R v Papamitrou
[2004] VSCA 12
•27 February 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 275 of 2002
| THE QUEEN |
| v. |
| SPIRO GEORGE PAPAMITROU |
---
JUDGES: | WINNEKE, P., ORMISTON and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 6 and 7 October 2003 | |
DATE OF JUDGMENT: | 27 February 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 12 | |
---
Criminal law – Practice and Procedure – Sexual offences committed against multiple complainants – Severance of presentment – Principles discussed – Directions to jury – Whether adequate. Ss.372, 398A Crimes Act (Vic.).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr. P.G. Priest, Q.C. and Mr. M.J. Croucher | Leo Demos & Associates |
WINNEKE, P.:
This application brings into focus, once again, the problems confronted by trial judges in this State when presentments are filed containing multiple counts alleging sexual offences against different victims. There is no doubt that such presentments are properly formed, in the sense that they comply with the Presentment Rules found in the 6th Schedule to the Crimes Act 1958 (Vic.) The issue, which invariably arises, is whether the interests of fairness dictate that the counts should be severed; and, if not, what directions should be given by the judge to secure a fair trial for the accused. What is fair and proper must depend entirely upon the circumstances of the particular case, and particularly the issues which arise in that case.
The issue, to which I have referred in paragraph [1], has been thrown into sharper focus in this State because of amendments made in 1997 to the “joinder provisions” contained in ss.371 and 372 of the Crimes Act (Vic.) which, prior to the amendments, were in a form common to those found in England and most States of Australia. Before those amendments, s.372(3) was the sole provision governing the trial judge’s discretion to order separate trials of different counts properly joined in the presentment. That sub-section provides:
“Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment.”
Before the amendments to which I have referred, the proper exercise of the discretion invested in the judge by this sub-section had been held to require, other than in exceptional cases, the severance of counts on presentments which alleged multiple sexual offences against multiple victims in circumstances where the evidence in support of the counts relating to one victim was not admissible in proof of the counts alleging offences against the other victims. The decision of the High Court in De Jesus v. R.[1] was an exemplification of this applied principle. That was a case where the accused had been tried on indictment containing multiple counts alleging sexual and associated offences against two victims. The trial judge had denied an application for severance under s.585 of the Criminal Code (W.A.) in circumstances where it was accepted that the evidence in respect of each victim was not “cross-admissible”. A majority of the Court concluded that the judge’s discretion had miscarried. Gibbs, C.J. said (at page 3):
“In Sutton v. The Queen (1984) 152 C.L.R. 528 (a case arising under the law of South Australia) this Court applied the same principle to cases of rape. In that case I said at 531):
‘Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Director of Public Prosecutions v. Boardman [1975] A.C. 421 at 442, 447, 459, and it is a view consonant with justice …’.”
Having referred to statements made by Brennan, J. in the case of Sutton (at 541-2), Gibbs, C.J. concluded:
“This is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it. Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard. For that reason, I adhere to the view which I expressed in Sutton v. The Queen.”
[1](1986) 61 A.L.J.R. 1.
It should be noted that Sutton’s case was one in which the High Court had upheld the exercise of the trial judge’s discretion not to sever the counts. That was a case where the issue was the “identity” of the person who committed the crimes; the trial judge concluding that the evidence of the circumstances of the rape of one victim was “so strikingly similar” to the circumstances of the rapes of the other victims that it was logically probative of the fact that the same person had committed all the offences. Courts in this State have, at least until the amendments to s.372 to which I have alluded, applied the principles laid down in De Jesus and Sutton[2]. I will return to the effect and impact of those amendments upon these principles later in these reasons.
[2]cf. R. v. Vaitos (1981) 4 A.Crim.R. 238 at 271-2.
The Presentment
Before turning to the issues which have been raised in this application, it is necessary to refer to the counts alleged against the applicant and to the evidence upon which the prosecution relied in support of the allegations.
The Presentment contained 15 counts alleging against the applicant sexual offences of various kinds against six different complainants. Those complainants I will refer to as K.G. (count 1), R.M. (counts 2 and 3), K.W. (counts 4, 5, 6, 7 and 8), K.H. (count 9), M.P. (counts 10, 11, 12 and 13), and R.S. (counts 14 and 15). The offences were all alleged to have occurred between August 1999 and November 2000, at a time when the applicant, a married man, was aged 28 to 29 years; and the victims all adolescent girls between the ages of 15 and 18 years. A breakdown of the counts – on a complainant by complainant basis – is as follows:
Count No. Complainant Offence Date of Offence
1. K.G. (aged 15) indecent act with child 11 August 1999
under 16 years
(s.47 Crimes Act)2. R.M. (aged 18) rape (digital) between 1 and
(s.38 Crimes Act) 25 December 19993. R.M. indecent assault between 1 and
(s.39 Crimes Act) 25 December 19994. K.W. (aged indecent assault 8 March 2000
17-18 years) (s.39 Crimes Act)5. K.W. indecent assault 8 March 2000
(s.39 Crimes Act)Count No. Complainant Offence Date of Offence
6. K.W. indecent assault between 1 and
(s.39 Crimes Act) 31 October 20007. K.W. indecent assault between 1 and
(s.39 Crimes Act) 31 October 20008. K.W. indecent assault between 1 and
(s.39 Crimes Act) 31 October 20009. K.H. (aged 18) indecent assault between 25 April and
(s.39 Crimes Act) 31 May 200010. M.P. (aged 15) unlawful imprisonment between 1 June and
(common law) 31 July 200011. M.P. indecent act with child between 1 June and
under 16 years 31 July 2000
(s.47 Crimes Act)12. M.P. indecent act with child between 1 June and
under 16 years 31 July 2000
(s.47 Crimes Act)13. M.P. digital rape between 1 June and
(s.38 Crimes Act) 31 July 200014. R.S. (aged 15) indecent act with child between 28 October
under 16 years and 5 November 2000
(s.47 Crimes Act)15. R.S. indecent act with child between 28 October
under 16 years and 5 November 2000
(s.47 Crimes Act)
After a trial in October 2002, in the course of which each of the complainants gave evidence, the applicant was convicted on each of these counts. The applicant gave no evidence on his trial, and no evidence was called on his behalf. He relied upon an extensive Record of Interview (dated 30 November 2000) in the course of which he denied all the allegations made against him. Such allegations, he said, had been concocted. The applicant had no prior convictions. On 22 October 2002, the trial judge sentenced the applicant to a total effective term of 5 years imprisonment, and ordered that he serve 3 years of that term before becoming eligible for parole. In respect of counts 11 to 15 inclusive, the applicant was sentenced as a “serious sexual offender”.
