R v LRG
[2006] VSCA 288
•18 December 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 384 of 2005
| THE QUEEN |
| v. |
| LRG |
---
JUDGES: | CALLAWAY, VINCENT and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 November 2006 | |
DATE OF JUDGMENT: | 18 December 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 288 | |
---
Criminal law – Sexual offences against children – Two complainants – One complainant not asked to attest to truthfulness of VATE tapes – No objection taken at trial – Whether miscarriage of justice – Form in which complainants should have been asked to attest to truthfulness of tapes – Whether sufficient warning given to jury about difficulties that delay causes for an accused person – Whether separate consideration direction included sufficient warning against propensity reasoning –Aggregate of errors or irregularities – Whether miscarriage of justice - Observations (by Callaway, J.A.) on uncharged acts – Crimes Act 1958, ss.398A, 568(1) – Evidence Act 1958, s.37B.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston, S.C. | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr C.B. Boyce | Victoria Legal Aid |
CALLAWAY, J.A.:
Introduction
The applicant, who is now aged 40, was presented in the County Court on six counts of taking part in an act of sexual penetration with a child under 16 (counts 3, 4, 14, 16, 17 and 19) and 14 counts of wilfully committing an indecent act with or in the presence of a child under 16 (counts 1, 2, 5 to 13, 15, 18 and 20). At the conclusion of the Crown case, the learned trial judge ruled that there was no case to answer on counts 15 and 16 and the jury acquitted the applicant on those counts by direction. At the conclusion of the trial, the applicant was also found not guilty on counts 1, 4, 10, 11, 12, 13, 17, 18 and 19.
There were two complainants, whom I shall call “K” and “T”. Of the nine counts on which the applicant was found guilty, six (counts 2, 3, 5, 6, 8 and 20) related to K and the remainder (counts 7, 9 and 14) related to T. On 14th December 2005 the applicant was sentenced to terms of imprisonment ranging from two months to four years. Directions for cumulation and concurrency resulted in a total effective sentence of five years’ and nine months’ imprisonment. A non-parole period of two years and ten months was fixed and a declaration made regarding 23 days’ presentence detention.
The applicant seeks leave to appeal against conviction only.
There were ten grounds of appeal in the amended full statement filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998. Some of those grounds were not argued. The remaining grounds read:
“1.The learned trial judge erred by failing to sever the presentment.
…
3.The verdicts of guilty should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence.
PARTICULARS
(a) The verdicts of guilty are unsafe and unsatisfactory; and,
(b)The verdicts are against the evidence and the weight of the evidence.
…
5.The learned trial judge erred by failing to properly warn the jury against the dangers of propensity reasoning.
6.The learned trial judge erred by failing to given an appropriate, proper or adequate Longman warning.
7.The learned trial judge erred in her directions to the jury as to corroboration.
8.The verdicts of guilty are unsafe and unsatisfactory by virtue of an aggregate of defects.
…
10.The learned trial judge erred by admitting into evidence the complainant K’s two VATE recordings.”
Before turning to counsel’s submissions, I shall say something briefly about the alleged offending. As ground 3 was argued only as an incident of ground 10, it is possible to understand the grounds without saying very much about the facts.
The applicant is the complainants’ uncle by marriage. K was born in 1990 and her sister, T, in 1993. All the offences of which the applicant was convicted occurred between 1st October 2000 and 28th March 2002, except for counts 14 and 20. Those offences occurred between 24th May 2001 and 28th March 2002 and between 1st October 2000 and 23rd May 2003 respectively. With the exception of the offence the subject of count 20, which was committed when K was visiting the applicant, all the offending occurred when the applicant was visiting the house in which the complainants lived with their mother.
Counts 2, 5 to 9 and 20 charged a variety of indecent acts with or in the presence of one or other of the complainants. Count 3 charged that the applicant introduced his penis into K’s mouth and count 14 charged that he introduced his finger into T’s vagina. The trial occupied 12 days. The Crown called the complainants, their mother and a police officer to give evidence. The applicant gave evidence on his own behalf and called one additional witness.
