Rhodes (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0197

RODNEY RHODES (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and the complainants.

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JUDGES:	NIALL and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2024
DATE OF JUDGMENT:	29 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 15
JUDGMENT APPEALED FROM:	DPP v [Rhodes] (Ruling 2) (County Court, Judge Doyle, 25 September 2023)

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CRIMINAL LAW – Interlocutory appeal – Coincidence evidence – Whether evidence of complainants has significant probative value – Evidence of receiving explicit images not significantly probative of whether act of sexual penetration occurred – Similarities between accounts unremarkable – Applicant’s knowledge that one or more complainants under 16 years old not rationally probative of knowledge of different complainant’s age – Leave to appeal granted – Appeal allowed – Ruling set aside.

Evidence Act 2008, ss 98 and 101.

Hoch v The Queen (1988) 165 CLR 292; R v Bauer (2018) 266 CLR 56, considered.

Phillips v The Queen (2006) 225 CLR 303, distinguished.

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Counsel
Applicant:		Ms AJ Burnnard and Ms S Joosten
Respondent:		Ms M Mahady and Mr ES Dober
Solicitors
Applicant:	Kurnai Legal Practice
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WALKER JA:

The applicant is facing a trial in the County Court on an indictment relevantly containing six charges of sexual offending against children under the age of 16 years, which relate to five complainants.[2] At the time of the alleged offending, the applicant was between 16 and 18 years of age. The complainants ranged in age from 13 to 15 years.
[2]A seventh charge of possessing child abuse material has been severed.
In summary, the charges, which each have as an element that the complainant was and was believed by the applicant to have been under the age of 16, are as follows:
(a)engaging in a sexual activity in the presence of SH, and using a carriage service to transmit an indecent communication to SH (charges 1 and 6);
(b)engaging in a sexual activity in the presence of PB (charge 4);
(c)sexual penetration of CG (charge 2);
(d)sexual penetration of EA (charge 3);
(e)sexual penetration of CS (charge 5).
It is important to record that the charges involving SH and PB occurred over the internet; they were not ‘contact offences’. The charges involving CG, EA and CS involved penile/vaginal intercourse.
In order to prove the charges the prosecution will need to prove, to the criminal standard, that the applicant engaged in the relevant acts knowing or believing that the complainant was under the age of 16 years. That is to say both his conduct and his state of mind, in the sense of his knowledge and belief as to the age of the complainants, are relevant to the proof of each charge.
Each of the complainants say that they exchanged social media messages with the applicant. In respect of SH and PB the alleged offending occurred entirely over social media. In relation to CG, EA and CS, the charges relate solely to sexual penetration. The prosecution submits that the evidence on each charge is cross-admissible. The prosecution contends that, given the similarities of the accounts given by the complainants, it is improbable that they came up with similar false accounts of the applicant’s offending. That is, the prosecution seeks to rely on ‘coincidence evidence’ to prove that the applicant committed the relevant acts comprising the charges. Before the trial judge the prosecution also sought to rely on coincidence evidence to prove the applicant’s knowledge or belief that each of the complainants was under 16 years of age.[3]
[3]On the appeal the prosecution made a partial concession that the evidence was not entirely cross-admissible on the question of knowledge of the complainants’ ages. We return to this later in our reasons.
By way of an interlocutory ruling, the judge accepted those submissions and permitted the prosecution to rely on coincidence reasoning to prove both that the applicant committed the acts and to prove his knowledge of the complainants’ age. The applicant now seeks leave to appeal the interlocutory ruling. The applicant requires an extension of time to seek leave to appeal the interlocutory ruling. The respondent does not oppose the grant of an extension of time.
In order to overturn the ruling, the applicant must show error of a kind described by the High Court in House v The King.[4] That is, in order to succeed on appeal, it is necessary for the applicant to demonstrate that the judge has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect them, has mistaken the facts, has failed to take into account some material consideration, or has reached a conclusion that is unreasonable or plainly unjust.
[4](1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 (‘House’). See also KJM v The Queen (No 2) (2011) 33 VR 11, 13 [12] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); [2011] VSCA 268.
For the reasons that follow, we have come to the conclusion that the judge’s finding that the evidence had significant probative value through coincidence reasoning was not open to be made and cannot stand.

Statutory provisions

In order for the evidence to be admissible on the identified basis, it is necessary for the prosecution to meet the test in s 98 of the Evidence Act 2008. That section provides:
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless—
...
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
In a criminal proceeding, it is also necessary to satisfy s 101. Section 101(2) provides that ‘coincidence evidence about an accused, that is adduced by the prosecution cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused’.
The directions which a trial judge must give in relation to coincidence reasoning are dealt with in s 27 of the Jury Directions Act 2015. Coincidence evidence is taken to be a form of ‘other misconduct evidence’. Section 27(2) of the Jury Directions Act requires the trial judge to identify how the other misconduct evidence is relevant (whether directly or indirectly) to the existence of a fact in issue in the trial and direct the jury not to use the evidence for any other purpose.

