Page v The Queen

Case [2015] VSCA 357

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015  0167

LUKE PAGE (A PSEUDONYM)[1] Applicant
v
THE QUEEN Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the persons mentioned herein.

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JUDGES: MAXWELL P, REDLICH JA and BEALE AJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 21 October 2015
DATE OF JUDGMENT: 17 December 2015
MEDIUM NEUTRAL CITATION: [2015] VSCA 357
JUDGMENT APPEALED FROM: DPP v [Page] (Unreported, County Court of Victoria, Judge Wilmoth, 3 September 2015)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Sexual penetration of child under 16, indecent act with child under 16 – Admissibility of evidence – Tendency and coincidence evidence – Subsequent offending against other children – Guilty plea – Whether evidence of admitted offending admissible as tendency or coincidence evidence – Whether sufficient similarity or commonality in events or surrounding circumstances – Whether evidence showed tendency to act in particular way – Tendency and coincidence reasoning distinguished – Judge’s conclusion reasonably open – Leave to appeal refused – Evidence Act 2008 ss 97, 98, 101.

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APPEARANCES: Counsel

Solicitors
For the Applicant Mr J Williams with
Ms D Lamovie 		Victoria Legal Aid
For the Respondent Ms C Duckett Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
BEALE AJA:

Summary

  1. As has so often been the case since the advent of the Evidence Act2008 (the ‘Act’), this interlocutory appeal concerns the admissibility of evidence as coincidence evidence and/or tendency evidence.  Unusually, however, this appeal requires consideration of the differences between these two types of evidence, which in turn reflect the differences in the form of reasoning to which each type of evidence is directed.

  1. As is now well established, appellate consideration of interlocutory challenges to rulings on admissibility is governed by the principles enunciated in House v The King.[2]  Absent error of principle, therefore, this Court will only intervene on an interlocutory appeal if it is established that the conclusion about admissibility was not reasonably open on the evidence.[3]

  1. As will appear, the prosecution sought to rely on evidence of particular conduct by the applicant as both coincidence evidence and tendency evidence.  The judge concluded that the evidence was admissible as coincidence evidence and did not rule on whether it was admissible as tendency evidence. 

  1. For reasons which follow, we consider that her Honour’s conclusion was reasonably open.  We have also concluded that it would be reasonably open to the judge to admit the evidence as tendency evidence.  It is a matter for the trial judge, but in our view the evidence may be regarded as possessing greater cogency as tendency evidence.

  1. The applicant is facing trial on four charges of committing an indecent act with a child under 16 and two charges of…

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Page v The Queen [2015] VSCA 357
Case
[2015] VSCA 357
Decision Date

CaseChat Overview and Summary

The appellant in this case, Page, was convicted of sexually penetrating a child under the age of 16 and committing an indecent act with a child under 16. The appellant appealed against the admissibility of evidence of his previous offending against other children, arguing that it was not relevant or probative of his guilt in the current charges. The Court of Appeal held that the evidence was admissible under both coincidence and tendency reasoning, and that the probative value of the evidence outweighed any danger of unfair prejudice. The Court distinguished between coincidence and tendency reasoning, noting that coincidence reasoning requires a higher degree of similarity between the events, while tendency reasoning requires a pattern of conduct or modus operandi. The Court found that the evidence of the appellant's previous offending was sufficiently similar to the current charges to support both coincidence and tendency reasoning, and that the evidence had significant probative value in proving the appellant's tendency to commit such offences. The Court also noted that appropriate directions would be given to the jury to ensure that the evidence was not used improperly.

