R v F T G
[2007] VSCA 109
•30 May 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 27 of 2006
| THE QUEEN |
| v |
| FTG |
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JUDGES: | VINCENT and REDLICH JJA and HABERSBERGER AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 February 2007 | |
DATE OF JUDGMENT: | 30 May 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 109 | 1st Revision – 30 May 2007 |
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Criminal law – Conviction – Indecent assault – Incest – Taking part in an act of sexual penetration with a child under the age of 16 years – Cross-admissibility of evidence of uncharged acts in relation to complainants – Whether evidence of uncharged acts demonstrated underlying unity or common modus operandi – Credibility and reliability of complainant’s evidence – Whether judge erred in failing to allow applicant to call evidence to demonstrate falsity of complainant’s evidence – Collateral evidence – Finality rule – Nicholls and Coates v R (2005) 219 CLR 196 – Application allowed – Re-trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle, QC with Mr C B Boyce | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr O P Holdenson, QC | Clarebrough Pica |
VINCENT JA
REDLICH JA
HABERSBERGER AJA:
The applicant was found guilty, on 8 December 2005, by the jury empanelled on his trial, in the County Court at Melbourne on 10 counts of indecent assault;[1] two of incest;[2] and one of taking part in an act of sexual penetration with a child under the age of 16 years.[3]
[1]Counts 2-7, 24, 26, 28 and 29.
[2]Counts 25 and 27.
[3]Count 32.
He now seeks leave to appeal against those convictions,[4] relying upon the grounds that:
1.The learned trial judge erred in ruling that the evidence of uncharged acts given by each complainant was cross-admissible in support of the substantive counts in relation to the other complainant.
2.The learned trial judge erred in directing the jury that the jury could use the evidence given by each complainant of the “uncharged acts” in its consideration of the Crown case involving the other complainant.
3.The learned trial judge erred in directing the jury that the jury could use the evidence given by each complainant of the “uncharged acts” to strengthen the improbability of the other complainant telling lies.
4.The learned trial judge erred in failing to permit the accused to call as a witness, [G] to demonstrate the falsity of the sworn evidence given by the complainant [C] that he (that is, [C]) was the victim of a sexual assault perpetrated by [G], namely, the sucking of his penis by [G], on 15 February, 1988, the night that police officers from the Broadmeadows Police Station attended at … Ridge Road, Oak Park.[5]
[4]He has also sought leave to appeal against the sentence that was imposed in consequence. However in view of the result at which we have arrived, it is not necessary to address that application.
[5]Four further grounds were abandoned and need not be addressed.
The Background
There were two complainants in these proceedings.
The first, [C], was born on 29 July 1975. The prosecution contended that the offending against him[6] occurred when he was aged between nine and 17 years and during a period in which the applicant was initially in a defacto relationship with, and then married to, his mother, [K].
[6]Between 29 July 1984 and 31 December 1992.
The second, [H], was born on 7 October 1985. During the period of the alleged offending,[7] he was aged between nine and 12 years of age. At that time the applicant was in a de facto relationship with his mother, [V].
[7]Between 7 October 1994 and 6 October 1998.
The Counts Involving C
The evidence of C
C stated that K became involved with the applicant when C was six years old and, not long afterwards, he moved into their household in Ascot Vale. When they were living there, the applicant commenced touching him on the penis. This would occur while they were in the applicant’s car, or at home, when no one was about (uncharged acts).
When C was aged nine, the family moved into a house situated in Ridge Road, Oak Park. The sexual abuse recommenced a few days later. C had his own bedroom, which was separated from that of his sister, [R], by a sliding door that the applicant insisted be kept shut. He stated that he slept on his stomach, and that the applicant would come to his bed and start rubbing him between his legs, then turn him over and masturbate his penis. C would remain still while this was occurring and either say to the applicant that it was uncomfortable, or remain silent while the masturbation continued for a few minutes. The applicant would then leave. Count 1 related to the first such incident, although this conduct was repeated many times (uncharged acts).
After the first occasion, C told his mother and the applicant that he wanted the sliding door kept open, proffering the reason that he became scared when he was alone in his room. They responded that he had nothing to fear. A similar incident occurred shortly after this conversation (count 2). Sometimes C dragged his mattress into his sister’s room and slept there in order to avoid the applicant’s attention, but he did not resist the applicant, or say anything about what was happening, because he was afraid.
While living at Ridge Road, the applicant and C would go jogging along a path known as the Broadmeadows bike track. On the side of a hill, off this track, there was a “cubby house” which consisted essentially of a hole inside a big bush located alongside a fence. Although it was situated only a short distance from the track, the entrance could not be seen from it. When they first saw the cubby house, the applicant called C over to look inside. Once there, he rubbed C’s penis over his pants, and then masturbated it (count 3). C was too young to ejaculate and, after a couple of minutes, they left and continued running.
C said the applicant and he went jogging about five times per week. On quite a few such occasions, the applicant took C to the cubby house. On one of them, the applicant started rubbing C over his clothes then masturbated his penis (count 4). He then put C’s hand on his (the applicant’s) penis and made the boy masturbate him until he ejaculated (count 5). This conduct was repeated a number of times (uncharged acts).
Sometimes C rode a bicycle, that the applicant had bought for him, as the applicant jogged along the bike track. The bicycle had been purchased because C had managed to avoid accompanying him in order to avoid further abuse. One day, as he rode past the cubby house, a group of young people threw a stone at C, which hit him on his back. The applicant responded by throwing a large rock at a stereo unit that they had, smashing it, and then tossing their bicycles into a nearby creek. On the following day, the applicant took C to the cubby house and after touching his penis over his clothes, masturbated him (count 6). He then made C masturbate his (the applicant’s) penis until he ejaculated (count 7).
