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[2010] VSCA 135
Court of Appeal (Vic)
2010-06-07
NETTLE and HARPER JJA and HANSEN AJA
Original judgment source is linked above.
CRIMINAL LAW - Interlocutory appeal - Indecent assault numerous counts - Attempted rape and rape - Two complainants - Evidence - Admissibility of tendency and coincidence evidence - Whether judge erred as to admissibility - Whether charges should be severed from indictment - Appeal allowed.
1 This is an interlocutory appeal, pursuant to s 295 of the Criminal Procedure Act 2009, from orders of her Honour Judge Pullen.
2 The applicant stands indicted on a single indictment of multiple counts of sexual offences against two complainants, as follows:
a) as against the first complainant (C1), on 15 counts of indecent assault (Counts 1 to 8 and 10 to 16); two counts of attempted rape (Counts 9 and 18); and one count of rape (Count 17); and
b) as against the second complainant (C2), on two counts of indecent assault (Counts 19 and 20) and one count of rape (Count 21).
3 The first and principal aspect of the appeal relates to interlocutory rulings made by the judge on 1 June 2010, that:
a) evidence of each complainant as to certain uncharged acts of a sexual nature committed by the applicant at the Korumburra Hotel in the presence of the complainant and as to the offences alleged to have been committed against the complainant is admissible as tendency evidence in proof of the offences alleged to have been committed against the other complainant;
b) evidence proposed to be given by two other women (WE and WR), as to uncharged acts which the applicant is alleged to have committed against them and other women, is admissible as tendency evidence in proof of the offences alleged to have been committed against each complainant; and
c) on that basis, Counts 19, 20 and 21 should not be severed from the indictment.
4 The second aspect of the appeal concerns a ruling made by the judge on the same day as to admissibility of complaints made by each of the complainants as evidence of representations under s 66 of the Evidence Act 2008 and that the Crown may rely on the evidence not only as evidence of the fact of the complaints but also as evidence of the facts complained of.
5 It is convenient to deal first with the question of tendency evidence. Before turning to the specific offences and the evidence said to be admissible as tendency evidence, it is also convenient to record that, at relevant times, the applicant worked as the chef at the Korumburra Hotel; that each of the complainants was also employed at the Korumburra Hotel - C1, who was a long time friend of the applicant, as permanent casual bar manager, C2, who had no personal relationship with the applicant, as a bar maid; that the offences alleged to have been committed against C1 are said to have been committed over a five year period between 2003 and 2008 when C1 was between about 30 and 36 years old, in some cases at the Hotel and in other cases in different social settings away from the Hotel; that the offences alleged to have been committed against C2 are said to have been committed early in 2004 when C2 was 23 years old, at the Hotel only; and that the uncharged acts of which WE and WR are able to give evidence extend over a period ranging back almost 20 years.
C1's evidence of uncharged sexual acts and of the offences alleged to have been committed against her
6 Count 1 alleges indecent assault committed by the applicant touching C1 on her breasts. According to C1's statement, her evidence as to Count 1 will be as follows:
... Until recent times I considered GBF a good friend and my family and his family would socialise together. There have been times where GBF would visit my house and we as a family would go to his house. My daughter has also baby sat his son at his home.
...
Over the years though GBF had been quite forward towards me in a sexual way [with] which I have never been comfortable and there have been times when I have felt sick over some of the things he has done to me (Uncharged acts). I have never in any way encouraged his advancements [sic] and I have at all times told him that what he was doing was not on and that I had not intentions of doing anything of a sexual nature with him.
About 5 or 6 years ago I was working at the hotel and had to go to the cool room to get something. GBF followed me down and cornered me and started looking at my breasts. He then reached out and touched them (Count 1). I didn't like it and he said, 'Come on, no one will ever know'. I said 'Don't' to him and then pushed away from him and left the cool room.
Around that time a few of the other staff and I went and saw Noel BUNCE who was the owner at that time. One of these was [C 2] and she was alleging that GBF had assaulted her as well. It was around the same time. We, [and WE and WR] complained to him about GBF behaviour but I don't know if I told him in detail about what had happened in the cool room with GBF.
...
GBF would regularly walk past me and put his hand out a bit so that he could brush across my vagina area or he would put his arm out and brush himself against my breasts. I started having to protect myself by putting my elbow out to stop him from getting too close to me and prevent him from rubbing a part of his body against mine. He would clap his hands and then reach out towards me as if he was going to grab my breasts and I felt that I would have to protect myself.... He started making comments about my breasts and he would ask me to unbutton my shirt a bit for him... (Uncharged acts).
7 Count 2 alleges indecent assault, committed by the applicant touching C1 on her breasts and trying to kiss her. According to C1's statement, her evidence as to Count 2 will be as follows:
Two years ago I was going on an overseas trip in December, 2006 with my husband. GBF offered to lend me some travel bags that he had. I took my husband with me around to his house to collect the bags. It was around the 27th December, a few days before we were going to leave. It was late afternoon and I think GBF had entertained some friends earlier in the day.
When we got there GBF was home with his wife and son. We were all standing around the sliding door which is at the side of their house ... GBF said that the bags were just inside and he invited me into his house. The others stayed at the sliding door and I followed GBF down the hall to his bedroom. He said, 'They are just in the cupboard here'. I stayed in the doorway because I didn't want to go into his room with him and I waited for him to get the bags. He told me to come in but I said no. He then grabbed my arm and pulled me into the cupboard and he tried to kiss me and he put his hands on my breasts (Count 2). He said 'Please, come on, just let me'. I just pushed him away. I was in shocked [sic] that he had done that to me and I walked out and back to my husband. GBF arrived soon after with the bags and I said, 'Come on lets go' to my husband and we left. I didn't say anything about what GBF had done.
8 Count 3 alleges indecent assault committed by the applicant putting his hand between C1's legs and trying to pull her pants away from her body. According to C1's statement, her evidence as to Count 3 will be as follows:
On Caulfield Cup day 2007 GBF had been drinking all day at the Caulfield Cup and he then arrived at the hotel. He was pretty intoxicated. I was working at the hotel and one of my jobs was to drive the hotel's courtesy bus ... A few of the patrons needed lifts home including GBF. I thought that Paul ALGER was one of the patrons was staying at GBF' house that night.
