Velkoski v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0118

ORDAN VELKOSKI
	Applicant
v
THE QUEEN
	Respondent

---

JUDGES	REDLICH, WEINBERG and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 February 2014
DATE OF ORDERS	2 June 2014
DATE OF REASONS	18 June 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 121	1^st revision: 4 September 2014 Catchwords, footnotes 172, 236, 240
JUDGMENT APPEALED FROM	DPP v Velkoski (Unreported, County Court of Victoria, Judge Campton, 24 April 2013 (date of conviction))

---

EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen (1988) 165 CLR 292; R v Papamitrou (2004) 7 VR 375; R v Ellis (2003) 58 NSWLR 700; W v The Queen (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic) (2010) 24 VR 486; AE v The Queen [2008] NSWCCA 52; PNJ v Director of Public Prosecutions (Vic) (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen [2010] VSCA 95; GBF v The Queen [2010] VSCA 135; R v Ford (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229; PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; KRI v The Queen (2011) 207 A Crim R 552; RHB v The Queen [2011] VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen [2011] VSCA 442; DR v The Queen [2011] VSCA 440; CEG v The Queen [2012] VSCA 55; Reeves v The Queen [2013] VSCA 311; R v PWD (2010) 205 A Crim R 75; BSJ v The Queen (2012) 35 VR 475; Semaan v The Queen [2013] VSCA 134; Murdoch v The Queen [2013] VSCA 272; SLS v The Queen [2014] VSCA 31; CV v Director of Public Prosecutions (Vic) [2014] VSCA 58; Doyle v The Queen [2014] NSWCCA 4; Sokolowskyj v The Queen [2014] NSWCCA 55; DAO v The Queen (2011) 81 NSWLR 568; RH v The Queen [2014] NSWCCA 55, considered – Cross-admissibility of three complainants’ evidence – Evidence Act 2008 (Vic) s 97.

CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid [1999] NSWCCA 258; Gonzales v The Queen (2007) 178 A Crim R 232; FDP v The Queen (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v Gay [[1976] VR 577, followed – Waiver – R v Clarke (2005) 13 VR 75; R v McCosker [2011] 2 Qd R 138, followed – Whether trial judge under duty to intervene.

CRIMINAL LAW – Trial – Directions to jury – Inadequate directions as to tendency reasoning – Identification of features of tendency evidence necessary – Explanation necessary as to why tendency evidence makes fact in issue more probable – RR v The Queen [2011] VSCA 442; RJP v The Queen (2011) 215 A Crim R 315, considered – Inappropriate direction as to sexual interest in complainants as evidence of ‘state of mind’ – Appeal allowed – Retrial ordered.

EVIDENCE – Criminal Procedure Act 2009 (Vic) s 377(3) – Exception to hearsay rule – Whether fact asserted in previous representation must be subject of evidence by person who makes assertion – Complainant recants previous assertion – Evidence should therefore have been excluded.

CRIMINAL LAW – Conviction – Appeal – Whether verdicts unsafe or unsatisfactory – Verdict of acquittal entered on Charges 3 and 11.

---

APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr P F Tehan QC with Mr D A Langton	Patrick W Dwyer
For the Crown	Mr R A Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA
COGHLAN JA:

After a trial in the County Court of Victoria, the applicant was acquitted of one charge of attempting to commit an indecent act with a child under the age of 16 and convicted of 15 charges of committing an indecent act with a child under 16. The charges related to three complainants. He received a sentence of four years and eight months’ imprisonment with a non-parole period of three years. He now seeks leave to appeal against his conviction.

The questions with which the appeal is concerned are:

(i) whether the acts relied upon by the prosecution were admissible as tendency evidence;
(ii) the significance of a failure to object to the admissibility of that evidence;
(iii)whether the applicant could now be heard to complain as to the concession made at the commencement of the trial that each of the three complainants’ evidence supported tendency reasoning and was therefore cross admissible;
(iv) whether the trial judge had a duty to intervene if inadmissible evidence was introduced;
(iv) whether the directions given to the jury as to tendency reasoning were inadequate so as to occasion a substantial miscarriage of justice;
(v) whether, pursuant to s 377 of the Criminal Procedure Act 2009 (Vic), the trial judge wrongly admitted evidence of a ‘complaint’ made by one of the complainants to her parents as evidence of the truth of its content and alternatively whether such evidence rendered the conviction unsafe; and
(vi)whether the verdict on various grounds was unsafe and unsatisfactory.[1]
[1]Grounds 2 and 3 were abandoned during the hearing.

Summary of conclusions

Our conclusions on the grounds concerning the tendency evidence are as follows. First, we have examined the principle which is applied in determining whether tendency evidence is admissible. The principle consistently applied in this Court is that the evidence must possess sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct. Parts of the three complainants’ evidence were clearly cross-admissible as tendency evidence while other parts were not.

Second, because the applicant through his counsel by a deliberate and conscious decision, and for a rational forensic reason, agreed that each of the complainants’ accounts could support tendency reasoning, there was a waiver of an objection to the use of any parts of their evidence in this way. No unfairness in the applicant’s trial thereby resulted.

Third, the trial judge was not obliged in those circumstances to undertake a review of the parties’ decision before the evidence could be so used.

Fourth, waiver of any objection by the defence throughout the trial did not relieve the trial judge of the duty to give an adequate direction to the jury as to tendency reasoning. The directions were deficient. No guidance was given as to what the features of the tendency evidence were or why one complainant’s evidence on a particular charge could make another complainant’s account more probable. As a consequence, the jury may not have correctly employed tendency reasoning in utilising the evidence of one complainant to support the evidence of another, thereby occasioning the risk of a substantial miscarriage of justice.

The applicant’s contention, that s 377(3) of the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’), as an exception to the hearsay rule, did not permit a witness to give evidence of a fact asserted in a previous representation when that fact is only asserted in the previous representation and not in the complainant’s own evidence or testimony, was unsustainable. However, the complainant, during evidence, recanted that assertion thereby rendering the conviction on Charge 3 unsafe. The conviction on Charge 11 was also unsafe. On the remaining charges a retrial should be ordered.

Background

The applicant’s wife ran a registered family day-care centre at their residential address. The applicant was not a registered carer and was not supposed to supervise the children while in care. The Crown’s case was put as follows.

The complainant GS was born in 2002 and attended the day-care centre between July 2005 and October 2011. Between 24 September 2011 and 9 October 2011, the applicant grabbed the complainant’s penis whilst ‘play fighting’ (Charge 2). The complainant also gave evidence of uncharged acts alleging that the applicant would always try to touch the complainant’s penis when they were playing games together.

The complainant MS was born in July 2007 and attended the day-care centre between 10 February 2008 and 10 October 2011. Between 1 January 2011 and 13 September 2011, during nap time, the applicant and his wife put mattresses on the floor in the dining room for the children to lie down on and sleep or rest. The applicant sat next to the complainant’s mattress. He asked her to take his penis out of his pants, and when she did not he removed his penis from his pants and cradled it and exposed his penis to her (Charge 3).

On Monday 10 October 2011, the complainant MS was in the kitchen of the day-care centre with the applicant while his wife was in the lounge room. The applicant was wearing a pair of grey pyjama pants. He removed his penis from his pants, exposing it to the complainant (Charge 4). He then told her to touch it. She placed her left hand on the applicant’s penis and then ran out of the room. The complainant said that the applicant’s penis was ‘gooey and sticky’ and the applicant told her that it was soap from the shower and that he hadn’t washed it off properly (Charge 5). Whilst in the bath later that night she told her mother what had happened.

The complainant OA was born on 12 October 2002. She attended the family day-care centre between 19 April 2009 and 9 October 2011. Between 12 April 2011 and 26 April 2011, during the term one school holidays, the complainant was by herself in the living room watching television. The applicant walked into the room and told her to ‘come here’. The applicant then grabbed the complainant’s hand. She tried to pull it away but he kept hold of it and placed it on his penis over the top of the fabric of his pants (Charge 6).

Between 5 July 2011 and 14 July 2011 during the term two school holidays, the complainant was in an upstairs room of the house playing on a laptop. The applicant was also in the room and asked her for a hug so he could warm his hands. He then placed his hand down her pants and underwear and moved his fingers in a circular pattern around the outside of the complainant’s vagina (Charge 7). He told her it was so warm. She asked him why he was doing it and the applicant replied that he liked it.

On another occasion between 5 July 2011 and 14 July 2011, the complainant was again in the upstairs room of the house. Also present were her brother and GS. The complainant was standing up while playing a computer game. The applicant asked her why she was standing up and got her to sit down. He then grabbed one of her hands and placed it onto his penis over his clothing. The applicant was snorting at the time (Charge 8). On another occasion during this period, the complainant was in the living room and went to walk outside. The applicant grabbed her to stop her from walking outside and placed his hand down her pants and underpants and onto her vagina. The complainant said ‘stop’ and when he did not stop, she screamed ‘stop’ and ran outside (Charge 9).

On another occasion between 5 July 2011 and 14 July 2011, the complainant was in the dining room trying to walk outside to play with the other children. The applicant grabbed the complainant, placed one hand down the front of her pants, touching her vagina, and placed the other hand down the back of her pants, touching her bottom (Charge 10).

The remaining charges occurred during the term three holidays between Tuesday 27 September 2011 and Thursday 6 October 2011. On one occasion the complainant was outside patting the applicant’s dog on the back steps. The applicant approached the complainant and placed his hand down the back of her pants on top of her underpants and rested his hand on her bottom (Charge 11). On another occasion during the term three holidays the complainant was sitting playing on the laptop. The applicant told her to sit on his lap. The complainant sat on his lap and the applicant placed his hand down her pants on top of her vagina. The complainant told him to stop and he took his hand out. A short time later the applicant again placed his hand down her pants and touched her vagina (Charges 12 and 13). On another occasion, the complainant was in the living room of the house when the applicant approached her and grabbed her from behind. He turned her around so that they were facing each other. He then pressed his body against hers and ‘humped’ her by moving back and forth with his body. She told him to stop (Charge 14).

On another occasion during the term three holidays the complainant was in the upstairs room with the applicant. He told her to sit down and when she did so he placed his hand down the back of her pants and touched her bottom (Charge 15). The complainant then got up to leave and the applicant held onto her collar. He grabbed her hand and forced it onto his penis (Charge 16).

During cross-examination, OA confirmed that the applicant always put her hands on his penis when he had clothes on. She said that he got her to do it and that he put his hands down her pants. While on holiday in Queensland, MS told her father that she had seen the applicant’s penis. After discussing what they were going to do, her parents decided to continue with day-care but instructed MS to tell them or the applicant’s wife if anything happened which made her feel uncomfortable. On 10 October 2011, the first day that MS had been back in child care, she disclosed to her mother that she had ‘seen [the applicant's] penis again today’. The complainant’s parents contacted the police. A Video Audio Recording of Evidence (‘VARE’) was conducted on 13 October 2011. GS was interviewed by police on 31 October 2011. VAREs were conducted with OA on 13 November 2011 and 17 November 2011. The applicant was interviewed by police on 17 October 2011 in respect of the MS allegations and on 17 November 2011 in respect of the allegations made by OA and GS. He denied all of their allegations.