The prosecution case

At this point in time, the evidence of the complainants is in the form of a VARE. A special hearing in respect of the evidence has not yet been held.
In the summary of prosecution opening, the prosecution alleges that between 2019 and 2020, when the applicant was aged between 16 and 18 years, he communicated individually with the five complainants through the social media platforms Snapchat and/or Instagram. The age of the girls ranged from 13 to 15 years. The applicant sent explicit messages including images of his penis to four of the complainants. On separate occasions, the applicant arranged to meet with three of the complainants and engaged in an act of sexual penetration with them.

SH (charges 1 and 6)

The prosecution alleges that the applicant sent SH videos of himself masturbating and photographs of his penis on multiple occasions. On one occasion, the applicant sent SH successive photographs while he was in the shower. He then moved the camera to show more of himself, but she told him it was gross, and she did not want to see any more (charge 1 — sexual activity in the presence of a child).
SH recalled one occasion in which the applicant sent her a video of himself masturbating on his bed (charge 6 — using a carriage service to transmit indecent communications to a person under 16 years of age).
In her VARE, SH said that the applicant sent her numerous explicit messages including photographs of his penis and messages in which he said he would ‘fuck [her] so hard and when he’s done with [her she’ll] be sore, won’t be able to walk for a week’. He said he would choke her and make her call him Daddy and pin her on a bed or tie her up. Between December 2019 and August 2020, he requested that SH send images of herself to him, but she did not. It appears, though it is not entirely clear, that these are uncharged acts.
In her VARE, SH said that she had blocked the applicant five times but later allowed the electronic exchanges over various platforms to resume and that she had never met him in person.
At the time of the alleged offending, the applicant was between 16 and 18 years of age and SH was between 13 and 14 years of age. The difference between their ages was 3 years and 7 months.

PB (charge 4)

The prosecution alleges that between September 2019 and March 2020, the applicant and PB communicated over Snapchat.
The applicant asked PB to send photographs of herself and asked her if she would come over to his place. She sent photographs of herself, clothed. The applicant asked her to lift her clothing, including her shirt and her shorts. PB never sent any nude images to the applicant. The applicant sent PB photographs of his penis and of himself masturbating. The applicant sent explicit messages to PB, stating ‘I wanna make you feel good’, ‘I wanna, like, fuck you so hard’ and ‘I’ll choke you’, and that he wanted to kiss her all over.
Charge 4, engaging in sexual activity in the presence of a child, is based on the applicant’s sexualised communications including the images alleged to have been sent to PB.
At the time of the alleged offending, the applicant was 17 and PB was between 13 and 14 years of age. The difference between their ages was 3 years and 11 months.

CG (charge 2)

The prosecution alleges that the applicant and CG met in early 2019. The two exchanged messages on Snapchat and other social media platforms over some period of time. During their Snapchat conversations, the applicant asked CG if she would stay at his house and have sex with him. On occasions he requested she send him nude photographs of herself. He made comments such as ‘You’re really hot and you’ve got a fit body and you shouldn’t be ashamed of it. And you should just send nudes to me’. CG did not send any nude or sexualised images of herself. The applicant did not send any sexual images of himself to CG.
The applicant arranged for CG to visit him at his home. CG told the applicant on a few occasions that she would not because he was too old but, eventually, she went to his house and stayed there for two nights. On the first night, the applicant asked her to have sex with him and she said yes, and they had sexual intercourse (charge 2 — sexual penetration of a child under 16).
At the time of the alleged offending, the applicant was 16 years of age and CG was 12 years of age. The difference between their ages was 4 years and 3 months.
CG said she told the applicant her age. There is a dispute between the parties about whether this evidence related to a time before or after the act of penetration.

EA (charge 3)

The prosecution alleges that sometime between January and October 2019, EA and the applicant began communicating via Snapchat and Instagram. The applicant sent photographs of his penis and videos of himself masturbating to EA on multiple occasions. The applicant asked EA for nude photographs on multiple occasions, which she refused to send to him.
Sometime between September and December 2019 the applicant asked EA to come to his house. At that point he had not sent any explicit pictures of himself for a few months. They had been communicating for a few weeks and EA agreed to go to the applicant’s house. EA went to the applicant’s house. They sat in his bedroom and talked for approximately 20 minutes and then started kissing on the applicant’s bed. They then had sexual intercourse (charge 3 — sexual penetration of a child under 16).
At the time of the alleged offending, the applicant was 17 and EA was 15 years of age. The difference between their ages was 2 years and 3 months.

CS (charge 5)

The prosecution alleges that the applicant communicated with CS using Snapchat. CS’s ‘Snapchat story’ (which is able to be seen by any viewer of her story) stated that she was 15 years old.
Before the applicant met CS for the first time he sent her a photograph of his penis, asking her, ‘Do you want this?’. He asked her to send photographs back, which she did not do.
On 16 November 2019, the applicant and CS agreed over Snapchat to meet at the Moe Bonfire in Moe. The two spent time together in the company of others and then left for the applicant’s home. The applicant took CS into his bedroom where they watched a movie and the applicant hugged and kissed her. They removed their clothing and engaged in sexual intercourse (charge 5 — sexual penetration of a child under 16).
Sometime later, they had a conversation via text message, in which CS confronted the applicant in relation to him having sex with her and another complainant, CG, when CG was 13 years of age.
The applicant sent nude photographs of himself to CS on a separate occasion and asked her to send photographs back: ‘I sent to you. Why can’t you send back?’. She did not send any photographs to him.
At the time of the alleged offending, the applicant was 17 and CS was 15 years of age. The difference between their ages was 2 years and 6 months.