At all material times, the applicant was the store manager of the Tandy Electronics store at the Greensborough shopping “Plaza”. It was in that capacity that he came into contact with each of the complainants. K.G. was a “work experience” student at the store; R.M. was a casual employee at the store; K.W. was a regular visitor to the store – being the girlfriend of another employee (J.P.) who was the brother of the complainant M.P. It was because of that relationship that M.P. visited the store and was acquainted with the applicant. K.H. and R.S. were employed at a “Reject Shop” which was located next door to the Tandy Store at the Greensborough Plaza. They, too, were visitors to the Tandy Store and, thus, became acquainted with the applicant. He maintained that they regularly came into the Tandy store to talk to his employees.
The Evidence – K.G.
Having regard to the grounds of appeal which have been relied upon in this Court, it is – regrettably – necessary to recite the relevant evidence in some detail. The offence alleged in count 1 (indecent act with K.G.) was said to have occurred on a day in August 1999 whilst K.G. was engaged in “work experience” under the supervision of the applicant. At about 5 p.m. on that day, the applicant – according to K.G. – had asked her to come with him to “Harvey Norman” to look at some computers. She said that some friends had given her some cigarettes; and she suggested to the applicant that they go to a particular car-park to “smoke”. He said that she “could not smoke there” but that he would “take her through to Target”. The Target car-park was further away and on a different level. She said that – whilst in the car-park - the applicant sat on a horizontal railing and she leaned against a wall whilst she smoked. The applicant said that she looked “stressed” and told her to “come and sit down”. Ultimately, she said, she went over and sat on the rail about 1 metre from the applicant. He asked her whether she liked “massages”. She said “No”, but the applicant then stood up, moved behind her, and commenced to massage her shoulders. When she said she did not like it, he returned to the railing and sat astride it. He touched her lips with his fingers, and asked her about “being stressed”. He tickled her under the left arm pit and told her to smile. She said that he then put his arms around her and dragged her between his legs and kissed her on the left cheek. He then tried to kiss her “on the lips” having put his hands around her hips. She said “what are you doing”, to which the applicant replied “I just want to kiss you once”. They then walked back to the store. The applicant told her that, if asked by a fellow employee, she was to say they had been to Harvey Norman. He also said: “Sorry about the kissing thing”.
K.G. gave evidence of a complaint to her mother and her neighbour. K.G. was collected by her mother and driven home at about 5.30 p.m. She made no complaint to her mother during the drive home; but shortly thereafter she met her friend and neighbour (K.B.). K.G. said that she told K.B. that “my boss tried to kiss me”. K.B. confirmed that and also said she was told about “the massage”. K.B. said that K.G. should tell her mother. The two girls returned to K.G.’s place, where they spoke to K.G.’s mother. K.G. told her that “my boss tried to kiss me, and touched me and he took me up to a car park”. K.G.’s mother and K.B. each said that K.G. was clearly distressed as she recounted her experience. K.G. did not return to the work at Tandy. When asked, K.G. said that she did not know any other of the complainants. Although, in cross-examination, it was put to K.G. that the applicant had gone to the car-park with her, it was also put that there had been no “massage” and no kiss or attempted kiss. K.G. maintained the evidence she had given was the truth. Her mother and her friend (K.B.) each gave evidence of K.G.s’ complaint to them.
R.M. – December 1999
R.M. was 18 years in December 1999 when the offences alleged in counts 2 and 3 occurred. She had commenced working at the Tandy store at the end of November 1999. She was hired by the applicant as a “casual”. She said that about two weeks after she commenced work, the applicant asked her whether she “had sex” with her boy-friend; and also asked her about the “sexual positions” she liked. She said that these “requests” did not unduly upset her. At the relevant time R.M. lived at Bundoora. Normally she took the 5.30 p.m. bus home; or was driven by her boy-friend (JW) who also worked at the store. She said that the applicant had driven her home on three occasions. On the second occasion (a Tuesday or Wednesday before Christmas 1999), the applicant said he would “show her how to do the banking”. This involved driving to the Westpac Bank in Main Street, Greensborough and placing the “takings” in The Night Safe. R.M. said that she went with the applicant to the “orange level” car-park in the shopping centre. They drove to the bank where the applicant left the vehicle and deposited the money. Shortly after he returned, and whilst they were in the car, “the conversation turned to underwear” and she told the applicant about a pair which she had which “glowed in the dark”. When the car stopped at traffic lights, she said that the applicant “kind of leaned over and put his hands down my skirt and my underpants”. He was “sort of rubbing around just feeling, like, the outside of my vagina”. He said “Oh, your pussy is so soft” and continued to put his hand down further. He then ”put part of his hand inside me”. She said “that’s enough” and pulled his hand away. She said that he had placed one of his fingers inside her vagina. She “did not want it there” (This was the digital rape alleged in count 2). They continued to drive home. They stopped further on in Grimshaw Street where – she said – the applicant commenced to pull her skirt up. He was saying things like “Oh you look sexy”. He pulled her skirt up over her knees; she pushed it back; and he pulled it up again. They then continued to drive along Grimshaw Street; and he took her right wrist and hand and placed it, over his clothing, on his penis. She pulled her hand away and told him to “stop it” (count 3, indecent assault). The applicant said words to the effect: “it would be good … if we could try this position” to which she replied that she “did not want to; you’re married”. When they arrived at R.M.’s home, she got out and opened the rear door to get her bag. The applicant said “Look how much room there is … let’s do it in here; it would be great”. She said no, and walked inside. She said she felt “shocked” and “upset”. When her housemate arrived home, she asked R.M. “What is wrong”. R.M. said “something happened on the way home with Spiro”. The judge told the jury that this was not evidence of a “recent complaint” and to “disregard” it. She said she continued to work at the store until Christmas Eve; talked to the applicant “only when I had to”; she then left and ”told them the following week” that she would be working elsewhere.
R.M. made a statement to police in November 2000. Before that she had heard talk between her boyfriend J.W. and J.P. about “other incidents”. K.W. (who was the girlfriend of J.P.) later told the police that R.M. “could have something to say”. R.M. had not spoken to J.W. or J.P. about the detail of the events about which she had given evidence. J.W. (who was employed at Tandy) gave evidence. He had known R.M. since mid-1999; and used to occasionally drive her home when she was working at Tandy. He said he had not overheard any discussions between R.M. and the applicant about sexual topics.
K.W. (Counts 4 to 8)
K.W. was respectively 17 and 18 years when the alleged offences occurred. In 2000 she was completing her V.C.E. Her boyfriend, J.P., worked at the Tandy Store; although their relationship in 2000 was ”rocky”. K.W. frequently visited J.P. at his place of work. On occasions they would argue. She came to know the applicant as the manager of the store. From time to time the applicant would speak to her about her relationship with J.P. He made “jokes” to her that she was not giving him “enough blow-jobs”. She knew that R.M. was working at the store.
