Matthews (a pseudonym) v The King
[2023] VSCA 229
•22 September 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0119 |
| DOUGLAS MATTHEWS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of identifying the alleged victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant and complainants.
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| JUDGES: | KENNEDY and MACAULAY JJA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 August 2023 |
| DATE OF JUDGMENT: | 22 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 229 |
| JUDGMENT APPEALED FROM: | DPP (Vic) v [Matthews] (County Court of Victoria, Judge Meredith, 1 June 2023) |
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CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Sexual assault – Rape – Whether complainants’ evidence capable of showing sexual interest and willingness to act on that interest – Whether evidence of significant probative value – Whether prejudicial effect remediable by jury direction – Leave to appeal granted – Interlocutory decision affirmed.
Criminal Procedure Act 2009, s 298; Evidence Act 2008, ss 97, 101.
Gustav (a pseudonym) v The King [2023] VSCA 141, Hughes v The Queen (2017) 263 CLR 338, Phillips v The Queen (2006) 225 CLR 303, R v Bauer (a pseudonym) (2018) 266 CLR 56.
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| Counsel | ||
| Applicant: | Mr J Connolly | |
| Respondent: | Mr A Grant | |
Solicitors | ||
| Applicant: | Dribbin and Brown Criminal Lawyers | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
KENNEDY JA
MACAULAY JA
J FORREST AJA:
The applicant, Douglas Matthews, is currently facing trial before a jury in the County Court at Ballarat. He has been charged with the sexual assault of three women (four charges). In addition, he is charged with the rape of one of the women. As things presently stand, he will be tried on all charges in the one trial.
In each instance, it is alleged that the offences occurred between November 2020 and March 2021 at the applicant’s home in rural Victoria where he carried on a business as a masseur. Each of the women allege that the offending occurred during a massage that he was performing.
On 30 November 2022, the prosecution gave notice (the ‘notice’) — as it was required to do under s 97(1)(a) of the Evidence Act 2008 (the ‘Act’) — that it intended to use the evidence of each of the women to prove the tendency of the applicant to have both a particular state of mind (namely a sexual interest in his female clients), and to sexually assault females who were attending him in his capacity as a masseur.
Each of the three women alleged that the applicant had without their consent touched their breasts. One (‘SK’) also alleged that he had touched her clitoris and then inserted his fingers into her vagina. The applicant has maintained that any contact with his female clients’ breasts was consensual as it formed part of the massage service he was providing. He denies that he had any sexual interest in his clients and denies that he made any contact with the vagina or clitoris of SK.
After an interlocutory hearing as to the admissibility of the tendency evidence, his Honour Judge Meredith in a ruling on 1 June 2023 held that the evidence as set out in the notice could be led. His Honour reasoned as follows:
(a)There is a dispute regarding whether the touching in each of charges 1, 2, 3 and 5, and the digital penetration alleged in charge 4, occurred at all.[2]
(b)There is a dispute regarding the nature of the touching, if it in fact occurred: whether it was for the accused’s sexual gratification.[3]
(c)If the jury is satisfied that the asserted tendency existed, that will make it more probable that the touching, and the digital penetration, occurred.[4]
(d)The asserted tendency is of sufficient particularity.[5]
(e)The evidence of each of the three complainants provides ‘strong support’ for the existence of the asserted tendency.[6]
(f)There is sufficient nexus between the five charges to render each charge of significant probative value in proof of the other.[7]
(g)Appropriate judicial direction can remedy the risk of the jury conflating consent of the complainants, or the accused’s reasonable belief in consent, with the factual basis of each charge.[8]
The judge found that the tendency evidence was relevant, of significant probative value, and that its probative value substantially outweighed any prejudicial effect it may have on the accused.
[2]DPP (Vic) v Matthews (a pseudonym) (County Court of Victoria, Judge Meredith, 1 June 2023) [18]–[19], [29] (‘Reasons’).
[3]Reasons, [18].
[4]Reasons, [30].
[5]Reasons, [31]–[33]. See Hughes v The Queen (2017) 263 CLR 338, 355 [37], 356 [40] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20 (‘Hughes’).
[6]Reasons, [34].
[7]Reasons, [37].
[8]Reasons, [38].
Counsel for the applicant requested that the judge certify that the ruling be determined on an interlocutory appeal. The judge did so.
The applicant in his proposed notice of appeal contends that the judge was in error. It is argued that the ruling is inconsistent with the decision of the High Court in Phillips v The Queen (‘Phillips’)[9] on the issue of consent and that it was not reasonably open to the judge to find that the probative value of the evidence substantially outweighed its prejudicial effect.
[9](2006) 225 CLR 303; [2006] HCA 4 (‘Phillips’).
The trial has been adjourned to the Ballarat circuit commencing 8 November 2023.
We agree with the judge’s reasoning and decision. The first question for this Court is whether, having regard to the matters set out in s 297 of the Criminal Procedure Act 2009, we are satisfied that it is in the interests of justice to grant leave to appeal the interlocutory decision. If so satisfied, pursuant to s 300, the Court may then either affirm or set aside the decision. For the reasons that follow, we will grant leave to appeal but affirm the decision.
The indictment
The indictment lays five charges. Charge 1 alleges that the applicant sexually assaulted ‘AR’. Charges 2, 3 and 4 allege that he sexually assaulted twice, and raped once, ‘SK’. Charge 5 alleges that he sexually assaulted ‘BA’. The indictment reads as follows:
CHARGE 1 The Director of Public Prosecutions charges that [DOUGLAS MATTHEWS] at Ballarat in Victoria on the 16th day of November 2020 intentionally sexually touched [AR] without her consent in circumstances where [DOUGLAS MATTHEWS] did not reasonably believe that [AR] consented to the touching.
