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[2018] ACTCA 42
Court of Appeal (ACT)
2018-09-20
Murrell CJ, Burns and North JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Hoyle v The Queen
Citation: [2018] ACTCA 42
Hearing Dates: 14–15 May 2018
Decision Date: 20 September 2018
Before: Murrell CJ, Burns and North JJ
Decision: Appeal dismissed.
Catchwords: APPEAL – CRIMINAL LAW – GENERAL PRINCIPLES – admitting further evidence on appeal – distinction between new evidence and fresh evidence – fresh evidence – whether the absence of fresh evidence at trial amounted to a miscarriage of justice – whether jury would be “reasonably likely” to acquit if they had known of the fresh evidence at trial – whether the fresh evidence meant the appellant would have run the trial differently CRIMINAL LAW – GENERAL PRINCIPLES – defence of mental impairment – ss 27 and 28 of the Criminal Code 2002 (ACT) –-when accused under a mental impairment – whether the accused did not know the nature and quality of the conduct – whether the accused knew the conduct was wrong – whether the accused could not control the conduct EVIDENCE – TENDENCY EVIDENCE – multiple complainants of sexual offences – probative value of tendency evidence – whether tendency evidence would cause unfair prejudice – whether the prosecutor used tendency evidence in an impermissible manner – distinction between tendency and coincidence evidence CRIMINAL LAW – DIRECTIONS TO JURY – conduct of the prosecutor – whether the prosecutor’s errors caused a miscarriage of justice – whether the trial judge’s jury directions cured the prosecutor’s errors CRIMINAL LAW – DIRECTIONS TO JURY – Liberato directions – whether the trial judge correctly identified to the jury the burden and standard of proof – whether a Liberato direction should have been given – Jovanovic directions – adequacy of directions regarding the complainants’ motive to lie – whether a Jovanovic direction should have been given EVIDENCE – CREDIBILITY EVIDENCE – s 108C of the Evidence Act 2011 (ACT) – whether the evidence could substantially affect the assessment of the credibility of the witness – whether a failure to address s 192 of the Evidence Act 2011 (ACT) affects the admission of evidence under s 108C
Legislation Cited: Court Procedures Rules 2006 (ACT) rr 1203, 5331, sch 1 Crimes Act 1900 (ACT) ss 54(1), 60(1) Criminal Code 2002 (ACT) ss 27, 28 Evidence Act 1995 (NSW) s 79 Evidence Act 2011 (ACT) ss 95, 97, 101(2), 108C, 137, 192 Supreme Court Act 1933 (ACT) s 37N(3)
Cases Cited: Bugeja v The Queen [2010] VSCA 321; 30 VR 493 Craig v The Queen [2018] HCA 13; 92 ALJR 390 Dasreef Pty Ltd v Hawcher [2011] HCA 21; 243 CLR 588 De Silva v The Queen [2013] VSCA 339; 236 A Crim R 214 Finn v The Queen [2018] VSCA 228 Gallagher v The Queen (1986) 160 CLR 392 Hughes v The Queen [2017] HCA 20; 92 ALJR 52 IMM v The Queen [2016] HCA 14; 257 CLR 300 Lawless v The Queen (1978) 142 CLR 659 Liberato v The Queen (1985) 159 CLR 507 Jovanovic v The Queen [2015] ACTCA 29 Judgment Suppressed [2018] WASCA 14 MA v The Queen [2013] VSCA 20; 40 VR 564 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 McCullough v The Queen [1982] Tas R 43 Mraz v The Queen (1955) 93 CLR 493 Parkinson v Alexander [2017] ACTSC 201 Patel v The Queen [2012] HCA 29; 247 CLR 531 Popovic v The Queen [2016] NSWCCA 202 Punna-Ophasi v The Queen [2012] ACTCA 46 R v Anderson [2001] NSWCCA 488; 127 A Crim R 116 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v Hodges [2018] QCA 92 R v Hoyle [2017] ACTSC 24 R v Jovanovic (1997) 42 NSWLR 520 Ratten v The Queen (1974) 131 CLR 511 Sankar v State of Trinidad and Tobago [1995] 1 WLR 194 Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 Smith v The Queen [2018] VSCA 139 South v The Queen [2007] NSWCCA 117 Stanoveski v The Queen [2001] HCA 4; 202 CLR 115 Stapleton v The Queen (1952) 86 CLR 359 The Queen v Bauer [2018] HCA 40 Thompson v The Queen [2017] ACTCA 44 Vojneski v The Queen [2016] ACTCA 57 Whitehorn v The Queen (1983) 152 CLR 657
Parties: Arthur Marshall Hoyle (Appellant) The Queen (Respondent)
Representation: Counsel Mr T Game SC with Ms K J Edwards (Appellant) Mr S Drumgold (Respondent)
Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: ACTCA 18 of 2017
Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 5 April 2017 Case Title: R v Hoyle Court File Number: SCC 150 of 2016
Court/Tribunal: ACT Supreme Court Before: Robinson AJ Date of Decision: 13 February 2017 Case Title: R v Hoyle Citation: [2017] ACTSC 24 Court File Number: SCC 150 of 2017
Index
Introduction and background [1]
The pre-trial tendency application [4]
The trial and sentence proceedings [7]
The appeal grounds [14]
The application for leave under r 5331 [15]
The Application to adduce further evidence on the appeal [18]
Admitting further evidence on the appeal [23]
The fresh evidence [38]
Associate Professor Rosenfeld [39]
Dr Lonie [42]
Professor Brew [45]
The appellant’s arguments about how the fresh evidence shows a miscarriage of [53] justice
A fundamental difficulty with all submissions relating to the fresh evidence [54]
Submission a: The appellant lost a real chance of acquittal based on a mental [67] impairment or other defence
Existence of mental impairment [68]
Did not know the nature and quality of the conduct [70]
Did not know the conduct was wrong [73] Could not control the conduct [87]
Conclusions in relation to mental impairment defence [91]
Submission b: Separate trials may have been ordered, increasing the chance of [94] acquittal
Submission c: The tendency application may have been refused because the fresh [97] evidence weakened the probative value of the tendency evidence and increased its prejudicial value
Submission d: The fresh evidence undermined the complainants’ opinions that the [104] appellant was intentionally making sexual suggestions
Submission e: Because of the fresh evidence, the appellant’s lawyers may have [106] given him different advice and he may have taken different forensic decisions, particularly in relation to giving evidence
Grounds 1(a)—Admission of tendency evidence at the pre-trial hearing [108]
Consideration of the arguments about probative value [112]
Consideration of the arguments about unfair prejudice [124]
Grounds 1(b) and 2—Prosecutor’s use of tendency and other evidence at the [127] trial
Manner in which the prosecution approached tendency/ruse/coincidence [132] evidence/complainants’ opinions/other matters
Did the Crown Prosecutor impermissibly raise the spectre that the meetings were a [147] ruse?
Did the Crown Prosecutor impermissibly encourage coincidence reasoning? [162]
Did the Crown Prosecutor erroneously rely on the complainants’ opinions about the [174] appellant’s motive?
Submissions on expert evidence admitted under s 108C Evidence Act [179]
Colourful and emotive language [183]
Cross examination of the appellant and submissions criticising his evidence [187]
Argument about latent duplicity [194]
In combination, did the Crown prosecutor’s errors cause a miscarriage of justice? [201]
Ground 1(c)—Adequacy of jury directions about tendency and coincidence in [208] the context of the way in which the prosecution was run
Ground 3—Admission under s 108C of the Evidence Act of expert evidence [220] about a “freeze response” and delay in reporting sexual misconduct
Freeze response [223]
Delayed compliant [239]
Ground 4—Adequacy of directions on onus of proof and motive to lie [245] Liberato direction [245]
Failure to direct that the jury could accept parts of the evidence and reject parts [250]
Motive to lie [253]
Conclusion [259]
THE COURT:
Introduction and background
In April 2017, a jury found that the appellant had committed eight sexual offences. He was acquitted of two further charges. The appellant appealed against each conviction and the associated sentence.
The appellant was a 65 year old business law lecturer at the University of Canberra. In late April 2015, he asked five female business law students to attend his office for the purpose of discussing whether a particular assignment was plagiarised. In each case, the possibility of plagiarism had been identified through a plagiarism detection program. The students were international students who were struggling academically. The appellant met alone with each student.
The prosecution contended that, when he met with each student, the appellant suggested to her that the plagiarism issue would be resolved if she provided sexual favours. He then made sexual advances.
The pre-trial tendency application
At a pre-trial hearing, Robinson AJ heard a prosecution application to cross-admit the evidence supporting each charge as tendency evidence supporting the other charges. His Honour heard a related defence application that the indictment be severed and the counts concerning the complainant, TL, be the subject of a separate trial in which the evidence concerning the other complainants would not be admitted as tendency evidence.
On 13 February 2017, Robinson AJ decided to admit the evidence of each complainant as tendency evidence on the charges concerning the other complainants and declined to order separate trials: R v Hoyle [2017] ACTSC 24.
His Honour allowed the prosecution to rely upon evidence supporting each charge as evidence of the following tendencies on the part of the accused:
(a) A tendency to have a particular state of mind, namely an intention to obtain sexual gratification from female students while alone with them in his office.
(b) A tendency to act in a particular way, namely to invite students into his office, to meet with them alone, to use concerns about their assignments to suggest that they engage in sexual activity with him and to make sexual advances on female students.
The trial and sentence proceedings
In March 2017, the appellant was tried before Elkaim J (the trial judge) and a jury.
Senior counsel for the appellant cross examined the students to the effect that each had falsely alleged sexual impropriety in an attempt to deal with an assertion of plagiarism.
The appellant gave evidence. He admitted that each meeting had occurred but denied the allegations of sexual misconduct. In relation to one of the students, ZG, he agreed that he had shown her material that referred to pornographic sites.
On 5 April 2017, the jury found the appellant guilty of Counts 1, 3, 4, 5, 6, 7, 8 and 10 in the indictment. The jury found him not guilty of Counts 2 and 9.
Counts 6 and 8 were offences against s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act) that carried a maximum penalty of 12 years’ imprisonment. Each other count alleged a contravention of s 60(1) of the Crimes Act and carried a maximum penalty of seven years’ imprisonment.
On 14 July 2017, the trial judge sentenced the appellant. The outcomes of the charges were as follows:
(a) Count 1—On 20 April 2015, commit an act of indecency in the presence of ZG without consent and being reckless as to consent (he showed her pornographic material on websites that he alleged that she had surfed while doing the assignment). Guilty: two months’ imprisonment, 5 September 2020– 4 November 2020.
(b) Count 2—On 20 April 2015 (on the same occasion as Count 1), commit act of indecency on ZG without consent and being reckless as to consent (after she began to cry, he suggested that she could do something to make it go away and then placed his hands on her thighs “in a comforting touch with some strength”). Not guilty.
(c) Count 3—On 23 April 2015, commit an act of indecency on KA without consent and being reckless as to consent (after raising the allegation of plagiarism and asking her what she could do about it, he held her on the back, pulled her face towards his face and—she thought—wanted to kiss her). Guilty: two months’ imprisonment, 5 October 2020–4 December 2020.
(d) Count 4—On 23 April 2015 (at the first meeting with her), commit an act of indecency on TL without consent and being reckless as to consent (after raising the allegation of plagiarism, he suggested that she could “do something” to prevent it being taken further, then he touched her knee and tried to touch her breast but she pushed him away). Guilty: four months’ imprisonment, 5 October 2020–4 February 2021.