On 8 March 2000 the staff of the Tandy Store attended a promotional river cruise which commenced at about 8 p.m. and concluded at 10.30 p.m. K.W., who had had “a little” to drink, was driven home by the applicant. The applicant’s wife and J.P. were passengers. The applicant drove to his own home first where his wife alighted. He then commenced to drive to Watsonia where K.W. lived. K.W. was in the front passenger seat with J.P. in the rear. On the Western Ring Road, the applicant stopped the car and asked J.P. to get out and check the brake lights to see if they were working. [In cross-examination it was suggested that it was J.P. who suggested the lights were not working.] J.P. alighted from the rear passenger door. In the “two minutes” that J.P. was out of the car, according to K.W., the applicant “reached over and placed his left hand on my right thigh … just above the knee”. She said that she was wearing a knee length skirt with a split extending to above the knee. The applicant, she said, had his hand on the inside of her thigh, and moved it up towards her groin area. He said “may be you’ve had too much to drink tonight”. He kept his hand on her thigh until J.P. got back into the car. (This incident was the indecent assault alleged in count 4.) The applicant then continued to drive – after J.P. had said the brake lights were “O.K.”; but after three or so minutes he stopped the car again and asked J.P. to check the lights once more. J.P. was reluctant – saying the lights were working. The applicant insisted; and J.P. got out of the car. Again the applicant placed his hand on the inside of K.W.’s thigh and moved it towards the groin, although “not as high”. (This was the indecent assault alleged in count 5.) The applicant then drove to her home and, as she alighted, he said to her "You should come into work and see me sometime". [In cross-examination, it was put to K.W. that these incidents had not occurred at all.]
K.W. continued to visit J.P. at the Tandy Store. She continued to talk to the applicant but did not raise with him the events which had occurred on the drive home from the river cruise. She said that, as the year 2000 progressed, her relationship with J.P. became strained. A “break-up” between them occurred on 1 October. K.W. sought to ring J.P. at the Tandy Store. The applicant answered the telephone. She was distressed, and the applicant told her that, if she wanted “someone to talk to”, she could come and speak to him. He suggested that she meet him in the “loading bay area” at the Greensborough Plaza; and she agreed. She arrived at about 2.30 p.m. The applicant met her shortly after and took her to a locked store-room. She sat on the top of a set of stairs, and he sat next to her. He suggested that she rest her head on his lap but she declined. Her mobile ‘phone rang; he took it from her and turned it off. She said that the applicant told her that J.P. “was cheating on her” with other girls from the “Reject Shop”, including the complainant K.H. K.W. said that she would confront J.P.; the applicant asked her not to do so. He took her by the upper arm, and leaned over to kiss her. She turned away. He told her she looked “hot” and suggested she remove her jumper. She did not comply, and he took the jumper and sought to remove it. She pushed his hands away, stood up and walked down the stairs away from him. He followed her, took her by the hand and led her towards the Tandy storage cage. She said that she tried to reason with him and referred to his wife. He responded by saying “perhaps I’m not getting enough, either”. He took her into the cage and pushed her back against the wire. He put his hand on her shoulder, and told her that he “wanted to go down on me and make me come”; that he had “fallen in love with me”. His right hand was on her shoulder and his left hand under her top. She said that he leaned forward and kissed her on the lips pressing his erect penis against her (through his trousers). She was able to feel it (count 6; indecent assault). She then walked out of the cage, and as she did so, “he grabbed the back of my pants and put his hand down the back of them … and touched my bottom”. She said that she turned around; he pulled the front of her tracksuit pants and looked down the front of them, saying “that’s nice” (count 7; indecent assault). She pulled free and walked towards the door. He pushed himself in front of her and put his hand on the door latch saying: “Just give me one hug; just one more hug” and tried to kiss her again. She felt his tongue on her lips and again felt his penis rubbing against her (count 8; indecent assault). He then let her out of the door. He asked her whether he had lipstick on him. She said “No”, as she was wearing “lip-gloss”. He asked her to go out through the car park to avoid being seen by the staff of the store. She said she was very upset. She went into the car park and ‘phoned J.P. asking him to meet her. He came after some five to ten minutes. She told him everything which the applicant had done. She then rang her father and asked him to come and collect her. Thereafter, she said, she had returned to the Tandy store to meet with J.P. on two or three occasions; however she had not spoken to the applicant.
In cross-examination, it was put to K.W. that she had concocted her “complaint” as a measure to get J.P. to return to her. This, she denied. She agreed that she had spoken to two other complainants to encourage them to speak to the police. She had done this after she had learned that another girl had made a complaint. She had met K.H. and R.M.; and knew M.P. (J.P.’s sister).
K.H. – Count 9 (indecent assault)
K.H., aged 18 years, was employed at the “Reject Shop” at Greensborough in 2000. That shop adjoined the Tandy Store. She knew J.P., and through him she met the applicant. In May 2000 she went to the Tandy Store in search of J.P. She spoke to the applicant; saying that she liked the music which was being played on the stereo in the store. He told her that he had made “the mix” and she asked whether she could borrow the “C.D.”. He agreed and they arranged that she would return “after work”. She returned at about 5.30 p.m. The shutters were down, but she was ushered in by the applicant and J.P. They were counting the day’s takings; and the applicant asked J.P. to take them to the bank. The applicant then asked K.H. to come with him to the office at the back of the store to collect the C.D. She said that, after she had entered the office, the applicant closed the door. He put his foot against the door and pushed her up against a pillar which was just inside. She said:
“It was not violent … he put his arm … across my shoulders, and with his other hand he put it up my top … he put his hand inside my bra.”
She said that his hand was on her skin; and that she was trying to push him away. He then kissed her on the mouth and neck. The events described had continued for 5-10 minutes. She said that she then heard the sound of the roll-door at the front of the shop. The applicant stood back, took the C.D.s off the table and walked out of the office. She saw J.P. in the store. She said nothing. The applicant said “tell me what you think of them”. K.H. said that she was “shocked” at what had happened. She went home; and did not speak to the applicant for some months when she asked him to compile a C.D. for her.
It was put to K.H. in cross-examination that, although the applicant had taken her into the office to collect the C.D., no improper advance had been made to her. This, she denied. She agreed that she knew K.W. through J.P. She also knew the complainant R.S., who worked with her in the “Reject Shop”. She said that she had gone to the police because she had been told by J.P. that ”it had happened to someone else”. That “someone else” was R.S. Following that, she told “her boss”; he brought in the head of security who contacted police. Aside form R.S., she knew little of the other complainants.
M.P. – Counts 10 to 13
M.P. was the sister of J.P., the applicant’s employee at the Tandy Store. She was 15 in 2000 when the events, which she described, occurred. She was accustomed to visit her brother at the store; and she knew the applicant. In mid 2000, the Tandy Store ran a “Stuart Little movie promotion” at a stall outside the store in the Plaza. The promotion included a “video games” unit which customers were invited to use. M.P. used it several times during the promotion. On the last day she went to the promotion, she arrived at the store at about 5 p.m. After playing a video game, she asked the applicant whether she could use the store’s toilets which were much closer than the public ones. The applicant agreed to give her access. He took the keys and escorted M.P. to the toilets. He followed her in, saying that he wanted to use them as well. She said:
“I went into the last cubicle and went to shut the door; and he was flirting with me. … He followed me into the toilet and covered my mouth with his hand and told me not to make any noise.”
