W E a v the Queen
[2013] VSCA 386
•22 February 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0020
| WEA[1] |
| v |
| THE QUEEN |
[1]To ensure that there is no possibility of identification of the applicant, the judgment has been anonymised by the adoption of a pseudonym.
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JUDGES: | WHELAN and COGHLAN JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 22 February 2013 |
DATE OF JUDGMENT: | 22 February 2013 |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 386 |
JUDGMENT APPEALED FROM: | (Unreported, County Court of Victoria, Judge Gaynor, 8 February 2013) |
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CRIME – Interlocutory application – Leave to appeal – Tendency and coincidence evidence – Multiple complainants – Cross-admissibility of complainant evidence – Evidence Act2008 ss 97, 98, 101 – House v The King (1936) 55 CLR 499 principles apply – No error of the kind dealt with in House v The King identified – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Condon | Galbally & O’Bryan |
| For the Respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
WHELAN JA:
The applicant seeks leave to appeal under s 295(2) of the Criminal Procedure Act2009 against an interlocutory decision of her Honour Judge Gaynor in the County Court made on 8 February 2013. The aspects of the decision in relation to which leave to appeal is sought concern her Honour’s rulings on the admissibility of tendency evidence and on one aspect of a severance application.
In the ruling on 8 February 2013, her Honour also dealt with a stay application. That is not the subject of this application.
The applicant has been charged with 44 sexual offences allegedly committed between 1966 and 2009 against a total of six female complainants. Five of the complainants, referred to as GP, WC, KP, RC and TB, were allegedly offended against whilst children. One of those complainants, TB, is the alleged victim of an offence which occurred whilst she was an adult. The sixth complainant, HL, was allegedly offended against whilst she was an adult.
Her Honour determined to sever the indictment so that the charges concerning offences against adults were separated from those concerning offences against children. As a result, if the ruling stands, there would be one trial concerning five complainants (GP, WC, KP, RC and TB) and offences allegedly committed against them when children, and a second trial concerning two complainants (TB and HL) and offences allegedly committed against them when they were adults.
I will leave the charges which were severed, being those concerning offences allegedly committed against adult complainants to one side. They have no further relevance to this application.
The Crown has given notice under ss 97 and 98 of the Evidence Act2008 (the ‘Evidence Act’). In substance, the Crown seeks to rely on evidence of each of the individual complainants on the counts relating to the other complainants on the basis of tendency and coincidence. The severance application, insofar as it concerned the offences allegedly committed against the children, turned upon this issue of cross‑admissibility. Her Honour ruled that the evidence of each of the five complainants was cross‑admissible on the basis of tendency pursuant to ss 97 and 101 of the Evidence Act. She ruled the evidence was not admissible as coincidence evidence under s 98.
Each of the five complainants are alleged to have been offended against whilst in the applicant’s home and under his care.
The first complainant, GP, was, at the time of the alleged offending, 11 years old. She is the younger sister of the applicant’s wife. The offending against her is very old. It is alleged to have occurred in the mid-1960s.
The second complainant, WC, is another younger sister of the applicant’s wife. The offending against her allegedly occurred when she was about the same age as GP. That offending allegedly occurred in the early 1970s.
The complainant, KP, is the applicant’s natural daughter. The offending against her also allegedly occurred at about the same age as the first two complainants. Those offences are alleged to have occurred in the mid 1970s.
The final two complainants, RC and TB, are half sisters. They were both foster daughters of the applicant. The offending against them allegedly began at a younger age than the other complainants. They were each allegedly offended against initially when about five years old. The offending in relation to RC began in 1988. It continued over a much longer period and involved much more extensive sexual activity than any of the other complainants. The offending against TB allegedly occurred in around 1990.
The trial judge addressed the tendency issue by reference to this Court’s decision in RHB v The Queen.[2] Her Honour referred to the description of tendency evidence in that case. Nettle JA described it in the following terms:
In this case we are concerned with tendency evidence, which is to say evidence which establishes that the appellant had a tendency to commit a particular type of act or to commit an act in a particular way, and the question is whether the degree of peculiarity (for want of a better term), either in the acts themselves, or in the circumstances in which they were committed or in nature or identity of the persons against whom they were committed or by reason of a combination of those and possibly other considerations, are such that [it] has significant probative value.[3]
[2][2011] VSCA 295 (‘RHB’).
[3]Ibid, [17].
As her Honour recognised, under s 101(2) of the Evidence Act, the probative value of the evidence must substantially outweigh any prejudicial effect.
Her Honour reviewed the circumstances of all of the alleged offending in detail and analysed the similarities and differences. She quoted a passage from RHB in which Nettle JA had referred to common features of the offending which he had considered to be significant in that particular case.
