R v Rajakaruna

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 111 of 2002

THE QUEEN
	v.
SANJEEWA GAYAN RAJAKARUNA

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JUDGES:	CHERNOV and EAMES, JJ.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2004
DATE OF JUDGMENT:	23 June 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 114	1^st Revision – 29 June 2004

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CRIMINAL LAW – Admission of “similar fact” evidence – Test of admissibility – Applicant charged with sexual offences against four street prostitutes over a one month period – Offences of rape as to two complainants and offences of procuring (or attempting to procure) sexual penetration by fraudulent means, as to two other complainants – Crimes Act 1958 (Vic.), ss.38(1), 57(2), 321M, 398A.

CRIMINAL LAW – Directions of trial judge as to use of “similar fact” evidence.

CRIMINAL LAW – Direction as to unanimous verdict – Whether direction obligatory – Effect of s.46 Juries Act 2000.

CRIMINAL LAW – Whether verdict on fraudulent procurement offences unsafe or unsatisfactory or not supported by evidence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	Anthony Isaacs

CHERNOV, J.A.:

I have had the benefit of reading the draft reasons for judgment of Eames, J.A., with whom Smith, A.J.A. essentially agrees. As will become apparent, I have reached different conclusions from those of the other members of the Court in respect of grounds 9 and 10, and grounds 1(b), 10 and 12, of the applicant’s application for leave to appeal against conviction. In the circumstances, it is sufficient if I state only briefly the reasons for my conclusions. The relevant facts and circumstances are dealt with comprehensively by Eames, J.A., so that I shall only set out such of them as I consider necessary to give context to my analysis of the issues. I shall adopt the same initials in respect of each complainant as are used by Eames, J.A.

The applicant, Sanjeewa Gayan Rajakaruna, was convicted on 16 April 2002 by a jury, after a trial in the County Court at Melbourne, of four counts of rape, two counts of assault, one count of procuring sexual penetration by fraudulent means and one count of attempting to procure sexual penetration by fraudulent means, in respect of four complainants who were then prostitutes. The offences occurred between 27 September and 31 October 2000, when the applicant was aged 22 years. On 3 May 2002 the applicant, who had no prior convictions, was sentenced in respect of these offences to a total effective sentence of nine years and six months’ imprisonment. He was ordered to serve seven years’ imprisonment before being eligible for parole. He now seeks leave to appeal against conviction and sentence on a number of grounds, to which I shall refer later.

The applicant’s offending conduct in respect of the four complainants had a number of common features, which are fully identified and described in the reasons of Eames, J.A. For present purposes, it is sufficient to note only their essential aspects. At the time of the offending each complainant was, as I have mentioned, a prostitute, who worked on streets in a particular area of St. Kilda. In each case, the applicant drove up to the complainant, in the afternoon, in his Lexcen car, and negotiated with her a price for various sexual services that he sought, after which he drove the complainant to a location of his choice, being a garage beneath a block of flats in the St. Kilda area. In two cases the complainant had suggested that the applicant come to a room that she had available, but he declined the invitation and instead took her to a garage of his choosing. On each occasion the complainant asked that she be paid before she gave her sexual services, but the applicant refused, giving various excuses for not paying in advance. As a result, an argument ensued and in the case of all but one of the complainants, the applicant persisted in having sex with her, either by force or by fraud, but not paying for it as he had agreed to do.

More specifically, in the case of S.G.B., after she and the applicant argued as to whether she would have sex with him before she was paid, the applicant compelled her to get into the back seat of his car where he grabbed her around the neck – count 1: common assault – then ripped off her underpants and penetrated her vagina with his penis – count 2: rape. He then threatened to kill her – count 3: threat to kill. Later, he threw four $10 notes at the victim, telling her to get out of the car and not to look behind her otherwise he would break her neck.

In the case of the complainant T.N.M., when she refused to engage in sex with the applicant unless she was first paid, he put his wallet on the centre console in the front seat to show that he had money to pay her, implying that he would do so after sex. In the belief that she would be paid, T.N.M. engaged in sexual conduct with the applicant but, as Eames, J.A. explains, he did not pay her for her sexual services. These circumstances were the subject of count 4: procuring sexual penetration by fraud.

The complainant K.F. also insisted that she be paid before she had sex with the applicant. Her demand was not met. Instead, the applicant sought to touch her in a sexual manner – count 4: attempting to procure sexual penetration by fraud – but the complainant rejected his advances and insisted on being driven back to St. Kilda, threatening that she would otherwise make a scene. The applicant then drove her. back to St. Kilda. When they arrived, T.N.M. approached the car and told K.F. to get out or the applicant would rape her.

The complainant R.L.M. undressed in the back seat of the applicant’s car in preparation for their sexual relation and then told the applicant that she would not have sex with him unless she was first paid. The applicant refused to pay her. He took hold of R.L.M.’s neck with both hands and pushed her down to the floor and, as she attempted to scream, he tightened his grip. These circumstances were the subject of count 6: common assault. After a struggle, R.L.M. said she would do what the applicant wanted. He then penetrated her vagina with his penis. This was the subject of count 7: rape. Thereafter, the applicant effectively forced R.L.M. to perform oral sex on him – count 8: rape. He then rolled her over on her stomach and again penetrated her vagina with his penis – count 9: rape. The applicant gave R.L.M. $5 and then drove her a short distance towards St. Kilda, where he told her to get out of his car.

The applicant was arrested on 2 November 2000. He denied all allegations of rape and assault, agreeing at first only that he had sexual relations on two occasions with two women he picked up in St. Kilda. This was a reference to S.G.B. and R.L.M. He later agreed that he had sexual relations with T.N.M. The applicant denied, however, being asked for money by the complainants before they had sex. In relation to K.F., the applicant’s case was that they were unable to reach agreement about payment and he “returned her to the St. Kilda area”. I note for completeness that, as Eames, J.A. points out in his reasons, the position adopted by the applicant at his trial was, in part, inconsistent with what he asserted in his record of interview with the police. Be that as it may, the critical issue before the jury was not the identity of the offender but whether the offences occurred, more particularly, in the case of the rape counts and count 4 (procuring sexual penetration by fraud), whether the complainants had consented to the applicant’s sexual conduct towards them.

I now turn to consider the relevant grounds on which the applications were based.

Grounds 9, 10 – Cross-admissibility of complainants’ evidence

The key issue raised by grounds 9 and 10 is whether the evidence of each complainant was admissible in the prosecution’s case against the applicant in relation to other complainants. The trial judge had ruled that it was admissible and the applicant contends, under cover of these grounds, that his Honour erred in admitting, what the applicant says was “similar fact” evidence. After a comprehensive analysis of the issues raised under this ground, Eames, J.A. concluded that the evidence of T.N.M. and K.F. was not admissible in relation to the counts involving S.G.B. and R.L.M. and visa versa, and that the learned trial judge erred in ruling otherwise. Smith, A.J.A essentially agreed with his Honour. Notwithstanding the force of Eames, J.A.’s reasoning, which I respectfully acknowledge, I consider that the learned trial judge was correct in determining that the evidence of each complaint was cross-admissible in relation to the charges involving the other complainants. Given my dissent on this issue, as I have said, it is necessary for me to state only briefly the reasons for my conclusion.

It is clear enough that the evidence in question is propensity evidence, but s.398A(2) of the Crimes Act 1958 makes such evidence admissible if it is relevant to a fact in issue and the court considers that, in all the circumstances, it is just to admit it notwithstanding its prejudicial effect. For the reasons that I explain below, I consider that the real question here is whether the evidence of one complainant, if led in support of the Crown’s case in respect of the other complainants, demonstrates no more than a propensity on the applicant’s part to engage in such offending conduct, or whether it is supportive of the evidence of each of the other complainants’ claims as to what the applicant did to her – put another way, whether it is more likely that she is telling the truth. In my view, if the evidence is characterised as being so supportive of the evidence of the other complainants, it is ordinarily admissible if the strength of its support is such that it would be just to admit it notwithstanding its apparent prejudicial effect.

The purpose and scope of s.398A of the Crimes Act, and the circumstances when cross-admissibility of propensity evidence is permitted, were considered by this Court in a number of cases, more particularly, in R. v. Best[1] and recently, by Winneke, P. in R. v. Papamitrou[2]. In the latter case the learned President, with whom Ormiston and Buchanan, JJ.A. agreed, cited[3] with approval of the following passage from the speech of Lord Mackay of Clashfern L.C.[4]:

“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.”

[1][1998] 4 V.R. 603.

[2][2004] VSCA 12.

[3]At [30].

[4][1991] 2 A.C. 447 at 462. In that case the House of Lords considered the propriety of joining in one presentment multiple sexual offences against multiple complainants. The issue in that case, said Winneke, P., was whether it was necessary, in the absence of “striking similarity”, for the charges to be tried separately.

In the present case - as in Papamitrou – the issue was, as I have noted, whether the offence was committed; not the identity of the offender as it was the case in R. v. Tektonopoulos[5]. In such circumstances, as Winneke, P. emphasised in Papamitrou, it is not necessary to demonstrate, before the evidence in question can be admitted, that there was “striking similarity” between the conduct engaged in by the applicant and each complainant. The essential question is, as I have noted, whether there was sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one supportive of the evidence of each of the other such as to make it just to admit it notwithstanding its prejudicial effect. More particularly, as I have said, in the context of the present case, the question is whether the evidence of one complainant as to what the applicant did to her so relates to the evidence of another complainant as to the applicant’s conduct towards her, that the evidence of the first complainant lends such credibility or support to the evidence of the other, in the sense of making it more likely to be accepted, that it makes it just to admit it notwithstanding its prejudicial effect.
[5][1999] 2 V.R. 412.

I have summarised what I consider to be the common features of the applicant’s conduct, whereby he sought to have sexual relations with each of the complainants on his terms, that demonstrate an “underlying unity” in that evidence, or put another way, a pattern of conduct on his part. It is apparent that the applicant employed, in each case, a similar method of enticing the prostitute to come with him in his car, then driving her to a place of his choosing and then refusing to pay in advance for her sexual services but nevertheless forcing himself on the victim and, in the end, not paying her as they had agreed. In my view the links between the evidence of the various complainants as to those matters was such as to justify his Honour coming to the conclusion that the evidence of each complainant was strongly supportive of the evidence of other complainants as to what the applicant did to them and, thus, was admissible. In my view, the evidence of each was strongly probative and outweighed the prejudice to the applicant that flowed from its admission. It is probably invariably the case that such probative evidence is prejudicial to the offender, but as Winneke, P. pointed out in Papamitrou[6], it is not that type of prejudice against which s.398A of the Crimes Act guards, but rather prejudice which flows from evidence of “mere propensity”. It is apparent from what I have said that I consider that the evidence of the complainants here as to the applicant’s modus operandi was not “mere” propensity evidence.
[6]At [31].