The coincidence notice

As required by s 98(1) of the Evidence Act, the prosecution gave notice in writing of its intention to adduce coincidence evidence. The coincidence notice stated that the prosecution seeks to rely on coincidence evidence to prove that the applicant committed the following charged acts:
(a)engaging in sexual activity in the presence of a child under 16 (charges 1 and 4);
(b)sexually penetrating a child under 16 (charges 2, 3 and 5); and
(c)using a carriage service to transmit indecent communications (charge 6).
The notice also stated that the evidence related to the fact in issue of whether the accused knew that the complainants with respect to all charges were under the age of 16 at the time of the alleged offending.

The judge’s ruling

By way of a pre-trial ruling, the trial judge held that s 98 was satisfied and admitted the evidence. In his pre-trial ruling, the judge referred to common features across the evidence of the complainants, highlighting the following:
(a)the narrow timeframe;
(b)the similarity in ages of the complainants;
(c)the use of Snapchat; and
(d)‘sexualised communications’ being sent to each complainant (which the judge set out in some detail, and which we set out below at [57] and [58]).
The judge concluded:
Based on the foregoing I am satisfied it is well open to the prosecution to argue that it is improbable that by coincidence the complainants came up with such similar false accounts. In other words, the argument that these events arose from a common source, namely the conduct of the accused, rather than by coincidence is clearly available to the prosecution. In my opinion the dissimilarities referred to by [counsel for the applicant] do not diminish the probative value of the evidence.
The central facts in dispute are whether sexual penetration occurred in relation to complainants [CG], [EA], and [CS]; whether the accused engaged in sexualised communications and sent pictures and videos of himself masturbating to complainants [SH] and [PB]. In relation to all complainants the uncharged conduct of sexualised behaviour over social media is also in dispute. I am satisfied the impugned evidence tends to prove the disputed facts.
Having regard to the issues in dispute I am satisfied that the evidence has significant probative value taking into account all the evidence including the matters admitted by the accused and the issues in dispute. The credibility of the complainants will be an issue in the trial. The coincidence evidence (and the argument based on that evidence) is therefore highly probative as the evidence if accepted can support the credit of the complainants.
The evidence is significantly probative of whether the accused committed the specified acts in dispute. In my view, the evidence is also significantly probative of the question of whether the accused had a reasonable belief that the complainants were not under 16 years old.[5]
[5]DPP v [Rhodes] (Ruling 2) (County Court, Judge Doyle, 25 September 2023), [57]–[60] (‘Reasons’).
The judge did not accept that the jury would have an overwhelming emotional response to the evidence. There were only six charges, which the judge considered not an overwhelming number, and the jury would be given directions to ameliorate the risk of prejudice. Therefore, in the judge’s view, the probative value of the evidence substantially outweighed any prejudicial effect it may have.
Thus, the judge admitted the evidence for coincidence purposes.

The principles

Subject to meeting the strictures of ss 98 and 101 of the Evidence Act, ‘coincidence evidence’ may be used to prove that an accused person ‘did a particular act’ or ‘had a particular state of mind’. Proof of those facts involves a process of reasoning that is founded on the probability (or improbability) of two or more similar events occurring coincidentally.
In order to apply s 98 it is necessary to identify relevant ‘events’ and articulate the similarities between them. What constitutes a relevant event for the purpose of the analysis will depend on the circumstances of the case and what is sought to be proven by improbability reasoning. It is essential to identify at the outset the issues on which the evidence is tendered so as to enable the necessary assessment of its relevance and probative force to be undertaken.[6]
[6]Phillips v The Queen (2006) 225 CLR 303, 311 [26] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); [2006] HCA 4.
So, for example, if what is sought to be established is the identity of the offender,[7] the relevant ‘events’ will often be the commission of the offences and the reasoning proceeds from a comparison of the similarities (or dissimilarities[8]) between them. Where three bank robberies are performed in a peculiar way it may be possible to reason that it was improbable that they were performed by different people. On the other hand, generic features that are often found in that type of offending, or which are implicit in the elements of the offence, would provide a very weak foundation for any inference that the perpetrator was the same person.
[7]Dempsey (a pseudonym) v The Queen [2019] VSCA 224; Patton (a pseudonym) v The Queen [2021] VSCA 104; Addo v The Queen (2022) 108 NSWLR 522, 532 [55] (Beech-Jones CJ at CL, Adamson and Bellew JJ); [2022] NSWCCA 141 (‘Addo’).
[8]Whether dissimilarities in accounts may diminish the force of probability reasoning is somewhat unsettled: Page v The Queen [2015] VSCA 357, [59] (Maxwell P, Redlich JA and Beale AJA) (‘Page’), c.f. Harris v The Queen (2015) 44 VR 652, 658–9 [25] (Priest and Kaye JJA and Croucher AJA); [2015] VSCA 112.
Different considerations will apply where the issue sought to be proved is whether an offence occurred at all. In those cases there are difficulties in using coincidence evidence to directly establish the fact of the offence. That is because, if the events are defined in a way that includes the disputed act as a similar feature, it would beg the question to be determined; the supposed coincidence would only exist if the event occurred, but that is the very question to be determined.[9]
[9]R v Gale; R v Duckworth [2012] NSWCCA 174, [37] (Simpson J).

