Lambert (a pseudonym) v The King
[2023] VSCA 133
•6 June 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0044 |
| PETER LAMBERT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification of the complainants, this judgment has been anonymised by the adoption of pseudonyms.
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| JUDGES: | BEACH, KYROU and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 May 2023 |
| DATE OF ORDERS: | 11 May 2023 |
| DATE OF REASONS: | 6 June 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 133 |
| JUDGMENT APPEALED FROM: | DPP v [Lambert] (County Court of Victoria, Judge Syme, 22 March 2023) |
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CRIMINAL LAW – Interlocutory appeal – Indecent act with a child under 16 years – Sexual penetration of a child under 16 – Attempted indecent act with a child under 16 years – Rape – Multiple complainants – Evidence of all complainants joined in single indictment – Whether evidence of all complainants cross-admissible as tendency evidence – Whether indictment should be severed – Leave to appeal refused.
Evidence Act 2008 ss 97 and 101(2).
House v The King (1936) 55 CLR 466; Hughes v The Queen (2017) 263 CLR 338; R v Bauer (a pseudonym) (2018) 266 CLR 56; DPP v Matthews (a pseudonym) [2019] VSCA 11; DPP v Pearson (a pseudonym) [2021] VSCA 336 and TL v The King [2022] HCA 35 referred to.
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| Counsel | |||
| Applicant: | Mr A Waters | ||
| Respondent: | Mr DA Glynn | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
KYROU JA
T FORREST JA:
On 27 March 2023, the applicant filed an application for leave to appeal against an interlocutory ruling made in his trial in the County Court on 22 March 2023. The application for leave was made pursuant to s 295 of the Criminal Procedure Act 2009 (‘CPA’). On 11 May 2023, following the hearing of the application, we refused leave to appeal. We set out below our reasons for that refusal.
The applicant currently faces trial in the County Court on an indictment containing 14 charges relating to five complainants. A summary of these charges is set out below:
Charge
Offence
Date
Complainant
1 Indecent act with a child under 16 years [Crimes Act 1958, s 47] Between 15 June 1998 and 25 August 2003 EP 2 Indecent act with a child under 16 years Between 15 June 1998 and 25 August 2003 TW 3 Indecent act with a child under 16 years Between 15 June 2000 and 14 June 2004 EP 4 Indecent act with a child under 16 years Between 15 June 2003 and 17 November 2005 EP 5 Indecent act with a child under 16 years Between 15 June 2003 and 14 June 2005 JW 6 Sexual penetration of a child under 16 [Crimes Act, s 45(1)] Between 15 June 2003 and 17 November 2005 JW 7 Indecent act with a child under 16 years Between 15 June 2003 and 17 November 2005 EP 8 Indecent act with a child under 16 years Between 18 October 2002 and 17 October 2004 SA 9 Indecent act with a child under 16 years Between 18 October 2002 and 17 October 2004 SA 10
Indecent act with a child under 16 years Between 18 October 2002 and 17 October 2004 SA 11 Attempted indecent act with a child under 16 years [Crimes Act, ss 47, 321M] Between 18 October 2002 and 17 October 2004 SA 12 Indecent act with a child under 16 years 15 July 2006 EP 13 Rape [Crimes Act, s 38(1)] 15 July 2006 SN 14[2] Sexual penetration of a child under 16 15 June 2006 SN [2]Charge 14 is an alternative to charge 13.
The judge’s interlocutory ruling was made in response to tendency notices filed by the prosecution. The judge ruled that the asserted tendency evidence identified in the most recent tendency notice was admissible and refused the defence’s request to sever the indictment.
As we have said, the applicant sought leave to appeal under s 295 of the CPA against that interlocutory ruling. The applicant advanced the following proposed grounds of appeal:
1.The learned trial judge erred in concluding that the tendency evidence of each of the charged and uncharged acts, as set out in the amended prosecution tendency notice (dated 14 March 2023), had significant probative value in relation to all of the charged acts, and in particular that:
a.The learned trial judge erred in ruling that the asserted tendency was of sufficient particularity as to be capable of having significant probative value, or of revealing a tendency at all.
b.The learned trial judge erred in finding that all of the evidence of charged and uncharged acts, as set out in the said tendency notice, strongly supported proof of the asserted tendency.
c.The learned trial judge erred in finding that the asserted tendency strongly supports proof of all charges.
2.The learned trial judge erred in finding that the probative value of the tendency evidence substantially outweighed the prejudicial effect of the evidence.
3.The learned trial judge erred in refusing to sever charges 12-14 from the indictment.[3]
[3]Ground 4 was abandoned by the applicant.
