PG v R
[2010] VSCA 289
•19 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0334
| PG | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
- - -
JUDGES: | NETTLE, NEAVE and HARPER JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 19 October 2010 |
DATE OF JUDGMENT: | 19 October 2010 |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 289 |
JUDGMENT APPEALED FROM: | Rulings of 27 and 30 August 2010 of her Honour Judge Sexton |
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CRIMINAL LAW – Appeal – Interlocutory appeal – 11 counts of indecent assault and four counts of taking part in an act of sexual penetration with a child under 10 – Refusal to exercise discretion to order permanent stay of proceedings – Applicant previously convicted of indecent assault of one of the complainants – Subsequent prosecution for further offences committed against same complainant and her sister during similar but not same period not oppressive – Unavailability of record of interview, period of delay and use of previous conviction as tendency evidence did not make subsequent proceedings an abuse of process – Jago v District Court of New South Wales (1989) 168 CLR 23, applied.
CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of previous conviction and uncharged acts as tendency or coincidence evidence – Earlier indecent assault of significant probative value – Consideration of specificity as to the nature of the conduct in question required to be admissible.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J M Garner | Macgregors Solicitors |
| For the Crown | Mr C Beale with Mr G Barr | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
We propose to deal first with the application for leave to appeal from Ruling No 1. I invite Neave JA to deliver the first judgment.
NEAVE JA:
The applicant, PG, seeks leave to appeal against an interlocutory decision made by a County Court judge refusing to stay his prosecution for 11 counts of indecent assault and four counts of taking part in an act of sexual penetration with a child under 10. The two complainants, SRC and SAH, are his daughters. The alleged indecent assaults and penetrative offences against SRC are said to have occurred in periods between various dates, the first of which was 3 January 1984[1] and the last of which was 31 December 1989,[2] when SRC was between six and 11 years old. The alleged offences against SAH also occurred between dates beginning on 19 September 1986[3] and ending on 18 September 1990, when SAH was between five and nine years old.[4]
[1]Count 1 (indecent assault in period beginning 3 January 1984).
[2]Count 9 (indecent assault in period ending 31 December 1989).
[3]Count 10 (indecent assault in period beginning 19 September 1986).
[4]Count 15 (indecent assault in period ending 18 September 1990).
In 1992, when SRC was 14, she made a statement to the police alleging that her father had indecently assaulted her on two occasions. The first assault was said to have occurred between 1 October 1984 and 30 November 1984 and the second assault between 3 January 1986 and 15 February 1986. When interviewed by the police the applicant denied these assaults but said that on another occasion she had touched his penis and he had become aroused and had not stopped her from doing so.
Three charges of indecent assault were laid against him in relation to these offences. On 21 May 1993 the accused pleaded guilty to one of those three charges in
the Shepparton Magistrates’ Court and the other two charges were marked ‘struck out’ and ‘withdrawn’. The count to which he pleaded guilty was that on an unknown date between 3 January and 15 February 1986, at a time when SRC was eight years old, he digitally penetrated her, causing her pain, and then placed his penis between her upper legs and moved back and forth before withdrawing and ejaculating.
In addition to the charge to which he pleaded guilty, the applicant was convicted of two other charges of indecent assault against other complainants and received a fine and a partially suspended sentence of imprisonment.
On 27 August 2010 the trial judge rejected the applicant’s application for a permanent stay of the current proceedings as an abuse of process. Under s 295(3)(b) of the Criminal Procedure Act2009, her Honour certified that her ruling was of sufficient importance to the trial to justify being determined on an interlocutory appeal.
The fact that the learned judge certified this decision under s 295 of the Criminal Procedure Act 2009 does not require this Court to grant leave to appeal. The matters which must be taken into account in deciding whether it is in the interests of justice to grant leave to appeal are set out in s 297 of the Criminal Procedure Act 2009.
Judge’s findings
In considering whether a permanent stay should be granted, the trial judge set out the principles relevant to the application as follows:[5]
[5]She relied on Jago v District Court of New South Wales (1989) 168 CLR 23; Boulos v The Queen [2008] NSWCCA 119, [10] (James J).
·the court has an inherent jurisdiction to permanently stay proceedings that are an abuse of process;
·the onus is on the applicant to satisfy the court that any trial would involve an abuse of process;
·the power to stay will be exercised only in the most exceptional circumstances and is discretionary;
·the exercise of discretion involves balancing the interests of the community and those of the applicant;
·an abuse of process occurs when a trial is incapable of serving its purpose, that is, is incapable of finally determining whether the accused had engaged in alleged criminal conduct; and
·before a stay may be granted there must be a fundamental defect which goes to the root of the trial such that the trial judge will be unable to address the unfairness, for example by the use of jury directions.