(e) Count 5—On 29 April 2015 (during his second meeting with her) commit an act of indecency on TL without consent and being reckless as to consent (after asking her what she would like to suggest in relation to the plagiarism allegation, he touched her breast and leg, placed his hands under her skirt and touched her underwear). Guilty: four months’ imprisonment, 5 November 2020–4 March 2021.
(f) Count 6—On 29 April 2015 (during his second meeting with her) engage in sexual intercourse with TL without consent and being reckless as to consent (he pulled down her stockings and engaged in digital penetration). Guilty: three years’ imprisonment, 5 April 2017–4 April 2020.
(g) Count 7—On 29 April 2015 (during his second meeting with her) commit an act of indecency on TL without consent and being reckless as to consent (he lifted her up, kissed her on the lips, touched her breast and tried to put his tongue in her mouth). Guilty: four months’ imprisonment, 5 November 2020–4 March 2021.
(h) Count 8—On 29 April 2015 (during his second meeting with her) engage in sexual intercourse with TL without consent and being reckless as to consent (he removed his clothing and underwear and engaged in penile/vaginal intercourse). Guilty: three years and six months’ imprisonment, 5 April 2017–4 October 2020.
(i) Count 9—On 24 April 2015 commit an act of indecency on EO without consent and being reckless as to consent (he placed his hands on her thighs and briefly touched her upper arm). Not guilty.
(j) Count 10—On 28 April 2015 commit an act of indecency on UU without consent and being reckless as to consent (after telling her that he didn’t want her to fail and asking her for a kiss, he touched her face, kissed her forehead, cheeks and lips and touched her breast). Guilty: two months’ imprisonment, 5 February 2021–4 April 2021.
The appeal grounds
Ground 1 There was a miscarriage of justice occasioned by the admission and use of tendency and coincidence evidence:
(a) Tendency evidence should not have been admitted at the pre-trial hearing because the asserted tendencies lacked significant probative value.
(b) The tendency and coincidence evidence that was used during the trial differed from that which had been allowed at the pre-trial hearing.
(c) The trial judge gave inadequate directions about the permissible use of tendency and coincidence evidence.
Ground 2 The Crown Prosecutor caused a miscarriage of justice because of the manner in which he addressed the jury about the tendency evidence, utilised coincidence reasoning, employed inflammatory language, suggested that the student meetings were a ruse and that the sexual misconduct was pre-meditated (having disavowed a contention that the student meetings were a ruse), and conducted the trial in an otherwise unfair manner.
Ground 3 The trial judge erred in admitting the evidence of Associate Professor Parekh about a “freeze response” and the reasons for delayed reporting by victims of sexual violence. The evidence was not relevant, it was not expert evidence and it should not have been admitted under s 108C of the Evidence Act 2011 (ACT) (Evidence Act) because it was incapable of “substantially affecting” the assessment of the credibility of the complainants. Further, the trial judge erred in admitting the evidence without addressing the leave requirements in s 192 of the Evidence Act.
Ground 4 The trial judge gave inadequate directions on onus of proof, particularly in relation to motive to lie and the manner in which the appellant’s evidence could be used; his Honour should have given a “Liberato direction”.
Ground 5 The absence of fresh evidence concerning the appellant’s mental condition (frontal lobe injury and dementia) caused a miscarriage of justice. From the prolix submissions, it was difficult to identify with precision the reasons upon which the appellant relied to support this contention. However, they appeared to be:
(a) The fresh evidence raised a mental impairment defence under s 28(1) of the Criminal Code 2002 (ACT) (Criminal Code), at least in relation to those charges involving conduct that was not unequivocally sexual (concerning ZG and KA). Alternatively, the fresh evidence showed that the appellant had lost the chance of acquittal on another basis. Had the appellant been acquitted on any charge, the subject evidence would have been unavailable as tendency evidence supporting other charges.
(b) Had the fresh evidence been available and had the associated mental impairment defence been foreshadowed, Robinson AJ may have ordered separate trials.
(c) Had the fresh evidence been available, the tendency application may have been refused because the fresh evidence weakened the probative value of the tendency evidence and increased its prejudicial effect.
(d) The fresh evidence of mental impairment undermined the complainants’ opinions that the appellant had been intentionally making sexual suggestions.
(e) Had the appellant’s mental condition been known to his lawyers, they may well have urged the appellant to make different forensic decisions, particularly in relation to whether he gave evidence. Had the appellant given evidence, the fresh evidence may have substantially affected the jury’s assessment of his credibility, including whether he was genuinely concerned about plagiarism, and whether his answers were deliberately evasive.
(f) The fresh evidence was relevant to whether the Court should grant leave pursuant to r 5331 of the Court Procedures Rules 2006 (ACT) (CPR) because forensic decisions made during the trial may have been influenced by the appellant’s mental condition.
The application for leave under r 5331
As they were not the subject of objection or application for redirection at the trial, the appellant required leave under r 5331 of the CPR to argue grounds (1)(b)–(c), 2 and 4.
The appellant contended that leave should be granted as he had an arguable case on each ground. Individually and cumulatively, the grounds established a miscarriage of justice.
We deal with leave to appeal below. The application to adduce further evidence on the appeal
The appellant sought leave to adduce further evidence on the appeal to establish that, at the time of the charged acts and at the time of the trial, he had a longstanding frontal lobe injury and dementia of more recent onset, which had compounded the symptoms associated with the frontal lobe injury.
After the trial, the appellant’s lawyers sought routine medical assessments of the appellant for the purposes of the sentencing hearing in July 2017. The resulting reports of Associate Professor Rosenfeld (a consultant geriatrician and physician) and Dr Lonie (a clinical neuropsychologist) stated that the appellant suffered from frontal lobe injury and progressive brain disease (dementia).
The appellant’s lawyer became concerned that those mental conditions may have supported a defence of mental impairment or influenced the manner in which the trial was conducted. He obtained further reports.
The appellant appealed. In November 2017, the appellant applied to adduce fresh evidence on the appeal from Associate Professor Rosenfeld and Professor Brew (a neurologist). In April 2018, he applied to adduce fresh evidence from Dr Lonie and additional evidence from Professor Brew.
In summary, the grounds of the applications were that:
(a) The evidence was not available at the time of the trial (it was fresh evidence);
(b) It went to the appellant’s state of mind at the time of the alleged offences; and
(c) It suggested that the appellant had lost a reasonable chance of acquittal at trial.
Admitting further evidence on the appeal
On the appeal, the Court admitted the further evidence.
Section 37N(3) of the Supreme Court Act 1933 (ACT) (SCA) provides that the Court of Appeal may receive further evidence.
The respondent took the preliminary objection that the proposed evidence purported to be expert evidence but did not comply with the requirements of s 79 of the Evidence Act 1995 (NSW) as explained in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85] (Heydon JA), which was adopted in r 1203 and the Code of Conduct in sch 1 to the CPR. The respondent complained that the experts’ reports failed to set out the material facts, assumptions and investigations upon which their opinions were based and the reasons for each opinion, and that those failures made the reports inadmissible: Dasreef Pty Ltd v Hawcher [2011] HCA 21; 243 CLR 588 at [42].
We rejected the respondent’s submissions. Examined in context, the reasons for the central opinions of each expert were clear. The opinions were based on clinical examinations of the appellant (and, in the case of Dr Lonie, interviews with his wife), CT and MRI scans of the appellant’s brain, and psychometric testing by Dr Lonie. Each expert was well-qualified to express an opinion about the appellant’s mental condition and the symptoms associated with that condition. At some points, the experts strayed into expressing opinions about legal matters that were not within their province, but we have accorded appropriate weight to those opinions.
Section 37N(3) of the SCA was discussed in Jovanovic v The Queen [2015] ACTCA 29 (Jovanovic) at [21], where the Court said:
There is no statutory restriction on the receipt of further evidence, but the nature of appeals to the Court of Appeal provides some guidance as to the manner in which the Court’s discretion should be exercised.
In relation to the use that may be made of further evidence called on appeal, there is a well-established distinction between new evidence and fresh evidence: Ratten v The Queen (1974) 131 CLR 511 (Ratten), Lawless v The Queen (1978) 142 CLR 659 (Lawless). Recently, both cases were discussed in R v Hodges [2018] QCA 92 and [2018] WASCA 14, judgment suppressed.
Fresh evidence is evidence of which an accused person was unaware at the time of trial and which could not have been discovered with reasonable diligence, i.e., evidence that was both actually and constructively unavailable to the accused. If, because of fresh evidence, it is reasonably possible (or—perhaps—“significantly possible”: see [31] below) that there would have been a verdict of not guilty, then the unavailability of the fresh evidence speaks of a miscarriage of justice in that the trial was not a fair trial. The remedy is to order a new trial: Ratten at 516–519; Lawless at 674–675.
New evidence is evidence that was actually or constructively available to the accused at the time of the trial. Unlike fresh evidence, if new evidence simply raises the possibility (or “likelihood”) that a jury would have returned a verdict of not guilty, then the conviction will not be set aside. New evidence cannot establish that the trial itself was unfair. It is only if the new evidence raises a reasonable doubt about the correctness of the conviction itself that a miscarriage of justice will be demonstrated. In that case, an acquittal will be recorded. In Lawless, at 675–676, Mason J explained that two considerations operate to bring about that result. First, in a criminal trial, the accused decides how to run the case and what evidence will be called. If the accused deliberately chooses not to call material evidence that is actually available at the time of the trial or fails to exercise reasonable diligence to seek out material evidence, then the accused is bound by that decision. Second, there must be a powerful reason for disturbing a conviction obtained after a trial that has been regularly conducted.
In the case of fresh evidence, the appellate court must evaluate its credibility (whether a reasonable jury could find it to be plausible—see [2018] WASCA 14, judgment suppressed, at [240]) and probative value (cogency, capacity to influence the outcome by causing a reasonable doubt) for the purpose of determining whether, if the evidence had been considered together with the other evidence at the trial, it is “likely” that the accused would have been acquitted: Ratten at 519 (Barwick CJ). In Gallagher v The Queen (1986) 160 CLR 392 at [10], Dawson J expressed the test as whether a jury might reasonably have acquitted, not whether the jury was “likely” to have done so. In [2018] WASCA 14 (judgment suppressed) at [240], the import of the test was expressed somewhat differently, as whether there is a “significant possibility” that, on the basis of the fresh evidence and the evidence given at trial, a reasonable jury would have acquitted the appellant.
The fresh evidence
Associate Professor Rosenfeld
Mr Hoyle would not, in my opinion have been properly able to recognize the nature and quality of his conduct and behaviours and so recognize those behaviours as inappropriate, wrong or unlawful and further, be properly or normally able to control and inhibit those behaviours. (Emphasis added)
Mr Hoyle would have been unlikely, at the time on which the offences were said to have been performed, understood that the conduct was wrong or inappropriate. … Mr Hoyle, as a result, was mentally impaired in his ability to control and moderate his behaviours and impulses even, had it been the case, that he was aware that such behaviours were inappropriate or may have been interpreted as such. … Mr Hoyle’s ability to properly instruct his legal team, understand the implications of decisions that he was making, and his insight in regard to the nature course and possible outcomes of the charges, would, in my view, have been adversely affected by the reduction in his cognitive ability resulting from his frontal brain disease.