Statement of Offence - Sexual Assault contrary to s 40 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences Act) 2016.
CHARGE 2 The Director of Public Prosecutions charges that [DOUGLAS MATTHEWS] at Ballarat in Victoria on the 15th day of March 2021 intentionally sexually touched [SK] without her consent in circumstances where [DOUGLAS MATTHEWS] did not reasonably believe that [SK] consented to the touching.
Particulars: [DOUGLAS MATTHEWS] touched the breasts of [SK].
Statement of Offence - Sexual Assault contrary to s 40 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences Act) 2016.
CHARGE 3 The Director of Public Prosecutions charges that [DOUGLAS MATTHEWS] at Ballarat in Victoria on the 15th day of March 2021 intentionally sexually touched [SK] without her consent in circumstances where [DOUGLAS MATTHEWS] did not reasonably believe that [SK] consented to the touching.
Particulars: [DOUGLAS MATTHEWS] touched the vagina of [SK].
Statement of Offence - Sexual Assault contrary to s 40 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences Act) 2016.
CHARGE 4 The Director of Public Prosecutions charges that [DOUGLAS MATTHEWS] at Ballarat in Victoria on the 15th day of March 2021 raped [SK] by intentionally sexually penetrating [SK] by introducing his fingers into her vagina without her consent in circumstances where [DOUGLAS MATTHEWS] did not reasonably believe that [SK] consented to the penetration.
Statement of Offence - Rape contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences Act) 2016.
CHARGE 5 The Director of Public Prosecutions charges that [DOUGLAS MATTHEWS] at Ballarat in Victoria on the 17th day of March 2021 intentionally sexually touched [BA] without her consent in circumstances where [DOUGLAS MATTHEWS] did not reasonably believe that [BA] consented to the touching.
Statement of Offence - Sexual Assault contrary to s 40 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences Act) 2016.
The tendency notice
The notice advised the applicant that the Director sought to rely upon the tendency of the applicant to:
2.1 – Have a particular state of mind, namely, a tendency to have a sexual interest in his female clients and a willingness to act on that sexual interest.
2.2 – Act in a particular way, namely, to sexually assault females who were attending on him in his professional capacity for a massage.
That tendency was said to relate to ‘[w]hether the acts constituting the alleged offences occurred’. The tendency was said to support each of the charges, by ‘making more likely the facts founding those charges’.
The evidence relied on to establish the alleged tendency is set out in a table forming part of the notice. In the table, details of the complaints of each of the women were set out under the following headings:
(a)substance of evidence relied upon to support tendency;
(b)features of evidence establishing the tendency; and
(c)relevant witness and depositions reference.
Subsequently, the Director has given notice that she proposes to amend the notice so that 2.2 reads ‘touch’ rather than ‘assault’. We address this at [39]–[40] below.
The evidence of the three complainants
AR — alleged offending on 16 November 2020
AR attended the applicant’s house for the purpose of a massage on 16 November 2020. She was 21 years old at the time of the alleged offending. She found the applicant’s massage service through Facebook.
In her statement, AR described the alleged offending as follows:
17.I attended at the address I knocked on the door and he let me into the massage room. He said something like you know the drill. He left the room and I took my clothes off and this time I took my socks off. I left my panties on and got on the table with the towel on top of me.
18. [Douglas] knocked on the door and I said yeah and that it was okay for him to come it.
19. [Douglas] entered the room. I was lying face down and he started with my legs. I noticed that [Douglas] went higher up near my thighs. If he had gone a little bit further, I would have felt uncomfortable.
20. He massaged my back, neck and arms. [Douglas] held the towel up and let me wiggle so that I could lie on my back. He started massaging my legs up to my arms and my face. He started to massage my upper chest. I told him it was sore today. It was hurting he used to much power and told him a little less power because it was pretty sore that day.
21. I noticed he spent a lot of time doing my chest. I noticed he went down my sternum a little bit under the towel. I still had the towel on my chest. [Douglas] said ‘just let me know if I’m getting to [sic] intrusive’ I said to him at that stage it was fine and I was comfortable with him massaging my sternum.
22. I noticed he started to go lower and lower and placed his hands in between my breasts and I started to feel uncomfortable. I started to panic and think what is happening. Somewhere at that stage he asked if I was uncomfortable and I said ‘Sort of on the edge of that now’. I didn’t [sic] feel uncomfortable now. The way I said it was clear that I was uncomfortable. He started going further. His hands were underneath the towel and he started massaging around my breasts.
23. I felt as though he was just trying to see how far he could go I didn’t react because I was panicking inside due to a previous sexual assault. I noticed at some stage that the towel was no longer covering my breasts.
24. This was due to his massaging going further and further toward my breast. At that stage he was massaging me. He placed his hands on both breasts and was massaging over my nipples. It felt sexual at some stage this is because his hand wasn’t flat, and he was more gently grabbing my breasts.
25. I was panicking I couldn’t say anything I was just focusing on getting out of there as quickly as possible. Towards the end of the massage he went back to the upper chest. I remember grabbing the towel and put it over my breasts again.
26. [Douglas] said we went a bit overtime than the hour massage but that’s fine.