Her Honour held that the applicant had failed to discharge the onus on him to satisfy the court that the trial would involve an abuse of process. So far as the counts concerning SRC were concerned, her Honour said that the principle of autrefois acquit did not apply, because the current allegations covered different offences from those covered by the police statement given by SRC in 1992. Her Honour noted that in R v Swingler,[6] the Court of Appeal held that a trial judge had not wrongly declined to stay proceedings in which a man was presented on sexual assault counts in respect of which a nolle prosequi had previously been entered. She also referred to the decision of the High Court in PNJvThe Queen[7] where the Court declined to grant an application for a permanent stay of proceedings against the accused for murder, in circumstances where the accused had already been convicted and sentenced for causing injury to the victim, who had later died.
[6][1996] 1 VR 257.
[7](2009) 252 ALR 612.
Her Honour said that although the record of the applicant’s interview by police in 1992 was missing, this did not make it unfair or oppressive for him to be prosecuted for the later offences. Nor did the failure to interview the accused in 2006 about the allegations which SRC had made that he had committed further offences against her.
Her Honour said that the failure of the detective who interviewed the applicant about the allegations made by SAH to ask any questions about the matters arising from the statement of SRC was inexplicable. However it was not unfair or oppressive to the accused for the Crown to proceed against him in relation to the alleged offences against SAH, in circumstances where the applicant’s defence was simply a general denial of the offending having occurred.
Her Honour acknowledged that in Jago v District Court of New South Wales[8] Deane J had said that delay could result in a situation where continuation of proceedings could be so unfairly and unjustifiably oppressive that it would amount to an abuse of process. This could be the case where there were multiple prosecutions arising out of the one set of events, where the prosecutions were separated by many years or where there was a renewed charge after dismissal of earlier proceedings for want of prosecution.[9] In this case however her Honour said that the prosecution was unaware of the conduct the subject of the allegations made by SAH in 2005 and by SRC in 2006, at the time when the applicant was prosecuted for and pleaded guilty to the offence against SRC in 1993.
[8](1989) 168 CLR 23 (‘Jago’), 58.
[9]Ruling (Unreported, County Court of Victoria, Judge Sexton, 27 August 2010), [20].
Her Honour said it was not uncommon for young children to delay in complaining, and it was questionable whether the allegations in this case arose out of ‘one set of events’. The delay did not make it unfair and oppressive to the accused for the prosecution to proceed.
Conclusion
On the hearing of the application for leave, counsel for the applicant made similar submissions to those made to the trial judge. In essence, counsel for the applicant submitted that the Crown, having elected to prosecute the applicant for offences occurring up to the date when SRC made her statement in 1992, could not thereafter charge the applicant for offences said to have occurred in that period. It was said that the applicant, having pleaded guilty to that offence, had an expectation that he would not be charged for other offences occurring during that period and
consequently, it would be unfair and oppressive for the Crown to present him on such offences.
The Crown’s submission in reply was that it would bring the administration of justice into disrepute for the Crown to fail to prosecute the applicant for offences in respect of which there was evidence sufficient to sustain a conviction.
Counsel for the applicant further contended that it was an abuse of process for the Crown to prosecute the applicant for offences against SAH, because in 1988 when she was aged seven, her mother had asked her if the applicant had touched her and she had denied it, and she had done so again in 1992, when she was 11 years old.
Although the applicant’s counsel conceded that the unavailability of evidence will not, of itself, lead to a permanent stay, the fact that the applicant’s 1992 record of interview was not available and that he had not been interviewed by police about the more recent allegations of offences against SRC, was said to exacerbate the unfairness involved in trying him for the offences covered by the current presentment.
I am not persuaded by that submission. As her Honour said, the offences in the current indictment were not covered by the previous charges. In my opinion the fact that the applicant had pleaded guilty to one offence in 1993 and that two other charges were withdrawn at that time did not make it oppressive to prosecute him for alleged offences against SRC which were not known to the Crown at that time but came to light as a result of statements made by the complainants in 2005 and 2006. A fortiori it was not oppressive for the accused to be presented on the alleged offences against SAH, any more than it could have been said to be oppressive if the alleged offences had involved a complainant who was not the daughter of the accused.
None of the alleged offences committed against SRC overlapped with the period of the indecent assault to which he pleaded guilty in 1993.[10]
[10]The period covered by count 1, which alleged that he had indecently assaulted SRC between 3 January 1984 and 2 January 1986, ended the day before the period covered by the offence to which he pleaded guilty, 3 January to 15 February 1986.