At this time, the applicant was a member of the Victoria Police. Approximately six months before the Russell Street bombing,[8] the applicant took C to the gymnasium at the Russell Street police complex. C went into the sauna, with which it was equipped, and lay in his shorts on the top level. After some time, the applicant entered and started rubbing C’s penis over his clothing. He then took it out and masturbated him (count 8). The applicant then made C masturbate him until he ejaculated (count 9).
[8]On 27 March 1986.
For approximately six weeks over the Christmas holiday period, in December 1986 and January 1987, the applicant was performing police duties in Yarrawonga, and the family lived at a local caravan park. After they had returned to Melbourne, the applicant had to go back there from time to time to attend court, and C accompanied him on one of these trips. In the course of their journey home, the applicant stopped at a toilet block off the Hume Highway, in the vicinity of which he masturbated C’s penis, initially over his clothes, but then on his bare penis (count 10). He then directed C masturbate his (the applicant’s) penis (count 11).[9]
[9]C identified the toilet block in photographs which were tendered as Exhibit C.
When C was aged about 12 years and the family was still living at Oak Park, they had a swimming pool installed in the backyard of their home. On one hot night, a couple of months after it was installed, C was swimming when the applicant came out of the house and turned off the light that lit up the pool area. He pulled C’s bathing shorts off and rubbed his penis, which became erect (count 12). He then went underwater and sucked it for a few seconds (count 13).
In about September 1989, K was hospitalised at the Epworth Hospital. C was living at home with R and the applicant during this time. One night, after they had visited K, C was asleep in bed when the applicant entered his bedroom, woke him and directed him to go to the applicant’s bedroom. When he did not comply, he was picked up and carried there and placed on the bed. The applicant first touched C’s penis over his pants, then took it out and masturbated him (count 14). While C was lying on his back, the applicant put C’s penis into his mouth (count 15) and placed C’s hand onto the applicant’s penis (count 16). He then tried to push his penis into C’s mouth, but the complainant resisted and he stopped (count 17). The applicant moved from the bed and retrieved a jar of Vaseline. He put some of its contents on his own anal area and directed C to put his penis “in there.” C “gave it about three thumps and then stopped” (count 18). The applicant attempted to put Vaseline on C, but when he resisted, put his mouth over C’s penis again and continued to suck it until he ejaculated (count 20). The applicant then made C masturbate him until he also ejaculated (count 21).
In 1989 when C was in Year 8, the family moved to a house in St Albans, close to the Kororoit Creek, along which C would walk his dog daily. Sometimes, the applicant went with him. Located to the side of the walking track was an old tin barn. On occasions, the applicant would take C into a section of the barn that was enclosed by bushes, and masturbate C’s penis (count 22) and direct the complainant to masturbate him until he ejaculated (count 23). C said this happened more than once, but he was unable to identify any particular date or time when it occurred (uncharged acts).
The applicant played “super rules” football and, on occasions, C went with him to the Maribyrnong football ground to watch the games. On one occasion, C left the football club with the applicant at about 7.00pm. On the way home, the applicant pulled his car over and asked C to put his seat back. The applicant leant over and started rubbing C’s penis (count 24). The applicant tried to kiss him, but C kept his mouth closed (uncharged act). As this was occurring, the applicant was touching C’s penis (count 26) which he then began to suck (count 25). After a while, he stopped and grabbed C’s head and tried to make him reciprocate. C kept his mouth tightly closed, and could feel the applicant’s penis hitting his teeth (count 27). After a couple of seconds, C sat back up in his seat and the applicant masturbated his penis until he ejaculated (count 29). He then made the complainant masturbate him until he ejaculated (count 28).
Concerning their general relationship, C said that he found the applicant to be overpowering, and that he, by contrast, felt very weak, helpless and young. He did not complain to his mother or anyone else about this sexual abuse as he was ashamed and scared.
The evidence of K
K is the mother of C and R. She separated from their father in 1975 and met the applicant in June 1980. They married in 1985. Initially he moved into K’s Housing Commission flat in Ascot Vale, with his three sons, [M], [G] and [D], and lived there for about six months. The family then moved to a house in Pascoe Vale, and later to Oak Park. In their home in Oak Park, R and C had their own bedrooms, that were separated by a sliding door. She said the family agreed to keep the sliding door shut, so that R had some space. The family subsequently moved to St Albans. K and the applicant separated in October 1992, and divorced three years later.
K was aware that the applicant regularly went jogging, and that C sometimes went with him. C did not always want to go and, before the applicant came home, would beg his mother to tell the applicant this. During the period of her relationship with the applicant, C’s sleeping habits were disturbed. He would sweat profusely in bed, sleep walk and engage in “angry talk” in his sleep. However K never suspected any inappropriate sexual contact was taking place between the applicant and her son. She was shocked when she first learned of these matters in 2000, but had always wondered why C was “so angry inside”.
The evidence of R
R is the sister of C. She stated that she was in Grade 3 when her mother commenced her association with the applicant. From the outset, the applicant showed a paternal interest in C and herself, and took them on outings.
