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[2017] VSCA 309
Court of Appeal (Vic)
2017-10-26
Mr J, Maxwell P, Ashley JA
Original judgment source is linked above.
[2017] VCC 1331 (Judge Murphy)
CRIMINAL LAW - Appeal - Interlocutory appeal - Joint trials - Severance - Evidence - Admissibility - Coincidence evidence - Multiple charges of rape - Multiple complainants - Consent in issue in each case - Whether evidence of complainants as to absence of consent cross-admissible - Whether probative of accused's state of mind - Evidence not cross-admissible - Appeal allowed - Indictment severed - ; applied - - , , , .
1 Before the prosecution in a criminal trial seeks to rely on coincidence evidence, it is essential that there be clear identification of the fact(s) in issue to which the evidence is said to be relevant. Only then can a proper assessment be made, as required by ss 98 and 101 of the Evidence Act 2008 (the 'Act'), of:
2 The applicant is facing multiple counts of rape[2]. There are six separate complainants. But the only facts in issue in each case are consent and belief in consent. The prosecution contends that none of the complainants consented to sex with the applicant and, further, that he was aware in each case of the absence of consent.
3 The coincidence notice, however, was drawn in the broadest of terms. The fact in issue, in each case, was stated to be 'Did the offending occur?'. And the evidence sought to be relied on covered the entirety of each complainant's interactions with the applicant, from their first encounter through an on-line dating site.
4 As explained below, those circumstances were, in themselves, unremarkable. Moreover, they were not in dispute. It is common ground that the applicant met each complainant on-line and that subsequently there was sexual intercourse between them in his apartment. The prosecution relied on what was said to be a pattern in the applicant's method of contacting, and arranging to meet, the various complainants. But the similarities relied on have no probative value in relation to the issue of whether or not an individual complainant was consenting.
5 More fundamentally still, as we later conclude, the prosecution sought to rely on the fact that all six complainants allege an absence of consent as enhancing the credibility of each individual complainant's allegation to that effect. Reasoning of that kind was discredited by the High Court in Phillips v The Queen.[3] Evidence of absence of consent is simply not cross-admissible for that purpose. That is so even when, as here, the evidence of absence of consent is said to be probative also of the accused's state of mind.
6 In the present case, the judge ruled that each complainant's evidence of the entire circumstances - including that she was not consenting to sex - was cross-admissible, and that all of the charges should be heard together. The applicant sought leave to appeal from that ruling.
7 At the conclusion of argument, we announced that the appeal would be allowed, the ruling set aside, and an order for severance made. We said we would publish our reasons in due course. These are those reasons.
8 The grounds upon which the applicant relies, as particularised, are as follows:
(a) In finding that the evidence was relevant and admissible on the issue of consent and the applicant's belief in consent;
(b) In finding that the probative value of the evidence sought to be led substantially outweighed the prejudicial effect of the evidence;
(c) In finding that the complaints of the first, second, third and sixth complainants were not contaminated such as to affect the significance of their probative value.
The circumstances generally described. Matters in issue
9 The offending is alleged to have taken place in the period 30 March to 21 May 2015. The applicant made contact with each complainant via one or other of a number of dating websites. That he did so is not in issue.[4] Nor is it in issue that:
10 What is in issue in each case is consent and belief in consent. Each complainant alleges that she did not consent to the sexual activity, although one of them says that she had consensual sexual intercourse with the applicant, but did not consent to further sexual activity.
11 The applicant denies absence of consent. He further asserts that, in any event, he had what may be shortly described as a reasonable belief that each complainant was consenting.[5]
12 Two of the complainants allege that the applicant unlawfully imprisoned them in his apartment in the course of their encounters. The applicant denies that he unlawfully imprisoned either of those complainants.
13 The prosecution filed an Amended Notice: Coincidence Evidence (the 'Notice') dated 24 July 2017. Its substance was as follows:
FACT(S) IN ISSUE TO WHICH THE EVIDENCE RELATES
The charged events are related in time, in context and in purpose. The events which are the subject of the above groups of charges are related having regard to the following similarities:
14 According to Table A, the relevant facts in issue, in the case of all 23 charges, are 'Did the offending occur?'. In our view, that very broad description obscured the issues for trial as identified in formal documents filed by the parties. The defence had filed a response to prosecution opening as early as 3 November 2016 which identified consent as the issue for trial on the rape charges. An amended defence response to prosecution opening, dated 3 August 2017, additionally made reference to the issue of reasonable belief in consent. Both documents identified the issue for trial with respect to the false imprisonment charges as being whether there had been any such imprisonment.