On the other hand, there are cases, and the present is said to be one of them, where coincidence evidence may assist in proving the commission of an offence indirectly, including by treating the relevant event as the making of complaints by different complainants.[10] In such a case, the form of reasoning relies on the improbability of separate victims describing separate but similar crimes committed by an accused unless they are telling the truth. Here, the prosecution argument is that it is improbable that five girls would make similar — but false — complaints against the applicant. It was this kind of reasoning that was adopted by the judge to reach his conclusion that the evidence had significant probative value. Once it is accepted that the evidence bolsters the accounts of each of the complainants, it increases the probability that the events happened as claimed.
[10]Addo (2022) 108 NSWLR 522; [2022] NSWCCA 141; A2 v The Queen [2018] NSWCCA 174.
This distinction was drawn by the High Court in Hoch, where three members of the Court said:
Where, as here, an accused person disputes the happenings which are said to bear a sufficient similarity to each other as to make evidence on one happening admissible in proof of the others, similar fact evidence bears a different complexion for the issue is whether the acts which are said to be similar occurred at all. In such a case the evidence has variously been said to be relevant to negative innocent association or as corroboration but the better view would seem to be that it is relevant to prove the commission of the disputed acts. Certainly that is the thrust of its probative value. That value lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred.[11]
[11]Hoch v The Queen (1988) 165 CLR 292, 295 (Mason CJ, Wilson and Gaudron JJ); [1988] HCA 50 (citations omitted) (‘Hoch’).
Their Honours went on to observe that in such cases the evidence serves two functions:
Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue.[12]
[12]Ibid 296.
Hoch was primarily concerned with how issues of concoction might be dealt with at the level of admissibility of similar fact evidence at common law and does not address the different considerations applying under the Evidence Act.[13] Nevertheless, the description in Hoch of the mode of reasoning remains apt.[14]
[13]R v Bauer (2018) 266 CLR 56, 84 [52] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40 (‘Bauer’); HML v The Queen (2008) 235 CLR 334; [2008] HCA 16.
[14]PNJ v DPP (2010) 27 VR 146, 148–9 [9]–[10] (Maxwell P, Buchanan and Bongiorno JJA); [2010] VSCA 88 (‘PNJ’).
In order to be cross-admissible, the evidence must have significant probative value to the proof of a fact in issue.[15] In the context of a criminal trial, the facts in issue are those which establish the elements of the offence.[16] Usually the credibility of a witness is not, of itself, a fact in issue. Thus evidence that only went to credit would not usually possess significant probative value for the purpose of s 98 (and, in any event, is excluded from pt 3.6 of the Evidence Act[17]). On the other hand, where fabrication is in issue, as it may be in this proceeding, coincidence reasoning may be used to rebut fabrication.[18] Further, in IMM, the High Court accepted that evidence that has the capacity to support the credibility of a complainant’s account, at least where the prosecution case depends on acceptance by the jury of that account, has probative value.[19] It is another question altogether whether it has significant probative value,[20] as required by s 98.
[15]IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (‘IMM’).
[16]Hughes v The Queen (2017) 263 CLR 338, 349 [16] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20 (‘Hughes’).
[17]Evidence Act, s 94(1).
[18]Feng v The King; DPP v Feng [2023] VSCA 196, [58], [63] (‘Feng’).
[19]IMM (2016) 257 CLR 300, 318 [61]–[64] (French CJ, Kiefel, Bell and Keane JJ), 328–9 [107]–[108] (Gageler J); [2016] HCA 14.
[20]Ibid; Bauer (2018) 266 CLR 56, 85 [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40.
Section 98(1)(b) makes it plain that, in assessing the probative value of the evidence, the court must consider whether the evidence, by itself or having regard to other evidence, has significant probative value. For that reason, it would be wrong to examine each piece of evidence in isolation. Of course, in order to have probative value, the evidence must be relevant in that it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue.[21]
[21]Evidence Act, s 55.
In approaching the matter, it is important not to elide coincidence and tendency reasoning. The two modes of reasoning may arise from the same set of facts but are distinct. For example, if a number of children give similar accounts of sexual offending by a person, coincidence reasoning might suggest that it is improbable that they would come up with similar accounts if they were not true, but their accounts might also show that the accused person has a tendency to be sexually attracted to young children. As Callaway JA said in R v DCC:
The difference between probability reasoning and propensity reasoning is not a matter of words or artificiality. It is a different train of thought. It is one thing to say that the account of a witness is more likely to be true because of the similarities it bears to the independent account of other witnesses and the improbability that, by sheer coincidence, their accounts would be so similar. (Such reasoning could just as well be used in relation to armed robberies as sexual offences.) It is a different thing altogether to reason that, because the evidence of one witness is accepted in relation to offences committed against her, the accused is the kind of person who is likely to have committed similar offences against other complainants … .[22]
[22](2004) 11 VR 129, 132 [8]; [2004] VSCA 230.
In addition to being conceptually distinct, they each attract different procedural requirements. The prosecution cannot rely on evidence as tendency evidence unless ss 97 and 101 are satisfied. Where, as in this case, the prosecution eschews reliance on tendency reasoning, the risk that the jury will nevertheless engage in such reasoning is relevant to the question of prejudice in admitting the evidence under s 98.
Whichever way the events are identified, s 98 compels an assessment of the similarities between them. In PNJ, this Court described similarities as the ‘touchstone’ of admissibility.[23] And it is obvious why that is so. The more points of similarity, the less likely the two or more events can be explained away as coincidence and the greater the potency of the combined force of the evidence. It is for that reason that this Court identified, as an initial analytical step, an inquiry as to whether the similarities are such that it is improbable that the events occurred coincidentally.[24]
[23]PNJ (2010) 27 VR 146, 148 [8] (Maxwell P, Buchanan and Bongiorno JJA); [2010] VSCA 88.
[24]CGL v DPP (2010) 24 VR 486, 493 [22] (Maxwell P, Buchanan and Bongiorno JJA); [2010] VSCA 26 (‘CGL’).
The extent to which the content of the complaint is unusual or peculiar will be relevant to rebutting fabrication, as will be the number of the persons who give an account. It is more improbable that a number of persons would independently make the same complaint, especially if they all contain unusual features. That is not to say that it is necessary that there be a striking similarity, a pattern, unusual features or a recognisable modus operandi.[25] However, if the similar features are very common or unremarkable, the power of the inferential reasoning is correspondingly lessened. The more generic, the more it might be expected that the various features will usually or often be present in an account of offending of the relevant kind, the weaker the inference. On the other hand, the greater the number of complainants, the less distinctive or similar the evidence need be to satisfy coincidence reasoning.[26]
[25]Feng [2023] VSCA 196, [48], referring to Phillips (2006) 225 CLR 303, [58] and to CV v The Queen [2014] VSCA 58, [9]–[11].
[26]Page [2015] VSCA 357, [57]; Velkovski v The Queen (2014) 45 VR 680, 720 [175]; [2014] VSCA 121.

