Harris (a pseudonym) v The Queen [2015] VSCA 112

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 This is an application for leave to appeal against an interlocutory decision of a judge of the County Court to admit coincidence evidence in the trial of the applicant.

2 The applicant is charged, on indictment, with eight charges of sexual offences involving two complainants. The offences are alleged to have occurred between 1 January 1981 and 4 May 1984.

3 The first complainant ('BS') was born in May 1975, and the second complainant ('CJ') was born in January 1973. The applicant commenced a relationship with the mother of BS when he was about six years of age. BS alleges that he was first sexually abused by the applicant approximately one year after the applicant had commenced living with his mother. At that time BS was either in the preparatory grade or grade 1 of primary school. The offending occurred at night time. BS was in bed with his mother and the applicant. BS's mother was asleep, and the applicant was lying between her and BS. It is alleged that the applicant placed his penis into BS's anus, and thereby committed the offence of buggery (charge 1) or, alternatively, sexual penetration with a child under 10 years (charge 2).[2]

4 At that time the applicant became a friend of the father of the second complainant, CJ. They drank together, and it would seem did so often at the home of BS's mother. During that time, CJ on occasions stayed overnight there, and he would sleep in the same bedroom as BS.

5 On one of those occasions, the applicant had entered the bedroom and lain on the bed. BS noted that the applicant was lying on the bed naked. His penis was erect. BS and CJ were in the same bed with the applicant. Those circumstances are alleged to comprise an offence of committing an act of gross indecency in the presence of a person under the age of 16 years, BS (charge 3).

6 On what may be the same or a different occasion from that alleged by BS in charge 3, CJ alleges that the first time he slept over at the house he was woken by the applicant coming into BS's bedroom, where he and BS were sleeping. The applicant got into bed with them. The applicant was naked, as he had taken off his pants. Those circumstances comprise charge 4, committing an act of gross indecency in the presence of a person under the age of 16 years, CJ. The applicant then grabbed CJ's hand and used it to masturbate the applicant's penis. That circumstance comprises charge 5 (assaulting CJ, a person under the age of 16 years, in indecent circumstances). CJ further alleges that the applicant did the same actions with BS (charge 6).

7 On the same occasion, CJ was lying sideways in the bed with the applicant directly behind him. The applicant is alleged to have put his penis in CJ's anus. Those circumstances comprise the offence charged in charge 7 (sexual penetration of a child under the age of 10 years) or the alternative offence charged in charge 8 (taking part in sexual penetration of a person of or above the age of 10 years but under the age of 16 years).

8 CJ alleges that that incident was not an isolated event. Rather, he states that the applicant anally penetrated him on about 10 other occasions when CJ stayed overnight at the home of BS. On those occasions, the applicant would enter the children's bedroom when BS's mother was already asleep. CJ or BS would masturbate the applicant, or the applicant would get into bed and anally penetrate CJ or, on other occasions, BS. Those incidents are not the subject of specific charges, but are relied on as uncharged acts.

9 In accordance with s 98(1)(a) of the Evidence Act 2008, the prosecution has given the defence notice of its intention to adduce coincidence evidence in order to prove the commission of the offences charged against the accused in charges 1, 2, 7 and 8. In effect, the prosecution intends to adduce evidence relating to the acts charged in charges 1 and 2, to prove the commission of the offence charged against the accused in charges 7 and 8. Likewise, the prosecution intends to adduce the evidence of the circumstances founding charges 7 and 8, to prove the offences charged in charges 1 and 2. The similarities between the accounts of BS and CJ, that the prosecution relies on, are the allegations that the applicant inserted his penis into the anus of BS and CJ who were then boys aged between six and 11 years; while they were in bed; at night; from behind the complainant while lying sideways in the bed; without saying any words; and when any other adult person in the house was asleep.

10 Coincidence evidence is an exception to the general principle that evidence of an earlier incident or event, involving or relating to an accused person, is not admissible to prove an element of an offence charged against the accused. The circumstances in which coincidence evidence is admissible, as an exception to that rule, are defined in ss 98 and 101 of the Evidence Act. The principles, relating to that exception, have been discussed in a number of previous decisions of this Court. For present purposes, they need only be briefly outlined.