Grounds 3 and 10
The first complainant to give evidence was T. She had previously participated in two interviews with police officers, which were tape recorded in accordance with the VATE procedure. At the beginning of her evidence in chief she was asked whether those tape recordings were true and correct and answered “Yes”. K had also participated in two tape recorded interviews. At the beginning of her evidence in chief she was asked whether she had done so and whether she had seen those interviews and answered “Yes”, but she was not asked whether the tape recordings were true and correct or any other similar question.
Section 37B of the Evidence Act 1958 provided[1]:
[1]Sub-section (2) has since been amended, by s.33 of Act No. 2 of 2006, by substituting “a cognitive impairment” for “impaired mental functioning”.
“(1)This section applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for—
(a) a sexual offence; or
(ab)an offence under Subdivision (8EAA) of Division 1 of Part I of the Crimes Act 1958; or
(b)an indictable offence which involves an assault on, or injury or a threat of injury to, a person.
(2)The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with impaired mental functioning or is under the age of 18.
(3)Subject to sub-section (4), the recording is admissible in evidence in the proceeding as if its contents were the direct testimony of the witness if—
(a)it is proved that a transcript of it was served personally on the defendant or by post on his or her legal practitioner at least 14 days before the commencement of the hearing of the proceeding; and
(b)it is proved that the defendant and his or her legal practitioner were, in accordance with the regulations, given a reasonable opportunity to listen to and, in the case of a video recording, view the recording; and
(c)at the proceeding the witness—
(i)identifies himself or herself and attests to the truthfulness of the contents of the recording; and
(ii)is available for cross-examination and re-examination.
(4)The court may rule as inadmissible the whole or any part of the contents of a recording.”
The argument advanced under cover of grounds 3 and 10 related only to those counts where K was the complainant and the Crown relied on the VATE tapes.[2] The argument was that a statutory condition precedent to the admissibility of the tapes had not been complied with, because K did not attest to the truthfulness of the contents of the recordings as required by s.37B(3)(c)(i).
[2]Count 20 was not on the tapes.
Mr Elston sought to meet that objection in three ways. He contended, first, that attestation need not be by express words and K had sufficiently attested to the truthfulness of the contents of the recordings by conduct or by implication; secondly, that the condition precedent in s.37B(3)(c)(i) had been waived[3]; and, thirdly, that, in all the circumstances, the omission to ask K the question that T had been asked did not occasion a “miscarriage of justice” within the meaning of those words in the opening part of s.568(1) of the Crimes Act 1958. It should be said expressly that that was not an invocation of the proviso to that sub-section.
[3]Compare R. v. Radford (1993) 66 A.Crim.R. 210 and R. v. Clark (2005) 13 V.R. 75.
I would uphold Mr Elston’s third contention. That makes it unnecessary to consider the other two. Section 568(1) provides, among other things, that the Court of Appeal shall allow an appeal against conviction “if it thinks … that on any ground there was a miscarriage of justice”. The ground assigned in the present case is the failure to ask K, at the trial, to attest to the truthfulness of the contents of the VATE tapes with the result that she did not do so. I am clearly of the opinion that that ground, although made out, did not cause the trial to miscarry.
The position was no different, in principle, from any other case where hearsay evidence is admitted without objection at a trial. The VATE tapes, having been introduced into evidence by a police witness, were hearsay if the statutory conditions were not satisfied. Where hearsay is admitted without objection, there is rarely, if ever, a “wrong decision of a question of law” within the meaning of the opening words of s.568(1). There is, if anything, a miscarriage of justice.[4] It is a very exceptional case[5] where an objection to hearsay can be taken for the first time in the Court of Appeal. That need not be because of the doctrine of waiver. It is because the reception of hearsay, to which no objection is taken, is an ordinary incident of a trial regularly conducted. Indeed, it would be difficult to conduct most trials without the reception of some technically inadmissible evidence.