Her Honour then set out what she considered to be a number of relevant similarities in the offending here. She said:
The complainants, GP, WC, KP, RC and TB were all pre-pubescent female members of the accused’s extended family when the offending began and, apart from RC, were still pre-pubescent when it ended. Apart from RC, all of the offending occurred at the accused’s home and generally when other family members were present in the house and there was a high risk of detection. All five complainants experienced the accused either rubbing or digitally penetrating their vaginas while they were asleep or in bed.
I interpolate that offending against RC did allegedly occur at the applicant’s home and did allegedly occur when there was a high risk of detection, but in her case it allegedly occurred at other places as well.
Her Honour then addressed other similarities and she referred in particular to what she described as a ‘brazenness’ in the offending which she said was ‘quite remarkable’.
She concluded:
The evidence, in my view, does demonstrate a tendency in the accused to be sexually attracted to young female members of his extended family and to act upon that attraction in generally similar ways and at different times when the complainants were in his care and vulnerable to his advances.
Her Honour referred to the fact that there were aspects of the alleged offending against RC which were different to the offending against the other complainants. She observed that it was protracted and more serious, that it involved the use of pornography, and that it was not confined to the applicant’s home.
On appeals of this character, or applications for leave to appeal, it is now settled that the principles in House v The King[4] apply.[5]
[4](1936) 55 CLR 499.
[5]KJM v The Queen (No 2) [2011] VSCA 268 [12].
Accordingly, if leave were granted, on an appeal it would be necessary to establish that the judge had acted on a wrong principle, had taken into account an irrelevant matter, had made a mistake as to the facts, had ignored some relevant matter, or had reached a result so unreasonable or plainly unjust that it may be inferred that an error had been made although the nature of the error might not be discoverable.
On this application it was not suggested that the trial judge had acted on a wrong principle, had taken into account an irrelevant matter, had mistaken the facts, or had failed to act on some relevant consideration.
The applicant’s submissions focused upon the position of RC and upon the differences in the alleged offending against her on the one hand and the alleged offending against the other complainants on the other. The submission was that the trial judge’s decision not to sever the counts relating to RC, either with the count relating to TB or without it, and the ruling that the evidence in relation to RC was cross‑admissible with the other complainants, was so unreasonable as to require an inference to be drawn that an error must have been made.
The particular features of the offending against RC which were relied upon in the submissions on this application for leave were that the offending had continued after she was out of the applicant’s care, that there was offending away from the home, that there was a use of pornography, and that the nature and character of the sexual offending against RC was of an altogether different level to that against the others.
I am unpersuaded that these differences are as significant as counsel for the applicant contended. But the issue on this application is not whether this Court might reach a different conclusion as to the significance of the dissimilarities, but rather whether an error of the kind dealt with in House v The King can be identified. I do not think it can.
Essentially, the applicant’s complaint concerns the trial judge’s evaluation of factors which she took into account and addressed. It is not contended that something significant was overlooked or misunderstood. There are differences between the alleged offending against RC and the alleged offending against the other complainants. The trial judge was aware of them and addressed them. It seems me that it was open to conclude, as the judge did, that notwithstanding those differences, the similarities give the evidence significant probative value which substantially outweighs its prejudicial effect.
The similarities referred to by the trial judge are, it seems to me, present. Those similarities include the fact that all the complainants were pre-pubescent female members of the applicant’s extended family when the offending occurred or began, the fact that all were allegedly offended against in the applicant’s home, the fact that all were allegedly subjected to forms of offending whilst asleep or in bed, the fact that all were allegedly offended against in circumstances of remarkable brazenness, and the fact that all of them, except GP, were subjected to some form of offending while bathing or showering.
As to the dissimilarities, so far as RC is concerned, it seems to me that the offending against RC could legitimately be seen as extensions of similar activities rather than as distinctive activities. RC was allegedly offended against more extensively than the others, but all were allegedly subjected to significant offending. She was offended against away from the home, but she was also allegedly offended
against in the home, as the others were, and the offending away from the home in RC’s case was open to be seen as still being related to the domestic association between her and the applicant. The duration of the alleged offending against RC was longer than the others and did extend beyond her pre-pubescent years but, like the others, she was also allegedly offended against when she was pre-pubescent.
For the purposes of this application it suffices to say that it seems to me that on the material before the trial judge and before us, the conclusions her Honour reached were reasonably open.
Of course, once the evidence is led, the analysis of these issues might be different. On any subsequent appeal which might be brought, if the applicant was to be convicted of any of these offences, different principles would apply.[6]
[6]BSJ v The Queen [2012] VSCA 93 [29]; Dibbs v The Queen [2012] VSCA 224 [78].
As the judge pointed out, in the trial careful directions will need to be given to the jury on these issues.
In my view, the application for leave to appeal should be refused.
COGHLAN JA:
I agree.
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