The Court held that the application for leave to appeal should be refused, as the judge's conclusion that the evidence was admissible was reasonably open on the material before her. The Court noted that the evidence of the appellant's previous offending was clear and unchallenged, and that the probative value of the evidence outweighed any danger of unfair prejudice. The Court also noted that the parties did not intend to mention the fact of the appellant's previous convictions, and that the evidence could be led simply as evidence of the appellant's previous offending. The Court held that the evidence was admissible under both coincidence and tendency reasoning, and that the probative value of the evidence outweighed any danger of unfair prejudice. The Court found that the application for leave to appeal should be refused, as the judge's conclusion that the evidence was admissible was reasonably open on the material before her.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For it is the cogency of the particular (often unusual) features in the respective accounts which establishes the improbability that the several witnesses would independently have given such similar accounts unless they were truthful and accurate. In other words, it is most unlikely that several such witnesses would independently have told the same lies.[22] With tendency reasoning, on the other hand, the evidence may reveal a ‘pattern of conduct’ or ‘modus operandi’ without there necessarily being the similarity required in order to exclude coincidence.[22]Judicial College of Victoria, Criminal Charge Book (29 June 2015) [4.15.6] < type="1">Where the issue is whether the charged event occurred, courts have endeavoured to capture — in abstract terms — the degree of similarity required between the charged conduct and the other conduct (and/or the circumstances in which they occurred). Thus, the cases speak of the need to show:·‘a sufficient connection in time and circumstances’; ·‘an underlying unity’; and·‘ a pattern of conduct’.The use of such phrases should not, however, be allowed to distract attention from the essential inquiry to which s 98(1) is directed in a case such as this. The question which needs to be addressed is: is it improbable that the respective accounts given (of the charged conduct and of the other conduct) would describe the same feature, or features, if the accounts were not truthful.There is no requirement of ‘unity’, ‘connection’ or ‘pattern’ over and above the requirement of cogency in the common features or similarities. Thus, there might be a single unusual feature of the alleged offending, or of the circumstances, which recurs in the descriptions given by the respective witnesses.[23] The very distinctiveness of that feature might be sufficient to support ‘improbability of coincidence’ reasoning, despite there being no other similarities or, at least, none which would attract the description ‘underlying unity’ or ‘pattern of conduct’.[24] As this Court said in Velkoski, the greater the number of complainants, the less distinctive or similar the evidence need be to satisfy coincidence reasoning.[25][23]See, eg NAM v The Queen [2010] VSCA 95 [12] (‘NAM’).[24]See, eg R v Buckley (2004) 10 VR 215, 229 [47].[25]Velkoski [2014] VSCA 121 [175].Since the judge must be satisfied that the evidence will have ‘significant probative value’, an argument based on similarities — as s 98(1) requires it to be — will ordinarily need to identify similarities in respect of: ·a distinctive or unusual feature (or features) of the ‘event or the circumstances in which it occurred’; or·a combination of features ‘of the event or the circumstances in which it occurred’.They must be similarities which would make coincidence (or invention) improbable.Logically, however, once the identified similarities can be said to raise the improbability of coincidence — and hence give the evidence its probative value — the existence of dissimilarities will not diminish that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position.[26][26]See El-Haddad v The Queen [2015] NSWCCA 10 [76].In the present case, in our view, it was reasonably open to the judge to conclude that there were sufficient similarities between the admitted conduct and the alleged conduct to support coincidence reasoning and to give the evidence of the admitted conduct significant probative value. As noted earlier, those similarities were identified as follows:·the use of legitimate touching, in the form of massaging and ‘cuddle time’, to initiate contact;·touching around the genital region in almost all cases;·the presence of another child as an observer;·the absence of an adult in the immediate vicinity, although proximate on the premises; and·the occurrence of the incidents while the complainants were not fully clothed.We note that these are similarities going to both the ‘events’ and the ‘circumstances in which they occurred’. One of the features which her Honour identified was the applicant, as a grandfather, using ‘legitimate touching’ as a cover for sexually interfering with his granddaughters. It was open to her Honour, in our view, to view such conduct as sufficiently unusual for this to be a relevant similarity, capable of supporting coincidence reasoning.[27] Finally, the fact that the applicant admits the truth of the evidence about his offending against Anita and Mary reinforces the conclusion that the evidence has significant probative value.[27]See, eg NAM [2010] VSCA 95 [16]–[20]; RHB v The Queen [2011] VSCA 295 [18]; DR v The Queen [2011] VSCA 440 [88].Before considering s 101, we turn to consider whether the evidence is also admissible as tendency evidence.Tendency evidenceSection 97(1) applies to evidence of ‘a tendency that [the accused] has or had’, where that evidence is to be relied on to prove that the accused has (or had) a tendency ‘to act in a particular way, or to have a particular state of mind’. In the present case, the prosecution wishes to rely on the evidence of the admitted conduct as evidence of the applicant’s tendency to:act in a particular way, namely:·to engage in sexual activities with young and pre-pubescent female relatives;·to do so in circumstances where he was in a position of trust and had close access to the children, as they were either his own grandchildren or step-grandchildren;·the sexual touching took place by commencing with legitimate touching (massage, cuddling) instigated by the accused. Recently, in Velkoski, this Court provided a clear restatement of the principles which should guide judges in deciding whether the evidence sought to be led hasthe degree of similarity in the commission of the offences or the circumstances which surround the commission of the offences that is necessary to support tendency reasoning.[28][28]Ibid [163].The principles there laid down were subsequently summarised in Rapson v The Queen,[29] as follows:[29][2014] VSCA 216 (‘Rapson’).1.To be admissible, the other evidence must have significant probative value, which requires far more than ‘mere relevance’.