I mention for completeness that, in my view, it is not relevant for present purposes that T.N.M. and K.F. were not raped by the applicant and that, in the case of K.F., the applicant drove her back to St. Kilda. I consider that the evidence of each of T.N.M. and K.F. as to the applicant’s modus operandi was supportive of the evidence of each of S.G.B. and R.L.M., and vice versa, and that the “support” was of such strength that it was just to make it cross-admissible.

For these reasons, I consider that his Honour did not err in admitting the impugned evidence. I would, therefore, reject grounds 9 and 10.

Grounds 1(b), 10, 12 – Inadequacy of directions

By way of grounds 1(b), 10 and 12 it is claimed that, even if the evidence of the complainants was cross-admissible, his Honour erred in the directions he gave to the jury as to the use to which they could put that evidence when considering whether the applicant had committed each of the offences to which he had pleaded not guilty. The applicant’s more specific criticism of the judge’s charge is examined in some detail by Eames, J.A. in the reasons for judgment. His Honour concludes that the judge’s directions were inadequate, essentially as was contended for on the applicant’s behalf. Since I have come to a different view on this issue I will state only briefly the reasons for my views. I consider that his Honour’s directions accorded with the principles stated by Callaway, J.A. in Best and by King, C.J. in R. v. Dolin[7]. In particular, I consider that the judge gave strong and clear separate consideration directions and that he clearly directed the jury not to engage in “propensity reasoning”. Moreover, his Honour explained specifically that they were not to use, in determining the counts in respect of one complainant, the evidence of the other complainants as to the applicant’s modus operandi, other than for the limited purpose that his Honour made clear to them. I agree, with respect, with Eames, J.A. that the “underlying unity” evidence in particular was capable of being misused by the jury and, therefore, it was incumbent on the trial judge to direct them, not only as to the manner in which the evidence could be used, but also as to the ways in which it could not be used. But I consider that, having regard to the charge as a whole, his Honour did not fail to give such a direction. In my view, the jury would have understood the limited nature, and the permitted use, of the modus operandi evidence and that, if they concluded that the applicant offended against some of the complainants, they were not permitted to reason that he was, therefore, the kind of person who was likely to have committed the offence that they were considering. More specifically, I think that the judge explained sufficiently to the jury that they must not substitute evidence of some other incident that was not the subject of the count they were then considering – and that was plainly a reference to the applicant’s conduct in respect of other complainants – for the evidence in support of the count in question. Importantly, as I have already mentioned, his Honour directed the jury that, although they could use the modus operandi evidence in considering the probability or improbability of the offence in question having occurred, they were not permitted to engage in “propensity reasoning”.
[7](1992) 58 S.A.S.R. 501 at 503. See also Papamitrou per Winneke, P. at [37]-[41].

In the circumstances, I consider that his Honour’s charge was not deficient as the applicant alleges. Consequently, I would reject these grounds.

Ground 2 – Failure to direct unanimous verdicts

It seems plain enough that, as ground 2 complains, his Honour did not direct the jury that their verdicts had to be unanimous and, as Eames, J.A. explains, the judge was mistaken in his recollection of what Tadgell, J.A. said in R. v. Mitchell[8] about the requirement for such a direction. I agree with Eames, J.A., however, that, for the reasons he gives, although his Honour should have given such a direction, the jury were not left without any assistance on the matter and that, in all the circumstances, the failure to give a unanimity direction did not amount to a fundamental omission that went to the root of the trial.
[8](2000) 112 A.Crim.R. 315 at 320.

Grounds 8, 17, 18 – Verdicts on counts 4, 5 unsafe, unsatisfactory

As to grounds 8, 17 and 18, for the reasons given by Eames, J.A., I consider that there is no substance in these complaints.

Application for leave to appeal against sentence

The applicant claims that the sentence is manifestly excessive (ground 1) and that his Honour erred in taking into consideration that the applicant continued to deny the offending despite the jury’s verdict (ground 2). As to the latter ground, I consider that his Honour’s reference to the applicant’s continued denial of the offending was no more than a recognition by his Honour of lack of remorse on his part for his serious offending conduct. Lack of remorse is obviously a relevant matter for sentencing purposes in the sense that it disentitles the offender to any sentencing discount that would have been available had there been evidence of remorse. Read fairly, the sentencing remarks make it plain that that is what his Honour meant when he referred in them to the applicant’s continuing denial of his offending conduct. I consider that it cannot be properly said that his Honour treated the applicant’s continuing attitude on this issue as an overriding factor by reason of which a higher sentence was imposed than would otherwise have been the case.

The question whether the sentence is manifestly excessive translates into whether it is beyond the range of sentences that was reasonably open to his Honour. This issue does not admit of much debate. The judge’s task in sentencing the offender was to impose a sentence that reflected the gravity of the offence and of the offending conduct, balanced against the applicant’s personal circumstances and other mitigating factors and taking into account relevant sentencing principles. That his Honour carried out this task is apparent from the sentencing remarks. The applicant’s offending conduct was undoubtedly very serious. It was, in many respects, premeditated and cowardly, being directed at "soft targets" over whom he

had physical superiority. Such offending took place over a period of one month and came to an end only shortly before he was arrested. At best, the applicant treated his victims with disdain. The offences here were, as I have said, also very serious. In particular, rape is one of the most serious offences in the criminal calendar, attracting a maximum penalty of 25 years’ imprisonment. As to the applicable sentencing principles, denunciation by the court of the applicant’s conduct, just punishment and general deterrence were important principles in the sentencing disposition. Specific deterrence could not be considered as irrelevant. It is true that there were a number of important mitigating factors that were present, but all of them were considered by his Honour and taken into account. On balance, I am not persuaded that the sentence is outside the relevant range.
Conclusion

For these reasons, I would dismiss the applications for leave to appeal against conviction and sentence.

EAMES, J.A.:

These are applications for leave to appeal against conviction and sentence. On 16 April 2002 the applicant Sanjeewa Gayan Rajakaruna was found guilty by a County Court jury on two counts of assault contrary to common law, four counts of rape contrary to s.38(1) of the Crimes Act 1958, one count of procuring sexual penetration by fraudulent means, contrary to s.57(2) of the Crimes Act and one count of attempting to procure sexual penetration by fraudulent means contrary to ss.57(2) and 321M of the Crimes Act. The offences involved four separate complainants all of whom, at the time of the offences, were working as street prostitutes in St. Kilda.

The offences were alleged to have occurred in a period of about one month, between 27 September 2000 and 31 October 2000. In each instance the complainant was approached by the applicant who was driving a gold-coloured Lexcen. Each

offence occurred in the vicinity of Grey and Barkly Streets, St. Kilda and in all instances the approach was made at about 3 p.m. in the afternoon.

The applicant was acquitted on count 3 (threat to kill) and convicted on the remaining counts. After hearing submissions on sentence the trial judge imposed the following sentences:

Count 1           Common assault  1 year’s imprisonment
Count 2           Rape  6 years’ imprisonment
Count 4           Procuring sexual penetration      2 years’ imprisonment
Count 5           Attempting to procure                  1 year’s imprisonment
sexual penetration

Count 6           Common assault  1 year’s imprisonment
Count 7           Rape  6 years’ imprisonment
Count 8           Rape  6 years’ imprisonment
Count 9           Rape  6 years’ imprisonment

His Honour ordered that three months of the sentence on count 5, three months of the sentence on count 6 and 12 months of the sentences on each of counts 7, 8 and 9 be served cumulatively on the sentences imposed on count 2 and upon each other. The total effective sentence was 9 years 6 months’ imprisonment and his Honour ordered the applicant to serve a minimum period of 7 years before being eligible for parole. The Court recorded that the applicant was sentenced as a serious sexual offender in respect of counts 5, 7, 8 and 9. Seventeen days pre-sentence detention was declared.

Counts 1, 2 and 3

The first three counts all concerned the complainant “S.G.B”. On count 1 (common assault) and count 2 (penile/vaginal rape) the jury recorded guilty verdicts, but on count 3 (threatening to kill) the applicant was acquitted.

S.G.B. gave evidence that on the day of the offence (which she said occurred at a time somewhere within September/October 2000) she had been standing on the corner of Eildon and Grey Streets, St. Kilda, when a man drove up in a motor vehicle. There was no dispute as to the identity of the applicant with respect to any of the charges on the presentment. S.G.B. opened the door of the car and the applicant asked her what were her prices for various sexual services. It was agreed that for a price of $50 she would perform oral sex and the applicant told her that he had a place in mind where they could go for that service to be performed. They drove away from the intersection and the applicant parked the car underneath a block of flats on the corner of Park and Cowderoy Streets. The complainant asked the applicant for payment prior to having sex with him. He said he would not pay her before having sex.

An argument then developed and the complainant told the jury that the applicant grabbed her by the throat and pushed her down in an area between the front and back seats. The applicant then undressed himself but maintained a grip to the neck of the complainant with one hand. S.G.B. said that the applicant told her that he would kill her if he wanted to. When she struggled the applicant gripped her harder. The applicant penetrated the complainant’s vagina with his penis, after ripping off her underpants. He refused the complainant’s request that he wear a condom and he refused to stop when she asked him to do so and warned that he would kill her if she was not quiet. The applicant ejaculated on the stomach of the complainant then gave her tissues, so as to clean herself.

After concluding the attack the applicant threw four $10 notes at the complainant, she said. As she left the car she got a pen from her bag in order to write down the registration number of the car. The applicant broke the pen, took hold of the complainant and told her to look straight ahead or he would break her neck. He then walked her away from the scene and told her not to look behind.

The complainant returned to Grey Street where she saw Adam Geoghegan, who acted as her “spotter” or minder. She complained to him that she had been raped and showed him bruises to her neck. She said that she had been held around the neck. The complainant later reported the matter to police.

In cross-examination the complainant agreed that the applicant had negotiated her price for oral sex down to $40. She had been willing to perform oral sex for that price. When she insisted on being paid in advance he had then held her by the throat and had forced her to have vaginal sex. She denied that she had consented to vaginal sex for a price of $40. He had not worn a condom.

A witness, Allan Buck, who had been inspecting a flat in the block had walked into the car park beneath the building whereupon he heard a scream coming from a car, the windows of which were fogged. He made a note of the car’s number-plate in his diary, being that of the vehicle driven by the applicant. A real estate agent, Penelope Short, joined Buck in the car park and whilst they were together Buck said they saw a girl get into the front seat of the car from the rear seat. Buck said that the girl in the car was not being physically restrained nor did she call out or gesture to him. She looked embarrassed.

