R v Ramon Harris (A Pseudonym)

[2015] HCATrans 334

[2015] HCATrans 334

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 2015

B e t w e e n -

THE QUEEN

Applicant

and

RAMON HARRIS (A PSEUDONYM)

Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 2015, AT 10.17 AM

Copyright in the High Court of Australia

MS N. ROGERS, SC:   If the Court pleases, I appear with my learned friend, MR B.L. SONNET, for the applicant.  (instructed by Acting Solicitor for Public Prosecutions)

MR G.J. LYON, QC:   If the Court pleases, I appear with my learned friend, MR C.J. PEARSON, for the respondent.  (instructed by Paul Vale Criminal Law)

KEANE J:   Ms Rogers.

MS ROGERS:   Your Honour, the first thing that we must acknowledge and grapple with is the reluctance of this Court to grant special leave from interlocutory decisions, of which this is one.  However, we point out that the accused is currently on bail and the trial is listed to commence on 28 August next year for 15 days to accommodate two consecutive trials should severance be granted by the trial judge as was flagged in Harris v The Queen [2015] VSCA 112 – flagged that that probably should happen.

Nevertheless, our submission is that there are quite exceptional circumstances.  Firstly, we say that the point is one of general application.  Any uncertainty concerning the application and operation around the coincidence rule highlighted in Velkoski v The Queen [2014] VSCA 121 is not conducive to the administration of justice in Victoria. There may be a continued misapplication of coincidence principles to sexual assault trials in this State and such trials make up a large bulk of the County Court list in this State and the prosecution makes application to utilise tendency and/or coincidence evidence almost on a daily basis.

The other reason that we say that there are exceptional circumstances is that the interests of justice require a grant of special leave in this particular case.  That is because unless the principles are dealt with by this Court it is inevitable that there will be severance of the indictment because there is no cross‑admissibility in this matter and, thus, the prosecution case will be inevitably weakened for each complainant in each trial.

Can I go to the three errors that we say were made by the court below?  The first error is contained, or is set out, at paragraphs 3.25 to 3.27 in our outline of submissions at page 48 of the application book.  In a nutshell, that error is that the court misunderstood the trial judge’s ruling as to the evaluation of the penile anal penetration accounts described by each of the two complainants.  The trial judge said that the buggery acts were “vanilla”, and if I can take your Honours to page 7 of the application book at lines 31 to 34:

I noted during the course of discussion that the manner in which the buggery was alleged to have occurred on each occasion was “vanilla” –

However, if one reads on that was clearly a reference by the trial judge to the lack of a unique signature because his Honour then went on to talk about there being no “smiley face” drawn “with a texta” on the body of the complainant, and that is from lines 33, page 7 of the application book through to line 2 at page 8.  We say that the reference to “vanilla” and the rest of that passage was then interpreted by the Victorian Supreme Court of Appeal as the trial judge finding that:

the particular acts, constituting the anal penetration in each case, to have occurred in circumstances that were relatively usual in the constellation of cases in which that offence occurs.

That is at paragraph 15 in Harris on page 25 of the application book.  But, in fact, that is not what the trial judge said.  When reading the context, it is clear that what the trial judge was referring to was a lack of a unique signature; that is, no smiley face drawn with a texta on the body of the complainant.  Additionally, the trial judge did not say that the sexual acts were “relatively usual”, quite the contrary.  His Honour ruled that it was – and this is at page 12 of the application book at lines 19 through to 23:

I would regard it as unusual for a mature man to commit the offence of buggery –

on a young six to 10 year old child and made more so by the circumstances in which the acts were committed.  It is not usual or common or normal for adult men to commit acts of penile anal penetration on young children.  This is so, despite the number of such cases that come before all courts.  That should be the starting point, in our submission, for when coincidence evidence is considered in a case such as this.