Dr Lonie
In June 2017, Dr Lonie administered psychometric tests. She diagnosed dysexecutive brain syndrome, manifesting as impairment of social/emotional executive function, reduced ability to learn and retain new verbal information, reduced speed of processing and reduced visuo-perceptual problem-solving ability. As to the appellant’s social and emotional executive functioning, Dr Lonie was given differing accounts by the appellant and his wife, which indicated to her that the appellant’s appreciation of his social and emotional dysexecutive symptoms was limited. Dr Lonie noted that social cognition is typically impaired following moderate/severe brain injury. She concluded that the appellant suffered from co-morbid disease processes (brain injury and dementia) and that it was likely that both conditions had been present in April 2015.
When Dr Lonie reviewed the appellant in March 2018, she detected a significant decline in his ability to acquire and retain new verbal information. This finding tended to confirm her opinion about the existence of a progressive degenerative process.
Testing of the appellant’s social and emotional executive functions in March 2018 showed that the appellant was within the average range. However, Dr Lonie queried the accuracy of the results; as the testing involved self-reporting, she considered that the results may have reflected the appellant’s loss of insight. Dr Lonie preferred to rely on the information provided by the appellant’s wife in June 2017 that had rated poorly the appellant’s social and emotional executive function.
Professor Brew
From the information provided to me, [the appellant] seemed to be aware of the conduct [the subject of the charges] and broadly recognised the conduct was wrong but it would appear that he was not able to fully control the conduct. There seems to have been a long standing propensity for lack of control of conduct as evidenced by his disinhibited behaviour in 1982 and his interpersonal relations with staff over the years. … From the evidence presented to me I think it is clear that Mr Hoyle did know the nature and quality of his conduct but it does not appear that he understood that the conduct was wrong and it would appear that he was unable to control the conduct. I state this because I can find no evidence for Mr Hoyle stating that he did not want students to report his behaviour. … [T]here is no mention of his asking them to “keep it quiet” … From the evidence presented in the transcripts it would appear that Mr Hoyle’s behaviour was conducted with open venetian blinds in full view from the car park. This would suggest that he was not aware that the conduct was wrong or that he could not control it. However, it is by no means definitive. … I cannot, however, find any unequivocal evidence that he was unaware of the wrongness of his conduct or that he was unable to control his conduct. It is more by implication of his actions and what he didn’t do.
In subsequent correspondence, the appellant’s legal representatives informed Professor Brew that the evidence suggested that the venetian blinds had, in fact, been closed. This information did not change Professor Brew’s opinion.
In oral evidence given at the appeal hearing, Professor Brew confirmed that disinhibition and the misreading of social cues were prominent symptoms of frontal lobe disease that would have been amplified by the superimposed neurodegenerative process. As to disinhibition, Professor Brew explained that, whereas a normal person might contemplate inappropriate sexual conduct, they would not act upon the thought. However, a disinhibited person would be more likely to exploit the situation of a student who faced an allegation of plagiarism because their reason would be overridden by disinhibition.
Professor Brew gave evidence that the symptoms of misreading social cues and disinhibition may explain conduct such as rubbing ZG’s thigh. However, they could not explain explicitly sexual conduct such as deliberately touching a breast.
Professor Brew explained the apparent contradiction in his comments (in [45] above) about whether the appellant knew that his conduct was wrong. He said that, broadly speaking, the appellant would have recognised that his conduct was wrong; he would have had an inkling that it may have been wrong. However, he would not have known for certain that it was wrong; he would not have recognised the details of the conduct that were wrong.
Professor Brew deduced that the appellant did not know that his conduct was wrong from the facts that the conduct was so brazen, the appellant did not urge the complainants to remain silent and he left the venetian blinds open. Professor Brew said that the nature of the behaviour itself established that the appellant could not fully control his conduct.
We consider that Professor Brew’s deduction about the appellant’s ability to control his conduct was primarily the consequence of non-expert reasoning with which we disagree. We deal with Professor Brew’s reasoning below.
In summary, the consistent import of the fresh evidence was that the appellant suffered from a long-standing frontal lobe injury and associated symptoms of misreading social cues/responding inappropriately and disinhibition (inability to fully control conduct). These symptoms are prominent features of social dysexecutive syndrome. The symptoms were amplified by the more recent onset of dementia, a progressive degenerative condition. In April 2015, the appellant would have exhibited the amplified symptoms.
The appellant’s arguments about how the fresh evidence shows a miscarriage of justice
(a) The fresh evidence raised a mental impairment defence under s 28(1) of the Criminal Code, at least in relation to those charges where the conduct was not unequivocally sexual (concerning ZG and KA). Alternatively, the fresh evidence showed that the appellant had lost the chance of acquittal on another basis. Had the appellant been acquitted on any charge, the subject evidence would have been unavailable as tendency evidence supporting the existence of tendencies relevant to other charges.
(b) Had the fresh evidence and associated mental impairment defence been foreshadowed, Robinson AJ may have ordered separate trials.
(c) Had the fresh evidence been available, the tendency application may have been refused because the fresh evidence weakened the probative value of the tendency evidence and increased its prejudicial effect.
(d) The evidence of mental disability undermined the complainants’ opinions that the appellant was intentionally making sexual suggestions.
(e) Had the appellant’s mental condition been known to his lawyers, they may well have urged the appellant to make different forensic decisions, particularly in relation to whether he gave evidence. Had the appellant given evidence, the fresh evidence may have substantially affected the assessment of his credibility, including whether he was genuinely concerned about plagiarism, and whether his answers were deliberately evasive.
A fundamental difficulty with all submissions relating to the fresh evidence
The appellant submitted that, because neither he nor his legal representatives knew about the fresh evidence, he was unable to make fully informed forensic decisions about how to run his defence. Inter alia, his legal representatives could not properly advise him because they did not know about the availability of a defence of mental impairment or that his obsessive behaviour and “obnoxious” presentation (to adopt the expression used by his counsel) may be explained by his mental condition.
But this submission begs the question: had the fresh evidence been known and had the appellant been in a position to make fully informed forensic decisions, would he have made different decisions? For example, would he have raised a defence of mental impairment?
Neither at the trial nor on the appeal did the appellant raise an issue of fitness to plead or inability to instruct lawyers. On the appeal, we assume that the appellant was in a position to instruct his counsel.
At the trial, the appellant made the forensic decision to conduct the trial on the basis that (except in relation to showing pornographic images to ZG) the conduct did not occur. He consistently and firmly denied such behaviour. At no stage was it suggested that the complainants had consented, that the appellant had been unaware that they did not consent or that the appellant had not addressed his mind to the question of whether they consented (was not reckless). His defence was that the conduct simply did not occur. If the defence had been that the prosecution could not establish the element of recklessness about consent, then the fresh evidence may have had a different relevance.
The fundamental difficulty attaching to all submissions about the fresh evidence is that theoretical possibilities concerning the way in which the trial could have been conducted differently are irrelevant. The question is whether it would have been conducted differently. Critically, the appellant failed to call evidence that, had he known of the fresh evidence, he would have made different forensic decisions.
In Craig v The Queen [2018] HCA 13; 92 ALJR 390 (Craig) the appellant argued that there had been a miscarriage of justice; he said that he had been denied a fair trial because he had been given incorrect legal advice bearing on his choice not to give evidence. In the Court of Appeal, there was evidence about the appellant’s instructions to his legal representatives and why he had decided that he would not give evidence at the trial. One reason was that the appellant had relied on incorrect advice that, if he gave evidence, it was likely that his prior convictions would be raised; on a correct understanding of the law, there was a possibility that the prior convictions would be disclosed to the jury, but it was not likely. A second reason was the appellant’s weakened physical and mental condition. A third reason, which was the forefront of the appellant’s mind when deciding whether he would give evidence, was his understanding that, if he gave evidence, he would be cross-examined about the significant differences between the proposed evidence and the account that he had given to the police.
Sankar is not authority for the proposition that any inadequacy or error in legal advice relating to the accused’s right to give evidence, without more, occasions a miscarriage of justice. Certainly where it is not an issue that the accused was aware of the right to give evidence, the contention that any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial must be rejected. At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.
The last point was emphasised at [33] of Craig, where the High Court said that the question of whether the decision not to give evidence has deprived an accused of a fair trial looks to the nature and effect of the incorrect legal advice on the decision made by the accused, assessed subjectively and without regard to whether the choice was unwise.
In Craig, the appellant had known about the right to give evidence and had understood that there was a significant tactical advantage in not giving evidence and thereby avoiding cross-examination about substantial inconsistencies between the proposed evidence and the account that he had given to police, which could have destroyed the appellant’s credit.
In addition, the High Court identified a “fundamental deficiency” in the appellant’s case; he did not say that, absent the incorrect advice, he would have given evidence. The appeal failed because the evidence did not establish that, but for the incorrect advice, the trial would have been conducted differently.
In the present case, the appellant did not put any evidence before the Court to the effect that, if his condition had been known, he would not have given evidence or that, in another respect, he would have conducted the trial differently. Nor was there any evidence from the appellant’s legal representatives at the trial to the effect that, if they had known of the appellant’s mental condition, they would have advised him that he should not give evidence or should conduct the trial differently.
It is far from obvious that that the appellant would have conducted the trial differently or that he would have been well advised to do so. The appellant was adamant that the conduct did not occur. Had the fresh evidence been introduced at the trial, it would have been a two edged sword. As discussed below, the appellant’s condition and the associated symptom of disinhibition make it more likely that that he would have behaved in a sexually inappropriate way, but (except in relation to Count 3, as discussed below) the evidence falls short of establishing a defence of mental impairment.
The absence of evidence that, had he known of his condition, the appellant would have conducted his trial differently is a fundamental difficulty with the appellant’s contention that the fresh evidence establishes a miscarriage of justice. Nevertheless, assuming that the appellant would have called the fresh evidence and, using the fresh evidence, he would have conducted the trial differently, we will deal briefly with the ways in which the appellant said that the absence of fresh evidence caused a miscarriage of justice.
Submission a: The appellant lost a real chance of acquittal based on a mental impairment or other defence
27 Definition—mental impairment (1) In this Act: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. … 28 Mental impairment and criminal responsibility (1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that— (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong; or (c) the person could not control the conduct. (2) For subsection (1)(b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong. (3) The question whether a person was suffering from a mental impairment is a question of fact. (4) A person is presumed not to have been suffering from a mental impairment. (5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
Existence of mental impairment
We accept that the fresh evidence establishes the existence of a mental impairment.
The question is whether, if the fresh evidence had been called at the appellant’s trial, the jury was reasonably likely to acquit him of one or more charges because the impairment had the effect that the appellant did not know the nature and quality of the charged conduct, did not know that the conduct was wrong or could not control the conduct.
Did not know the nature and quality of the conduct
The fresh evidence does not support the proposition that the appellant did not know the nature and quality of his conduct.
Professor Brew reported that it was clear to him that the appellant did know the nature and quality of his conduct.
Associate Professor Rosenfield made the bland assertion that the appellant would not have been “properly able” to recognise the nature and quality of his conduct. However, read in context, this was really an assertion that the appellant’s cognitive impairment meant that he did not fully appreciate the wrongness of his conduct.
Did not know that the conduct was wrong
The fresh evidence is not significantly probative of whether the appellant may not have known that his sexually explicit conduct was wrong. However, it does support an argument that inappropriate behaviour that was not sexually explicit (such as the holding of a hand or the touching of a thigh) may have been symptomatic of the appellant’s mental condition.