Ms Short gave evidence consistent with that described by Buck and agreed with Buck that the girl in the car looked embarrassed, but no one was holding her arms or restraining her, nor did she signal for assistance.

Adam Geoghegan, who was the spotter for the complainant, confirmed that she had appeared upset after returning to the intersection and he believed she had said that she had been hurt. She had red marks on her neck. She told him that the man had not wanted to pay her in advance and as she was attempting to depart he had attacked her, dragged her down, held her down by the throat and had raped her. In cross-examination he agreed that the complainant was not crying when she returned and agreed also that she may have said that the man had told her he would pay her less than she required.

Count 4

This count alleged that between 1st and 14^th October 2000 the applicant procured “T.N.M.” to take part in an act of sexual penetration by fraudulent means, namely, by falsely representing that he would pay for sexual services.

T.N.M. gave evidence that in October 2000 while working as a prostitute in Carlisle Street, St Kilda, a person, later identified as the applicant, approached her in his vehicle and asked her the prices for her services. She told him that she charged $80 for performing both oral sex and straight sex, and $50 for oral sex alone. The applicant agreed on those prices. T.N.M. suggested they go to a place that she knew but the applicant refused and said that he had a place which he used, and drove her to a block of flats in the Elwood area. The applicant drove into a car-parking space beneath the flats and a further conversation about price took place. The applicant showed T.N.M. that he had money in his wallet. They agreed that he would have oral and vaginal sex for a price of $80. The applicant said to T.N.M. that prostitutes had ripped him off in the past and he would like to pay afterwards. T.N.M. said she wanted to be paid in advance, in case he did not pay her. The applicant placed his wallet on the console between the two seats and said he would pay “once the job’s done”.

T.N.M. then performed oral sex followed by vaginal sexual intercourse with the applicant. The applicant used a condom. When they had concluded the applicant got dressed and moved into the front seat of the car. The complainant did likewise and they drove down Barkly Street, whereupon the complainant said that she wanted to be paid. The applicant said that he would have to get change from the 7-Eleven shop in Barkly Street and he stopped the car outside that shop. The applicant told T.N.M. that she had to also leave the car and they both did so. As they approached the store the applicant said he had to return to the car because he had left something and when he did so he got into the car, locked the doors and drove off. She said that she would not have agreed to have sex with the applicant had she known he would not pay her.

In cross-examination she agreed that the applicant’s wallet had remained on the console while they were having sex. She said he grabbed it when he was getting dressed. T.N.M. said she did not see the denomination of the notes and agreed that it could have been true that he was going to get change, as he had said, in order to pay the $80. She agreed that it was not until the applicant returned to the car, leaving her outside the car, that she realized he was not going to pay her.

Count 5

In count 5 the Crown alleged that between 1 October and 31 October 2000 the applicant attempted to procure “K.F.” to take part in an act of sexual penetration by fraudulent means namely, by falsely representing that he would pay for sexual services. K.F. gave evidence that in October 2000 she was working on Carlisle Street when a man drove up, that man being the applicant, and told her that he wanted to have straight sex. K.F. got into the car and the applicant drove away. K.F. asked him to stop the vehicle near the corner of Foster and Carlisle Streets and told him that she had a room nearby where she took clients. They then discussed prices. K.F. told him that it would be $100 for straight sex. The applicant said that was what he wanted. He did not argue about the price. The applicant said that he did not want to go to the room used by the complainant because he had been ripped off before. He then drove towards Elwood and stopped in a laneway off Dickins Street whereupon he backed the car under a block of flats. The applicant and K.F. then got into the back seat of the car and she asked him for the money. The applicant said he would give her the money after the job was finished. He told her he had been ripped off before and he felt safer giving her the money after sex. The complainant expressed doubt to him that he had the money to pay her. The applicant opened his wallet and it appeared to contain only $20. The applicant was pleading with K.F. and started touching her on the upper thigh and breast. She refused to have sex with him, however, without first being paid and she demanded that he take her back to St Kilda. After about 20 minutes the applicant drove the complainant back to Carlisle Street where she departed the vehicle.

In cross-examination she agreed that the applicant was neither abusive nor had he used any physical violence.

Counts 6, 7, 8, 9

All of these counts involved the complainant “R.L.M.”. Count 6 was common assault, count 7 was rape (penile/vaginal), count 8 was rape (penile/mouth) and count 9 was rape (penile/vaginal).

R.L.M. gave evidence that on 24 October 2000 whilst working as a prostitute in Carlisle Street, she was approached by the applicant, who was driving a vehicle, and they discussed prices and services. R.L.M. told the applicant that the price was $50 for oral sex, $80 for vaginal sex and $100 for both. The applicant said he wanted sex (i.e. vaginal sex) but said he would not go to the room which the complainant had for the purpose because he had had a bad experience in the past where he had been robbed. After discussing prices in the vehicle the applicant made a U-turn then drove down Carlisle Street and into Fitzroy Street, then into Park Street. Eventually he drove underneath a block of flats.

The applicant and R.L.M. had a general conversation in which R.L.M. said she was studying psychology and the applicant said he was working as a part-time salesman. When he first stopped in the parking bay under the block of flats an elderly man approached the vehicle and told the applicant he could not park there, so the applicant moved the car to another space, whereupon they were approached by the same man who once again asked if they had permission to park there. R.L.M. spoke to the man during which time the applicant got out of the car. R.L.M. persuaded the man that they were visiting a friend in the block of flats and the elderly man then departed. The applicant then returned to the car and R.L.M. observed that his penis was out of his pants. R.L.M. got undressed in the front seat of the car and obtained a condom and lubrication, then they together moved to the back seat of the car. R.L.M. asked for the money and the applicant said he would pay her afterwards. She said she wanted the money first and he said that he had been robbed in the past and he wanted to pay her after the sex was completed.

The applicant then started to kiss the complainant, who pulled away and again demanded payment of the money. The applicant said he would give her $20 now and the rest later. He then admitted to her that he did not have the money to pay and said he would have to go to the bank. R.L.M. said she wanted him to do so first, but the applicant again said that he would pay afterwards. R.L.M. then asked to be taken back to St Kilda and moved to collect her clothes, whereupon the applicant grabbed her by the arm. As she tried to get out of the car the applicant put his hands around her neck and overpowered her telling her to “just fucking co-operate”. He loosened his grip momentarily and she screamed and he gripped her again more tightly. She then said that she would co-operate. The applicant put his penis into her vagina for a few minutes and then put his penis into her mouth and told her to suck it. R.L.M. was crying and was very upset. After a couple of minutes the applicant then put his penis once again into the complainant’s vagina and told R.L.M. that he had ejaculated. Throughout these events the applicant refused to wear a condom.

The applicant then tipped everything out of the complainant’s bag and looked at her driver’s licence, commenting on where she lived. They then both got dressed and the applicant drove her back towards Fitzroy Street and stopped the car. He checked her neck and under her nails and told her to get out of the car and said to her that she would not go to the police about it because what she was doing was illegal. As she got out of the car the applicant said, “No hard feelings”.

R.L.M. said she hailed a taxi and returned to her room in Carlisle Street where she saw a friend. She was shaking and hysterical. She told her friend that she had been raped by a client. She then visited the home of David Short, the father of her daughter, to whom she said she had been raped by a client. She told him she had been strangled and raped and that she wanted to report it and, after going to a support centre, then went to the Royal Women’s Hospital where she was examined by a doctor.

In cross-examination R.L.M. agreed that she would not take her clothes off until agreement had been reached about a price and she conceded that once she had returned to the front seat the applicant was not then restraining her, and yet she did not attempt to escape from the car. R.L.M. said that she had asked the applicant for money and he had given her $5. It was put to her that she had consented to the sexual intercourse, the prices for the services having been agreed ranging from $50 to $100 but then, having agreed to pay her the applicant only paid her $5 and she was so upset about that that she made false allegations of rape and assault against him. She denied those suggestions. She denied that the marks to her neck had been caused by someone else after she had left the company of the applicant.

David Short gave evidence of a conversation with R.L.M. at about 9.00 or 10.00 p.m. that evening. At first she would not say what was wrong but she was distressed and crying and then had told him she had been raped under a block of flats. She said that the man had gone psycho, grabbed her by the throat and told her he would cut off the blood to her brain and kill her. She said she had been pleading with him not to kill her as she had a two-year-old daughter. Short said that he noticed red marks on R.L.M.’s neck. R.L.M. told him that the man had ejaculated inside her and had forced her to have sex without a condom.

Dr Amanda Wilkin gave evidence of her medical examination of R.L.M. on 25 October at 12.50 a.m. where she found a collection of abrasions and bruising on R.L.M.’s neck, and to her face, arms and body consistent with the attack she alleged. She examined the anal and genital areas and found no identifiable injuries. The fact that no injuries were found neither confirmed nor refuted the allegations of vaginal penetration, the witness said. In cross-examination, she said that the complainant had told her that there was one incident of oral sex and one incident of vaginal sex.

DNA profiling evidence was consistent with the applicant having had intercourse with R.L.M.

The applicant was arrested on 2 November. In an interview with Detective Senior Constable Pixie Fuhrmeister the applicant denied all allegations of rape and assault, although he agreed that he had sexual relations on two occasions with women he had picked up in St Kilda, the first of whom, the Crown alleged, was S.G.B and the second being R.L.M.

He was interviewed first about the allegations made by R.L.M. The applicant agreed in the interview that he had picked up a girl in Carlisle Street, St Kilda but said he did not realize that she was a prostitute. He had been going to the bank in Carlisle Street when he saw a girl smiling at him and upon him stopping she got into the car and introduced herself and he had a conversation about her studying psychology at Monash University. They then drove to a car park under some flats where they had consensual vaginal sex in the rear seat of his vehicle. He had worn a condom, in response to her request that he do so, but it had broken during sex. He then said he was clean and she said that she was too. The woman asked that he not ejaculate inside her and he did not do so.

The woman did not ask him for money before they had sex, nor did she say anything about prices for sexual services. After sex they talked for a while. The woman wanted him to stay with her, like a friend. The applicant agreed that he had earlier shown the woman that he had $30 in his wallet. He had done so when she asked what he wanted to do “afterwards” and he said that he would take her for a coffee. After they had sex and were talking the woman asked him if he could give her $5 for food and he agreed. He denied that the sex was not consensual and denied that he assaulted or threatened the complainant. He denied ejaculating into the complainant’s vagina and said that he had used a condom.

When questioned about the complaints made by S.G.B. he admitted that on a previous occasion he had picked up another girl on the corner of Eildon and Grey Streets, St Kilda. He had stopped his car and she got in. He did not know she was a prostitute. They went for a drive and then stopped near some flats. She then agreed to have sex. He said that after they had sex, and not before, the woman asked him for $40. There had been no discussion about prices for sex. He was happy to help her out and gave her the money. Before asking for $40 she had not implied that she was a prostitute. He could not remember any other details of the incident but denied that he forced her to have sex with him or had assaulted her.