15 Notwithstanding that it is for the prosecution to prove each element of an offence, it is regrettable, in our opinion, that the notice at no stage was amended so as to respond to the issues identified for trial. In any case involving coincidence reasoning, it is critical to clearly articulate the purpose of the reasoning - that is, the conclusion that is said to flow from the asserted coincidence. It is only then that the relevance and, if relevant, the probative value of the coincidence evidence can be properly assessed.
16 The judge described what he characterised as 'extensive' similarities of and surrounding the commission of the alleged offences, as identified by the prosecutor, this way:
The similarities identified by the prosecution are extensive as set out in the Coincidence Notice and the submissions. While there are dissimilarities and not all the common features apply to all six complainants, there is a strong similarity in relation to all the complainant[s] that provide strength or cogency to the inference sought - that is, that each complainant is telling the truth.
The common feature is that in relation to all complainants, the accused went in a very short time from an online relationship to a sexual encounter.
In relation to all the complainants, the accused is said to have met them on various dating websites and escalated their relationship very quickly by manipulation to have the respective complainant in his apartment. This manipulation involved, in at least one case, a misrepresentation.
In relation to complainant one, the accused sought to separate her from her friend. They went walking, she thought to a Café. The accused told the first complainant that this was for privacy reasons. He then walked her into his apartment where he provided her with a glass of orange juice, and directed her to drink half a glass of straight gin. The accused then raped her.
In relation to complainant two, she noted that the accused had been 'very full on' in their discussions online. After joining the second complainant and her friend at a trivia night, the accused met with the second complainant for coffee the next day, where the accused told her that he wanted them to 'get serious'. He then walked her home and held her hand the entire way. Three nights later, on 24 April 2015, the accused met with the second complainant again. After meeting at [a] bar, the complainant went to her house, however, the accused insisted that they go to his apartment. The complainant agreed and took a bottle of rum with her to the accused's apartment. It is then that the accused allegedly raped the second complainant. The complainant states that she found the accused to be pushy.
In relation to the third complainant, they met at the nearby tram stop and agreed to go to his apartment to work on her resume. The accused continually asked the complainant whether she liked him, and whether she wanted to be his girlfriend. Upon arriving at the accused's apartment, the accused is alleged to have raped the complainant.
In relation to the fourth complainant, the accused and complainant agreed to meet at a café. As it transpired, the address given to the complainant for the café was in fact just near his apartment. The accused brought the complainant into his apartment so he could get changed before walking to a café. Whilst inside the apartment, the complainant accepted a cup of tea from the accused, but found it to have been spiked with alcohol. It is then alleged that the accused falsely imprisoned the complainant and raped her.
In relation to the fifth complainant, it was originally agreed that the accused would meet the complainant at Flinders Street Station. However, the accused rang the complainant and told her to meet at the tram stop near his apartment as he had woken up late. The accused met the complainant at the tram stop, and walked her to his apartment before allegedly raping her.
In relation to the sixth complainant, prior to her arriving in Australia, the accused told her that she could stay in his two-bedroom apartment until she found a place of her own to stay. Upon arriving in Melbourne, the complainant made her way to the tram stop near the accused's apartment where she met the accused. The accused then held the complainant's hand until they returned to his apartment, which was in fact a bedsit, as opposed to a two-bedroom apartment as he had indicated.
The accused stated that he would sleep on the floor, and the complainant would sleep in the bed. That evening, the accused and complainant had consensual intercourse before the complainant left and had dinner with her friends.
The next morning, the accused got into the bed where the complainant was sleeping. As he tried to touch her, she repeatedly told him that she didn't want to. It is then alleged that the accused raped her.[6]
17 The judge noted pertinent submissions of defence counsel this way:
Contrary to what was put by the learned Crown prosecutor, senior counsel for the accused referred to various interactions between some of the complainants and the accused on social media before they met in person, and, in the case of the second and third complainants, there had been a social interaction before the alleged assault. The accused also referred to the sixth complainant and the fact that the accused and her had consensual intercourse the day prior to the alleged assault.
