury, in unexceptionable terms, about how the jury could use the tendency evidence. In relation to the skirt incident, he directed the jury as follows:
… you are not permitted to regard that allegation as demonstrating a sexual interest or a willingness to act on a sexual interest. It is not capable of that, and I direct that you not engage in that form of reasoning in relation to that conduct, if you find that it happened.
This evidence is not directly related to any of the offences charged. The prosecution say that this evidence is relevant, because it shows the context of the alleged offences. It is a circumstance that the prosecution say fits into the background or context of contact or you might say the relationship. I do not mean that in a sexual sense, but you know, just the relationship between [the applicant] and [BC} and helps demonstrate the level of contact between the two.
It is a circumstance that may show an attempt perhaps to establish some contact with the complainant, an attempt to develop rapport, and it is a circumstance that you are entitled to have regard to, to assess the nature of developing contact between the two if you find it occurred.
It is also important to the narrative in the sense of the sequence and to give you a full understanding of what [BC] says was her interaction with [the applicant]. As I say, you are not to use it as demonstrating a sexual interest. You must not use it as evidence from which you can infer the accused man had a sexual interest in the complainant and a willingness to act upon it. You must not infer the accused is the kind of person who is likely to have committed the offence or offences charged on the basis of it.
Ground 1
By ground 1, the applicant asserts that the judge erred in admitting the evidence that the applicant had tried to lift up the victim’s skirt with his legs because, pursuant to s 137 of the Evidence Act, its probative value was outweighed by the danger of unfair prejudice to the applicant.
In his written case, the applicant submits that the skirt evidence was not admissible as context or relationship evidence having regard to the conventional basis upon which such evidence is admitted. He submits that the evidence did not:
(a) provide the jury with essential background information, without which their assessment of the facts in issue would have been made in a vacuum;
(b) show why the complainant failed to complain or why she acted in a counter-intuitive manner on occasions when she was allegedly subject to more serious or invasive sexual conduct; or
(c) serve to counter a false impression that the alleged conduct the subject of the charge was ‘out of the blue’.
In oral submissions, the applicant submits that outside of these categories, misconduct evidence is not admissible as context or relationship evidence and, in substance, is no more than tendency evidence. Alternatively, if it were to be admitted, the jury would incurably apply tendency evidence reasoning to it.
More particularly, he submits that the skirt incident provided no context because it was of a different character to the charged offences and occurred in quite different circumstances. First, it predated the charged offences, although the exact timing of the incident was unclear on the evidence. Secondly, each of the charged offences occurred inside the house where the conduct could not be observed whereas the skirt incident occurred outside in the presence of a witness, BD. Thirdly, the evidence, did not show any interest in the complainant and, at its highest, was immature behaviour by a school-aged child, ‘picking on’ a younger school-aged child.
The applicant submits that the evidence was unfairly prejudicial because:
(d) there was a high risk that the jury would disproportionately focus on it because it was the only incident that was observed by another witness;
(e) it might provoke impermissible tendency or sexual interest reasoning; and
(f) it was likely to lower the applicant in the estimation of the jury and make the jury more sympathetic to BD.
Analysis
The first question is whether the evidence is relevant. To be relevant, it must satisfy the threshold erected by s 55 of the Evidence Act.
Evidence of discreditable conduct, including of a sexual nature, that is not the subject of a charge, may be relevant because it provides evidence of a tendency to act in a particular way or have a particular state of mind. In those cases, such evidence must meet not only the test of relevance in s 55 of the Evidence Act but also the much stricter prescriptions contained in ss 97 and 101. To similar effect, such evidence may constitute coincidence evidence admissible under s 98.
Such evidence may, however, be relevant and admissible independently of whether it establishes a tendency or coincidence because, for example, it provides relevant evidence of context or relationship that explains the actions of the victim or the conduct of the accused.
In RWC v The Queen,[5] Simpson J (with whom Price and Garling JJ agreed) identified the distinction between tendency and relationship or context evidence in a way that highlights the potency of tendency reasoning. Its force lies in the fact that it invites a reasoning as to guilt of the charged offence rather than establishing circumstantial facts upon which the prosecution proceeds. Her Honour said:
Evidence that is called context evidence is not tendered as going directly to the guilt of the accused person. It is tendered to explain the relationship between the complainant and the accused ... or to explain what may otherwise be unexplained, or raise questions in the minds of the jury concerning the behaviour of the complainant in response (or non-response) to the conduct of the accused the subject of the charge or charges. Commonly, evidence of a history of sexual abuse or misconduct is tendered to explain why a complainant passively yields to the abuse, shows no surprise, or makes no complaint.