Section 28(2) defines what s 28(1)(b) means when it speaks of a person not knowing that their conduct is wrong; it means that the person cannot reason with a moderate degree of sense and composure about whether their conduct, as seen by a reasonable person, is wrong. The meaning comes from Stapleton v The Queen (1952) 86 CLR 359, 374.
As to non-sexually explicit behaviour, Professor Brew gave evidence that conduct such as rubbing ZG’s thigh may have been the result of misreading social cues. The appellant may not have realised that such conduct would be perceived as a wrong social response.
However, despite the absence of the fresh evidence, the appellant was acquitted of the “least serious” conduct of touching ZG’s thigh (Count 2) and EO’s thighs and arm (Count 9). An obvious explanation is that the jury was not satisfied beyond reasonable doubt that the conduct was “indecent” according to ordinary community standards. The fresh evidence would have made no difference to the outcome on those charges.
The appellant submitted that the conduct the subject of Count 1 (showing pornographic slides to ZG) was also “less serious” conduct. Professor Brew said that the appellant may not have appreciated the “gravity” of such conduct and that “in his world, that may be quite acceptable”. We take this to be an assertion that the appellant’s conduct may have resulted from misunderstanding social cues and that, because of the misunderstanding, the appellant did not know that the conduct was wrong.
We disagree. We cannot see how such conduct could have resulted from misinterpreting social cues. In connection with the meeting with ZG, the appellant prepared and showed a PowerPoint slide containing pornography to her; the showing of the slide was not a spontaneous and appropriate response to any social cue that she gave once inside his room.
As to Count 3 (holding KA’s back and pulling her face towards his face), it is obvious that KA interpreted the behaviour as sexual. KA’s evidence about what happened was very brief and we do not have a full account of what occurred. Nevertheless, the jury found the behaviour to be “indecent” according to ordinary community standards because of its sexual connotations.
We accept that rubbing a person’s back is not explicitly sexual, but the alleged act of the appellant pulling a young woman’s face towards his own was strongly consistent with an intention to kiss, particularly when combined with the act of back rubbing. Although it is very difficult to explain such conduct by the misinterpretation of social cues, we are prepared to accept that as a possibility.
Could not control the conduct
At the trial, the jury found that the appellant did not control his inappropriate conduct. Whether he “could not control” it is another matter.
The circular reasoning of Professor Brew (that the nature of the behaviour itself established that the appellant could not fully control the conduct) lacks cogency in relation to showing that it was the appellant’s mental condition that rendered him so disinhibited that he was incapable of controlling his conduct.
There is a difference between reduced ability to control sexual urges and the requirement of s 28(1)(c) of “could not control”. Much criminal conduct is a reflection of difficulty abiding by social norms. In this case, the fresh evidence established that the appellant’s ability to control his urges was reduced, but the evidence did not allow for the real possibility that he “could not control” his behaviour. Further, the fact that the same type of behaviour was repeated with several students is inconsistent with an isolated loss of impulse control.
In relation to the appellant’s general proposition that the fresh evidence provided an alternative explanation for his unusual conduct (that the conduct reflected a misunderstanding of social cues and explained inappropriate responses), the appellant did not say that the “alternative explanation” informed any particular defence other than the defence of mental impairment. For example, the appellant made no submission that the fresh evidence supported a reasonable doubt about whether he was reckless in relation to consent.
Conclusions in relation to mental impairment defence
For Count 3, the fresh evidence provides the appellant with an argument that, because of mental impairment, he misinterpreted social cues and did not know that his conduct was wrong. Otherwise, the fresh evidence lacks cogency in relation to establishing any defence of mental impairment.
We consider the argument on Count 3 to be weak. More importantly, for the reasons given at [54]–[66], we are not satisfied that there has been a miscarriage of justice in relation to Count 3; the appellant presented no evidence that he would have raised a defence of mental impairment if he had known that it was available.
An acquittal on Count 3 would not have affected the strength of the tendency circumstances supporting the other charges to a degree that could have called into question any conviction. The evidence of ZG (in relation to Count 1), TL (Counts 4–8) and UU (Count 10) remained as cross-admissible evidence of the tendencies. In particular, TL gave compelling evidence that supported the alleged tendencies.
Submission b: Separate trials may have been ordered, increasing the chance of acquittal
The appellant submitted that, had the fresh evidence been available and had a mental impairment defence been foreshadowed (presumably in relation to Counts 1–3 and 9), Robinson AJ may have ordered that TL’s complaints be the subject of a separate trial.
The submission correctly assumes that, when the trials were run together, TL’s evidence provided strong support for the asserted tendencies, enhancing the prosecution case on the charges concerning the other complainants.
But the submission incorrectly assumes that, had individual charges been tried separately, the tendency evidence of other conduct would have been lost, weakening the prosecution case on the charge that was the subject of the separate trial and increasing the chance that the appellant would have been acquitted. Regardless of whether separate trials were ordered, the evidence supporting the other charges could have been called to establish a tendency that was relevant to any charge being tried. The evidence was available whether or not Robinson AJ ordered separate trials. Submission c: The tendency application may have been refused because the fresh evidence weakened the probative value of the tendency evidence and increased its prejudicial value
The appellant argued that the fresh evidence weakened the probative force of the tendency evidence; it showed that the appellant may have been motivated to organise the student meetings because he was inappropriately obsessed with plagiarism (an obsession that academic colleagues could not understand), rather than because he was creating opportunities for sexual misconduct. Further, it provided an explanation for the appellant asking the complainants questions such as “what are we going to do about [the academic consequences of cheating]”, i.e., that the appellant was inappropriately obsessed with plagiarism rather than concerned to obtain a sexual quid pro quo.
The difficulty with the first argument (that the fresh evidence provided an explanation for organising the meetings) is that—subject to the equivocations referred to below— the prosecution did not rely on an assertion that the appellant’s conduct was premeditated and the meetings were a ruse. Rather, the prosecution was neutral about whether the appellant’s conduct was premeditated or opportunistic.
Nor do we consider there to be merit in the second argument (that the appellant’s mental impairment explained insistent and inappropriate questions during the meetings). The questions asked by the appellant were not merely insistent; when understood in the context of what followed very soon thereafter, they invited a quid pro quo.
If anything, the fresh evidence enhances the probative value of the tendency evidence because it makes it more likely that the appellant would have behaved in a disinhibited way and would have acted out any desire for sexual gratification rather than controlling it.
Submission d: The fresh evidence undermined the complainants’ opinions that the appellant was intentionally making sexual suggestions
As discussed below at [178], a complainant’s opinion about the appellant’s state of mind could only be relevant to an understanding of the complainant’s conduct.
The fresh evidence makes no difference because, regardless of the fresh evidence, the complainants’ opinions about the appellant’s state of mind could not be relied upon to establish his actual state of mind. Submission e: Because of the fresh evidence, the appellant’s lawyers may have given him different advice and he may have taken different forensic decisions, particularly in relation to giving evidence
As discussed above at [54]–[66], for the reasons explained in Craig, in the absence of evidence about what the legal representatives would have done differently had they known about the fresh evidence and, more importantly, what the appellant would have done differently, it is pointless to speculate about those matters.
We now turn to consider the appeal grounds.
Grounds 1(a)—Admission of tendency evidence at the pre-trial hearing
Ground 1 alleges that there was a miscarriage of justice caused by the erroneous admission of tendency evidence.
When dealing with the tendency application, Robinson AJ observed that:
(a) As the appellant was making no admissions, whether he inappropriately touched any complainant in his office was a fact in issue: at [11].
(b) The tendency evidence had very significant probative value: at [36]. The expressed tendencies were highly specific, and the alleged actions and the circumstances surrounding those actions exhibited a very high degree of similarity in material respects (were “quite refined”); those matters informed the significance of the probative value of the evidence: at [23] and [36].
(c) There was no real risk of unfair prejudice, at least not in circumstances where the trial judge could give appropriately strong directions to the jury: at [36]. The allegation of sexual intercourse without consent had to be viewed in the context that the other allegations also concerned indecent assaults on women: at [36].
(a) Each asserted tendency (particularly the “standalone” tendency to have an intention to obtain sexual gratification from female students while alone with them in his office) was expressed so generally that it could not reach the threshold of “significant probative value”.
(b) The more serious charges of sexual penetration involving TL alleged conduct of a different nature and quality to the other charges and, when considering the other charges, the jury would have been emotionally affected by the gravity of the allegations involving TL, causing unfair prejudice.
[I]n a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. Consideration of the arguments about probative value
In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of the tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
It is well established that, usually, the generality or specificity of an asserted tendency will inform its probative value: Hughes at [40] and [64] and see also Vojneski v The Queen [2016] ACTCA 57 at [36] and [151]. A related but different consideration is the degree of similarity between the conduct relied upon to establish the asserted tendency and the conduct relied upon to establish the charge in question: R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at [49]–[50] (Simpson J). In The Queen v Bauer [2018] HCA 40 at [58], the High Court said that, in multiple complainant sexual offences cases, for the evidence concerning one complainant to be significantly probative of whether the accused offended against another complainant, “there must ordinarily be some feature of or about the offending which links the two together”. Another factor that often informs the probative value of a tendency is the temporal relationship between the tendency conduct (and hence the tendency) and the charged conduct.
We accept the appellant’s submission that evidence supporting a “standalone” tendency to have an intention to obtain heterosexual gratification from a large and ill-defined group of people would probably never satisfy the test of “significant probative value”.
However, in this case, the first alleged tendency was much more specific: it was a tendency to have an intention to obtain sexual gratification “from female students while alone with them in his office” (emphasis added). Such a tendency is quite particular and—we assume—unusual among male academic staff, regardless of whether the intention is formed before or after a student enters the academic’s office.
Further, we accept that a “standalone” tendency to think in a particular way may lack significant probative value; a person may have highly inappropriate thoughts yet refrain from acting out those thoughts. Consequently, a tendency to think in a particular way may have little to say about conduct that is an issue. On the other hand, s 97 provides for both a tendency to act in a particular way and a tendency to have a particular state of mind, thereby acknowledging the capacity for thought to result in action.
However, in this case the prosecution did not rely solely upon a tendency to have a particular state of mind. The asserted tendency to have a particular state of mind (intention to obtain sexual gratification from female students while alone with them in his office) was paired with an asserted tendency to act in a particular way (by inviting female students into the his office, meeting with them alone, using concerns about their assignments to suggest that they engage in sexual activity and making sexual advances towards them). The tendency evidence supported the paired tendencies to have a particular state of mind and act accordingly.
There was a high degree of similarity between the conduct relied upon to establish the asserted tendency to act and the conduct relied upon to establish each charge.
Consideration of the arguments about unfair prejudice
We also agree with Robinson AJ that there was little, if any, danger of unfair prejudice associated with the charges concerning TL (which asserted the more serious conduct of sexual intercourse) being heard together with those concerning the other complainants. The conduct involving TL was more serious than those relating to the other complainants, but it fell within the same spectrum of conduct. On the prosecution case, it was simply a more serious example of the same type of conduct. As observed by Nettle and Gordon JJ in IMM v The Queen [2016] HCA 14; 257 CLR 300 at [178], the nature of sexual attraction is such that it is likely to be “fulfilled on different occasions by different sexual acts of different kinds”.
It is mere speculation that the evidence of more serious sexual misconduct towards TL was unfairly prejudicial because the jury may have accorded disproportionate weight to it or been emotionally affected by it. Modern life is confronting. Juries are robust. There is no good reason to think that jurors would be so scandalised by the allegations relating to TL that they would be incapable of dispassionately determining the charges concerning the other complainants.
