Buck v R [1983] WAR 372

Nestorov v The Queen [1999] WASCA 303

1 WALLWORK J: I have had the benefit of reading in draft the reasons for judgment of Murray J. I agree with his Honour's reasons and conclusions, and there is nothing I wish to add.

2 MURRAY J: The appellant stood trial before a Judge and jury in the District Court on an indictment containing 20 counts of sexual offences. Fourteen counts alleged offences committed against the appellant's brother-in-law and six counts alleged offences committed against his stepson. The appeal does not raise any question as to the joinder of offences against those two complainants and so I say no more about that aspect of the case than that, as will I think emerge from these reasons, there would seem to me to be a real question as to the propriety of that joinder having regard to the provisions of the Criminal Code, s 586(7) and the general law: Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292.

3 The appellant was convicted of six offences against his brother-in-law. The first three were allegedly committed on the same occasion on a date unknown between 1 September 1990 and 27 January 1991. The first was an indecent dealing by kissing the complainant on the lips contrary to the Criminal Code (WA), s 189(3). The allegation was that the complainant was then a child under the age of 13 years. That allegation was not made with respect to counts 2 and 3 which were, respectively, counts of sexual penetration by introducing the appellant's penis into the complainant's mouth and by penetrating his anus with the appellant's penis. In each of those cases the allegation was that the complainant was under the age of 16 years.

4 The first two grounds of appeal complain that there was no or insufficient evidence to support the conclusion that the complainant was under 13 at the time. Although those grounds are expressed to relate to counts 1 to 3 inclusive, they do indeed only go to count 1. They were but faintly argued, counsel relying upon the content of the outline of submissions. Suffice it to say that in my opinion, although the evidence was not strong, there was evidence to support the jury's conclusion as to the age of the complainant with respect to count 1. The trial Judge was therefore obliged to leave the issue to them, as his Honour did: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207. So far as this Court is concerned, it seems to me that it was open to the jury to find the allegation as to the age of the complainant proved and I would not uphold these grounds.

5 The other offences against the appellant's brother-in-law of which he was convicted were an offence of indecent dealing by masturbating himself in front of the complainant; an offence of sexually penetrating the

complainant's anus, the complainant then being a juvenile (an alternative conviction to the offence charged in the indictment of sexual penetration without consent); and an offence of attempted sexual penetration of the complainant's anus with the appellant's penis without consent.

6 The appellant was convicted of two offences committed upon his stepson, both being offences of indecent dealing by masturbating the child's penis then well knowing him to be his de facto child.

7 The first ground upon which the appellant principally places reliance is one which alleges error on the part of the trial Judge in directing the jury that they could use evidence of alleged offences against one complainant in determining the appellant's guilt of offences against the other complainant. That was ground 4. By ground 5 the complaint is made that the trial Judge erred in his directions to the jury concerning their use of alleged lies told by the appellant to investigating police out of court, as a form of confessional evidence, upon the ground that the lies revealed a consciousness of the appellant's guilt: Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

8 Having heard argument upon these grounds, the Court was unanimously of the view that they had merit and the appeal should be allowed. The convictions were quashed and the accused was remanded for retrial to a status hearing in the District Court. By that, this Court did not mean to imply that the retrial should necessarily be one retrial of the offences alleged and/or of which the appellant had been convicted against both his brother-in-law and his stepson. Whether there should be severance to any degree would of course be a matter for the District Court. These then are my reasons for joining in the orders so made.

9 Turning first to ground 4 and the question of the so-called similar fact evidence, it is convenient to go at once to the directions given by the trial Judge to the jury. Relative to this matter, his Honour at an early stage of his directions told the jury that each charge required their separate consideration and they might be assisted by considering that there had in fact been a number of trials, each involving a separate count on the indictment, proceeding simultaneously, but nonetheless requiring separate verdicts and, in relation to each count, upon the evidence relating to it. That was a good foundation for a correct direction in relation to similar fact evidence.

10 When his Honour came specifically to evidence of that type he referred to the evidence upon which the Crown relied, mentioning firstly what was described as the incidents in the showers. Count 13 on the indictment charged an offence of penile penetration of the anus of the appellant's young brother-in-law and that was an offence said to have been committed without his consent when he was taken by surprise in the shower at Northam. It will be recalled that in relation to that matter the appellant was convicted of the alternative offence of sexual penetration of a juvenile and so it seems apparent that the jury were not satisfied beyond reasonable doubt that the incident occurred without the complainant's consent.