[30]2.To satisfy that requirement, there must be sufficient similarity or commonality of features, between the other conduct and the charged conduct, that the other evidence cogently increases the likelihood that the charged conduct occurred.3.In deciding whether there is sufficient similarity or commonality between the features of the other conduct and the features of the charged conduct, it remains:apposite and desirable to assess whether those features reveal ‘underlying unity’, a ‘pattern of conduct’, ‘modus operandi’, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the other evidence its relative strength.[31]5.Commonality of relationship between offender and victims is a relevant factor, but will not ordinarily be sufficient to give the other evidence significant probative value. In the ‘not so uncommon situations of parent and child or teacher and pupil, some other features of similarity must be present’.[32]6.In such cases, commonality of relationship must be accompanied by some degree of similarity or commonality in either the nature of the sexual misconduct, or the surrounding circumstances, or a combination of both.[30]Ibid [171].[31]Ibid.[32]Ibid [168] (citations omitted).As the Court in Rapson[33] noted, these propositions have an important corollary. It is that dissimilarity in the nature of the sexual act(s) (as between the charged conduct and the other conduct) does not necessarily preclude tendency reasoning. The Court adopted the following statement from the Crown’s submission in that case:This follows from the proposition that the underlying pattern can be found in either the offending or in the circumstances surrounding the offending. Of course, the more marked the dissimilarity in the sexual misconduct the greater the requirement for there to be a pattern of commonality or underlying unity elsewhere in the evidence;Similarly variation in the surrounding circumstances in which the alleged offences are committed will not automatically disqualify the evidence as admissible tendency evidence. Again, it will be a question of fact and degree.[34][33]Ibid.[34]Ibid.In the present case, in our view, the evidence of the admitted offending against Mary and Anita is evidence of the applicant’s tendency to act in a particular way. The relevant similarities between the circumstances in which the admitted conduct and the alleged conduct respectively took place ‘render the occurrence of [the charged conduct] more likely’. The relevant tendency is accurately described in the tendency notice, as set out above. That is, the evidence of the offences committed against the sisters will show that the applicant has a tendency to engage in sexual activities with pre-pubescent female relatives, in circumstances where he is in a position of trust and has close access to the children, and to do so by commencing with legitimate touching instigated by him.As noted earlier, the judge did not decide whether the evidence could support tendency reasoning. In our view, there is a sufficient similarity for this purpose in the way in which the applicant allegedly took advantage of the situation of parental or quasi-parental trust in which he was placed, by creating for himself the opportunity to have sexual contact with the child(ren).[35] In both instances, he contrived to place himself in a position of close physical proximity to the child in question, at a time when the child was in a state of semi-undress and away from parental scrutiny. Having done so, he commenced his touching of the child by using, as a pretext, a seemingly innocuous and affectionate activity. [35]Cf Reeves v The Queen (2013) 41 VR 275, 289–90 [54]–[56]; Rapson [2014] VSCA 216 [35]. See also Saoud v The Queen [2014] NSWCCA 136 [52].In the case of the admitted offending, the chosen activity was massage. The child would naturally have had no hesitation in allowing the applicant to touch her because, she believed, he would be treating her in a caring and therapeutic fashion. Likewise, in the alleged incidents involving Susan, the applicant lured her into his embrace by using the phrase ‘cuddle time’. Cuddling is a perfectly commonplace, affectionate activity between parent/grandparent and child, and the child would have had no concern about her safety in accepting the applicant’s invitation.Finally, there is material similarity in the fact that — on each account — the applicant takes advantage of the child’s physical proximity, and her state of semi-undress, to touch her on or inside the vagina. Taken by itself, that commonality in the nature of the sexual abuse might not be significant but, as part of a ‘pattern of conduct’, it further enhances the probative value of the evidence as tendency evidence.Accordingly, it would be open to her Honour to conclude that the evidence satisfies the requirements of s 97(1). Moreover, we think that this is the preferable basis of admissibility in this case. That is, the evidence provides stronger support for tendency reasoning than for coincidence reasoning. The evidence of tendency is clear whereas reasonable minds might differ about the improbability of coincidence in respect of the similarities relied on.The danger of unfair prejudiceAs noted earlier, the applicant submitted that the prejudice which would flow from the admission of this evidence was that it would disclose prior convictions for sexual offending against female children. Ordinarily, of course, there would be real force in this argument. Reference to prior convictions in criminal trials is scrupulously avoided, to prevent juries engaging in impermissible propensity reasoning.The present case is, however, quite different, because of the basis on which the evidence is made admissible. The applicant has admitted to sexual offending against young girls, and to having done so in circumstances which give the evidence of that offending significant probative value in relation to the charges he now faces. Indeed, the fact that the conduct is admitted, rather than merely alleged, means that the evidence will go before the jury unchallenged and is likely, therefore, to carry greater weight than if it were contested.As is always the case, the judge will be required to give clear directions about how the evidence can be used, and how it may not be used. The giving of appropriate directions, and the required propensity warning, is necessary to ensure that this evidence is treated appropriately, and is not given weight which it does not deserve or otherwise used impermissibly. As became clear during argument, the parties do not intend to mention the fact of the applicant’s conviction. The evidence of the admitted conduct can simply be led as such, though the fact that it is not challenged will not be lost on the jury.Accordingly, in our view, s 101 is no bar to the admission of this evidence.ConclusionThe application for leave to appeal must be refused.---