The decision to admit the tendency evidence was correct. Grounds 1(b) and 2—Prosecutor’s use of tendency and other evidence at the trial
These grounds require leave. They are closely related.
Ground 1(b) asserted that the pre-trial ruling on tendency evidence was binding on the prosecution under s 95 of the Evidence Act but the Crown Prosecutor used different and inadmissible tendency evidence and coincidence reasoning during the trial. In written submissions, the appellant also argued that the tendency evidence “was used in the trial in a manner that was so generalised and all-encompassing as to be incoherent”.
Ground 2 alleged that the conduct of the Crown Prosecutor caused a miscarriage of justice because he unfairly cross-examined the appellant (asserting that the meetings with students were a ruse—a proposition that he had earlier disavowed), impermissibly utilised coincidence reasoning when addressing the jury, impermissibly relied upon the complainants’ opinions concerning whether the appellant’s conduct was sexual, and caused prejudice in his closing address by employing inflammatory language and suggesting a reversal of the onus. The appellant submitted that the cumulative effect was to deny the appellant’s right to a fair trial; there was a real risk that the jury’s decision had been improperly influenced by such considerations: see, e.g., McCullough v The Queen [1982] Tas R 43, 54–58 (McCullough).
The claim that the prosecution used different and inadmissible tendency evidence at the trial is unfounded. In relation to each charged act, both upon at the pre-trial hearing and at the trial the evidence that was relied upon was the evidence of other complainants about what had happened to them.
Manner in which the prosecution approached tendency/ruse/coincidence evidence/complainants’ opinions/other matters
Moreover, there are a number of similarities in each incident demonstrative of a pattern or distinctive modus operandi. For example, each time the accused initiated contact with the complainants and requested they meet him to discuss their assignment … (Emphasis added)
Robinson AJ did not determine the tendency application on the basis that the student meetings were (or were not) arranged as part of a premeditated plan to obtain sexual gratification; that the meetings were (or were not) a ruse. At [9], his Honour referred obliquely to the issue, noting that the appellant “was either in charge of detecting plagiarism or had taken it upon himself to detect plagiarism” and that, for the purposes of the tendency application, it was unnecessary to determine the fact.
In opening to the jury, the Crown Prosecutor noted that all the students who had been questioned about plagiarism were female and said that he anticipated that a witness (an Associate Dean of the University) would say that the appellant did not have authority to investigate student misconduct. The Crown Prosecutor suggested that the jury might want to consider whether TL’s academic and language difficulties “made her particularly vulnerable to be targeted by the accused” and foreshadowed that:
[The appellant] may suggest that the girls are making it up, that nothing happened untoward in the room, perhaps because they were struggling academically at university. I don’t know but whatever the suggestions are that are put forward by [the appellant], you should consider these and consider them carefully, or does it simply suggest that these girls were perhaps more vulnerable to be targeted by him?
During the evidence of the first witness, ZG, the trial judge asked whether it was part of the Crown case that the appellant had deliberately selected particular students for interview in order to molest them. The Crown Prosecutor responded that he was “not saying one way or the other whether it was a ruse or whether they actually genuinely did have problems with their assignments. … The point is what happened in the room”. He reiterated that the prosecution case was not concerned with the appellant’s reasons for bringing the students to his room but “about what happened in the room”.
In the absence of the jury, the prosecutor repeated that the Crown did not rely upon “anything sinister about the meetings”.
The Crown called evidence from Ms Otevrel, one of the appellant’s academic colleagues, that she did not share the appellant’s concern about the complainants’ plagiarism scores because a student’s final mark depended upon the final examination and, even if an assignment was plagiarised, the assignment result did not affect the ultimate result. When the defence queried the relevance of this material, the Crown Prosecutor said that, in relation to tendency, the prosecutor did not rely on the meetings being a ruse.
The Crown called evidence from Associate Professor Pearsall (who was responsible for issues of student misconduct), who said that he had been aware of the planned interviews and had counselled the appellant “not to go too far with the questioning”. He stated that the appellant was not a prescribed authority to investigate student misconduct. Professor Sainsbury gave evidence that there were strict rules in relation to student misconduct. She suggested that the appellant’s investigations were unusual.
When discussing the relevance of exculpatory emails upon which the defence sought to rely, the Crown Prosecutor reiterated that:
There was no suggestion in the tendency that there was a motive in [the appointments being made], it was just simply factual as to what occurred.
[T]he tendencies [can] just be limited to what occurred in the office, that is, without reference to how they got there.
The trial judge confirmed his understanding that it was “not any part of” the Crown case that the appellant had brought the complainants to his room for an illegitimate purpose, and the Crown Prosecutor confirmed that position. However, defence counsel remained concerned.
The Crown Prosecutor cross-examined the appellant about why he had become involved in the investigation rather than referring it to Associate Professor Pearsall, what he had hoped to gain from interviewing the students and why he had used a smiley face emoji in an email to UU.
Defence counsel did not object to the cross-examination, and did not ask for a discharge of the jury.
In closing, the Crown Prosecutor said:
An important part of this case is what you may refer to his Honour and my friend as tendency evidence [sic]. … The Crown says that what the accused did revealed his intention to obtain sexual gratification from female students in the ways that those women told us. … Of course the accused has denied those incidents … But the Crown says that these and the other incidences [sic] that the women told us about show the accused’s intention to obtain sexual gratification from them. His willingness to act on it by using concerns about their assignment, probably because they were more susceptible and that will be a matter for you to decide, to make sexual advances on them … You may think it’s significant that each of the women didn’t know that the accused had molested the other women that we’ve heard from, they didn’t know he was sexually attracted to them. It seems that they still don’t know the details about each other. You may think that the likelihood that his sexual conduct occurred on several occasions in a similar manner and in relation to five separate women makes it significantly more likely that he acted in the way in respect of each of the individual charges on the indictment. Can I also suggest that it tends to rebut the accused’s self-serving claim that we heard today and on Friday that the incidents simply didn’t happen. (emphasis added)
showed his willingness to act on [his interest in female students] using the concerns about assignments to make sexual advances on them.
Of course some of us may think that the incident with [EO] was innocuous … but can I suggest that when it’s seen in the context of all of the other evidence, of all of the other evidence of what the women have told us, the accused’s sexual attraction to female students, of using concerns about their assignment to make sexual advances on them, the inference is that his touch on [EO]’s thighs had a sexual connotation and was indecent …
Did the Crown Prosecutor impermissibly raise the spectre that the meetings were a ruse?
The prosecution case on the pre-trial tendency application did not involve an assertion that the appellant called meetings with students as a ruse designed to provide him with an opportunity to engage in indecent behaviour.
But there is a difference between disavowing reliance on the meetings being a ruse as part of the tendency case and conceding that they were not a ruse as part of the trial.
Throughout the trial, the Crown Prosecutor left open the possibility that the meetings were a sham, although he also made it plain that it did not matter to the prosecution case whether they were or were not a sham as the prosecution case was about what occurred in the appellant’s office, not whether there was a legitimate reason for the students being there. Early in the Crown case, the Crown Prosecutor made it clear that he was “not saying one way or the other whether it was a ruse or whether they actually genuinely did have problems with their assignments … The point is what happened in the room”.
In opening, the Crown Prosecutor observed that the students were all overseas female students who were struggling academically and that they may have been “vulnerable to be targeted”. The expression “targeted” suggests premeditation and could be seen to invite the inference that the students had been asked to attend the meetings not because of concerns about plagiarism but to provide an opportunity for the appellant to engage in indecent behaviour.
The evidence of the appellant’s academic colleagues to the effect that it was not the appellant’s role to deal with plagiarism and they were not particularly concerned about plagiarism was of limited relevance except to the extent that it supported premeditation i.e., it suggested that the meetings were a ruse.
The Crown Prosecutor’s cross-examination of the appellant about why he had become involved in the investigation, what he had hoped to gain from interviewing the students and why he had used a smiley face emoji in an email to UU were undoubtedly designed to explore the possibility that the meetings were a ruse; part of a premeditated plan to secure opportunities to engage in sexual misconduct.
Similarly, in his closing address the Crown Prosecutor referred to the appellant “using his concerns about assignments to make sexual advances”, implying that the appellant’s concerns about plagiarism had been fabricated from the outset.
We accept that, throughout the trial, the Crown Prosecutor kept alive the spectre that the meetings were a ruse. However, we consider that it was open to him to do so while also emphasising that premeditation was not an essential part of the prosecution case.
The trial judge directed the jury:
A very important matter for you to remember is that the Crown does not allege the five students were somehow specifically selected. The Crown accepts that there was a reason to speak to the students, even if that reason was later shown to be without substance and a product of the limitations of the URKUND analysis.
This direction may reflect an unduly narrow view of the way in which the prosecution had put its case. However, it was to the appellant’s advantage that the direction focused the jury on what had occurred in the appellant’s office and discouraged the jury from finding that the meetings had been a ruse to provide an opportunity for sexual misconduct.
The appellant submitted that the circumstances of the present case were similar to those in Patel v The Queen [2012] HCA 29; 247 CLR 531 (Patel), where the prosecution had narrowed its case late in the trial, rendering irrelevant highly prejudicial evidence. At the trial, much of the evidence had not been the subject of objection. When the case was narrowed, the appellant had not asked the trial judge to revisit earlier rulings and had not sought directions to address the resulting prejudice. The High Court observed that, had the prosecution focused at the outset on the relevant issues, the trial would not have assumed the dimensions that it did and there would not have been a miscarriage of justice that occurred: at [119]. The appeal was allowed and the Court directed a new trial.
We do not agree that the circumstances of the present case are similar to those in Patel. In this case, the prosecution did not narrow its case; throughout the trial, the Crown Prosecutor’s position was that the meetings may or may not have been a ruse but that the focus of the prosecution case was on “what happened in the room”.
The way in which the prosecution used “ruse” did not prejudice the appellant. Throughout the trial, the appellant’s counsel engaged with the possibility that the appellant’s conduct was premeditated and the meetings were a ruse. In opening, defence counsel said:
Members of the jury, the defence position is that there was nothing sinister on the part of Mr Hoyle in arranging these meetings with the students. As I said, they had a context and, indeed, you have heard that he denies that any indecency or sexual assault occurred at all. What I can tell you is that the credibility of these five students regarding those alleged acts in this trial is very much an issue.
In her closing submissions to the jury, defence counsel made eight primary submissions. Her first submission was that the appellant had not deliberately selected students for indecent purposes. She developed this point by reference to the evidence of Ms Otrevel and emails that had been tendered by the defence. In her second submission, defence counsel addressed any suggestion that the appellant had called the meetings for a nefarious reason. She directed the jury to the evidence showing that there was a proper academic reason for the appellant to have called the meetings.
We conclude that the Crown Prosecutor did not impermissibly raise the spectre that the student meetings were a ruse and were designed to enable him to engage in sexual misconduct. Throughout the trial, defence counsel engaged with that possibility.
Did the Crown Prosecutor impermissibly encourage coincidence reasoning?
You may think it is significant that each of the women didn’t know that the accused had molested the other women …. You may think the likelihood that his sexual conduct occurred on several occasions in a similar manner and in relation to five separate women makes it significantly more likely that he acted in the way in respect of each of the individual charges on the indictment.
The appellant complained that such statements directly invoked coincidence reasoning, suggesting that the complainants’ evidence should be believed because it was too much of a coincidence to think that they would independently have fabricated such similar stories.