11 However that may be, the second complainant was permitted to give evidence (among other evidence of his relationship with the appellant) of an incident which occurred in Darwin when he said, while showering, he was taken by surprise by the appellant who came upon him and indecently dealt with him in the shower.

12 Reliance was also placed upon evidence that, early in the relationship with each complainant, the appellant masturbated before them and it was put that another similarity in the appellant's conduct towards the two complainants was, as his Honour put it, general evidence of "acts of sexual contact initiated by and prosecuted by the accused against each complainant in what might be called risky situations." His Honour mentioned generally that acts of sexual contact were said to have occurred on a path which might have been used by others, on the balcony of a flat, in bathrooms or in bedrooms while there were others in the flat who might come upon the offences, and where the chances of discovery were significant.

13 In truth it seems to me that so described, the evidence, while it may have been admissible as relationship evidence involving incidents in respect of individual complainants other than those charged in the indictment, none of this evidence was truly of a kind which might be described as similar fact evidence. It is sufficient I think to recall that, in this context, the court is concerned with evidence which has a probative value in relation to a particular charge or charges before the court because it is evidence which, if accepted by the jury, is such that the improbability that it occurred, but the incident charged in the indictment did not, is so high that acceptance that the similar incident occurred becomes directly probative of the occurrence of the incident charged. In that regard the crucial aspect of the evidence is the degree of similarity between the two incidents being compared.

14 In Hoch the High Court explained the basis for the admission of such evidence. Mason CJ, Wilson and Gaudron JJ at 294 - 295 said:

"Assuming similar fact evidence to be relevant to some issue in the trial, the criterion of its 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 commonsense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution.

Where the happening of the matters said to constitute similar facts is not in dispute and there is evidence to connect the accused person with one or more of the happenings, evidence of those similar facts may render it objectively improbable that a person other than the accused committed the act in question, that the relevant act was unintended, or that it occurred innocently or fortuitously. The similar fact evidence is then admissible as evidence relevant to that issue."

The court then went on to observe that if there was evidence upon which it might be open to consider that the witnesses had concocted the evidence of similar fact, that would rob it of its probative force and it would not be admissible. That of course would be a decision for the trial Judge.

15 Measured against the sort of considerations which might be said to give the evidence sufficient probative force to make it admissible, the evidence with which the court was concerned in this case appears to me not to possess a sufficient degree of similarity. It is no doubt the case that sexual conduct may often occur in a shower or in situations where the participants might be discovered and, without more, it would seem to me that the evidence advanced by the Crown as similar fact evidence in this case had not sufficient probative force to make evidence of that kind given by one complainant admissible to prove any offence allegedly committed against the other.

16 Further, in truth, the only specific offence of which the appellant was convicted where the proof might be said to have been aided by considering similar fact evidence was the alternative offence open on count 13 and there appears to have been no identifiable similarity in respect of the other offences of which the appellant was convicted and any alleged similar incident. There was therefore no occasion, in my opinion, to depart from the direction initially given to the jury that each offence charged was to be proved, if at all, upon the jury's acceptance of the evidence relating to that charge.

17 However, not only did the trial Judge give a direction as to the use of similar fact evidence, wrongly in my respectful opinion, but his Honour did not limit his directions to specific offences charged or make it clear how the so-called similar fact evidence might be probative of particular offences charged.

18 His Honour gave his direction in terms of the probative value of the evidence to establish "whether the accused might have committed any offence against [a particular complainant]." His Honour's directions were given at some length. They were, in my respectful opinion, too general. His Honour failed to warn the jury that they could not use the so-called similar fact evidence as generally probative of guilt in relation to all of the offences charged against a particular complainant regardless of whether the particular charge under consideration was or was not one which presented any element of similarity to evidence of any other incident admitted upon that basis.

19 The danger inherent in his Honour's directions, in my respectful opinion, was that the jury might use the so-called similar fact evidence to reason impermissibly that the appellant might be generally guilty in relation to a particular complainant because he had a propensity to behave in broadly similar sexually inappropriate ways with respect to the other complainant.

20 This was in fact a case where the direction given should have been that described by Anderson J in Cook v The Queen [2000] WASCA 78; [2000] 22 WAR 67 at 81 - 82 as the "two complainants" direction. In that case, his Honour said:

"As this was not a similar fact case, and there were multiple counts involving two complainants, there was a requirement to warn the jury not only that proof to their satisfaction of guilt upon one count must not lead them automatically to a guilty verdict on any other count but that the evidence led in proof of an offence against one complainant did not prove an offence against the other complainant.

The choice of words is a matter for the trial Judge, of course, but in whatever terms the direction is given, it must instruct the jury not only that they must draw a distinction between the evidence on each count and the evidence on every other count, but that they must not supplement the evidence on any particular count involving one complainant by looking at the evidence about the other complainant."