Ground 4: There has been a substantial miscarriage of justice because tendency evidence was admitted into the trial.

The applicant submits that there has been a substantial miscarriage of justice because the evidence of each complainant was permitted to be used as tendency evidence when considering each charge on the indictment.

Section 97 of the Evidence Act 2008 (Vic) (‘Evidence Act’) relevantly provides:

(1)Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(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.

By the tendency notice issued under s 97(1), the prosecution sought to rely upon evidence of each of the charges on the indictment as tendency evidence, such that the evidence for each of the charges would be cross-admissible. The notice had a number of unsatisfactory features. It identified the evidence of conduct in each of the 16 charges which was said to demonstrate tendency (the tendency evidence) and the facts from each charge which were in issue and to which that tendency evidence related. The generality of such a tendency statement was the subject of explicit criticism in CGL v Director of Public Prosecutions (Vic).[2]
[2](2010) 24 VR 486, 496–7, [37]–[40] (‘CGL’).

The tendency notice further stated that the tendency of the applicant was ‘to act in a particular way’ and with a ‘particular state of mind,’ namely ‘that the accused had a sexual interest in young children attending the day-care centre run by his wife’ and ‘that the accused was willing to act on that sexual interest by engaging in sexual acts with the complainants’. The notice thus conflated the tendency evidence and the conclusions to be drawn from that evidence by suggesting that the tendency was the applicant’s willingness to act upon his sexual interest and commit the sexual acts alleged by the complainants, and in so doing went beyond the purpose and scope of the notice. The notice must be confined to the particular manner or circumstances in which the applicant has previously acted or his state of mind on occasions other than that the subject of the charge. It is those other occasions which are relied upon to make more likely the occurrence of the act alleged by the complainant in the subject charge. The notice should not assert and the jury must not be instructed (as it was in this case) that the tendency is that the accused had a sexual interest in the complainants and that he acted upon his sexual interest by engaging in the sexual acts alleged by the complainants. That may be the conclusion which the jury ultimately reaches as a result of reasoning from the evidence of tendency.

It was announced on the second day of the trial that an agreement had been reached between the parties, whereby the defence would accede to the complainants’ evidence being treated as tendency evidence and the Crown would abandon its application to lead coincidence evidence of which it had also given notice. The trial was thereafter conducted on that basis.

The applicant now argues that this concession, arising from the agreement reached with the prosecution, amounted to a serious error, and that the treatment of the complainants’ evidence as tendency evidence resulted in a substantial miscarriage of justice.

When will tendency evidence satisfy the threshold requirements of admissibility? What are the relevant legal principles?

Regrettably, the law regarding the admissibility of ‘tendency’ and ‘coincidence’ evidence, pursuant to ss 97 and 98 of the Evidence Act, is regarded as being in an unsettled state. In part, that arises from the fact that, in both this State and New South Wales, many of the decisions regarding these provisions were interlocutory appeals which, of necessity, had to be determined speedily, and often without the benefit of full and carefully prepared argument.

It is remarkable that the current edition of Stephen Odgers’ Uniform Evidence Law in Victoria[3] requires some 80 pages of closely typed and heavily footnoted material to deal with this subject. That is so notwithstanding that these provisions have only been in force in this State for some five years or so.
[3](Lawbook, 2^nd ed, 2013) 457–538.

Previously, classic texts, such as Cross on Evidence,[4] managed to address the whole of the law in this area, covering a century or more of common law development in only a handful of pages.
[4]JA Gobbo (ed), Cross on Evidence (Butterworths, Australian ed, 1970).

That is not to say that the subject was always easy to grasp. However, one thing was clear. The substantial array of case law dealing with ‘similar fact’ evidence was concerned almost exclusively with questions of admissibility. Very little, if anything, was said about jury directions in relation to such evidence, a situation that no longer prevails.

Perhaps the reason why so little needed to be said by way of direction regarding evidence of that kind was because, once it passed the extraordinarily high threshold for admissibility applicable at common law, its probative value was self-evident.

The fact that evidence of prior acts of misconduct was generally regarded as inadmissible, and only received in wholly exceptional cases, meant that applications for severance, particularly in cases involving sexual offences, were frequently made, and almost as frequently granted. Certainly, that was so where there were multiple complainants, perhaps each alleging multiple offences, and it could not be said that their evidence was, in modern terms, ‘cross-admissible’.

This high threshold meant that, in many cases, juries were left to consider the evidence concerning each alleged victim in isolation, without ever being made aware of the fact that allegations of a similar kind had been made by other complainants. Such cases often involved allegations that went back many years, and sometimes came down to a consideration of oath against oath. The result, in a great many cases, was a series of acquittals, whereas, had the evidence been made available, the outcome would almost certainly have been different.

From about the latter part of the 1980s, this state of affairs began to change. The High Court, in a series of cases, began to reformulate the test for cross-admissibility. Law reform bodies, too, were given the task of developing a new, and more principled, approach to this area. Their recommendations led to a series of legislative reforms, many of them designed, so it would seem, to make it easier to procure convictions in such cases.

Unfortunately, there was a price to be paid for all of this. That price is still being paid today. Under the law as it stood in this State prior to the enactment of the Evidence Act, and under the Evidence Act itself, the entire subject broadly encompassed by the term ‘similar fact evidence’, has become exceedingly complex and extraordinarily difficult to apply. The situation is not helped when, as will be demonstrated, appellate courts fail to speak with one voice on this topic.

Currently there are undoubted differences between the decisions of this Court and the New South Wales Court of Criminal Appeal as to whether similarity of features need be present in order for evidence to be admissible as tendency evidence. A review of the decisions in this Court shows that though there have been perceived differences in approach in a small number of cases, upon analysis those differences may be more apparent than real. As the following review shows, they are largely to be explained as differences arising from the application of established principle to the facts of the particular case. In a few cases dicta may be found voicing differing views as to the degree of similarity that the tendency evidence must possess before it may be admitted as tendency evidence.

The position at common law

Before turning to the authorities dealing with tendency and coincidence under ss 97 and 98 of the Evidence Act, it is perhaps worth saying something, briefly, about the position at common law.

It was recognised, from an early stage, that the admission of evidence of prior acts of misconduct was likely to be highly prejudicial, and fraught with danger. Self-evidently, the fact that an accused may have behaved discreditably in the past can all too easily lead a jury astray in assessing the weight to be accorded to the evidence in relation to the specific charge under consideration. In addition, any time such evidence is led, there is the potential for a host of collateral issues to arise.

For these reasons, a rule developed at common law under which evidence of prior acts of misconduct had to be excluded if it was relevant only as suggesting that he or she had a particular tendency, and was likely, therefore, to have acted in accordance with that tendency in relation to the specific offence charged.

Of course, it was recognised from an early stage that improper conduct could be relevant otherwise than via propensity. Evidence would be received if it were shown to be substantially relevant on some basis other than mere propensity.

Professor Cross, adapting what Lord Herschell LC famously had said in Makin v Attorney-General (NSW),[5] formulated the common law position as follows:

[T]he rule is best regarded as an absolute prohibition on the adduction of evidence of misconduct on other occasions for the purpose of establishing wrongdoing on the occasion under investigation by means of an argument based solely on a disposition towards wrongdoing in general, or the commission of the particular wrong with which the court is concerned.[6]

[5][1894] AC 57, 65.

[6]Gobbo (ed), Cross on Evidence, above n 4, 380.

This is not the occasion to analyse the substantial body of case law that developed in relation to similar fact evidence.[7] We simply make the point that, at least until comparatively recently, the principles to be applied when considering the admissibility of similar fact evidence were regarded as reasonably well-settled, and capable of straightforward application.
[7]The leading English cases on the subject include: R v Ball [1911] AC 47; R v Smith [1914–15] All ER 262 (the ‘Brides in the Bath’ case); Thompson v The King [1918] AC 221; R v Sims [1946] KB 531; Noor Mohamed v The King [1949] AC 182; R v Straffen [1952] 2 QB 911; Harris v DPP [1952] AC 694; DPP v Boardman [1975] AC 421.

It was always understood that the threshold for admissibility of such evidence was a high one. The prosecution could not adduce evidence of improper conduct by the accused on other occasions if its only relevance was to show that he or she was a person of bad disposition, and his or her disposition was not highly relevant to an issue raised at the trial.

This principle is well illustrated by reference to the decision of the House of Lords in Director of Public Prosecutions v Boardman.[8] Their Lordships required, as a condition of such admissibility, that evidence that the accused had been guilty of other offences demonstrated a sharing of features of such an ‘unusual nature’, and ‘striking similarity’, that it would be ‘an affront to common sense’ to assert that the similarity was explicable on the basis of coincidence. The analysis was not improved by reference to some extreme examples of what might be sufficient to overcome the exclusionary rule.[9]
[8][1975] AC 421 (‘Boardman’).
[9]Lord Hailsham posited that whilst it would certainly not be enough to identify the culprit in a series of burglaries that he climbed in through a ground floor window, the fact that he left the same humorous limerick on the walls of the sitting room, or an esoteric symbol written in lipstick on the mirror, ‘might well be enough’. His Lordship added that, in a case involving sexual offending, whilst a repeated homosexual act by itself might be quite insufficient to admit the evidence, the fact that it was alleged to have been performed wearing ‘the ceremonial head-dress of a Red Indian chief or other eccentric garb might well in appropriate circumstances suffice’: ibid 454.

In effect, Boardman[10] held that, in such cases, the question of cross-admissibility would be determined by whether the particular criminal acts sought to be relied upon were so ‘strikingly similar’ to the offence under consideration that the prejudice to the accused of admitting that evidence was outweighed by its probative force.
[10][1975] AC 421.

Boardman[11] was what we today would describe as a ‘coincidence’ case. It would fall to be determined under s 98 of the Evidence Act. That was because no ‘tendency’ could be established unless, and until, the jury were satisfied that the accused had committed at least some of the offences charged. That fell to be determined by ‘coincidence’ reasoning, and not by ‘tendency’ reasoning.
[11]Ibid.

For a number of years, this highly restrictive approach to the admissibility of ‘similar fact evidence’ was adopted in this country. Eventually, however, as previously indicated, the threshold came to be altered.

The catalyst for this change was the decision of the High Court in Hoch v The Queen.[12]There the accused was charged with having committed sexual offences against three boys. The issue arose as to whether the evidence admissible in respect of indecent dealing, concerning each boy, was also admissible in respect of the other two alleged victims.
[12](1988) 165 CLR 292 (‘Hoch’).