The prosecution case
At the time of the alleged offending the applicant was aged between 27 and 33 and was living in a unit in a Victorian suburb. The five female complainants — EP, TW, JW, SA and SN — attended the same school and were known to each other.
The complainants
EP was aged between 6 and 14 during the period of the alleged offending. She lived in the same suburb as the applicant, who befriended her, bought her gifts and took her on outings. The applicant told EP not to tell her mother about the time they spent together. The other four complainants were all school friends of EP. TW, JW and SA lived in the same suburb as the applicant and SN lived nearby.
Charges 1 and 2
Charges 1 and 2 relate to an event that took place on an occasion between 15 June 1998 and 25 August 2003. On this occasion, EP and TW were playing in the rear yard of EP’s family home, which shared a fence with the applicant’s unit. The applicant spoke to EP and TW and offered them a Kinder Surprise chocolate if they pulled down their pants and underwear. The two girls complied, exposing their genitals, and received a Kinder Surprise from the applicant. At this time, EP was between 6 and 11 years old and TW was between 6 and 12.
Charge 3
Charge 3 relates to an occasion between 15 June 2000 and 14 June 2004 when EP and SA were both aged between 8 and 12. The girls attended the applicant’s unit and were given alcohol mixed with fruit juice. The applicant lay down in the lounge room and invited EP to straddle him, and to move her body up and down over his groin area. The applicant asked SA to film this event and she did. The following day, EP returned to the applicant’s unit, where he told her that his penis had been hard all of the previous night.
Charges 4 and 5
Charges 4 and 5 relate to the same occasion, although the period specified in the indictment for each charge varied slightly.[4] EP and JW, who were aged between 10 and 13, were inside the applicant’s unit. He asked them to show him their ‘bums’. Both EP and JW pulled down their pants and exposed their buttocks in view of the applicant, who gave them $20 each.
Charge 6
[4]See the table at [2] above.
Charges 6 and 7 occurred during the same occasion as charges 4 and 5.
After giving EP and JW the money, the applicant directed JW to go into his bedroom and lie on the bed. She did so. The applicant pulled down JW’s pants and underwear, and then rubbed her legs and touched her vagina, before inserting his fingers into her vagina. JW told the applicant that it hurt and she didn’t want him to keep doing that. The applicant replied “shh it’ll be over in a minute” and continued to digitally penetrate JW for several minutes before directing her to leave the bedroom. She did so and joined EP in the lounge room.
Charge 7
The applicant directed EP to enter his bedroom. He asked her to show him her vagina and offered to pay her. EP undid her pants, and the applicant lent forward, putting his face close to her vagina before inhaling deeply. The applicant asked EP to open her vagina but EP refused. EP then left the bedroom.
The applicant gave EP and JW some money and the girls left his unit. As EP was leaving the unit the applicant grabbed her, kissed her and squeezed her body.
Charge 8
Charge 8 relates to an occasion between 18 October 2002 and 17 October 2004 when SA was 11 or 12 years old. The applicant invited her to his unit to help him clean, asking her to perform the chores wearing only her underwear. SA complied, cleaning the unit in her underwear while the applicant was present. Afterwards, the applicant paid SA a sum of cash.
Charge 9
On an occasion between 18 October 2002 and 17 October 2004, when SA was cleaning the applicant’s unit, he asked her to drop her dirty underwear at his door. SA complied, and the applicant later washed and then returned the underwear to SA along with $20.
Charge 10
After the applicant had been asking SA for her own underwear for some time, he then asked her for a pair of her sister’s underwear on an occasion between 18 October 2002 and 17 October 2004. The applicant offered to pay more, as the sister was younger. SA gave the applicant a pair of her sister’s dirty underwear and received $50 in return.
Charge 11
On an occasion between 18 October 2002 and 17 October 2004, when SA was approximately 12 years old, she was invited to the applicant’s unit at night. She went without her family’s knowledge. The applicant provided SA with alcohol and they sat on his couch, where he kept trying to place his hand on her vagina through her clothing. On each occasion, SA pushed his hand away. After he had placed his hand very close to her vagina, SA told him that that was enough and left the unit.
Charges 12 – 14
The alleged offending the subject of charges 12–14 occurred on 15 July 2006[5] while EP and SN were in Year 7. One day, EP asked the applicant to provide alcohol to her and SN and to drive them to a friend’s house. The applicant did so. Later, he picked EP and SN up from the friend’s house and drove them back to his unit. At this stage, the two girls were intoxicated. They asked him to buy them more alcohol which he did. EP and SN then went to EP’s house before going to a park to drink the alcohol with friends. EP and SN later returned to the applicant’s unit. At the unit, EP lay on a futon while SN felt the effects of the alcohol.