27. The massage ended and he said to me ‘It’s nothing sexual it’s just massage, a lot of women actually like it when you massage their breasts’. I felt disgusted at this time because it meant that he did it to others and I just wanted to get out of there. He left the room whilst I got dressed. I quickly got dressed.
SK — alleged offending on 15 March 2021
SK attended the applicant’s house for the purpose of a massage on 15 March 2021. She was 40 years old at the time of the alleged offending. She found the applicant’s massage service through Facebook.
In a statement, SK described the alleged offending as follows:
11. Once we were in the room, [Douglas] said to me, ‘take off your clothes and place them on the chair, I’ll wait outside, let me know when you’re ready’. I wasn’t comfortable in being totally naked, so I left my knickers on. He also told me to lay face down on the massage table and place the towel over my back and buttocks area.
12. [Douglas] was out of the room with the door closed for approximately 2 to 3 minutes while I was getting undressed before I told him I was ready, and he re-entered the room.
13. With my face in the hole of the massage table and my eyes closed, towel covering my back and buttocks area, [Douglas] then started applying oil on my calf muscles and massaging my leg. I had a giggle and apologise [sic] for my unshaven legs.
14. [Douglas] then started to work his way up my leg towards my buttock, I thought to myself I hope he doesn’t go higher than the baseline of my knickers. He then started massaging my other leg and he asked me if the pressure was ok. I said, ‘you can press harder if you like’.
15. I recall a conversation we had that he enjoyed massaging people and he enjoyed receiving messages from clients telling him that they felt really good.
16. After [Douglas] finished working on my legs, he then tucked the towel down into my knickers and started massaging my back and shoulder areas. I believe my bum crack was exposed at the time. He then massaged my arms, hands and fingers and did the same to the other arm before massaging my neck.
17. After that, [Douglas] asked me to roll over onto my back. [Douglas] held up the towel and turned his head to the side to allow me privacy. He said to me something to the effect of, ‘that will ease the pressure off your face’.
18. I felt so relaxed at this point and there wasn’t any conversation at all.
19. Once I rolled over onto my back, [Douglas] placed the towel over my breasts and knickers area. He then started to massage the bottom of my legs working up to my thighs. He then did the same with the other leg before working on my arms, hands and fingers on both arms.
20. Once he finished doing that, [Douglas] started massaging around my face and changed to massage the muscle section of my breast and under arm and go back to my face again.
21. [Douglas] then started to rub between my breasts, I felt uncomfortable and thought this was weird but didn’t question him as I felt he knew what he was doing because there were muscles in the area. I trusted him.
22. All [Douglas] said to me at the time was, ‘are you relaxed’, to which I said ‘yes’.
23. Then [Douglas] commenced massaging my breasts, using both hands rubbing them separately for a short period of time while also touching my nipples. My concerns were growing as I knew this wasn’t right and was getting weird and he was crossing the boundary.
24. [Douglas] then moved his hands down and started massaging my tummy for about a minute where he again asked me, ‘are you relaxed?’, which I nervously responded with ‘yes’. He was standing on my left-hand side as I laid on my back on the massage table with my eyes shut.
25. Without saying anything, [Douglas] then placed his hand under my knickers and touched my clitoris. He did this twice in quick succession. I have no idea and I can’t explain how it happened or why my body reacted, but it made me have an orgasm.
26. [Douglas] then inserted his two fingers inside my vagina and pulled them out and put them back in for a second time. Nothing was said. I just froze and shut down as I didn’t know how to react or what to do, so I stayed still and didn’t move. My instant thought was that we were alone, the door was locked, and this was the first time I’ve met this man.
27. I always have my alarm on my mobile set to go off at 2pm to prompt me to get organised to go and get the kids from school and it happened to go off at this time.
28. [Douglas] walked over to where my mobile was and picked my phone up and was trying to turn the alarm off. I could sense that he was getting frustrated trying to turn it off as he was asking me how to turn it off which he eventually did.
29. On his return to me after putting my mobile back, I somehow gathered my senses enough to say stop about 5 or 6 times, to which he stopped. I sat up quickly to grab the towel and place it around me while saying I need to get to my kids from school. On hesitation, [Douglas] then left the room so I could get dressed.
30. While shaking, I wiped myself down from the oil as I was processing what had just occurred, I just wanted to get out of there.
31. I left the room and walked up to him and paid him $50 cash. I believe that if I didn’t give him the money, he probably would have reacted in a bad way and stop me from leaving. I waited for him to unlock the door to allow me to get out of the house before I said to him, ‘does that happen to all the people that attend here’.
32. I was pissed off and angry, but I felt I needed to remain cool and composed and not react instantly because I didn’t want to lose control, I wanted to take back control from him.
33. It must on struck a nerve with him as he responded with, ‘I did ask for permission’. I never responded to his comment and just walked to my car.
…
37. While I was waiting at school pick up, I received a message from [Douglas] which said, ‘Thanks [S] for giving me a go today we got there in the end. Hope you got the kids ok and yes that does not happen every time but you were so relaxed and deserved it. Any way hope it will not put you off coming back to me as we need to treat ourselves once in a while. Thanks again and hope you feel good’.
BA — alleged offending on 17 March 2021
BA attended the applicant’s house for the purpose of a massage on 17 March 2021. She was 42 years old at the time of the alleged offending. She has a diploma in massage and is a practicing massage therapist. She found the applicant’s massage service through Facebook.