The respondent submitted that the impugned statements did not focus on the improbability of the complainants making similar false allegations and did not invite coincidence reasoning. Rather, the statements were to the effect that the similarities in what each complainant said had happened to her enhanced the probative value of the tendency evidence.
In theory, there is a clear difference between coincidence and tendency reasoning.
Coincidence reasoning involves a direct comparison of two or more similar events. It reasons that the events are so similar that it is improbable that they happened coincidentally. It may refer to a “modus operandi” or a “pattern of conduct”.
On the other hand, tendency reasoning is indirect. It looks to whether evidence establishes a tendency to act in a particular way or have a particular state of mind. If the tendency is established, the tendency becomes a circumstance that may inform whether a charged event occurred. Theoretically, evidence of conduct that is quite different from the charged conduct may nevertheless support a tendency that is probative of whether the charged conduct occurred. In practice, evidence of conduct that is similar to the charged conduct is more likely to support a specific tendency that is significantly probative of whether the charged conduct occurred. This practical consideration may encourage shortcut reasoning: that conduct on one occasion is probative of whether very similar conduct occurred on another occasion.
In Saoud v The Queen [2014] NSWCCA 136; 87 NSWLR 481 at [43], Basten JA commented on the difficulty of separating the concepts of tendency and coincidence in cases where the issue is not the identity of the alleged offender but the occurrence of the alleged events. In Hughes at [43], the Court noted the possibility of overlap between tendency and coincidence reasoning where the prosecution sought to rely on the improbability of several complainants falsely making similar allegations of sexual impropriety.
The appellant’s criticism of the Crown Prosecutor’s address—that he invited coincidence reasoning—is well-founded. This was an “overlap” case in which the Crown Prosecutor erroneously invited the jury to engage in shortcut reasoning that confused tendency and coincidence reasoning.
However, nothing could have turned on this error.
First, in the circumstances of the trial, the distinction between tendency reasoning and coincidence reasoning was subtle and likely to be lost on any jury. For example, there could have been little complaint if the Crown Prosecutor had inserted the following italicised words into the impugned submission:
You may think the likelihood that his sexual conduct occurred on several occasions in a similar manner and in relation to five separate women makes it significantly more likely that he had the asserted tendencies and therefore acted in the way in respect of each of the individual charges on the indictment.
This correction would have had no impact on the way in which the jury dealt with the issue.
Second, defence counsel drew the Crown Prosecutor’s error to the attention of the trial judge. The trial judge accepted that the prosecution had invited coincidence reasoning. His Honour then indicated the direction that he proposed to give in order to correct the Crown Prosecutor’s error. Defence counsel agreed that the proposed direction was appropriate. In the direction, the trial judge distinguished between tendency and coincidence reasoning. The adequacy of the manner in which the trial judge dealt with tendency and coincidence reasoning is considered at [208]–[219] below.
Did the Crown Prosecutor erroneously rely on the complainants’ opinions about the appellant’s motive?
The Crown Prosecutor led evidence relating to KA and ZG to the effect that, in their opinion, the appellant’s actions were sexually motivated. In his closing address, the Crown Prosecutor referred to the complainants’ opinions that, in acting as he did, the appellant was seeking sexual favours.
The appellant submitted that the Crown Prosecutor should not have asked the complainants for their opinions and should not have addressed the jury on the complainants’ opinions to the effect that the appellant was seeking sexual favours.
Insofar as it was relevant to understand the conduct of a complainant (e.g. why she submitted to sexual behaviour or delayed in making a complaint), the prosecution was entitled to elicit the evidence. However, the evidence was not admissible in relation to the appellant’s state of mind.
In address, the Crown Prosecutor referred briefly to the opinions of the complainants that the appellant was impliedly asking for sexual favours. It is not obvious that the references were designed to aid an understanding of the complainants’ behaviour.
We accept that, in his closing address, the Crown Prosecutor erred in the manner in which he utilised the opinions of the complainants. However, the references were very brief. They were not the subject of complaint by defence counsel. We infer that defence counsel considered the references to be unimportant and made a forensic decision that she would not object. We agree with that approach and consider that the prosecutor’s erroneous but brief references to the opinions of the complainants would have had no impact on the jury.
Submissions on expert evidence admitted under s 108C Evidence Act
[H]is Honour will tell you that Professor Parekh’s evidence [about delayed complaint by some victims of sexual assault] provides a structure and method of analysis to assist you in determining whether or not the girls’ behaviour and reports are consistent with sexual abuse.
We agree that this submission was an overstatement. Associate Professor Parekh’s evidence was that delay in making a complaint was not inconsistent with sexual assault. Her evidence was admitted because it could assist in the assessment of the complainants’ credibility. It did not provide “a structure and method of analysis”.
We note that, during the voir dire about whether Associate Professor Parekh’s opinions should be admitted under s 108C of the Evidence Act, the trial judge indicated that he was against the prosecution’s submission that the expert evidence could be used “as a framework for understanding or finding [the facts]”. At least, in address, the Crown Prosecutor did not say that the expert evidence was directly relevant to fact-finding.
The overstatement by the Crown Prosecutor was made when he was addressing the jury about the behaviour that might be expected of victims of sexual assault. Consequently, we consider that the reference to “structure and method of analysis” would have had no impermissible impact on the jury.
Colourful and emotive language
The appellant complained that, in closing submissions, the prosecutor emotively invited the jury to “put themselves in the shoes” of the complainants for the purpose of understanding that they may have been shocked, afraid and ambivalent about reporting an incident.
The appellant conceded that the prosecutor was entitled to refer to evidence that explained why, from a complainant’s perspectives, she delayed in making a complaint. The appellant focussed his submission on the language that was used.
At the trial, defence counsel did not object to the language used by the prosecutor.
We do not consider that the Crown Prosecutor’s language was unduly colourful or that it exceeded the bounds of legitimate advocacy: for example, compare it to the language discussed in Finn v The Queen [2018] VSCA 228 (Finn) at [53]–[54], which the Victorian Court of Appeal held was acceptable.
Cross examination of the appellant and submissions criticising his evidence
In cross-examination, the Crown Prosecutor asked the appellant whether he had tailored his evidence to meet statements in the brief of evidence. The appellant submitted that he should not have done so as the question implied that there was an onus on the appellant.
We do not accept the appellant’s submission. The question was open-ended. No objection was taken. At another point in the evidence, a similar question was asked, objected to and withdrawn.
In address, the Crown Prosecutor characterised the appellant’s evidence as “unsatisfactory and … pretty much self-serving” and referred to the appellant’s “self-serving claim” that the incidents did not happen (see [144] above).
The appellant said that those submissions undermined the presumption of innocence, particularly because (as the jury knew) the appellant was legally trained, and that the comments invited prejudice and scorn.
We agree that the submissions should not have been made. They advanced the nonsensical proposition that the jury should disbelieve the appellant simply because he denied the allegations. They encouraged circular reasoning.
However, the Crown address preceded both the defence address (unlike the position in McCullough) and the trial judge’s directions. The trial judge directed the jury:
However, the fact that [the accused] has given evidence does not alter the burden of proof. The accused does not have to prove his version is true. The Crown has to satisfy you that the account given by the accused should not be accepted as a version of events that could reasonably be true.
Argument about latent duplicity
The appellant complained that there was latent duplicity in counts 3, 4 and 7. Each involved several acts. The appellant submitted that the jury was encouraged to reason towards guilt if it found that one act had occurred and was not required to agree on the act that had occurred.
This was not relied upon as a separate ground of appeal, but on the basis that it “compounded the injustice” relevant to consideration of ground 1(b). We take the argument to be that, if it is unclear which of two physical acts was accepted beyond reasonable doubt, then the probative significance of the act and its usefulness in supporting a particular tendency is also unclear.
Count 3 involved KA. It included both touching of hands and pulling her face towards his face in what she thought was an attempt to kiss. Count 4 involved the touching of TL’s leg and the touching of her breast. Count 7 included both contact with TL’s breast and kissing.
At the trial, the defence raised the question of latent duplicity.
The trial judge ruled:
It is correct that acts in this case can be distinguished and could have led to separate charges for each act. That, however, would have been a most unsatisfactory position with the accused having to face a multiplicity of charges. In my view, the reasons that given in [Sims v Drewson [2008] ACTSC 91; 2 ACTLR 307], it is appropriate to the Crown to proceed in the manner that it has. The two acts in each respective count are really part of the same course of conduct and in my view it would impose to onerous a task on a jury to make a distinction about which of the separate acts amounts to the indecent act. For that reason I decline to direct the Crown to nominate the particular act.
The “armchair” argument about the impact of latent duplicity on tendency is opaque and technical. At the hearing of the appeal, it was not further developed. It was not raised before Robinson AJ. We doubt that it has merit. If the jury was satisfied that one of two acts occurred and that act was indecent, then that act could be used to establish the asserted tendencies, and it was the tendencies that were relied upon to establish the charged conduct, not the acts that sat behind the tendencies.
We decline to take this matter into account.
In combination, did the Crown prosecutor’s errors cause a miscarriage of justice?
In presenting a case against an accused person, a prosecutor must act with “fairness and detachment”: Whitehorn v The Queen (1983) 152 CLR 657, 663 (Deane J). A prosecutor should always address the jury in a manner that is “scrupulously fair”: Bugeja v The Queen [2010] VSCA 321; 30 VR 493 (Bugeja) at [56] (Weinberg JA). For example, a prosecutor should not appeal to prejudice or make an intemperate or emotional attack on the accused, and should not mislead the jury into considering a dubious theory: Bugeja at [57] and [63].
However, failure by a prosecutor to adhere to the highest standards will not result in a new trial unless there has been a miscarriage of justice: Smith v The Queen [2018] VSCA 139.
In determining whether there has been a miscarriage of justice, it is usually important to consider the extent to which the trial judge’s directions have cured any impropriety. In Finn at [49], the Victorian Court of Appeal held that, as the trial judge had corrected the erroneous impression created by the prosecutor’s final address (which had tended to reverse the onus of proof and to endorse an invalid reasoning process), it was unrealistic to think that the jury could have been misled or wrongly influenced by the prosecutor’s remarks.
We have found most of the appellant’s complaints about the Crown Prosecutor’s conduct during the trial to be unsubstantiated or very minor (when considered in context). The three substantiated matters are that, in address, the Crown Prosecutor invited the jury to engage in coincidence reasoning, referred to the opinions of the complainants in an inappropriate manner and invited the jury to disbelieve the appellant simply because he denied the allegations. Further, it is our overall impression that the Crown Prosecutor’s conduct of the trial was not always as detached as perfection would counsel.
We turn to consider whether the trial judge’s directions cured any prejudice associated with Crown Prosecutor’s relatively minor errors and slightly overenthusiastic prosecution of the matter (when considered in combination) or whether, on the other hand, those matters resulted in miscarriage of justice.
As stated at [192] above, the trial judge’s directions cured any difficulty associated with the prosecution submission criticising the appellant’s “self-serving” denial of the allegations. For the reasons set out below in relation to ground 1(c), we conclude that the trial judge’s directions about tendency and coincidence reasoning adequately addressed any confusion created by the Crown Prosecutor’s submissions. The other matters of which the appellant complained (reference to the opinions of complainants and slightly overenthusiastic prosecution) were minor and could not have affected the outcome of the trial.
We accept that a combination of minor improprieties by a Crown Prosecutor may result in a miscarriage of justice: Finn at [66]. However, we find that in this case they did not.