It can be assumed that the applicant’s 1992 record of interview related to SRC’s complaints of indecent assault. The proposition that it could have assisted the applicant is purely speculative. Moreover case law indicates that even where missing evidence is directly related to the alleged offences, it will rarely provide the basis for the conclusion that the prosecution amounts to an abuse of process.[11] As the High Court said in R v Edwards:[12]
Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.[13]
[11]See for example Wells v The Queen [2010] VSCA 100.
[12](2009) 255 ALR 399, 405.
[13]Jago (1989) 168 CLR 23, 34 (Mason CJ), 47 (Brennan J); Williams v Spautz (1992) 174 CLR 509, 519 (Mason CJ, Dawson, Toohey and McHugh JJ).
Whether or not the police had any duty to interview the accused about the alleged offences committed against SRC, their failure to do so did not make it unfair to the accused to be prosecuted for the alleged offences against her.
In combination with the matters already discussed, the applicant relied on the lengthy delay between the period of offending and the prosecution of the applicant. The delay between 1992 and 2005 was not caused by any failure of the Crown. It was not put that any relevant witnesses had become available because of the delay. Unfortunately delay in reporting frequently occurs in the case of alleged sexual offences,[14] as the trial judge remarked. It is readily explicable, when the age of these complainants at the time of offending is taken into account, that there may have been some delay in reporting and it is a matter on which the trial judge may direct the jury.[15] The case law on stays does not support the suggestion that delay necessarily provides the basis for a stay, in circumstances such as these.[16]
[14]R v Tiso (1990) 12 Cr App R (S) 122, 125 (Taylor LJ).
[15]Crimes Act 1958, ss 61(1A), (1B), but see also s 61(1)(b).
[16]See for example R v Birdsall (Unreported, NSW Court of Criminal Appeal, Cole JA, Grove and Simpson JJ, 3 March 1997), where the delay was 34 years.
Any disadvantage which may be suffered by the applicant must be weighed against the interests of the community in ensuring the prosecution of persons alleged to have committed serious criminal offences. This is particularly the case where the victims were children at the time of offending. As Brennan J observed in Jago:[17]
The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.[18]
[17](1989) 168 CLR 23.
[18]Ibid 49–50.
The applicant’s counsel also submitted that the proceedings should be stayed because the prosecution was seeking to rely on the plea of guilty and conviction in 1992 as tendency evidence. In her second ruling, dated 30 August 2010, her Honour ruled that the evidence of the 1993 matter could only be relied on as tendency evidence in relation to SRC and not in relation to SAH. That ruling is also the subject of an interlocutory appeal. Whatever view the Court takes on that issue, the proper admission of tendency or coincidence evidence relating to a prior conviction cannot amount to an abuse of process in the circumstances of this case.
As counsel for the applicant conceded, the decision to grant or refuse a stay is a discretionary one, to which the principle in House v The King[19] applies.[20] The accused must therefore show that her Honour ‘acted upon a wrong principle’, allowed ‘extraneous or irrelevant matters’ to guide or affect her, or that her Honour’s refusal to grant a stay was so ‘unreasonable or plainly unjust’ that the judge must have failed to exercise her discretion properly.[21] The applicant submits that her Honour incorrectly applied the correct principles to the facts of this case. In my opinion her Honour’s refusal to grant a stay was clearly within the scope of sound discretionary judgment. For these reasons I would refuse leave to appeal against her Honour’s refusal to grant a permanent stay.
[19](1936) 55 CLR 499.
[20]Boulos v The Queen [2008] NSWCCA 119, [41] (James J).
[21]House v The King (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
NETTLE JA:
I agree.
HARPER JA:
I also agree.
NETTLE JA:
The order of the Court in respect to the first application is that the application for leave to appeal is refused.
We shall deal now with the second application.
This is an application for leave to appeal pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 against Ruling No 2 of her Honour Judge Sexton of the County Court made herein on 30 August 2010.
The judge certified pursuant to s 295(3)(a) that the evidence the subject of her ruling, if ruled to be inadmissible, would eliminate or substantially weaken the Crown case.
As Neave JA observed when dealing with the first application, the applicant stands indicted of a range of sexual offences committed against his two elder daughters, SRC and SAH, between in and about 1984 and 1990. Each of them has made a statement in which she deposes to a number of uncharged acts, and the Crown seeks to adduce that evidence as tendency or coincidence evidence or, in some instances, as circumstantial evidence in support of direct tendency or coincidence evidence.