In her statement she described the alleged offending as follows:
3. I arrived at [Doug’s] address and which is a normal residential house. …
4.[Doug] asked If I wanted a hour relaxation massage and I asked him if he did deep tissue and he said ‘yep yep, we will do what is needed, if you need more pressure or you need It softer just let me know.’ [Doug] didn’t get me to fill out any paper work. This is the first time that I have meet [Doug]. [Doug] said ‘gear off and face down’ and then left me in the room to get changed and he shut the door. …
5.I laid on the massage bed, face down with a towel on my back and I was only wearing my underwear. [Doug] entered the room after a short time and started the massage. I had a full length towel covering my body (below my bottom) and [Doug] started at my legs and moved the towel to tuck it under my underwear as per what I would refer to it as normal protocol for massage. I was assessing his massage techniques at the same time as I was interested in how he did his massage compared to me. [Doug] also massaged my glutes (bottom) and my back and I had no issues with how he was massaging me. There was no conversation between us at this time. [Doug] would have massaged me for approximately 30min on my back and back of legs. In my head was I trying to keep track of how long he massaged each section for so that I could compare it to mine. At one point, [Doug] asked if the pressure was ok and I said yes.
6. [Doug] then asked me to roll over onto my back, with my front up. [Doug] held the towel up, so that he couldn’t see me as I rolled over and he made a comment ‘now you can breathe’ which I took him meaning that my head wasn’t in the little hold of the table. After I rolled over, [Doug] placed the towel back over my body. I[t] was just the one towel which covered me. Towel was a dark green or grey colour and he placed it over my breast and under my arm pits and it covered my torso down to my knees. I had my eyes shut at the time. I was feeling relaxed at the time but at the same time had a little bit of a weird feeling however I kept telling myself that everything was alright.
7. [Doug] massaged the top of my legs first, to do this he pulled the towel up top expose my quad’s (thighs) and then did my lower legs and feet briefly. I had no concerns with this part of the massage. [Doug] then massaged my arms, hands and fingers and again, there was no issues with this. The only thing that was going through my mind at the time was that it felt like he was rushing and moving from one part to another and in my mind I thought, I wish he would just focus on the sore bits.
8. [Doug] then moved to the back of my neck and top of my shoulders and then moved to the top of my chest, above the towel. Again there was no issues with this because it was normal massage technique based on my training. [Doug] then started massaging down between my breasts with the fingers using both hands and I could feel the towel moving down. At this point I started to get nervous and I was thinking to myself ‘surely he is not going to keep massaging down the middle of my breasts, under the towel’. As I was lying on the massage table I could feel the towel moving down and thinking that my breasts must be exposed but at the same time I had my eyes shut and I couldn’t open my eyes because he was right there leaning over me and I didn’t want to look into his eyes. [Doug] was standing behind me and he started massaging my breasts even more. I was frozen, one part of my mind was thinking, this is wrong I need to push him off me but at the same time I was thinking maybe this was apart [sic] of his training. I thought maybe he will stop after a few seconds, I just didn’t know what to do and I didn’t expect it.
9. As [Doug] lent over me massaging my breasts the towel was pushed down. [Doug] was doing a full breasts massage and had one hand on each of my breasts. Initially the massage was a proper deep tissue massage but when he was massaging my breasts it was much softer and more sensual massage and I could tell that he was really getting into it. I started to worry that he might pull his pants down. [Doug] would have massaged my breast from behind me for what felt like 5 minutes. As he massaged me I was feeling frightened and uncomfortable and I started moving my hand up and had my clenched my fists and placed them under my breasts.
10. [Doug] then moved to the right side and started massaging across both my breasts. [Doug] then said to me ‘are you ok?’. I replied ‘yeah’ meaning I’m ok in that I wasn’t feeling dizzy and I wasn’t in any pain. I wasn’t really thinking when he asked me that, I was in shock and then after I answered ‘yeah’ I realised that he might have been referring to the breast massage, which I wasn’t ok with at all. [Doug] continued to massage my breasts for a short time and as he did this, my body stiffened up and I clenched my fist more.
The judge noted that at the committal each of the complainants had adopted their statements and been cross-examined. The judge commented that each complainant ‘essentially maintained her account’.[10]
[10]Reasons, [10].
There is one other matter we should mention here. AR is an overseas national who was working in Australia at the time of the alleged offending. On 26 July 2023 (after the judge’s ruling), she gave pre‑recorded evidence comprising evidence-in-chief, cross‑examination and re‑examination which, as things presently stand, will be her evidence at the trial.[11]
[11]See ss 378–81 of the Criminal Procedure Act 2009.
No application was made by the applicant to rely upon this evidence on the appeal, notwithstanding that it was adduced as part of the submissions made by the applicant in relation to criticisms of the evidence of AR and its use on a tendency basis. We will return to this issue later.
The judge’s reasons
We have set out the thrust of the judge’s reasoning at [5] above. The following should also be noted.
His Honour referred to the contention of counsel for the applicant that the only physical acts of the applicant that were in issue related to the charges concerning SK and that (on counsel’s argument) there was no dispute as to the physical actions of his client in respect of the charges relating to the other two complainants. The judge rejected this, observing that there was a factual dispute as to each of the charges.[12] The judge then set out the two-step test enunciated in Hughes v The Queen (‘Hughes’) as to the admissibility of tendency evidence.[13]
[12]Reasons, [29].