The applicant, she said, closed the door after him. He told her not to make any noise or “I will fire your brother”. She remained silent; and he blocked her escape by standing against the door (count 10; unlawful imprisonment). M.P. said:
“He removed his hand from my mouth and passionately … started kissing me [with his tongue]. … He then started rubbing my breasts above my clothing, with both of his hands.”
She said that she did not know what to do. He then removed the singlet top, exposing her bra. He then rubbed her breasts again. Then he lifted her bra, and “licked and sucked” her breasts and nipples (count 11; indecent act with child under 16). Although she struggled, she did not want to upset him because she did not know what he would do. He then pulled her around so that they were “side on”. He lowered her pants and underwear to her ankles and commenced to rub his unexposed penis against her bottom (count 12; indecent act). She noticed that he began to lower his own pants; but heard someone else enter the toilets, and move to another cubicle. The applicant, very softly, told her to raise her legs and told her to “shut up”, putting his hand over her mouth. He knelt down in front of her until the other person had left. She said that, as he had been rubbing her breasts, he was groaning and saying that “her breasts were beautiful”. He then pushed her legs apart and inserted a finger or fingers into her vagina. He was “rough” and was “hurting her”. He asked her whether she was “enjoying” it. She did not reply; but – she said – it “felt disgusting”. She then lashed out with her feet and kicked him as hard as she could in the stomach. He removed his fingers and left (count 13; digital rape). M.P. remained in the cubicle for some 10 minutes. She said that she was in a state of shock and did not know what to do. She then dressed herself and walked back to the store where she “nodded” good-bye to her brother and went home. From there, she made a telephone call to a friend – Michael Read – telling him, inter alia, that her brother’s boss had “had his way with her”. Read gave evidence in which he said he remembered a ‘phone call from M.P. in the course of which she had told him that her brother’s boss had “come on to her”. She did not tell her brother (i.e. J.P.), she said, because she was “too embarrassed”. She agreed that, at some time after these events, she commenced to visit the store again; but not as frequently. She did so because she and her brother did not live together; and the store was a convenient place to visit him after school.
M.P. agreed that she had made a statement to police after she had been told by K.W. (her brother’s girl-friend) that she (i.e. K.W.) had done so. She had not read K.W.’s statement before she made her statement on 28 November 2000, although she and K.W. had previously discussed at the Greensborough Plaza the way the applicant acted. M.P. had initiated the conversation by telling K.W. about the applicant’s conduct; K.W. responded by saying that he had acted towards her in that way as well.
R.S. – Counts 14 and 15
R.S. was 15 years of age in November 2000. She worked at the “Reject Shop at Greensborough after school and at week-ends. She was a work-mate of K.H.; she also knew J.P. from the Tandy Store. However she did not know the complainant M.P. (J.P.’s sister). She was acquainted with the applicant, and knew him as the manager of the Tandy Store, which was next door to her place of work. On Sunday, 5 November 2000, she was working a three hour shift from 11 a.m. to 2 p.m.. When her shift was completed, she went to the Tandy Store to meet J.P. The applicant was present. He asked her whether she had seen “their new cages” in the store-room. He asked whether she would like to see them, she said she would. She had not been to the store-room before. The applicant took her there and unlocked the door. She noticed some Christmas decorations in a box within the cage. “As a joke”, she said to the applicant: “You want to give me a boost up there”; to which he said that he would “try”. She said that he then put his arms around her stomach and “started to kiss my neck”. He then turned her around and gave her “a peck” on the lips, and kissed her a second time. She kissed him back. She said, in cross-examination – that she had done that because she was scared. He then touched one of her breasts (count 14; indecent act). This, she said, “did not last long” because her telephone rang. It was someone returning her call. After she had spoken [she said nothing about her predicament because she did not want to put herself in danger], the applicant took hold of her and kissed her “with the tongue”. She said: “Aren’t you married?” He said that there was “more to the story”; said he was “attracted to her” and “kissed her again”. She sought to pull herself away from him and put her hands on his chest. He grabbed one of her hands and put it on his penis which she could feel through his trousers (count 15; indecent act). R.S. said that she went to walk away; at which the applicant took hold of her again and tried to kiss her. He asked her why she wanted to go, to which she responded: “Because I have to”. He opened the door for her and asked her whether there was “anyone outside”. He also asked whether he had “any lipstick on his face”. He asked her to “wait 5 minutes” before returning to the shop. She said it would be “unusual” if they returned separately. When they returned to the Tandy Store, J.P. was there. The applicant asked her, in front of J.P., whether she had liked the store-room. She did not reply. The applicant then went into his office. J.P. asked her whether she “was O.K.”. The applicant returned, played her a copy of a C.D. which he had made, and asked her whether she would like a copy. She said she would; and the applicant told her that he would put one together and bring it to the shop. He then called her into the office at the back. She went to the door but did not enter; He offered her a copy C.D. there and then and said “come here a second”. She said that she took a step forward, at which he “tried to kiss her again”. She pulled away and walked into the store. He followed her and gave her a C.D. Shortly after, she returned to the Reject Shop where she spoke to Jessica – a workmate. The workmate asked her “what’s going on?”. R.S. said that she had replied with words to the effect “Spiro tried to kiss me”. On the following day, R.S. said that she went back to the Tandy Store to meet J.P. She was told that he was “outside, having a cigarette with K.W.”. When she was outside with J.P., the applicant joined them. He said he wanted to talk to her about “working for Tandy” to which she replied that she did not need another job. J.P. and K.W. then left; and the applicant asked her whether she had told anyone “about yesterday”. She said she had not; at which he asked her “not to say anything”. She replied “Why shouldn’t I?”.
R.S. agreed that she had made a police statement about three weeks after the event – that is, on 22 November 2000. She said that she had initially attended the police station in respect of the complaint made by her work-mate K.H., but had ultimately made only her own statement. She agreed that she had told K.H. about the events which had happened to her about 1½ weeks before she made her statement. She had spoken to K.H. twice on the telephone, and had told her that the applicant had “tried to kiss her” – which, she conceded, was different from her ultimate complaint. K.H. had told her that the applicant had been “doing this sort of thing” to others.
Jessica Nelson gave evidence that she worked at the Reject Shop where R.S. also worked. She did not know R.S. well. She recalled an occasion where R.S. had spoken to her about the applicant. She thought that the words used by R.S. were that the applicant “had tried to come on to her”. This conversation had occurred, she said, after R.S. had “finished her shift, and had been somewhere”.
