RJP v The Queen
[2011] VSCA 204
•24 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0091
| RJP | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO and HARPER JJA and MACAULAY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 June 2011 |
| DATE OF JUDGMENT | 24 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 204 |
| JUDGMENT APPEALED FROM | R v Roper (Unreported, County Court of Victoria, Judge Gullaci, 4 May 2011) |
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CRIMINAL LAW – Interlocutory appeal – Application for leave to appeal against interlocutory decision – Applicant former excise officer with Australian Taxation Office –Involved in investigation of trade in illegal tobacco or ‘chop chop’ – Charged with various offences under Commonwealth Criminal Code – Crown seeking to adduce evidence that applicant formed corrupt relationships with a number of ‘chop chop’ dealers – Trial judge ruled that evidence was admissible as tendency evidence or coincidence evidence – Whether trial judge’s ruling was correct – Relevant tendency was asserted to be tendency to use employment to form corrupt relationships with ‘chop chop’ dealers – Tendency was at such a high level of generality that it constituted a mere propensity to use position for criminal ends – Trial judge’s ruling set aside – Declaration that evidence not admissible as tendency evidence or coincidence evidence – R v Papamitrou (2004) 7 VR 375 – Evidence Act 2008 ss 97 and 98.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr C Thomson | Mr S English |
| For the Crown | Mr R Pirrie | Mr C Craigie SC, Director of Public Prosecutions (Commonwealth) |
BONGIORNO JA:
RJP stands indicted on 12 charges alleging contravention of various provisions of the Commonwealth Criminal Code. The charges allege bribery, corruption, theft and similar criminal activity. At the time the offences were alleged to have been committed, RJP was employed as an excise officer with the Australian Taxation Office (‘ATO’) and was involved in the investigation of the trade in illegal tobacco, known as ‘chop chop’. All of the offences are alleged to have arisen out of RJP’s relationship with four other men, each of whom is alleged to have been involved in the ‘chop chop’ trade.
The Crown case against RJP is that he formed corrupt relationships with these persons and then used his position as an excise officer to obtain favours from them in return for protection from prosecution or other benefits. These favours took the form of gifts of money, alcohol and cigarettes, payment for sexual services at brothels, payment for overseas travel and the provision of information concerning other ‘chop chop’ dealers. It is alleged that he sought this information so that he and others could steal ‘chop chop’ from the other dealers and sell it at a profit.
The first three charges on the indictment as it presently stands involve RJP’s relationship with two men, S and W. The Crown alleges that for about three years, beginning in March 2001, RJP protected S in his ‘chop chop’ dealings, in return for which S paid him between $1,500 and $2,000 per month. S introduced RJP to W, another ‘chop chop’ dealer. RJP agreed to ‘look after’ W in return for money.
RJP ignored S and W’s ‘chop chop’ dealing and received various favours in consideration for doing this, including payments for the use of prostitutes and information concerning other ‘chop chop’ dealers. This information enabled RJP to commit a burglary, steal ‘chop chop’ and sell it to W.
RJP met a third man, another ‘chop chop’ dealer, A, in about October 2002. Subsequently, A agreed to provide information to RJP and did so over the next two years. The Crown alleges that RJP told A that he and other corrupt officials would help him ‘with his file at the ATO’.
RJP’s fourth associate, C, another ‘chop chop’ dealer, ran a supermarket. They met after the Victoria Police seized a quantity of ‘chop chop’ from C’s wife in July 2002. Subsequently, it is alleged, RJP interfered in the prosecution of C’s wife to her advantage. It is alleged that he received a first-class return airfare to China as consideration. It is also alleged that he subsequently provided information to C concerning ATO investigators’ activities with respect to C’s wife.
In anticipation of RJP’s trial, the Crown has served two notices on him pursuant to ss 97(1)(a) and 98(1)(a) of the Evidence Act 2008. The notices state that the Crown intends to adduce tendency evidence and coincidence evidence respectively. Each of the notices is dated 19 April 2011 and consists of 14 pages. They are largely in identical terms. In the first two paragraphs, each notice paraphrases the definition of tendency evidence and coincidence evidence respectively and names RJP as the person the subject of the tendency or the coincidence evidence.
Each of the notices then describes the ‘relevant facts in issue’ by paraphrasing 10 of the 12 charges on RJP’s indictment. There then follows, in each case, a statement as to the tendency sought to be proved and the purpose of the coincidence evidence respectively. The tendency evidence notice states the tendency sought to be proved as being the tendency of RJP to:
(a) act in a particular way, namely:
To use his position as an excise officer:
·to dishonestly seek and receive benefits for himself from persons involved in black market tobacco (chop chop);
·to dishonestly assist black market chop chop dealers;
·to protect black market chop chop dealers by not charging them for black market tobacco offences;
·to allow black market tobacco dealers to continue their illicit business.
(b) have a particular state of mind, namely:
·to dishonestly seek benefits for himself from persons involved in the trade of illicit tobacco;
·to dishonestly receive benefits for himself from persons involved in the trade of illicit tobacco.
Syntactical differences aside, the coincidence evidence notice is in identical terms.