[5]While the indictment pleads that charge 14 occurred on 15 June 2006, it is plain from the amended summary of prosecution opening that the offending the subject of charge 14 is alleged to have occurred on the same day as the offending the subject of charges 12 and 13 (ie, 15 July 2006).
The following events make up charge 12. The applicant told EP that she needed to have a shower, but she disagreed. He walked her from the futon to the bathroom. Once in the bathroom, he removed her clothing while she told him that she did not want to have a shower and she wanted to keep her clothes on. SN tried to stop the applicant, but he ignored SN and pushed her out of the bathroom. The applicant then removed EP’s clothing (except for her socks) and put her in the shower, standing in front of her and holding her up in the shower. After the shower, EP went to a spare room in the applicant’s unit and passed out on a futon.
The following events make up charges 13 and 14. The applicant took SN into his bedroom and pushed her down onto his bed. He took off her pants and underwear, while SN, who was in shock, lay on the bed. He lay on top of her and put his penis into her vagina. He began to thrust his penis into her vagina while she asked him to stop several times. The applicant continued to penetrate SN for approximately 3 to 5 minutes without wearing a condom. SN felt pain while she was being penetrated, and was not sure if the applicant ejaculated into her vagina.
EP woke up and could see the applicant and SN on the applicant’s bed in the ‘missionary’ position, with SN beneath the applicant. EP tried to call out to SN but was unable to make a sound. She then passed out. After a period of time, SN and EP spoke to each other before leaving the applicant’s unit and returning to EP’s home. The following morning, SN told EP that the applicant had raped her.
Uncharged acts
Between 18 October 2002 and 17 October 2005, EP and SA would visit the applicant at his unit where he would play pornography on his television and refuse to switch it off.
On an occasion between 15 June 2000 and 25 August 2003, the applicant came to the window of his unit and watched TW and EP jumping on a trampoline in EP’s backyard. The two girls observed the applicant pull down his pants and expose his buttocks to them. EP and TW then pulled down their pants and exposed their buttocks to the applicant, who they were aware was watching them. On another occasion in the same time period, the applicant told SA that he would watch TW jump naked on her trampoline on hot days.
On an occasion between 15 June 2001 and 14 June 2003, while EP was aged between 9 and 10, she was at the applicant’s unit while he played a pornographic video on the television. The applicant replayed a portion of the video showing a female urinating during sex and spoke to EP about the urination. EP thought the video was ‘gross’.
In the period between 15 June 2001 and 14 June 2003, the applicant would visit EP and her family in their home. On occasions, as he was leaving, he would kiss EP on the lips and press his body (including his genitals) against her.
On the same occasion that forms the basis for charges 4–7, the applicant gave EP and JW some money before they left his unit. As EP was leaving, the applicant grabbed and kissed her and squeezed her body.
Between 15 June 2003 and 17 November 2005, the applicant would make EP and SA look at pornographic magazines when they attended his unit.
Between 18 October 2002 and 17 October 2004, after the events that form the basis for charge 8, SA cleaned the applicant’s unit wearing only her underwear on several occasions.
Between 18 October 2002 and 17 October 2004, the applicant asked SA to give him her underwear in return for payment on several occasions. On each occasion SA complied.
On an occasion between 16 June 2000 and 15 July 2006, EP visited the applicant’s unit with her friend HV. The applicant told HV to wait outside, where she heard the applicant kissing EP. After leaving the unit, EP confirmed to HV that the applicant had kissed her.
The tendency alleged
The first tendency notice filed by the prosecution in the County Court was dated 13 September 2022. On 14 March 2023, the prosecution filed an amended version of the notice, which became the subject of the interlocutory ruling. Relevantly the notice stated:
2. The Prosecution seek to rely upon the tendency of the accused to:
2.1 Have a particular state of mind, namely;
(a)A sexual interest in girls aged between 8 and 14 who lived in the local area, including [EP] and friends of [EP], and a willingness to act on that sexual interest.
2.2 Act in a particular way, namely;
(a)To engage in sexual activity with or in the presence of girls aged between 18 and 14 including –
(i)Encouraging them to watch/look at adult pornography;
(ii)Encouraging them to expose their buttocks and/or genitals to him;
(iii)Kissing them on the lips;
(iv)Pressing his penis against their body through their clothing;
(v)Rubbing/touching their vagina;
(vi)Inserting his fingers into their vagina;
(vii)Encouraging them to carry out chores in his unit while wearing only their underwear;
(viii)Encouraging them to provide him with their dirty/used underwear;
(ix)Undressing and showering them; and
(x)Inserting his penis into their vagina.