No interview was conducted with respect to the complaints made by K.F. and T.N.M..

Grounds of Appeal

The applicant abandoned a number of the grounds of appeal (some of which had been added by order of the Registrar). Of the grounds that were pursued grounds 9 and 10 complained that the judge erred in ruling that the evidence on counts 1 to 3 was cross-admissible with and mutually supportive of the evidence on counts 4 and 5 and, likewise, in ruling that the evidence on counts 6 to 9 was cross-admissible with and mutually supportive of the evidence on counts 4 and 5. Grounds 1(b), 10 and 12 complained that the judge erred in directing the jury that the evidence on those counts was cross-admissible, could be regarded as being mutually supportive and as bearing on the probability or improbability of any such offence having been committed. Ground 12 complained that the judge erred in failing to direct the jury that the evidence could not be used for the above purposes.

Additionally, it was contended that the verdict on count 5 was unsafe and unsatisfactory (ground 8); the verdict on count 4 was unsafe and unsatisfactory and constituted a miscarriage of justice (ground 17); that the verdict on counts 4 and 5 were unreasonable and could not be supported on the evidence (ground 18).

Finally, ground 2 was a discrete complaint that the judge erred in failing to direct the jury that their verdicts had to be unanimous.

The Issues in the Trial

The record of interview of the applicant concerned only the allegations of the rape complainants and it contained many assertions by the applicant that beggared belief. In particular, his assertions that he had not known the women were prostitutes and that they had not discussed prices for sexual services, if persisted with, would have been difficult issues for him to confront in the trial. As soon became apparent, those assertions were not to be maintained, nor, eventually, were some other issues to remain in dispute.

Prior to trial the prosecutor had filed a “Summary of Prosecution Opening” pursuant to the Crimes (Criminal Trials)Act 1999. Defence counsel, in turn, delivered a “Defence Response”. In that document the defence position was stated to be that as to the counts concerned with the first rape complainant (counts 1-3) the applicant did have sexual intercourse, but it was consensual; that there was no violence; that “it was agreed that money would be paid after intercourse”; that “he paid $40 and (”S.G.B”) disputed that this was the agreed price, and became upset at this”.

As to count 4 in the Defence Response, the defence position was that the accused had vaginal intercourse and “there was an agreement that he pay after intercourse”.

As to count 5 the defence position was that he and “K.F.” “were unable to reach agreement about payment and he returned her to the St Kilda area”.

As to the second rape complainant, and counts 6 to 9, the applicant maintained in the Defence Response that sexual intercourse was consensual; that “there was no dispute as to the payment of monies prior to intercourse, it was agreed that money would be paid after intercourse”; that there was no violence used against the complainant and that during intercourse “a condom which the accused was wearing broke”.

In the course of the trial counsel adopted a position consistent with that taken in the Defence Response, and which was, in part, inconsistent with what had been asserted in the record of interview.

The opening addresses of counsel have not been transcribed from the trial, but they were followed by an analysis of the issues in the case delivered to the jury by the judge. It may be seen that the opening address of defence counsel must have made the concessions discussed above, and may have gone even further than the concessions stated in the Defence Response document.

His Honour told the jury in his preliminary summary of the issues following opening addresses that the issue on count 1 was whether an assault took place at all. On count 2, the rape count, the issues were whether vaginal intercourse, which was admitted, occurred without consent or without belief that the woman was consenting. On count 4 the issue was whether fraud had been proved; on count 5, whether the acts constituted an attempt. The jury were told that there was no dispute that the applicant had entered into “discussions” with the complainant, but that whatever occurred it “was not enough to amount to an attempt”. Count 6 (the act of grabbing the complainant’s neck) was denied. As to count 7, it was conceded that he put his penis in her vagina; the questions were whether that was by consent and what was the state of mind of the applicant as to consent. On count 8, his Honour said it was not disputed by the defence that the applicant put his penis into the mouth of the complainant but at issue was whether that was done by consent, and his state of mind, i.e. whether he believed she had consented or had proceeded regardless of whether she had. On Count 9 there was no dispute that he put his penis, again, into the vagina of the complainant: at issue was consent and his state of mind.

His Honour was called on to make the rulings before the trial commenced and the issues on the trial had to be assessed by him as at that time. As is often the case[9], the judge here, in making his ruling, could not at that time know how the evidence would emerge in the trial nor know whether the accused intended to give evidence. It may be assumed, however, that his Honour treated the relevant issues as being those stated in the Defence Response (perhaps with foreknowledge of the way they would be expanded upon in the opening address).
[9]See the observations of Winneke, P. in R. v. Alexander and McKenzie (2001) 6 V.R. 53, at [25].

Counsel for the applicant made it clear to his Honour that there would not be an allegation of collusion made against the complainants.

Ruling on Cross-Admissibility

Counsel for the applicant submitted to the trial judge that the presentment should be severed and separate trials be ordered with respect to each complainant. Alternatively, he submitted that the counts relating to S.G.B. and R.L.M. (whom I will together describe, for convenience, as “the rape complainants”) should be severed from the counts relating to T.N.M. and K.F. (whom I will describe as “the fraud complainants”).

The Crown prosecutor contended that the evidence of the four complainants displayed a pattern of conduct, or a system, of such similarity that “in this case evidence of similar facts renders it objectively improbable that the relevant acts were unintended, or that they occurred innocently or fortuitously”. He also submitted that there was such an underlying unity in the evidence, concerning all of the offences, as to disclose a common modus operandi[10] and displayed a common sexual appetite for street prostitutes. He submitted that the probative force of the evidence was that it demonstrated an improbability of coincidence[11]. The prosecutor submitted to his Honour that all of the evidence was admissible on all counts but, alternatively, submitted that the evidence with respect to S.G.B. and R.L.M. was mutually cross-admissible, and the evidence of T.N.M. and K.F. was also mutually cross-admissible.
[10]See R. v. Mitchell (2000) 112 A.Crim.R. 315, at 318-319, per Tadgell, J.A.
[11]Citing R. v. GAE [2000] 1 V.R. 198, at [46]-[57].

As to the similarities in the four cases the prosecutor provided the judge with a document titled “Schedule of Similarities”. Under four columns he identified the following common features: the location of the pick-up; the method of pick-up; the conduct preceding the pick-up (i.e. discussion about prices, refusal to use the place the prostitute suggested, driving to a location of his own choosing); the location of the offences; a request by the prostitute for payment in advance; the refusal to pay in advance; statements (in two instances) that he had been previously “ripped-off”; initiating kissing and touching (in three cases); grabbing the woman by the neck (in two cases); sexual acts taking place in the back seat of the car; refusal to wear a condom (in three cases)[12].
[12]As I will discuss, it was, in fact, only in two cases that the evidence disclosed such refusal.

The learned trial judge rejected all applications for severance and although complaint was initially made in some grounds of appeal as to those rulings such grounds have now been abandoned. Complaint is, however, made as to the admission of the similar fact evidence and as to the directions given concerning its use. His Honour gave careful and comprehensive reasons for his rulings as to the admissibility of similar fact evidence. The question, as he rightly said, was largely governed by the terms of s.398A of the Crimes Act. That section reads as follows:

“(1)This section applies to proceedings for an indictable or summary offence.
(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 evidence referred to in sub-s.(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 with an offence 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 learned trial judge ruled that all the evidence was cross-admissible as to all offences, concerning all complainants. His Honour ruled that there was “sufficient in common in the accounts of the various complainants” to render the evidence admissible as propensity evidence under the section. As to the matters in common his Honour said:

“I do consider that in the way in which it is said that Rajakaruna approached and had dealings with each of the prostitutes, there was a thread. I do regard it as relevant that each of the complainants was a prostitute. The question of payment is an issue and the occupation of the complainants is important.
When interviewed, Mr Rajakaruna gave a number of answers concerning his awareness of the occupation of the complainants which might be seen as prevaricating.
Whilst it could be said that soliciting of street sex workers is often something done from cars, it is the use of a particular car and the way in which Mr Rajakaruna is said to have gone about it and the conveying of each complainant to a particular type of location, although not the same location, and many of the other features to which I have referred which leads me to conclude that the improbability of coincidence renders it just to admit the evidence despite its prejudicial effect.”

His Honour ruled that evidence of each complainant was “mutually supportive”[13] of the allegations of the other complainants and whilst recognising that the propensity evidence was capable of being prejudicial said he regarded its probative worth as exceeding the element of prejudice.
[13]See R. v. Best [1998] 4 V.R. 603, at 618, per Callaway, J.A.; Director of Public Prosecutions v. P. [1991] 2 A.C. 447, at 462, per Lord Mackay of Clashfern, L.C.

The Test for Admissibility and its Application in this Case

Section 398A prescribes a rule that must be satisfied before evidence becomes admissible and in that respect this court, on appeal, is not reviewing an exercise of discretion, but determining whether as a matter of law the similar fact evidence met the criteria for admission[14]. Such evidence is prima facie inadmissible[15] and to be admitted it must not only be relevant to a fact in issue in the particular charge for which similar fact evidence is being called in aid by the prosecution, it must be of strong probative force[16].
[14]R. v. TJB [1998] 4 V.R. 621, at 631-632.
[15]R. v. Tektonopoulos [1999] 2 V.R. 412, at [20], per Winneke, P.
[16]Tektonopoulos, at [23].

As discussed by Callaway, J.A. in Best[17], the common law test for admissibility which had been stated in Pfennig[18] and Hoch[19] for propensity evidence (of which similar fact evidence was one type), was that where there was a reasonable view of the evidence consistent with innocence the evidence would not be admitted. That test was not adopted in s.398A. Instead, the evidence would be inadmissible unless the trial judge ruled that its probative value was sufficiently great to make it just to admit it in all the circumstances. In making that evaluation the judge must assume the evidence to be true[20]. Once admitted it is then for the jury to determine its reliability[21] and whether there is a reasonable explanation for the evidence consistent with innocence[22]. Although the test for admissibility proposed in the earlier cases has not been adopted in s.398A the statements of principle at common law as to the operation of similar fact evidence generally remain applicable[23].
[17]At 607, per Callaway, J.A., (Phillips, C.J. and Buchanan, J.A. agreeing).
[18]Pfennig v. The Queen (1995) 182 C.L.R. 461.
[19]Hoch v. The Queen (1988) 165 C.L.R. 292.
[20]Best, at 607.
[21]Best, at 611.
[22]Best, at 607.
[23]See Best, at 606, per Callaway, J.A. and Tektonopoulos, at [20] per Winneke, P.