Mason CJ, Wilson and Gaudron JJ, in a joint judgment, explained:

The basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity such that, if accepted, it bears no reasonable explanation other than the inculpation of the accused person in the offence charged …
Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of admissibility is the strength of its probative force … That strength lies in the fact that the evidence reveals ‘striking similarities’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.[13]

[13]Ibid 294–5 (citations omitted).

That formulation did little more than elucidate the test laid down in Boardman.[14] However, their Honours did not stop there. They went on to say, it seems for the first time, that a second condition had to be met in order for the evidence to be cross-admissible. They concluded that what they termed ‘propensity evidence’, being nothing more than a species of circumstantial evidence, could not be admitted if

there is a rational view of the evidence that is inconsistent with the guilt of the accused …
The evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in question.[15]

[14][1975] AC 421.

[15]Hoch (1988) 165 CLR 292, 296.

In effect, their Honours took the direction classically given to juries in relation to circumstantial evidence (and the drawing of inferences)[16] and converted it into an additional condition of admissibility. They provided no explanation as to why the two tests should be so conflated, and the reason is not self-evident. After all, the fact that there may be a reasonable hypothesis consistent with innocence has never, on its own, been sufficient to warrant the exclusion of any single piece of circumstantial evidence upon which the prosecution relies.
[16]See R v Hodge (1838) 2 Lewin CC 227; 168 ER 1136.

It should be noted that Hoch[17] also endorsed a discrete principle (to which the House of Lords in Boardman[18] had earlier alluded). It was said that where there was a ‘real possibility’ that the complainants in a case involving sexual offending had collaborated, their evidence would not be accepted as cross-admissible.
[17](1988) 165 CLR 292.
[18][1975] AC 421.

Several years later, in Pfennig v The Queen,[19] the High Court elaborated upon what had earlier been said in Hoch.[20] A majority in Pfennig observed that the probative force of similar fact evidence should meet the following test:

Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here ‘rational’ must be taken to mean ‘reasonable’ and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.[21]

[19](1995) 182 CLR 461 (‘Pfennig’).

[20](1988) 165 CLR 292.

[21](1995) 182 CLR 461, 482–3 (Mason CJ, Deane and Dawson JJ) (citations omitted).

This passage explained, for the first time, precisely why the directions normally given to a jury in relation to circumstantial evidence had been transformed into a key aspect of the test for admissibility of similar fact evidence.

To some minds, the Pfennig[22] approach to similar fact evidence was seen as even more restrictive than the Boardman[23] test. For that reason, it was seen as unduly favourable to the accused.
[22](1995) 182 CLR 461.
[23][1975] AC 421.

The history of what happened next is set out, in some detail, in the judgment of Winneke P in R v Papamitrou.[24]His Honour referred to a series of High Court decisions, prior to Hoch[25] and Pfennig,[26] in which Boardman[27] had been explicitly followed. He noted the changes brought about by Pfennig, in particular. He referred to various decisions of the Full Court, and then the Court of Appeal, in which first Boardman, and later Pfennig, had been applied.[28]
[24](2004) 7 VR 375 (‘Papamitrou’).
[25](1988) 165 CLR 292.
[26](1995) 182 CLR 461.
[27][1975] AC 421.
[28]Papamitrou (2004) 7 VR 375, 389–90.

The President then drew attention to the various amendments to the Crimes Act 1958 (Vic) (‘Crimes Act’) that had been introduced in 1997. He referred first to the amendments made to s 372 by which sub-ss (3AA) and (3AB) were enacted. These new provisions had the effect that, from that time, it would be presumed that two or more counts charging sexual offences joined in the same presentment would be tried together. Indeed, it was expressly stated that this presumption would not be rebutted merely because evidence on one count was inadmissible on another.[29]
[29]Ibid 388.

His Honour noted that this change to the law governing the trial of sexual offences was highly detrimental to the interests of those charged with such offences. Those who drafted the amendments presumably thought that any prejudice arising as a result of their introduction could be overcome, or at least ameliorated, by the giving of appropriate directions.

His Honour also noted that the same statute that introduced the amendments to s 372 radically altered the test for the admissibility of similar fact evidence. Section 398A(2) provided that ‘propensity evidence relevant to facts in issue in a proceeding for an offence’ would be admissible if the court considered that, in all the circumstances, it would be ‘just to admit it despite any prejudicial effect it may have upon the person charged with the offence’. Section 398A(3) provided that ‘the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence’ was ‘not relevant to the admissibility of evidence referred to in sub-section (2)’.[30]
[30]Ibid 398.

The rationale for these amendments was unmistakable. It was to lower the threshold for admissibility of similar fact evidence by abolishing both the Boardman[31] and Pfennig[32] tests.
[31][1975] AC 421.
[32](1995) 182 CLR 461.

This was confirmed in R v Best,[33] where it was said that the intention behind the introduction of s 398A had been to bring the law in this State into line with what the House of Lords had done, some years earlier, in Director of Public Prosecutions v P.[34] In that case, their Lordships had rejected, as too narrow, both the ‘striking similarity’ test previously laid down in Boardman,[35] and what they regarded as the equally unsatisfactory, and perhaps heretical, approach taken by the High Court in Hoch.[36]
[33][1998] 4 VR 603, 607.
[34][1991] 2 AC 447 (‘DPP v P’).
[35][1975] AC 421.
[36](1988) 165 CLR 292.

From the time of its enactment, in 1997, until the Evidence Act came into force in 2009, s 398A of the Crimes Act governed the admissibility of similar fact evidence in this State. However, lest it be thought that the law regarding such evidence operated harshly or oppressively throughout that period, it should be noted that there were a number of balancing, or compensatory, factors at play.

First, as Winneke P observed in Papamitrou,[37] the significantly lower threshold for admissibility that operated under the new regime required trial judges to give far more extensive directions to juries as to the manner in which such evidence could be used. This led, over time, to the development of a body of case law that insisted upon scrupulous adherence to the need for such directions to be given.
[37](2004) 7 VR 375.

In particular, trial judges were required to direct juries as to how such evidence, when led, could be used, and perhaps more importantly, how it could not be used. In particular, it became necessary for juries to be told that, whatever else they could do with evidence of this kind, they could not engage in ‘pure propensity reasoning’. In other words, they could not reason from a finding that the accused had previously committed an offence, even if it was of the same type as that which they were presently considering, that he or she was therefore the ‘kind of person’ likely to have committed the offence in question.

The President made it clear that the Boardman[38] test no longer had any application in this State. A trial judge was not required, in a case involving multiple complainants, to direct a jury that they could only use the evidence of one complainant in support of the evidence of another if satisfied that there was an ‘underlying unity’, or a ‘strong similarity’, or a ‘common pattern or thread’ between their evidence.[39]
[38][1975] AC 421.
[39]Papamitrou (2004) 7 VR 375, 394.

Secondly, and importantly, his Honour articulated very clearly the basis upon which the amendments to s 372 of the Crimes Act should be viewed. Despite the ‘presumption’ that all sexual offences properly joined should be tried together, he said:

Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will — in most cases — be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton … will remain influential in this State.[40]
[40]Ibid 388.

The effect of the introduction of ss 97 and 98 of the Evidence Act

In the early years, after the enactment of the Evidence Act 1995 (NSW), the question of how to deal with tendency and coincidence evidence frequently arose.

In R v Ellis,[41] the New South Wales Court of Criminal Appeal made it clear that the various tests propounded at common law for the admission of similar fact evidence had been entirely abrogated, and replaced by the enactment of ss 97 and 98.
[41](2003) 58 NSWLR 700 (‘Ellis’).

That left, for consideration, the meaning to be given to those provisions. In particular, the first question to be addressed concerned the meaning in those sections of the expression ‘significant probative value’. Though tendency evidence need not be ‘strikingly similar’, it has sometimes been said, and frequently implied, that common law concepts such as ‘underlying unity’, ‘pattern of conduct’ and ‘modus operandi,’ which were employed for the purpose of ‘similar fact‘ reasoning, continue to inform the question whether the evidence has a degree of similarity sufficient to support tendency reasoning.[42]
[42]Australian Competition and Consumer Affairs Commission v CC (NSW) Pty Ltd (No 8) (1999) 92 FCR 375, 401 [101]; Jacara Pty Ltd v Auto-Bake Pty Ltd [1999] FCA 417 [10]–[11]; GBF v The Queen [2010] VSCA 135, [32] (‘GBF’). See also the authorities cited below in which those concepts have been used for the purpose of tendency reasoning under the Evidence Act.

One of the earliest attempts at an answer to that question was provided by the Full Federal Court sitting as a court of appeal in the Australian Capital Territory. In W v The Queen,[43] (which was, of course, decided before Ellis[44]) Madgwick J concluded that the requirements of ss 97 and 98 were best understood as reflecting the views expressed by McHugh J in Pfennig,[45] as to the common law. Madgwick J said:
[43](2001) 115 FCR 41 (‘W’).
[44](2003) 58 NSWLR 700.
[45](1995) 182 CLR 461.