(b)Offering or providing inducements for their involvement in sexual activity.
As we have indicated, argument proceeded on the basis of this amended tendency notice.
Defence submissions before the judge
The defence’s written submissions advanced three key arguments relating to the prosecution’s tendency notice: (1) the tendency asserted in para 2.1 of the tendency notice is of such generality that it does not meet the ‘significant probative value’ test; (2) the tendency asserted in para 2.2 of the notice is simply a recitation of the various conduct in which the applicant was said to have been engaged and does not reveal a tendency to act in any particular way; and (3) the probative value of either asserted tendency does not substantially outweigh its prejudicial effect.
In submissions on whether the evidence had ‘significant probative value’, the defence relied on the test set out by the High Court in Hughes.[6] In that case, the majority outlined a two step process for determining whether the proposed tendency evidence has ‘significant probative value’ as prescribed by s 97(1)(b) of the Evidence Act 2008:
(1)to what extent does the evidence support the tendency; and
(2)to what extent does the tendency make more likely the facts making up the charge(s).
[6]Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).
In relation to the first question, the defence conceded that the evidence in the present case supported the asserted tendency. However, as stated above,[7] the defence argued that the tendency was of such generality so as to fail to meet the second limb of the Hughes test.
[7]At [33].
The defence cited Bauer[8] and contended that, in multi-complainant sexual offence cases, for evidence of offending against one complainant to be sufficiently probative in respect of a second complainant, there must be some feature of or about the offending which links the two instances of offending. The defence submitted that the notice tendered by the prosecution contained no such feature. The only common features were the complainants’ age range (8–14 years) and the membership of the group (EP and her friends). This, it was submitted, was not sufficient. The defence offered a sample tendency[9] which may meet the significant probative value test for the contents of rows 1–19 of the tendency notice.[10] However, this sample tendency, it was submitted, could not extend to charges 12–14 — these events were qualitatively different. This was said to be because, on those occasions, the applicant forced sexual behaviour rather than encouraged it.
[8]R v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 (‘Bauer’).
[9]The sample tendency was expressed as ‘… by befriending EP and her friends, and then exploiting such friendships by encouraging them to engage in sexualised behaviour through enticement or reward.’
[10]Rows 1–19 of the notice contained the acts that formed charges 1–11, as well as all uncharged acts except for the act of kissing EP while her friend HV waited outside.
The defence contended that even if the incidents or conduct related to charges 1–11[11] did demonstrate a link or common feature as between those charges, this was not the case for the conduct related to charges 12–14.[12] Further, there is a risk that a jury may overvalue the conduct the subject of charges 1–11 and also a risk that the conduct the subject of charges 12–14 would provoke an emotional response and cloud a jury’s judgment in respect of charges 1–11.
[11]Rows 1–19 of the notice.
[12]Rows 20–22 of the notice.
The defence further submitted that, if the evidence related to charges 1–11 is found not to be admissible to prove any tendency relevant to charges 12–14, the latter three charges should be severed from the indictment and heard in a separate trial. The defence relied on the statement by Priest JA in dissent in Pearson[13] that charges for any sexual offences involving children do arouse strong visceral responses in jurors, regardless of their seriousness. The defence contended that the prejudice to the applicant in hearing charges 12–14 along with other charges would be unacceptable, and could not be cured by judicial direction in the circumstances of the case.
[13]DPP v Pearson (a pseudonym) [2021] VSCA 336 (‘Pearson’).
Prosecution submissions before the judge
The prosecution, in their submissions, noted that all offending (with the exception of charges 1 and 2) took place inside a common location — the applicant’s unit. They submitted that tendency evidence, if accepted, could demonstrate to a jury how the applicant drew the complainants to his unit. The prosecution submitted that all tendency evidence met the ‘low’ threshold for relevance as defined in s 55 of the Evidence Act.
The first argument advanced by the prosecution is that there was a ‘common thread’ to the offending — EP. It was submitted that EP was the link to all other complainants. The prosecution submitted that the use of inducements to involve the complaints in sexual acts (starting with Kinder Surprises and then moving on to money and alcohol in a tailored escalation as they reached their teenage years) was the common thread or modus operandi in the alleged offending which supported the tendency identified in the amended notice.
The prosecution, like the defence, cited the two-step approach of Hughes as the test for determining whether the tendency would have significant probative value. The prosecution submitted that the applicant’s use of inducements set the stage for the offending in each case — the inducements were used to draw the complainants to his unit, and thus provide him with the opportunity to commit the charged offences.