Ground 1(c)—Adequacy of jury directions about tendency and coincidence in the context of the way in which the prosecution was run
As noted at [173] above, prior to the commencement of the summing up, defence counsel asked the trial judge to correct the Crown Prosecutor’s invitation to engage in coincidence reasoning. In response, the trial judge provided counsel with a document designed to address the issue. Defence counsel agreed that the proposed direction was appropriate. We have not seen the document, but we infer that the trial judge’s direction accorded with it.
Despite this apparent concession as to the adequacy of the direction, the appellant submitted that the trial judge’s directions on tendency were inadequate, first, because his Honour failed to identify those parts of the Crown address where reliance had been placed on coincidence reasoning, and failed to explain how coincidence reasoning was impermissible. The appellant’s second complaint about the trial judge’s directions was that his Honour failed to link the alleged tendencies with the supporting evidence. Third, the appellant submitted that the directions were inadequate to remedy the unfairness caused by the Crown Prosecutor’s ambivalence about premeditation, and whether premeditation in arranging the student meetings was part of the prosecution case on tendency.
In relation to tendency evidence and coincidence reasoning, the trial judge directed the jury as follows:
I told you that each count is separate and you must reach a separate verdict on each count. It is, however, possible to use your findings on a particular account to assist you in reaching a conclusion on other counts. Before I explain what I mean by tendency I want to remind you of an important point which I think I’ve already actually made and that is that the Crown’s case relies on what occurred in the office. It is not part of the Crown’s case that there was no proper reason for those complainants to be interviewed by the accused and you will remember as has been pointed out, that some of the students were actually referred by Ms Otevrel. The Crown’s case is made up of the events that are alleged to have happened once the door of that office was closed. The inappropriate words that were spoken, the inappropriate actions that are said to have been taken, those words and actions form the basis of the Crown case. I don’t want to confuse you but bear in mind please that this area of tendency law is different to what is sometimes called coincidence evidence. Coincidence evidence occurs where there is such a significant similarity between the acts and the circumstances in which they occurred that is highly improbable that the events occurred simply by chance; that is, by coincidence. … Let me give you an example, a classic example … you have a cat burglar who breaks into five places and steals jewellery, he enters through a window and breaking it in exactly the same way and leaves a rose on the jewellery box in every one; that you might think is something called coincidence evidence. It’s not the situation here and you mustn’t reason on that basis. The Crown’s submission here is that once female students were alone with the accused in his office, he used concerns about their assignments to suggest that they engage in sexual activity with him and/or he also made sexual advances. The Crown then says there is a pattern of behaviour that reveals the accused’s tendency to act in a particular way. Before you can use the evidence in this way you have to make two findings first. The first one is that you must be able to conclude beyond reasonable doubt that the act relied upon as tendency evidence actually occurred … If you find one or more of the acts occurred and you’re satisfied about it beyond reasonable doubt, then you go to the second condition. You must ask yourselves whether from the facts that you have found proved you can conclude beyond reasonable doubt that the accused had the tendency that the Crown alleges. If you cannot draw that conclusion, you must put aside any suggestion that the accused had the tendencies alleged by the Crown. … You cannot use the evidence in any way which is prejudicial to the accused unless you accept the Crown’s argument that it discloses a tendency and therefore makes it more likely that the accused committed the other offences charged against him.
The distinction between coincidence reasoning and tendency reasoning may be difficult to grasp and it may be challenging for a trial judge to clearly explain tendency reasoning to a jury.
However, in this case, the explanation given by the trial judge did not confuse coincidence and tendency reasoning. It would have been quite obvious to the jury that the evidence before them did not disclose a highly distinctive modus operandi equivalent to a cat burglar leaving a rose, and that this was not a coincidence case. The trial judge explained that the jury must be satisfied of two matters beyond reasonable doubt before they could reason that the accused had a tendency to act in a particular way. His Honour did not endorse the shortcut reasoning proposed by the Crown Prosecutor, which confused coincidence reasoning and tendency reasoning. As noted above, defence counsel expressly agreed with the proposed direction before it was given, and she did not seek redirection after it was given.
It was not necessary for his Honour to identify those parts of the Crown address where reliance had been placed on coincidence reasoning. To do so would have been to emphasise an error that probably escaped the jury.
Nor do we accept the submission that the trial judge failed to remedy the unfairness caused by the way in which the Crown Prosecutor dealt with premeditation and the meetings being a ruse. The trial judge stated:
A very important matter for you to remember is that the Crown does not allege the five students were somehow specifically selected. The Crown accepts that there was reason to speak to the students, even if that reason was later shown to be without substance and a product of the limitations of the URKUND analysis. The Crown says that what was inappropriate, in fact, criminal, is what happened once the students were in the room and essentially after they sat down.
As noted at [155]–[156] above, this direction was favourable to the defence because, while the Crown did not rely on premeditated meetings as a necessary part of its tendency case, in relation to particular charges it did not abandon that possible interpretation of the meetings.
The appellant’s second complaint about the trial judge’s directions was that his Honour failed to identify the alleged tendencies and the evidence relied upon to establish the tendencies.
A similar complaint was made about Robinson AJ’s pre-trial ruling on tendency evidence. The reasons that we dismissed that aspect of the complaint about the pre-trial ruling are set out at [121]–[123] above. For those reasons, we also reject this complaint.
We conclude that the directions given by the trial judge removed any confusion about proper tendency reasoning (as opposed to coincidence reasoning), the substance of the prosecution’s tendency case or the way in which the jury could use evidence suggesting that the meetings may have been a ruse to provide an opportunity for sexual misconduct.
Consequently, we conclude that any error on the part of the Crown Prosecutor was remedied by the trial judge’s directions, ensuring that there was no miscarriage of justice.
Ground 3—Admission under s 108C of the Evidence Act of expert evidence about a “freeze response” and delay in reporting sexual misconduct
The appellant submitted that the trial judge had erred in the manner in which he applied s 108C of the Evidence Act, and should not have admitted evidence from Associate Professor Parekh describing a “freeze response” that is exhibited by some sexual assault victims and explaining the reasons that victims of sexual assault may delay reporting sexual misconduct.
Section 108C(1) provides:
108C Exception—evidence of people with specialised knowledge (1) The credibility rule does not apply to evidence given by a person about the credibility of another witness if— (a) the person has specialised knowledge based on the person’s training, study or experience; and (b) the evidence is evidence of an opinion of the person that— (i) is completely or substantially based on that knowledge; and (ii) could substantially affect the assessment of the credibility of the witness; and (c) the court gives leave to present the evidence.
192 Leave, permission or direction may be given on conditions … (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it must take into account— (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and (b) the extent to which to do so would be unfair to a party or witness; and (c) the importance of the evidence in relation to which the leave, permission or direction is sought; and (d) the nature of the proceeding; and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
Freeze response
Associate Professor Parekh gave evidence that a victim of sexual violence may experience a “freeze response”, when the person feels unable to move or paralysed.
The appellant contended that the evidence should not have been admitted: it was not relevant because there was no “live issue” in the trial about consent; it was not expert evidence; it did not satisfy the s 108C test of “could substantially affect the assessment of the credibility of the witness”; and the trial judge had failed to address the s 192 leave considerations. The appellant submitted that the evidence was damaging to the appellant because it bolstered the credibility of TL by suggesting that there was scientific evidence supporting her account.
At the trial, defence counsel objected to the evidence about a “freeze response”, principally on the bases that Associate Professor Parekh lacked the expertise to give a psychological opinion, and that the evidence lacked relevance because the defence case was not one of consent or apparent consent.
On the appeal, the appellant abandoned the contention that Associate Professor Parekh lacked appropriate expertise.
We accept that, as the appellant’s case at trial was that the conduct did not occur, the expert evidence was not relevant to a defence of consent; it was not relevant to any argument that a complainant must have consented because she did not protest the conduct at the time. The evidence concerning the “freeze response” could have been important to meet a defence case of consent.
However, Associate Professor Parekh’s evidence about a “freeze response” was relevant to the jury’s assessment of the credibility of TL. Although, at the trial, the prosecution submitted only that the evidence of a “freeze response” was relevant to an assessment of TL’s credibility, it was probably also relevant to an assessment of UU’s credibility.
TL’s evidence was to the effect that she had done little and said nothing while she was being sexually assaulted and that she had felt unable to do anything because she was so scared. UU gave evidence that she “couldn’t feel anything” and was unable to speak or act because she was scared.
The credibility of each complainant was critical to the outcome of the charges concerning her. Without the expert evidence, the jury may have reasoned that a complainant’s counterintuitive behaviour (her admitted failure to protest the appellant’s inappropriate conduct) made no sense and undermined her credibility: MA v The Queen [2013] VSCA 20; 40 VR 564 at [22].
We disagree with the appellant’s submission that the evidence concerning a “freeze response” impermissibly “bolstered the credibility of [TL] by suggesting that there was some scientific evidence which supported her account”. The evidence explained conduct of the witness that, to lay jurors, may have seemed counterintuitive and reflecting poorly on the witness’s credibility.
Delayed complaint
The trial judge allowed the Crown Prosecutor to ask Associate Professor Parekh about the general barriers to reporting sexual assault and the fact that peer-reviewed literature showed that delay or failure to report sexual violence was common among victims of sexual violence. The evidence was said to be relevant to a delay in complaint by TL and UU.
On the appeal, the appellant maintained two submissions. First, the appellant submitted that, although it was relevant, the evidence did not satisfy the s 108C requirement that it “could substantially affect” the assessment of the credibility of complainants because it relied upon one study that referred to only 35 women. Second, the appellant submitted that the trial judge had erred in admitting the evidence without considering the mandatory s 192 leave considerations.
The appellant’s submission that Associate Professor Parekh’s opinion was based solely on one limited piece of research was erroneous. The witness’ knowledge about barriers to disclosure was derived from both clinical practice and published literature.
As the evidence was based on extensive clinical experience as well as limited published literature, in our view it was capable of “substantially affecting” the credibility of the complainants who failed to make an early complaint. It served to neutralise the intuitive view that a delay in complaint suggested that there is nothing to complain about.
There was no formal grant of leave and no consideration of the matters that were required to be considered under s 192 of the Evidence Act. However, this oversight was not the subject of objection.
On the appeal, no s 192 consideration was said to have weighed against the grant of leave. In our view, had the trial judge considered s 192, his Honour would have been obliged to grant leave.
Ground 4—Adequacy of directions on onus of proof and motive to lie
Liberato direction
The appellant submitted that, given the issues at the trial, the trial judge should have given a “Liberato direction”, i.e., if the jury did not positively believe the accused’s evidence, they could not convict him if his evidence gave rise to a reasonable doubt on an issue: Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J).
The trial judge directed the jury as follows:
As you have heard, in a criminal trial the Crown must prove the guilt of the accused. The accused does not have to prove anything. Specifically an accused person does not have to prove his innocence or her innocence. An accused person does not have to prove any reason or motive for any witness to say whatever that witness may have said. The prosecution must prove the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge unless and until the prosecution proves him guilty beyond reasonable doubt … Now, the prosecution does not have to prove the truth of every statement of every witness, or at least every prosecution witness. What the prosecution must prove beyond reasonable doubt is each legal element or ingredient of the particular charge … The accused was not obliged to give evidence, but having entered the witness box you should examine his evidence in the same way as you examine that of any other witness. However, the fact that he has given evidence does not alter the burden of proof. The accused does not have to prove his version is true. The Crown has to satisfy you that the account given by the accused should not be accepted as a version of events that could reasonably be true. You should remember that the accused has denied the offences, that he has said he was legitimately looking into the anomalies in the assignments produced by the five students, that he was fully entitled to do so, and that when he did so, he did no more than talk to the students about their assignments and the results of their URKUND reports.