The judge ruled in most cases that the evidence sought to be adduced is admissible, and it is against those determinations that the application for leave to appeal is brought.
The first section of evidence the subject of the ruling is dealt with in paras 16 and 17 of her Honour's ruling.
In substance, in 1993 the applicant pleaded guilty to a charge of having indecently assaulted his daughter, SRC, in about 1986. The conduct to which he so pleaded guilty was alleged to have occurred in the period between January to February 1986 which, as her Honour observed, was close to the end of the period alleged in counts 1 to 6 and the year before the period the subject of counts 7 and 8.
The judge held that the 1993 plea of guilty to indecent assault on SRC was relevant and admissible as making a relevant contribution to the question whether the acts alleged on the presentment in respect of SRC were more likely to have occurred.
Counsel for the applicant attacked the judge's reasoning, on the basis that as a result of a telephone call engineered between the applicant and his daughters in recent times, there was some ambiguity as to what it was to which the applicant had pleaded guilty in 1986, and it was submitted that the attendant uncertainty detracted from the probative value of the evidence to a point which rendered it inadmissible. I reject that contention. It is plain from the Court records that the offence to which the applicant pleaded guilty was the offence of indecent assault dealt with by Neave JA in the course of her reasons for judgment concerning the application for leave to appeal from Ruling 1.
Otherwise, as it appears to me, with respect that the judge was correct to rule as she did. The 1986 plea of guilty to indecent assault on SRC was of significant probative value in relation to the offences which the applicant is alleged to have committed against SRC.
The second matter the subject of complaint concerns other sexual conduct dealt with by the judge in paras 18 and following of her Ruling No 2. At p 146 para 4 of the depositions, SRC deposed:
I recall a number of incidents other than those detailed in this statement which occurred during this time however I cannot recall the times nore [sic] the full details of theses [sic] further incidents.
In para 19 of her revised Ruling No. 2, the judge held that:
What contribution might this general and unspecific reference to other incidents make to whether the counts on the presentment are proved? In my view, if accepted, although general, the evidence is capable of showing that the accused had an ongoing sexual interest in SRC. Counsel for the accused submitted that there were only five incidents on which sexual activity is alleged on the presentment in respect of SRC. … Evidence that these were not the only incidents and that sexual activity happened on other occasions has significant probative value because it answers, if accepted, the contention by the defence that there were only five incidents. It has the potential to provide a fuller picture of the alleged illicit relationship rather than an artificial one on only five occasions spread over five years. Further, it renders more probable the ongoing sexual interest of the accused for SRC and thereby renders it more probable that the counts alleged on the presentment in respect of SRC occurred, the more so when combined with the evidence of the admitted indecent assault committed in 1986. Despite its generalised nature, in my view the reference to recalling other incidents of sexual abuse has significant probative value.
With respect I disagree. Although evidence of that general kind would be relevant and probative, it appears to me that it is expressed in such general terms as to be inadmissible. Since the nature of the incidents is not defined directly or implicitly in the deposition, the jury would be left to speculate as to what occurred.
Were the incidents more specifically defined, such that it could be seen that they were probative of the relationship, or more directly of the offences alleged, it would be admissible. But as it stands, I do not consider that a rational jury could regard it as having material weight and, therefore, I would exclude it.
The third matter is dealt with in para 20 of her Honour's Ruling No 2 and concerns deposition p 137, paras 13 and 14, which are as follows:
13.The last incident I can distinctly remember was when I was 8 years old. We all bought Mum a game called the ‘Game of Life’. I remember it said on the box that it was a game for ages 8 and up but Mum was stopping me from playing because they were trying to work out the rules of the game. I remember everyone else in the family being there. I was really annoyed for not being able to play. I had a hissy fit and Mum sent me out of the room. I remember going to the neighbours, Peg and Des. They were very good friends. I remember I swore and got a smack from Peg which is very unusual. She sent me home again. That happened through the day but it was that night and I was still very angry. At this stage my bedroom was up the other end of the house but I still shared with NS. We had pink bunk beds. I was in the top bunk. I was really angry and pissed off that I wasn’t allowed to play this game. I think a lot of the time, Dad came in on the pretence of saying good night to us. Sometimes I was woken up during the night. Sometimes he did things so quickly it made me wonder what the point was. Sometimes he would put his hand down my pants and touch my private part, other times he would put his fingers inside my private part and other times he would make me touch his penis. Sometimes he got into bed with me. Other times he was just beside the bed. He always kept his face very close to mine. Sometimes he held my forehead down with one hand while he touched me with the other hand. On this occasion, when I was 8, he put his hand down my pants and put his fingers inside me. I remember there was just a sheet on me, not heavy blankets.