[13]Reasons, [31], quoting Hughes (2017) 263 CLR 338, 356 [40]–[41] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
Whilst his Honour noted that a tendency expressed in general terms would be of low probative value;[14] and acknowledged that the tendency as framed by the prosecution, ‘to have a sexual interest in his female clients’, was of a general nature, and that it was ‘[e]ssentially to have a sexual interest in adult females’, he nevertheless found that the tendency was of sufficient particularity. The judge said this:
However the manifestation of that interest occurs in regard to each of the 3 complainants in circumstances of some particularity. Namely, whilst each was essentially vulnerable at his residence, whilst he is engaged in his occupation as a masseuse, each proximate in time to the other. It is the circumstances which in my view provide the requisite particularity to the asserted tendency.[15]
[14]Reasons, [32], quoting Hughes (2017) 263 CLR 338, 363 [64] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
[15]Reasons, [33].
Drawing upon the decisions of the High Court in Hughes and R v Bauer (a pseudonym) (‘Bauer’),[16] his Honour noted that the admissibility of tendency evidence is not contingent upon the asserted tendency being similar to the conduct in question;[17] but, in a multiple complainant case, there must be some feature of the offending which links the instances together, in order for the evidence to be of significant probative value.[18]
[16](2018) 266 CLR 56; [2018] HCA 40 (‘Bauer’).
[17]Reasons, [35].
[18]Reasons, [36].
The judge dealt with the probative value of the evidence as follows:
Here there is in my view a sufficient nexus on all of the charges to make each of significant probative value in proof of the other. With respect to the three alleged breast touching’s [sic] each bears a high degree of similarity with each other. Regarding the alleged vaginal touching and digital penetration, these follow on from a breast massage which involves massaging of that complainant’s breasts, using both hands rubbing them separately for a short period of time while also touching her nipples. Conduct which a jury could clearly conclude had a sexual connotation to it, occurring on a complainant who references a shared factual matrix of a vulnerable adult female given her presence partially clothed in the accused[‘s] residence, isolated whilst undergoing massage, and with all alleged offences occurring within a close temporal proximity with each other over an approximately 4 month period.
The tendency as referenced in the prosecution notice is relied upon solely as going to the probability of the factual basis of the charged offences occurring. It is not relied upon in respect of proof of consent on the part of the complainants, nor for that matter that the accused did not hold a reasonable belief that each complainant was consenting.[19]
[19]Reasons, [37]–[38].
Finally, the judge concluded that any prejudicial effect that the tendency evidence may have could be remedied by an appropriate direction to the jury by the trial judge.[20]
[20]Reasons, [39]–[44].
The application for leave to appeal
The application for leave to appeal advances two proposed grounds of appeal:[21]
1. The learned trial judge erred in finding that the prosecution’s use of tendency evidence was unaffected by the issue of consent and the reasoning in Phillips v The Queen (2006) CLR 225 CLR 303 [sic].
2. It was not reasonably open for the learned trial judge to find that the probative value of the tendency evidence substantially outweighed any prejudicial effect it may have on the applicant.
[21]For convenience, each proposed ground will be referred to as a ‘ground’ from here on.
Pursuant to s 298(1)(a) of the Criminal Procedure Act 2009, an interlocutory appeal must be commenced within 10 days after the day on which the interlocutory decision is made. Accordingly, filed together with the applicant’s application for leave to appeal was an application for extension of time pursuant to s 313(1) of that Act. This was heard at the same time as the application for leave to appeal.
Consideration
Section 97(1) of the Act reads 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)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.
In a criminal proceeding, it is not sufficient that the tendency evidence is of significant probative value. Pursuant to s 101 of the Act, the probative value of the evidence must also substantially outweigh any prejudicial effect that it may have on the accused:
101Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about an accused, or coincidence 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.
In Hughes, Kiefel CJ, Bell, Keane and Edelman JJ enunciated the two‑step test applied by the judge in determining whether evidence is of ‘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 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.[22]
[22](2017) 263 CLR 338, 356–7 [41]; [2017] HCA 20, cited in Klein (a pseudonym) v The King [2022] VSCA 249, [85] (Priest AP, Beach and T Forrest JJA). See also McPhillamy v The Queen (2018) 361 ALR 13, 19 [26] (Kiefel CJ, Bell, Keane and Nettle JJ), 20–1 [33] (Edelman J); [2018] HCA 52; TL v The King (2022) 405 ALR 578, 585–6 [28]–[29] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ); [2022] HCA 35.
Recently, in Townsend (a pseudonym) v The King,[23] this Court (Kyrou, Kennedy and Kaye JJA) said of the admissibility of tendency evidence:
In order to determine whether the evidence, on each of the charges in this case, is admissible as tendency evidence in respect of the other charges, it is necessary to address four fundamental questions, namely:
(1)Whether the evidence, in respect of a particular charge, supports the particular tendency that is sought to be relied on;
(2) Whether that tendency has a probative value in respect of the offence that is the subject of one of the other charges; that is, whether the proposed tendency evidence is capable of rationally affecting the assessment, by the jury, of the probability of a particular fact in issue on one or more of the other charges;
(3)Whether, as such, the tendency evidence sought to be relied on has significant probative value in respect of that fact in issue;
(4)Whether the probative value of that tendency evidence would substantially outweigh any prejudicial effect it may have on the accused person.[24]
[23][2022] VSCA 201.
[24]Ibid [21] (citations omitted).
We should also refer to another recent decision of this Court in Gustav (a pseudonym) v The King,[25] in which Priest, Niall and Taylor JJA set out the critical parts and effect of the decisions of Hughes and Bauer:
[25][2023] VSCA 141 (‘Gustav’).