[4]Compare R. v. Huynh [2006] VSCA 213 at [5], [10] and [67].
[5]For example, where an unrepresented accused fails to object and the judge is unable to secure a fair trial or where seriously prejudicial material is admitted and defence counsel could not have had a forensic reason for failing to object.
It is true that s.37B(3)(c)(i) prescribes a mandatory condition precedent, but all that means is that the tapes were otherwise inadmissible. They were neither better nor worse than other hearsay admitted without objection. It is not as if Parliament has decreed that this species of hearsay is peculiarly objectionable and must not be received at all unless the condition precedent is satisfied.
In the present case there are a number of reasons for considering the ground identified in [12] above to be immaterial and accordingly that there was no miscarriage of justice. In the first place, K had attested to the truth of the VATE tapes at the committal proceeding in January 2005. (Her evidence in chief at the trial was given in November of that year.) She was asked whether she was satisfied that everything in the videos was the truth and answered “Yes”. She was asked to confirm that that answer related to both the videos and again answered “Yes”.
Secondly, there is no reason to think that she would not have given a similar answer or answers at the trial. I do not overlook that, in re-examination at the trial, she said, in relation to one incident, that she could not recall anything about it and did not even remember what she said on the tape. Quite apart from the fact that that relates to one incident only, it is an everyday event that a witness is, quite properly, willing, if asked, to swear to the truth of something that he or she no longer remembers on the basis of a statement made at an earlier time.
Thirdly, the entire trial was conducted on the assumption that the VATE tapes were K’s evidence. They were edited in consultation with counsel and she was extensively cross-examined. The cross-examination included suggestions that the applicant had never done anything sexually improper with K and that none of these things had ever happened. She stood by her testimony.
Fourthly, if defence counsel did notice the point, she could have had a forensic reason for failing to object. All that the objection would have achieved was that the jury heard K say, having been affirmed, that the allegations on the VATE tapes were true.
Before parting with this ground, I should say that it is not clear that the question asked of T at the beginning of her evidence in chief[6] resulted in her attesting to the truthfulness of the contents of the recordings. To say that they were “true and correct” may have meant no more than that they were accurate recordings. It would have been preferable for her to have been asked whether what she said on the VATE tapes was true.
[6]See [8] above.
Grounds 6 and 7
In order to understand these grounds, it is necessary to set out a fairly lengthy passage from the charge to show the way in which the judge dealt with the related topics of the difficulty that delay causes to an accused person and what used to be called the danger of convicting on uncorroborated evidence.[7] Her Honour said:
[7]I am speaking of the law at the date of the trial. What I say in this part of my reasons will have to be read, in future, subject to the changes made by Acts Nos. 6 and 76 of 2006, especially by s.3 of the latter.
“I want to say something to you which is a warning. It is something to which I want you to listen very carefully and to which you must pay heed when you are assessing the evidence in this case. The experience of courts in dealing with cases where there has been a substantial delay in making a complaint about alleged sexual offences is what causes me to give you this warning. You must bear in mind that the delay has deprived the accused of the means of testing the complainants’ allegations which would have been open to him had there been no such delay. Had the complainants made their allegations soon after the alleged offences it would have been possible to explore in detail the alleged circumstances and perhaps it would have been open to the accused to call evidence, throwing doubt upon the complainant’s story or concerning his denial.
Complaints earlier in time, particularly if they identify the precise date of the alleged offences rather than being spread over years may – I do not necessarily say would – have allowed the accused to call evidence as to where he was or what he was doing or what other potential witnesses were doing when the offences were alleged to have occurred. After so many years these opportunities have been lost or compromised.
The other thing about delay is that it affects the memories of all concerned. The complainant [K] was aged between 10 and 12 years at the time of the alleged offences. She is now 15 years’ old. [T] was aged between seven and ten years. She is now 12 years’ old. You have to take into account that the evidence which you hear from them is a recollection of a childhood memory from some years earlier. The evidence of [K] and [T] cannot be adequately tested after that time.