While they were living in Oak Park, C and the applicant went jogging about three to four times per week. R went with them on a handful of occasions. Her brother used to beg her to go and would seem very disappointed when she would not do so. R and C had adjoining bedrooms that were separated by a sliding door. Frequently C would drag his mattress into her room and R would tease him about it, because she did not really want him sleeping there. R’s mother and the applicant separated in 1992. C seemed to be relieved when this happened.
The evidence of X
X is the twin sister of Y, and they lived in Oak Park, five doors away from R, when they were young. R and she were very close friends, and spent a lot of time at each others’ houses. She was also a good friend of C, and the four of them “were like the four musketeers”. She described C as “very energetic, hyperactive, quite emotional and probably quite a bit volatile as well”, and said he always wanted to be around the three girls. X was aware that C did not sleep by himself, and would always want to sleep in R’s room or be around somebody late at night.
The evidence of Y
Y, like her twin sister X, spent a deal of time with C and R when she lived in Oak Park during her early teenage years. She also became acquainted with their parents, K and the applicant. Y described the relationship between C and the applicant as “a little bit uncomfortable”, and said that the boy did not seem to be relaxed in his presence, or want to be in his company. Y recalled many conversations in which C indicated that he did not want to go to bed. He did not want to sleep in his own room, and did not sleep well. On the rare occasions that the three girls wanted to do something without C, he would become hysterical and upset at being left by himself.
Offending against H (counts 30-32)
The evidence of H
H stated that he was born on 7 October 1985. As a child, he lived in a house in Melton South, with his mother, V, and his sister, E. H’s father died in 1994, when H was aged eight. His father had been a serving member of Victoria Police, and after his death, H met the applicant, who was also a police member. The applicant visited his mother from time to time, and, by the end of the year, they had developed a relationship and he moved into the family home. He then lived with them for the next five or six years. Although the relationship between H’s mother and the applicant was unstable, and they separated a number of times, the applicant, for practical purposes, assumed the role of H’s step-father during this period.
From the outset, H did not have a good relationship with the applicant who physically and sexually assaulted him, masturbating him about 20 times over the five or six year period (uncharged acts). He also inserted his finger into H’s anus and tried to kiss him once.
When H was aged about eight or nine, he was watching television when the applicant asked him whether he would like a massage. H said yes, and was told to take off his clothes. He complied and lay on his stomach on the bottom bunk in his bedroom. The applicant then massaged his back, legs and the bottom of his legs, for about 20 to 30 minutes.
About a week later, H was in his bedroom watching television when the applicant “just came in and pulled down my pants and pulled out my penis and started masturbating me.” H did not say or do anything (count 30). Neither the applicant nor H later spoke about this incident. H was afraid that, if he referred to it, the applicant would hit him. In cross-examination, he said that this was the first sexual contact between them and it came as a complete shock to him. He knew that what the applicant was doing was wrong, but was too frightened to say anything. He did not think about informing his mother or sister, and did not know who he should tell.
H’s mother undertook a massage course, and, in October 1997, acquired a massage table. About six to 12 months after the incident mentioned above, the applicant was giving H’s sister a massage on this table, which was located in the kitchen, when H asked whether he could have one too. After his sister’s massage had finished, she went into her bedroom, and H’s mother went to have a bath. H lay on his stomach on the table in his boxer shorts, and the applicant massaged his back and legs. The applicant then turned H over, took his penis out of his shorts and rubbed it (count 31). Neither the applicant nor H said anything as this was occurring. H stated that he was too scared to complain or to tell anyone about what had transpired.
On another occasion, when he was 12 years old, H was watching television in his room when the applicant told him to get onto the massage table. He complied and lay on the table in his boxer shorts. The applicant secured some oil and started massaging him. While he was doing so, the applicant inserted his finger into H’s anus (count 32). At that moment, H’s sister knocked on the front door. The applicant stopped, pulled H off the table and pushed him down the hallway towards the bathroom, before he went to open the door.
H reported the sexual abuse to police in June 2002, after he learned that the applicant was alleged to have sexually abused someone else.
The evidence of V
V is the mother of H, who was born 7 October 1985, and E, born on 12 May 1982. Her husband died on 23 February 1994. V had met the applicant before her husband’s death. He attended the funeral and visited her home on a Sunday afternoon in July 1994. In October 1994, the applicant and she commenced a relationship and he moved into her home a few months later. Their relationship was turbulent, and there were substantial periods of separation. Initially, the applicant appeared to get on well with H and E, however, the applicant’s relationship with H deteriorated over time. On the occasions when V asked the applicant to leave the house, H seemed quite pleased, but when he returned, her son became very aggressive and angry. During the times that the applicant was living at her house, he took on the role of disciplining H. This caused arguments between them because V did not agree with the use of physical force to enforce discipline.
The evidence of E
E is the sister of H. She described the relationship between H and the applicant as “a bit strange”. The applicant was primarily responsible for disciplining H, and sometimes took her brother away to his bedroom and hit him. E would hear screams and shouts as H was hit, and would hear her brother crying. E recalled an incident in NSW when the applicant dragged H off to the bathroom. She heard what sounded like punching noises, then saw her brother come out crying and screaming.
Defence case
The Applicant’s evidence
The applicant joined the police force in 1974 when he was 27 years old, and was 59 years old at the time of the trial.
He said that he had a normal relationship with C, whom he took to school, athletics events and on holidays. He identified a number of photographs depicting C and himself at various occasions.
The applicant denied the sexual offending alleged to have been committed by him against C in Oak Park, asserting that the sliding door between C and R’s bedrooms was never closed, because R was scared in her room. The applicant said that he checked on each child at night, and C had no problems sleeping. Occasionally C or R would take their mattresses into each other’s rooms.