...
Without referring to all the differences alluded to by the accused, he submitted that not all of the complainants were in fact from non-English speaking backgrounds, particularly in the sense that the sixth complainant had been in Australia previously. Similarly, the fourth complainant had also previously been in Australia. Further, the second complainant had lived in New Zealand since age 9 (she was 29 at the time of the alleged offence), and both the second and fourth complainant[s] appeared to be in secure employment and could not be said to have been vulnerable in that sense.
The accused relied on Murdoch (a pseudonym) v The Queen where Priest JA, said at [102]:
For the most part, what were said to be similarities were features which would characterise almost any allegation of sexual offending against a young girl, or were so non-specific ... as to reveal nothing distinctive about any particular alleged act. They were 'in reality, unremarkable circumstances that are common to sexual offences against children'.
...
The accused submits that a number of the matters relied on are unremarkable and do not advance the prosecution case. The use of social network or dating sites is common. It is not uncommon for people after meeting on such sites to then arrange to meet in person. It is unremarkable that, on the first occasion, the parties proceeded to intercourse. The fact that it occurred in the apartment of the accused is also unremarkable in that it required a private place.
Further, in relation to the first, second and sixth complainants, there had been a social interaction prior to returning to the accused's apartment before the alleged assault. The use of alcohol with social interaction is also unremarkable.
Further, there was no real commonality in relation to the non-English speaking background in that the second, third and fourth complainant[s] had been in Australia for some time, and thus, could not be seen to be vulnerable on the basis that they had just arrived.[7]
18 The judge noted that the prosecution sought to lead the evidence as coincidence evidence not in proof of absence of consent, but in proof of the state of mind of the applicant with respect to each complainant's consent.[8] But then his Honour said this:
Thus, the end to which the prosecution is seeking to elicit coincidence evidence is to enhance the credibility of each of the complainant['s] account that she did not consent, and that the accused had the relevant mental state.[9]
As will appear, this was an accurate description of the twin purposes for which the prosecution wished to lead the evidence.
19 The judge expressed these conclusions with respect to 'similarities':
Notwithstanding the criticisms going to each individual complainant, there is still a 'unity' or 'nexus' between each complainant and the accused.
The offending took place all in the one apartment, it occurred over a narrow period of time and there was a commonality of forward activity or moving toward intimacy both in the text exchanges and once the parties met in person. While considered individually, this could be explained by the accused as seeking early intimate friendship in circumstances where he had recently arrived in Australia. On the other hand, that six separate females over a narrow period all accuse him of sexual assault in the same apartment, having each of them only very recently made his acquaintance, does call to mind that the offence could bear the characterisation of Heydon J in Stubley v The State of Western Australia[10] where his Honour said at [143]:
That is because to many people - perhaps not all, and perhaps not all jurors, but at least many people who have not been afflicted with the cynicism characteristic of hard-bitten and experienced criminal lawyers - an allegation that a psychiatrist was engaging in sexual intercourse with a female patient suffering from a mental disturbance which it was his duty to treat would seem so serious and inherently unlikely as to be startling, outlandish and far-fetched to the point of being bizarre. It would seem so bizarre, in the absence of corroboration, that it would be extremely difficult for the prosecution, in a case of oath against oath about conduct taking place in secret, to exclude a reasonable doubt.[11]
While Stubley was a case of tendency evidence, here, on the prosecution case, six independent complainants are alleging that they were raped by the accused on their first date or very early in their relationship. While it might not be uncommon for a rape allegation after a first sexual encounter, it is uncommon for there to be six such accusations involving one person.[12]
(We pause only to note that Heydon J dissented in Stubley).