In Pfennig [(1995) 182 CLR 461] at 528–531, McHugh J attempted a re-statement of the common law. His Honour did not carry a majority of the High Court with him. Nevertheless, in my respectful opinion, the experience and rational considerations that underlay the common law, however formulated, were clearly expounded by his Honour. There is a great deal to be said for now using McHugh J’s approach as a basis for making the value judgments called for by ss 97(l)(b), 98(l)(b) and 101, and by s 137, in the area of ‘similar fact’ evidence, whether in its tendency, coincidence or other forms of relevance. Although his Honour’s remarks must be taken not to represent the pre-existing common law, that now furnishes no obstacle to resorting to them for guidance. Accordingly, I venture to include the following lengthy quotation from his Honour’s judgment:
... upon what basis should [tendency] reasoning be admitted? Plainly, it cannot be admitted merely because it has probative or even strong probative value. The risk of an unfair trial through the use of [tendency] reasoning is too great to allow such a low threshold of admissibility. Consequently, this Court has insisted that as a matter of law and not discretion the probative value of the evidence must outweigh or transcend its prejudicial effect ...
Nevertheless, the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term ‘outweigh’ suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. ... In my view, evidence that discloses the criminal or discreditable [tendency] of the accused is admitted ... because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced.
If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation ... Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
If the evidence does no more than prove a mere [tendency] to commit crimes of the kind in question, it will never have sufficient probative force to make it admissible. If it does have the required degree of probative force, it will be because it is relevant for a reason other than proof of [tendency] or because it colours one’s perception of the other evidence to such an extent that it can be confidently inferred that the accused gave effect to the [tendency] on the occasion in question. Evidence of a striking similarity between the commission of the crime and the method used by the accused will frequently be sufficient to prove that inference. But striking similarity is not the exclusive test. The circumstantial force of the other evidence together with the [tendency] evidence may prove the inference ... For [tendency] evidence to be admissible, however, it will need to have ‘specific probative value in relation to the crime charged’ ... Even then, [tendency] evidence will not be admitted if the prejudicial value of the evidence makes it contrary to the interests of justice to admit it.
If the risk of an unfair trial is very high, the probative value of evidence disclosing criminal [tendency] may need to be so cogent that it makes the guilt of the accused a virtual certainty. In cases where the risk of an unfair trial is very small, however, the evidence may be admitted although it is merely probative of the accused’s guilt. Each case turns on its own facts. But the judge must bear in mind that the admission of evidence revealing criminal [tendency] is exceptional. …
Thus, where the prosecution case depends entirely on [tendency] reasoning ... the evidence will need to be very cogent to be admitted. When [tendency] reasoning is relied upon, the danger is high that the tribunal will convict simply because of the accused’s [tendency] instead of using it as an evidentiary factor. Consequently, in such a case the evidence will need to be so cogent that, when related to the other evidence, there is no rational explanation of the prosecution case that is consistent with the innocence of the accused. However, I do not think that evidence disclosing or tending to prove other criminal or wrongful conduct, and consequently the criminal or discreditable [tendency] of the accused, must always meet this high standard. In the relationship cases, for example, [tendency] reasoning may simply reinforce or explain other evidence that directly implicates the accused. In such cases, it would be contrary to both the practice of the criminal courts and the interests of justice to use the no rational explanation test as the condition of admissibility of such evidence. In other cases, particularly those where the evidence is admissible for a reason other than the accused’s [tendency], the risk of prejudice may be so small that justice both to the accused and to the prosecution can be done by admitting evidence that is probative of guilt and warning the jury that they must not use the evidence in the way that is likely to create prejudice.
It follows that in each case where evidence is tendered that discloses, directly or indirectly, the criminal [tendencies] of the accused, it is necessary to identify the nature of the risk, if any, to which the admission of the evidence gives rise. In similar fact cases, for example, evidence is often admitted for the reason that the association of the accused with so many similar deaths, injuries or losses, as the case may be, makes it highly improbable that there is any innocent explanation for the accused's involvement in the matter ... In these cases, the [tendency] of the accused will usually only be established by the verdict ...
Makin [v Attorney-General [1894] AC 57] is the classic example. It was a case involving objective improbability reasoning, not [tendency] reasoning ... The [tendency] of the accused to kill the babies was only established by the conclusion that it was probable to the point of certainty that so many babies including the baby the subject of the indictment could not have died by accident. Accordingly, they must have been murdered by the Makins. It was the verdict that established the accused’s [tendency] .... The risk of prejudice in [such] true similar fact cases is not from [tendency] reasoning but from the fact, as Murphy J pointed out in Perry [v The Queen (1982) 150 CLR 580 at 594] ... that ‘(c)ommon assumptions about improbability of sequences are often wrong’. A jury may wrongly give the similar fact evidence far more weight than it deserves.
In other cases involving similar facts, however, the accused may have admitted the facts of a similar incident or the facts of a similar incident may clearly point to wrongdoing on the part of the accused in relation to that incident. In such cases, there is a risk that, instead of relying on probability reasoning, the jury will simply rely on the [tendency] of the accused as revealed by the incident that is admitted or proved. It follows that the nature of the prejudice and the degree of risk of an unfair trial will always depend on the facts of each case.
It also follows that I am unable to agree ... that evidence that discloses the criminal [tendency] of the accused cannot be admitted unless that evidence together with the other evidence denies any rational explanation of the accused's conduct that is consistent with his or her innocence. That rule will be generally applicable when the Crown is relying on the accused’s criminal [tendency] because the risk of prejudice from [tendency] reasoning is so high. But in the relationship cases, for example, where evidence of [tendency] is relied on as confirmatory or explanatory of evidence implicating the accused, I do not think that such a high standard is either required or appropriate. Similarly, in cases where the accused’s [tendency] is disclosed, but is not the basis of any reasoning process, a standard of proof lower than the no rational explanation standard may suffice for admission.[46]

[46]Ibid 71–3 (emphasis in original).

As Ellis[47] showed, the approach favoured by Madgwick J did not find favour in New South Wales. Nor has it been adopted in this State.[48]
[47](2003) 58 NSWLR 700.
[48]The approach taken by Madgwick J in W (2001) 115 FCR 41 was of course followed by Gray J in R v Gibbs (2004) 154 ACTR 1. It must be borne in mind, however, that the provisions of the Uniform Evidence Law, at that time, differed from those currently in force, having previously required the related events to be ‘substantially and relevantly similar’. That is no longer stipulated. It should be noted that the balancing test, favoured by McHugh J in Pfennig (1995) 182 CLR 461, is reflected in part in s 101 of the Act insofar as that section requires, in addition to ‘significant probative value’ under ss 97 or 98, that the probative value of the evidence ‘substantially outweighs any prejudicial effect it may have on the accused’.

The early Victorian cases dealing with tendency and coincidence

The principles governing tendency and coincidence evidence were first considered by this Court in CGL.[49]The case concerned an interlocutory appeal against the refusal to sever certain counts. The appeal succeeded. The Court held that the trial judge had erred in admitting, under the rubric of both tendency and coincidence, the evidence sought to be led. It concluded that none of the evidence relating to any of the complainants had the requisite ‘significant probative value’ to meet the threshold for admissibility under either ss 97 or 98. It was unnecessary, in the circumstances, to consider whether, pursuant to s 101(2), that evidence substantially outweighed ‘any prejudicial effect it may have on the accused’.
[49](2010) 24 VR 486 (Maxwell P, Buchanan and Bongiorno JJA).

Importantly, the Court observed that the deficiency, so far as the potential admissibility of this evidence as ‘coincidence’ was concerned, was that the purported similarities upon which the Crown relied fell short of what would be required to satisfy the test for ‘significant probative value’ under s 98.

It should be noted that, in CGL,[50] the Crown approached the matter on the basis that the probative significance of the asserted similarities was to be determined in accordance with the principles laid down by Winneke P in Papamitrou.[51] It did so notwithstanding the fact that Papamitrou itself predated the introduction of the Evidence Act, and was decided in accordance with the statutory regime that then stood under s 398A of the Crimes Act.
[50]Ibid.
[51](2004) 7 VR 375.

In CGL,[52] the Court treated the prosecutor’s submission, that Papamitrou[53] governed the construction of the new provisions, as having substance. The Court quoted Winneke P’s statement, in Papamitrou, that it was not necessary to show ‘striking similarities’ in order to satisfy the test then applicable for the admissibility of propensity evidence, but that what was required was ‘a sufficient connection in time or circumstance between the acts alleged to have been committed against each complainant to render the evidence’ cross-admissible.[54] Their Honours went on to say, in relation to the test to be applied:

Adopting [Winneke P’s] language, we were not persuaded that any of the alleged similarities could be said to illustrate an ‘underlying unity’ or a common ‘modus operandi’ or a ‘pattern of conduct’. There was no sufficient connection, in either time or circumstance, between the acts alleged to raise any issue of the improbability of coincidence.
For the most part, what were said to be similarities were features which would characterise almost any allegation of sexual offending against a young girl, or were so non-specific (‘allegations of touching/rubbing of the vaginal area’) as to reveal nothing distinctive about any particular alleged act. They were ‘in reality, unremarkable circumstances that are common to sexual offences against children’.[55]

[52](2010) 24 VR 486.

[53](2004) 7 VR 375.

[54](2010) 24 VR 486, 494 [29].

[55]Ibid 495–6 [30]–[31] (citations omitted)

The last sentence of this passage was drawn from the decision of the New South Wales Court of Appeal in AE v The Queen[56] to which we shall later make reference. That phrase has been employed in subsequent decisions.[57] The Court in CGL then said:

Even where some particular feature could be said to be common to two cases — for example, the fact that the offending against complainant B and also against complainant C took place while the accused was living with the complainant’s mother — there was otherwise no similarity in the nature of the alleged offending. In the case of complainant B, the prosecution allege a long-term sexual relationship involving sustained sexual abuse and sexual penetration, whereas in the case of complainant C the allegation is that the accused on a single occasion prevailed on the complainant to massage him while he masturbated. Complainant B was aged between 13 and 18. Complainant C was aged between 10 and 12. The cases could hardly be more different.
To take another example, the allegation made by complainant A is that the touching occurred in a private house, with only one other person present. Complainant D, however, alleges that the sexual assault occurred during a public event, attended by many other young people. The indecent assault alleged by complainant A is the rubbing of her vaginal area on the outside of her clothes, whereas complainant D alleges that the applicant rubbed her vaginal area under her clothing. The only similarity is that both allegations involve touching in the genital area, which is a commonplace in such cases.[58]

[56][2008] NSWCCA 52 [42] (‘AE’).

[57]PNJ (2010) 27 VR 146, 151 [22] (‘PNJ’); NAM v The Queen [2010] VSCA 95, [11] (‘NAM’); GBF [2010] VSCA 135, [36], [42], [45].

[58](2010) 24 VR 486, 495–6 [32]–[34] (citations omitted) (emphasis in original).

In CGL, the prosecution relied on the same identified similarities to establish the relevant tendency under s 97 as it had for coincidence evidence under s 98. Their Honours referred, with apparent approval, to the defence submission that ‘absent relevant similarities, the evidence would be ‘pure propensity evidence’.[59]
[59]Ibid 497 [38]. See also GBF [2010] VSCA 135 [31].

They added:

Part of the difficulty lies, once again, with the degree of generality in the notices. When s 97(1) speaks of a tendency ‘to act in a particular way’, we hardly think that Parliament had in mind a tendency which would be expressed as generally as ‘a tendency to act upon sexual attraction to young girls aged between eight and 13 years’.
As a general rule, the greater the degree of specificity with which the similarities can be identified, the more likely it is that the evidence will be probative of a tendency to act in a distinctive way or to do acts of a distinctive kind. Conversely, the greater the degree of generality, the more difficult it will be to demonstrate that the evidence in question has ‘significant’ probative value and — even more so — to demonstrate that its probative value ‘substantially outweighs’ the very real prejudicial effect of evidence of this kind.[60]

[60]CGL (2010) 24 VR 486, 497 [39]–[40].

A month or so later, a second case concerning coincidence evidence came before this Court. In PNJ v Director of Public Prosecutions (Vic),[61] the Court allowed an interlocutory appeal against a ruling by a trial judge that evidence in respect of three teenage boys who resided at a youth training centre (at which the accused worked in a supervisory role) was ‘cross-admissible’ as coincidence evidence. The Court held that the asserted similarities, namely that the assaults were perpetrated by a person in authority over the victims, all of whom happened to be of a similar age, and were effectively ‘captive’, were insufficient to meet the threshold requirement of ‘significant probative value’.
[61](2010) 27 VR 146 (Maxwell P, Buchanan and Bongiorno JJA) (‘PNJ’).