I dropped other patrons off. ALGER and GBF were still on the bus. ALGER was in the front of the bus with me. I was driving down to GBF house to drop them off and ALGER said to me, 'Nah, I'm staying at my mum's house'. I asked him where she lived and he gave me directions. When ALGER got off the bus GBF got out of the back of the bus and climbed into the front passenger seat beside me. As I drove off he put his hands between my legs and started grabbing at my pants. He was trying to pull my pants away from my body so that he could get his other hand inside my pants (Count 3). I was trying to push his hands away as I was driving and I ended up swerving over the road to try and get him away from me. I pushed him away and told him to piss off and leave me alone. He said that he didn't want to go home and asked me to go for a drive with him. We were only a short distance from his house so I kept driving and stopped at his home and told him to get out of the fucking bus. He got out and I drove off. I was angry and in shock with what he had done.
9 Counts 4, 5, 6 and 7 all allege offences which are said to have been committed during the course of a single episode of criminal behaviour early in 2008. Count 4 alleges indecent assault constituted by the applicant pinning C1 against the wall and kissing her on the lips. Count 5 alleges indecent assault constituted by the applicant placing his hands all over the body of C1 and touching her on her breasts. Count 6 alleges indecent assault constituted by the applicant touching C1 on her vagina over her clothing. Count 7 alleges indecent assault constituted by the applicant attempting to place his hands down the inside of C1's pants. According to C1's statement, her evidence as to Counts 4 to 7 will be as follows:
A few months later I was at the hotel finishing up for the night. It was a Sunday night and the workers all tend to stay and have a few drinks after work. I had to lock the hotel up and all the other staff had left except for GBF. I was still counting tills. He was hanging around and offered to make me a drink which I accepted. He wouldn't take no for answer. He told me to come and sit down and have a talk. I told him that I would have a Baileys and milk but he made me something else. When I tasted his drink it wasn't what I had asked for and it was strong. I was feeling uncomfortable. GBF said that it was one of his specials. I was sipping on it as we talked.
I was having marital problems at home and GBF was asking me how things were going. He was telling me that he was there for me and that he would do anything for me. He asked me if [I] thought about me and him and I told him no. He said, 'Come on, you must have thought about me and you together before'. I said 'No, I don't see you like that'. I asked him why he was saying that to me because he was married. He just kept telling me that I must think about it and that he thinks about it and he was trying to get me to see what things would be like with him. I told him that I wasn't interested and that he was only a friend to me. I told him that I had enough problems and that I wasn't interested in any relationship with him.
The phone rang and it was Danny seeing where I was. I got off the phone and told GBF that I had to go. I walked to the door at the entrance to the bar to make sure it was locked. As I walked back towards the bar GBF pinned me up against the window (bench) and he kissed me on the lips. I was in shock scared [sic] and tried to get away but he just kept trying to kiss me (Count 4). I was petrified of him and he started putting his hands all over me. He was touching my breast (Count 5) and putting his hands between my legs and grabbing my vagina over my clothes (Count 6). I told him to stop and to leave me alone but he just started pleading, 'Just let me'. I said no and tried to get him away from me. I pushed him off me and then he started joking about the way I kiss. He was trying to make out that nothing bad had happened. He made me feel dirty like I asked for it. I felt sick and didn't know what to do.
I walked behind the bar to turn the lights off and he stood out in the lounge near the fire place. I walked past him and he grabbed my arm. He said, 'Please' and I said no and kept walking. I just wanted to get out of there. I walked through the lounge door to get to the alarm which is near the back stairs. GBF went into the kitchen which has a doorway that leads to the same area I was in. He said 'Come here' and I said no. He then grabbed me by the arm and dragged me into the kitchen area. He then picked me up and sat me on a kitchen bench near the doorway and pushed me down onto my back saying, 'Come on lets just do this. Just let me please'. He was leaning over me and he grabbed the front of my pants and tried to get his hands inside my pants (Count 7). I was scared he was going to rape me and I pushed his hands away from me and jumped up and off the bench. GBF left me and walked off down the back stairs. I switched the alarm on and walked down the back stairs and GBF was standing beside my car as if nothing had happened waiting for a ride home. At this stage I was in shock and petrified of him.
(v) Counts 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18
10 Counts 8 to 18 allege offences said to have been committed during the course of a further single episode of criminal behaviour on or about 3 December 2008. Count 8 alleges indecent assault constituted by the applicant kissing C1 on her breasts. Count 9 alleges attempted rape constituted by the applicant placing his hands down the inside of C1's underpants and attempting to insert his fingers inside her vagina. Count 10 alleges indecent assault constituted of the applicant kissing C1 in the area described as being just above her vagina. Count 11 alleges indecent assault constituted by the applicant kissing C1 on her breasts. Count 12 alleges indecent assault constituted by the applicant again kissing C1 in the area described as just above her vagina. Count 13 alleges indecent assault constituted by the applicant placing C1's hand onto the applicant's erect penis. Count 14 alleges indecent assault constituted by the applicant pushing C1's head down towards the applicant's penis and begging C1 to suck it. Count 15 alleges indecent assault constituted by the applicant again kissing C1 on her breasts. Count 16 alleges indecent assault constituted by the applicant placing C1's hand on the applicant's erect penis and making C1 masturbate him. Count 17 alleges rape constituted by the applicant inserting his fingers into C1's vagina. Count 18 alleges attempted rape constituted by the applicant attempting to insert his penis into C1's vagina. According to C1's statement, her evidence as to Counts 8 to 18 will be as follows:
On Wednesday the 3rd December, 2008 we had a work Christmas party in Leongatha. GBF had told me that he wasn't going to the party but he offered that if people wanted after party drinks they could go to his house. He also got Erin Cairns and Karyn Wilson to txt [sic] me to say go back to GBF's house after xmas party.
The party went to 1130pm and my husband and I left with Brett CHARLTON and Jack [sic] DOWEL.[1] CHARLTON drove us back to Korumburra and dropped my husband off at home. Jack was staying at my house for the night but we wanted to go out and keep socialising...
As we were walked [sic] down the street we decided to ring Melanie GBF mobile and see if we could go there and have a few drinks. I had Melanie's mobile number in my phone which was why we rang her. There was no answer so I rang directory and got their home number.
I rang GBF house and Greg answered. I could hear Mel in the background. I told him we were looking for somewhere to go but I could tell that Mel wasn't happy with us calling so I told him not to worry. He said he would come out and get us which I felt was okay because Jack was with me and I felt safe knowing that he wouldn't try anything with her around.
GBF picked us up ...
... Because we were so close to Jack's house she said, 'You might as well take me home'. I started to panic because I didn't want to be left alone with GBF.
When we got to Jack's house I got out of the car and said that I needed to use her toilet. I went inside and begged Jack to come back and stay at my house but she just said nah she would stay at her own place now that she was there. ... She didn't want to come with me back to my house so I went and got back into the car with GBF.