Whilst living in Oak Park, the applicant went running on some evenings, and occasionally, C wanted to go too. However, he denied that they regularly went together, saying that it would happen about six to 12 times per year. Sometimes C rode his bike while the applicant ran, and, on one of these occasions, someone threw a rock at C. The applicant went to investigate and discovered five or six children in the bushes about three metres from the track. He smashed their stereo unit with a rock. He denied masturbating C’s penis in the cubby house or bushes.
The applicant agreed that he had taken C to the Russell Street gymnasium; the first time was in 1982, when there was a boxing and wrestling event being held. On another occasion he took C to Russell Street when he had to collect something, and he took the opportunity to show him around. The applicant said that he had used the sauna many times, but never in company with C. He said that the gym was well attended, with 20 to 30 people training at any time.
In December 1987 to January 1988, the applicant and the family lived in Yarrawonga while he was performing temporary duties there. Later, he had to return for court cases. Once, in February 1988, C went with him. On that occasion, they left Yarrawonga at 3.00pm and arrived home at 6.00pm, while it was still daylight. The applicant did not recall stopping at a toilet block on the way, but said that he may have done so. He denied the allegations of sexual abuse alleged to have occurred in the course of that journey, describing them as “absolute rubbish”.
The swimming pool at the house in Oak Park was installed in 1987. He denied that any sexual assaults took place there.
The applicant agreed that K was hospitalised on three separate occasions; the first being in October 1988, when C went and stayed with his grandparents in Strathmore. On the two other occasions, in June and September 1989, K had arranged for her sister, N, to look after the children as she lived nearby and close to the school that they attended.
When they lived in St Albans, the family used to walk along the Kororoit Creek to an old house site at the top of the hill, then turn back.
The applicant said that C would watch “every match” when the applicant played football. He (the applicant) would have “a couple” of drinks after the game. He denied sexually assaulting C in his car after a football match.
In relation to the complaints made by H, the applicant denied any improper conduct or sexual conduct. He said that he massaged all of the children from time to time, but only on the massage table, and not in their bedrooms.
As to disciplining H, the applicant stated that he had smacked the boy on the legs a couple of times. He denied punching him in the stomach or holding him up by the throat or choking him as H claimed.
The Grounds of the Applications
We have not attempted in the summary to set out all of the evidence adduced in the trial or to address the many points made by counsel for the prosecution and defence in their examination or cross-examination of the complainants, the applicant or the various witnesses. What can be seen is that, whilst there was some evidence of a circumstantial nature pointing to the existence of at least an unsatisfactory, if not an unhealthy, relationship between the applicant and each of the complainants, there was no independent or direct evidence to support the claims of either, save that provided by the other.
The grounds of the application fall to be considered against that background.
Grounds 1, 2 and 3
As is apparent from the summary, evidence was led by the Crown of the engagement by the applicant in acts of a sexual nature against C and H in respect of which no charges were laid. In each case, the conduct imputed to the applicant was described as virtually identical to that constituting the subject of the charges before the court involving that complainant and having taken place in similar circumstances, but otherwise little detail was provided. In respect of the counts involving each, the judge instructed the jury in her charge that this evidence –
“…was admitted to establish the relationship between the accused and the complainants as part of the context and setting in which the offences charged are alleged to have occurred.”[10]
[10]T1777. Her Honour had earlier given similar directions at the conclusion of the evidence-in-chief of both.
As in Vonarx, it –
“ … was not being led to establish the identity of the offender, as was the case in Pfennig, or to negative some defence of accident or mistake ... [but] for the purpose of proving an improper sexual relationship or guilty passion which existed between the accused and the victim, tending to make it more likely that the offence charged in the indictment was in fact committed (see R v Ball …; R v Beserick …; S v R …; Harriman v R …; or, as Deane J put it in B v R …, such evidence can be used by the jury as ‘the key to an assessment of the relationship between the applicant and [the victim] and, as such, constitute[s] part of the essential background against which both the [victim’s] and the applicant’s evidence of the alleged offences necessarily [falls] to be evaluated’: see also R v Etherington … .”[11]
[11]R v Vonarx [1999] 3 VR 618 at 622 per the Court.
The nature of the relationship between an alleged perpetrator of a sexual offence and the complainant can be seen to be relevant to the assessment of the credibility and reliability of the evidence of both, and bears upon the probability of the engagement by the alleged offender in the conduct attributed to him or her. Obviously, the admission of such evidence and the provision of instructions to the jury as to the use to which it can be put must be approached with a deal of care by reason of the substantial risk that it may be employed impermissibly. Improperly used, evidence of this kind could, in some cases, lead to a finding of guilt based essentially upon a view of the accused person’s propensities[12] and not that supporting the charges.[13] There is no need, in the present context, to set out the matters which must be drawn to the jury’s attention where evidence is admitted on this basis and it is sufficient to state that those provided in this case were appropriate and no challenge has been made to them in this Court.
[12]As such evidence, if accepted, will commonly indicate the existence of a propensity of the accused to engage in criminal or improper conduct, and particularly of a kind encompassed by the charges before the Court, there will be a need to consider the application of s 398A of the Crimes Act 1958.
[13]R v Vonarx [1999] 3 VR 618; R v Grech [1997] 2 VR 609; R v Pearce [1999] 3 VR 287; R v FJB [1999] 2 VR 425; R v TJB [1998] 4 VR 621.