The Court said:

It is, in our view, a mistake to treat as relevant similarities for this purpose features of the alleged offending which reflect circumstances outside the accused’s control. In this case, a number of the asserted similarities simply reflected the setting in which the offending occurred. Each of the complainants was detained in the centre. The limited age range of those eligible for such detention accounts for the similarity in ages, as counsel for the applicant pointed out. Likewise, the location of the alleged offending — either in the bedroom of the complainant or in the applicant’s bedroom — reflected the custodial setting.The present case is quite different from that dealt with by Winneke P in Papamitrou [(2004) 7 VR 375], where the accused was able to choose the various locations for the individual sexual acts, and used ‘pretexts to isolate the girls from the company of others’.
To qualify as a relevant similarity in circumstances such as these, there must be something distinctive about the way in which the accused allegedly took advantage of the setting or context. In the present case, senior counsel for the Crown did not seek to identify any such distinctive behaviour, and we were not persuaded that there was any.[62]

[62]Ibid 151 [19]–[20] (citations omitted).

It should be noted that, as it had in CGL,[63] the Court referred to Winneke P’s observation in Papamitrou[64] to the effect that it was not necessary, in order to establish cross-admissibility, to demonstrate ‘striking similarity.[65] Indeed, the Court approved Winneke P’s further comment that

it was ‘of little consequence’ whether the asserted similarities were said to provide an ‘underlying unity’ or a common ‘modus operandi’ or a ‘pattern of conduct’.[66]

[63](2010) 24 VR 486.

[64](2004) 7 VR 375.

[65]PNJ (2010) 27 VR 146, 149 [12].

[66]Ibid.

The Court referred to R v Fletcher,[67] a decision of the New South Wales Court of Criminal Appeal. In Fletcher, the Court recognised that Boardman[68] (and for that matter Hoch[69] as well) were not entirely apposite when dealing with questions of the admissibility of tendency and coincidence evidence. Simpson J, who delivered the lead judgment, said that Boardman[70] could nonetheless play a significant role in determining admissibility under ss 97 and 98. She referred specifically to ‘striking similarities, underlying unity, system or pattern’ as being relevant to the admissibility of tendency evidence.[71]
[67](2005) 156 A Crim R 308 (Simpson J, McClellan CJ at CL agreeing) (‘Fletcher’).
[68][1975] AC 421.
[69](1988) 165 CLR 292
[70][1975] AC 421.
[71]Fletcher (2005) 156 A Crim R 308, 322 [60].

CGL[72] and PNJ[73] were followed in NAM[74] where it was held that the complainants’ accounts were ‘strikingly similar’ and that it was ‘highly improbable, to the point of impossibility, that the similarity in [those] accounts could be explained by coincidence’.[75] It should not be thought, however, that NAM stipulated ‘striking similarity’ as a necessary condition for cross-admissibility, rather that the particular facts of the case managed to achieve that high threshold.
[72](2010) 24 VR 486.
[73](2010) 27 VR 146.
[74][2010] VSCA 95.
[75]Ibid [12] (Maxwell P, Buchanan and Nettle JJA agreeing).

These three cases put the law in this State on essentially the same path as had been charted by Winneke P in Papamitrou.[76] Subsequently, these decisions have sometimes been incorrectly understood as having reinstated the principle in Boardman[77] as the basis for the operation of tendency and coincidence evidence. The requirement of ‘underlying unity’, ‘modus operandi’, ‘pattern of conduct’ or ‘commonality of features’ applies to similarities that cannot be described as ‘striking’. These concepts continue to be regularly used to provide guidance as to the strength of the tendency evidence. They are to be found in the preponderance of authority from this Court and permeate its decisions. They remain, in our view rightly, a primary guide to the resolution of questions of admissibility. Because each of these concepts rests upon the existence of some degree of similarity of features between the previous acts and the offences charged, the law in Victoria now follows a somewhat different path to that currently followed by the New South Wales Court of Criminal Appeal.
[76](2004) 7 VR 375.
[77][1975] AC 421.

This early approach to tendency and coincidence was adopted by this Court in GBF.[78] There, the Court allowed an interlocutory appeal from a ruling of a trial judge holding that evidence of two complainants, designated C1 and C2, was cross-admissible. Reference was made to R v Ford,[79] at that stage a relatively recent decision of the New South Wales Court of Criminal Appeal, where Campbell JA seemed to have departed somewhat from the approach earlier taken by Simpson J in Fletcher,[80] and observed that:

In my view there is no need for there to be a ‘striking pattern of similarity between the incidents’. 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 …[81]

[78][2010] VSCA 135 (Nettle and Harper JJA and Hansen AJA) [27], [36], [45].

[79](2009) 273 ALR 286 (‘Ford’).

[80](2005) 156 A Crim R 308.

[81]Ford (2009) 273 ALR 286, 316 [125] (emphasis added).

The Court in GBF said of Campbell JA’s statement of principle:

With great respect, his Honour was surely correct. But in view of some of the observations of the judge in this case, we add that it is important to understand the context in which Campbell JA was speaking. In Ford [(2009) 273 ALR 286] the court was concerned with a case in which the tendency sought to be proved was one to act in a particular way, namely, sexually to assault young women who: (1) had stayed over at the accused’s house after attending a party there, (2) had consumed a significant amount of alcohol, (3) were asleep, and (4) where there was a risk of the applicant’s offending being discovered by others. In effect, it was a case in which the evidence revealed a modus operandi that was substantially probative of the offence alleged. One argument put against that conclusion was that the sexual offences alleged were unremarkable, and thus lacking such striking similarity as to make offending on one occasion probative of offending on the other. Campbell JA rightly rejected the argument on the basis that the modus operandi was capable in itself of being sufficiently probative of the offending in issue. As his Honour noted, the way in which it was put by one of the two judges who had considered the problem at first instance, and whose treatment of the problem was approved of on appeal, was that the evidence established a tendency on the part of the accused ‘to do something unusual, that is to indecently assault women who are asleep at his place after having attended a party there’. In that context, Campbell JA’s statement does not suggest that his Honour had in mind any departure from previous authority. To the contrary, we see his Honour’s analysis as an affirmation of established principles as they applied to the facts at hand.[82]

[82][2010] VSCA 135 [29] (citations omitted) (emphasis in original).

It should be noted that in GBF the Court accepted that assistance could be gained, in construing s 97, from common law formulations. It said that:

[O]ne is loath to accept that offending on one occasion is significantly probative of offending on another unless there are significant or remarkable similarities as between previous acts and the act in question, or as between the circumstances in which previous acts were committed and the circumstances in which the act in question was committed or, more compendiously, unless the evidence reveals a pattern of conduct, modus operandi or some other underlying unity, which logically implies that, because the accused committed the previous acts or committed them in particular circumstances, he or she is likely to have committed the act in issue.[83]

[83]Ibid [27] (citations omitted) (emphasis in original). It should be noted that this passage conforms broadly with the test propounded in CGL (2010) 24 VR 486 and PNJ (2010) 27 VR 146 insofar as it speaks of a pattern of conduct, modus operandi or some other underlying unity.

These considerations were referred to by Redlich JA (with whom Hansen JA agreed) in RR v The Queen:

[R]elevant similarities must be present otherwise the evidence would be ‘pure propensity evidence’ and would not demonstrate ‘underlying unity’ or a ‘common modus operandi’ or a ‘pattern of conduct’ which would justify cross-admissibility.[84]

[84][2011] VSCA 442, [40] (‘RR’).

What is of interest in GBF[85] is that, although it was accepted that a number of the charges were cross-admissible, so that the evidence of C2 might support the account given by C1, and vice versa, there were other charges where the criteria for cross-admissibility had not been met, and to that extent the trial judge’s ruling had been erroneous.
[85][2010] VSCA 135.

The Court concluded that notwithstanding the cross-admissibility of some counts, the trial judge ought, in the circumstances of the case, to have severed the C1 counts from those involving C2. It did so on the basis that any jury, faced with complex directions regarding some counts that were cross-admissible and others that were not, would find it difficult, if not impossible, to comply with those instructions. The Court came to that conclusion, despite the existence of the presumption, by then contained in s 194(2) of the Criminal Procedure Act, that sexual offences should be tried together, irrespective of whether the criteria for cross-admissibility had been met. In essence, the Court applied that particular aspect of Papamitrou[86] to the facts in the case.
[86](2004) 7 VR 375.

Later Victorian cases

This Court has considered the operation of ss 97 and 98 on more than 50 occasions since the Evidence Act came into force.[87] As previously indicated, in a number of these cases, the point was dealt with by way of interlocutory appeal, and without any real discussion of principle.
[87]A computer search indicates that in nearly 20 years of decision making, the New South Wales Court of Criminal Appeal has made reference to the principles governing tendency and coincidence on no fewer than 340 occasions. Similar searches for both Tasmania and the Australian Capital Territory returned only a handful of cases. No comprehensive statement of principle is to be extracted from those decisions.

We will focus predominantly, in this summary of the current position in this State, upon only those cases that articulate the test to be applied when considering whether the evidence to be led has ‘significant probative value’.

In broad terms, the analysis demonstrates that in the early judgments of this Court, it came to be understood that a Papamitrou[88]-like approach should be taken to the construction of that term. More recent cases, particularly those decided by New South Wales Court of Criminal Appeal, have given rise to a perception that in the application of principle to the facts, the threshold for admissibility of both tendency and coincidence evidence has been lowered. In Victoria, analysis shows any lowering of the threshold for admissibility may be more apparent than real.
[88](2004) 7 VR 375.

In JLS v The Queen,[89] the Court dismissed an interlocutory appeal against a ruling that determined, in part, that certain tendency evidence could be led. It is noteworthy that throughout the entire judgment, not a single word was said about any need for ‘striking similarity’ or ‘underlying unity’.
[89](2010) 28 VR 328 (Redlich, Mandie and Bongiorno JJA) (‘JLS’).

JLS treated both CGL[90] and PNJ[91] as distinguishable, on the basis set out below:[92]

The trial judge was referred to the recent interlocutory appeals of CGL v Director of Public Prosecutions [(2010) 24 VR 486] and PNJ v Director of Public Prosecutions [(2010) 27 VR 146]. Relying upon those decisions it appears to have been submitted that the evidence of other sexual acts did not have any ‘distinctive feature’ and could not therefore support tendency reasoning. In ruling the evidence of other sexual misconduct admissible as tendency evidence, the trial judge rightly distinguished those decisions. Both were concerned with a single presentment containing multiple counts which gave rise to the question whether the evidence of a number of complainants was cross-admissible as co-incidence evidence or tendency evidence. In both cases, the court held that the evidence of the complainants did not contain such similarities as would make their evidence cross-admissible. In the present case there was only one complainant and one count. Her Honour held that the evidence of other sexual misconduct was relevant to the fact in issue in that it would:
… render it more probable that [the applicant] did commit at least three sexual offences relied on as the particulars of maintaining a sexual relationship, and that he had a sexual interest in [the complainant] and on the occasions referred to in the particulars in the charge of maintaining a relationship, was willing to act on this sexual interest.

[90](2010) 24 VR 486.