As was the situation at common law, it is not sufficient under s.398A for the evidence to merely demonstrate a general disposition to commit crimes.[24] As explained by Brennan, J. and Dawson, J. in Hoch[25]:

“The rule which excludes similar fact evidence rests upon the view taken by the law that the mere proof of the commission of offences other than the offence with which an accused is charged does nothing more than establish criminal propensity, either in general or in relation to a particular type of crime. Evidence of criminal propensity – a disposition to commit crime – is prejudicial to an accused for it may be wrongly used as sufficient by itself to show that the offence charged was actually committed. But if the evidence, although of propensity, points in some other way to the commission of the offence charged, it may be admitted provided that the additional probative value is sufficient to outweigh or transcend the inevitable prejudice”.

[24]As to the continued application of authorities pre-dating the section, see Tektonopoulos, at [20] per Winneke, P. As to the general prohibition on propensity evidence, see, Dawson v. The Queen (1961) 106 C.L.R. 1, at 16; Pfennig v. The Queen, at 512-513.

[25]At 301.

In making his ruling on admissibility pursuant to s.398A the judge was required to balance the probative force of the evidence against its prejudicial effect[26].
[26]Tektonopoulos, at 416 [19].

The probative capacity of similar fact evidence in many cases will relate to the improbability of coincidence as to the concurrence of accounts given by different complainants. For that purpose the test, as stated by Callaway, J.A. in Best[27] is: “Assuming that the jury will accept the evidence as true, is the improbability of coincidence so great that it is just to admit it despite its prejudicial effect?”[28] As I have discussed, that was one of the ways in which the prosecutor sought to use the similar fact evidence, but, as Gaudron, J. discussed in Thompson v. The Queen[29], the probative value of similar fact evidence may lie not so much in it displaying “striking similarity”, “system” or “pattern”, all of which might require the identification of points of similarity, but by virtue of there being an “underlying unity” between the evidence of the various complainants. That too, was said to be the case here. The prosecutor contended that the items listed in his "Schedule of Similarities" if not constituting striking similarity in the circumstances of the offences nonetheless displayed an underlying unity in this case, reflecting a common modus operandi, or else providing mutual support for the various accounts.
[27]Best, at 610; instances where the evidence is used in that way include Best and also R. v. MCG [2001] VSCA 17.
[28]To adopt the language of Mason, C.J., Wilson, J. and Gaudron, J. in Hoch, at 295, in circumstances where there are a number of complainants alleging similar happenings the probative force of similar fact evidence is that it bears on the improbability of them telling similar lies.
[29](1989) 169 C.L.R. 1, at 39-40.

A similar argument concerning “underlying unity” and the mutually supportive effect of similar fact evidence was advanced in R. v. Papamitrou, a case of multiple sexual offences against numerous young complainants who were employees of or connected to others at a store in which the accused was a manager. In his judgment Winneke, P. said this:[30]

“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.”

[30][2004] VSCA 12, at [31].

That case was decided after we reserved judgment in the present appeal, but Mr Gyorffy, counsel for the respondent, would undoubtedly have argued that the items listed in the “Schedule of Similarities” no less displayed an underlying unity than was the case in Papamitrou, nor provided any less mutual support for the evidence of each complainant. As I shall explain, in my view that is not so.

The overlap and distinctions between the different applications of similar fact evidence can be seen, too, in the following passage in Director of Public Prosecutions v. P.[31] a case where a father was charged with sexual offences against two daughters but where the evidence did not disclose striking similarities in the circumstances of the offences. Lord Mackay of Clashfern, L.C. held:

“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 the 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 in the course of the argument 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.
For the reasons which I have given, I am of opinion that there was sufficient connection between the circumstances spoken of by the two girls in the present case for their testimonies mutually to support each other that the appeal should be allowed, and the conviction restored.
I would answer the first question posed by the Court of Appeal by saying that the evidence referred to is admissible if the similarity is sufficiently strong or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abuse charged, that the evidence if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect. It follows that the answer to the second question is no, provided there is a relationship between the offences of the kind I have just described.
These matters raise questions of law but also involve judgments on matters of degree. Judgments properly made in the light of the appropriate principles should not, I think, yield results which could properly be described as a lottery.”

[31]Director of Public Prosecutions v. P. [1991] 2 A.C. 447, at 462-463.

As Brennan, J. and Dawson, J. stated in Hoch v. The Queen[32]: “In assessing the probative force of evidence of similar facts, a judge must keep in mind the issue to which the evidence is relevant. How does the evidence tend to prove that issue?”
[32]Hoch, at 301.

The trial judge must closely analyse the issues and the proposed similar fact evidence, first, in determining whether to admit the evidence and, secondly, to determine what directions must be given if the evidence is admitted in the trial for any purpose. Substantive submissions were made to the trial judge by counsel for the accused and also by the prosecutor during which much attention was focussed on the “Schedule of Similarities”. That focus, in my view, distracted attention from the capacity or incapacity of that sort of similar fact evidence to bear upon proof of the issues in dispute on each count.

The requirement in s.398A(2) is that the propensity evidence be relevant to “facts in issue”, not that it must prove all elements of the offence in question. Upon a necessary close analysis of the issues and the similar fact evidence it might emerge that the similar fact evidence was only relevant in proof of a single issue on the subject count. In that event the court would have to take particular care in assessing whether the prejudicial value of the evidence outweighed its probative value: see R. v. Cogley[33]. In the present case the prosecutor at trial identified, as a particular issue established by the similar fact evidence, “a common sexual appetite for street prostitutes”, but that was not in dispute in the trial. On the appeal Mr Gyorffy went further, and identified “an attitude of not paying for sexual services” as being a relevant issue, but that too had limited value, as I shall discuss.
[33][1999] 3 V.R. 366, at [20]-[22] per Buchanan, J.A., with whom Brooking and Tadgell, JJ.A. agreed; see too R. v. Alexander & McKenzie (2002) 6 V.R. 53, at [43], per Winneke, P.

Where similar fact evidence is admitted as being relevant to proof of a single issue it might nonetheless have an additional evidentiary relevance for which the jury could apply it. As Winneke, P. observed in Tektonopoulos[34] it is the capacity of the similar fact evidence to prove a relevant fact in issue by which the test of its admissibility under s.398A(2) must be judged. If it lacks appropriate probative force in proof of that issue, so as to outweigh its prejudicial effect on the accused, then it is not admitted. If it passes that test and is admitted into evidence then the judge must direct the jury as to the limited use they might make of that evidence. However, in addition to its relevance in proof of the disputed fact, the evidence, once admitted, might also then be relevant for another purpose. Thus, in Tektonopoulos Winneke, P. said, without deciding whether it was so in that case, that the evidence once led in proof of identity of the offender might, arguably, have also been relied upon by the Crown for its capacity “to bolster or confirm” the complainant’s evidence generally. At common law similar fact evidence had two recognised functions, first, as circumstantial evidence corroborating or confirming the veracity of the evidence of the complainant in question and, secondly, as constituting circumstantial evidence of the happening of the events in issue[35]. Having regard to the terms of s.398A, however, mere propensity evidence which did not otherwise meet the requirements for admission as similar fact evidence relevant to a fact in issue would not become admissible merely because it might tend to bolster the complainant’s account by demonstrating that the accused was the kind of person who might commit such offences.
[34]At 419 [28].
[35]See Hoch, at 296, per Mason, C.J., Wilson and Gaudron, JJ.

The similar fact evidence must bear upon proof of the charge in question, or at least proof of one of the issues in dispute on that charge. It is not sufficient to prove a general disposition to commit offences. As Gaudron, J. noted in BRS v. The Queen[36] the probative force of similar fact evidence is that it discloses as a matter of common sense and experience the objective improbability of its bearing an explanation consistent with the accused’s innocence of the offence charged. It is only where evidence of the fact that the accused has committed other offences has a “particular probative force or a particular cogency” in proof of the offence charged that the evidence has the probative force which justifies its admission. Whilst the probative value of the evidence does not depend on there being a striking similarity in the separate accounts there must be “some unusual feature common to the events in question, or some underlying unity, system or pattern”[37] such that “it renders it improbable that two or more persons would give an account of particular conduct if that conduct did not, in fact, occur”[38].
[36](1997) 191 C.L.R. 275, at 298-299.
[37]BRS, at 298-299
[38]At 299.

In BRS the accused, a teacher, had been charged on counts alleging that he had homosexual intercourse on a number of occasions with a boy "H". "H" gave evidence that before the acts of intercourse he had been invited to the room of the accused and encouraged to masturbate on the bed, using a lubricant and towel provided by the accused. At the trial another boy, "W", gave evidence that he too had been invited to the accused's room to masturbate using the same type of lubricant and towel.

Gaudron, J. held that the similar fact evidence of “W” in that case could only have been admitted for the purpose of countering the appellant’s assertion of good character, and to weaken his credibility and to provide corroboration. It could not otherwise be used by the jury as proof of his guilt of an offence against “H”. That was so because, as her Honour noted, the similar fact evidence from that witness related only to several incidents in which the appellant masturbated in the room of the witness. As her Honour said:

“ … it may be that if the appellant had been charged with committing an act of indecency by masturbating in front of H, W’s evidence would have had particular probative value or cogency with respect to that charge. But the appellant was not charged with that offence. He was charged with offences involving homosexual intercourse. There is nothing about the incident with W which makes it inherently improbable that H concocted his account of events involving the offences charged or which, in any other way, makes it inherently improbable that the appellant is innocent of those offences”.[39]

[39]At 300. To similar effect, see Toohey, J in BRS, at 292 and the statement of Mason, C.J. Wilson and Gaudron, JJ. in Hoch, at 294.

As Kirby, J. noted in BRS[40], the law requires that the focus of attention must always be “on the crimes alleged in the indictment or charge“, and thus requires the exclusion, generally, of propensity evidence, however attractive or probative it might be likely to seem to a jury. As Kirby, J. noted[41]:

“Once lay decision-makers know facts about the background and character of the accused the risk is acute that the focus on the particular offences charged will be lost. Instead, the accused may be judged by reasoning that anyone shown to have acted, in a criminal or discreditable way proved, must be guilty of the offences charged, so long as they bear some similarity to the facts established by the evidence.”

[40]At 320-322.

[41]At 322-323 in BRS.

In Best[42], to which the learned trial judge in this case made appropriate reference, there was little risk that the similar fact evidence might be misused in the manner identified by Gaudron, J. in BRS. There was a similarity, or pattern of conduct or system, as disclosed in the allegations of the five complainants in Best, that readily supported an argument that it was improbable that five complainants would make similar allegations unless they were true. In Best the accused man was facing the same charges, comprising 18 offences, against five complainants, all involving a similar modus operandi. Because of the similarity of complaints and circumstances it would have been clear to the jury what it was that constituted the improbability of coincidence in that case; it was the improbability of all complainants falsely describing the occurrence of events so similar that they constituted offences of the same kind committed in similar ways against each and all of them[43]. In the present case, however, although there were many similar features in the circumstances surrounding the alleged offences, in the main those circumstances were neither disputed nor were of any significance with respect to the offences.
[42]Best, at 616.
[43]And likewise in R. v. GAE (2000) 1 V.R. 198, which also involved similar offences with a similar modus operandi.