Contemporaneous questioning of a child may, for example, distinguish fantasy from reality or whether there might have been innocent contamination from discussions between the two girls, bearing in mind that [K] made her first VATE tape two days before [T]. [T] said that at that time there was no suggestion that she would make a VATE tape [but] that she then did so two days later. Then seven months later in December 2003 they both made another VATE on the same day. Experience has shown that human recollection, particularly of childhood events, may be erroneous or distorted and that the likelihood of error can increase if delayed.
So the warning is, as the evidence of each complainant cannot be adequately tested after the passage of [so] many years it would be unsafe to convict on that evidence alone – I emphasise the word, ‘alone’ – unless having scrutinised all of the complainant’s evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, you are satisfied of its truth and accuracy.
If after careful scrutiny of the evidence of [K] taking into account the warning that I have given you, you are satisfied that [K’s] evidence is truthful and accurate then you are entitled to act upon that evidence alone and to convict on the counts relevant to her. If after careful scrutiny of the evidence of [T], taking into account the warning that I have given you, you are satisfied that [T’s] evidence is truthful and accurate then you are entitled to act upon that evidence alone and to convict on the counts relevant to her. In other words, you are not to take the warning that I have given you as a direction to acquit the accused. That is not my intention or my function. What I am doing is giving you directions about matters that you should examine closely and explaining the reasons why you should do so.
You are not to take anything that I have said as an indication that the law regards complainants in sexual cases like [K] and [T] as an unreliable type of witness. The warning that I gave you was that it would be unsafe to convict on the evidence of each complainant alone – you remember me emphasising that word, ‘alone’ – unless after careful scrutiny you were satisfied of its truth and accuracy.”
The judge then explained the nature of corroboration, identified evidence that was capable of being considered in that light and directed the jury as to the counts where there was no corroboration. After doing so, she restated the warning twice. On both occasions she said that it was unsafe to convict the applicant “upon the evidence of the complainant alone which has been rendered potentially unreliable by delay”.
The delay between the alleged offending and the applicant’s being confronted with the complainants’ allegations was so short that he may have been fortunate that the judge gave the warning that she did, but that need not be decided.[8] The issue presented by these grounds, as argued, is whether the jury were adequately warned about the difficulty that delay causes for an accused person. Mr Boyce’s submission was that they would have understood the whole of the part of the charge set out above to apply only if there was no corroboration.
[8]Compare R. v. GTN (2003) 6 V.R. 150.
Counsel relied on the following passage in the judgment of Eames, J.A. in R. v. DCC[9]:
“I accept that this was a case where the circumstances necessitated not only that a direction concerning the dangers and difficulties which delay caused to the defence be given to the jury with the force of the judge’s office and on the basis of judicial experience, but that the jury understand that the warning applied even if they were to find that there was confirmatory evidence for the complainant’s account.”
His Honour went on to hold that the jury would not have understood the directions that were given in that case to be conditional on there being no confirmatory evidence.
[9](2004) 11 V.R. 129 at 145 [65].
It is important, in this and other cases, not to confuse two different things. One is the warning, in appropriate cases, that it is dangerous to convict on the unsupported evidence of a complainant, although the jury may do so after strict scrutiny heedful of the warning. The other is an explanation, with the authority of the judge’s office, of the difficulties that delay causes for an accused person. That is particularly relevant to the difficulties referred to in the first two paragraphs of the passage set out in [20] above[10], having regard to the lack of specificity in the dates of the alleged offending.[11]
[10]Longman v. R. (1989) 168 C.L.R. 79 at 91, but see also 100–101 and 107.
[11]See [6] above.
It is true that the judge made the “unsafe to convict” warning conditional on there being no corroboration. That is clear from her emphasis in the fifth and seventh paragraphs of the passage, but it does not follow that the jury would have understood the explanation in the first four paragraphs[12] to be similarly conditioned. Not only did her Honour refer to the “experience of the courts”[13], but it would be contrary to common sense for the jury to think that, just because there was some corroboration, they need no longer “bear in mind that the delay has deprived the accused of the means of testing the complainants’ allegations” or that delay no longer “affects the memories of all concerned”.[14] Moreover, in the fifth paragraph, her Honour stated, as a fact, that “the evidence of each complainant cannot be adequately tested after the passage of so many years”. I would not uphold this ground.