GBF could have turned into Station Street off the Korumburra Warragul Road but he didn't ... I was getting very frightened and I pleaded for him to take me home. He went a bit further up the road and then did a u-turn and drove back past Bourke Street before pulling over to the right hand side of the road. He then reversed into an area back off the road and parked his car.
I asked him what he was doing and he said, 'I just want to talk'. I told him again to take me home but he just leant over and went to kiss me. I told him, 'Don't'. He then lent over further and he started putting his hands all over me. He put his arms around me and under my top and undid my bra. He then lifted my top higher so that my breasts were exposed. I told him, 'I don't want to do this.' But he didn't care what I thought.
He then started begging with me, 'Please let me, please let me'. I told him that I didn't want to do anything with him. He was down kissing my breasts (Count 8) and I just froze. I was frightened and sick. He kept kissing my breasts and he forced his hands down inside my pants and was touching my vagina. He was trying to put his fingers in my vagina but couldn't (Count 9). He then started to undo my jeans. He got them open but not down. I kept saying, 'Don't , I don't want this'. He has said, 'It's okay, it's okay'.
He then put his head down towards my vagina and was kissing me just above the vagina area (Count 10). I pushed his head off me and I was telling him, 'Don't, don't'. He wouldn't stop and just forced his head back and kept kissing me down there. I said, 'I'm bleeding.' Meaning that I was having my period but he didn't care, he just kept kissing me.
GBF then turned the interior light of the car on and this shook me up. I said, 'What are you doing?'. He said, 'I just want to see what I am doing'. He then started kissing my breasts again (Count 11) and he moved down my body and kissed me more in the area above my vagina (Count 12). He also kiss[ed] me on the lips but I didn't respond at all to him. He then grabbed my hand and put it on his penis and said, 'Just touch me, it's okay'. His penis was erect and he was moving my hand up and down his penis masturbating him (Count 13). ... I pulled my hand away a few times but he just kept putting it back.
...
GBF was sitting in the driver seat and he reached over and grabbed my head and pushed it down towards his penis. He then begged me to suck his penis (Count 14) but I refused to. I said, 'Nah, I can't, don't do this'. I pulled my head away and he gave up on that. He then started kissing me again on my lips and breasts (Count 15). I told him again to leave me alone but he ignored me.
GBF kissed my lips and breasts for a while and then he got out of the car. He told me to get out as well but I told him that I wasn't going to, I was frightened of what he would do next ...
After a few unsuccessful tries to get me to go into the back he shut the door and got back into the car. I thought he would drive me home then but he came over to me again. He started kissing me again and was trying to shift me towards the back of the car. He had hold of my shoulder area and he was pulling and pushing me over the centre console and part way into the back of the car. I was so frightened of what was going to happen next. He managed to get me into the back seat of his car and then he climbed over the centre console and on top of me.
I don't know how he got my pants and underwear down but I realised that they were around my ankles. His pants were down but I don't know if he had them full off. He grabbed my hand and I had to touch his penis again. His penis was erect and I had to masturbate it again (Count 16). He was kissing me all over again and I could feel his fingers inside my vagina moving around (Count 17). I tried to squirm away from him further back into the car but it was too hard and I didn't get very far.
He tried to put his penis into my vagina but I don't think he could manage to get himself inside me (Count 18). He said, 'Come on, I'm only small, help me'. I didn't want him to have sex with me and I told him, 'Nah, it's wrong, stop it'. I told him again that I didn't want to do it with him and I said, 'Why are you doing this to me, why you [sic] doing this to your wife and kid?' He didn't say anything back to me.
GBF stopped soon after that and he got off me. He asked me to just hold him but I wouldn't ... He got out of the back driver side door of the car ...
... He then came back into the car and over to me. I was still crouched in the back seat area of the car. He ripped [sic, pulled] my pants up and then did my bra up. I said to him, 'Just fucken take me home'. He then got into the front seat and he drove me home. I stayed in the back seat of his car.
When we got to my house I got out of the car and opened the front passenger side door. I grabbed my bag and mobile phone and he said, 'I've fucked up haven't I? I've fucked up again'. I just shut the car door and walked off. It was about 2 am on Thursday the 4th December when I got home ...
C2's evidence of uncharged acts and of the offences alleged to have been committed against her
11 Counts 19, 20 and 21 allege offences said to have been committed during the course of a single episode of criminal behaviour early in December 2004. Count 19 alleges indecent assault committed by the applicant touching C2 on her breasts. Count 20 alleges indecent assault constituted by the applicant touching C2 on her vagina over the top of her clothing. Count 21 alleges rape constituted of the applicant inserting his fingers into C2's vagina. According to C2's statement, her evidence as to the uncharged acts and Counts 19, 20 and 21 will be as follows:
I knew the GBF family but I hadn't met Greg until I started working at the hotel [at age 18]. After a few weeks working at the hotel I noticed that Greg was very hands on with me. He would walk past me and brush against my breasts or he would brush his hand across my groin as he walked past. I didn't think that they were accidental because it happened all the time (Uncharged acts).
There were times when I was pouring a pot of beer and he would stand on the right hand side of me. He would reach across in front of my body and grab a pot out of the rack in the glass rack on the left hand side of me. When he did this his hand would brush against my breast. He did this regularly and not only to me but the other staff as well and I had seen this all the time and first thought that that was the way it was... (Uncharged acts).
There were other times when he would make rude comments to me. I would bend down to pick something up and he would say something like, 'All my Christmases have come at once' or 'While your [sic] down there' inferring that he wanted me to give him a head job. I would just brush him off as he would say the same things to others (Uncharged acts).
Greg would finish in the kitchen between 8.30 and 9 pm. He would then come over to the bar and have a knock off drink and a chat. On the nights I worked I would watch the clock and hate the time he arrived ... He would appear out of nowhere and tell me that he was going. He would then lean in to give me an unexpected kiss and I would turn away and say 'Yeah seeya' [sic] and keep doing my work.
In early 2004, I'm not sure of the exact date ... It was a Saturday night and I was at the hotel working. There was a function upstairs at the hotel and I was working the function. The function was going and the kitchen was closing. I went down stairs to find out about the finger food and when it would be ready.
I went into the kitchen and nobody was in there. I walked over to the bar to see if there was a message that had been left and Greg was sitting at the bar. I asked him if he knew what was going on with the food upstairs. He said yeah I'll come and show you... Greg helped me out with the food and then I went to leave.