14.I remember being in my front bedroom a lot and being in the bathroom a lot when Dad touched me. I remember being very afraid and trying not to think about it.
Counsel for the applicant submitted that, because no dates or times are given in relation to the events therein referred to, it would be very difficult for defence counsel effectively to cross‑examine the deponent and thus that, as a matter of fairness, the evidence ought to be excluded.
At para 21 of Ruling No 2, the judge said:
I am of the view that, despite its (meaning the evidence's generalised nature) the evidence has significant probative value from the same reasons expressed above in respect of the generalised evidence of SRC. Evidence that these were not the only incidents and that sexual activity happened on other occasions, if accepted, answers the contention by the defence that there were only a limited number of incidents, providing a fuller picture and renders it more probable that the counts alleged on the presentment in respect of SAH occurred.
With respect I agree with her Honour. Although s 135 provides for the exclusion of evidence which would be unfairly prejudicial or misleading or confusing or cause or result in undue waste of time, it does not appear to me that this evidence answers those descriptions. Nor do I accept that it is of so vague a nature as to cause insurmountable problems to defence counsel when cross-examining the deponent.
The fourth matter is dealt with in para 23 of Ruling No 2 and concerns matters deposed to at p 136 para 10 of the depositions. What is there said is as follows:
I also distinctly remember once when I was getting out of the bath to get into the towel. I normally bathed with my sister but she was not in the bathroom at this time (I interpolate that Dad was the applicant). I stood up in the bath and Dad told me that I had to stand and drip‑dry. He was showing me how to flick the water off my body to help drip‑dry. He held me by the wrist and manoeuvred my hands along my arms and then my chest and back and bottom and legs to get the drips off. I remember he was sitting on the edge of the bath and had my towel over his knees. He began touching me on my private parts. He asked me to spread my legs further apart, and then he used two of his fingers to graze inside my legs on my private part and the rest of his fingers were side on. Sometimes he used soap to rub my private part and this would sting. Most of the time he was gentle.
Counsel for the applicant submitted that, although there was sufficient specificity as to the nature of the conduct in question, what was said was so vague as to the time at which it occurred that it was impossible to say that it related to other charged events, or at least created difficulties for defence counsel which rendered its admission unfair.
In Ruling No 2, her Honour said that:
I am satisfied this evidence has significant probative value in showing the illicit sexual relationship, even though the allegations are not identical with the acts constituting an offence alleged on the presentment (for SAH the counts alleging digital penetration are alleged to have occurred in the bedroom, and there is no count alleging penetration or assault using the soap).
The point about this evidence was, although it was not identical to the offences alleged in relation to SAH, it was generally speaking of a similar kind committed within the relevant period against SAH's sister by the applicant.
With respect, I agree. I consider that the evidence of such probative value as substantially to outweigh any prejudicial effect.
The fifth matter is dealt with in para 27 of Ruling No 2 and concerns para 14 at p 149 of the depositions. The complainant, SRC, there deposes to a birthday party which occurred in 1986 and in particular to what occurred when she went to the bathroom during the course of the event. She said that she observed her sister S, in front of her, banging on the bathroom door saying, ‘Open up’, and she heard the applicant saying from inside the bathroom, ‘Go away’. She told him that her mother had told NAS to wash her hands and he told her to wait. A short time later he opened the door and walked out. As he left the bathroom, the deponent saw SRC standing in the bathroom and could see that she had been crying. SRC was wearing a dress for the party and she was in the process of pulling up one side of her ‘undies’. She asked her what was wrong and the applicant, who was still standing in the doorway behind them said, ‘Don't worry, she will be fine’. SRC did not say anything. The applicant then left and SRC stayed with the deponent while NAS washed her hands.
The judge ruled that this was tendency evidence and admissible as such. Up to a point, I agree. It seems to me that it is circumstantial evidence which supports and tends to confirm SRC's direct evidence as to the sexual relationship which existed between her and the applicant and thus, indirectly, is probative of the offences alleged. There is a problem with the evidence, however, which is best explained in the context of the next matter.
The sixth matter is dealt with in para 28 of Ruling No 2. It concerned para 11 at p 154 and para 21 at p 156 of the deposition of NS.