[12]Compare R. v. Parsons and Stocker (2004) 145 A.Crim.R. 519 at 528 [36].
[13]In editing this passage, I have treated the sentence beginning “Experience has shown … “ as the last sentence of the fourth paragraph. In the transcript it was typed as the first sentence of the next paragraph.
[14]I acknowledge that there would have been a miscarriage in this case if the judge had conveyed to the jury that, on counts where there was corroboration, they need no longer worry about the problems caused by delay.
Ground 5
As there were two complainants, it was necessary not only to give a separate consideration direction but also to warn the jury against propensity reasoning. As I said recently in R. v. Gell[15]:
“The law on that subject goes back to R. v. T[16] and beyond. It became of greater importance following the amendments to s.372 of the Crimes Act, pursuant to which severance is ordered much less frequently than used to be the case. I pointed that out in R. v. TJB[17]. Phillips, C.J. concurred in my judgment and Buchanan, J.A., who also concurred, emphasised that point.[18] See also R. v. DCC[19] and R. v. BO[20].”[21]
[15][2006] VSCA 255 at [14].
[16](1996) 86 A.Crim.R. 293 at 299.
[17][1998] 4 V.R. 621 at 633.
[18]At 634.
[19](2004) 11 V.R. 129.
[20][2006] VSCA 247.
[21]The footnote numbers in R. v. Gell were 6 to 10.
In R. v. Gell the judge gave an unembellished separate consideration direction and nothing was said that could amount to a warning against propensity reasoning. The position was different in the present case. Her Honour said:
“Now what you must bear in mind is that the accused is entitled, as is the Crown, to a separate consideration by you of each of the crimes with which he has been charged. So it would be quite wrong of you to say that simply because you find the accused guilty or not guilty on one of the counts then he must therefore be guilty or not guilty, as the case may be, on the other counts. Each count must be separately considered in the light of the evidence which applies to it and you must ask yourself on each count separately, ‘Am I satisfied by the evidence that the Crown have proved all the elements of the particular offence beyond reasonable doubt?’ If your answer is ‘yes’ you can convict the accused in respect of that count, that is bring in a verdict of guilty. If your answer to that question is ‘no’ then you must acquit the accused on that count, that is bring [in] a verdict of not guilty. So that is the same reasoning process that must be applied to each and every one of the 18 remaining counts which you have to consider.
The fact that I have directed an acquittal, that is that you bring in a not guilty verdict on counts 15 and 16, which you have already given a not guilty verdict on, should in no way influence you in relation to the remaining 18 counts which you have to consider. You must consider each and every one of those 18 counts separately in the light of the evidence which applies to it.”
(Emphasis added.)
In other cases, including R. v. Glennon (No. 2)[22] and R. v. DCC[23], it has been held that language similar to the part of the direction that I have italicized may constitute a sufficient warning against propensity reasoning. That language is similar to the wording approved in New South Wales in R. v. Beserick[24]. It is worth emphasising, however, that a ground such as this is not to be decided primarily by comparing the language of the present charge with the language of other charges. It is to be decided by asking whether there is a significant risk that the jury would not have understood that they were not to reason that, if the applicant was guilty of an offence against one the complainants, he was the kind of person who was likely to have offended against the other complainant.
[22](2001) 7 V.R. 631 at 645 [28] and 679 [120].
[23]At 134 [14]-[15], 144 [60] and 150 [92].
[24](1993) 30 N.S.W.L.R. 510 at 516.