Whether in a trial involving more than one complainant evidence of an accused’s relationship with one complainant can also be seen to possess probative value in the evaluation of the evidence of another, gives rise to quite separate questions and different problems as the evidence performs a distinctly different function.
Evidence of one happening may be admissible in proof of others.
“[Its] value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred.[14]
…
… [The] evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue.”[15]
[14]Hoch v R (1988) 165 CLR 292 at 295.
[15]Hoch v R (1988) 165 CLR 292 at 296.
Obviously it does not necessarily follow, save through reasoning based upon propensity, that the establishment of an improper sexual relationship with one person of itself assists in the determination of the guilt of an accused of an offence against another. There is no difficulty in envisaging situations in which Pfennig[16] or Hoch[17] type considerations impacting on the probability that both were telling the truth would lead to this result, but there must be an identifiable basis, other than the mere presence of a disposition to offend in the fashion alleged, for evidence of the commission of other offences against another person to be admitted in support or proof of the prosecution allegations concerning the particular victim.
[16]Pfennig v R (1995) 182 CLR 461.
[17]Hoch v R (1988) 165 CLR 292.
The cross admissibility of one complainant’s evidence as to charged acts to another complainant’s evidence was not put in issue on appeal. The argument was confined to the question whether the evidence of uncharged acts of each complainant were cross admissible. The applicant firstly argued in the written submissions but with some modification in the course of the discussion, that uncharged acts were per se not cross-admissible. This submission has no force. Evidence of engagement in similar behaviour that is admitted because it possesses probative value when considering the probability of the happening of an event is, as the High Court pointed out in Hoch, simply a form of circumstantial evidence. Setting to one side the application of s398A and discretionary considerations, there is no justification in principle for distinguishing between charged and uncharged criminal acts or, indeed, criminal and non-criminal conduct for this purpose. Although a number of cases were drawn to our attention, the question was not directly addressed in any of them and the judgments in none were at odds with this view.[18]
[18]R v GAE (2000) 1 VR 198; R v DCC (2004) 11 VR 129; R v Best [1998] 4 VR 603; R v CHS (2006) 159 A Crim R 560; R v PJO [2001] VSCA 213; R v Buckley (2004) 10 VR 215.
Where a complainant’s evidence as to charged acts is cross-admissible with the evidence of another complainant because of similarity or underlying unity which permits probability reasoning, the evidence of the complainant as to uncharged acts, if bearing the same qualities of underlying unity or similarity with the evidence of the other complainant will generally also be cross-admissible. That is to say, in such circumstances, evidence of uncharged acts which are of the same nature as the charged acts will be cross admissible for precisely the same reason that the evidence of charged acts are cross admissible.
The thrust of counsel’s submissions as they emerged in oral argument was that, whilst not conceding that uncharged acts could be used in this way, the evidence of one complainant’s uncharged acts consisted simply of vague assertions of a highly prejudicial character and, when considered in conjunction with the charged acts and the evidence of the other complainant did not bear upon the improbability of the two complainants telling similar lies.[19] It may be accepted that the evidence of uncharged acts may be so vague or lacking in specificity that it may not have the necessary quality to allow it to be cross-admissible in aid of probability reasoning.
[19]Reference was made in this context to R v Best [1998] 4 VR 603 at 618; R v Papamitrou (2004) 7 VR 375; and R v DCC (2004) 11 VR 129.
In the present case, both the prosecutor in the court below and counsel for the Crown before us argued that evidence of similar improper relationships and conduct involving C and H increased the probability that both were truthful in attributing to the applicant the commission of the charged acts relating to them. It was submitted that the evidence of each as to uncharged acts could also be used in this way as it disclosed such underlying unity and similarity and the adoption of a modus operandi by the applicant that the possibility of coincidence could be seen to be excluded. Specifically, reliance was placed upon evidence of the following matters –
(a)the alleged conduct in each case took place in the context of a relationship with the complainant’s mother and persisted throughout the relationship. In both, the applicant moved in with the family and took on the role of parent, including disciplining the boys;
(b)the behaviours attributed to the applicant were remarkably similar. They included the repeated masturbation of the complainants, digital penetration of the anus of each, attempted kissing and tongue kissing, and were generally undertaken in silence and opportunistically when their mother was absent;
(c)each of the complainants felt, albeit in different ways, intimidated by the applicant; and
(d)the alleged offending commenced when each complainant was quite young; C was six years and H was nine years.
The trial judge, in a reserved ruling, concluded that –
“In my opinion there is an underlying unity or similarity in the evidence of the complainants, and the probative force of their evidence derives from the improbability of coincidence. I do not consider that [H] hearing that [C] had made allegations against the accused before he made his allegation affects the situation. There is no suggestion of collusion in this case, and when the allegations of [C] and [H] are considered together, it makes it more probable that each of them are telling the truth.
… It would be extremely artificial to exclude this evidence considering that, as [the prosecutor] said, much of the underlying unity was to be found in the outer perimeters of the relationship which by definition were not subject to particular charges. …”[20]
[20]T193.
As in the court below, the argument was advanced before us on behalf of the applicant that there was nothing in the evidence of the uncharged acts capable of supporting this decision. The complainants gave, it was said, descriptions of alleged sexual abuse of a regrettably far too common kind for any adverse inferences to be drawn against the applicant other than on the basis of propensity. There was no feature in the attributed behaviour, it was contended, that could be seen to demonstrate the presence of any underlying unity in the applicant’s conduct or suggested the adoption of a common modus operandi, that would justify the cross-admissibility of such highly prejudicial material. Further, the evidence itself was far too vague to be useful for this purpose.