Paragraph 11 is as follows:
The first memory I had was vivid to me but in a way vague because I was so young when it happened that I can't remember what I was thinking at the time. I didn’t understand what was happening but now that I am an adult, it is hard to comes to terms with. I remember I shared a bedroom and lot of the time with SRC. We were very close when we were little. As far back as I can remember, SRC would cry a lot at night when she was in bed. Sometimes she would just cry but other times [the applicant] would come into her room and go over to SRC, in bed, and when he left the room I would hear SRC crying. Sometimes I asked her what was wrong but she would either ignore me or say 'Nothing'.
Paragraph 21 states that:
I remember often waking up during the night and finding [the applicant] was in the bedroom. I would just go back to sleep because it happened so often. I thought it was normal.
The judge admitted this evidence as supporting the direct evidence of SRC that the accused came into her room to commit the alleged offences and uncharged acts against SRC and that SRC was crying after he did so. Her Honour considered that the evidence had significant probative value and, other things being equal, I would agree. The difficulty, however, emerges from para 18 at p 156 which is as follows:
Another time I remember mum telling me to go to the bathroom to wash my hands. I think it was somebody's birthday because I remember I had cake in my hands and the only time we had cake was at birthdays. The bathroom door was shut so I knocked on the door and [the applicant] yelled at me to go away in an angry voice. I waited a little time while and then opened the bathroom door. I didn't want to go away because I was on a mission. Mum had told me to wash my hands so that's what I was going to do. I saw SAH sitting on the edge of the bath with her underwear down around her ankle on one leg. Her undies had a lolly pattern on them. [The applicant] told me to get out so I did and I waited until [the applicant] came out. I went in and SRC was crying and dressing herself. I asked what was wrong and the applicant said, 'Nothing, she'll get over it'.
During oral argument it emerged for the first time that the event to which NS deposed in para 18 was in all probability the same event as deposed to in SAH's deposition at para 14 – the birthday party which occurred in 1986 – and the problem with that is that at that time the deponent, NS, was only two years old. It is remarkable to a point of being incredible that she would, at such an age, recollect an event of that kind let alone with the sort of detail which is deposed.
Further, when one compares SAH's deposition in para 14 at p 149 with what is said by NS at para 18 at p 156, there is such similarity as between them strongly to suggest at least innocent infection resulting in para 18 at p 156, if not also in para 14 at p 149.
As was frankly and fairly conceded by counsel for the Crown, that gives rise to such uncertainty and unreliability about what is said by NS at para 18, as to lead to the conclusion that a jury acting rationally would not accord significant weight to it and, therefore, that it is appropriate to exclude it pursuant to s 101 of the Act.
It follows from what I have said that I consider paras 11 and 21 of NS's deposition should also be excluded.
The question then arises whether what was said by SAH at para 14 should also be excluded. I do not think that necessarily follows. Whilst the point is there to be made, if defence counsel chooses to do so, the assessment of reliability is predominantly a question for the jury, except in cases where the circumstances are such that the issues of credit and reliability are so fraught that it is possible for the Court to determine that it would not be open to the jury to conclude that the evidence could rationally effect the assessment of the probability of the existence of the fact in issue.[22]
[22]R v Shamouil [2006] NSWCCA 112, [63] (Spigelman CJ).
In Ruling No 2, the judge also dealt with the cross-admissibility of charged and uncharged acts as coincidence evidence. The judge posed the test for the admissibility in the terms suggested in NAM v R[23] of asking whether there was anything distinctive or recurrent about the evidence to be given concerning the actual offending, the surrounding circumstances or the way in which the accused was said to have taken advantage of a setting in which he and the victims found themselves. Her Honour then identified the common features of the offending, surrounding circumstances and way in which the accused was said to have taken advantage of the complainants and listed them in extenso in para 42 of the ruling.
[23][2010] VSCA 95.
Her Honour concluded that, taken as a whole, the evidence was capable of describing a prolonged course of conduct in relation to each complainant which involved techniques and offences sufficiently similar to make the evidence of one complainant as to the offences and uncharged acts committed against her admissible in proof of the offences alleged to have been committed against the other complainant.
Her Honour also considered that, if it were necessary to find some distinctive feature or features common to the offending alleged, sufficient existed in the similarities which her Honour identified in para 42 of the Ruling as follows:
42.Putting to one side the need for anything distinctive about the similarities, for the reasons I have previously advanced, I note that the common features in this case covering the three areas referred to above are as follows:
The actual offending
· The accused put his hands over theirs on his penis in order to masturbate – counts 2, 3 and 9 for SRC; count 14 and other sexual misconduct (depositions page 137 [13]) for SAH.
· The accused penetrated the lips of the two complainants with his penis, although in respect of SAH, she kept her teeth closed – counts 6 and 8 for SRC; count 13 for SAH.