Some intermediate courts have expressed a like view to date but that has been tethered to the nature of the relationship between the accused and the complainant.  For example, in the Victorian Court of Appeal case in DR v The Queen [2011] VSCA 440 at paragraph 88, which we set out at page 46 of our application book, the court in that matter said that:

It does not seem to us that the sexual abuse of a child, step child or grand child by their parent, step parent or grandparent is such a common occurrence –

and so on, and in that quote that we provide in the application book, that quote goes on to cite Justice of Appeal Hodgson in the New South Wales case of BP v The Queen [2010] NSWCCA 303 that “it is unusual for a parent or grandparent to do acts of the kind described by each witness”.

In DR’s Case - DR was a tendency and coincidence case - there were two complainants and the sexual acts were various.  They are found at paragraph 75 of DR’s Case and the particulars of the charge numbers are found at paragraph 7 in tabular form, but in short form the sexual acts were incest by fellatio, digital vaginal penetration and lingual vaginal penetration.  There were also indecent acts made up of him touching their private parts, exposing himself, requiring them to touch or masturbate him and masturbating in their presence and it was held in DR’s Case that the evidence was correctly admitted as tendency and coincidence evidence.

Velkoski that I referred to a little earlier also makes mention at paragraph 109 about a matter that your Honour Justice Nettle sat on, RHB v The Queen [2001] VSCA 295 at paragraph 117 when your Honour said:

it is a remarkable thing for a man to commit sexual acts against his female lineal descendants –

and that is set out at 109 in Velkoski.  In this particular matter, the trial judge found that despite many species of sexual assault or molestation it was significant that each complainant came forward alleging a specific act of penile anal penetration.  Having regard to the similarities in both the events and the circumstances in which they occurred, the trial judge ruled that the evidence of each complainant had significant probative value.  We say that the trial judge’s ruling was correct.  The similarities were not simply features which would characterise almost every allegation of sexual offending against a young boy, let alone penile anal penetration of a young boy.  There was a large measure of particularisation in the accounts of each of the two complainants.

Can I move on to the second error which we have outlined at paragraph 3.28 of our outline of argument at page 48?  In essence, we say that the court below:

erred in concluding that the evidence of the two complainants did not demonstrate the requisite “underlying unity”.

That court concluded that whilst the coincidence evidence was of probative value because of the similarities, it was not of significant probative value when the dissimilarities were taken together.  The Victorian Supreme Court of Appeal said that there were four differences and they are set out at page 24 of the decision of the court below.

The first difference, charge 1/2 where BS was in bed with the accused and his mother and the offending involved only BS and the accused, whereas the court said for charges 7 and 8 the offending occurred in BS’s bed and was preceded by offending involving the accused and both complainants, and that is at line 50, page 29 of the application book through to line 3 at page 30.  But in this particular matter the same adult, that is, BS’s mother, was in the same house on each occasion and asleep and the accused was the only adult involved in the offending in relation to BS and CJ ‑ on each occasion.

So far as the second difference is concerned, the Court of Appeal below said that there was no pre‑masturbation for charges 1 and 2 but the respondent got each complainant to masturbate him before anal penetration of the second complainant for charges 7 and 8.  This difference is arguably not a separate difference because it has already been picked up in the first difference, as the court already noted at line 30, page 30 of the application book.

So far as the third difference was concerned, there was ejaculation for CJ, the second complainant, but not for the first complainant.  But this, we say, is a marginal difference when one considers that each sexual act was an identical act, that is, anal penile penetration.  So far as the fourth difference is concerned, the court said – and it said that this was an important difference, that there was at least 12 months between the events – that is at lines 21 to 30 at page 30 of the application book.

The time gap, in our submission, has a sufficient temporal connection when one takes into account all of the other similarities between the events and circumstances.  These four differences identified by the Court of Appeal do not detract from the force of the complainant’s accounts.

KEANE J:   Ms Rogers, is not the difficulty though what emerges from paragraph 25 on page 30 that their Honours acknowledge that there is a degree of force in the point that it is improbable the two complainants as a matter of coincidence would separately give these accounts but that the degree of that force is undermined by the differences, and it is because of that view taken of the degree – of that question of degree that they conclude that there is not significant probative force.  The conclusion that you are attacking, the conclusion in paragraph 25, is necessarily a conclusion about matters of degree rather than matters of principle.