11 In order that the evidence be admissible, the prosecution must demonstrate, first, that the similarities in the specified events, or in the circumstances in which they occurred, are such that it is improbable that the events occurred coincidentally.[3] In that way, it must be demonstrated that the 'coincidence evidence' relied on has a significant probative value in respect of the fact or facts that are sought to be established. In other words, the improbability that the events occurred coincidentally, must be capable of rationally effecting the probability of the existence of a particular fact in issue to a significant extent.[4]

12 The rationale for the exception, provided by s 98, resides in the significant improbability that the two events occurred coincidentally. Accordingly, where the prosecution relies on the similarities in accounts of separate events involving an accused, given by two or more witnesses, that rationale may not apply where there is a reasonable possibility that there may have been concoction, collaboration, collusion or contamination amongst those witnesses. If the admissibility of the evidence is resisted on such a basis, then it must be raised by or on behalf of the accused before the trial judge. In such a case, where the issue of collaboration, concoction or collusion has been raised by evidence, the prosecution bears the onus of negativing any such reasonable possibility.[5]

13 As we stated, in order for the evidence to be admissible, s 98(1)(b) of the Evidence Act requires that it have 'significant probative value'. For that purpose, it is not necessary that there is a relevant 'striking similarity' between the two or more events relied on as a basis for the coincidence evidence.[6] Nevertheless, the similarities, between the events, must be such that the evidence has 'significant probative value' in respect of the fact in issue. That is, the probative value of the evidence must be far higher than 'mere relevance'.[7] In addition, s 101(2) provides that the coincidence evidence is not admissible, unless its probative value substantially outweighs any prejudicial effect it may have on the accused.

14 The first question, then, is whether the events, that are alleged to constitute the offences charged in charges 1 and 2, are sufficiently similar to the events alleged to constitute the offences charged in charges 7 and 8, as to render an explanation of coincidence improbable, so much so that the evidence, in respect of the events alleged in one set of charges, has significant probative value in respect of the events alleged in the other set of charges.

15 In his ruling, the judge acknowledged that there was no particularly striking feature of the offending or the circumstances described by each complainant. Indeed, he described the particular acts, constituting the anal penetration in each case, to have occurred in circumstances that were relatively usual in the constellation of cases in which that offence occurs. However, he considered that the concatenation of circumstances described by each complainant - that the acts of anal penetration occurred in the same house, with another boy of about the same age, at night, in bed, while another person was in the same bed - to be so similar in each case that it would 'be an affront to common sense' to not admit evidence of one complainant in respect of the offences charged relating to the other complainant.

16 In reaching that conclusion, the judge, having heard evidence on a voir dire, held that he was satisfied that there was no reasonable possibility of collusion, concoction, collaboration or contamination between the accounts given by BS and by CJ respectively. That conclusion, by his Honour, was not challenged on the appeal.

17 Counsel for the applicant submitted that the similarities, identified by the trial judge, were not sufficient to invest the evidence with significant probative value. He also pointed to the fact that there were some differences in the accounts given by each complainant. For example, the offence charged in charges 1 and 2 occurred while BS was in bed with his mother; on the other hand, the offences charged in charges 7 and 8 occurred in the bed that CJ was then sharing with BS. Unlike the offences charged in charges 1 and 2, the offences charged in charges 7 and 8 are alleged to have been preceded by the acts of masturbation we have described. BS was approximately six to seven years of age at the time of the alleged conduct, whereas CJ was then between nine and 11 years of age. It was submitted that, in those circumstances, the similarities identified by the judge did not rise above rendering the evidence relevant, and were insufficient to render it of significant probative value.

