MR v The Queen

[2011] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0029 

MR
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN, HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2011
DATE OF JUDGMENT:	18 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 39

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INTERLOCUTORY APPEAL – Sexual offences - Counts 1 and 2 charge child pornography offences and count 3 charges indecent act – Single complainant is applicant’s daughter - Crown seeks to use photographs and video relating to counts 1 and 2 as tendency evidence relevant to count 3 – Admissible as evidence of applicant’s sexual interest in daughter – Judge correct to admit evidence and refuse severance – Application refused - Evidence Act 2008, s 97.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Condon	Lethbridges
For the Crown	Mr G Silbert SC and Ms P Thorp	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I will ask Hansen JA to give the first judgment.

HANSEN JA:

1. This is an application for leave to appeal from an interlocutory decision of a judge in the County Court made last Tuesday whereby the judge, in rejecting applications made on behalf of the accused:

(a) ruled as admissible tendency evidence pursuant to s 97 of the Evidence Act 2008;  and

(b) refused to sever counts 1 and 2 from count 3 pursuant to s 194 of the Criminal Procedure Act 2009.

1. On the same day the judge granted a certificate in respect of these respective decisions pursuant to s 295(3)(a) and (b) of the Criminal Procedure Act 2009 and adjourned the trial pending the decision on this application. 

1. The three counts with which the applicant is charged are:

one count of making or producing child pornography, being photographs of his daughter (count 1),

one count of causing her, being aged under 18, to be concerned in the making or production of child pornography (count 2), and

one count of an indecent act with her, being a child aged under 16 (count 3).

1. By notice dated 19 January 2011, the Crown, pursuant to s 97(1) of the Evidence Act 2008, advised the applicant of its intention to adduce certain tendency evidence concerning him.  The evidence is stated to relate to the following facts in issue.  As to the pornography counts, whether the images of the complainant are to be categorised as pornographic, and as to the indecent act count, whether, as alleged,

the accused pushed his bare penis against the complainant’s naked vagina.  It is stated that the tendency to be proved is the tendency of the applicant to have a particular state of mind, namely to have a sexual interest in his young daughter and a willingness to act upon this sexual interest.  The notice further identified the conduct of which evidence will be adduced, and the name of each person who saw, heard or otherwise perceived that conduct.  This fell into two categories.  The first is the evidence of the complainant as to the indecent act.  The second is the evidence on the pornography counts which in addition to that of the complainant included police witness evidence of locating in a search of the applicant’s house, a telephone containing a video clip of the complainant wearing a robe falling open and revealing her naked underneath, and computers on which were found photographs of the complainant, some being pornographic.

1. In his ruling on the applications, the judge said that the applicant’s submission was based on one central argument that there were no identified similarities between the allegations constituting counts 1 and 2 and the allegations constituting count 3.  It was submitted that in the absence of relevant identified similarities, the evidence was not admissible tendency evidence.  The judge quoted paragraphs 37 and 38 in the judgment of the Court of Appeal in CGL v Director of Public Prosecutions[1] upon which counsel relied as encapsulating the thrust of her submission. 

   [1][2010] VSCA 26.

1. The judge, having perused the photographs and the video, stated that it would be open to the jury to interpret the photographs as demonstrating that the accused possessed a sexual interest in his young daughter and a preparedness to act upon that interest.  He said that the evidence was of significant probative value in relation to count 3.  As to any requirement of a similarity in the activity, the judge considered that the link between the counts was that each involved sexual activity involving his young daughter.

1. It was for these reasons, in summary, that the judge ruled the evidence admissible and in consequence refused the severance application. 

1. In her submissions to this Court, counsel for the applicant acknowledged at once the presumption against severance in s 194 of the Criminal Procedure Act 2009.  She submitted that cross-admissibility is a relevant consideration in determining whether charges should be heard jointly or separately.  Accordingly, consideration of the admissibility of the tendency evidence was a logical starting point in considering whether severance should be ordered.  Hence counsel moved to the question of admissibility and it is upon that issue that the application rested.

1. It was objected that the evidence pertaining to counts 1 and 2 is not admissible as tendency evidence in respect of count 3 for the following reasons.  As between counts 1 and 2 on the one hand and count 3 on the other hand, there was a lack of relevant similarity in the allegations or any connection in time and circumstances of the offending or a relationship between the facts in issue.  It was said, shortly expressed, that there had to be some similarity of a relevant nature.

1. Counsel submitted that the expression of a tendency to have a sexual interest in his young daughter and a willingness to act upon this sexual interest, without evidence of actual conduct that shared some similarity, is deficient for the purposes of s 97(1). Counsel relied, as she had in the County Court, on the following passages in CGL v Director of Public Prosecutions:[2]

   [2][2010] VSCA 26, [37]-[38].

37 Unlike s 98(1), s 97(1) does not identify the basis on which evidence becomes admissible to prove a relevant tendency. In the present case, as the prosecutor acknowledged early in her submissions on the leave application, the basis of admissibility advanced was essentially the same as in the case of the coincidence evidence. That is, the prosecution relied on the same identified similarities between the various allegations in order to prove that the accused had the relevant tendency.

…       

38       … Absent relevant similarities, the evidence would be – as senior counsel for the applicant put it – ‘pure propensity evidence’.

1. In my opinion reliance on these passages is misplaced. What the court said there was said in the context of a single presentment containing 19 counts of sexual offending concerning four complainants and the question was whether the evidence of those complainants was cross‑admissible. The Crown sought to rely on the evidence as tendency evidence pursuant to s 97 and also as coincidence evidence pursuant to s 98. Section 98(1), of course, expressly requires consideration of ‘similarities in the events or circumstances’. There is no such requirement in s 97(1). Nevertheless, as is apparent from the quoted passage, the prosecutor relied on the coincidence ‘similarities’ to identify a common tendency and thus to sustain admissibility under s 97. That was understandable in the context of that case where there were four complainants, for the prosecutor had to identify the relevant tendency.

1. The present case is quite different. Here there is a single complainant and the question is whether the requirements of s 97(1) are satisfied so that the evidence of the photographs and video are admissible on count 3.

1. I agree with the judge’s conclusion that the photographs and video are capable of demonstrating that the accused had a sexual interest in his daughter and was prepared act upon that interest.  While the acts differ, there is the commonality of acts manifesting and pursuing an unnatural sexual interest in his daughter;  see JLS v R.[3]

   [3][2010] VSCA 209, [30].

1. For these reasons, and the evidence being significantly probative, in my view the judge was correct to conclude that the evidence was admissible and in consequence to refuse severance.  I would refuse leave to appeal.

BUCHANAN JA:

1. I agree.

HARPER JA:

1. I also agree.

BUCHANAN JA:

1. The order of the Court is that the application for leave to appeal is dismissed.  

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