· In the shower the accused made each of the complainants touch his genitals, either cupping or stroking his testicles – count 3 for SRC; count 12 for SAH.
· The accused put his fingers in or on the vagina of each of the complainants
(a)in bed with them, or beside the bed – count 1 SRC; counts 10, 11 and 15 and other sexual misconduct (depositions page 137 [13]) for SAH;
(b)in the shower or the bathroom generally, also using the bar of soap, causing a stinging sensation – counts 4 and 5 for SRC; other sexual misconduct for SAH (depositions page 136 [10]).
· The accused masturbated in the shower in the presence of both complainants – other sexual misconduct for SRC (res gestae for counts 6 and 8, depositions 149 [13] and 150 [15]); other sexual misconduct for SAH (res gestae for count 12, depositions 135 [9]); this activity was also observed by NS (depositions 153–4 [5]). I note that this last paragraph as a whole was announced as not to be led by the prosecutor; however the reason for doing so seems to be related to the earlier part of the paragraph and not to the last three sentences, which in my view is capable of supporting the evidence of the complainants.
· The only difference in the offending is the allegation by SRC that the accused placed his penis between her legs and moved back and forth (count 7).
· I note that there are similarities in the offending alleged by SRC in her 1992 statement, but the prosecution has not indicated an intention to lead any of this evidence, and it may be difficult to do so in any event because of the uncertainty of the act on which the plea of guilty to indecent assault was entered and the danger of relying on an allegation which has already been dealt with by a court.
The surrounding circumstances
· the complainants are the natural daughters of the accused
· all of the allegations, whether on the presentment or other sexual misconduct, are alleged to have occurred in the family home at [---]
· the alleged offending covers a similar period of years – for SRC, 1984 to 1989; for SAH, 1986 to 1990
· the complainants were of similar ages during that period – for SRC 6 to 11 years; for SAH 5 to 9 years
· the alleged offending occurred whilst others were close by (a sister sharing the bedroom, other family members elsewhere in the house, sometimes the mother was absent and only other siblings were in the house)
· both complainants cried after he left the bedroom and this was observed by NS in respect of SAH
· on the occasion the subject of count 11, it is alleged that the accused threatened to shoot SAH’s mother; both SAH and NS knew that the accused had guns and their mother states that all the children were aware that he kept guns
· SAH had nightmares about her mother being killed
· both SRC and SAH state that they tried to block the abuse from their memories over a period of years
· SRC and NS recount the same occasion when they went to the bathroom to wash birthday cake from NS’s face and hands and found the accused and SAH in the bathroom. The accused told them to get out and when they later went into the bathroom, both observed SAH with her clothing in disarray, in particular her underpants
The way in which the accused is said to have taken advantage of the setting in which he and the victims found themselves
· As the father in a household of five children, the accused clearly was in a position of power and influence over all of them. There was nothing apparently untoward about him going into the girls’ bedroom at night, perhaps to check on them, nor was there anything apparently untoward about him washing all the children while they were still of a young age. However it is alleged that the accused took advantage of these circumstances to abuse his two eldest daughters in their beds at night with no adult present in the room, under cover of darkness, and whilst they may even be expected to be unaware of his assaults on them as they slept, and to abuse them under the pretext of washing them or having them wash him in the shower or bathroom. It is alleged that in that overall context he committed against each of his eldest daughters similar offences of placing his hands over theirs to have them masturbate him, penetrating or attempting to penetrate their mouths with his penis, making them touch his penis and testicles in the shower, and placing his fingers on or in their vaginas both in bed and in the bathroom, including using soap.
In her Honour's view, the evidence of each complainant, and of NS to the extent that it was admissible, had significant probative value in relation to the offences alleged to have been committed against the other complainant, with the exception of the plea of guilty to indecent conduct against SRC (which the judge ruled to be inadmissible in relation to the counts concerning SAH).
Finally, her Honour dealt with the requirements of s 101 of the Act and was satisfied that the evidence was of a probative value which substantially outweighed its prejudicial effect.
Counsel for the applicant submitted that the judge erred in failing to heed the requirement, said to have been laid down in CGL v DPP[24] and PNJ v DPP,[25] that before evidence of charged or uncharged acts is admissible in proof of offences alleged there must be some striking or remarkable similarity beyond what is similar as between ‘stock in trade’ sexual offences.
[24][2010] VSCA 26.
[25][2010] VSCA 88.