In response to the defence submissions on severance, the prosecution acknowledged that while charges 12–14 were of a different character to charges 1–11 (the former involving forcible conduct and more serious offending), admissibility for a tendency purpose is not dependent on the similar nature of the acts alleged. The prosecution noted that it was clear on the evidence that, on the night of the events that make up charges 12–14, EP and SN attended the applicant’s unit because of the alcohol provided as an inducement. The prosecution submitted that charges 12–14 should remain on the indictment as the relevant conduct is, in reality, an escalation of the earlier sexual offending, and that this escalation was made possible through the use of alcohol as an inducement.
The prosecution submitted that if the Court decided to sever charges 12–14 then EP would be obliged to give evidence in two trials: one for charges 1–11 and a second for charges 12–14, and that this would result in unfairness to EP. The prosecution contended that the applicant could receive a fair trial if severance was not ordered, and that any prejudice could be cured to an acceptable level by directions.
The interlocutory ruling
The judge described the charges faced by the applicant, and provided a general summary of the prosecution case and the tendency notice filed by the prosecution, including the issue of inducement that appeared on the amended notice.
The judge correctly noted that there was no controversy as to the appropriate test for determining significant probative value:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the [charged offence]. In the context of this case, it is important to consider both matters. By seeing that there are two matters involved, it is easy to appreciate the dangers of focusing on single labels such as, ‘underlying unity’, or, ‘pattern of conduct’, or, ‘modus operandi’.
The judge noted that it was effectively conceded that some evidence is capable of supporting the tendency asserted — to have an interest in young girls and to act on that interest. The judge referred to the defence submission that the purported tendency to act in a particular way was too general to strongly support the proof of a fact that makes up the offence charged, and that a court must be satisfied that the disputed evidence should make more likely, to a significant extent, the facts that make up the element of the offence charged — as opposed to just proving that a sexual interest exists. The judge accepted the submission that the facts of the present case had some similarities to those in Hughes. The judge noted that both cases clearly featured evidence of a sexual interest in young girls and a preparedness to act on that interest.
The judge noted the defence argument that the alleged sexual activity was too generally described and too diverse for tendency reasoning, and that the events underpinning charges 12–14 were qualitatively different from the other allegations. Her Honour also noted the defence’s reliance on Bauer to argue that the fact of offending against one complainant was not significantly probative of offences against another complainant, and that the only common or linking features in the present case were the complainants’ age range and friendship with EP. However, the judge stated that this submission ignored the fact that all of the alleged offending was said to have taken place at the applicant’s home. Further, the judge noted the use of inducements in the offending conduct. The judge commented that a sexual interest in young children and a willingness to act on it was no small part of the alleged offending — citing the High Court’s statement in Hughes that this was unusual as a matter of human experience. The judge further stated that, in the present case, the applicant’s behaviour presented a consistent pattern over time — it resulted in young girls feeling comfortable to go to his home and to remain there for some time, and to engage in the activities that he desired.
Her Honour cited the test from Ford[14] — that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged, and that the evidence does not need to have this effect by itself. The judge then stated that in the present context, each charge contained circumstances which, if evaluated in the manner the prosecution submitted, were clearly evidence of each tendency alleged. The provision of alcohol in the context of charges 12–14 was not unique, as it followed previous behaviour of encouraging the complainants to visit his home for favours in return for chocolates, money and alcohol.
[14]R v Ford [2009] NSWCCA 306.
Ultimately, the judge concluded that the probative value of the tendency evidence substantially outweighed its prejudicial effect. Her Honour determined that the evidence contained in charges 1–14 was cross-admissible. Further, her Honour refused to sever charges 12–14 from the indictment, accepting that the potential requirement for EP to give evidence in two trials was of minor significance, even if it caused inconvenience for EP.
The judge commented that, while she seriously considered the observation of Priest JA in Pearson, she took the view that hearing the charges in a single trial with careful judicial instruction will not cause unfairness to the applicant. Without evidence of the applicant’s earlier sexual interest in young girls, the judge stated, the prosecution case could not be fairly presented. The evidence of the applicant’s behaviour over time with other children must be relevant to the allegation of sexual assault. Her Honour concluded her reasons by proposing to allow the tendency notice in its current form and without severance.
This application
Early in oral argument, the applicant stated that it was conceded that there was evidence in the present case that strongly supported a ‘properly expressed’ tendency expressed as follows:
To act in a particular way, to engage in sexual activity with or in the presence of girls aged eight to 14 by offering or providing inducements for their involvement in sexual activity.