In my opinion, in this case, the italicized words would have conveyed the necessary warning to the jury. Mr Boyce conceded, in the light of the authorities, that those words may have conveyed a warning not to reason that, because the applicant was guilty on one count relating to one of the complainants, he was guilty on other counts relating to the same complainant. Counsel’s argument was that there was insufficient warning against reasoning that, because the applicant was guilty on one or more of the counts relating to one complainant, he was guilty on one or more of the counts relating to the other complainant. I think that there is insufficient reason, in this case, to fear that the jury reasoned that way.
No exception was taken. Moreover, of the 18 counts that were left for their consideration after the direction following the “no case” submission, the jury found the applicant not guilty on counts 1, 4, 10 and 13, which related to K, and counts 11, 12, 17, 18 and 19, which related to T. That is not conclusive on its own, because propensity reasoning could have played a part in the jury’s reasoning to a conclusion of guilt on any of those counts, but they certainly did not convict “across the board” in relation to either of the complainants.[25]
[25]Logically, the direction that there was no corroboration, in the sense of evidence “confirming, supporting or strengthening” the complainant’s evidence, on some counts, including five counts on which the jury convicted, also excluded propensity reasoning.
Ground 1
Mr Boyce conceded that this ground fell away if ground 5 were not upheld. Accordingly nothing further need be said about it.
Ground 8
This ground, too, was recently considered in R. v. Gell, where it succeeded. As it is so often misunderstood, I venture to repeat what I said about it in that case[26]:
“That ground does not mean that ‘several nothings make a something’. It means that there were several errors or irregularities, none of which may have been sufficient in itself, but which taken together amounted to a miscarriage of justice within the meaning of those words in the opening part of s.568(1) of the Crimes Act 1958. The law on the subject was lucidly explained by Batt, J.A. in R. v. Kotzmann[27]. Another case where an aggregation of errors ground succeeded is R. v. Glennon (No. 3).[28]”[29]
[26]At [6].
[27][1999] 2 V.R. 123 at 157 [114].
[28](2005) 12 V.R. 421. See especially 427 [18].
[29]The footnote numbers in R. v. Gell were 1 and 2.
In the present case there was at least one irregularity, that relating to K’s VATE tapes; the explanation, with the authority of the judge’s office, of the difficulties caused by delay could have been more clearly separated from the “dangerous to convict” warning; and the propensity component of the separate consideration direction could have been more fully and accurately expressed[30]. None of those matters, however, even taken together, amounted to a miscarriage of justice in the sense that I have just explained.
[30]See [25] and [27] above. As this was not a similar facts case, it would have been worth saying expressly, as part of the expanded separate consideration direction, that the Crown case was no stronger because there were two complainants.
I would grant the application for leave to appeal against conviction, because of the importance of the point raised by ground 10, but I would dismiss the appeal.
Postscript
When this judgment had reached the stage that builders call “practical completion”, the High Court gave judgment in Tully v. R.[31]. No changes were necessary to what I had written. Their Honours were concerned with a different problem from that presented by grounds 6 and 7 in the present case. The issue in Tully v. R. was whether a scrutiny warning was necessary because of delay. In our case it is assumed that the dangers of delay had to be brought to the attention of the jury. The issue is whether that was adequately done. Tully v. R. shows that a warning about delay is not always necessary, which is consistent with the passage from R. v. DCC quoted in [22] above. Eames, J.A. said that he accepted that that was a case where the circumstances necessitated a direction.
[31][2006] HCA 56.
The references to R. v. Pearce[32] in some of the footnotes in Tully v. R. prompt me to add something in this postscript about uncharged acts. Should the other members of the Court agree in my judgment, they are not to be taken as expressing a view one way or another about these observations. I make them because this is my last conviction appeal and I hope that what I say may be of assistance to the profession. It will be subject to correction by the Court of Appeal or the High Court.
[32][1999] 3 V.R. 287.
I shall use the expression “relationship evidence”, but only as a label. It is shorthand that has often been used to distinguish evidence of uncharged acts admitted for the purpose explained in cases like R. v. Grech[33] from similar fact evidence.[34] As Callinan, J. explains in Tully v. R., it is only a label. Attention must always be directed to the reason why the evidence is admissible, if it is admissible at all. In Victoria it must satisfy the criterion of admissibility in s.398A of the Crimes Act.