21 That brings me to ground 5 and the question of the accused's lie told out of court, so it was alleged, when he was interviewed by the police. The interview related to the complainant who was his stepson. When asked about particular incidents said to have occurred with that complainant, the appellant responded on a number of occasions that he was not homosexual, he was not bisexual, he was not gay, he was exclusively heterosexual, an observation which he attempted to reinforce by saying that he found the female police officer conducting the interview attractive.

22 The second complainant, the appellant's brother-in-law, on the other hand gave sworn evidence that on perhaps six or seven occasions at least, the appellant had spoken to him in terms which made it clear that the appellant had a sexual interest in, and was having a sexual relationship with, his stepson. He said that the appellant told him that sexual encounters between him and his stepson would occur "on a regular basis". He said they would go for walks in the bush and the stepson "would give head jobs to him". He said he was interested in the two complainants having sex together while the appellant watched.

23 Therefore, if that was accepted and what was said to the police was untrue, it might be found to be a deliberate lie, and it would certainly relate to a generally material issue that the appellant had a sexual interest in and was engaging in sexual relations with his stepson, whose evidence that that was so might, by the telling of the lie, be generally corroborated, although the telling of the lie could not provide evidence directly probative of the guilt of the appellant of any of the offences specifically charged as having been committed against the stepson, bearing in mind that the appellant was convicted of two offences of indecently dealing with his stepson by masturbating him. Of course, if the lie was to be proved to be such, the jury would have to accept as true the evidence of the second complainant that the appellant confessed to him that he was having sexual relations with his stepson.

24 This was not a case of the kind referred to by the High Court in Edwards in the judgment of Deane, Dawson and Gaudron JJ at 211 where the lie could only be proved by the evidence of the witness whose evidence is to be corroborated. The Crown relied upon what it alleged were the lies told to the police and, in my opinion, it was open to them to do so. A direction in the terms discussed by the High Court in Edwards was required: cf Zoneff v The Queen (2000) 200 CLR 234. But it would be important in this case that the effect of the direction would be restricted to the corroboration of the evidence of the complainant who was the appellant's stepson.

25 If the alleged lies were permitted to be used to corroborate the case against the appellant's brother-in-law on the ground that they involved statements that the appellant had no homosexual interest in anyone, but was exclusively heterosexual, then the danger to which their Honours adverted in Edwards was apparent. To use a conclusion that the appellant lied to the police as corroborative of the Crown's case in respect of the complainant upon the acceptance of whose evidence proof of the lie depended would be truly a circular process of self-corroboration: see also R v Mercer (1994) 67 A Crim R 91 and R v Zheng (1996) 83 A Crim R 572.

26 I regret to say that his Honour failed to restrict the probative value of the alleged lies in the way that I have discussed. His observations were entirely general. Having identified what was said to be the lie told and its materiality generally, his Honour merely said:

"If the accused has lied to the police then it's a matter for you but clearly it's a matter which you might well think, members of the jury, points to a consciousness of guilt on the accused's part, points to the guilt of the accused. It is for you to determine though firstly, whether the accused has told a lie and that involves a consideration of the truthfulness of [the brother-in-law's] evidence and if you are so satisfied it is also for you to determine whether the accused when he told the police what he did about not having any sexual interest in [his stepson] he did it out of a consciousness of guilt and a desire to deflect the accusations that the police were in the process of making to him."

27 In my opinion, that direction was entirely too general and did permit the jury to use their conclusion that a lie was told as being generally corroborative of the evidence of the complainants and as being generally probative of guilt. As I have said, at least in respect of the complainant who was the appellant's brother-in-law, that involved a process of circular reasoning.

28 Further, it will be noticed that there is no reference to an important element of a direction of this kind, which again was discussed by their Honours who constituted the majority of the court in Edwards at 211, when they said:

"... the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters."

29 His Honour's direction omitted any reference to that aspect of the matter and the appellant was entitled to have the jury consider whether there might be any reason other than his consciousness of his guilt of the offences charged against his stepson which might explain consistently with his innocence a deliberately untrue denial of a sexual interest in that person. For those reasons I reached the conclusion that ground 5 was also made out and for those reasons I joined in the orders made by the Court on the hearing of the appeal.

30 ANDERSON J: I have had the advantage of reading in draft the reasons of Murray J for concluding that the appeal should be allowed. They fully express my own reasons for coming to that conclusion. There is nothing I can usefully add. I agree with the orders proposed by Murray J.