MS ROGERS:   Well, except what we say the end result is, from identifying these four differences, we say that the court has, in effect, insisted that there be almost striking similarity between the complainants’ events or circumstances for the coincidence evidence to be admissible.  These are the only four differences that there are and we say that they are, in the scheme of things, minimal differences.  So what we say is that the Court of Appeal has elevated that there is a need for there to be almost striking – they have elevated it up, the requirement is that there be pretty much strikingly similar circumstances or events.

KEANE J:   But, as a matter of principle, it has been well settled since Boardman when Lord Wilberforce said that prosaic details, differences in prosaic details can dilute the striking force of what otherwise might be said to be similar.  That has been accepted as a matter of principle for a long time and not assailed.  The question is, at what point do the prosaic details or the differences in the details reach a point where it could be said by the court that there is not significant probative force in the coincidence evidence.  Why are we not in that territory here?  Why are we in the territory where we are looking to articulate a different principle?

MS ROGERS:   Well, what we say is that Boardman, Hoch and so on use language from the common law, striking similarity, pattern, underlying unity and so on.  What we say though is that that can cause of itself a prism or lens through which the statutory language is looked at, that is section 98.  Section 98 talks about any similarities and so on, and we say that by using the common law concepts of underlying unity and so on that the correct approach, if I can put it that way, is reflected in what Justice of Appeal Campbell said in R v Ford which is cited by Justice of Appeal Basten in Saoud’s Case in my learned friend’s authorities where Justice of Appeal Campbell says:

All that is necessary is that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged.

NETTLE J:   So it is R v Ford plays Velkoski is the question of principle, is that it?

MS ROGERS:   Yes, it may well be.  I had not kind of gone back as far as Boardman, but certainly the language ‑ ‑ ‑

NETTLE J:   R v Ford, on the one hand, the New South Wales decision of Justice Campbell, against Velkoski, the case with which you began your submissions this morning.  It is the divergence between those two that you say constitutes the question of principle?

MS ROGERS:   Yes, your Honour.  Just picking up on what your Honour just said, the influence of Velkoski, this second error if you like we say highlights the influence that Velkoski has had on the admissibility of tendency and coincidence evidence in Victoria.  In Velkoski, the Court of Appeal discussed a New South Wales decision of Doyle v The Queen [2014] NSWCCA 4 and that is at paragraph 145 through to 152 in Velkoski’s Case.

The Victorian Court of Appeal said that taking into account the dissimilarity between the acts forming the basis of each offence and the period of time between the offending occasions, if that matter had been in Victoria on the accused’s interlocutory appeal, and the court said that there was no doubt that such an interlocutory application would have occurred if it had been in Victoria, then there would have been real prospects of success on appeal.

We say that this is an example of how Velkoski has informed the decision in Harris.  In Harris, the court used the dissimilarities and the time gap, as the Victorian Court of Appeal did in Velkoski, when commenting upon Doyle to find that the coincidence evidence did not have significant probative value.

The third error we say occurs in ‑ this is at page 48, our paragraph 3.29, where the coincidence reasoning is sought to be used.  It is a combination of the independent complainants telling lies about an accused who commits, relevantly, similar acts and/or in similar circumstances which supplies the requisite probative force. 

Now, this to some extent is tied in to the second error we say where the differences have been improperly elevated, but we say that that combination has been overlooked or passed over by the Victorian Supreme Court of Appeal as exemplified in a passage at page 30 of the application book at paragraph 25, lines 33 to 37:

Taken together, those dissimilarities necessarily diminish the strength of the proposition that it is improbable that the two complainants would allege that the events occurred as a matter of coincidence.

In this case, it was established on the voir dire before the trial judge that the complainants had last had contact with each other 30 to 35 years before.  There was no challenge in the court below to the finding of the judge that there was no reasonable possibility of contamination, collusion, concoction and so on, and that is in the Court of Appeal’s decision in paragraph 16 at page 26 of the application book.