I walked over to some platters on the bench near the dishwasher. Greg said that he had to show me something with the dishwasher... He said that the washers had been turned off entirely which wasn't the case when I usually use them so he had to show me how to do that.
I was in a hurry so I walked over to the dishwasher which is in the corner. I turned around and Greg was there in front of me and I was stuck in the corner. I got a fright because he was so close to me and I said 'Fuck'. Greg was saying something to me but I don't remember what he was saying but he kept himself close to me. It was like he was trying to chat me up. He then reached out with his left hand and started rubbing across both of my breasts (Count 19). At the same time he reached down with his other hand and put it between my legs on my vagina over my clothes (Count 20). He was trying to kiss me and I just froze. I was in shock at what Greg was doing to me.
He then moved his left hand under my top and reached up and started rubbing my breasts over my bra. His right hand then slipped inside my pants and underwear and he started rubbing my vagina with his hand. He started rubbing the outside of my vagina and then I felt his fingers rub between the lips of my vagina back and forth twice. He was trying to get his fingers right inside my vagina. I was shitting myself. I felt that what was happening was [my] fault. I was scared of what he was doing. I knew that what he was doing shouldn't be happening to me and I just couldn't get any words to come out of my mouth. When his fingers went inside the lips of my vagina (Count 21) I thought 'fuck' and it was like I snapped out of the shock I was in. I pushed Greg away as hard as I could and said, 'No' to him. I just had to get him away from me.
I can't remember much about what happened during the rest of my shift that night. I know that I went back to the function room but that is all.
Basis on which evidence said to be admissible as tendency evidence
12 Prior to the matter being debated before the judge, the Crown gave four notices of intention to adduce tendency evidence and four notices of intention to adduce coincidence evidence.
13 In the first tendency evidence notice, the Crown contended that the evidence of each complainant as to the uncharged acts and alleged offences set out above, and evidence of WR and WE as to uncharged acts towards them, was admissible in proof of the offences alleged to have been committed against the other complainant, as establishing a tendency of the applicant:
a) to act in a particular way, namely, to act upon a sexual attraction to female staff members who worked with the applicant at the Austral Hotel in Korumburra; and
b) to have a particular state of mind, namely, a sexual interest in female staff members who worked with the applicant at the Austral Hotel in Korumburra.
14 In the second tendency evidence notice, which it appears was offered as a more limited alternative basis for the adduction of tendency evidence, the Crown contended that the evidence of C1 as to Counts 3, and 4 (touching breasts and touching breasts and trying to kiss C1); her evidence as to the uncharged acts of the applicant brushing past her and touching her on her breasts, looking down the front of her top at her breasts, and looking at her breasts; her evidence as to Count 5 (hands all over her body and touching her breasts); her evidence as to Counts 11 and 15 (kissing C1 on her breasts); and evidence of WE and WR, was admissible in proof of the offence comprised in Count 19 (indecent assault alleged to have been committed against C2 by the applicant touching C2 on her breasts), as evidence of a tendency of the applicant to act in a particular way, namely, to touch the breasts of female staff members who worked with the applicant at the Austral Hotel, Korumburra.
15 In the same notice it was contended that C2's evidence as to Count 19 (touching C2 on the breasts) was admissible in proof of Counts 1, 2, 5, 8, 11 and 15, as evidence of the same tendency.
16 In the third tendency evidence notice, which seems to have been offered as a further or alternative basis for the adduction of tendency evidence, the Crown contended that the evidence of C1 as to the uncharged acts of the applicant regularly walking past her at work at the Hotel and putting out his hand so that he could brush against her vagina, and her evidence as to Counts 3 (indecent assault alleged to have been committed by the applicant placing his hand between C1's legs and attempting to pull her pants away from her body while driving home in the courtesy bus on Caulfield Cup Day 2007), Count 6 (indecent assault by the applicant touching C1 on her vagina over her clothes, on the same occasion), Count 7 (indecent assault by the applicant attempting to place his hands down the inside of C1's pants, on the same occasion), Count 9 (attempted rape constituted by the applicant attempting to place his hands down the inside of C1's underpants and attempting to insert his fingers inside her vagina, late at night of 3 December 2008 in the applicant's car), and Count 17 (rape constituted by the applicant putting his fingers inside C1's vagina on the same occasion), was admissible in proof of the offence comprised in Count 20 (indecent assault alleged to have been committed against C2 by the applicant touching C2 on her vagina over her clothing while at work at the Hotel in 2004), and Count 21 (rape alleged to have been committed against C2 by the applicant inserting his fingers inside her vagina, on the same occasion), as evidence of a tendency of the applicant to act in a particular way, namely, to touch the vaginal area of female staff members who worked with the applicant at the Hotel.
17 In the same notice it was contended that the evidence of C2 as to Counts 20 and 21 was admissible in proof of Counts 3, 6, 7, 9 and 17, as evidence of the same tendency.
18 In the fourth tendency evidence notice, seemingly also offered as a further or alternative basis of tender, the Crown contended that:
a) the evidence of C1 as to Count 2 (indecent assault constituted by the applicant touching the breasts of C1 and trying to kiss her, in the applicant's bedroom on 27 December 2006);
b) the evidence of C1 as to Count 4 (indecent assault constituted by the applicant pinning C1 against the wall and kissing her on the lips);
c) the evidence of C1 as to Count 8 (indecent assault constituted by the applicant kissing C1 on her breasts, late at night on 3 December 2008 in the applicant's car);
d) the evidence of C1 as to Count 10 (indecent assault constituted by the applicant kissing C1 in the area just above her vagina, on the same occasion);
e) the evidence of C1 as to Count 11 (indecent assault constituted by the applicant kissing C1 on her breasts, on the same occasion);
f) the evidence of C1 as to Count 12 (indecent assault constituted by the applicant kissing C1 on the lips and breasts, on the same occasion);
g) the evidence of C1 as to uncharged acts of the applicant from time to time attempting to kiss C1 when she drove him home in the hotel courtesy bus;
h) the evidence of C2 of uncharged acts that from time to time the applicant would put his head in and kiss her;
i) the evidence of C2 as to Count 20 (indecent assault constituted by touching C2 on her vagina over her clothes while trying to kiss her); and
j) the evidence of WR as to an uncharged act of the applicant placing his hand on her leg and kissing her,
was admissible in proof of Counts 2, 4, 8, 10, 11, 12 and 15, as evidence of a tendency to act in a particular way, namely, to kiss female staff members who worked with the applicant at the Hotel.