It was noted by the applicant that the above tendency was effectively what the respondent had set out at para 2.2 of the 14 March tendency notice. The applicant further conceded that charges 1–11 were cross-admissible and that charges 12–14 were cross admissible. The applicant further conceded that, in respect of charges 1–11, the tendency and its probative value were established.
The applicant argued that this tendency was not significantly probative of charges 12–14, as there was no clear inducement for the involvement of the complainants in the sexual activity. The applicant argued that there must be some link between the inducement and the sexual activity, that the behaviour that was the subject of charges 12–14 did not have the required temporal connection, and the evidence did not establish that the provision of alcohol to EP and SN was an inducement for sexual activity.
Discussion
Both parties agreed that the principles from House v the King[15] apply to this application for leave to appeal. It is insufficient for this Court to consider that, had it been in the position of the primary judge it would have decided the impugned ruling differently. It must appear that error has infected the ruling:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.[16]
[15](1936) 55 CLR 466; [1936] HCA 40 (‘House’).
[16]House (1936) 55 CLR 466, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
We reproduce the provisions of the Evidence Act relevant to this application:
97 The tendency rule
(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.
…
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
…
(2)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.
…
Ground 1 — significant probative value
As a consequence of the narrowing of the area of dispute, as discussed in paras [51]–[52] above, the question for determination can be restated in two parts:
(a)Does the tendency evidence identified in the notice relating to charges 1–11, together with the evidence of uncharged acts, possess significant probative value in proving that the conduct said to constitute charges 12–14 actually occurred?
(b)Does the tendency evidence identified in the notice relating to charges 12–14 possess significant probative value in proving the conduct said to constitute charges 1–11 actually occurred?
We shall consider question (a) first.
As to question (a)
The concept of significant probative value is undefined in the Evidence Act. In Hughes, the majority stated:
The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as ‘underlying unity’, ‘pattern of conduct’ or ‘modus operandi’. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[17]
[17]Hughes (2017) 263 CLR 338, 356–7 [41]; [2017] HCA 20 (Kiefel CJ, Bell, Keane and Edelman JJ).
In multiple complainant cases, such as the present case, the High Court in Bauer made it clear that, for evidence that an accused committed a sexual offence against one complainant to be significantly probative of the accused having committed a sexual offence against another, there must ordinarily be some feature of or about the offending which links the two together.[18]
[18]Bauer (2018) 266 CLR 56, 87 [58]; [2018] HCA 40 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
In TL[19] the High Court stated that to be of ‘significant probative value’ the evidence being considered must be ‘important’ or ‘of consequence’ to the assessment of the probability of the existence of a fact in issue.[20] The evidence under consideration must be taken at its highest for the prosecution, unless the evidence is of so little quality as to be incapable of acceptance by a rational jury.[21]
[19]TL v The King [2022] HCA 35 (‘TL’).
[20]TL [2022] HCA 35, [28] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ).
[21]TL [2022] HCA 35, [28] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ).
In the present case, it must be borne steadily in mind that the tendency evidence is sought to be led in order to bear upon whether the conduct alleged in charges 12–14 actually occurred. There is no nuance to the defence — the allegations of showering a naked child and sexually penetrating another are flatly denied.
We consider that the tendency evidence, as it relates to the conduct underpinning charges 1–11 and the uncharged acts, offers powerful support for the tendency alleged. Taking this evidence at its highest for the prosecution, the applicant has interacted with female children, either EP or children connected to her, in the following ways:
•He offered Kinder Surprises to two young children to pull down their pants and expose their genitals.
•He offered alcohol to two young children, aged between 8 and 12, at his unit and then invited one of them to straddle him and to move her body over his groin.
•He offered and paid money to two children aged between 10 and 13, at his unit, to expose their naked buttocks to him.
•On the same occasion, he directed one of the children to his bedroom where he rubbed her legs, touched her vagina and digitally penetrated her vagina for a period of several minutes.
•On the same occasion, he offered the other child money for her to show him her vagina. When she did so, he placed his face close to her vagina and inhaled.
•He offered and paid money to an 11 or 12 year old child to clean his unit in her underwear.
•He offered and paid money to an 11 or 12 year old child to leave her dirty underwear at his unit, which he laundered and returned.
•He offered and paid money to a child to provide her younger sister’s underwear to him, offering to pay more because her sister was younger than her.
•He offered alcohol to a child at his unit and then endeavoured to touch her over her clothing in the area of her vagina.
•He played pornography on his television to children.
•He showed children a pornographic magazine.
•He kissed children on the lips.
This conduct occurred with five different children (EP and her friends), always at the applicant’s unit, and always accompanied by some form of inducement, whether it be Kinder Surprises, money, alcohol, or merely sanctuary at his unit.