The alleged similarities

The prosecution submits that there are a number of similarities across the accounts given by the complainants, some of which are common to all of them and others which are common to various subsets of the complainants.
As to the first aspect, the prosecution identifies the following common elements:
(a)the timeframe in which the alleged conduct is said to have occurred, being from October 2018 to August 2020;
(b)the complainants’ age range, with them being between 13 and 15 at the relevant time, and the age differentials between the applicant and the complainants;
(c)the use of Snapchat as a medium of communication; and
(d)the communications with each complainant including some messages with sexual content.
The prosecution also refers to similarities, which it described as ‘partial similarities’, that were present across some but not all of the complainants.
(a)the applicant sent explicit images of himself by snapchat to EA, PB, CS and SH;
(b)the applicant requested sexual images from EA, PB and CG;
(c)the applicant used Snapchat to invite CG, EA, and PB to his house;
(d)the applicant used distinctive sexual language to PB and SH, saying that he wanted to ‘fuck you so hard’ and ‘choke you’;
(e)the applicant sent sexualised messages to CG and PB about their bodies; and
(f)the applicant engaged in sexual intercourse with EA, CG and CS at his house.

Significant probative value

As already noted, the prosecution seeks to rely on coincidence reasoning to establish both that the applicant committed the alleged acts and that he knew that the complainants were under 16 years of age. Given the course of argument it is convenient to deal with them separately.

Proof that the applicant committed the acts

The prosecution submits that, taken alone and in combination, the similarities between the accounts are such that it was open to the judge to be satisfied that the evidence has significant probative value in proving that the applicant committed the acts alleged.
The prosecution accepts that the coincidence reasoning provides an indirect means of establishing the acts because it is improbable that the five complainants came up with such similar false accounts. The prosecution contends that the evidence acts as a form of corroboration and bolsters the credibility of each of the complainants’ accounts of their interactions with the applicant. As mentioned, the judge accepted this argument.
The prosecution says that it is not necessary that the evidence be ‘strikingly similar’ or unusual and that the cogency of the evidence is bolstered by the number of complainants and the similarities in their accounts.
The applicant submits that there is nothing unusual in the accounts, such that the evidence does not meet the threshold of admissibility as coincidence evidence. The applicant’s alleged communications and interactions with each of the complainants, such as sending sexually explicit images over Snapchat, are unremarkable between teenagers. The applicant also submits that most of the purportedly common features are not common to each complainant, and those that are common to each complainant are very general in nature.
The judge reasoned that it was well open to the prosecution to argue that it is improbable that by coincidence the complainants came up with such similar accounts.