J.P., the brother of the complainant M.P., also gave evidence. He said that he was the applicant’s employee at the Tandy Store for some 15-16 months commencing in mid 1999. He said he was M.P.’s brother and the boyfriend of the complainant K.W. He did not know the complainant K.G. He had met the complainant R.M., but did not know her well. He knew the complainants K.H. and R.S. from the Reject Shop. He would share morning “smoke breaks” with K.H. on the loading bay. His sister, M.P., and his girlfriend, K.W., would visit him at the store. He had “broken up” with K.W. in August 2001; but until then his relationship with her was harmonious. He gave evidence about the events after the “promotional river cruise”. On the Ring Road, the applicant had twice stopped his car and asked him to get out and “check the brake lights”. He denied that he was the one who had said that the lights were faulty. He said that “a couple of weeks” before he resigned from Tandy in December 2000, he had received a call from K.W. asking him to meet her in the “Sanity car park”. She was upset; they had been arguing earlier in the day. He said that he would meet her during the “afternoon break”; but she had asked him whether he “could come now”. Some five minutes before this call, J.P. had seen the applicant walk into the shop following an absence. The applicant had told him that he had “felt sick” and had been “throwing up”. J.P. found K.W. crying. He asked her what was wrong. K.W. told him that she had earlier rung the Tandy Store and had spoken to the applicant, who had told her that J.P. was “not available”. She said that she had told the applicant that she and J.P. had quarrelled and that the applicant had asked her to meet him “to talk about it”. She said that she had met the applicant in the store-room and that he had “come on to her”. She said that the applicant had told her that he “loved her” and “wanted to make love to her”; and that he was “touching her and kissing her” or “trying to kiss her”. She also told him about the incidents in the car following the river cruise. J.P. said that he was angry about what he had heard and “wanted to resign immediately” but that K.W. had “talked him out of it”. He did not confront the applicant, because he was scared about his position. Indeed, he said that when he returned to the store, the applicant had asked him if everything was “O.K.”; and that he had replied “Yes”., He said that he enjoyed his job with Tandy, and had an “excellent relationship” with the applicant. However, he resigned in December 2000, because “he could not stand working there with the applicant”. He had attempted to get other work at another Tandy Store.
J.P. also gave evidence that, some two weeks after he had been told by K.W. of the events which had happened to her, R.S. had visited the Tandy Store; and that he had seen the applicant leave the store with her. He had returned after some 10-15 minutes, followed some time after by R.S. She had, he said, a “scared and nervous look”. J.P. asked her what was wrong, to which R.S. replied that the applicant “had tried to kiss her in the storage cage”.
The Appeal Grounds
The applicant, as I have earlier indicated, was convicted on each of the 15 counts alleged against him. He initially applied for leave to appeal against those convictions, by notice dated 30 October 2002, on two grounds. By leave of the Registrar, given on 19 June 2003, the original grounds were substituted with a notice containing six grounds. In abbreviated form those grounds are as follows:
(i)The trial judge erred in failing to order severance of the presentment. (5 particulars substantiating this ground were given.)
(ii)A miscarriage of justice resulted from the failure to order severance of the presentment; and in particular, the evidence of each complainant was not admissible in the case of another or others.
(iii)The trial judge erred in the directions concerning the use of the evidence of each complainant in the case of the others. (Particulars were given of the asserted erroneous directions.)
(iv)The trial judge erred in his directions to the jury concerning separate consideration of each count. (Particulars were given.)
(v)The trial judge misdirected the jury as to the mental element in relation to counts 1, 11, 12, 14 and 15 (indecent act with a child under 16); and in particular, he directed that:
“An act is wilful for the purposes of this offence either in that the accused intended to perform the act alleged or did so reckless as to the consequences of his act.”.
(vi)The verdicts of guilty on counts 1, 4 and 5 are unsafe and unsatisfactory; and in particular, no jury acting reasonably could have come to the conclusion that the activity said to found the count in each case was indecent.
Grounds 1 and 2 – Severance of counts; lack of “cross-admissibility of complainants’ evidence
It is appropriate to consider these grounds together. They are complementary in the sense that the second ground asserts that the discretion to sever miscarried (ground 1) because the trial judge erred in his conclusion that the evidence of the several complainants was “cross-admissible”. Trial counsel for the applicant had applied to the judge to sever the counts as between the six complainants on the basis that the evidence to be given by each complainant in respect of the counts relating to her was irrelevant to and, thus, inadmissible in support of the counts relating to the other complainants. The trial judge rejected that application, and declined to sever the counts. He did so on the basis that the evidence to be given by each of the complainants of the conduct of the applicant in committing the alleged offences against her bore such a similarity or relationship to the conduct of the applicant alleged by the other complainants as to render the evidence of each ”mutually admissible” in the trials relating to the others. Having reached that conclusion, it became pointless – as he said – to order severance in the manner sought. In so concluding, his Honour’s discretionary exercise was consonant with principles laid down in this Court in such cases as R. v. T.J.B.[3], R. v. G.A.E.[4] , R. v. Glennon[5]. It should, nevertheless, be pointed out that where multiple sexual offences against more than one complainant have been properly joined in the one presentment in accordance with the Presentment Rules contained in Schedule VI to the Crimes Act, the discretion to sever, at least in this State, is not necessarily dictated by “mutual admissibility” or the lack thereof. The amendments to s.372 of the Crimes Act made by the Crimes (Amendment) Act 1997 (to which I have referred in paragraphs [2] and [3] above) were introduced to ensure that trial judges carefully considered whether severance was necessary even where the judge concluded that the evidence of complainants was not “cross-admissible”. Those amendments introduced sub-sections (3AA) and (3AB) into s.372. Sub-section (3AA) provides that:
[3][1998] 4 V.R. 621 at 626-7, per Callaway, J.A.
[4][2000] 1 V.R. 198 at 205 per Callaway, J.A.; at 212-3 per Chernov, J.A.
[5][2001] VSCA 17 at [99] per Callaway, J.A.; with whose reasons the President and Ormiston, J.A. concurred.
“Despite sub-section (3) and any rule of law to the contrary, if in accordance with this Act, two or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together”;
and sub-section (3AB) provides that:
“The presumption created by sub-section (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.”
As this Court pointed out in R. v. K.R.A.[6], these amendments make it appropriate that severance of the presentment :
“should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of R. v. Christou[7].
In particular, the Court pointed out that the trial judge should consider whether potential prejudice could be overcome by appropriate directions, bearing in mind that juries can be trusted to heed the directions of the trial judge.
[6][1999] 2 V.R. 708 at 715 per the President, Brooking and Ormiston, JJ.A.
[7][1997] A.C. 117 at 129. The leading judgment was given by Lord Taylor of Gosforth who, adopting the reasoning of Lord Lane, C.J. in R. v. Cannan (1990) 92 Cr.App.R. 16, took the view that the statute gave the trial judge an undoubted discretion and that to hold that, in sexual offence cases, it should be exercised in a particular way was an unnecessary fetter on the discretion. The “essential criterion” was “a fair resolution of the issues” which involved not only fairness to the accused but also to the prosecution and its witnesses. His Lordship referred to the decisions of the High Court in De Jesus and Sutton (supra).
Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s.372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will – in most cases – be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton (to which I have referred in [3]) will remain influential in this State.
In this application, Mr. Priest submitted that the trial judge erred in his conclusion that the evidence of the complainants was cross-admissible, and that, accordingly, his discretion not to sever had miscarried. In its essence, the applicant’s contention was that the judge should have ordered separate trials in respect of the counts relating to each complainant. Mr. Priest’s submission was that there was insufficient “connecting link” or “underlying unity” between the evidence of the various complainants to warrant the judge’s conclusion that their evidence was mutually admissible. The nature of the conduct alleged was quite different Mr. Priest submitted, and a proper appraisal of the evidence should have led his Honour to conclude that the evidence of each complainant fell into its own “water-tight” compartment. When properly analysed, so Mr. Priest submitted, the conduct of the applicant described by the various complainants was quite dissimilar and that the “similarities” relied upon by the judge demonstrate nothing more than “rank propensity”. In amplifying this submission, Mr. Priest referred in detail to what he submitted were the differences between the allegations by the different complainants, and submitted that there was nothing which could be labelled as a “modus operandi” or significant similarity of conduct which would render the evidence of one complainant admissible in the notional trials relating to the others. He submitted that “similar fact” evidence, in any case, will only be received with “great caution” because the risk of prejudice is high and that, absent the “similarities” being “striking”, the evidence will usually lack the requisite probative force to render it admissible.
Questions of the type which confronted his Honour in this case are not easy to resolve; the difficulties being compounded by the fact that the trial judge had – at least at the outset of the trial – only the depositions to work from. In this State, the issue is to be determined in accordance with s.398A of the Crimes Act; a provision which was introduced into the legislation by the Crimes (Amendment) Act 1997; the same legislation which introduced the amendments to s.372. Relevantly, for the purposes of this application, s.398A provides as follows:
“(2)Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.
(3)The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of the evidence referred to in sub-section (2).
(4)Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged when considering the weight of the evidence or the credibility of a witness.
(5) This section has effect despite any rule of law to the contrary.”
The purpose and scope of these provisions was considered by this Court in R. v. Best[8]. That decision makes it clear that the purpose of the section was to displace the “no other reasonable explanation” test for admissibility of “propensity evidence” as developed by the High Court in Hoch v. R.[9] and Pfennig v. R.[10] in favour of the “just to admit the evidence despite its prejudicial effect” test enunciated by the House of Lords in Director of Public Prosecutions v. P.[11]. Evidence which is broadly described as “propensity evidence” will now be admissible provided that it is “relevant to facts in issue in a proceeding” and if the court considers that “in all the circumstances it is just to admit it despite any prejudicial effect it may have …” Issues arising as to the reliability of the evidence on account of possible collusion, collaboration or innocent infection are for the jury to decide[12].
[8][1998] 4 V.R. 603.
[9](1988) 165 C.L.R. 292 at 296.
[10](1995) 182 C.L.R. 461.
[11](1991) 2 A.C. 447.
[12]R. v. Best, supra, at 611 per Callaway, J.A.
In Director of Public Prosecutions v. P. (supra), the House of Lords was considering a case which, like this one, concerned the joinder in the one indictment of multiple sexual offences against multiple complainants. The issue was whether it was necessary, in the absence of “striking similarity” for the charges to be tried separately. The Court of Appeal, following Director of Public Prosecutions v. Boardman (supra) held that it was. The House of Lords unanimously reversed that decision. Lord Mackay of Clashfern L.C., who gave the leading judgment of the House said (at 460):
“As this matter has been left in Reg. v. Boardman, I am of the opinion that it is not appropriate to single out ‘striking similarity’ as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another.”
In so concluding, his Lordship went on (at 462):
“When a question of the kind raised in this case arises, I consider that the judge must first decide whether there is material upon which a jury would be entitled to conclude that the evidence of one victim about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms, and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called … a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.” (my emphasis)
These principles have been regularly applied in this Court in determining whether a trial judge had correctly exercised his discretion not to sever counts in cases such as this one on the basis that the evidence was admissible in accordance with the provisions of s.398A of the Crimes Act[13].
[13]cf. R. v. G.A.E, supra at pp.212-3 per Chernov, J.A.; R. v. Best, supra, at pp.610-11; R. v. Mitchell (2000) 112 A.Crim.R. 315 at 318-9 per Tadgell, J.A.; R. v P.J.O. [2001] VSCA 213, per Buchanan, J.A. at [15]-[17]; R. v. Glennon, supra, at [109]-[111] per Callaway, J.A.
Applying the principles to which I have referred, I cannot agree with Mr. Priest that his Honour was in error in determining that the evidence of the complainants was mutually admissible. In this case, the issue was whether the offences had been committed; not the identity of the person who had committed them. It was not necessary to demonstrate, as I think Mr. Priest was at times submitting, that there were “striking similarities” between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct. Although his Honour did not elaborate his reasons for his ruling as extensively as he might have, it is evident from his reasons that he was of the view that there was an “underlying unity” between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view – and I think correctly – that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy “storage room”, the toilets at the Plaza, the vehicle which he drove from his place of work or from work related functions. Whether one describes these factors as providing an “underlying unity”, or a common “modus operandi” or a “pattern of conduct” is of little consequence. The “links” were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of “infection” the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive - and in my view strongly supportive – of the evidence of others. Not only that, but – in my opinion – the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a “prejudice” to the accused. But the “prejudice” of which s.398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them. For the reasons which I have given, his Honour was entitled to conclude that the evidence of each complainant went beyond evidence of “mere propensity” as the applicant here submitted.
For the reasons stated, I cannot accept that his Honour was in error in concluding that the evidence of each complaint was probative and admissible in the circumstances. I would accordingly reject grounds 1 and 2.
Grounds 3 and 4 – Inadequacy of Directions
Mr. Priest submitted that, having refused severance of the presentment, it was critical for his Honour to properly direct the jury as to the necessity for separate consideration on each count; which in turn required proper identification of the evidence which was – and was not – admissible on each count. It was contended that his Honour should have, but did not, give “forceful and complete instruction” as to the manner in which the “cross admitted” evidence might (and might not) be used.
In support of his submissions, Mr. Priest isolated two passages from his Honour’s charge, which – as it seems to me – was otherwise a complete and carefully constructed charge calculated to address the issues which had arisen in the trial. The first of the two passages criticized by counsel appeared early in the charge when the judge was directing the jury as to the need to consider separately each count on the presentment and the evidence relevant to each count, He said:
“The next matter I want to deal with is that you are considering 15 counts here. They are being all heard together as a matter of convenience because, if you have to have 15 separate trials, there would be a fair duplication (sic) of evidence, wouldn’t there, and take a considerable amount of time. But despite that fact, that the 15 counts are being heard together, the accused is entitled to have you, and you must, deal with each count and the evidence relevant to it one by one, that is, ensuring with each count that the Crown has proved its case beyond reasonable doubt.