[I]t is difficult to disaggregate the issue of the consent of the complainant(s) and the mental element of the accused, where the prosecution is required to prove all elements of the offence beyond reasonable doubt.[13]
21 His Honour expressed prima facie conclusions favourable to the prosecution, including a conclusion that the evidence sought to be relied upon by the prosecution as coincidence evidence had significant probative value.[14]
22 That took the judge to Phillips, upon which counsel for the applicant had relied. His Honour distinguished Phillips on the footing that, whilst it was held there that the evidence of other complainants that they did not consent to sexual activity with the accused had no probative value on the question whether a particular complainant did or did not consent, the Court did not address the question whether the evidence of the other complainants was cross-admissible upon the question of the accused's state of mind in the case of the particular complainant. That question was not addressed because, his Honour held, paragraph 55 of the reasons in Phillips, which referred to the mental state of the accused, was to be regarded as 'obiter dicta and not persuasive'.[15]
23 The judge summarised the way in which the evidence of the complainants would be cross-admissible in the present case this way:
For these reasons, I do not regard Phillips as preventing the use of the evidence from all of the complainants in the manner sought by the prosecution. The mental element of the accused to be proven by the prosecution is inseparable from the complainant's mental element or lack of consent that the prosecution is also required to prove. The evidence of the complainant's lack of consent, and the evidence that each complainant will give regarding the lead up to the alleged assault will allow probability reasoning as to whether the accused was aware that the complainant was not consenting or might not be consenting.[16]
The probability reasoning is available to assess whether or not they are all fabricating their account of their lack of consent and following that, the accused's awareness of that lack of consent.[17]
24 The judge also dealt with an issue of contamination raised by the applicant. Four of the six complainants had been approached by the informant, having been identified from text messaging found on the applicant's phone. Before volunteering any information to the police, each of them was told that other women had made complaint against the applicant. It was contended for the applicant that this bore upon the question of 'significant probative value' or was relevant to the balancing exercise necessary under s 101(2) of the Act.
Insofar as the concessions that were obtained in cross-examination at the committal hearing, which indicate that the complainants had obtained information about the accused, including that he was the subject of other allegations, I am satisfied that it is a matter for a jury to assess whether this has impugned the credibility and veracity of the individual complainants' evidence.
It was not asserted by the accused that there had been cross-contamination between the individual complainants that I have referred to. Thus, even if, which I do not accept, that it could be said that the statements were initially prompted by the informant suggesting that the accused had other allegations against him, that cannot amount to impugning the individual complainants' coincidence reasoning that is sought to be extracted. In those circumstances, I do not regard the issue of any suggested contamination as affecting the issue of significant probative value.[18]
26 Finally, the judge considered and rejected the applicability of s 101 of the Act. He considered that, the jury following instructions, it would confine itself to probability and not improper propensity reasoning.
(1) In reliance upon Phillips, the evidence of one complainant that she did not consent to sexual activity with the applicant is not relevant and admissible on the question whether another complainant consented, or upon the issue of the accused's reasonable belief in consent.
(3) The judge's reliance on State of Western Australia v Osborne[20] as supporting his conclusion that the evidence of each complainant could be used to rebut the defence of honest belief in consent was misplaced.
(4) The judge's reliance on Wilson v The Queen[21] was also misplaced.
28 Next, on the assumption that - subject to the above admissibility argument - the evidence of the complainants contained sufficient similarities to constitute coincidence evidence, it was submitted that:
(1) The judge erred by assessing the probative significance of the evidence in part by considering its value in proof of absence of consent,[22] which is impermissible.
(2) With respect to the probative significance of each complainant's evidence as bearing upon the applicant's belief in consent in a particular instance, the judge did not consider, as he must have done, the differing circumstances of the applicant's interaction with the particular complainant.
29 Next, upon the question whether the probative value of the evidence substantially outweighed its prejudicial effect, counsel submitted that:
(1) Probative value was tied to the uses to which the judge considered the evidence could be put. Since he treated the evidence as admissible on two issues, he overweighed its probative value.
(2) The probative value of the evidence as bearing upon reasonable belief in consent was infected by the judge's failure to fully analyse the features of each count.
30 As to the 'contamination' argument, counsel submitted that:
(1) An evidentiary foundation had been identified for the contamination of the evidence of four of the six complainants. The prosecution adduced no, or no adequate evidence to rebut contamination. The judge's ruling to the contrary was not supported by the circumstances.
(2) The current state of the authorities[23] is that a judge is required to take into account the possibility of contamination when assessing the probative value of proposed evidence.