Cross-admissibility of the evidence of all five complainants on all charges

In looking at the similarities ‘in the events’ across the accounts given by the five complainants, it is apparent that the similarities may be described at different levels of abstraction. At its most general, the accounts are similar in that they allege conduct of a sexual nature against the complainants. At a more granular level and based on the charges, the accounts fall into two broad groups: two complainants (SH and PB) say they received sexually explicit messages from the applicant and three (CG, EA and CS) say they engaged in sexual intercourse with him. Two of the latter group also said they received images from the applicant of his penis. As the prosecution submissions made plain, some features are present in some accounts but not others and, with the possible exception of the common language used in messages to SH and PB,[27] none of the features on their own are unusual or remarkable.
[27]‘fuck you so hard’ and ‘choke you’.
Given the nature of the allegations, including their relative gravity and type of offending, the two accounts given by SH and PB (which did not involve in-person contact let alone sexual penetration) are, as a matter of substance, quite different from those of CG, EA and CS.
Although the prosecution accepts that, in isolation, the evidence of sending images is not strongly probative of the acts of penetration, it says that taken as a whole the evidence is significantly probative of a fact in issue. In our view, it is not useful to seek to aggregate the evidence and say that its combined force reaches the level of significant probative value without exposing the reasoning process that is sought to be deployed. Otherwise, where the prosecution relies on all of the evidence, especially where the similarities are more diffuse, there is a greater risk that the evidence will lend itself to propensity reasoning.
In order to test how the coincidence evidence might be relevant to a fact in issue, it is convenient to consider one of the charges of sexual penetration. CS alleges that the applicant:
(a)sent her explicit messages, including photographs of his penis;
(b)invited her to his home; and
(c)engaged in an act of sexual penetration.
It is notable that the sending of explicit messages are not charged acts with respect to CS. Nor does the prosecution seek to rely on them as establishing tendency on the part of the applicant to be sexually interested in CS. Rather, the prosecution will, on the CS charges, seek to rely on those messages as context or relationship evidence.
Four of the complainants, including CS, have said that the applicant sent them pictures of his penis. There is a similarity in the accounts as to receiving such images. The other similarities relied on by the prosecution are less pronounced. The timeframe, a period extending from around October 2018 (in the case of SH) through to March 2020, is not particularly confined, given the ages of the people involved. It cannot meaningfully be said that the communications were contemporaneous.
The use of social media, including Snapchat, is hardly unusual and in their VAREs the complainants each refer to fairly extensive use of that means of communication. In response to a question from the Court, the prosecution suggested that the Court could ‘take notice’ of the proposition that messages on the Snapchat platform can be automatically deleted. That argument was not put to the judge and lacks an evidentiary foundation as to the relative features and capabilities of the different social media platforms. We have put it aside.
It is difficult to know how usual or unusual it is for young men to send girls images of their own (or something purporting to be their own) penis. There was no evidence before the judge on that issue. However, in assessing whether the evidence, alone or in combination, has significant probative value, the court must apply ‘the same well-known principles of logic and human experience as are used in an assessment of whether evidence is relevant’.[28]
[28]Hughes (2017) 263 CLR 338, 357 [42] (Kiefel CJ, Bell, Keane and Edelman JJ); [2017] HCA 20 (citations omitted).
Bearing in mind that this is an interlocutory appeal governed by the principles in House, we are satisfied that it was open to the judge to conclude that, in the face of four independent accounts that a complainant received pictures of the applicant’s penis, it is more likely that each of these accounts is true. We reserve for the moment the question of whether the evidence is significantly probative. In the case of SH and PB, the applicant sending pictures of his penis is relied on by the prosecution as going to an element of the charged offences. In the case of EA and CS, the sending of images are uncharged acts.
But what, if anything, does it say about the account given by CS (and CG and EA) that there had also been an act of sexual penetration? That is, to what extent is the evidence of receiving explicit images probative of the charged act of intercourse?
There are two possible paths of reasoning. The first is that, having established that it is more likely that each of the four girls received explicit pictures, this in turn makes it more likely that the applicant had intercourse with two of them. In our view, that is a very weak path of reasoning and lacks probative force. Having sent images on other occasions does not make it more likely that an act of sexual penetration occurred on a different occasion. The nature of the acts is very different, with the former not requiring any physical contact. Even without evidence as to the prevalence of sending explicit images, it is a matter of human experience that evidence that two relatively young people sent or engaged in sexual communications on some occasions does not make it more likely that the contact progressed to sexual intercourse on any particular occasion. Indeed, on the prosecution case, four girls received explicit images but only two of them were later the victims of sexual penetration. And one of the girls (CG) says that there was an act of sexual penetration but does not say that she received explicit images from the applicant.
The point can be further illustrated by the prosecution opening in relation to the complaint brought by CS. As already explained, her complaint gave rise to a single charge of sexual penetration with a child under 16 years of age. In the opening, the prosecution indicated that they will seek to adduce evidence from her that prior to their first meeting the applicant sent CS a photograph of his penis accompanied by the words ‘Do you want this?’. The prosecution says that this is context evidence that shows the nature of the relationship but disavows any reliance on tendency. On that basis the prosecution could rely on the evidence to rebut the suggestion that the allegation of sexual intercourse came out of the blue and that, at least from the applicant’s perspective, there was an escalating sexual component to the applicant’s conduct.
Of course, in considering the probative force of the evidence it is not permissible to reason that the sending of images might reveal a sexual interest on the part of the applicant because that would be to engage in tendency reasoning.
The second, more general, approach would be to reason that because four of the complainants are telling the truth about receiving explicit images they are more likely to be telling the truth about other aspects of their complaints and, in the case of CS (and CG and EA), about the allegations of intercourse. It is true that the trier of fact will often be influenced by whether a witness is to be believed on a variety of matters. A lie on a peripheral matter can prove devastating to the credit of a witness. Equally, corroboration on peripheral matters may make the overall evidence of a witness more persuasive and believable.