First, if you believe the evidence of the accused, obviously you must acquit. Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit. Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of the evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
In circumstances where a Liberato direction was desirable but was not given, the question is whether the jury may have been left in real doubt about how they should approach the burden and standard of proof if they disbelieved or were inclined to disbelieve the evidence of the accused.
In this case, the jury could have had no real doubt about how they should approach the burden and standard of proof if they disbelieved the appellant’s evidence or were so inclined. The trial judge made it quite clear that the onus was on the prosecution to prove the guilt of the appellant and he did not have to prove anything.
Failure to direct that the jury could accept parts of the evidence and reject parts
The appellant also submitted that the jury should have been told that they could accept parts of the appellant’s evidence and reject other parts. The appellant said that the failure to give such a direction might mislead the jury into taking an “all nothing” approach to the appellant’s evidence.
It is difficult to see how such a direction could have applied in the circumstances of the case. For example, should the jury have been told that, if they rejected the appellant’s evidence contradicting one complainant, they could nevertheless treat his evidence as raising a reasonable doubt in relation to the evidence of another complainant?
In multi-faceted cases, the direction may be helpful, or even necessary. This was not such a case.
Motive to lie
The appellant submitted that the directions about the complainants’ motive to lie were inadequate; the jury should have been directed that, regardless of whether a motive to lie (to address the consequences of plagiarism) was or was not established, they could not convict unless they were satisfied beyond reasonable doubt of the truth of the complainants’ critical assertions: South v The Queen [2007] NSWCCA 117 at [42]–[43].
In an associated complaint, the appellant submitted that, although the possible motive to lie had been put to prosecution witnesses and they had denied lying for that motive, the trial judge had failed to direct the jury in accordance with R v Jovanovic (1997) 42 NSWLR 520. A Jovanovic direction is to the effect that, even if the jury does not accept that a witness was motivated to lie for a reason suggested by the accused, that does not mean that the witness is necessarily telling the truth: Jovanovic at 521– 522 (Priestley JA) and 535 (Sperling J), Popovic v The Queen [2016] NSWCCA 202 at [218] (R A Hulme J).
In this case, a motive to lie was put to the witnesses. Prompted by an exchange with the trial judge, defence counsel put to ZG that she had fabricated the allegations because she had cheated in her assignment and she was worried that she might fail. ZG denied that allegation. It was put to KA that she had copied from her boyfriend’s essay and had made up the allegations so that she did not get into trouble for copying the essay. KA denied that allegation.
As stated at [246] above, the trial judge directed the jury:
An accused person does not have to prove any reason or motive for any witness to say whatever that witness may have said. His Honour also directed the jury:
[I]t’s not up to the accused to come up with an explanation about why the complainants’ evidence may be unreliable, it’s up to the prosecution to prove the case. It comes back to whether you accept the complainants’ evidence about the critical evidence beyond reasonable doubt.
In those directions, the trial judge made it clear to the jury that there was no onus on the appellant to establish any motive to lie and that, regardless of whether a motive to lie was or was not raised, the core issue was whether they accepted the critical aspects of the complainants’ evidence beyond reasonable doubt.
Ground 4 lacks merit. Unsurprisingly, the points raised on appeal were not canvassed at the trial.
Conclusion
We are not satisfied that there has been a substantial miscarriage of justice in the sense that the appellant has lost a real chance of an acquittal: Mraz v The Queen (1955) 93 CLR 493, 514 (Fullagar J).
In relation to grounds (1)(b)–(c) and 4, leave is refused.
In relation to ground (2), leave to appeal is granted.
The appeal is dismissed.
I certify that the preceding two hundred and sixty-two [262] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justices Burns and North.
Associate:
Date:
Hoyle
The Queen [2018] ACTCA 42
(1986) 160 CLR 392
(1978) 142 CLR 659
(1985) 159 CLR 507
(1955) 93 CLR 493
(1997) 42 NSWLR 520
(1974) 131 CLR 511
(1952) 86 CLR 359
(1983) 152 CLR 657
In this case, the expert evidence is “fresh evidence”. On the appeal, there was no dispute that, at the time of the trial, the evidence was known neither to the appellant nor to his legal advisers. In addition, the evidence was constructively unavailable. The appellant’s condition had affected his insight into his own circumstances. It is difficult for persons who lack any medical qualification (such as the appellant’s lawyers) to appreciate that inappropriate behaviour may be symptomatic of brain injury.
The further evidence contained in expert reports was admitted on the appeal.
In addition, we permitted the appellant to lead further evidence by way of oral evidence from Professor Brew and Dr Lonie for the purpose of supplementing the report evidence, assessing its cogency and deciding whether, if the jury had found that the fresh evidence was plausible and had considered it together with the other evidence at the trial, it is reasonably possible that the accused would have been acquitted.
The respondent briefly cross-examined both expert witnesses.
There was no dispute that the fresh evidence was credible.
We proceeded to consider whether a miscarriage of justice was established on the basis that, if the fresh evidence had been called at the trial, there is a reasonable possibility that the jury would have acquitted the appellant on any count.
In Craig, the High Court distinguished the decision from Sankar v State of Trinidad and Tobago [1995] 1 WLR 194, in which the accused had not pressed his wish to give evidence at trial because he had not wanted the jury to see him arguing with his counsel. Because the account was not put before the jury, the accused had no answer to the prosecution case. The Judicial Committee of the Privy Council found that there had been a miscarriage of justice. At [27] of Craig the High Court said:
The conduct the subject of the remaining counts involved explicitly sexual touching (touching of a breast, kissing or intercourse). In oral evidence, Professor Brew stated that explicit sexual behaviour such as touching a breast could not be explained by dysexecutive syndrome, i.e., the appellant’s mental impairment did not prevent him from knowing both the nature and quality of such conduct and that it was wrong.
Although he expressed that opinion in oral evidence, in his report Professor Brew had opined that the appellant did not know that his explicitly sexual conduct was wrong.
As stated at [51] above, the view that Professor Brew expressed in the report was not really a matter of expert opinion; rather, it was a deduction from stated circumstances. It was based on the facts that the conduct was brazen, the appellant did not urge the complainants to remain silent and he left the venetian blinds open.
For the following reasons, we accept the opinion that Professor Brew expressed in oral evidence but reject the opinion that he expressed in his report.
First, we do not agree that the degree to which conduct is objectively brazen is a significant factor in determining whether a person does not know that their conduct is wrong. Second, the fact that the appellant did not urge the complainants to “keep it quiet” may be consistent with lacking appreciation that the conduct was wrong, but it does not provide significant affirmative support for that proposition. The lack of urging to “keep it quiet” must be weighed against the thinly veiled threats that the complainants said were made to the effect that their academic status was at risk and (impliedly) they should comply without making any complaint. Finally, as stated above, the evidence was equivocal about whether the venetian blinds were open or closed at the time of the events in question.
We note that if, as the jury found, the alleged conduct did occur, then the appellant’s vehement denials of the conduct were consistent with him knowing that the conduct was wrong.
In relation to prejudicial effect, the appellant submitted that his condition meant that it was unfairly prejudicial to rely on inappropriate social behaviour to imply sexual motivation.
We reject the argument. It begs the question of whether the appellant’s behaviour was inappropriate social behaviour or inappropriate sexual behaviour. In any event, except in relation to Count 3, the jury accepted that the appellant’s inappropriate but not sexually explicit behaviour may not have been sexually motivated; he was acquitted of Counts 2 and 9.
Any prejudice associated with the appellant’s mental condition was allied with its probative value and was not an “unfair prejudice”.
The tendency conduct (which was also the charged conduct) occurred within a short timeframe in April 2015; there could be no argument that an earlier tendency may have diminished or vanished by the time of any charged event, or that a later tendency may not have existed at an earlier relevant time.
Having regard to the specificity of the asserted tendencies, the degree of similarity between the conduct relied upon to establish the asserted tendencies and the conduct relied upon to establish each charge, and the temporal relationship between the tendency conduct and the charged conduct, we reject the appellant’s submission that it was not open to Robinson AJ to find that the tendency evidence had significant probative value. Indeed, we agree with Robinson AJ that the tendency evidence had very significant probative value.
The appellant complained that Robinson AJ erred in the manner by which he evaluated the probative value of the tendency evidence because his Honour failed to precisely articulate the logical connection between the tendencies and the facts at issue in the trial.
The facts at issue were whether, on a number of occasions over a 10 day period in April 2015, the appellant indecently touched (or sexually assaulted) each complainant. The logical connection between a tendency to have an intention to obtain sexual gratification from female students while alone with them in an office and the performance of acts which necessarily involve the seeking of sexual gratification from female students while alone with them in an office is so obvious that it does not need to be articulated. Similarly, a tendency to act out such an intention during a particular and brief timeframe obviously informs whether such conduct occurred within that timeframe.
Consequently, there was no need for his Honour to precisely articulate the logical connection between each tendency and the facts at issue in the trial.
As to the argument that the tendency evidence “was used in the trial in a manner that was so generalised and all-encompassing as to be incoherent”, we take this to repeat the arguments made in relation to the pre-trial ruling, which we have rejected at [116]– [118] above.
Associate Professor Parekh’s evidence was the very sort of evidence that s 108C was designed to enable, i.e., it was evidence led to explain witness behaviour that might otherwise reflect adversely on the witness’ credibility. The purpose of the provision is to allow evidence that is “educative”; that may assist the jury to evaluate the credibility of a witness: De Silva v The Queen [2013] VSCA 339; 236 A Crim R 214 at [26].
Under s 108C(1)(b)(ii), the expert evidence was admissible only if it was capable of “substantially” affecting the assessment of the credibility of the complainants.
The trial judge did not specifically consider whether Associate Professor Parekh’s evidence was capable of “substantially” affecting the assessment of TL’s credibility and his Honour’s attention was not drawn to that s 108C requirement.
In our view, the evidence was capable of substantially affecting the assessment of the credibility of TL; it may have been important to an assessment of her credibility. Any argument to the contrary should have been made at the trial.
Under s 108C(1)(c), the prosecution required leave to call the evidence at the trial. In determining the leave question, the trial judge was required to consider the matters set out in s 192 of the Evidence Act. His Honour did not do so. However, at the trial, the question of leave was not raised by the parties. It was not the subject of any objection or submission to the trial judge.
A failure to consider s 192 may constitute an error of law: Stanoveski v The Queen [2001] HCA 4; 202 CLR 115 (Stanoveski) at [47] (Gaudron, Kirby and Callinan JJ). Whether a conviction will be allowed to stand depends upon whether the respondent can establish that the trial judge could not have reasonably refused to grant leave if the relevant provisions had been taken into account: Stanoveski at [56] (McHugh J). In Thompson v The Queen [2017] ACTCA 44 at [11], this Court rejected a ground of appeal that relied upon a failure to consider s 192, observing that counsel for the appellant had been unable to identify any s 192 matter that could have made a difference to the exercise of the discretion.
In our view, had the trial judge considered s 192, there is little doubt that his Honour would have granted leave. The evidence was short and narrow in compass. It did not involve any unfairness to the appellant. It was important to the credibility of the complainants. No issue of an adjournment arose.