Of course, you should be logical and consistent in dealing with different counts and there may well be quite a degree of commonality, that is, facts that pertain to all or several counts, and those particularly apply with respect to each of the six complainants, but it would be illogical to find a fact differently in respect of different counts, so that you do need to be logical and consistent there, but even accepting that fairly commonsense proposition, it does not alter the rule which I just indicated to you, which is that you must, when deciding if the elements are made out and therefore whether the accused is guilty or not guilty, go through the counts one by one. It would be quite wrong for you simply to apply the logic, ‘Well he’s guilty of one count, so therefore he must be guilty of the others’, or the other way round, ‘He’s not guilty on one count, therefore he must be not guilty on the others’. You must consider each count and the evidence relating to it and ensure that with each count, before you bring in a verdict of guilty, that the Crown has proved its case beyond reasonable doubt.”
The second of the two passages to which counsel referred us appears in the context of his Honour’s discussion of the issues in the trial, and the evidence relating to those issues. The major issue, his Honour told the jury was:
“Did the accused do what has been alleged he did by the six complainants? You are aware that in his record of interview, he denies that he took part in any of the conduct alleged.
Then, as I say, there is also an issue in respect to a couple of offences of indecent act with a child under 16 as to whether the actual behaviour was indecent. They are the issues you should focus on as you are considering the evidence and while you are deliberating. As you are aware, there are six complainants, six girls who say that the accused man committed sexual offences upon them. What I want to turn to now is to tell you how you can, and how you cannot, use their evidence.
I have already directed you that you must consider each count and the evidence related to it separately. I further direct you – and when I say I direct you, that means that you must follow what I am telling you because it is a direction of law – I further direct you that you must not reason that if the accused committed an offence against one complainant, that he was the kind of person who was likely to have committed an offence against another complainant.
The commission of an offence charged can only be proved by the evidence relating to it. You are entitled to consider that the evidence of all the complainants taken as a whole makes it more probable that each of them is telling the truth. All their evidence may therefore be received by you as mutually supportive of their respective allegations. Here the question of collusion or collaboration between complainants is being raised; that is that they all got together to make up a consistent story.
I direct you that you must be satisfied beyond reasonable doubt that no such factor was operating, that is collusion or collaboration, before you may use the evidence of one complainant as supportive of the evidence of another complainant.”
His Honour then went on to give instruction as to the defence contention that some of the complainants had concocted or embellished their evidence as a consequence of particular assigned motives. No contention has been made in this Court that such directions were inadequate.
The essence of the criticism made of these directions was that they were too “oblique”, or too “bald” to bring home to the jury how the evidence of the complainants could, and could not, be used. No context, it was said, was given to the directions that the jury should apply “logic” and “consistency” when considering and applying common facts to different counts in respect of different complainants. Further, it was contended that it was an inadequate direction to tell the jury that they could use the evidence of “all the complainants taken as a whole” as making it more probable that each was telling the truth; and as supportive of their respective allegations. It was contended that, having ruled that the evidence of the complainants was “mutually admissible” on the basis of its “underlying unity”, his Honour was bound to tell the jury that they could only use the evidence of one in the case of another if they (the jury) were satisfied that the underlying unity existed, and that they could only use the evidence if they concluded that it revealed “similarities”, “system or pattern” or “unusual features” of a type which raised as a matter of common experience the objective improbability of the various allegations having occurred in a manner other than that being alleged by the prosecution.
I agree with Mr. Priest that, in a trial such as this where there is evidence before the jury which is capable of being misused, it is incumbent upon the judge to direct the jury as to the manner in which that evidence can be used and, more importantly, as to ways in which it cannot be used. This point was made clear by King, C.J. in R. v. Dolan[14] in a case where evidence of “uncharged” criminal conduct on the part of an accused had been put before the jury. His Honour said:
“In all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of the charges before the court, is allowed to go before a jury, it is encumbent upon the trial judge to direct the jury as to the use which they are entitled to make of such evidence and, even more importantly in most cases, the uses to which such evidence must not be put.”
That reasoning applies also in this case where the evidence of the other complainants was being led as being probative of the allegations made by each[15].
[14](1992) 58 S.A.S.R. 501 at 503
[15]R. v. Schlaefer (1984) 37 S.A.S.R. 207 at 211 per King, C.J.
However, I cannot agree that, in their context, the directions which his Honour gave transgressed those imperatives or were inadequate as has been contended. I say “in their context” because his Honour’s directions were not given in a vacuum. They were given after counsel for the prosecution and counsel for the accused had made lengthy addresses in the course of which the latter had subjected the evidence of the complainants to critical analysis, submitting that the jury should conclude that the evidence of each was unreliable. His Honour had directed the jury, in strong terms, that it was for them to determine the truth and reliability of the evidence of each witness and that, to the extent that it was rejected, it could not be used in their deliberations. It is apparent that it was in this context that his Honour directed the jury that they had to be “logical and consistent” in applying evidential facts found or not found in respect of individual complainants in determining the strength of support which the evidence of each gave to the evidence of others. This Court has not had access to a transcript of counsels’ addresses; but only to the summary made of them by his Honour. It is, however, significant that trial counsel for the applicant (a very experienced counsel in criminal trials) took no exception to the passages in the charge which are now claimed to be inadequate.
The real vice in the directions (or lack of them) given to the jury, so it was submitted, lay in the failure of the trial judge to tell the jury of the “conditions required to exist” before the jury were entitled to use the evidence of one complainant as support for the evidence of another, or to entitle them to use the evidence of the complainants, if accepted, as bearing upon the objective improbability of the six of them giving the evidence which they gave, if it were untrue. Thus it was contended that the judge, having admitted the evidence on account of its “underlying unity” was bound to direct the jury that they could only use the evidence of one if they found that such “underlying unity” existed. Thus, it was said, the jury should have been directed that they could only use the evidence if they were satisfied that it revealed the necessary “similarities” or “unusual features” or “system or pattern” such that it raised, as a matter of common sense, the objective improbability of the alleged conduct occurring in a manner other than that contended for by the prosecution.