In his record of interview with police, which the judge has ruled is admissible in the trial, the applicant denied sending any sexualised images to any of the complainants and denied having sex with them. Those denials are relevant to the assessment of whether the witnesses are telling the truth about the allegation that sexual intercourse occurred. Thus the jury will be required to consider those denials when considering the evidence of the complainants. In doing so, corroboration of the girls’ accounts that the applicant initiated sexual communications may be relevant to the nature of the developing relationship and in assessing his version of events.
Although bolstering the credit of a witness by reference to peripheral matters is commonplace and reasonable, it does not render the evidence significantly probative of a fact in issue. In Bauer the High Court said:
In IMM, a majority of this Court held that a complainant’s evidence of a sole uncharged sexual act did not have significant probative value. Their Honours reasoned that, because the principal issue in that case was the complainant’s credibility, the complainant’s evidence of the uncharged act was rationally incapable of adding significantly to the probability that the complainant was telling the truth about the charged acts. The issue arose in a context in which the uncharged act was alleged to have occurred sometime after the charged acts, and was relatively innocuous by comparison. But the plurality also observed, more generally, that a complainant’s evidence of an uncharged act can generally have only limited capacity rationally to affect the probability of the complainant’s account of the charged acts being true, unless there are some special features of the complainant’s account of the uncharged act.[29]
[29]Bauer (2018) 266 CLR 56, 85 [53] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2018] HCA 40 (citations omitted).
Of course, that reasoning may need to be qualified where, including by coincidence reasoning, the evidence of uncharged acts is corroborated. Nevertheless, the point remains that improving the prosecution case on uncharged acts, especially where they are not relevant to establish a tendency, does not always mean that the evidence has significant probative value to a fact in issue.
There was some discussion in oral argument about Phillips,[30] upon which particular reliance was placed by the applicant. Phillips was, in important respects, a very different case.
[30]Phillips (2006) 225 CLR 303; [2006] HCA 4.
First, Phillips was a case concerning similar fact evidence, not ss 97 and 98 of the Evidence Act. Nevertheless, there is an overlap between the common law requirement that similar fact evidence provide ‘strong enough support’[31] or ‘significant cogency’[32] to justify its admission, and the requirement in s 98 that it have significant probative value.
[31]DPP v P [1991] 2 AC 447, 462 (Lord Mackay of Clashfern LC).
[32]Pfennig v The Queen (1995) 182 CLR 461, 484–5 (Mason CJ, Deane and Dawson JJ); [1995] HCA 7.
Secondly, Phillips involved a number of complainants who said they had been raped by the accused. It was largely, but not exclusively, concerned with proof of lack of consent — that is, the state of mind of the complainants, rather than the accused.[33]
[33]Phillips (2006) 225 CLR 303; [2006] HCA 4, 317–18 [44] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
The reasons of the High Court demonstrate the importance of focusing on the facts in issue and how the probability (or tendency) reasoning would aid in proof of those facts. On the question of consent, the Court concluded that evidence that five complainants did not consent did not rationally affect the probability of the state of mind of the sixth complainant.[34] That reasoning is not particularly apposite to the present case because the forensic issues are different (consent is not an issue, given the ages of the girls).
[34]Ibid 319 [50] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
On the broader question of whether the similar fact evidence was admissible on issues other than consent, the Court observed that there was no pattern, thread or striking similarity in the accounts. Nor were there any other factors in the combined evidence that rose to a level of probative force required. The applicant relied in particular on the following passage:
The similarities relied on were not merely not “striking”, they were entirely unremarkable. That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.[35]
[35]Ibid 321 [56] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
Necessarily, the Court rejected the notion that it was enough to say that it was improbable that six complainants had all made false accounts of sexual offending. Of course, that is not determinative of the present case, which concerns the relevant statutory provisions, not the common law principles concerning ‘similar fact’ evidence.
Whichever path of reasoning is adopted, we have come to the view that the evidence of receiving explicit images is not significantly probative of whether there was an act of penetration. In our view, establishing that the applicant sent the image would not be significantly probative of the charges of sexual penetration. It would follow that the evidence of SH and PB cannot be used as coincidence evidence on the charges of sexual penetration relating to CG, EA and CS.
Nor, for similar reasons, can the evidence of CG, EA and CS that the applicant engaged in sexual activity with them be used as coincidence evidence on the charges of indecent act in the presence of a child (namely SH and PB).
Thus the evidence of each of the complainants is not cross-admissible in relation to each of the charges the applicant faces. As a consequence, the ruling of the judge cannot stand.

Cross-admissibility within sub-groups of complainants?