As we have said, evidence of the engagement in improper conduct against the separate complainants may be admissible for two quite distinct purposes. With respect to the individual complainants, it can provide a context within which the claimed offending behaviour took place, whereas evidence of the engagement of similar conduct with both is admitted because it bears upon the probability of the engagement in the conduct constituting the substance of the charges involving both. Obviously, when determining the question of the admissibility of evidence on the latter basis, and, in particular, whether it would be just in the circumstances for it to be led as it constitutes evidence of propensity, a trial judge must have regard to the dissimilarities as well as similarities. The judge, in the present matter, made clear that this aspect had been addressed in arriving at her decision.
In our view, although there was nothing singular in the conduct attributed to the applicant, the evidence of the two complainants, as to both charged and uncharged acts, if accepted, could be reasonably viewed as disclosing a continuing pattern of generally similar behaviour in which he engaged, when afforded the opportunity to do so, in breach of his position of trust and using, in combination, his position of authority over each and some physical intimidation to secure their compliance and avoid the exposure of his offending.
We are not persuaded that the judge fell into error in ruling that the evidence as to uncharged acts was cross-admissible.
These grounds have not been substantiated.
Ground 4
In the course of cross-examination by the applicant’s counsel, C agreed that he had claimed to have been sexually abused by G, a son of the applicant, on the same night (15 February 1988) that the police attended in response to a complaint by R, that she had been sexually assaulted by M, another of his sons.[21]
[21]R, in her evidence, stated that she did make such a complaint on that day.
This subject was raised for the purpose, as his later submissions to the judge made clear, of laying the foundation for an attack on the credibility and reliability of the evidence of C, the acceptance of which was essential to the prosecution case against the applicant. Not only did C provide the only direct evidence of guilt on the counts involving him, but also, as indicated above, his assertions possessed relevance to the jury’s assessment of the truth of the allegations made by H. The jury were to be invited to accept that the claim against G was false and motivated by animosity toward the applicant and his sons. If they considered that there was a reasonable possibility that that was the case, they were to be asked to reason that a serious doubt had to arise with respect to the truthfulness of his claims concerning the applicant.
Accordingly, when at the close of the Crown case, counsel for the applicant indicated that his client would give evidence, he also stated that he proposed to call G. The prosecutor responded “I would argue against that”, and counsel submitted –
“ … that we want to call some evidence from which the jury might conclude that he has made a false allegation of a very similar act against a son in, if not identical circumstances, the same location, the same bedroom, the same bed, at a contemporaneous time.
Now, the jury, if they accept that evidence, in our submission it is relevant to facts in issue, and relevant in the way that has already been indicated, and that is that this is a case which is about whether or not these acts took place. Now, the defence is suggesting that [C] falsely accused [the applicant]. If the jury was to so accept that there had been a false complaint made against [G] in the circumstances I’ve outlined, that in our submission is relevant to their assessment of the probability of the complaints against [the applicant] also being relevant, because they are so closely linked in the various ways that I have indicated.
Briefly, the jury – we would be asking them to look at it this way. We would say, ‘If you accepted the evidence of [G]’ – that is, that there has been a false complaint made by [C] against him – that they can use that in looking at the probability or not as to the events alleged against [the applicant] occurring, and thus it’s relevant to the very facts in issue which they are going to have to consider.
Now, that’s the first and primary basis that, Your Honour, we would say it is admissible. Now, what would be proposed to be called – in answer to [the prosecutor] – from [G], is that he has attended from time to time at Ridge Road. As Your Honour is aware from the materials he’s not a full-time resident of Ridge Road. He’d been residing at the previous address. But he was an occasional visitor, firstly.
Secondly, that he was not in attendance to his knowledge at the place when the police had come on any particular night, and that irrespective of whether he in fact did or did not attend in the presence of police, at no time did he enter [C]’s bedroom and suck his penis. That’s the short compass or that will be the essence of what would be proposed to be called from him.
I’m reminded too that in relation to the issues or the circumstances of the allegation that arises against [G], as Your Honour will recall from the depositional material the allegation that is made against [G] is in fact made in the same statement by [C] against [the applicant].
If there is an issue as to whether in fact this evidence goes to facts in issue, Your Honour, we would also be saying that it is an exception to the collateral credit rule, and we’re able to call it under the exception going as to in this case either bias or corruption in terms of the witness.[22]
…
If I could make the general comment, Your Honour. The general policy underpinning the finality rule, of course, is that you don’t want the jury diverted by a host of or a plethora of other issues, and then have mini trials in relation to those particular issues, for the obvious reason that that may divert them from their task.
The virtue if I could put it this way of the evidence which is proposed to be called, is that we are dealing with a very narrow issue. So it is not one which in terms of a policy issue has the vice – if I can describe it as that – of being likely to divert the jury from the consideration, and in our submission, if accepted will be helpful to them in the way that I’ve indicated in looking at the ultimate facts in issue and the ultimate questions that need to be considered.
One of the issues that flows from just general principles in terms of the finality rule, Your Honour, is that where it can be demonstrated that there is bias, interest or partiality on behalf of a witness – which is the general expression which comes from a well-known case of Umanski.
…
This sort of evidence in my submission in support of what we say is a false accusation against a near family member – that is, the son – is indicative of bias, partiality and interest on behalf of [C]. So it’s an additional basis if you like, Your Honour, that we would say that, as an exception to the finality rule, that we can call as evidence.”[23]
[22]T1124-1126.