Each notice then refers to the conduct of RJP of which evidence is sought to be adduced. Forty-two different instances of conduct that he is alleged to have engaged in are referred to, together with the date of the conduct, the place at which it occurred and the circumstances in which it occurred. This part of each of the notices also states the name of the persons who saw, heard or otherwise perceived the conduct and indicates whether the conduct constitutes the substance of one of the offences with which RJP has been charged or relates to an ‘uncharged act’. The notices conclude with a list of the documents containing the evidence which the Crown intends to adduce. Both of the notices appear to comply with reg 7 of the Evidence Regulations 2009.
Counsel for RJP challenged the admissibility of the tendency and coincidence evidence sought to be led by the Crown before the trial judge. This challenge was unsuccessful. In dismissing it, the trial judge summarised the issues in the trial as being whether the applicant engaged in ‘the conduct alleged’ at all and whether any conduct in which he did engage was ‘innocent association in the legitimate pursuit of his lawful duties or friendship’. His Honour concluded that the evidence sought to be adduced by the Crown, if accepted by the jury, was capable of demonstrating that the applicant had a tendency to engage in corrupt activities with ‘chop chop’ dealers he came into contact with in the course of his duties. He said that he considered that the evidence sought to be adduced was capable of rationally affecting the probability of the applicant engaging in corrupt ongoing relationships with each of W, A, S and C. He considered that the evidence was relevant and admissible, that it had significant probative value and that the likelihood that such conduct occurred in relation to each witness made it more likely that RJP acted in the way alleged in each charge on the indictment. His Honour considered also that although the evidence had a prejudicial effect, its probative value substantially outweighed any such effect and that accordingly, the exclusionary provision in s 101(2) of the Evidence Act 2008 was not operative. He referred to appropriate directions of law to be given to the jury as to how the evidence as to tendency and coincidence could be used and also noted the need for a propensity direction.
With respect to the coincidence evidence, his Honour stated:
…the evidence sought to be adduced as coincidence evidence is relevant, admissible and demonstrates an underlying unity, modus operandi or pattern of conduct by the accused. That evidence is capable of establishing that [RJP] engaged in corrupt relationships with [W], [A], [S] and [C]…
His Honour then set out a number of specific items of conduct alleged to have been engaged in by RJP. His Honour considered that the value of the evidence was ‘in the improbability of the witnesses giving accounts of the level of similarity that exists in each case’. He dismissed any question of contamination, concoction or collusion and noted that no such suggestion was, in any event, made by defence counsel. He said that if the evidence were accepted by the jury it could rebut RJP’s defence that he innocently associated with the ‘chop chop’ dealers in the course of legitimately carrying out his duties as an ATO officer or maintaining a friendship with them.
His Honour referred to ss 135 and 137 of the Evidence Act 2008 and concluded that neither of those sections led to the exclusion of any evidence sought to be adduced by the Crown as set out in the relevant notices as the probative value of the evidence outweighed any unfair prejudice to the applicant. His Honour went on to make orders pursuant to s 136 of the Evidence Act 2008 in respect of the evidence of a particular witness, one H, and gave other directions with respect to a record of interview. The trial judge refused to order severance of the various charges on the indictment as sought by counsel for RJP, holding that all of the evidence in respect of all charges was cross-admissible.
Subsequently, the trial judge issued a certificate pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 to enable his ruling as to the admissibility of the tendency and coincidence evidence to be the subject of an interlocutory appeal. His Honour did not grant a certificate pursuant to s 295(3)(a), although he said that he would have done so had he been so requested. No issue has arisen as to the appropriate section under which the certificate ought to have been given. There is accordingly no need to consider that matter further.
As has already been noted, as well as considering the tendency and coincidence notices, the trial judge made rulings on other issues of evidence and refused an application to sever the indictment. At the beginning of the hearing in this Court, it was agreed that this appeal was concerned only with the questions arising from his Honour’s ruling in relation to the two notices and was not concerned with other issues of evidence or severance. They are matters for the trial judge to determine after any other interlocutory applications are made with respect to the evidence. It is important that this be the case because this Court’s ruling as to the two notices does not conclude the issue as to whether some of the evidence referred to in those notices is admissible or, for that matter, inadmissible. Those are issues for the trial judge to determine on ordinary principles. This ruling is concerned only with the question of whether the evidence referred to in the notices is admissible as tendency evidence or coincidence evidence.
In its summary of contentions, the Crown argued that the critical question to be determined on the trial of the indictment was the nature of the relationship that RJP had with the four ‘chop chop’ dealers. It noted that the defence asserts that RJP’s relationship with each of the dealers was ‘one of innocent association of either friendship and/or informer’ while the prosecution alleges that RJP had a corrupt relationship with each of them.