It does not follow from the conclusion above that there can be no coincidence reasoning available in relation to any of the complainants’ evidence. However, the prosecution sought to defend the judge’s ruling in its entirety — that each complainant’s evidence was admissible in relation to each of the charged acts. It did not seek to defend the judge’s ruling on the basis that coincidence reasoning is available in relation to particular subgroups of the complainants. In particular, the prosecution did not separately contend that coincidence reasoning is available in relation to the two complainants (PB and SH) who gave an account of receiving explicit messages, images and videos from the applicant. Nor did the prosecution separately contend that coincidence reasoning is available in relation to the three complainants (CG, EA and CS) who gave an account of sexual penetration by the applicant. There may be good reasons for that approach.
As a consequence of the prosecution’s approach, we did not hear argument about cross-admissibility of the evidence within these two sub-groups. It is thus not appropriate for us to express any concluded view on those questions. However, we observe that, in so far as the evidence of PB and SH is concerned, they both gave evidence that the applicant used particular, distinctive language in some of his messages to them, which might have provided some basis for a conclusion that their evidence is significantly probative of a fact in issue, namely whether the applicant sent the explicit images to PB and SH, as alleged in charges 1 and 4. If that limited coincidence evidence reached the threshold of being significantly probative of a fact in issue, it would then be necessary to consider the question of prejudice, as required by s 101(2).
In relation to the question whether coincidence reasoning is available in relation to the three counts of sexual penetration, it seems to us that there is limited scope for an argument that the accounts of CG, EA and CS are significantly probative that the applicant committed the acts in question. There are similarities in the three accounts, but only in very general terms. The similarities appear to us to be unremarkable.[36] There is no real linking factor between them. The mere giving of the accounts by three complainants, while passing the threshold requirement of relevance, does not appear to us to render the truth of any one of the accounts significantly more probable.
[36]Phillips (2006) 225 CLR 303, 321 [56] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); [2006] HCA 4; CGL (2010) 24 VR 486, 495 [30]–[31] (Maxwell P, Buchanan and Bongiorno JJA); [2010] VSCA 26.
We observe, however, that even if coincidence reasoning is not available in relation to the charges concerning CG, EA and CS, it does not follow that those charges must be severed. Section 194 of the Criminal Procedure Act requires, as a starting point, that charges of this kind, when joined on an indictment, are to be heard together, and the fact that the evidence is not cross-admissible is not sufficient, alone, to require severance. Whether these three charges ought to be heard together is not a matter for us to decide on this appeal.

State of mind

The judge accepted that the coincidence evidence was also significantly probative of the knowledge or belief that the complainants were under the age of 16 years. The judge did not, in the Reasons, differentiate or provide any different reasons for allowing coincidence evidence to be relied on in proof of the applicant’s knowledge or belief as to age, over and above those given in relation to the proof of his acts.
The reasoning appears to be that because the applicant was told by one or more of the complainants that she was under 16 it would be a coincidence that he did not know that the others were under 16.
However, as noted above, on the appeal the prosecution made a partial concession that coincidence reasoning could not support the evidence being entirely cross-admissible on the question of knowledge of the complainants’ ages. In short, the prosecution effectively conceded that the evidence of three complainants (CG, CS and SH) that they had told the applicant their age was not probative of whether the applicant was aware of the age of the other two complainants (PB and EA), who had given no evidence that they had told the applicant their age. That is plainly correct. The fact that the applicant knew one or more of the complainants was under 16 would not be rationally probative of whether he knew the age of a different complainant.
However, the prosecution sought to maintain the argument that the evidence of CG, CS and SH that they each told the applicant their age is cross-admissible in relation to the charges concerning those complainants on the basis of coincidence reasoning. As developed at the hearing, the argument was that it would be improbable that three witnesses would falsely say that they had expressly told the applicant their age. Thus, it was said, the evidence given by SH, CG and CS would be admissible on a coincidence basis in relation to the applicant’s reasonable belief or otherwise of their ages, but it would not be admissible as to his reasonable belief or otherwise of the age of PB and EA.
We do not accept that argument, broadly for the same reasons we concluded that the evidence of three complainants that the applicant engaged in sexual activity with them was not significantly probative of whether he had in fact done so in relation to any one complainant. The fact that CG and CS say that they told the applicant their age is not significantly probative of whether SH also told the applicant her age, so as to prove his knowledge that she was under 16 years of age.
It follows that, independently of our conclusion that coincidence evidence could not prove the acts involved in the various charges, it could not prove the state of mind of the applicant concerning the age of each complainant. That provides a further and separate reason why the ruling must be set aside.

Prejudice

Given our conclusions that it was not open to the judge to conclude that the evidence has significant probative value, it is not necessary to consider whether the probative value substantially outweighs any prejudicial effect. In considering the prejudicial effect it would be necessary to take into account any ameliorative directions that a trial judge may give to avoid or reduce the prejudice.

Conclusion

For the reasons set out above, we would grant leave to appeal and allow the appeal. We would set aside the ruling of the judge.
We note that joinder of the six charges in a single indictment was based largely on cross-admissibility and was the subject of a concession that if the evidence was not cross-admissible then severance would follow. However, as we observed above, it would not necessarily follow that severance is appropriate in relation to the three sexual penetration charges, having regard to s 194 of the Criminal Procedure Act 2009. We express no view on that question, or on the scope of the prosecution concession.

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[2024] VSCA 15

29 February 2024