19 The four notices of coincidence evidence were in substantially identical form to the four notices of tendency evidence. Effectively, the only difference between them was that, whereas the notices of tendency evidence described the evidence proposed to be relied upon in order to establish tendency in terms of conduct of which evidence would be adduced, the notices of coincidence evidence described it in terms of the two or more events of which evidence would be adduced.
20 In those circumstances, the considerations which apply to each set of notices are very much the same. By alleging tendency, the Crown seeks to establish that the applicant engaged in a pattern of conduct or behaviour emblematic of a tendency to act in a particular way, and that his tendency so to act makes it more likely that he acted in the way which the complainants allege he did in relation to the offences charged. Similarly, in alleging coincidence, the Crown seeks to rely upon the coincidence that more than one complainant and witness to uncharged acts described the attack which she alleged the applicant made on her, or the event which she says she witnessed, in terms so similar as logically to imply that the evidence of each complainant is not concocted or mistaken.
21 In short, in each case, the essence of the Crown's contention is that there is such similarity of acts and further or alternatively circumstances as between different instances of the applicant's offending, and thus such underlying unity of offending, as to make evidence of the applicant's offending on one occasion substantially probative that he offended in the same way on other occasions.
22 We propose to approach the matter by reference to the notices of tendency evidence. It was accepted by counsel for the appellant, and by counsel for the Crown, that whatever be the result under the tendency notices should also be the result under the coincidence notices.
23 Unfortunately, the judge did not deal individually with the bases of admissibility contended for in the notices. She approached the matter more globally. Thus, after referring to a number of the authorities, her Honour said simply this:
It would appear from the Victorian authorities, any 'distinctiveness' can come from the act and the surrounding circumstances with the test in Papamitrou being still applicable. In my opinion, there are features of the case before me which distinguishes it from CGL and PNJ and which more closely mirror the circumstances in Papamitrou.
Concerning s. 97(1)(b), the definition of 'probative value' was discussed in R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228.
In my opinion, the similarities referred to by the learned prosecutor are such that they can be led as tendency and coincidence [evidence]. The women were fellow employees, the defendant would rub or brush against their breasts, the sexual approaches were initially related to their breasts and then to grabbing their crutch or vaginas to the offending alleged. The location of the offending was primarily work related and involved behaviour such as 'cornering' them. The women refer to the defendant making suggestive comments to them, unexpectedly kissing them. That the defendant was in a position of authority over the women as he prepared the rosters.
These various aspects of the accused's behaviour in combination, in my opinion, are sufficiently 'distinctive' of the way he conducted himself and strikingly similar as between the respective accounts give by [C1] and [C2].
Further, the evidence sought to be led from [WR] and [WE] were of marked similarity to [C1] and [C2]. Their evidence was capable of lending support to the allegations made by [C1] and [C2] by reason of striking similarities, underlying unity, system or pattern, consistent with witness GG in R v Fletcher [2005] NSWCCA 33, paras 60-61.
24 The judge then turned her attention to s 101 of the Act and, after considering some of the cases in which its meaning has been essayed, continued:
Mr McCloskey submitted the prejudicial effect of the proposed evidence was not substantially outweighed by the probative value.
Mr Cosgriff submitted the evidence sought to be adduced substantially outweighed any prejudicial effects it may have on the defendant. That jury directions would prevent misuse of the evidence.
In my opinion, the probative value of the evidence substantially outweighs any prejudicial effect. Jury direction would dissipate any prejudicial effect, as it is anticipated such direction would be followed.
25 Under s 97 of the Act, the Crown may not adduce evidence that the accused has or had a tendency to act in a particular way or to have a particular state of mind unless the Crown gives notice in accordance with s 97(1)(a) and the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the Crown, have significant probative value. Tendency evidence has probative value if it can rationally affect the assessment of the probability of the existence of a fact in issue[2] and it has significant probative value if it has a significant important or substantial degree of relevance, having regard to the nature of the fact in issue.[3]
26 Whether tendency evidence has significant probative value depends on the nature of the tendency. For example, evidence that an accused had a sexual interest in a complainant might be significantly probative of an allegation that he committed a sexual offence against that complainant.[4] But, without more, it would not be significantly if at all probative that he committed a sexual offence against someone other than the complainant.[5] Contrastingly, evidence that an accused had a tendency to commit a particular kind of act or to commit a particular kind of act in particular circumstances, might be significantly probative of an allegation that the accused committed another act of the kind or committed another act of the kind in particular circumstances.
27 In cases of the latter class, common law conceptions of similar fact evidence provide useful guidance.[6] As Lindgren J observed in Australian Competition & Consumer Commission v CC (NSW) Pty Ltd (No8),[7] s 97 endorses the common law's healthy scepticism in relation to similar fact evidence. Accordingly, one 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,[8] or as between the circumstances in which previous acts were committed and the circumstances in which the act in question was committed[9] or, more compendiously, unless the evidence reveals a pattern of conduct,[10] modus operandi or some other underlying unity,[11] which logically implies that, because the accused committed the previous acts or committed them in particular circumstances,[12] he or she is likely to have committed the act in issue.
28 In the recently published decision of the New South Wales Court of Criminal Appeal in R v Ford,[13] Campbell JA 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.[14]
29 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 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'.[15] 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.
30 Under s 101 of the Act, tendency evidence adduced by the Crown cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In that context, prejudicial effect means the risk that, despite appropriate directions, the jury may reason improperly from the fact that the accused had committed previous offences, that he is the kind of person who would have committed the subject offences.[16] In effect, the section calls for the application of a balancing process which is to be conducted on the facts of each case. The court is required to give consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh. The process is similar to that by which Victorian courts were required to assess whether the probative value of tendency evidence so much outweighed its prejudicial effect as to make it just that it should be admitted under s 398A of the Crimes Act 1958.
Is the evidence of tendency significantly probative of any fact in issue?
31 Ordinarily, the greater the generality with which a tendency is stated the less likely that evidence of the tendency has significant probative value in relation to a fact in issue.[17] In the Crown's first tendency evidence notice, the tendency is stated in very general terms. To say that the accused had a tendency to have a sexual interest in female staff members who worked with him is indeed so general as to lack almost all probative value. For depending on what is meant by a 'sexual interest', one would have to allow that a very large proportion of the adult male population share the same tendency. Equally, to say that the applicant had a tendency to act upon his sexual interest in female staff members with whom he worked is so general as to be practically inutile. As expressed, it could mean no more than that the applicant was inclined to encourage conversation with female staff members or perhaps ask them out for a date.