In his oral argument, Mr Pirrie, who appeared on behalf of the Crown, enunciated the tendency of RJP which the Crown sought to prove as being a tendency to engage in corrupt dealing with ‘chop chop’ dealers; that is to say, to use his employment as an excise officer to form corrupt relationships with illicit tobacco dealers. He said that the pattern of behaviour which RJP engaged in involved the soliciting of gifts, the soliciting of money and information about other dealers and the acceptance of sexual services provided at brothels and air travel. These were all features of RJP’s conduct which established the tendency the Crown sought to prove. He referred to the assistance that RJP allegedly provided to the dealers by allowing them to trade when he could have prosecuted them and to RJP himself participating in criminal acts with the dealers, including thefts and burglaries. He argued that this activity had a degree of similarity about it. It was a modus operandi. The befriending of dealers in this way enabled RJP to profit from that friendship in a corrupt manner.
Mr Pirrie’s argument was pitched at a very high level of generality. He did not descend into an analysis of the individual pieces of evidence which the Crown seeks to lead as tendency evidence or coincidence evidence. He referred to R v Papamitrou[1] and in particular to the following statement of Winneke P:
Applying the principles to which I have referred, I cannot agree with Mr Priest that his Honour was in error in determining that the evidence of the complainants was mutually admissible. In this case, the issue was whether the offences had been committed; not the identity of the person who had committed them. It was not necessary to demonstrate, as I think Mr Priest was at times submitting, that there were ‘striking similarities’ between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct. Although his Honour did not elaborate his reasons for his ruling as extensively as he might have, it is evident from his reasons that he was of the view that there was an ‘underlying unity’ between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view — and I think correctly — that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy ‘storage room’, the toilets at the Plaza, the vehicle which he drove from his place of work or from work-related functions. Whether one describes these factors as providing an ‘underlying unity’, or a common ‘modus operandi’ or a ‘pattern of conduct’ is of little consequence. The ‘links’ were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of ‘infection’ the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive — and in my view strongly supportive — of the evidence of others. Not only that, but — in my opinion — the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a ‘prejudice’ to the accused. But the ‘prejudice’ of which s 398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them. For the reasons which I have given, his Honour was entitled to conclude that the evidence of each complainant went beyond evidence of ‘mere propensity’ as the applicant here submitted.[2]
[1](2004) 7 VR 375.
[2]Ibid 390-1.
What Mr Pirrie’s argument really amounted to was that if the jury accepted that RJP acted corruptly with one ‘chop chop’ dealer then they could use that finding when considering his guilt with respect to corrupt associations with other ‘chop chop’ dealers.
With respect to the coincidence evidence, Mr Pirrie argued that there was a high improbability of ‘the events’ occurring coincidentally. There was an equal improbability, he argued, of witnesses giving accounts having such similarity unless the events occurred.
In the course of argument, nothing was put by Mr Pirrie to demonstrate that there was any ‘underlying unity’, common ‘modus operandi’, common ‘pattern of conduct’ or any other features which would give probative value, much less significant probative value, to the evidence sought to be adduced either with respect to tendency or with respect to coincidence. Mr Thomson for RJP pointed out that although, in each instance, RJP is alleged to have used his position to engage in corrupt activities with one or more of the ‘chop chop’ dealers, there are significant differences in his relationship with each of them. He noted that only W and S are alleged to have paid for RJP to receive sexual services at a brothel. By contrast, C is the only dealer who is alleged to have paid for overseas air travel for RJP. With respect to A, RJP is alleged to have provided different benefits, including information concerning police surveillance, than that which he is alleged to have provided to the others.
Such similarity as there is between RJP’s alleged conduct with respect to each of the ‘chop chop’ dealers is at such a high level of generality that it cannot establish a tendency in RJP other than a tendency to engage in corruption; in other words, a propensity to use his position for criminal ends: he has been corrupt with some ‘chop chop’ dealers, therefore it is more likely he was corrupt with others. It is the duty of the Court to ensure that propensity reasoning of the type described does not infect a jury’s deliberations. This does not, of course, prevent the Crown from adducing any particular piece of evidence referred to in the notices. The admissibility of such evidence will depend upon ordinary principles of relevance and other rules of evidence, and will have to be determined by the trial judge.
No argument was directed on this application regarding the approach that the Court should take to the determination of the correctness or otherwise of the trial judge’s ruling; that is to say, whether it should be approached on House v the King[3] principles or whether the Court should make a decision for itself. In the circumstances, having regard to the conclusions which I have reached, I consider that the same result would follow in this case irrespective of the approach that was adopted. The trial judge applied incorrect principle in characterising the evidence sought to be led as tendency evidence and coincidence evidence. His decision must be reviewed. In doing so, this Court should determine the question of admissibility adverse to the Crown.
[3](1936) 55 CLR 499.
I would grant the applicant leave to appeal, treat the appeal as instituted and heard instanter and allow the appeal. The ruling that his Honour Judge Gullaci made on 4 May 2011 as to the admissibility of the evidence sought to be led by the Crown as tendency evidence and coincidence evidence should be set aside and, in lieu thereof, the Court should declare that this evidence is not admissible on RJP’s trial as tendency evidence or coincidence evidence. The matter will of course return to the trial judge for consideration of issues which arise as a consequence of this decision, including questions of the admissibility of evidence and of severance of the indictment.
HARPER JA:
I agree.
MACAULAY AJA:
I also agree.
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