We have set out the tendency alleged at [31] above. In our view, the conduct that we have set out above demonstrates with clarity and force the tendency alleged. Specifically, we are satisfied that the evidence supports the tendency of the applicant to have a sexual interest in girls aged between 8 and 14, including EP and her friends. It also supports the tendency of the applicant to be willing and prepared to act on that sexual interest with these children. Further, it supports the tendency to offer inducements to these children so as to achieve their participation in sexual activity, including the activities set out in para 2.2 of the notice. Given the tendency alleged contains all these components, in our view the contention that it is too broadly expressed to have significant probative value is unsustainable.
Assuming this evidence strongly supports proof of the tendency asserted, the next step is to consider whether the asserted tendency strongly supports proof that charges 12 to 14 actually occurred.
We consider that question must be answered affirmatively. The factual foundation of charges 12–14 is set out at [18] to [21] above. It is unnecessary to rehearse those facts — it is sufficient to observe:
(a)The alleged offending occurred between the applicant, EP and SN.
(b)SN was introduced to the applicant through EP. EP was a common link to all complainants.
(c)The offending occurred at the applicant’s unit, as did nearly all of the earlier alleged offending.
(d)The children were supplied with alcohol by the applicant.
On the occasion of charges 12–14, while the conduct was, in some ways, qualitatively different to the earlier conduct that was used to establish the tendency, in many other ways it is similar to the earlier conduct. The unit, the relationship to EP, the inducement in the supply of alcohol, and the ultimate sexual overlay is common to much of the conduct alleged in charges 1–11 and the events of charges 12–14. Whilst the words ‘pattern’ and ‘modus operandi’ are sometimes deprecated in cases dealing with tendency evidence as being unnecessary and potentially confusing, in this case, in our view, they are justified. Similarity is relevant but not determinative of probative value.[22] We consider the pattern of the offending in charges 1–11 to be highly relevant to whether the offending alleged in charges 12–14 actually occurred. Put another way, the tendencies established by the earlier conduct make it considerably more likely that the offending alleged in charges 12–14 actually occurred.
[22]TL [2022] HCA 35, [29] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ).
We do not accept the applicant’s contention that the tendency asserted does not have significant probative value to charges 12–14 because, on the prosecution case on those charges, no inducement was explicitly offered for sex, and sex was procured by force rather than inducement. It is correct that there was no explicit barter — alcohol for sex — nevertheless the applicant supplied the two children with alcohol, drove them to a place for its consumption, later collected them from a friend’s house, and then supplied these intoxicated children with more alcohol. Later still, he provided his unit as a temporary sanctuary for the children. The absence of an explicit barter may be some point of dissimilarity from some of the earlier arrangements. However, as we have observed above, there are many other points of similarity. At the risk of repetition, the tendency to have a sexual interest in young females who lived locally and were friends of EP bears on the commission of charges 12–14; the tendency to act in a particular way by engaging these young females in various types of sexual activity including digital penetration, simulated clothed intercourse, touching or rubbing of the vagina, pressing his penis against young girls, and offering them inducements in the form of Kinder Surprises, money and then alcohol is, in our view, highly relevant to the issue of whether the offending the subject of charges 12–14 occurred. Should the jury consider that the asserted tendency has been established, it bears directly on whether the applicant acted as these complainants allege.
We consider that her Honour was correct to conclude that the tendency, if established, had significant probative value to the proof of charges 12–14.
As to question (b)
We shall consider question (b) much more briefly. On this application, no submissions were made by the applicant, or the prosecution, on whether the tendencies established by the uncharged acts and the facts relating to charges 12–14 were of significant probative value in proof of charges 1–11. The focus of the application was on excluding the use of facts relating to charges 1–11 and the uncharged acts in proof of charges 12–14. There was no focus on the obverse. Understandably, the judge’s reasons also focussed upon the matter only in this way.
Essentially, for the reasons we have set out, we consider that the facts relevant to charges 12–14 — including the use of the unit, the supply of alcohol, the naked showering of EP, the sexual penetration of SA and the relationship of EP to SA — combine with other evidence to powerfully support proof of the tendencies alleged in the notice. Further, we consider that the tendency strongly supports proof that the offences alleged in charges 1–11 actually occurred.
For the above reasons, leave to appeal was refused in relation to ground 1.
Ground 2 — Did the probative value of the tendency evidence substantially outweigh the prejudicial effect of the evidence?
Ground 2 is expressed in the language of s 101(2) of the Evidence Act. Notwithstanding that we have concluded that the proposed tendency evidence will have significant probative value in the forthcoming trial, we must exclude that evidence unless that probative value ‘substantially outweighs any prejudicial effect’ on the applicant.