Our submission is that, of course, similarities are required, events and/or circumstances, but the nature of the similarities needs to be assessed against how the coincidence reasoning works.  It is about independent

witnesses telling lies, plus the similarities and so on that they then recount of the events and/or circumstances.

KEANE J:   I think your time is up, Ms Rogers.

MS ROGERS:   Thank you.

KEANE J:   Thank you.  Mr Lyon.

MR LYON:   If your Honours please.  In our submission, the Crown’s application for special leave should be refused for two principal reasons.  They are set out in our written outlines, but the first is the failure to properly identify the special leave point.  I will do this by way of overview.

In this point, the Crown submits that special leave should be granted to resolve a divergence in approach between New South Wales and Victoria on the reception of coincidence evidence and it states that is the reason at paragraph 4.1.  This is wrong, this is absolutely wrong.  If there is a divergence of approach, which is not clear, it is as to the threshold of admissibility of tendency evidence, yet there is no tendency notice or issue raised in this trial by the Crown, nor was tendency referred to in the judgment of the court below.

Fortuitously, with Justice Nettle sitting today, I can say that your Honour Justice Nettle has observed that tendency and coincidence evidence may overlap in some cases but they are not the same concept.  Now, we know this is true because the provisions are separate – one is found in 97, one is in 98.  They provide different bases for their reception.  There is a point at which they come together, and that is significant probative value.  We will get to that in a moment, but they are not the same concept.  Of course, as here, one may be present without the other.

So, the issue identified by the Crown and elaborated in its summary of argument, which we have addressed for a couple of pages in our written submissions, even if it was decided that there was a divergence between New South Wales and Victoria as to tendency evidence, resolving the issue would not necessarily flow on to clarify any issue to do with coincidence.

KEANE J:   Well, you say that to the extent that there is a divergence of approach it is about section 97 and this case does not raise that so it is not a vehicle for that issue.

MR LYON:   Exactly, your Honour, you could resolve the issue and not a single point would flow on to resolve the matter in Harris.  So it becomes a real stretch to use special leave – this point of public importance to this vehicle is simply the wrong vehicle, it is an inappropriate vehicle to test this point.

So, in effect, therefore, the Court is asked to resolve an issue outside the parameters of the trial and so we say that it should not do so because the public importance point identified particularly at 4.1 is the reason why special leave should be granted is wrong.  So, accordingly, we submit that there is no point of public importance identified in the Crown application. 

We say that this factor is attended by other factors and that is the fact that this is a Crown application from an interlocutory appeal and the appeal is made by the Crown, so we say that these are factors that attend on and militate towards no latitude being given to the Crown in formulating its case for special leave.

Now, really that should be enough to dispose of this matter.  I will address the other issues, if the Court desires.  I did say that there are two reasons why leave should be refused and the second reason is as identified by Justice Keane and we have referred to in our summary of argument.  The applicant’s grounds of appeal and the questions posed raise criticism of the application of established principles to the evidence in this case. 

There is simply no pointing to errors of principle, it is all about application, and that is where the Crown falters in what we say is the second aspect and that is demonstrated by the level of detail that our learned friends took the Court to – references to the facts of the case, what it is that the primary judge had found, what the evidence was – they are simply not pointing to any error of principle.

Now, as we outline in our written argument, there is no sign that the court in the first place adopted a mathematical approach, as alleged.  After identifying the features relied upon for cross‑admissibility, which it was required to do in the Court of Appeal, the court was obliged to identify other factors that diminished the strength of that contention because, of course, what it had to be satisfied of was not only that the evidence was relevant and admissible but in order to be cross‑admissible it had a significant probative value.

Now, of course, there must be an evaluation process, and that requires the Court to look at what is the evidence of similarity or underlying unity or whatever term you wish to use in order to admit the evidence but then, of course, disparate factors must be taken into account in the evaluation.  If they are not, then the court would certainly have committed error. 