I am unable to discern such an error in her Honour's reasoning. As was said in GBF v R:[26]
[O]ne is loath to accept that offending on one occasion is significantly probative offending on another unless there are significant or remarkable similarities as between previous acts and the act in question, or as between the circumstances in which previous acts were committed and the circumstances in which the act in question was committed or, more compendiously, unless the evidence reveals a pattern of conduct, modus operandi or some other underlying unity, which logically implies that, because the accused committed the previous acts or committed them in particular circumstances, he or she is likely to have committed the acts in issue.
[26][2010] VSCA 135, [27].
More precisely, whether there is sufficient underlying unity to make evidence of charged or uncharged acts concerning one complainant admissible in proof of offences alleged in relation to another invariably depends upon the facts in issue, the nature of the uncharged acts, the circumstances in which they are alleged to have been committed, the relationship between the accused and the complainant or deponent, and all the other circumstances of the case.
Sometimes, it will be a matter of striking similarity as between one act and another which bespeaks the underlying unity that makes evidence of the former admissible in proof of the latter. Sometimes, there will be something peculiar about the acts which makes evidence of one admissible in proof of the commission of the other. Sometimes, it will be the circumstances of the offending which makes evidence of one act admissible in proof of the other, and examples can be multiplied. In short, it is a question to be assessed in all the circumstances of the case, bearing in mind what has been said in previously decided cases as to what is sufficient in kindred circumstances.
In this case, the judge found that there was sufficient underlying unity in the circumstances of the nature of the actual offending, the surrounding circumstances and the way in which the accused was said to have taken advantage of the setting in which he and the victims found themselves. With respect, I agree with her. When one has regard to all the circumstances to which her Honour referred in para 42 of the Ruling, I think it plain that there was sufficient underlying unity of the kind required.
Finally, it was contended that the judge erred in refusing to sever the presentment, on the basis, it was said, that the evidence of the applicant pleading guilty to indecent assault against SRC in 1993 was such powerful evidence that the jury would be unable to exclude it from consideration in determining the charges concerning SAH.
The judge considered that question at length. Her Honour was of the view that the jury would be able to comply with directions that the evidence was not to be taken into account in relation to SAH. I do not consider her Honour was wrong so to conclude. It is commonplace in sexual offence cases for juries to be instructed and to heed directions either that they may take into account evidence against one complainant as admissible against the other or that they must exclude from consideration in relation to one complainant evidence which is admissible only in proof of an offence against the other.
Finally, there was a question of whether s 101 requires an assessment of the credibility and reliability of tendency or coincidence evidence before it may be admitted under s 96 or 97.
As has already been noted, the assessment of reliability and credibility of evidence is pre-eminently a question for the jury. Thus, in applying s 101 (or s 137) one would ordinarily approach the matter on the basis that the probative value of the evidence is to be assessed assuming that the evidence would be accepted by the jury. As was earlier remarked, however, there are sometimes circumstances in which it is possible for the Court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue, and in those circumstances it is open to conclude that the probative value is so minimal, if non‑existent, as to be outweighed by
prejudicial effect.
A question arose in the course of oral debate as to whether there is some further exception of the kind which was dealt with by the New South Wales Court of Criminal Appeal in AE.[27] Reference was also made to DPP (Tas) v Lynch.[28]This is not the occasion to decide that question. It is an interlocutory appeal where judgment must be produced quickly in order to keep the trial moving. I simply observe that as at present advised, I take the law to be as stated by Spigelman CJ in Shamouil.[29]
[27]AE v R [2008] NSWCCA 52.
[28](2006) 166 A Crim R 327.
[29][2006] NSWCCA 112, [63].
Conclusion
It follows for those reasons that I consider that the application for leave should be granted. The appeal should be treated as instituted and heard instanter and allowed in part and the orders of the judge below should be varied to the extent of excluding para 4 at p 146, para 18 at p 156, para 11 at p 154 and para 21 at p 156 of the depositions.
NEAVE JA:
I agree.
HARPER JA:
I also agree.
NETTLE JA:
The orders of the Court to be made should be as follows:
1.The application for leave to appeal from Ruling No 1 of her Honour Judge Sexton herein dated 27 August 2010 is dismissed.
2.The application for leave to appeal from Ruling No 2 of her Honour Judge Sexton herein dated 30 August 2010 is allowed.
3.The appeal is treated as instituted and heard instanter and is allowed in part.
4.The orders of the judge below are varied by excluding pursuant to s 101 of the Evidence Act2008 the following paragraphs of the deposition of NS in addition to those which were excluded by the judge below, namely, para 4 at p 146, para 11 at p 154, para 18 at p 156, and para 21 at p 156.
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