When the similar fact evidence in this case is assessed more precisely, by reference to the issues in the trial, its dangers and the limitations of the evidence in providing proof of some issues in the trial may be seen more clearly.

On the appeal Mr Gyorffy, in supporting the ruling by his Honour, submitted that the gist of all four cases was “the timing of the payment for the sexual services to be performed”. He added that “in each case the applicant revealed the disposition . . . to assert that he would (not) part with his money until services had been rendered”. Mr Gyorffy submitted that the conduct disclosed “an attitude of not paying for sexual services provided by a prostitute”. He submitted that that behaviour was relevant to all cases because, first, with respect to the rape complainants, it affected the question whether or not the applicant intended to have sexual intercourse “irrespective of their wishes”. In the case of T.N.M. it was relevant to the question whether he obtained her consent by pretending that he would pay for services, and in the case of K.F. it was relevant to the question whether or not he had any intention of paying her if she had rendered services.

Whilst accepting the presence of common features of the kind identified by Mr Gyorffy, the degree of relevant commonality, across all cases, was relatively limited, and the probative force of that evidence required careful evaluation, so as not to be overestimated.

In his record of interview the applicant had denied that there was any discussion of price prior to sexual activity, in the two instances about which he was interviewed, but in the trial it was accepted that in all four incidents the applicant had said to the complainant that he would not pay in advance. Even so, the events that followed such insistence were not similar in all cases. He had paid one rape complainant $40 (which she said was the agreed price for oral sex, not vaginal intercourse), but had first raped her, she said. He had given another $5, for food or cigarettes, but had also raped her, she said. (In that latter instance his counsel had put to the complainant that the applicant had agreed to prices for each of the sexual activities but had then refused to pay her, save for $5.) In the two rape incidents it was alleged that he had grabbed the complainant by the throat and held her down while he raped her. In one instance concerning the fraud complainants he had obtained “consent” but then had not paid; in another, he neither paid nor obtained sexual services. In those two last instances no violence occurred. In two cases it was said he had refused to wear a condom. In a third he did wear one.

Keeping those differences in mind and having regard to the issues in the case, I turn to consider the bases on which the similar fact evidence might and might not have been admissible.

Issues on Which the Similar Fact Evidence Was Admissible

As to one area of use of the similar fact evidence no complaint was made on the appeal by Mr Holdenson. Other areas were not conceded.

(a)Use of the evidence of one rape complainant in support of the counts concerning the other rape complainant

Although the grounds of appeal had not reflected this concession, Mr Holdenson expressly said that he did not contend that the evidence on counts 1 to 3[44] was not cross admissible on counts 6 to 9 and vice versa. Thus, the evidence of one rape complainant that she had been raped and assaulted after refusing to perform sexual acts (unless she was paid in advance) was probative, as similar fact evidence, of the offences alleged with respect to the other rape complainant[45]. That concession was appropriate because the similarity of the circumstances of the offending as described by both rape complainants was such as to provide powerful probative force, over and above any prejudicial effect, and to support a conclusion that it was so improbable that they were both liars that the offences had been proved to the appropriate standard. The probative value of the evidence justified its admission by the judge, but it was then for the jury to determine what weight to give to it.
[44]Count 3 is no longer relevant.
[45]The fact that the proposed similar fact evidence was confined to only one other incident would not deny it the description of similar fact evidence, on that account: R. v. Cogley [1999] 3 V.R. 366, at [15]-[16]. It is not essential that there be numerous additional complainants for the evidence to be admissible as similar fact evidence, although a multiplicity of similar complaints would no doubt strengthen the conclusion that the evidence carried sufficient probative weight to justify its admission. Where there was only one other witness the need to eliminate coincidence as an explanation would require a greater extent of similarity in the accounts if the evidence was to be admitted, but once admitted its weight was for the jury to assess: See R. v. Kilbourne [1973] A.C. 729, at 748-749; R. v. Boardman [1975] A.C. 421, at 444.

Of course, even in the situation where the evidence concerning one rape complainant was called in aid as similar fact evidence in support of the counts concerning the other rape complainant there would remain acute dangers that the jury would embark on impermissible propensity reasoning, and a direction was essential to ensure that the jury did not reason that (if they so found) because the accused has committed rape and assault on a prostitute on one occasion, after refusing to pay in advance, he was the sort of person likely to have done so on another occasion. The line between impermissible propensity reasoning and permissible probability reasoning can be a very thin one[46].

(b)Use of the evidence of one fraud complainant in proof of the offence concerning the other

[46]See, Hoch, at 302, per Brennan, J. and Dawson, J. See, too, the discussion by Batt, J.A. in R. v. Tragear [2003] VSCA 222, at [46].

The evidence of each fraud complainant would be cross-admissible as similar

fact evidence in proof of the issue of intention[47], that being a common issue on counts 4 and 5 relating to the time when the applicant promised to pay, later, for sexual favours. The similar fact evidence, in each case, was relevant to that issue and in each case it had such probative force as would justify its admission in proof of the other fraud offence.

[47]I assume for this discussion that both counts 4 and 5 remain on the presentment. I later consider the grounds of appeal in which it is contended that those convictions were unsafe and unsatisfactory, but I reject those grounds of appeal.

However, in count 5 there was one additional issue which did not arise with respect to count 4. The Crown had to prove that the conduct of the applicant as to Count 5 had gone far enough to amount to an attempt to obtain sexual acts by the fraudulent representation that he would pay. On that issue I have entertained doubt whether the evidence of the completed fraud involving complainant T.N.M was capable of being probative, as similar fact evidence, of the issue as to whether the conduct of the applicant on count 5 had gone far enough to constitute an attempted fraud committed against K.F.

Although the answer to that question is not beyond doubt, I consider that the evidence as to count 4 would also be probative as to whether the conduct concerning count 5 had gone sufficiently far so as to constitute the offence of attempted fraud. On balance, I also consider that its capacity to prove that element was sufficiently strong so as to justify its admission under s.398A in proof of that element. That conclusion, once again, avoids the need for there to be a direction to the jury confining use of the evidence on count 4 to only one of the issues on count 5, thereby avoiding one additional refinement to what would already be complicated jury directions.

(a) A 'separate consideration' direction;

(b)A direction that the prosecution was entitled to identify points of similarity or a pattern of conduct or system in the allegations made by the four complainants and from that to argue that it was improbable that four women would make those allegations unless they were true;
(c) A warning that if the jury concluded that the accused had sexually assaulted one or more of the complainants they could not reason therefrom that he was the kind of man who was likely to have assaulted the others.

As the following discussion will demonstrate, each of those topics was addressed by the trial judge in this case, and in conventional terms. As Winneke, P. observed in Papamitrou[62], however understandable it may be for them to do so, judges can not merely follow standard directions but must ensure that the directions are relevant and appropriate to the issues in the particular trial. The precise terms of the directions given here need to be considered with that warning in mind.
[62]At [40].

In his charge the learned trial judge directed the jury that they had to consider each count separately and determine the verdict as to each count “only on the evidence concerning the particular count or charge you are then considering”. His Honour then continued:

“But in this trial you have heard evidence of alleged sexual activity on which the Crown relies to establish all of the known counts or charges against Mr Rajakaruna. The evidence concerning sexual activity, other than that which is the subject of a particular count or charge which you are then considering, is admissible as an exception to the general exclusion of such evidence, and it is admissible in this trial for the following reasons. It enables the evidence relating to the alleged offence in whichever count you are then considering, to be placed into a more complete and realistic context. You may, if you accept that evidence, appreciate the significance of what may otherwise seems barely (sic) to be an isolated act occurring without any apparent reason.”

His Honour then listed what he said, on the Crown case, were “a number of features in common to the complainants”. These features included the fact that each was a street prostitute; that the applicant knew when he was with them that they were prostitutes; the manner in which the applicant approached and dealt with them; that he used the same car and used the same or similar locations. The judge added: “The Crown also relies on the issue of payment for sexual services”. After listing such features in common to the complainants his Honour said of those features:

“These may be considered by you as to the probability or improbability of coincidence, and whether the alleged offences occurred. You may consider whether the evidence of each complainant is mutually supportive of the allegations of the other complainants. It is for these reasons that this evidence is permitted to be given. You must understand that although this evidence may be received by you, it is admissible for the limited purposes to which I have referred, only for those purposes.”

The limited purposes to which his Honour had at that point referred appear to have been those of providing “a more complete and realistic context” and enabling an appreciation of the significance of what might otherwise be seen to be an isolated act occurring without any apparent reason, and, additionally, the extent to which the “features in common” bore upon the “probability or improbability of coincidence, and whether the alleged offences occurred”. His Honour then continued as follows:

“To put it in context more realistically, in the long run you must be satisfied beyond reasonable doubt of the guilt of the accused of each of the counts or charges brought before you. You may convict him of whichever of them you are then considering, but you must not substitute evidence of some other incident not the subject of that particular count or charge for the evidence in support of the charged incident. Above all, you must be careful and precise in your process of reasoning. You may use the evidence of the other alleged sexual acts in considering the probability or improbability of the particular offence alleged having occurred, but it would be wrong, prejudicial and contrary to law for you to reason that because the accused had engaged in some other improper conduct, or even in some other crime or crimes, that he was the kind of person who was likely to have committed the offence you are then considering, and to use such a conclusion as evidence that he had committed it. Whether you are satisfied beyond reasonable doubt of the guilt of the accused of any of the counts or charges you are considering is something you must decide on the evidence which relates to that particular count or charge.”

When later summarising the addresses of counsel his Honour said that the prosecutor had claimed that there was “a pattern or elements of unity in the accounts” given by each complainant, and his Honour listed the items identified by the prosecutor, including the time of day of the offences, the location of the pick-up and of the offences, the manner of pick-up, discussion of the prices, the complainants all asking to be paid first, the applicant refusing to do so, the offences all took place in the rear seat of the car, the failure to use a condom and, in two cases, the grabbing by the neck and, also in two cases, the showing of a wallet or money. His Honour then told the jury that:

“On the basis of those matters, it was submitted to you by (the prosecutor) that it was improbable that these four women would make up these allegations if they were not true. He invited you to draw the inference that Mr Rajakaruna intended to have sexual relations with each of them without paying”.