[91](2010) 27 VR 146.

[92](2010) 28 VR 328, 332 [13] (citations omitted).

In Director of Public Prosecutions (Vic) v BCR,[93] the Director of Public Prosecutions brought an interlocutory appeal against a trial judge’s ruling refusing to admit certain tendency and coincidence evidence. The Director argued that the

trial judge had incorrectly applied CGL,[94] PNJ[95] and NAM.[96] He submitted, in the alternative, that those cases were all in direct conflict with New South Wales authority, and were wrongly decided.

[93][2010] VSCA 229 (Neave and Weinberg JJA and T Forrest AJA) (‘BCR’).

[94](2010) 24 VR 486.

[95](2010) 27 VR 146.

[96][2010] VSCA 95.

In support of that latter submission, the Director referred first to R v Lockyer,[97] a decision by Hunt CJ at CL during the course of a trial. The facts were unusual. This was an application by the accused to admit tendency evidence from which it could be inferred that his de facto partner was responsible for having brought about the death of the child that the accused was charged with having murdered. Not surprisingly, in that regard, a low threshold was set for the admissibility of that evidence.
[97](1996) 89 A Crim R 457 (‘Lockyer’).

The other New South Wales cases cited were Fletcher,[98] Ford[99] and R v Joiner.[100] We have earlier commented upon the former two cases. In Joiner, the accused was charged with the murder of his wife. He admitted having struck her, but claimed that he had not intended to injure her seriously. The Crown sought to lead tendency evidence of his violence towards three other women, during the course of prior relationships, including a tendency to attack the head of each partner at the slightest provocation. It was held on appeal that evidence of his inability to control anger, and a tendency to respond to minor irritations with violence against women satisfied the requirements of both ss 97 and 101. It was said to be at least strongly arguable that a different conclusion would have been reached under the approach taken by this Court in CGL[101] and PNJ.[102]
[98](2005) 156 A Crim R 308.
[99](2009) 273 ALR 286.
[100](2002) 133 A Crim R 90 (‘Joiner’).
[101](2010) 24 VR 486.
[102](2010) 27 VR 146.

The Court in BCR refused leave to appeal. It noted that the trial judge, in his ruling refusing to admit the evidence as tendency or coincidence, had approached the matter in the following way:[103]

His Honour said that not all the evidence on which the Crown sought to rely demonstrated this tendency. Although some of the alleged conduct involved indecent touching while comforting students who had been injured playing sport, others involved alleged touching after punishment of students and touching after comforting students who had not been injured, and therefore lacked the distinctive feature of ‘comforting after injury’.
After applying a similar analysis to the evidence relied upon in other tendency notices, his Honour concluded that there was an insufficient identifiable pattern of similarities in the circumstances of the offending ‘to make out a tendency, which is significantly probative of the relevant fact in issue concerning any count’.

[103]BCR [2010] VSCA 229 [21]–[22] (citations omitted).

The Court noted that the decisions under challenge by the Director, CGL,[104] PNJ[105] and NAM,[106] were all recent. In those circumstances, the Director would have to overcome the considerable hurdle of demonstrating that these cases were not merely ‘wrongly decided’, but ‘plainly wrong’. In rejecting the Director’s application the Court observed that it was not persuaded that the decisions of this Court were obviously wrong.[107]
[104](2010) 24 VR 486.
[105](2010) 27 VR 146.
[106][2010] VSCA 95.
[107]BCR [2010] VSCA 229, [46].

The Court also stated that the Director’s application for leave to appeal was in one sense premature, given that the question of severance had not yet been determined and added, for good measure, that ‘an appeal against an interlocutory decision would only be an appropriate vehicle for challenging an existing line of authority in exceptional circumstances’.[108]
[108]Ibid [44].

In PG v The Queen,[109] the Court allowed, in part, an interlocutory appeal against certain rulings of a trial judge allowing tendency and coincidence evidence to be led. In dealing with the specificity, or distinctiveness, of the conduct required to be admissible, Nettle JA said:

Sometimes, it will be a matter of striking similarity as between one act and another which bespeaks the underlying unity that makes evidence of the former admissible in proof of the latter. Sometimes, there will be something peculiar about the acts which makes evidence of one admissible in proof of the commission of the other. Sometimes, it will be the circumstances of the offending which makes evidence of one act admissible in proof of the other, and examples can be multiplied. In short, it is a question to be assessed in all the circumstances of the case, bearing in mind what has been said in previously decided cases as to what is sufficient in kindred circumstances.[110]

[109][2010] VSCA 289 (Nettle, Neave and Harper JJA) (‘PG’).

[110]Ibid [71].

CW v The Queen[111] was a case that involved arson rather than sexual offending. It concerned the existence of relationships which uniquely linked the accused with two or more victims of similar crimes. The Court endorsed the approach taken in PG,[112] and once again eschewed any requirement that there be ‘striking similarity’ as a condition for admissibility. The Court said (as it had done earlier):
[111][2010] VSCA 288 (Maxwell P, Buchanan and Neave JJA).
[112][2010] VSCA 289.

Counsel for the applicant contended, further, that it was necessary for the prosecution to show some ‘striking similarity’ in the circumstances, before it could be concluded that the evidence had significant probative value. He relied for this purpose on statements in the authorities that, where what was in issue was not whether a crime had been committed but the identity of the perpetrator, a stringent requirement of similarity should be applied. With respect, this submission is misconceived. As we have already explained, the basis of the coincidence reasoning in a case such as the present is quite different. It relies on the existence of a relationship which uniquely links the accused person with two or more victims of similar crimes. There is no separate requirement of ‘striking similarity’.
As mentioned earlier, the prosecution did rely on certain similarities in the fire events, as follows:
•each fire was deliberately lit by spreading an accelerant;
•each fire was lit in commercial premises;
•each fire was started at or near the entrance door to the premises;
•all of the fires occurred on the same evening, within a four hour period; and
•all of the fires were in the same suburb.

The argument for the applicant was that the use of an accelerant was ‘the stock-in-trade of the arsonist’ and that, likewise, there was nothing distinctive about fires being lit at the front door of commercial premises. We accept that, by themselves, these features might be insufficient to give the evidence significant probative value. The close proximity in time is of more significance, at least in pointing to the improbability of there having been more than one arsonist active on this particular night. But nothing further need be said on this aspect since, as we have said, what gave the evidence its significant probative value was the link between the accused and each intended victim.[113]

[113]CW v The Queen [2010] VSCA 288, [22]–[24] (citations omitted).

As has been seen, by the end of 2010, ss 97 and 98 had been considered by this Court on a significant number of occasions. The emphasis upon Papamitrou[114] reasoning was no longer so apparent. ‘Striking similarity’ continued to be eschewed as a precondition to admissibility, or cross-admissibility, formulations. Concepts such as ‘underlying unity’ or ‘pattern of conduct’ continued to be employed to emphasise the need for sufficient similarity or distinctiveness in the features of the proposed tendency evidence.
[114](2004) 7 VR 375.

Throughout the following years, up to the present, the Court has been confronted with a vast array of challenges to rulings on the admissibility of tendency and coincidence evidence. Some cases stand out.

In KRI v The Queen,[115] the Court dismissed an application for leave to appeal against an interlocutory decision in which the trial judge had admitted certain evidence as both tendency and coincidence.
[115](2011) 207 A Crim R 552 (Buchanan, Hansen and Tate JJA) (‘KRI’).

Hansen JA, who delivered the leading judgment, noted that the applicant relied heavily upon PNJ[116] in relation to both tendency and coincidence, arguing that the allegations made by the complainants were not sufficiently similar to warrant cross-admissibility. His Honour rejected that submission and in the course of doing so, distinguished PNJ. He said:

This proposed ground, belatedly raised, now invites the Court to assess the adequacy of the judge’s directions and to do so without regard to the manner in which the trial was conducted.[297] It had not been suggested at trial that tendency reasoning could apply to evidence of each complainant on only some of the charges. At trial, all the evidence of each complainant on each charge was said to be evidence which could be used to support tendency reasoning.
[297]Doggett (2001) 208 CLR 343.

The Crown contends that in the setting in which the trial was conducted, the trial judge was not required to distinguish between the charges in her direction. Given the way the trial was conducted, it was said her Honour was required only to ensure the jury understood that they had to determine whether the applicant’s conduct demonstrated a pattern of behaviour and that where those features of commonality or underlying unity were present in one complainant’s evidence, it could be used to make more probable the evidence of another complainant on another charge containing such features. So much may be accepted. Having regard to the way in which the trial was conducted, the trial judge was not obliged to distinguish between the charges as the applicant suggests and instruct the jury that the evidence on some charges could not support tendency reasoning. But, the trial judge was, as the Crown accepts, obliged to provide the jury with adequate directions to enable them to determine for themselves whether tendency reasoning would assist them on each particular charge.

Her Honour gave the jury a conventional separate consideration direction and a warning against propensity reasoning. She instructed them to consider only the evidence relevant to each charge. Her Honour then gave the following directions as to how the complainants’ evidence could be used to support each other:

You will note that I said you must consider each charge in light only of the evidence which applies to it. This is because some of the evidence you have heard in this case is only relevant to one charge or another. Keeping in mind the separate consideration direction I have just given you I am now going to move on to explain to you how the prosecution has relied on the evidence of the complainants as being supportive of each.
This is the evidence of one complainant being supportive of another complainant. The prosecution case is that the evidence of the complainants — and when I say this I am talking about the evidence of each of the complainants in relation to the charges on the indictment, and that is Charges 1 and 2 in relation to GS and Charges 3 and 4 in relation to MS Charges 6, 7, 12, 13, 8, 10, 15 and 14 in relation to OA.
The prosecution case is that the evidence the different complainants gave show that the accused had a tendency to act in a particular way and to have a particular state of mind. That is that he had a sexual interest in the young children attending the day care run by his wife in their residence at Thornbury and that he was willing to act on that sexual interest by engaging in the indecent acts with MS, GS and OA.
While the evidence on each charge must be considered separately as I have just informed you, you may also use the evidence of one charge if you are satisfied beyond a reasonable doubt that it is proven in support of another charge. You may only use the evidence of one charge in consideration of another charge in the following two ways.
First if you accept that the evidence may place the alleged offence in a complete realistic context and setting, for example, it could assist you to understand the complainant’s alleged conduct or state of mind such as why the complainant you are then dealing with might be submitting to the accused's demands or why that complainant did not complain about it.
It could help you to understand the accused's conduct or state of mind of the offences such as why he felt he could act in a particularly brazen way, for example, if you were satisfied beyond reasonable doubt that he committed an indecent act against one of the complainants without being discovered or without that complainant telling an adult about it, it might explain why he felt able to do the same with another complainant on another occasion.
The circumstances of the alleged offence are also relied upon for context such as to show you that the complainants do not say that the offences occurred out of the blue.
Secondly the prosecution has led the evidence to prove that the accused had a sexual interest in the complainants. If you find that the accused was sexually attracted to the complainants and was willing to act on that attraction you may use that finding in determining whether the accused committed the offences charged.
The prosecution case is that the accused had a pattern of behaviour towards these children which shows a particular state of mind. That is that he had a sexual interest in them. I direct you that this is a legitimate form of reasoning. If you accept the evidence you may infer that the accused had the tendency, and you may further infer that it makes it more likely that he committed the alleged offences.
You will remember what I just said about drawing inferences, and you have to apply the test I gave you about drawing inferences to the evidence before relying on it in this way. So you are entitled to consider the evidence of one complainant if you accept it makes it more probably [sic] that the other is telling the truth.
For example, if you accepted beyond reasonable doubt what GS said, then you might consider it makes it more probable that OA is telling the truth. However, if you are not satisfied beyond reasonable doubt of the evidence of a particular charge, or you do not think that the evidence on one charge makes it any more likely that the accused committed the alleged act on another charge or charges, then you must disregard the evidence on that particular charge. …
It is important that you only use this evidence for the two purposes I have referred to, and only if you are satisfied beyond reasonable doubt that it is true and it helps you to explain the main issue in this case, that is whether or not the offences occurred. If you are not satisfied of the evidence beyond reasonable doubt, or if you do not think it makes it any more likely that the accused committed the alleged acts, then you must disregard it.