31 With respect to ground one - which complains that the judge wrongly failed to sever the indictment, it was submitted that severance should have been ordered for either of two reasons:
(1) The evidence of any particular complainant is not cross-admissible in the applicant's trial concerning another particular complainant; or
(2) even if the impugned evidence is cross-admissible, it is only so for the purposes of considering the 'belief' element and cannot be admissible as bearing upon the 'consent' element. To allow the evidence to go to the jury on this limited basis limits the probative value of the impugned evidence and creates a very high risk of prejudice through impermissible tendency reasoning.
(1) Absent specific error - and here there was none - House v The King[24] principles apply when considering an application for leave to appeal from an interlocutory decision.
(2) Sections 55, 98 and 101 of the Act are a legislative framework for the consideration of coincidence evidence. Common law principles and language have no part to play.
(3) The judge correctly identified the elements of the charge of rape.
(4) The prosecution submitted below that the evidence of the complainants was cross-admissible as going to the applicant's state of mind. The judge had accepted this.
(5) The judge had concluded that there were similarities between the events and circumstances in relation to each complainant so that an inference could be drawn that they were not coincidental.
(6) The judge correctly distinguished Phillips, which was a general law case directed to lack of consent.
(7) The evidence of the complainants was cross-admissible to prove that they had given truthful evidence.
(8) The judge correctly determined probative value and prejudicial effect on the basis that the prosecution relied upon the evidence of the complainants to establish awareness of lack of consent.
(10) In any event, the matters relied upon by the applicant were insufficient to establish even a reasonable possibility[28] of concoction.
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(We do not ignore s 55(2)(a)).
34 One of the elements which the prosecution must prove on a charge of rape is that the complainant did not consent to the impugned conduct. Phillips is clear authority for the proposition that the evidence of one or more other complainants is inadmissible on the question whether a particular complainant consented to conduct amounting to rape.[29] The relevant passage is in these terms:
Evidence by other complainants that they had not consented to the sexual acts allegedly performed on them by the appellant had no more probative value than evidence by them that they had not consented to the performance of sexual acts on them by persons other than the appellant. Like the evidence of the other complainants in this case, evidence of that kind may demonstrate some 'propensity' in particular complainants, but it demonstrates nothing about the appellant.[30]
35 This Court must apply Phillips.[31] Rightly, the Crown did not seek to argue the contrary in this Court; or, indeed, to preserve its position. It follows that, in this prosecution, the evidence of the complainants is not cross-admissible on the issue of consent. It is thus incapable, by cross-admissibility, of assisting the credibility of their individual accounts. The evidence does not meet the admissibility test set up by s 55 of the Act.
36 Next, Phillips does say something about the issue of an accused's reasonable belief in consent. As we have earlier noted, the judge below dismissed what was said in that connection as obiter dicta that was not persuasive.
37 In Phillips, having concluded that the evidence of the complainants with respect to consent was not cross-admissible, their Honours dealt with an alternative argument raised by the Crown, based upon what would now be called, assuming relevant similarities, coincidence evidence.[32] Their Honours concluded that the evidence relied upon by the Crown did not meet the common law test for the admissibility of similar fact evidence. In that connection they stated that:
In this case none of [the common law criteria] are met - either on the issue whether in relation to any particular charge the appellant committed the acts of assault or intercourse alleged, or on the issue of whether he did so being honestly and reasonably mistaken about consent.[33]
38 With respect to the judge in the present case, what was said there was not obiter dicta. The Court was addressing an argument which, had it succeeded, would have resulted in the appeal being dismissed. At the same time, we do not think that their Honours' conclusion necessarily excluded the possibility that evidence might be cross-admissible in a particular case in proof of an accused's state of mind.
39 The judge in this case described the issues of consent and reasonable belief in consent as being inseparably linked. In a practical sense, that may be accepted. The question then becomes: what does that say about cross-admissibility if, in a particular case, evidence bearing upon the accused's state of mind is determined to be cross-admissible?
40 There is a question as to what, in fact, the judge decided by his ruling. There are two possible interpretations. The first is that the evidence of the complainants that they did not consent to sexual activity with the applicant could be adduced in evidence in the case of a particular complainant - not in proof of that complainant's absence of consent, but as bearing upon the question of the applicant's reasonable belief in consent, in the event that the jury concluded that there had been no consent by that complainant. The alternative interpretation is that, because the issues of consent and reasonable belief in consent were inseparably linked, the evidence of all other complainants bearing upon consent and reasonable belief in consent was cross-admissible in the case of a particular complainant upon both issues.