Each of the directions was in general accordance with the terms used in Best. However, as King, C.J. made clear in R. v. Dolan[63], in a passage approved by Callaway, J.A. in Best, the jury had to be told not only how the similar fact evidence could be used but even more importantly the uses to which it must not be put. In performing that function the trial judge must translate the general terms of the directions stated by Callaway, J.A and apply them in the context of the issues and facts in dispute and the elements of the offences in the trial. It is not sufficient that the jury be directed as to these important matters in general terms only.
[63](1992) 58 S.A.S.R. 501, at 503, cited in Best at 615; see, too, R. v. Georgiev [2001] VSCA 18 at [54]-[58], per Ormiston, J.A., and Papamitrou, at [37] per Winneke, P.

It is the task of relating the general to the particular which imposes a considerable burden on a trial judge, but it is an essential task if the jury is to be properly directed.

To reiterate, after giving the jury the direction that they must consider each count separately and decide it “only on the evidence concerning the particular count”, and before directing them that they “must not substitute evidence of some other incident . . . for the evidence in support of the charged incident”, his Honour qualified the directions by saying that evidence of sexual activity other than that the subject of the particular charge under consideration was admissible so as to place the evidence on the particular count “into a more complete and realistic context”, and thereby to enable its full significance to be understood. Additionally, his Honour told the jury that they might have regard to the features in common between the offences and apply that for the “limited purposes”, and only those purposes, which included their assessment of “the probability or improbability of coincidence, and whether the alleged offences occurred” Also within the limited purposes, the jury “may consider whether the evidence of each complainant is mutually supportive of the allegations of other complainants”.

The language of those directions is consistent with the statements in Best, but, as Callaway, J.A. made clear[64] the language used for the purpose of explaining legal principle in an appellate judgment was not intended to constitute a “model direction”, but was merely a guide to the substance of what was required; the directions had to be related to the issues of each trial.
[64]Best, at 616.

In my opinion, it can not be assumed that a jury would understand what “context” meant, for the purposes of this trial, in the phrase “a more complete and realistic context”. His Honour did not limit its application to the phrase he next used: “You may, if you accept that evidence, appreciate the significance of what may otherwise seems barely (sic) to be an isolated act occurring without any apparent reason”. Even that phrase, in my respectful opinion, is somewhat vague and is not related to any issues in the case.

As I earlier said, the use which the jury could make of the evidence on counts 1 to 3 in considering the evidence on counts 6 to 9, and vice versa, required a strong and specific direction that a finding that he had raped and assaulted one complainant did not prove that he had done so on the other occasion. Such an appropriate propensity direction was given to the jury.

No specific directions were given concerning the use of the rape complainants’ evidence in proof of the fraud offences. The jury were given a general propensity direction, but this case it required a specific direction that the jury could not make any use of the evidence of the rape complainants in proof of the fraud counts.

The second area for a specific direction related to the fraud evidence. The jury should have been directed that there was no issue relevant to proof of the rape and assault counts on which the fraud complainants’ evidence was relevant. In this case a plain and unqualified direction in those terms was required[65]. Instead, his Honour told the jury that the evidence in the trial might be used not only as to the probability or improbability of coincidence but also as to “whether the alleged offences occurred”. That is a very broad statement indeed. It is, of course, more probable that if four prostitutes allege that the one person committed offences against them, of whatever kind, then in the absence of collusion, he did so. Even more so, if two of the complainants said that upon refusing sex without pre-payment they were raped it is more likely to have occurred than if only one said so. But of itself that reasoning is no more than impermissible propensity reasoning. It was the additional fact that there were strong similarities in the evidence of the two rape complainants that made their evidence cross-admissible, not the mere fact that two persons, rather than one, had made allegations against the applicant, even though that latter fact also increased the probability of their allegations being correct[66]. To be admitted and used as similar fact evidence it must go further than merely having the capacity to increase the probabilities that the accused is guilty.
[65]As to the desirability of giving such clear directions, see the discussion by Callaway, J.A. in R. v. T.J.B. [1998] 4 V.R. 621, at 632.
[66]See R. v. Glennon, at [120], per Callaway, J.A.; R. v. Alexander & McKenzie, at [40], per Winneke, P.

The directions in this case did not confine the use of the similar fact evidence to any offences or issues. The jury in this case were permitted, without explanation or limitation, to use the evidence on all counts as bearing on the improbability of coincidence that any of the individual offences had been committed. Directions which employed terms such as “underlying unity”, “mutually supportive”, or “improbability of coincidence” required qualification by reference to the issues on each count, to ensure that they would not be misused by the jury. None of those terms was relevant to or capable of enabling the fraud evidence to be used in proof of any issue on the rape or assault counts or vice versa, but their very vagueness might suggest to the jury that they had general application. The danger of misuse is particularly acute because once a trial judge has ruled that evidence is admissible for some purposes in the trial, by virtue of it having the qualities of “similarities” or being “mutually supportive” or showing a “system or pattern”, or bearing on the improbability of coincidence, then unless they are directed that it can not be so used in proof of any particular charge or issue, they are entitled to make use of it as similar fact evidence with respect to all charges. The jury is not required to make any threshold findings, akin to those made by the judge in ruling on admissibility, before making use of the admitted evidence[67].
[67]See Papamitrou, at [36], [40].

The task of a trial judge in a case such as this is a very difficult one[68]. It may well seem an unreasonable burden - given that the judge had directed the jury, correctly, in the general terms employed by appellate courts - to require the judge to go further and relate those directions to the precise issues on each count and to specify on what issues the evidence could be or could not be used, or could be used only for limited purposes.
[68]As acknowledged by Kirby, J. in BRS, at 326, and see the remarks of Winneke, P. in Papamitrou, at [1].

It may well be that the burden in a given case, and the likelihood that the case would be made more complicated, rather than less, for the jury, would lead to a decision to sever some, or all, charges. There is no doubt, however, that in a case like this the judge is under an obligation to give directions that provide, by reference to the issues in the trial, that degree of specificity as to what use may and may not be made of the evidence.

As difficult as the task may be for the trial judge to descend to such a degree of particularity, the task must be even more difficult for the jury, and the risk that, unaided, they will misuse the evidence, must, accordingly, be the greater. Upon reflection, it will be seen that the more difficult be the task for the judge to identify how the evidence can and can not be used on each charge the more likely it is that the jury, unassisted, will misuse the evidence.

There is a fundamental reason why imposing such a burden on the trial judge is necessary. Propensity evidence is by its very character prone to be used in an impermissible way by a jury, a danger which is high when similar fact evidence is concerned[69], and it is a danger much more appreciated by judges than by juries. It is because of its capacity to cause injustice that it must be demonstrably relevant and have a high degree of probative force if it is to be admitted at all.
[69]And at its highest when identity is in issue, which was not this case: see R. v. Tektonopoulos, at [25] per Winneke, P.; see too, Best at 612, Pfennig v. The Queen (1995) 182 C.L.R. 461, at 530, per McHugh, J.

I conclude, therefore, that the grounds complaining as to the inadequacy of the directions given on the use of similar fact evidence have been made out with respect to use of the evidence concerning the fraud evidence in proof of the offences against the rape complainants and vice versa.

There having been failures in two respects to exclude evidence from consideration by the jury when considering particular charges, the proviso to s.568(1) of the Crimes Act could not be applied to save the convictions, in my opinion. It can not now be said that the applicant was not deprived of a chance of acquittal which was fairly open to him: see Mraz v. The Queen[70]; the similar fact evidence which the jury was wrongly permitted to apply when considering all counts on the presentment could have been a factor in the verdicts. A miscarriage of justice has occurred if there is a real chance that the jury may have convicted the applicant by

applying impermissible propensity reasoning based on the similar fact evidence[71].
[70](1955) 93 C.L.R. 493, at 514, per Fullagar J.
[71]See BRS v. The Queen, at 306, per McHugh, J. At 308 McHugh, J. posed the test as whether the applicant had lost a real chance of acquittal because of the failure to give the direction; see, too, at 310.

I have regard to the cautionary note expressed in BRS v. The Queen by Kirby, J., where his Honour stressed[72] that an appellate court would not intervene if the perceptible risk of a miscarriage of justice which has been identified by virtue of the failure to give appropriate directions amounted to a fanciful rather than a real risk. I have concluded that the risk of misuse of the evidence was a real one. Subject to what I say as to the other grounds of appeal, the verdicts on all counts must be quashed and new trials be ordered.
[72]At 330.

Unanimous Verdicts (Ground 2)

The judge did not give a direction to the jury that their verdicts had to be unanimous. The jury retired at 11.35 a.m., after completion of the charge, and counsel for the applicant queried that omission. The judge said that although it was his invariable practice to give such a direction he had read a recent Court of Appeal decision in which it was said to be inappropriate to do so. Counsel said he was unaware of the case and could take the matter no further. The court re-assembled at 2.26 p.m. because the jury had a question and after that had been dealt with and the jury had retired again his Honour said that the case he had had in mind was R. v. Mitchell[73] and the passage in question was in the judgment of Tadgell, J.A. In response to counsel’s query whether his Honour would change his mind, the judge said he would not. In fact there would have been no opportunity to give the directions because the jury knocked at once, and returned with its verdicts at 2.33 p.m.
[73](2000) 112 A. Crim R 315, at 320.

The passage in the judgment in Mitchell did refer to the direction as to unanimous verdicts but it dealt with a discrete issue and his Honour was mistaken in his recollection that it had altered the practice of giving unanimity directions.

Whilst no direction was given, the jury were not, however, left without any assistance on this issue. At the conclusion of his charge the judge told the jury how verdicts would be taken from them and that as to each verdict they would be asked if they had agreed upon their verdicts and then, after delivering their verdicts they would be asked whether each was the verdict of them all. In due course the jury were so questioned by his Honour’s associate.

Mr Holdenson conceded that the law governing trials in Victoria as to the necessity for majority verdicts had been that stated by the High Court in Milgate v. The Queen,[74] namely, that the traditional method for ensuring that the jury understand that requirement was to have them interrogated by the Clerk of Arraigns (or trial judge’s associate) prior to receiving the verdict, and in checking with them that it was a unanimous verdict. That is what occurred here. Milgate was followed by the Full Court in R. v. Sergi[75] and the Court then confirmed that while it was common practice to give a unanimity direction its omission from a charge did not constitute error, and the interrogation of the jury would suffice to ensure the trial was regular.
[74][1964] 38 ALJR 162.
[75][1974] V.R. 1, at 11.

Mr Holdeson submitted that those decisions must be taken to no longer apply in this State since the adoption of majority verdicts (after six hours deliberation) by the introduction in 1994 of s.47 to the Juries Act 1967.[76] It could no longer be assumed that juries would be aware of the necessity for the verdicts to be unanimous, Mr Holdenson submitted, and the precaution hitherto thought adequate, of interrogating the jury, was no longer sufficient to ensure that a verdict was unanimous, prior to six hours deliberation.
[76]Now, s.46 of the Juries Act 2000.