32 The second notice is more precise and, therefore, more persuasive. To touch the breasts of female co-workers at the place of work is remarkable and unusual behaviour. Consequently, if the fact in issue be that an accused touched a complainant co-worker on her breast at the place of work, we consider that evidence that the accused had a tendency to touch female co-workers on their breasts at the place of work would have significant probative value in proof of the fact in issue.
a) C1's evidence of the offence alleged in Count 1 would be significantly probative of the offence alleged in Count 19; and
b) C2's evidence of the offence alleged in Count 19 would be significantly probative of the offence alleged in Count 1.
34 We are conscious that to say so is to recognise a tendency on the basis of only two incidents of its manifestation. But as logic dictates, and the common law similar fact cases confirm, an accused may have a tendency to engage in a particular kind of criminal behaviour which he or she has demonstrated on only very few occasions and yet which may still be significantly probative of the fact that he or she has so acted on a further occasion. It depends upon the nature of the tendency.[18] In this case, there is also the evidence of WE and WR as to similar events.
a) C1's evidence of the uncharged acts of the applicant brushing past her at work and touching her on her breasts, looking down the front of her top at her breasts, and looking at her breasts, would be of significant probative value in proof of Count 19;
b) C2's evidence of uncharged acts of the applicant brushing his hand across her breasts and the breasts of other female employees, would be significantly probative in proof of the offences alleged in Count 1; and
c) the evidence of WE of the uncharged acts of the applicant touching the breasts of WE and asking her to show him her breasts and the evidence of WR of the uncharged acts of the applicant touching WR on the breasts, would be significantly probative in proof of Counts 1 and 19.
36 Contrastingly, for a man to touch a woman on her breast without her consent in a social setting away from the place of work, although no doubt just as criminal, strikes us as significantly less unusual and, in that sense, very much less remarkable. To adopt and adapt the language of Maxwell, P and Buchanan and Bongiorno JJA in PNJ v R,[19] it is a commonplace in sexual offending of this kind and cannot be said to distinguish the applicant's offending from any other such offender.
37 For that reason, we do not consider that C1's evidence of the offences alleged in Counts 2, 8, 11, and 15, of touching C1's breasts away from work, would be significantly probative of the offence alleged in Count 19, of touching C2's breast at work, even though both C1 and C2 were female co-workers of the applicant. We say that because Counts 2, 8, 11 and 15 are alleged to have been committed on social occasions having nothing relevantly to do with work and, seemingly, as a result of the applicant's enduring sexual interest in C1. Contrastingly, Count 19 is alleged to have been committed at work in the course of work and, like Count 1, to have been the result of the applicant's tendency to take advantage of the workplace in order to assault female employees in a particular fashion.
38 For similar reasons, we do not consider that any of C2's, WE's or WR's evidence of uncharged acts at work would be significantly probative of the offences alleged in Counts 2, 8, 11 and 15 or that C1's evidence of the offences alleged in Counts 2, 8, 11 and 15 would be significantly probative of the offence alleged in Count 19.
39 Count 5 is more problematic in that it involves an alleged sexual assault on a female co-worker 'at the workplace', but in circumstances markedly different to those of the offences alleged in Counts 1 and 19. It too appears to have been an essentially social occasion, after work, over a drink, involving an extended conversation of C1's marital difficulties and the possibility that she might look on the applicant with romantic interest. Thus the fact that it took place 'at the workplace' seems to us to be largely irrelevant. Unlike the offences alleged in Counts 1 and 19, it did not involve the applicant taking advantage of the close proximity of female co-workers furtively to touch their breasts or otherwise act lewdly towards them, but rather was the result of a man with a proclaimed and enduring sexual interest in C1, of which she indeed had long been aware, seeking to deploy the intimacy of the occasion, the drink and the conversation with her, to consummate his feelings towards her.
a) C1's evidence of the offence alleged in Count 5 would be significantly probative of the offence alleged in Count 19; or
b) that C2's evidence of the offence alleged in Count 19 would be significantly probative of the offence alleged in Count 5.
a) C2's evidence of the uncharged acts of the applicant brushing his hand across her breasts and the breasts of other female employees, would be significantly probative in proof of the offence alleged in Count 5; or
b) that the evidence of WE of the uncharged acts of the applicant touching the breasts of WE and asking her to show him her breasts or the evidence of WR of the uncharged acts of the applicant touching WR on the breasts, would be significantly probative in proof of Count 5.
42 The third tendency notice is also precise and, therefore, informative. To routinely touch the vagina of female co-workers at the place of work presents as still more remarkable and unusual behaviour than touching female co-workers' breasts in that environment. Thus, in our view, if the fact in issue be that an accused touched a complainant co-worker's vagina at the place of work, evidence that the accused had a tendency routinely to touch female co-workers vaginas at the place of work would have significant probative value in proof of the fact in issue. Consequently, we consider that C1's evidence as to the uncharged acts of the applicant regularly walking past her at work at the hotel and putting out his hand so that he could brush against her vagina; and her evidence as to Count 3 (indecent assault alleged to have been committed by the applicant placing his hand between C1's legs and attempting to pull her pants away from her body while driving home in the courtesy bus on Caulfield Cup Day 2007), is significantly probative of the offence alleged in Count 20 (indecent assault on C2 constituted by the applicant putting his hands on C2's vagina over the top of her clothing) and Count 21 (rape constituted by the applicant inserting his fingers into C2's vagina).
43 In saying that we do not overlook that the offence alleged in Count 3 is alleged to have taken place in the courtesy bus rather than at the hotel itself. We accept the Crown's contention, however, that because there was such a close connexion between the hotel and the bus, which included the fact that C1 was acting in the course of her employment as she drove the bus, what occurred at the hotel is significantly probative of what is alleged to have taken place in the bus, and vice versa.
44 For the same reason, we consider that C2's evidence of the uncharged acts that the applicant regularly walked past her at work and brushed his hand across her groin as he passed, and as to the offences of indecent assault and rape alleged in Counts 20 and 21, is admissible as tendency or coincidence evidence in proof of Count 3.
45 Contrastingly, we do not consider that an offence of rape or attempted rape on a co-worker in a social setting away from work is, without more, so unusual or otherwise remarkable in the relevant sense as to make it significantly probative of an offence of rape or attempted rape committed at work on another co-worker. In the parlance of PNJ, it appears to us to be commonplace in sexual offending of this kind and cannot be said to distinguish the applicant's offending from any other such offender. Accordingly, we do not consider that C1's evidence of the offence alleged in Count 9, of attempted rape of C1 in the applicant's car on the night of 23 December 2008, is significantly probative of the offence alleged in Count 20, of indecent assault of C2 at the place of work in 2004, or the offence alleged in Count 21, of the rape of C2 at the place of work on the same occasion.