The High Court has held that, in a case for sexual offences involving a single complainant, proof of the accused’s commission of a sexual offence against the complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, so long as they are not too far separated in time. Hence, in Bauer, the High Court said:[26]
[26]Bauer (2018) 266 CLR 56, 83 [50] (the Court); [2018] HCA 20.
Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together.[27] In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.[28]
In Bauer the Court also made it clear that, in cases involving multiple complainants, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another, the logic of probability reasoning dictates there must be some feature of or about the offending which links the two together:[29]
In a multiple complainant sexual offences case, where a question arises as to whether evidence that the accused has committed a sexual offence against one complainant is significantly probative of the accused having committed a sexual offence against another complainant, the logic of probability reasoning dictates that, for evidence of the offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together. More specifically, absent such a feature of or about the offending, evidence that an accused has committed a sexual offence against the first complainant proves no more about the alleged offence against the second complainant than that the accused has committed a sexual offence against the first complainant. And the mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant.[30] If, however, there is some common feature of or about the offending, it may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true.
Hughes illustrates the point. The case involved multiple complainants each alleging that the accused had committed one or more sexual offences against her, where the offences that were alleged to have been committed against some groups of complainants were in significant respects different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants.[31] It was not disputed that evidence of each sexual offence alleged to have been committed against a complainant was admissible as tendency evidence in proof of other sexual offences alleged to have been committed against that complainant, even though, in some cases, the nature of the offending differed significantly from one charge to another. The issue was how much if any of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against her was admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants. And the case was ultimately decided by majority[32] on the basis that, taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection. In the view of the majority, such was the significance of that common feature that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence. By contrast, in a single complainant sexual offences case, where a question arises as to whether evidence that the accused has committed one sexual offence against the complainant is significantly probative of the accused having committed another sexual offence against that complainant, there is ordinarily no need of a particular feature of the offending to render evidence of one offence significantly probative of the other.[33]
Ground 1 — Consent and the decision in Phillips
[27]See Criminal Procedure Act 2009 s 194.
[28]HML v The Queen (2008) 235 CLR 334, 397–8 [168], 401–2 [181] (Hayne J); [2008] HCA 16 (‘HML’).
[29]Bauer (2018) 266 CLR 56, 87–8 [58]–[60] (the Court); [2018] HCA 20 (emphasis added in Gustav).
[30]See HML (2008) 235 CLR 334, 354 [11]–[12] (Gleeson CJ), 382–3 [105] (Hayne J, Gummow J agreeing at 362 [41], Kirby J agreeing at 370 [59]); [2008] HCA 16; GBF v The Queen [2010] VSCA 135, [26] (Nettle, Harper JJA and Hansen AJA); BBH v The Queen (2012) 245 CLR 499, 525 [70]–[71] (Hayne J, Gummow J agreeing at 522 [61]); [2012] HCA 9.
[31]Hughes (2017) 263 CLR 338, 358–60 [44]–[54] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
[32]Ibid 361–2 [57]–[60] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20.
[33]Gustav [2023] VSCA 141, [23]–[24] (Priest, Niall and Taylor JJA) (emphasis added in Gustav).
This ground of appeal (see [30] above) on its face is confined to the use of tendency evidence on the issue of the consent of multiple complainants as considered by the High Court in Phillips.[34] However the argument of the applicant under this ground was discursive and not limited to this issue.
[34](2006) 225 CLR 303; [2006] HCA 4.
As mentioned earlier, the prosecution asserted that the ‘features establishing the tendency’ were that ‘[t]he act alleged demonstrates a tendency’ to ‘have a sexual interest in his female clients and a willingness to act on that interest’ and to ‘sexually assault female clients who attend on him in his professional capacity for a massage’. The applicant submitted that this formulation was circular, and that the notice failed to specify the precise acts which the tendency evidence was to be adduced to prove.
The applicant then contended that of themselves, his acts need not have had a sexual connotation. It was argued that it was only with knowledge that the complainants were not consenting that the acts took on a sexual connotation. Without that knowledge (of non‑consent), the notice was incapable of proving the tendency asserted, because it asserted a tendency to sexually ‘assault’.
The Director argued that ‘conduct that is the subject of the charge is commonly used to establish the tendency asserted’. The Director conceded that the word ‘assault’ was used in error in the tendency notice and sought to amend the word ‘assault’ to ‘touch’. That should be accepted. For completeness, we note that we have treated the notice as so amended.
The Director also said that it was open to the judge to find that the evidence of the complainants could enable the jury to draw an inference that the touching was sexual.
We accept the Director’s submissions.
First, what we consider to be the primary point of this ground of appeal was the submission that the acts described in the notice could not, of themselves, bear a sexual connotation. We do not accept this. As counsel for the Director submitted, the applicant’s alleged touching of the women’s nipples (AR and SK said this in terms, whilst BA said the applicant ‘started massaging across both my breasts’), removing of their towel, and palpating of their breasts beyond simply cupping under them, were sufficiently capable of suggesting that the applicant’s touching was sexual, without reference to whether the complainant consented. The touching of SK’s vagina could clearly be sexual absent evidence about consent.
Accordingly, we reject the applicant’s contention that the alleged acts only take on a sexual connotation in the light of the complainants’ non‑consent. The judge therefore did not err in finding that the prosecution’s proposed use of the evidence was unaffected by the reasoning in Phillips. Any risk of the evidence being used on the question of consent can be alleviated by an appropriate direction.