[23]T1134-1135
Counsel further submitted, referring to the judgment in R v Umanski,[24] that the evidence should also be regarded as admissible, as an exception to the finality principle, on the basis that it demonstrated bias, interest or partiality against the applicant by C. The Court of Criminal Appeal there held:
“The well-settled rule at common law that independent evidence is inadmissible to contradict answers given by a witness in cross-examination as to credit is subject to the equally well-settled qualification that such evidence in contradiction is admissible if it would tend to show that the witness was biased or partial in relation to the parties or the cause. Such independent evidence though relating to matters far removed from the subject-matter of the prosecution was considered to be material evidence – not something merely collateral.”[25]
[24][1961] VR 242.
[25]At 244.
The collateral evidence or finality rule to which counsel referred in his submissions was explained by McHugh J in Nicholls and Coates v R as follows:[26]
[26]Nicholls and Coates v R (2005) 219 CLR 196 at 215-216.
“The central thesis of the common law concerning the admissibility of evidence is that it is admissible only when it is relevant, that is … :
‘if it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact.’ (footnote omitted)
In other words, evidence is relevant ‘if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.’ … In a trial, a balance must be struck between considerations of justice and matters of practicality. Consequently, the general rule concerning admissibility is qualified by other rules of evidence. One qualification concerns evidence of matters collateral to the issues in the case.
The collateral evidence rule declares that answers given by a witness to questions put to him or her in cross-examination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence… . Hence, the rule is often referred to as the ‘finality’ rule. Collateral facts are ‘facts not constituting the matters directly in dispute between the parties’ … or ‘facts that are not facts in issue or facts relevant to a fact in issue’… . In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone — in other words, a collateral matter — is final and cannot be rebutted.
Policy considerations provide the rationale for the collateral evidence rule. The reasons for the rule are generally practical: it is based on principles of case management…, such as the desirability of avoiding a multiplicity of issues and of protecting the efficiency and cost-effectiveness of the trial process by preventing the parties from litigating matters of marginal relevance. The rule is also based on the need to be fair to the witness… .”
In support of his application, counsel referred to the judgments in two cases - R v Lawrence[27] and R v Pearce.[28] The trial judge in Lawrence had excluded evidence to the effect that, at a time close to that of the making of the complaint concerning the alleged sexual conduct on which the charges before the Court were based, the complainant was prepared to falsely accuse another person of propositioning for sex. The members of the Queensland Court of Appeal approached the issue of the admissibility of this evidence from different view points, but each reflected a common concern to address the tension that could be seen to exist between the fundamentally important requirement that justice be done on the one hand, and the need to avoid the introduction of further complexity into the trial process, which could only serve to divert the jury’s attention from the real issues in the proceeding, on the other. However all members of the Court agreed that, in that case, the trial judge was in error in excluding the evidence.
[27][2002] 2 QdR 400.
[28][1999] 3 VR 287.
In Pearce there was evidence in the form of medical records available that Tadgell JA[29] considered should have left the jury with a reasonable doubt concerning the accused’s guilt. The material to which his Honour referred included evidence that the complainant, who suffered from serious mental disturbance, had made admittedly false allegations against his father.
[29]With whom Phillips CJ and Buchanan JA agreed.
The prosecutor, in the present case, responded that he had not read these judgments, but submitted –
“Well, for a start, I would need to elicit – or rather collect instructions from the witness – that hasn’t happened because it’s not relevant to this trial – as to those circumstances. It might even involve an application to recall the witness, depending upon the nature and extent of the evidence, if it were permitted, given by [G], in fairness to further illustrate or explain or describe the events so alleged so that the jury would be in a better position to assess the truthfulness or otherwise of that discrete allegation.
Your Honour could see the focus in this trial has been significantly interrupted by such an exercise that would – started with the three pages of cross-examination, would be added to extensively both in evidence-in-chief and cross-examination by [G] and might not rest there. It is the perfect example, Your Honour, of the utility and pragmatic value of the finality rule and I resist the application that is being made, Your Honour.”[30]
[30]T1139-1140.
The trial judge considered the matter and in a reserved ruling stated –
“The law is that any witness may be cross-examined for the purpose of discrediting him. But if the questions affect only the credit of a witness and are not relevant to matters actually in issue in the case the witness’ answers cannot be contradicted by other evidence except in certain exceptional circumstances. Exceptions to the finality rule include after cross-examination of an opponent’s witness calling evidence to show that the witness is a notorious liar or to have given their evidence from a corrupt or biased motive or they may have previously made statements inconsistent with their evidence.
In my opinion this evidence does not fit into any of these exceptions. It may be properly characterised as evidence going to the credit of the complainant. The complainant admitted that he made the allegation against [G] and denied it was false, so there is no prior inconsistent statement. There is no suggestion that he is a notorious liar and in my opinion there is no basis for suggesting bias or corruption.
In Cross on Evidence in paragraph 19-032 the learned author refers to example of corruption including that where a witness offered a bribe[31] to another witness or solicits a bribe, also an offer to testify corruptly in a court case. This case does not fit into any of those categories.
The real problem with admitting this evidence is that it is the complainant’s word against [G]. It would lead to a trial within a trial where the prosecution could seek to call evidence to prove that [G] was at the residence on the night in question. The prosecution could also seek to recall [C] to give details of the alleged incident. The focus would shift from the central issue in this trial, which is the allegations made against the accused, to the allegations made against [G].”[32]
[31]We do not need to decide this question, but it seems likely that the trial judge unduly confined the notion of corruption in this context.