One must take account of the fact that no exception was taken to these general directions concerning tendency reasoning. The trial judge was not asked to identify the tendency evidence, or to explain how it might assist the jury when considering individual charges. The Court does not know whether the defence saw some benefit in the absence of directions which should have made explicit reference to the distinctive features of the complainants’ accounts. The absence of any exception must be taken as some indication that trial counsel saw no injustice or error in the course that was followed.[298]
[298]R v Wright [1999] 3 VR 355, 356.

Notwithstanding these powerful considerations and the waiver by the defence to any objection to the use of the evidence as tendency evidence, the trial judge was not relieved of the obligation to adequately direct the jury as to tendency reasoning.[299] The directions were, in our respectful view, unsatisfactory. It is highly unlikely that the jury could properly have employed tendency reasoning.
[299]See R v DCC (2004) 11 VR 129.

Some of the deficiencies in the present direction are much the same as those discussed in RR.[300] Although RR was concerned with a coincidence evidence direction, in which there had been a failure to identify the evidence supporting such reasoning and which focussed upon whether the acts had a sexual connotation, the observations made in RR are pertinent to the present direction. The direction which the trial judge gave in RR would not have enabled the jury to recognise whether the evidence had the necessary quality to permit coincidence reasoning. It amounted to an instruction that the jury might reason that if the applicant had the tendency to commit an act of a sexual nature with one child, then it was more likely that he committed the sexual acts alleged by the complainants. It was noted in RR, that even if the evidence possessed a commonality of features or underlying unity ‘the concept of probability reasoning had to be sufficiently explained to the jury so that the basis for drawing the inference was understood’. The direction referred to a ‘consistency of pattern’, earlier explained as ‘a pattern of systemic sexual conduct’ that made it improbable that the evidence of the complainant was not true. The jury had been left with the erroneous impression that if they accepted that the evidence established that there was a sexual connotation, then the sexual acts alleged by the complainants were rendered more likely.[301] These criticisms are germane to the present direction.
[300][2011] VSCA 442.
[301]Ibid [43]–[44] (Redlich JA, Neave and Hansen JJA agreeing).

The following observations of Coghlan JA in RJP,[302] whilst concerned with coincidence reasoning at common law, are also apposite as they emphasise the need to identify for the jury the features of the evidence which enable the form of reasoning which the Crown relies upon, and the danger of impermissible reasoning in the absence of such an instruction.

Even assuming there was underlying unity, the charge which dealt with cross admissibility was deficient in that it only summarised the way the crown case was put. It was incumbent upon the trial judge to identify the features in each complainant’s account which, as a matter of law, were capable of being used to support each other. The charge should have directed the jury that if they were satisfied as to that underlying jury, they may use such evidence in determining whether a complainant’s evidence on a particular count was truthful.
There is a reluctance in cases similar to the present case to go into detail about the counts but proper instructions about underlying unity can only be given after some detailed analysis of the counts has occurred.
The lack of particularity in his Honour’s charge left open to the jury that it was appropriate to reason from the relationship evidence, the opportunistic nature of the offending and the position of authority of the applicant that there was an improbability of coincidence on all of the counts. That possibility is unacceptable and has given rise to a miscarriage of justice.[303]

[302](2011) 215 A Crim R 315.

[303]Ibid 334, [105]–[107] (Redlich JA and Macaulay AJA agreeing).

The directions were inadequate, and those given contained serious errors. First, as the model direction in the Charge Book sets out, the trial judge should identify the evidence upon which the prosecution relies as constituting tendency evidence. The trial judge was obliged to identify the particular evidence set out in the tendency notice referred to at paragraph [21] above, and to instruct the jury to consider whether such similarities or common features of the offence or the circumstances in which it was committed as they found existed increased the probability of the act the subject of the charge they were then considering. The trial judge did not identify the evidence of pattern or similarity, or the circumstances that constituted the tendency. Her Honour’s reference to a ‘pattern of behaviour’ was linked only to the particular state of mind of the applicant. It was unlikely to have been understood as requiring the jury to consider whether there was a pattern of conduct engaged in by the applicant towards the complainants. Critically, this was not done.

Second, as the model direction suggests, the jury should be directed to scrutinise that evidence to determine whether it did demonstrate a pattern of conduct or similarity of circumstances. This direction enables the jury to recognise whether the evidence has the necessary quality to permit tendency reasoning. No instruction to this effect was given.

Third, her Honour did not follow the model charge, and direct the jury to consider the act from each charge which was in issue, and to which that tendency evidence might relate in order to determine whether such pattern or similarities as they found existed made it more likely that the act was committed.[304] These critical directions were necessary if one were to have any confidence that the jury engaged in sound tendency reasoning. The instructions were thus likely to have misled the jury as to how they could legitimately reason. The fact that the evidence was to be treated as tendency evidence, and so cross-admissible, did not relieve the trial judge of the duty to explain in this manner how the cross-admissible evidence could permissibly be used.
[304]The need for such directions is set out in the Victorian Criminal Charge Book bench notes in the model directions.

Instead of instructing the jury as to this process of reasoning, her Honour took the jury directly to the general conclusion which the prosecution had asserted in its tendency notice flowed from that process, namely that the applicant had a particular sexual interest in the complainants and that he was prepared to act upon that interest. The trial judge should not have instructed the jury to the effect that the tendency upon which the prosecution relied was the applicant’s willingness to act upon his sexual interest in the complainants and commit the offences charged. We earlier explained why such a direction should not have been given.[305] The applicant thus complained on appeal that the explanation that ‘the prosecution led the evidence to prove that the accused had a sexual interest in the complainants’ and that a finding ‘that the accused was sexually attracted to the complainants and was willing to act on that attraction’ may be used to determine ‘whether the accused committed the offences charged’ was too general. It was likely to produce impermissible reasoning by the jury. The applicant, with some force, contended that the instruction invited circular or ‘bootstrap’ reasoning in which the jury, having determined that the applicant had a sexual interest in all of the complainants (which he was prepared to act upon) probably committed the offences charged. It invited pure propensity reasoning and was not the basis upon which the complainants’ evidence was cross-admissible.
[305]See paragraph [22] above.

Tendency evidence in relation to a single complainant may demonstrate the accused’s sexual interest in that complainant, and so increase the probability that further charged offences were committed.[306] Such tendency reasoning has in the past been described inaptly as ‘guilty passion’ reasoning.[307] But, in the absence of identification of the evidence which constituted the tendency evidence, instructions to the effect that the applicant was sexually attracted to ‘all the complainants’ and was prepared to act upon that attraction did not advance the process of tendency reasoning. It served only to deflect attention from whether there existed sufficient similarities in the applicant’s conduct, or the circumstances surrounding its commission on particular charges, or both, as would render more likely the occurrence of the facts in issue on other charges concerning another complainant.
[306]HML v The Queen (2008) 235 CLR 334; R v BJC (2005) 13 VR 407; R v VN (2006) 15 VR 113; R v EF [2008] VSCA 213.
[307]Rolfe v The Queen [2007] NSWCCA 155.

Insofar as the evidence of an offence provided ‘context’ for the offences committed against a particular complainant, the direction must also have been confusing because the trial judge had introduced this direction by stating that she was instructing them as to how the evidence of one complainant was supportive of another. The jury may have understood from the instructions given that the use of the evidence on one charge as providing ‘context’ could be used to support the allegations of other complainants.[308]
[308]HML v The Queen (2008) 235 CLR 334.

Further, the direction as to the inferences that could be drawn from this evidence was, for these reasons, also likely to lead the jury to embark upon impermissible reasoning.

This ground is made out.

Ground 1 — The verdicts in respect of Charges 2, 3, 7, 8, 11, 12 and 13 are unsafe and unsatisfactory.

For the purpose of any retrial, it is necessary to consider this ground and the discrete arguments that the evidence on particular charges rendered those convictions unsafe.

Charge 2

The applicant submits that the verdict of guilty on Charge 2 was unsafe on the basis that it was supported by tenuous evidence. The Crown relied on the complainant GS’s answers in the VARE:

Q234:So what, when you said that you saw, on the September holidays that have just gone —
A234:Mm.
Q235:— what, what happened, what did you see him do?
A235:Oh, he would do it with me too, like, we will start play fighting, and then, like, oh, you know, I didn't know that he might do that, so, like, he would grab us there then.
Q236:So tell me about a time when he did that.
A236:Yeah, as I said, last holidays and —
Q237:Yeah.
A237:… but he would do it, like, when we're older. Like, when we're little —
Q238:So last —
A238:— he never did it.
Q239:Last holidays, what, tell me what he did.
A239:Like, we will play fight and then he would, like, try and grab us in the privates —
Q240:Mm.
A240:— and, yeah.
Q241:So try to grab, or did he grab you?
A241:Oh, he would've tried to, but then he, yeah, he sort of did. Sometimes he did and sometimes he'd try.
Q242:So when you say, He did, what did he do? Tell me about it.
A242:Well, yeah, we were, like, playing, we were playing games and he would, you know, grab there. And then we would fall back down on the ground, and we would start playing again, and, yeah.
Q243:How would he grab your private?
A243:Oh, you know, the normal way, he would just grab it, like, yeah, with his hand he would grab it.
Q244:How long did he grab it for? What did he do with his hand?
A244:Yeah, he just grabbed it and then he let go, but —
Q245:OK.
A245:— yeah, he just grabbed it, then he let go.
Q246:Did he say anything when he did it?
A246:No. Like, we were laughing, but he, yeah, he didn't saying anything when he did it.
Q247:And whereabouts on your private part did he touch, like?
A247:Yeah, the, like, directly, he wouldn't touch here or here, like, he would, like —
Q248:Yeah.
A248:— if he wanted to do it.
Q249:But which part? Well, what do you —
A249:Oh —
Q250:— call your private part?
A250:Oh, penis, penis, penis.
Q251:Penis. So whereabouts on that area would he touch?
A251:All around it, you know, ‘cause his hand’s big, he would try to do that, and sometimes he would’ve done that, but, yeah.