18 As we have stated, it is not necessary for the prosecution to demonstrate a 'striking similarity' between the events described by each complainant as a prerequisite for the admission of the evidence of each complainant in respect of the other as coincidence evidence. Thus, it is not essential that there be unusual features concerning the offending, or the circumstances surrounding the offending. Certainly, the existence of such unusual features would weigh in favour of a conclusion that the evidence met the test posited in s 98 of the Evidence Act. In the absence of such unusual circumstances, it is necessary to identify a sufficient underlying unity between the events, constituting the offending against each complainant, as to invest the evidence of each complainant with the requisite significant probative value in respect of the offending against the other complainant.[8] In that respect, in PG v The Queen,[9] Nettle JA stated:

... whether there is sufficient underlying unity to make evidence of charged or uncharged acts concerning one complainant admissible in proof of offences alleged in relation to another invariably depends upon the facts in issue, the nature of the uncharged acts, the circumstances in which they are alleged to have been committed, the relationship between the accused and the complainant or deponent, and all the other circumstances of the case.

Sometimes, it will be a matter of striking similarity as between one act and another which bespeaks the underlying unity that makes evidence of the former admissible in proof of the latter. Sometimes, there will be something peculiar about the acts which makes evidence of one admissible in proof of the commission of the other. Sometimes, it will be the circumstances of the offending which makes evidence of one act admissible in proof of the other, and examples can be multiplied. In short, it is a question to be assessed in all the circumstances of the case, bearing in mind what has been said in previously decided cases as to what is sufficient in kindred circumstances.[10]

19 The existence of dissimilarities in the circumstances, or nature, of the sexual acts alleged against each complainant does not necessarily disqualify the evidence from constituting a coincidence evidence for the purpose of s 98. The question which arises is whether those dissimilarities are such as to undermine or diminish the underlying unity of the separate acts and the circumstances in which they occurred. Ultimately, the question is whether, notwithstanding those dissimilarities, there is sufficient underlying unity between the events, constituting the offending against each complainant, that the evidence of each complainant has significant probative value in respect of the offending against the other complainant.[11]

20 In addressing that question, it is important to bear in mind the issue to which the coincidence evidence is sought to be directed.[12] This is not a case in which there is no dispute that the offence was committed, but in which the issue is whether it was the accused who committed the offence. In such a case, in order that evidence of the commission of a previous such offence by an accused be admissible, there must be specific distinctive features common to both offences which makes it improbable that the two crimes were committed coincidentally by two different persons.[13] Rather, the critical question in this case is whether the offences, which BS and CJ each allege were committed against themselves, in fact took place. The probative force of the evidence of the offence alleged in charges 1 and 2 in respect of the offences alleged in charges 7 and 8, and, conversely, the probative force of the evidence of the offences alleged in charges 7 and 8 in respect of the offence alleged in charges 1 and 2, lies less in there being striking or distinctive similarities in the accounts given by each complainant, but, rather, in the improbability that each complainant would separately give such similar accounts as to the offending against himself, unless those events in fact occurred.[14] As we have stated, the question is whether there is sufficient underlying unity between the events, constituting those two separate occasions of offending, that the evidence in respect of each event has significant probative value in respect of the other event.

21 The question, whether the evidence of the events that are the subject, respectively, of charges 1 and 2, and charges 7 and 8, possess the requisite degree of probative value in respect of each other, is not without difficulty. On the one hand, there are a number of features about the two events, respectively alleged in those two sets of charges, that tend in favour of the conclusion that there is a sufficient underlying unity between the two separate events that the evidence of each event has significant probative value in respect of the occurrence of the other event.