[32]T1159-1161.
Shortly afterwards, when addressing the prosecutor, her Honour made clear that –
“… I saw the real problem in this case as getting to the situation where there would be a trial within a trial. We’d get to the situation where [counsel] could get up and say, ‘Well, I want to call witnesses to say that [G] was there on that particular night and I want to recall [C] to give further details of the alleged sexual interference,’ and then in my mind the focus would shift. That’s the main reason for my decision or my ruling.”[33]
[33]T1162.
It is unfortunate that the judge’s attention was not drawn to the judgment of McHugh J in Nicholls and Coates, which had been handed down in the previous year, as his Honour there set out a number of features and issues associated with the finality principle and its application and concluded:
“Given the problems with the finality rule and the cases that are not explicable in terms of the rule, common law courts should now regard that rule as a rule of convenience — a rule for the management of cases — rather than a fixed rule or principle. Once it is recognised that it is a rule of convenience, courts should take a more liberal approach to admitting evidence showing a lack of credit or credibility of a witness than the traditional approach of the common law… . Where the interests of justice are likely to be advanced by admitting evidence tending to destroy the credibility of a witness, courts should hesitate to reject such evidence. Thus, where a circumstance affecting credibility is so inextricably connected with a fact in issue that it will probably determine that fact, a trial judge should generally admit evidence of that circumstance. Evidence of such a circumstance should not be excluded merely because it is not within the established exceptions to the collateral evidence rule.
…
The finality rule is important to the efficient conduct of litigation. Without it, the principal issues in trials would sometimes become overwhelmed by charge and counter-charge remote from the cause of action being litigated. In many cases, the finality rule also protects witnesses from having to defend themselves against discreditable allegations that are peripheral to the issues. But the common law should not have any a priori categories concerning the cases where the collateral evidence rule should or should not be relaxed. It should be regarded as a flexible rule of convenience that can and should be relaxed when the interests of justice require its relaxation. Avoiding miscarriages of justice is more important than protecting the efficiency of trials. And in cases where the rule needs to be relaxed, it is unlikely that any question of potential unfairness to a witness will arise. That is because the allegations will be inextricably connected with the issues. If unfairness to a witness is likely to arise — for example, because the witness is not in a position to meet the allegation — the trial judge can take steps to ensure that no unfairness arises.” [34]
[34]Nicholls and Coates v R (2005) 219 CLR 196 at 221-223.
There is an obvious need to confine the contested issues in a criminal trial, as far as is reasonably possible, to those which need to be determined if a just outcome is to be achieved. Usually, attacks on the credit of witnesses can either be appropriately addressed by reference to evidence directly relating to the facts in issue or will be regarded as peripheral to the resolution of the real questions that arise in the proceedings and therefore subject to the rule. However, this will not always be the case and, as McHugh J pointed out in the extracts set out above, if evidence going to credibility can be seen to possess “real probative value with respect to the facts in issue”, a rule that is fundamentally based upon considerations of convenience and pragmatism should not operate to exclude it. The price that would be paid if it were to be regarded as doing so would be the incurring of an unacceptable risk of injustice. It also follows that, save in this broad sense, no rigid parameters of inclusion or exclusion can be formulated. As McHugh J remarked, it is often difficult to distinguish between credit and issue, and evidence that affects only the credit of a witness and that which is relevant to a fact in issue. Accordingly, -
“[t]he collateral evidence rule should therefore be seen as a case management rule that is not confined by categories. Because that is so, evidence disproving a witness's denials concerning matters of credibility should be regarded as generally admissible if the witness's credit is inextricably involved with a fact in issue. Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with a fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force. In such cases, the interests of justice do not require relaxation of the general rule that answers given to collateral matters such as credit are final.”[35]
Ultimately the trial judge must endeavour to ensure that the interests of justice are served, bearing in mind that the cost of exclusion could, in some situations, be a wrongful conviction. The situations in which the question – whether evidence may possess real probative value with respect to the facts in issue in a criminal trial – can arise are many and varied. The reasoning which may connect evidence relating to credibility to the facts in issue and, therefore, whether the evidence can be viewed as having “real probative vale” will, of necessity, have to be considered in the context of the individual case in which it is sought to be adduced.
[35]Nicholls and Coates v R (2005) 219 CLR 196 at 223.
Here, in our opinion, as counsel for the applicant at the trial submitted, there was evidence from which the jury could conclude that C had made –
“… a false allegation of a very similar act against a son in, if not identical circumstances, the same location, the same bedroom, the same bed, at a contemporaneous time.”
The possible motivations for the making of false complaints against the applicant and his son could be reasonably perceived as related, and clearly a finding by the jury that the allegation made against G in these circumstances was or might well have been false would raise serious questions concerning the truthfulness of the claims made against the applicant.
So approached, the evidence that the defence proposed to adduce from G, if accepted, can be seen to have possessed real probative value in that it could be regarded as bearing directly upon the issue of the reliability of the version given by C, the acceptance of which beyond reasonable doubt was fundamental to the legitimacy of the applicant’s conviction. In our view the trial judge fell into error in excluding it.
This ground has been established.
In a trial in which the credibility of C was not only crucial to the verdicts on the counts involving him but also almost certainly assumed significance in the determination of the issues arising in relation to the other complainant, the application of the proviso pursuant to s568 of the Crimes Act 1958 would be inappropriate.
In the circumstances, we would set aside the convictions on all counts and order a re-trial.
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