Mr Holdenson submitted that the Court of Appeal in R. v. Muto and Eastey[77] had, in effect, imposed an obligation that juries, today, be directed that they must return a unanimous verdict.
[77][1996] 1 V.R. 336.

In my opinion, the Court in Muto and Eastey did not purport to depart from or distinguish the earlier authorities. Indeed, neither Milgate nor Sergi was mentioned in the judgment. It was a case concerned with a misdirection to the jury as to the circumstances in which a majority verdict might be taken, not with the question whether a direction as to a unanimous verdict was obligatory. The Court recognised that since the 14^th century a unanimous verdict was required but noted the modification of that by the amendment to the Act. In the course of the judgment, however, the Court noted that a criminal charge usually included a direction that a verdict had to be unanimous and that it now was usually accompanied by a direction that in certain circumstances, which had not yet arisen, a majority verdict could be taken.

Mr Gyorffy conceded that it is usual practice to give a direction requiring unanimity but submitted that Milgate remains good law.

Given the conclusion I have reached as to the other grounds it is not necessary to resolve this ground in order to dispose of the appeal. However, whether or not it is obligatory to give a direction as to unanimity the Court in Muto and Eastey[78] expressly stated that it would give “authoritative guidance to trial judges” and would set a standard for directions which “should be given in the course of all charges”. The Court then set out the terms of a unanimous verdict direction in terms discussed above.
[78]At 342.

It can no longer be presumed that jurors would understand that verdicts must be unanimous within the first six hours of deliberation. Trial judges should regard the statement of the Court in Muto and Eastey as determining their course in all criminal trials, and it was unfortunate that a direction was not given in this case when the matter had been raised, in a timely way, by counsel, even if counsel did not press the point (in obedience to what he understood was a decision of this court). There is nothing to suggest that the jurors in this case did misapprehend their obligation to return unanimous verdicts and I would not be inclined to uphold the appeal on this ground, were it necessary to decide the question.

As presently advised it can not be said that the position has been reached where failure to give a unanimity direction constitutes a fundamental omission going to the root of the trial. That question may be revisited at another time, but it is unnecessary to decide it now. In the meantime, trial judges should presume that the giving of such a direction is appropriate in all cases.

Challenges to the Verdicts on Counts 4 and 5 (Grounds 8, 17, 18)

These grounds complain, variously, that the verdicts on counts 4 and 5 were unsafe and unsatisfactory or were unreasonable and were not supported by the evidence.

Mr Holdenson argued that as to count 4 the Crown had not excluded beyond reasonable doubt the alternative hypothesis that, at the time he promised to do so, the applicant had intended to later pay the agreed price for sexual services (which it was common ground was the relevant time at which the Crown had to prove the fraudulent intent), but changed his mind only after those services had been provided. Mr Holdenson pointed to the evidence of the complainant that the applicant showed her his wallet, which she observed contained about $80, sufficient to meet her agreed price. The complainant, having said that she saw notes of possibly $50 and $20 denomination, was cross-examined about the situation which arose when he told her he had to get change to pay her the sum of $80. Mr Holdenson placed emphasis on the following question and answer:

“Q:For all you know, it may well have been true that he needed to get some change to pay you the $80 that you required?
A:Yes, it could have been true that he was going to get the $80 change, but I didn’t see it.”

In my opinion, the witness was merely saying that what he did at the time appeared consistent with him intending to get change to pay her. She was not conceding, nor could she, what was actually in his mind at that time. Indeed, the following answers on transcript suggest that what she was saying was, in effect, that she now realised that at no time had he intended to pay her.

Having regard to the fact that the evidence on the rape/assault counts was cross-admissible, as was the evidence on count 5, in proof of count 4, in my view it can not be said that there was insufficient evidence to sustain a conviction on count 4. Furthermore, the jury were entitled to draw an inference of guilt, and to exclude any innocent hypothesis, from the circumstances which were admitted by the applicant in his record of interview. The applicant did not give evidence and in drawing the inference of guilt the jury were entitled to have regard to that fact and the applicant’s failure to give evidence would also be relevant to the Court’s assessment as to whether the conviction was unsafe and unsatisfactory.[79]
[79]Weissensteinerv. The Queen (1993) 178 C.L.R. 217, see, too, R.P.S. v. The Queen (2000) 199 C.L.R. 620, at [26]-[27]; R. v. Doherty (2003) 6 V.R. 393

In assessing complaints on appeal on such grounds as these the courts must give appropriate weight to the advantage the jury had in seeing witnesses. In this case the jury also had heard audio tapes of the interview conducted by police with the applicant. Those tapes were tendered. Furthermore, it ought not be forgotten that the jury also had the advantage of being able to observe the applicant throughout the trial, even if he did not give evidence.

The question as to whether a verdict is unsafe or unsatisfactory is answered by considering whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty[80]. There is no aspect of the trial that suggests to me, applying well settled principles[81], that the verdict on count 4 was unreasonable or unsafe, or was not capable of being supported by the evidence.
[80]M. v. The Queen (1994) 181 C.L.R. 487, at 493; R. v. Haseloff [1998] 4 V.R. 359, at [29].
[81]See Chidiac v. The Queen (1991) 171 C.L.R. 432, at 443, 451, 458, 461; Knight v. The Queen (1992) 175 C.L.R. 495, at 504-505, 511; M. v. The Queen (1994) at 492-494;

As to count 5, Mr Holdenson submitted that the Crown had not excluded the hypothesis that the applicant had intended to pay at the time when he said so to K.F., nor, he submitted, had the events gone far enough, in any event, to constitute an attempt to defraud her. Once again, when use is made of the cross-admissible evidence, and regard is had to the fact that the applicant did not give evidence, this verdict has not been shown to be unsafe or unsatisfactory, or to be unreasonable or unsupportable, having regard to the evidence. It was open to a reasonable jury to convict the applicant.

Each of these grounds fails.

Application for Leave to Appeal Against Sentence

Two grounds of appeal were raised:

“1.That, in all the circumstances, the sentence is manifestly excessive.
2.That the sentencing judge erred in taking into consideration that the prisoner continued to deny offending despite the jury’s verdict.”

Having regard to the conclusion I have reached on the appeal against conviction it follows, in my opinion, that a new trial on all counts should be ordered. It is therefore inappropriate to further consider the application for leave to appeal against sentence.

Conclusion

The application for leave to appeal against conviction should be granted, the convictions be quashed and new trials be ordered on all counts. Whether those counts should be presented together by the Crown, or be heard together, or whether some order as to severance ought be made is a matter for the Director of Public Prosecutions and, thereafter, the trial judge on any re-trial, to consider having regard

to the factors discussed by me in this judgment and by reference to authority concerning severance. I say no more as to those questions.

SMITH, A. J.A.:

I have read the reasons for judgment of Eames, J.A. and agree with his conclusions and the orders he proposes. As to the reasons advanced, save that I wish to reserve my position on the question of the cross-admissibility of the evidence of one rape complainant in support of the counts concerning the other rape complainant, I also agree with the reasons advanced by his Honour.

This case is an example of the extremely difficult task often faced by trial judges in dealing with issues of cross-admissibility of evidence of misconduct. It highlights what seems to me to be the key task in resolving such cross-admissibility issues when applying s.398A Crimes Act 1958[82] - and determining admissibility of common law. It is critical to identify with precision :

(a)what elements are in issue and what facts relevant to those elements are in issue;
(b)in what way the evidence admissible on one count is said to be relevant to the facts in issue in the other.

In answering the latter question it is assumed that the evidence is accepted.

[82]It requires expressly that the propensity evidence be “relevant to facts in issue in the proceeding” before considering whether it is just to admit the evidence despite any prejudicial effect.

By way of example, in the recent case of R. v. Papamitrou[83] the accused denied the allegations of sexual offences made against him alleging that they were concocted. The evidence of each of the victims was held to be relevant to the facts in issue on each of the other counts because it tended to prove a specific propensity - to sexually exploit adolescent girls in a particular way using similar methods of seduction and exploitation in a particular environment – the work environment or places connected to the work environment.[84] It was, therefore, relevant to the ultimate issue of whether he in fact committed the alleged crimes.
[83][2004] VSCA 12.
[84]Para 31.

By way of contrast, in the present case the evidence admissible on the fraud counts, if accepted, was not relevant to the facts in issue in the rape counts. At its highest, the evidence of the alleged victims of the fraud counts might be said to be relevant solely to the credibility of the witnesses called in the rape counts. In my view, however, that does not satisfy the requirement of s.398A (2) of relevance to “facts in issue”. At common law it would not be admissible if that was the only basis of relevance. In any event the evidence had little or no probative value on the issue of the credibility of the alleged rape victims because the accounts given by the alleged fraud and rape victims, and the accused, of the alleged underlying common features were essentially the same. As a result, if the evidence of the alleged fraud victims bolstered the credit of the alleged rape victims, it presumably also bolstered the credit of the accused. It does not in my view, assist to resolve the question of who to believe about the few facts that were in dispute.

As I see it, where it can be said that the evidence admissible on one count is relevant to the facts in issue on another because it reveals a relevant specific propensity, or some striking similarities that identify the accused as the assailant, it is necessary to compare the probative value of that evidence with its prejudicial effect and, at that stage, the extent of the mutual support of the alleged victims will affect the probative value of the evidence.

The above questions are easily formulated but can be extremely difficult to apply and they must be applied rigorously. They must be addressed before considering the other aspects of the law applying to the admission of evidence of prior misconduct. Only by precisely identifying the way or ways a piece of evidence is relevant to the facts in issue can its probative value be assessed and the issue of admissibility finally determined.

The case also highlights the potential danger of relying on “context” as the basis upon which it is said the evidence is relevant. To say that a piece of evidence is relevant for that reason gives little or no assistance in determining the probative value of the evidence. Unless there is something that can be identified additional to mere “context” the evidence in fact will have very little probative value. Often, if the claim of “context” is rigorously examined, particular features of the evidence will be identified which give the evidence particular probative value over and above mere context. A sensible assessment of the probative value of the evidence can then be made and that can be compared with prejudicial effect.[85] Its admissibility on the other counts can then be determined.
[85]Cf R. v. Josifoski [1997] 2 VR 68, 83-4.

I suggest that when counsel submits that evidence is relevant because it gives a “context”, the trial judge would be wise to press counsel to explain what it is about the context revealed by the evidence in question that makes it relevant – and to keep pressing until satisfied that no more precision is possible.

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[2004] VSCA 114

23 June 2004