22 The two complainants were, at the time, of approximately the same age. They were both young, and were pre-pubescent. The offending occurred in the same house. Each act, constituting the offending, and the uncharged acts, are alleged to have taken place in bed at night. On each occasion, there was one other person present. In the case of charges 1 and 2, BS's mother was present; in the case of charges 7 and 8, and the uncharged acts, BS was present. On each occasion, the applicant is alleged to have taken advantage of the fact that BS's mother was sound asleep. The acts consisted of anal penetration by the applicant of one or other of the complainants. On each occasion of anal penetration, the complainant was lying on his side. Taken together, those similarities, while not striking (in terms of the type of case that comes before the courts), nevertheless contain a degree of underlying unity. In the absence of joint collaboration or contamination, it is improbable that, as a matter of coincidence, two complainants, independently of each other, would allege the perpetration of such separate events involving such acts by the applicant against themselves in such similar circumstances. The salient features of the events, described by each complainant, are so similar, in the respects mentioned, that it would be unlikely that, as a matter of pure coincidence, each complainant separately invented, imagined or otherwise concocted his account of the events described by him.[15]

23 On the other hand, there are a number of important differences between the events, that are alleged to constitute charges 1 and 2, and the events that are alleged to constitute charges 7 and 8, that undermine the strength of that underlying unity between the two separate sets of events.

24 First, the events, charged in charges 1 and 2, are alleged to have occurred while BS was in bed with the applicant and his mother. In other words, they took place in circumstances in which two adults were present, one of whom was (it would seem) sound asleep. Only the applicant is alleged to have been involved in the offending. By contrast, the events, alleged in charges 7 and 8, took place while the applicant was in bed with the two boys, BS and CJ, and in circumstances in which both were participants in the sexual offending committed by the applicant. Secondly, as we have already noted, the offending in charges 7 and 8 was preceded by acts in which the applicant caused each of BS and CJ consecutively to masturbate him, before he anally penetrated one or other of them. On the other hand, no such act of masturbation is alleged in respect of the offending charged in charges 1 and 2. Thirdly, the applicant is alleged to have ejaculated while committing the offence charged in charge 7 (against CJ). There is no allegation that he ejaculated in committing the offences charged in charges 1 and 2. Fourthly, and importantly, on any view, there is a not insubstantial time gap between the events alleged in charges 1 and 2, and the events alleged in charges 7 and 8. After making full allowance for the difference in ages between the two complainants, and for the frailty of childhood memory for such details, it would seem that, at the least, the two events are alleged to have occurred at least 12 months apart from each other.

25 Taken together, those dissimilarities necessarily diminish the strength of the proposition that it is improbable that the two complainants would allege that the events occurred as a matter of coincidence. While we accept that, nevertheless, it is improbable that the two complainants, as a matter of coincidence, would separately give accounts of the offending against them in the manner in which they have, containing the similarities that we have described, the degree of that improbability is necessarily undermined by the differences between the two sets of offending alleged by each complainant. In those circumstances, while we consider that the coincidence evidence, sought to be admitted, would be of probative value, we do not consider that it has such cogency that it would have significant probative value, either by itself, or having regard to the other evidence to be adduced by the prosecution. For those reasons, the coincidence evidence is not admissible under s 98(1)(b) of the Evidence Act.

26 Further, if we had concluded that the evidence had the necessary significant probative value, we would not be satisfied that the probative value of that evidence substantially outweighs any prejudicial effect it may have on the fair trial of the applicant.

27 As the judge acknowledged, it cannot be gainsaid that coincidence evidence, of the nature of the evidence sought to be adduced in this case, has the potential to be particularly prejudicial to an accused person, in that it might tempt the jury to indulge in impermissible propensity reasoning. In addition, such evidence, naturally, tends to excite feelings of revulsion and disgust against the accused person. It is for that reason that, when such evidence is admitted, judges are required to give strict directions to the jury as to the purposes for which the evidence might be used, and, importantly, as to the impermissible purposes for which the evidence may not be used.

28 It has been the long experience of the courts that juries are consistently conscientious in applying such directions. In part, that is because the directions are relatively uncomplicated, and thus may be properly understood and applied. However, in this case, there is a complexity arising from the existence of the uncharged acts. That complexity would necessarily have the effect of requiring the trial judge to give quite complicated and potentially confusing directions to the jury, thus undermining the force of the important direction, warning the jury against indulging in impermissible propensity reasoning.