Second, as to the sufficiency of the notice, it is correct — as counsel for the applicant noted — that the ‘features’ as described in the table within the notice are somewhat circular. However, the relevant features which are relied upon to provide the link between each of the alleged offences are readily discerned from the evidence described in the first column of the notice, in which the prosecution sets out the substance of each episode of alleged offending — and which are then particularised in the third column of the notice.
In Velkoski v The Queen,[35] this Court (Redlich, Weinberg and Coghlan JJA) said as follows in relation to a tendency notice expressed in somewhat similar terms to that of the present notice:
The notice must be confined to the particular manner or circumstances in which the applicant has previously acted or his state of mind on occasions other than that the subject of the charge. It is those other occasions which are relied upon to make more likely the occurrence of the act alleged by the complainant in the subject charge.[36]
[35](2014) 45 VR 680; [2014] VSCA 121.
[36]Ibid 685–6 [22].
The contents of the notice, when viewed as a whole, complied with this direction and made it abundantly clear to the applicant the nature of the tendency, the specific conduct and the common features of the alleged conduct which underpinned the asserted tendency. The notice clearly enables the applicant to meet that evidence — if he is able to.[37]
[37]See Martin v New South Wales [2002] NSWCA 337, [91] (Giles JA).
It is also singular that no argument before the judge or discrete ground of appeal was directed to the adequacy of the notice.
Third, as to the alleged inconsistency with the decision in Phillips we can see none. The notice makes it clear that the alleged tendency relates to the applicant’s sexual interest in his female clients and acting upon it during a massage conducted when alone in a room at his premises by engaging in inappropriate touching of the client.
In Phillips, a joint trial of the accused had been conducted with multiple complainants, each of whom gave evidence that the accused pursued sexual activity with them in circumstances where they did not consent. The High Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ), in holding that the evidence of each complainant was not cross-admissible in proof of offending against each other complainant, said this:
Normally similar fact evidence is used to assist on issues relating only to the conduct and mental state of an accused. Did the accused do a particular thing? Or did the accused do it with a particular mental state? But where a particular count supported by one complainant’s evidence raises the issue of whether she consented to certain conduct by an accused, the issue relates much more to her mental state than his. The trial judge kept referring to ‘the improbability of similar lies’ on that issue. That is an expression used by Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen; however, as counsel for the appellant pointed out, they used it not on the question of whether the complainants in that case consented, but on whether the accused behaved towards them as he said he did. To tell the jury that the evidence went to the improbability of each complainant lying or being unreliable about consent was to say that a lack of consent by five complainants tended to establish lack of consent by the sixth.[38]
[38](2006) 225 CLR 303, 318 [46]; [2006] HCA 4.
The tendency evidence in this case is not sought to be adduced to prove a lack of consent. The relevant evidence here, as in Hoch v The Queen,[39] is to be adduced not on the question of whether the complainants consented but on whether the applicant behaved towards them as they said he did (and he said he did not) while performing a massage.
[39](1988) 165 CLR 292; [1988] HCA 50.
If there is any risk of the jury considering that this body of evidence goes to the question of consent in each of the individual cases, then that, undoubtedly, will be dealt with by a direction by the trial judge.
Finally, we should say something about the recorded evidence of AR, the transcript of which was contained in the application book. As we noted at [22]–[23] above, AR had provided video recorded evidence (in chief, cross-examination and re-examination) on 26 July 2023 which is to be relied upon by the Director at the trial.
This evidence was given subsequent to the judge’s ruling on the admissibility of the tendency evidence.
No application was made by counsel for the applicant to adduce AR’s video recorded evidence as fresh evidence on the appeal. We determined to hear argument about the transcript of the recording and rule on its admissibility in due course. The high point of the applicant’s argument is that there is a minor discrepancy between AR’s video recorded evidence, and the account in her statement, of the exact movements of the applicant’s hands during the course of the massage. The distinction is artificial and pedantic and does not undermine the substance of AR’s evidence, which is that the massage exceeded the boundaries of an appropriate massage and had inherent in it a sexual connotation. We reject the application (implied as it was) to rely upon this evidence.
In our view, the judge was correct to admit the tendency evidence. Here, there is a remarkable congruity between each episode as the judge noted. The features of each of the alleged offences were strikingly similar. Each occurred at the applicant’s house with only himself and a vulnerable adult female present in the room, partially clothed, whilst undergoing a massage. Each allegedly involved or commenced with the applicant’s hands on the breast; and concerned him moving his hands beneath a towel; and the three alleged incidents were all reasonably proximate in time. The occurrence of one alleged sexual assault, in that specific way, makes more likely the occurrence of another when it is alleged to have occurred in the same or very similar fashion. The judge was correct to identify these similarities as providing a solid foundation for admitting the evidence of the three complainants under s 97 of the Act. No House v The King[40] error has been demonstrated by the applicant.
[40]Interlocutory appeals about the admissibility of evidence are governed by the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: KJM v The Queen [No 2] (2011) 33 VR 11, 12–13 [9]–[14] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); [2011] VSCA 268; Tuite v The Queen (2015) 49 VR 196, 199 [8] (Maxwell ACJ, Redlich and Weinberg JJA); [2015] VSCA 148. See also Ebrahimi (a pseudonym) v The Queen [2022] VSCA 65, [21]–[23] (Maxwell P, Sifris and Macaulay JJA).
It follows that ground 1 must fail.