So, interestingly, one of the factors that was not pointed to by the Crown was the use of the word “diminished” as part of the mathematical equation.  So it is not clear from what other factors it is said that there was a mathematical equation of addition and subtraction but, of course, there has to be an entire - an assessment of all of the evidence.

The next point that was made was that in ground 3 - it was contended that the court below erred in not concluding that anal penetration of a young boy, whilst lying on his side on a bed, by a male adult whilst the male’s partner was asleep in another house was unusual or that such acts did not reveal a sufficient underlying unity in its assessment of significant probative value. 

We say that there are two propositions caught up in that and that each needs to be looked at in turn.  The court below did say that this was a case that was usual within the constellation of these cases, but on close assessment that is no more than what the trial judge himself was saying in his ruling.  The trial judge described the offending in this case as “vanilla”, which I take to mean bland, unexceptionable, without a distinctive signature. 

So for the Court of Appeal to describe what occurred as usual within the constellation of the cases is no more than what the trial judge was saying himself.  The trial judge, as we point out in our written submissions, in the course of argument echoed his findings, and at 3.15, page 59 of our written argument the trial judge:

. . . considered that the concatenation of circumstances described by each complainant – the acts of anal penetration occurred in the same house, with another boy of about the same age –

et cetera.  So there was an acknowledgment by the court below of what the trial judge had found so it is not as if there was any moving away or failure to consider what it is that the trial judge had found.  The trial judge himself, as we say at line 20 of page 59 - he admitted:

that he was looking at the evidence of the complainants ‘conceptually’, and the question of ‘how one determines significant probative value absent those . . . quite unusual features’.

So the trial judge himself is struggling to find that the evidence was of significant probative value.  So no ill attaches to what the Court of Appeal had said in describing it as usual within the constellation of cases.

Beyond that, the grounds – picking up the point that your Honour Justice Keane made – what the Crown is talking about is the application of

evidence to established principles and as to whether there has been a sufficient consideration.  So they are talking about degree, not error, and we say for that reason the Crown has got it wrong.

Finally, the Crown disputes the judgment of the court below as to the exercise of discretion.  At the end of the judgment in the Court of Appeal the court considers the fact that there are uncharged acts that are admissible in relation to one set of allegations but not in relation to the other set of allegations and the court says that confirms our reason as to why this matter ought not be cross‑admissible.  The court says the fact that there are uncharged acts would lead to a high level of complexity in directing the jury and they say that that is another reason why the probative value is outweighed by the prejudicial factors in this case, complexity of directing the jury.

Complaint is made of that by the Crown but, of course, there is precedent in our Court of Appeal for finding that that is reason alone to sever a presentment, so in the exercise of discretion the Crown simply have not taken that point up, they have not looked at – they have not done enough to establish that there has been error across that aspect, let alone all the other aspects.  So taking our two points, we say that they must fail for failing to prove the special leave point and, secondly, there is insufficient demonstration of error on the part of the court to warrant this Court’s intervention.

KEANE J:   Thanks, Mr Lyon.  Ms Rogers.

MS ROGERS:   Your Honours, we say that there is a fault line between New South Wales and Victoria on the uniform legislation operating in both jurisdictions and that is picked up when Velkoski at paragraphs 164 and 165 says this, and we have reproduced it at page 45 of our application book at lines 35 onwards:

We consider the approach currently taken by the New South Wales Court of Criminal Appeal to tendency and coincidence goes too far in lowering the threshold to admissibility . . . 

It is unfortunate that the law regarding tendency and coincidence evidence appears to have developed along divergent paths in New South Wales and Victoria.

It makes another four references to the divergent views between New South Wales and Victoria, or divergent paths, and those places in the Velkoski judgment are at paragraphs 91, 110, 115 and 140. The observations made by Velkoski are not, in our submission, at all restricted to tendency.  As your Honours please.

KEANE J:   An appeal would turn on questions of fact and degree.  No question of principle which would warrant the grant of special leave to appeal arises.  Accordingly, the application for special leave is refused.

AT 10.54 AM THE MATTER WAS CONCLUDED