The VARE excerpt highlighted by the applicant was not the only evidence relating to Charge 2. GS made numerous other references during the VARE to the applicant grabbing GS’s crotch while play fighting. The complainant’s mother gave evidence that GS had told her that the applicant’s hand would stray and touch his groin when they were play fighting. On this evidence, it cannot be said that the jury must have entertained a doubt about the applicant’s guilt.
Charge 3

Charge 3 arose from a statement made by the complainant MS to her father while they were on holiday in Queensland. The complainant told her father, ‘out of the blue’, that she saw the applicant’s penis. When asked to elaborate by her father, the complainant demonstrated that the applicant had opened his pants and shown her his penis. The complainant’s mother overheard the conversation. On the evening of 10 October 2011, the day MS returned to the day-care centre, she told her mother that she had ‘[seen the applicant’s] penis again’ that day, indicating that it was not the first time she had seen his penis.

The Crown sought to rely on this evidence under s 377 of the Criminal Procedure Act 2009, rather than s 66 of the Evidence Act. Section 377 provides:

377Exception to hearsay rule—previous representations made by complainant under 18 years
(1) In this section—
asserted fact has the same meaning as in the Evidence Act 2008;
hearsay rule has the same meaning as in the Evidence Act 2008;
previous representation has the same meaning as in the Evidence Act 2008.
(2)This section applies in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence if a complainant under the age of 18 years who made a previous representation is available to give evidence about an asserted fact or the complainant's credibility is relevant.
(3)Subject to subsection (4), if a complainant has been or is to be called to give evidence, the hearsay rule does not apply to evidence to support an asserted fact or the complainant's credibility that is given by—
(a)the complainant; or
(b)a person who saw, heard or otherwise perceived the representation being made.

(4)Subsection (3) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.
(5)A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.
(6)Evidence of the kind referred to in subsection (3) is admissible to support the credibility of the complainant as a witness.
(7)Nothing in this section takes away from or limits any discretion a court has to exclude evidence.

An asserted fact is defined in s 59 of the Evidence Act as follows:
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2)Such a fact is in this Part referred to as an asserted fact.
At the beginning of the trial, the trial judge ruled that the evidence from MS’s parents was admissible. She advised counsel that if, after having completed the special hearing with MS, the parents’ evidence in respect of Charge 3 was the only evidence against the applicant on this charge, she would consider giving an unreliability warning. Though it was the only evidence, no warning was sought and none was given.

During MS’s VARE interview on 13 October 2011, she did not make reference to the alleged offence constituting Charge 3. She stated that the incident on 10 October 2011, constituting Charges 4 and 5, was the only occasion on which she had seen the applicant’s penis. No evidence in respect of Charge 3 was elicited during that interview. Moreover, MS’s mother gave evidence that three days after telling her father about the first alleged incident, MS retracted the assertion she had made to her father. After cross-examination during the special hearing, the prosecutor sought leave to re-examine the complainant. The prosecutor asked the complainant if, in addition to the incident which occurred on 10 October 2011, she had seen the applicant’s penis on any other occasion. The complainant said no.

The applicant challenged the admissibility of the complaint evidence under Ground 3. He alternatively submitted that this evidence, if admissible, did not provide a satisfactory basis to support the conviction. Upon it becoming apparent during the course of oral argument that the evidence had not been wrongly admitted, the applicant abandoned Ground 3 and pursued the submission that the conviction was unsafe. For the reasons that follow, the applicant was correct to concede that the evidence was admissible and to focus upon the bases upon which it should have been excluded.

The applicant’s contention that s 377(3) of the Criminal Procedure Act 2009, as an exception to the hearsay rule, did not permit a witness to give evidence of a fact asserted in a previous representation when that fact is only asserted in the previous representation and not in the complainant’s own evidence or testimony was unsustainable.

An additional question arose as to whether s 377 applied to the exclusion of s 66 of the Evidence Act. In our view, this question was resolved by the Court in Stark v The Queen:[309]

In contrast to s 66(2A), s 377 is not accompanied by a ‘Note’ explaining its genesis. Had such a note been included, it would doubtless have confirmed what the extrinsic materials make clear — that s 377 (like its predecessor, s 41D) was enacted to give effect to the Commission’s 2004 recommendation, that there be a ‘child-specific exception’ under which the admissibility of the hearsay evidence would not depend upon the ‘asserted fact’ being fresh in the child’s memory.
As we have seen, both the Commission’s recommendation and the legislative enactment were directed at extending the hearsay exception created by s 66. In short, the provision was intended to establish a different, and less rigorous, test of admissibility in the case of a child complainant. The focus is not on whether the child’s memory of the alleged assault is fresh but on whether the evidence ‘has sufficient probative value’. Importantly for present purposes, evidence which satisfies s 377 is admissible for the specified purposes, whatever the position might be (or have been) under s 66.
The notion that s 377 would ‘extend’ the hearsay exception would seem to carry with it the assumption that evidence which was not admissible under the (more liberal) test in s 377 would not be likely to have satisfied the requirements of s 66. It is unnecessary to explore whether there is in fact any realistic scope for complaint evidence to be admitted under s 66 in circumstances where it would not be admissible under s 377. There is certainly nothing in the legislative history or in the language of s 377 to suggest that Parliament, in enacting s 377, intended to render s 66 unavailable in a case involving a child complainant. Rather, the provisions were to operate ‘in conjunction’. But evidence which would satisfy the ‘fresh in the memory’ test in s 66 would almost certainly be viewed as ‘sufficiently probative’ for the purposes of s 377, such that s 66 would have no additional work to do.[310]

[309][2013] VSCA 34.

[310]Ibid [38]–[40] (Maxwell P).

No complaint could be made that her Honour’s ruling was made prior to the special hearing and prior to the VARE being tendered into evidence. For the purpose of admitting the evidence at that stage, it was sufficient that the complainant made a representation and that the complainant would be called to give evidence. As was to become evident later on in the trial, the asserted fact had been recanted during the VARE and during re-examination by the prosecutor. Had such facts been known to her Honour, the evidence could have been excluded under s 377 on the basis that it was not sufficiently probative, or it could have been excluded under s 137 of the Evidence Act on the basis that its probative value was outweighed by its prejudicial effect.

Although the sequence of events at trial meant that the parents’ hearsay evidence was not excluded, the verdict under Charge 3 is plainly unsafe. The complainant flatly denied on the VARE, and during re-examination, that she had seen the applicant’s penis more than once. There was no direct evidence to support this charge, the Crown relying solely on the hearsay evidence of the complainant’s parents. The complainant’s mother had also given evidence that MS had retracted her allegation three days after first describing the incident to her father. In light of this limited evidence, it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of this charge.[311] We would grant leave, allow the appeal on this part of this ground and enter a verdict of acquittal.
[311]M v The Queen (1994) 181 CLR 487, 493.

Charge 7

Under Charge 7, it was alleged that the complainant, OA, was upstairs playing on a laptop when the applicant put his hands down her pants and touched her vagina in a circular pattern.

OA stated during cross-examination and re-examination that she was only ever alone upstairs with the applicant for a couple of seconds, when she stayed to pack up toys after the other children had gone downstairs. The applicant submitted that the complainant’s evidence in cross-examination and re-examination establishes that she was never alone upstairs with the applicant for a period of time long enough for this offence to have taken place.

This submission is misguided because the conviction on Charge 3 was not contingent on the applicant being alone upstairs with the complainant. Having regard to the evidence led in support of Charge 7, which is drawn from OA’s first VARE on 13 November 2011, there is no suggestion or necessary inference to be drawn that OA and the applicant were alone when this offence occurred. It is unfortunate that in summing up the circumstances of the offence in her charge, the judge stated that it had occurred ‘when they were alone upstairs’, as this was not the evidence as led, but no objection was made by defence counsel to her Honour’s summation.

The room upstairs contained a laptop computer and a Nintendo Playstation, which were in separate parts of a ‘fairly small’ upstairs room. GS and OA’s brother would generally play on the Playstation, whereas the complainant would play on the computer. OA did not specify whether she was alone with the applicant at the time Charge 7 occurred, and there was no inconsistency between her account of Charge 7 and her evidence that she was never alone for more than a few seconds with the applicant. No reason has been demonstrated why the jury should have entertained a reasonable doubt about her evidence that the offence occurred while other children were playing the Playstation. There is nothing unsafe about the jury’s findings on this charge.

Charges 8, 12 and 13

Each of these offences occurred while the applicant was upstairs with the complainant, in the company of GS and her brother. The Playstation was positioned to the left and in front of the computer, so that OA, playing on the computer, would have been visible to the boys playing on the Playstation. The applicant submits that the allegation that the applicant could have committed sexual acts on OA, in the presence of GS and OA’s brother, without either of them becoming aware of the conduct, was implausible, if not impossible.

This submission must be rejected. Charge 8 involved the applicant placing the complainant’s hand on his penis over his clothing. For Charge 12, it was alleged that the applicant touched the applicant’s vagina over her clothing. He then put his hand inside her pants and touched her vagina (Charge 13). These acts, while invasive, could have been committed without diverting either of the boys’ attention. As the respondent rightly observed, it is common experience that children playing on a computer game can be oblivious to what is going on around them. There was nothing implausible about the complainant’s evidence and there is no basis for concluding that the verdicts were unsafe or unsatisfactory.

Charge 11

Under Charge 11, it was alleged that the applicant placed his hands on the complainant’s bottom underneath her pants and above her underpants, while she was outside patting the family dog. This evidence was adduced during the complainant’s second VARE on 17 November 2011. In cross-examination, OA gave the following evidence:

DEFENCE COUNSEL: So you certainly would never touch the dog, is that right?
OA: No, but I did get to pat it a couple of times.
DEFENCE COUNSEL: Do you say — did [the applicant] ever touch you when you patted the dog?
OA: No.

The complainant was not re-examined on this evidence. In light of the complainant’s contradictory evidence, and in the absence of any supporting evidence, this verdict cannot stand. It was not open to the jury to find beyond reasonable doubt that the applicant was guilty of Charge 11. We would grant leave to appeal as to this part of Ground 2 and set aside the verdict of guilty on this charge.

Conclusion

We would grant leave to add Ground 6, grant leave to appeal on that ground and allow the appeal. The convictions on all counts must be set aside. We would grant leave to appeal as to Ground 1, allow the appeal in part and enter a verdict of acquittal on Charges 3 and 11. We would direct that the applicant be retried on Charges 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15 and 16.

- - - - -

[2014] VSCA 121

2 June 2014