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant’s right hand was rubbing Susan’s right hip. He then moved her bathers to one side and moved quickly onto her vagina, where he started rubbing around the area of her clitoris. Susan could feel his fingers and they hurt her. (Charge 5 – sexual penetration of child under 16). Susan moved to the right and the applicant moved his right hand away. He then used his left hand to place Susan’s left hand under his speedos and directly onto his penis. (Charge 6 – indecent act). Susan was shocked. She moved her hand away but the applicant grabbed her hand again and put it back near his testicles, over his speedos. Nothing seemed to happen for 10 to 15 seconds, before Susan again pulled her hand back. Gerald was in the spa at this time, just gazing at the water. He then came to where the applicant and Susan were, at the other side of the spa, and said, ‘It’s my turn’. Susan then moved and Gerald sat where Susan had been sitting. Susan was so angry about what had happened that she wanted to do something naughty. So she stole a cigarette from Margaret and tried to smoke it in the park, but could not get it lit. Gerald recalls this incident. Susan never stayed at the applicant’s beach house again following this incident, although she did see him at family functions. At those times, she would try to maintain her distance from him. Gerald recalls fish and chips being bought with five cent pieces, because it had embarrassed them. He recalls ‘cuddle time in the spa bath at the beach house’. He says that the cuddles were ‘normal cuddles’. The offending to which the applicant pleaded guilty occurred in 2006 and 2007, some years after the time when the offences against Susan are alleged to have occurred. The incidents on which the prosecution wishes to rely (‘the admitted conduct’) occurred at the home of Mary and Anita, at times when the applicant was staying as a guest of their parents. When the applicant was staying at the house, he would go to the bedroom which the girls shared, to say ‘good night’ to them. While he was there he would massage them. One night, when Mary was aged between eight and nine years old, she was lying in her bed, on her back, while the applicant gave her a massage. During the massage, he put his hand under her pyjama pants and rubbed the top of her vagina over her underwear. (Charge 2 – indecent act). A year or two later, when Mary was 10 years old, she started wearing a bra and often slept with it on. One night when the applicant was again staying at the house, Mary was in bed lying on her stomach. He came into her bedroom to massage her. He unclipped her bra and reached around and squeezed her chest with both hands. He then sighed. (Charge 3 – indecent act). When Anita was aged five or six, the applicant was in the shared bedroom, sitting next to Anita on her bed, massaging her stomach. While he was doing this, he pulled down her pants and looked at her vagina. Anita told him to stop and he apologised. He stopped for a while, but would then do it again. Mary saw him doing this to Anita. He then put his hand inside Anita’s pants and ‘rubbed there’ on her vagina for about two seconds. (Charge 4 – indecent act). Anita told him to stop and that it was not right. He said he was sorry but then would do it again.