We have set out our reasons for concluding that the impugned evidence of uncharged acts and the conduct the subject of charges 1–11 is highly probative of charges 12–14. The evidence strongly supports proof that the alleged offending in charges 12–14 actually occurred. We have also set out our reasons for concluding that the conduct the subject of charges 12–14 is significantly probative of charges 1–11. There will always be prejudice to an accused in adducing tendency evidence of the type alleged in this case. Much of the prejudice will come from the legitimate use the jury make of that evidence. Whilst s 101(2) uses the expression ‘prejudicial effect’ whereas s 137 uses the expression ‘unfair prejudice’, as the High Court stated in Bauer,[23] the notion of ‘prejudicial effect’ in s 101(2) requires consideration of whether the prejudice is unfair.[24] That is because both provisions are concerned with the same idea — harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way. The provisions are not concerned with ‘prejudice of the legitimate kind invariably associated with evidence which is probative of a charge.’[25]
[23](2018) 266 CLR 56, 93–4 [73]; [2018] HCA 40 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); see also Clark (a pseudonym) v The Queen [2015] VSCA 297, [46] (Maxwell P, Priest and Kaye JJA) and Pearson [2021] VSCA 336, [67] (T Forrest and Walker JJA).
[24]Pearson [2021] VSCA 336, [67] (T Forrest and Walker JJA).
[25]DPP v Matthews (a pseudonym) [2019] VSCA 11, [17].
In Hughes, the majority explained the various ways in which this type of unfair prejudice may arise from the admission of tendency evidence as follows:
The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.[26]
[26]Hughes (2017) 263 CLR 338, 349 [17]; [2017] HCA 20 (Kiefel CJ, Bell, Keane and Edelman JJ).
It may be accepted that in multiple complainant cases such as this, where a mature adult is accused of serial sexual offending together with the supply of a venue for the offending, on occasions displaying pornography at that venue and supplying alcohol and other inducements, that there will be an emotional response from all or some of the jury members. That possibility is always present where there are multiple child sex charges being heard together ‘because such offending is inherently abhorrent’.[27] In Pearson, the majority said ‘[w]e do not consider that s 101(2) of the Evidence Act should be applied in such a way that it would routinely exclude tendency evidence in cases of that kind because of a concern about the possibility of the jury having an emotional response’.[28]
[27]Pearson [2021] VSCA 336, [93] (T Forrest and Walker JJA).
[28]Ibid.
We agree with the judge that the unfair prejudice that may well be occasioned by the reception of the tendency evidence relevant to charges 1–11 in this case could be dealt with by appropriate jury directions about the permissible (and forbidden) uses to which the evidence may be put.
Further, we consider that the unfair prejudice that may arise from the reception of the tendency evidence relevant to charges 12–14 could be dealt with in the same manner — that is, by appropriate jury directions about the permissible (and forbidden) uses to which the evidence may be put. Similarly, any prejudice arising from the reception of evidence of uncharged acts could be dealt with by direction.
When conducting the balancing exercise contemplated by s 101(2), the ‘prejudicial effect’ of the tendency evidence must be considered in the light of the jury directions designed to ensure that the danger of impermissible reasoning is minimised.
We consider that it was open to the judge to conclude that the probative value of the evidence relating to charges 1–11 substantially outweighed the prejudicial effect that it may have had on the applicant. We agree with that conclusion. We are also of the view that the probative value of the evidence relating to charges 12–14 substantially outweighs its prejudicial effect, as does the probative value of the uncharged acts.
For the above reasons, leave to appeal was refused in relation to ground 2.
Ground 3
The applicant contended that the failure by the judge to sever the indictment resulted in a risk of prejudice to the applicant that is unacceptably high. This argument was not independently pursued at the oral hearing and became subsumed in the ‘prejudicial effect’ submission in ground 2.
Section 194 of the CPA creates a presumption that, if two or more charges for sexual offences are joined in the same indictment, those charges are to be heard together. Given that we have concluded that the evidence relating to charges 1–11 is cross-admissible with the evidence relating to charges 12–14 and vice versa, there is no basis for displacing the presumption in s 194. Further, as we have stated earlier in these reasons, we consider that the danger of unfair prejudice arising from charges 12–14 being heard with charges 1–11 can be managed by careful judicial directions.
For the above reasons, leave to appeal was refused in relation to ground 3.
Conclusion
At the conclusion of oral argument on 11 May 2023, as we were not satisfied that any of the grounds of appeal had merit, we refused the application for leave to appeal against the judge’s interlocutory ruling.
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