46 That leaves Counts 6 and 7 for consideration, which involve offences said to have occurred during the course of the same occasion as the offence the subject of Count 5. For the reasons we have given in relation to Count 5, we are not persuaded that C1's evidence as to Count 6 (indecent assault constituted by the applicant touching her vagina over the top of her clothing) or Count 7 (indecent assault constituted by the applicant attempting to place his hands down the inside of her pants) is significantly probative of the offence alleged in Count 20 (indecent assault on C2 constituted by the applicant putting his hand on C2's vagina over the top of her clothing) or Count 21 (rape constituted by the applicant inserting his fingers into C2's vagina), or vice versa
47 We turn to the fourth tendency notice, in which the tendency alleged was to kiss or attempt to kiss female co-workers. We think that to be too general to be of much utility. More precisely, while it may be accepted that a proven tendency to kiss female co-workers at the place of work could be significantly probative of an offence of kissing another female co-worker at the place of work, depending of course on the nature of the kiss and the circumstances on each occasion, we do not see that a tendency to kiss female co-workers at work, without more, would be significantly probative of an offence of kissing a female co-worker on a social occasion away from work, or vice versa.
48 Consequently, we do not accept that the evidence of C2 of uncharged acts (that, from time to time, the applicant would put his head in and kiss her); or the evidence of C2 as to Count 20 (indecent assault constituted by touching C2 on her vagina over her clothes while trying to kiss her); or the evidence of WR as to an uncharged act of the applicant placing his hand on her leg and kissing her, would be significantly probative of:
a) the offence alleged in Count 2 (indecent assault constituted by touching the breasts of C1 and trying to kiss her, in the applicant's bedroom on 27 December 2006);
b) the offence alleged in Count 8 (indecent assault constituted by kissing C1 on her breasts, late at night on 3 December 2008 in the applicant's car);
c) the offence alleged in Count 10 (indecent assault constituted by kissing C1 in the area described as just above her vagina, on the same occasion);
d) the offence alleged in Count 11 (indecent assault constituted by kissing C1 on her breasts, on the same occasion); or
e) the offence alleged in Count 12 (indent assault constituted by kissing C1 on the lips and breasts, on the same occasion).
49 Furthermore, for the reasons we have given in relation to Count 5, we are not persuaded that that evidence of C2 of uncharged acts (that, from time to time, the applicant would put his head in and kiss her); or the evidence of C2 as to Count 20 (indecent assault constituted by touching C2 on her vagina over her clothes while trying to kiss her); or the evidence of WR as to an uncharged act of the applicant placing his hand on her leg and kissing her, would be significantly probative of Count 4 (constituted by the applicant pinning C1 against the wall and kissing her on the lips during what we have described as an essentially social occasion after work).
50 We have already referred to the concept of prejudicial effect for the purposes of s 101, and to what its application entails. Our conclusions as to the prejudicial effect of each aspect of the evidence of tendency sought to be adduced are as follows:
51 Section 193 of the Criminal Procedure Act 2009, like its predecessor, s 372 of the Crimes Act 1958, empowers the court to order that one or more charges on an indictment be tried separately. In the same way, however, that ss 372(3AA) and 372(3AB) of the 1958 Act provided, s 194 of the new Act provides that, if two or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together and the presumption is not rebutted merely because evidence of one charge is inadmissible on another charge. As is explained in R v TJB,[20] that is so because it is usually assumed that the jury will comply with any direction they are given by the judge. Nevertheless, there are cases where the risk of prejudice is unacceptable.[21] In our view, this is such a case.
52 Ordinarily, in a multi-complainant sexual offence case, the jury can be directed either that they may take the evidence given by one complainant into account as tendency evidence in determining whether the Crown has established the offences alleged to have been committed against another complainant, or that they are to put the evidence of one complainant completely out of mind as they consider whether the Crown has established guilt in relation to the offences alleged to have been committed against the other complainant. In such cases, the mere fact that there are two complainants is not ordinarily regarded as sufficient reason to sever the indictment.
53 In this case, however, unless the indictment is severed, the jury would have to be directed, among other things, that the evidence of C1 as to Counts 2 and 4 to 18 is irrelevant to, and must be excluded from consideration in, the determination of whether the Crown has established beyond reasonable doubt the commission of the offences against C2 alleged in Counts 19, 20 and 21. Yet at the same time, assuming the Crown were to persist with its intention to adduce the tendency evidence, or at least so much of it as we consider to be admissible, the jury would have to be directed:
a) that C1's evidence as to uncharged acts, and as to the offences alleged in Counts 1 and 3, was relevant as tendency evidence in determining whether the Crown had established beyond reasonable doubt the commission of the offences against C2 alleged in counts 19, 20 and 21; and
b) that C2's evidence of uncharged acts and as to Counts 19 to 21 was relevant as tendency evidence in determining whether the Crown had established beyond reasonable doubt the commission of the offences alleged in Counts 1 and 3.
54 Some might regard directions of that kind as bordering on metaphysical. But whether or not it would be right to do so, we consider that a jury would find it very difficult to comprehend or accept the logic of them, and still more, be able fully to apply them. Therefore, although it may be assumed that the trial judge would strive to make such directions as simple and clear as possible, we think that there would remain an unacceptable risk of the jury taking into account C1's evidence as to Count 2 and Counts 4 to 18 in proof of Counts 19, 20 and 21 and, potentially, more damagingly to the applicant, taking C2's evidence as to Counts 19, 20 and 21 into account in proof of the offences alleged in Counts 2, 4 to 18. For without needing to be unduly precise about it at this stage of the proceeding, we were told that the defence in relation to Counts 8 to 18 will or may be that at least some of the alleged acts occurred, but that they were consensual. In those circumstances, we consider that the applicant's chances of acquittal on Counts 2 and 4 to 18, and more especially on Counts 8 to 18, might be put at risk of significant unfair prejudice by reason of the jury being aware of and thus, perhaps only subconsciously, taking into account C2's evidence as to Counts 19, 20 and 21.
55 Section 194 confers a discretion that an appellate court should review only on the ordinary principles that apply to discretionary judgments. Nevertheless, in this case the judge determined the question of severance on the basis of her conclusion that all of the evidence of C1 was admissible in proof of the offences alleged to have been committed against C2 and that evidence of all of the offences alleged against C2 was admissible in proof of the offences alleged to have been committed against C1. For the reasons we have given, we consider that not to be so. It follows that the discretion was exercised on an improper basis and accordingly is re-opened, and it must now be exercised afresh. Consistently with the principles essayed by Callaway JA in R v TJB,[22] we consider that it should be exercised so as to sever Counts 19 to 21 from the indictment and order that those counts be tried separately from the remaining counts.