In my opinion, the judge was not bound to give the type of direction to which I have referred in the preceding paragraph. I agree with the submission made by counsel for the respondent in this Court that the matters referred to are criteria of admissibility of the evidence of “similar fact”, and that it is no part of the trial judge’s function to invite the jury to “second guess” his determination that the evidence was relevant and admissible, and probative of facts in issue. It is the relevant purpose for which the evidence is admitted, and not the reasons for determining its admissibility, which should dictate the directions as to the use which the jury is entitled to make of it. If the judge was in error in admitting the evidence then, no doubt, an appellate court will say so and determine, on that basis, whether a miscarriage occurred. However, once the evidence has been admitted as probative of facts in issue, the function of the trial judge is to direct the jury as to the uses to which such evidence can and cannot be put. That is what the trial judge did here. He told the jury, correctly in my view, that (on the assumption that they accepted the evidence as reliable and excluded any possibility of concoction or collusion) they could use it in support of the complainant whose evidence they were considering, or as bearing upon the improbability of six persons telling similar lies. Relevantly, that was the probative force capable of being assigned to the evidence as a whole[16]. However, the judge was also bound to tell the jury that they could not engage in the impermissible use of propensity reasoning; namely that they could not reason from a finding that the accused had committed an offence against the complainant, whose evidence they were considering, that he was therefore the kind of person who was likely to have committed an offence against another. This the judge also did. I am, thus, of the opinion that the judge correctly perceived the purposes for which the evidence of all complainants could, and could not, be used, and adequately instructed the jury as to the use which they could make of that evidence; and the purpose for which they could not use it[17]. For the judge to have instructed the jury that they could only use the evidence of one complainant in support of the evidence of another if they were satisfied that there was an “underlying unity”, or a “strong similarity”, or a “common pattern or thread” between the evidence of the individual complainants would not only, in my view, have been calculated to mislead the jury; but also would have redounded to the detriment of the applicant. That, no doubt, is why trial counsel for the applicant raised no exception to the content of his Honour’s directions. So far as I am aware, directions similar to those given in this case have been given in other cases which this Court has considered[18], concerning the directions which are appropriate in cases such as this where evidence of several complainants has been admitted pursuant to s.398A Crimes Act. That, of course, is not to say that trial judges should slavishly follow “standard directions”. Directions should, as I have said, be relevant and appropriate to the issues raised in a particular trial.
[16]R. v. Best, supra, at 618, ll.30 ff.
[17]cf. B.R.S. v. R. (1997) 191 C.L.R. 275 at 301 per Gaudron, J.
[18]cf. R. v. P.J.O., supra, at [27]-[28] per Buchanan, J.A.; R. v. A.L.P. [2002] VSCA 210 (18 December 2002) per Eames, J.A. at [96].
It was further contended on behalf of the applicant that because the trial judge had told the jury that they were entitled to regard the evidence of the complainants as “mutually supportive” of their respective allegations, he was, in a sense, suggesting that the evidence of each was a “species of circumstantial evidence” and that, accordingly, he was bound to tell the jury that such evidence could only be used if it bears “no reasonable explanation other than the happening of the events in issue”. Again, as I see it, this submission is unsound because his Honour’s directions to the jury that they could regard the complainants’ evidence as “mutually supportive” was given in the context that the jury were entitled to use the evidence of the complainants, if accepted, as bearing upon the probabilities that each was telling the truth. In any event, and in the same context, his Honour told the jury that the only “reasonable explanation” being raised in opposition to that use of the evidence by the jury was that the complainants had “all got together to make up a consistent story” and had, thus, “collaborated” and colluded”, and that before the jury could make use of the evidence in the manner contended for by the Crown, they would have to be satisfied beyond reasonable doubt that “no such factor was operating”.
For these reasons, I do not accept the contention that his Honour’s directions were erroneous, or that any miscarriage occurred as a consequence of them. I would reject grounds 3 and 4.
Ground 5 – Misdirection of mental element re “indecent act”
This ground was not strenuously pressed. The trial judge had charged the jury, when dealing with the offence of “wilfully committing an indecent act with or in the presence of a child under the age of 16” (s.47 Crimes Act), that the element of “wilfully” was made out if the jury were satisfied that the accused did the act “intentionally” or was “reckless to the consequences”. In support of the ground, Mr. Priest contended that it was a misdirection to tell the jury that “wilfully” included “reckless as to the consequences of his act”. This direction, it was submitted, was largely meaningless. Whilst I think there is substance in this contention, the misdirection could have occasioned no miscarriage of justice in the trial. The issue for the jury was, as the judge told them, whether the acts occurred and, if they did, whether they were indecent. It was no part of the defence case that the complainants had misinterpreted acts of which they complained. If the jury found that the applicant had done the acts alleged by the complainants, they could not have reasonably concluded otherwise than that they were intended. I understood that it was for this reason that Mr. Priest conceded that the ground was “not his strongest one”. In my opinion, it should be rejected.
Ground 6 – Unsafe and unsatisfactory
It was finally argued in support of the application that the convictions recorded on counts 1, 4 and 5 were unsafe and unsatisfactory. Count 1 was the alleged offence of “committing an indecent act” with K.G.; and counts 4 and 5 were those which alleged the indecent assaults of K.W. The indecent act alleged in count 1 was the “pulling of K.G. between the applicant’s legs whilst he was seated on the pole in the car park, and kissing her on the cheek”; and the indecent assaults alleged in counts 4 and 5 comprised the applicant placing his hand on the thigh of K.W. on two occasions whilst they were in his car returning from the “river boat function”. It was the applicant’s contention that it was not open to find any of this conduct “indecent”, absent evidence of any indecent contact with the applicant’s genital area (count 1); and absent evidence of the applicant’s hand moving into close proximity of K.W.’s groin (counts 4 and 5).
There is no dispute that the judge correctly directed the jury that, to be “indecent” for the purposes of the respective offences, the jury had to be satisfied that the act was committed “in circumstances of indecency” and that it was for the jury to determine whether the act was “indecent” by applying the ordinary standards of the community.
For the verdicts to be set aside by an appellate court on the ground that they are ”unsafe”, the Court must conclude that, upon the whole of the evidence, it was not open to the jury, properly instructed, to be satisfied that the accused was guilty[19]. In applying this test, the Court cannot disregard the fact that it is the jury which is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of seeing and hearing the witnesses[20].
Applying these principles, I do not regard these verdicts as unsafe. It was, in my view, well open to the jury to find that the acts of pulling a 15 year old girl between his legs and kissing her on the cheek in circumstances where the accused and the victim were in an isolated car park and the victim was resisting, were acts committed in circumstances of indecency. Likewise, in my view, it was open to the jury to find that the placing of the hand of the accused on the thigh of K.W, and sliding it up towards the groin on the two occasions where J.P. had been asked to leave the car to “check the brake-lights,”, were also acts of “indecency” in accordance with the instructions which the jury had been given. There is nothing in the decisions relied
upon by the applicant of R. v. Harkin[21] or R. v. Court[22] which would lead me to the contrary view. Accordingly I would reject this ground.
[19]M. v. R. (1994) 181 C.L.R. 487 at 493).
[20]Chamberlain v. R. [No.2] (1984) 153 C.L.R. at 532, 621.
[21](1989) 38 A.Crim.R. 296.
[22](1988) 87 Cr.App. R.144.
I would, accordingly, dismiss the application for leave to appeal against conviction.
ORMISTON, J.A.:
Having had the benefit of reading the reasons for judgment of the President I agree that this application should be dismissed.
BUCHANAN, J.A.:
I agree that the application for leave to appeal against conviction should be dismissed for the reasons stated by the President.
28