Evidence that is tendered as tendency evidence is tendered as relevant to the guilt of the accused: as showing a tendency on his/her part to act in a particular way, or to have a particular state of mind: from this, the prosecution will seek to have the jury draw an inference that, on the occasion or occasions in question, the accused acted in a particular way or had a particular state of mind. Tendency evidence provides the foundation for an inference of guilt of the conduct alleged on the occasion or occasions the subject of the charge or charges.[6]
[5]RWC v The Queen [2010] NSWCCA 332 (‘RWC’).
[6]Ibid [122]–[123] (citations omitted). See also Murdoch (a pseudonym) v The Queen (2013) 40 VR 451, 455-6 [12]; [2013] VSCA 272; (Redlich and Coghlan JJA); Ritchie (a pseudonym) v The Queen [2019] VSCA 202, [127] (Kaye, Weinberg JJA and Kidd AJA), citing RWC; Henderson (a pseudonym) v The Queen [2017] VSCA 237, [68] (Beach, Ferguson and Coghlan JJA).
The admissibility of sexual conduct as evidence of context or relationship is not without controversy or risks. In Director of Public Prosecutions v Martin (a pseudonym), this Court referred to three cases in the High Court where the justices of the High Court expressed different views without establishing a clear statement of principle.[7] Nevertheless, the prevailing view in this Court is that such evidence is admissible.
[7][2016] VSCA 219, [82]–[96] (Redlich, Weinberg and McLeish JJA), citing HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16.
In Ritchie (a pseudonym) v The Queen,[8] this Court emphasised the risk that relationship evidence may be used by a jury as though it established a propensity to act in a particular way and thereby infer guilt of the charged offences. In that respect, Kaye, Weinberg JJA and Kidd AJA said:
In the absence of careful directions by the trial judge, a jury might impermissibly misuse relationship evidence for tendency or propensity purposes. That risk exists, because, generally speaking, most tendency evidence can also fill the role of relationship evidence, and, conversely, nearly all relationship evidence can bespeak a propensity or tendency, without being admissible as tendency evidence.[9]
[8][2019] VSCA 202.
[9]Ibid [128].
In his submissions, the applicant identified three circumstances in which context or relationship evidence is admitted: to provide essential background information; to explain a victim’s failure to complain; and to counter a false impression that the alleged offending was ‘out of the blue’. Those examples provide illustrations about how such evidence might be relevant. However, they should not be viewed as exhaustive or approached as if they are statutory tests.
In this case, the evidence of the skirt incident was relevant. It was capable of establishing a physical connection between the applicant and BC and an attempt by the applicant to establish a relationship or rapport with her. It was also capable of showing that the applicant had a physical interest in BC. It formed part of an evolving narrative that placed the offending in some context.
Once the evidence was relevant, the question becomes whether its admission should have been refused under s 137 of the Evidence Act. We note that the judge held that the evidence was not admissible as tendency evidence. Section 137 requires the Court to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.
Before addressing the competing arguments, it is necessary to note one matter. When compared with the tendency evidence that was admitted, which included touching, kissing and other obviously sexual conduct, the skirt lifting evidence was relatively benign. Evidently, the strenuous efforts to have that evidence excluded were informed by the fact that, unlike the other evidence, it was supported by a witness, BD. It did not depend solely on the account given by the complainant, BC. That being so, it had some forensic force. However, the fact that it was supported by another witness did not bear on its admissibility. It did not add to its relevance, nor was it relevant in assessing its probative value or prejudicial effect for the purpose of s 137. Its probative value is to be assessed on the basis that it is accepted by the jury[10] and unfair prejudice is not measured by whether it will be accepted but whether the jury will deploy it in some impermissible way.[11]
[10]IMM v The Queen (2016) 257 CLR 300, 312 [39]; [2016] HCA 14 (French CJ, Kiefel, Bell and Keane JJ).
[11]Papakosmas v The Queen (1999) 196 CLR 297, 325, [91]–[92]; [1999] HCA 37 (McHugh J).