56 It remains to deal with the evidence which the judge ruled should be admitted under s 66 of the Act. There are five complaints in question, which the judge termed Representations 2, 3, 4, 6 and 7.
57 The judge ruled that, although some of the representations were not made at the first reasonable opportunity, and so would not have been admissible as evidence of complaint at common law, they were all fresh within the memory of the complainants within the meaning of s 66,[23] and thus, apart from Representation 3, which her Honour held was not to be led unless opened in cross-examination, that each of the representations was admissible under the section. With one exception, it is not now suggested that her Honour was wrong so to hold.
58 The one exception concerns Representation 7, which was a representation by C1 to WR concerning the offences which are alleged to have been committed on the night of 3 December 2008 (Counts 8 to 18). In her statement, WR said that C1 made the complaint to her 'in November or December 2008'. Counsel for the applicant submitted that, because there was no certainty as to when the complaint was made, the Crown had failed to establish that the subject of complaint was still fresh in the mind of the complainant when she made the complaint or, alternatively, that the complaint should be excluded in the exercise of discretion pursuant to s 135 or upon the basis that its probative value was outweighed by its prejudicial effect, pursuant to s 137.
59 We do not accept that submission. It is not suggested that C1 made more than one complaint to WR about the events of the night of 3 December 2008, and there appears to be no doubt that the applicant and C1 were together in his car on the night of 3 December 2008, and that at least some of the acts complained of took place; albeit that the applicant says that they occurred with C1's consent. In our view, it would be well open to a jury to conclude that the complaint to WR was made shortly after 3 December 2008 and we do not see any other reason to conclude that the judge was in error in refusing to exclude evidence of the complaint pursuant to s 135 or 137.
60 Counsel for the applicant submitted in the alternative that her Honour had erred in rejecting an application that she rule that some of the complaints be excluded pursuant to s 135 or s 137: on the basis that, with so many complaints, the jury would accord them inappropriate significance; or, alternatively, that the use to which the representations could be put, be limited to evidence of consistency, pursuant to s 136 of the Act .[24]
61 Arguably, there is something in the idea that, because there are so many representations, the jury might give them unwarranted significance, and that the risk of that occurring could be ameliorated by a direction that the representations can only be used as evidence of consistency and not of the facts the subject of representation. As at present advised, however, it appears to us that s 136 confers a discretion with the exercise of which we ought not interfere unless persuaded that it has miscarried. And here we are not persuaded that it has miscarried. We are not convinced that the judge's decision not to limit the use of the representations to evidence of consistency was clearly wrong.
62 We note that the test for appellate intervention in the exercise of the power conferred by s 137 may be different, and it plainly is different where an appeal concerns the admissibility of evidence. Possibly, that has implications for the test under s 136. But this appeal was argued on the basis that, for the purposes of an appeal against a decision made under s 136, the rule in House v R[25] applies. We approach the matter accordingly. A definitive determination of whether the test is otherwise should await another day.
63 For the reasons we have given, we shall order as follows:
a) C1's evidence of the offence alleged in Count 1 is admissible as tendency or coincidence evidence in proof of the offence alleged in Count 19;
b) C2's evidence of the offence alleged in Count 19 is admissible as tendency or coincidence evidence in proof of the offence alleged in Count 1;
c) C1's evidence of the uncharged acts of the applicant brushing past her at work and touching her on her breasts, looking down the front of her top at her breasts, and looking at her breasts, if taken in conjunction with C1's evidence as to the offence alleged in Count 1, is admissible as tendency or coincidence evidence in proof of Count 19;
d) C2's evidence of the uncharged acts of the applicant brushing his hand across her breasts and the breasts of other female employees, if taken in conjunction with C2's evidence of Count 19 and C1's evidence of the said uncharged acts, is admissible as tendency or coincidence evidence in proof of Count 1;
e) WE's evidence of the uncharged acts of the applicant touching her breasts and asking her to show him her breasts, and the evidence of WR of the uncharged acts of the applicant touching WR on the breasts, if taken in conjunction with C1's and C2's said evidence of uncharged acts and of Counts 1 and 19, is admissible as tendency or coincidence evidence in proof of Count 1 and Count 19;
f) C1's evidence as to the uncharged acts of the applicant regularly walking past her at work at the Hotel and putting out his hand so that he could brush against her vagina; and her evidence as to Count 3, is admissible as tendency or coincidence evidence in proof of Counts 20 and 21;
g) C2's evidence of the uncharged acts that the applicant regularly walked past her at work and brushed his hand across her groin as he passed, and as to Counts 20 and 21, is admissible as tendency or coincidence evidence in proof of Count 3;
h) Otherwise, the evidence of which the Crown gave notice in its four notices of Tendency Evidence dated 27 April 2010 is not admissible as tendency or coincidence evidence in proof of the tendency or facts therein set out as sought to be proved by its adduction.
[3] R v Lockyer (1996) 89 A Crim R 457, 459; R v Ford [2009] NSWCCA 306, [50]-[53].
[4] HML v The Queen (2008) 235 CLR 234.
[5] Phillips v The Queen [2006] HCA 4; (2005) 80 ALJR 537.
[6] R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308, 322; AE v R [2008] NSWCCA 52, [44]; PNJ v R [2010] VSCA 88.
[7] [1999] FCA 954; (1999) 92 FCR 375, [94] and [101].
[11] PNJ v R [2010] VSCA 88, [8]-[12].
[12] NAM v R [2010] VSCA 95, [17]-[19].
[15] R v Ford [2009] NSWCCA 306, [32].
[16] Ibid [56] and the authorities there cited.
[17] Townsend v Townsend [2001] NSWCA 136, [78]; R v Ford, ibid, [53].
[18] R v Dupas (No 2) [2005] VSCA 212; (2005) 12 VR 601; R v Ford above, [45].
[19] [2010] VSCA 88, [22].
[20] [1998] 4 VR 621, 629.
[22] [1998] 4 VR 621, 630-633.
[23] Cf. Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606.
[24] R v H (1997) 92 A Crim R 168, 172, (Hunt CJ at CL).
G B F
The Queen [2010] VSCA 135
(2006) 66 NSWLR 228
(2008) 235 CLR 234
(2005) 80 ALJR 537
(1999) 92 FCR 375
(2005) 12 VR 601
(1998) 195 CLR 606
(1936) 55 CLR 499