Ground 2 — Probative value does not substantially outweigh prejudicial effect
The applicant submitted that charge 2, which involved touching of SK’s breasts, is a ‘preparatory’ act to charges 3 and 4; whereas charges 1 and 5, involving AR and BA, stood alone. According to the applicant, this ‘severs any nexus charges 3 and 4 might have to charges 1 and 5’. For example, the fact that the applicant massaged BA’s breasts cannot be probative of whether he digitally penetrated SK.
The applicant also argued that by admitting the tendency evidence the jury would hear about the lack of other complainants’ consent when the cases of AR and BA are largely about the applicant’s reasonable belief in consent; and that this would have a prejudicial effect in an ‘intellectual’ sense.
In her response, the Director submitted that there was a clear nexus between each of the charges in that they ‘involved a vulnerable adult female who attended for a non-sexual massage. Each was partially clothed and taking part in a massage at the home of the accused’. In addition, there is the temporal proximity of each of the alleged offences.
Finally, the Director submitted that the offending alleged by charge 4 was ‘not of the most grave kind’, such that adducing evidence thereof would not give rise to incurable prejudice.
In our view, the applicant’s attempt to distinguish the charges as set out at [58] above is artificial and unpersuasive.
As we have just said, if the applicant’s touching of AR and BA’s breasts in the course of a supposedly professional relaxation massage is found to be sexual, then it demonstrates a tendency to have a sexual interest in female clients and a willingness to act on it by sexually touching them when they attend in his professional capacity for a massage. Having a sexual interest in female clients and a willingness to act on that interest by sexually touching clients in the course of a massage is probative of whether the applicant digitally penetrated SK when she attended as a client for a massage.
Endeavouring to examine each interaction between the applicant and the three complainants in minute detail and then to draw distinctions as to the alleged criminal acts perpetrated by the applicant is contrary to authority and the terms of s 97 of the Act. Whilst it is correct that too high a level of generality must be avoided in determining if tendency evidence is admissible,[41] this does not mean that the appropriate level is one of a microscopic examination of the evidence of each of the complainants. As is made crystal clear by the authorities we have referred to (see [34]–[36] above) it is the features of the particular evidence of the three complainants about the conduct of the applicant in the course of a massage at his house that underpin the probative value of this evidence.
[41]See n 14 above.
As to the applicant’s complaint of prejudice, it can be accepted that by admitting the tendency evidence in the case of SK, the jury will learn of the lack of other complainants’ consent in circumstances where the applicant’s defence to the allegations made by AR and BA is largely concerned with the applicant’s reasonable belief in their consent. It may also be accepted that by admitting the tendency evidence, there is a risk that a jury may fail to allow for the possibility that one person consented whilst another did not; or that the applicant may not have had a reasonable belief in consent in one case but did in another.
However, the judge held that a proper judicial direction as to the use of the evidence would minimise the risk of the jury misusing the evidence and conflating the issues. We agree. Cases involving the use of tendency evidence invariably raise this spectre and judicial directions are vital to minimising the risk of misuse. The issues identified by the applicant are reasonably amenable to clear explanation to a jury. This is especially so where, as counsel for the applicant put it, the issue is an ‘intellectual’ one, which is usually capable of being remedied by explanation and direction; as opposed to an emotional one — which may be more difficult to explain.
We agree with the judge’s characterisation of the probative value of the evidence. It is clear that this body of evidence is significant in proving each of the charges. The similarities in the conduct of the applicant, as we have already noted, are striking. The prejudice occasioned by admitting the evidence (which we accept will occur) can be ameliorated by an appropriate judicial direction.
Ground 2 must also fail.
Extension of time application
The interlocutory ruling was made on 1 June 2023. The application for leave to appeal was filed (along with an application for extension of time) on 12 July 2023. As noted above, pursuant to s 298(1)(a) of the Criminal Procedure Act 2009, an appeal from an interlocutory decision must be brought within 10 days of the ruling.
In an affidavit dated 11 July 2023, counsel for the applicant said that he was mistaken about the operation of s 298(1)(a) and thought that it meant that an appeal had to be brought within 10 days of certification, rather than 10 days of the ruling. He said that he sought certification, and that it was granted on 28 June 2023 (27 days after the ruling had been handed down).
Counsel for the applicant maintained that at all times, the prosecution was apprised of the applicant’s intention to appeal the interlocutory decision and, for that reason, on 28 June 2023, the trial, which was then fixed for the circuit commencing on 1 July 2023 in Ballarat, was adjourned. Counsel said ‘this delay will not affect the commencement of the trial’.
The Director submitted that the rule in s 298(1)(a) is in place to prevent this very thing occurring, and that the trial has indeed had to be postponed. She opposed the extension on the basis that there is an unsatisfactory explanation, and because the interlocutory appeal has no prospect of success.
It is regrettable that this delay has occurred due to a mistake. But even if the appeal had been brought in time, it may be doubted that it could have been heard and determined before 1 July 2023. The same outcome might have occurred in any event. Now that the trial has been adjourned, as a matter of practicality, we do not think it profitable to refuse an appeal that has been certified.
We would grant the application for extension of time.
Conclusion
We are satisfied that it is in the interests of justice that leave to appeal be granted, particularly as the determination of the appeal resolves an issue of evidence that is necessary for the proper conduct of the trial. Nevertheless, for the reasons given, we will affirm the interlocutory decision.
For the reasons expressed above, orders to the following effect will be made:
(1)The application for extension of time to file an application for leave to appeal against the interlocutory ruling made on 1 June 2023 is granted.
(2)Leave to appeal on grounds 1 and 2 is granted.
(3)The interlocutory decision made by the County Court on 1 June 2023 is affirmed.
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