41 If the judge's ruling is to be understood as adopting the first analysis, serious questions would arise both with respect to ss 98(1)(b) and 101 of the Act. If the ruling is to be understood as adopting the second analysis, then it infringed Phillips. Although the matter is not clear-cut, and accepting a judge's ruling should not be read as if it was a statute, we think that the better view is that the judge did adopt the second, impermissible, analysis. Paragraphs 33, 71 and 75 of the ruling are in point.
42 Additionally, the prosecution written submissions placed before his Honour support this view. In relevant part the submission stated as follows:
The coincidence evidence goes to the accused's state of mind.[34] In this case:
(a) ...
(b) ...
(c) ...
(d) It is improbable that six women, who do not know each other, would independently and coincidentally make false allegations of rape against a man with whom they had had consensual sexual intercourse shortly beforehand;
(e) It is therefore improbable, when considering the prosecution evidence and the sequence of events as a whole ... the accused would not have had an appreciation that the complainants were not consenting or might not be consenting given their evidence of how they communicated their lack of consent;
(f) ...
(g) ...
43 As can be seen, the contention in paragraph (d) was that the credibility of an allegation by one complainant that she did not consent to sex with the applicant would be enhanced by the fact that five other complainants each make the same allegation of absence of consent. That is precisely the form of reasoning which was discredited in Phillips. The word 'therefore' in paragraph (e) shows that the impermissible reasoning from evidence of absence of consent was to be relied on as a stepping-stone to reasoning about the applicant's statement of mind.
44 His Honour accepted the submission that this sequential approach was permissible. That is clear from his Honour's conclusion:
The probability reasoning is available to assess whether or not they are all fabricating their account of their lack of consent and following that, the accused's awareness of that lack of consent.[35]
45 It follows that the ruling is affected by specific error. As can be seen, his Honour concluded, contrary to Phillips, that the jury could take into account the evidence of all complainants about absence of consent in assessing whether an individual complainant was 'fabricating' her account of lack of consent.
46 As we have said, the evidence of one complainant's lack of consent cannot inform the issue of consent in the case concerning another complainant. The Phillips principle is not in dispute in this appeal. Senior counsel for the respondent specifically accepted this proposition at the commencement of his oral submissions (despite its apparent tension with paragraphs (d) and (e) of the written submissions reproduced above).
47 In the event that his Honour's ruling intended to apply the first analysis - namely the evidence of lack of consent could be adduced as going, not to the issue of consent, but to the issue of the applicant's belief in consent - then in our view the purported coincidence evidence is equally inadmissible, but for different reasons. First, the purported similarities, as set out in paragraphs (1)(a)-(g) of the Notice above,[36] are as consistent with consensual sex as with non-consensual sex. Whilst there are similarities (and some dissimilarities), they do not bear upon the issues of consent and belief.
48 Had the coincidence notice been drafted more carefully, it may have been more obvious that the asserted similarities were either irrelevant or only marginally relevant to the facts in issue. Modus operandi similarities will often be highly relevant to prove identity, or disputed conduct relevant to consent, but in this case, in our view, there is no fact in dispute on which these similarities have any bearing. Thus, there is either no or very little probative value to the coincidence evidence for the purposes of the s 98(1)(b) analysis.
49 Secondly, in his analysis of the 'significant probative value' as required by s 98(1)(b), his Honour stated that it was appropriate to consider the evidence of all the complainants 'in the trial of each other ... as having significant probative value, and therefore meeting the requirements of s 98.'[37] His Honour then said:
I am satisfied it is relevant to the mental state of the accused, given the similarity of circumstances in which each complainant came to be in the accused's apartment, then in each circumstances where each complainant is denying consensual sex.[38]
50 As we have observed, the circumstances leading up to the various episodes in the applicant's apartment are essentially neutral. In our view, the circumstances of the alleged rapes vary quite markedly. The only real similarity is that on five other occasions (to the event being considered), sexual penetration has allegedly occurred without consent. Analysed logically, and ignoring any impermissible tendency reasoning, we doubt whether the other five separate episodes truly inform the issue of the mental state of the accused on a particular occasion to a significant degree.