In our view, the evidence had some, but not any great, probative value. The conduct in question occurred in a different setting to the offending and, given the age of both the applicant and BC at the time, could easily have been seen as immature and unrelated to the charged acts. However, it was relevant to establish a change in the nature of the relationship between the applicant and BC that the jury was entitled to take into account.
We are not persuaded that any unfair prejudice attended its admission. The judge gave unexceptionable directions on both tendency evidence and the use to which the jury could put this evidence. In his closing address to the jury, counsel for the applicant identified inconsistencies in the evidence between BC and BD, including as to when the skirt incident occurred, and queried whether they had talked about it before BC went to police. Counsel invited the jury to reject the evidence. Alternatively, he contended that the evidence, at its highest, was a childish, immature act, so far removed from the alleged charges that it was just a distraction in the case. In the circumstances, there was no real risk that the jury would engage in impermissible tendency reasoning or unfairly give the evidence more weight than it was rationally capable of having.
Even if the applicant had demonstrated that the evidence should not have been admitted, we are satisfied that its admission could not have given rise to a substantial miscarriage of justice. In making this assessment, we take into account the extent to which the evidence was a focus at the trial.
In our view, given the issues at trial, which focused on the reliability of the complainant’s account, based on her differing accounts and antipathy towards her sister and the applicant, we are persuaded that this incident was of no real significance, and so even if its admission into evidence was erroneous, it did not result in a substantial miscarriage of justice.
We reject ground 1.
Ground 2
The applicant submits that the jury’s verdicts of guilty are unsafe and unsatisfactory. This ground invokes s 276(1)(a) of the CPA, which provides that this Court must allow an appeal against conviction if (amongst other things) the appellant satisfies the Court that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
The principles in relation to this ground are well established. The question, derived from M v The Queen,[12] is whether this Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.
[12](1994) 181 CLR 487; [1994] HCA 63.
Although this ground requires this Court to consider all of the evidence, the applicant focused his submissions on two interrelated aspects:
(g) First, he contends that the circumstances in which the evidence supporting charge 7 emerged, in cross–examination at the special hearing, demonstrated that the evidence of the applicant was entirely unreliable and liable to change in an extravagant way.
(h) Second, the inconsistent accounts given to LD on the one hand, and in the VARE on the other, suggested a high degree of unreliability and a propensity to exaggerate.
To those matters was added the more general point that there was no supporting evidence in relation to the charges, which depended entirely on the jury’s acceptance of BC’s evidence beyond reasonable doubt, notwithstanding that all of the alleged offending conduct occurred in a small house where other family members were present.
The circumstances in which the applicant came to be charged with charge 7 were unusual. We accept that the failure of BC to make any mention of the incident with the baby during her VARE was an important matter for the jury to consider. The VARE was conducted in an open manner and BC was given every opportunity to identify any interaction or incident with the applicant. The jury was well-placed to assess whether the change in BC’s story reflected unreliability on her part or whether her explanation as to why she had not raised the incident with police should be accepted. BC explained in her evidence that she had not wished to discuss the incident that occurred when she was holding the baby because she wanted to protect her sister and did not want to ruin her sister’s life or that of her kids. This was not an implausible explanation and it was well open to the jury to accept it.
BC gave a number of inconsistent versions of the applicant’s behaviour. The jury was bound to take these matters into account in assessing whether the prosecution had proven the charges beyond reasonable doubt. However, two points may be made. First, the account given by BC in her VARE was internally consistent and lacked the exaggeration and embellishment that had accompanied her conversations with LD. It was quintessentially a matter for the jury to assess those inconsistencies. It would not be surprising if the jury distinguished BC’s account to her friend which, given her age and the context of the conversation, may have been heavily exaggerated from her more restrained account, given in the solemn environment of the VARE. The jury was not bound to regard her entire account as untruthful.
Secondly, we do not accept the submissions of the applicant that the ground rules imposed by the judge at the special hearing imposed any constraint on counsel’s ability to explore inconsistencies in her evidence. We have set out the directions given by the judge above. Having read the transcript of the cross–examination at the special hearing, we are not persuaded that counsel was impeded in his ability to explore inconsistencies or test the witness.
The fact that the offending occurred within the confines of a family home at which other persons were present does not render the verdicts unsafe. The absence of supporting evidence in relation to the offending is not unusual and it does not require enhanced scrutiny. We are well satisfied that the verdict on each of the charges was open to the jury and that they were not bound to have a reasonable doubt.
Ground 2 must be rejected.
Conclusion
Leave to appeal should be refused.
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