[33][1997] 2 V.R. 609.
[34]See, for example, R. v. Best [1998] 4 V.R. 603 at 606, 611-612 and the summary at 616.
Subject to one qualification, the circumstances in which evidence of uncharged acts is admitted to show the relationship between the complainant and the accused or for similar purposes and the directions that should be given to the jury are well settled. R. v. Pearce was a case outside the mainstream of Victorian authority. It was practically confined to its facts by R. v. Loguancio[35]. The latter case is in the mainstream of the authorities and consistent with subsequent decisions. The qualification is this. It may be that relationship evidence has in the past been too readily admitted, especially where there are already a large number of counts on the presentment and the Crown does not need further evidence of that kind. Winneke, P. and I warned about that in R. v. GAE[36]. That warning has been reinforced by Tully v. R. It is important to remember that the decision whether evidence of uncharged acts is admissible is a question of law[37]. If such evidence is wrongly admitted, over objection, there is a “wrong decision of a question of law” within the meaning of s.568(1) of the Crimes Act.
[35](2000) 1 V.R. 235. Tadgell and Buchanan, JJ.A., the two judges in R. v. Pearce who had dealt with this topic, were members of the Court in R. v. Loguancio and agreed in my judgment. R. v. Pearce had already been widely misunderstood.
[36](2000) 1 V.R. 198 at 200 [1] and 206 [20]-[22].
[37]R. v. Loguancio at 243 [22]. See also R. v. TJB [1998] 4 V.R. 621 at 631 especially line 47.
The standard of proof of uncharged acts admitted as relationship evidence, or indeed as similar fact evidence, has caused difficulty. I offer the following framework for analysis.
At a criminal trial the guilt of the accused must be proved beyond reasonable doubt. In addition, there are at least two kinds of evidence that have to be proved to that standard. The first is evidence that amounts to an indispensable link in a chain of reasoning leading to guilt. That is because a chain is as strong as its weakest link. If an indispensable link is established only on the balance of probabilities, the chain of reasoning cannot establish guilt beyond reasonable doubt. The second kind is evidence which, although logically only a strand in a cable, is of such practical importance that it is prudent to direct the jury that they must be satisfied about it beyond reasonable doubt.
Evidence of the second kind, attracting a “prudential direction”, is not limited to trials for sexual offences;[38] but, to give an example commonly found in sexual cases, where the Crown relies on similar fact evidence and probability reasoning but there is a possibility of collusion or innocent infection, the judge must direct the jury that they cannot reason from the improbability of coincidence unless they are first satisfied beyond reasonable doubt that there was no collusion or innocent infection.[39]
[38]See, for example, R. v. Kotzmann [1999] 2 V.R. 123 at 130 [21]; R. v. Heaney [1999] VSCA 169 at [32] and R. v. Ciantar [2006] VSCA 263 at [52].
[39]R. v. Best at 611 and 616.4.
In principle, however, evidence of uncharged acts can never be an indispensable link in a chain of reasoning. Uncharged acts are, of their very nature, collateral to charged acts. Logically they can never rise higher than strands in a cable or, to use another metaphor, be more than elements in an accumulation of detail. That is not to say that, in a particular case, they might not be important. There may be trials where, for prudential reasons, a jury should be instructed that the standard
of proof applicable to uncharged acts is proof beyond reasonable doubt, but I say that more as a concession to those who hold that view than out of conviction.[40]
VINCENT, J.A.:
[40]Corroborative evidence, for example, does not have to be proved beyond reasonable doubt: see Doney v. R. (1990) 171 C.L.R. 207 at 211 (last paragraph).
I agree in the disposition of this matter proposed by Callaway, J.A. and I do so for the reasons advanced by him in his judgment.
ASHLEY, J.A.:
I also agree with Callaway, J.A.
---
8
4
0