51 A close scrutiny of the circumstances of each episode demonstrates real dissimilarities. There are differences in the way sex is initiated with each complainant; consensual foreplay occurring on occasion; consensual sex on another prior to allegedly non-consensual sex; and risqué text message interactions with other complainants both before and after the charged events. It is sufficient for present purposes to state that, in our view, there are significant differences in the various complainants' accounts, which tend to limit the extent to which each complainant's account can bear relevantly on the applicant's state of mind when making sexual contact with another complainant. If his Honour took this first approach, which we doubt, we consider that he may have overvalued the probative value of the 'lack of consent evidence', by failing to take proper account of the dissimilarities to which we have referred.
52 Assuming the probative value of the coincidence properly analysed is relatively modest, in our view it could never be said that it outweighs any 'prejudicial effect it may have on the [applicant]', as provided by s 101 of the Act. There is a high risk, in our view, that a jury would find the most immediate and attractive use of the coincidence evidence to be that prohibited by Phillips.
53 We consider that a direction along the lines of:
you may not use the fact that the other five complainants claim lack of consent in the issue of whether the sixth complainant consented, but you may use it to assess his response to that sixth's lack of consent,
would require a quite unrealistic level of mental gymnastics. It follows that we consider the prejudicial effect of the coincidence evidence, even after direction, as very high.
54 What we have said is enough to show that his Honour's analysis was infected by more than one specific error. In these circumstances, it is unnecessary to say anything about the issue of possible contamination of the evidence of a number of the complainants.
55 Specific error having been demonstrated, we concluded that leave to appeal should be granted, the appeal allowed and the interlocutory decision set aside.
56 We concluded that there should be a separate trial with respect to each complainant. It was accepted by counsel below, and in this Court, that this ought be the outcome if we held that the complainants' evidence was not cross-admissible. It was also common ground that the two charges of false imprisonment should be dealt with separately from each other and each on the same indictment as relevant other charges that relate to the particular complainant.
[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and certain other people.
[2] And two charges of false imprisonment.
[3] [2006] HCA 4; (2006) 225 CLR 303 ('Phillips').
[4] As emerges from successive defence responses to summary of prosecution opening; and the same applies to other matters not put in issue.
[5] Section 38 of the Crimes Act 1958 relevantly provides that the offence of rape is committed if a person 'sexually penetrates another person' (Element 1), this penetration was intentional (Element 2), without that person's consent (Element 3), while being aware that the person is not consenting or might not be consenting, or did not give any thought as to whether the person was not consenting or might not be consenting (Element 4). For convenience, we shall refer to this fourth element at times as the 'belief' element.
[6] DPP v [Jacobs] (Ruling [No 1]) [2017] VCC 1331 (Judge Murphy) ('Ruling') [14]-[24].
[7] Ibid [26], [35]-[36], [41]-[43] (citations omitted).
[10] [2011] HCA 7; (2011) 242 CLR 374 ('Stubley').
[11] Stubley [2011] HCA 7; (2011) 242 CLR 374, 416 per Heydon J.
[22] The applicant adverted to Ruling [13], [14], [32], [33] and [75].
[23] Counsel cited Murdoch (a pseudonym) v The Queen [2013] VSCA 272; (2013) 40 VR 451.
[25] (2016) 257 CLR 300, 317 [59] ('IMM').
[26] [2013] VSCA 272; (2013) 40 VR 451 ('Murdoch').
[28] Murdoch [2013] VSCA 272; (2013) 40 VR 451, 455 [7].
[29] Phillips [2006] HCA 4; (2006) 225 CLR 303, 318-319, [46]-[50].
[31] Which was referred to without any criticism in Stubley [2011] HCA 7; (2011) 242 CLR 374, 381 [15], 391 [62].
[32] Phillips [2006] HCA 4; (2006) 225 CLR 303, 319-320, [51]-[52].
Jacobs (a Pseudonym)
The Queen [2017] VSCA 309
(2006) 225 CLR 303
(2011) 242 CLR 374
(2011) 33 VR 340
(2013) 40 VR 451
(1936) 55 CLR 499
(2016) 257 CLR 300