29 On the hearing of the appeal, counsel for the respondent stated that the prosecution intended to adduce evidence of the uncharged acts as context or background evidence in respect of the offences charged in charges 7 and 8. Counsel correctly accepted that the evidence, of the uncharged acts, could not be admissible on that basis in respect of the offences charged in charges 1 and 2. In those circumstances, if the events, charged in charges 7 and 8, were admissible as coincidence evidence in respect of the events charged in charges 1 and 2, the directions, which the judge would be required to give to the jury, would be particularly complex. The judge would need to give a propensity direction in respect of the uncharged acts. The judge would also need to explain that the

uncharged acts were only relevant to charges 7 and 8. The judge would then need to explain how the evidence in respect of charges 7 and 8, and the evidence in respect of charges 1 and 2, would be admissible as coincidence evidence in respect of each other. In doing so, the judge would be required to give another propensity direction in respect of that coincidence evidence. The position would become more complicated because, while the uncharged acts would be relevant to charges 7 and 8, and the evidence on charges 7 and 8 would be relevant to charges 1 and 2, the uncharged acts would be irrelevant in respect of charges 1 and 2. A direction, setting out the above matters, would, as we stated, be extraordinarily complicated and convoluted. Such a direction would, we apprehend, significantly undermine the protective effect of the ordinary directions given to juries when coincidence evidence is admitted.

30 In those circumstances, if the evidence were admissible as coincidence evidence under s 98(1), we consider that the probative value of such evidence would not substantially outweigh the prejudicial effect that it may have on the fair trial of the applicant, and therefore would not satisfy the test for admissibility in s 101(2).

31 For those reasons, the coincidence evidence, that is sought to be adduced in respect of charges 1 and 2 on the one hand, and charges 7 and 8 on the other hand, is not admissible. It follows that the applicant should be granted leave to appeal against the decision of the judge of the County Court to admit that evidence. Further, the appeal by the applicant against that decision should be heard instanter and allowed. Obviously, the question of severance of the indictment will fall to be reconsidered in light of these reasons.

32 We should add to the foregoing that the complexities, arising out of the intention of the prosecution to adduce the uncharged acts on charges 7 and 8, but not on charges 1 and 2, were not raised by counsel in submissions before the judge. Thus the judge was not afforded the advantage of submissions in relation to those matters, particularly when considering the question that arises under s 101(2) of the Evidence Act.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Buggery ceased to be an offence in Victoria on 1 March 1981. It was abolished by the Crimes (Sexual Offences) Act 1981. See Scannell v The Queen [2014] VSCA 330, [22] (Priest JA).

[3] CGL v DPP [2010] VSCA 26; (2010) 24 VR 486, 493 [22]; CW v The Queen [2010] VSCA 288, [7] ('CW'); Velkoski v The Queen [2014] VSCA 121, [173]-[175] ('Velkoski').

[4] CW [2010] VSCA 288, [6].

[5] Velkoski [2014] VSCA 121, [173]-[175].

[7] Ibid [171]; Rapson v The Queen [2014] VSCA 216, [16] ('Rapson'); Semaan v The Queen (2013) 39 VR 503, 510-11 [36]-[40] (Priest JA); El-Haddad v R [2015] NSWCCA 10, [74]-[75] (Leeming JA).

[8] GBF v The Queen [2010] VSCA 135, [27].

[9] [2010] VSCA 289.

[10] Ibid [70]-[71]; see also Velkoski [2014] VSCA 121, [171].

[11] Rapson [2014] VSCA 216, [17].

[12] Hoch v The Queen (1988) 165 CLR 293, 301 ('Hoch'); R v Rajakaruna [2004] VSCA 114; (2004) 8 VR 340, 360 [85] (Eames JA).

[13] Cf DPP v P [1991] 2 AC 447, 462-3 (Lord Mackay).

[14] Hoch, 295 (Mason CJ, Wilson and Gaudron JJ); PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146, 149 [11] ('PNJ').

[15] Cf PNJ [2010] VSCA 88; (2010) 27 VR 146, 149 [11]; NAM v The Queen [2010] VSCA 95, [19] (Maxwell P); R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375, 390-1 [31] (Winneke P).