Murdoch (a Pseudonym) v The Queen [2013] VSCA 272

Murdoch (a Pseudonym) v The Queen [2013] VSCA 272 - VSCA 2013 case summary — Zoe

[98]

His Lordship there posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible. Indeed we think that must be right. Similar fact evidence is circumstantial evidence ... In Sutton Dawson J expressed the view, with which we agree, that to determine the admissibility of similar fact evidence the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence, and ask whether there is a rational view of the evidence that is inconsistent with the guilt of the accused.

In cases such as the present the similar fact evidence serves two functions. Its first function is, as circumstantial evidence, to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue. In relation to both functions the evidence, being circumstantial evidence, has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence. That rational view - viz. joint concoction - is inconsistent both with the guilt of the accused person and with the improbability of the complainants having concocted similar lies. It thus destroys the probative value of the evidence which is a condition precedent to its admissibility.

Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction. That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience. It is not a matter that necessarily involves an examination on a voir dire. If the depositions of witnesses in committal proceedings or the statements of witnesses indicate that the witnesses had no relationship with each other prior to the making of the various complaints, and that is unchallenged, then, assuming the requisite degree of similarity, common sense and experience will indicate that the evidence bears that probative force which renders it admissible. On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible. Of course there may be cases where an examination on the voir dire is necessary, but that will be for the purpose of ascertaining the facts relevant to the circumstances of the witnesses to permit an assessment of the probative value of the evidence by reference to the consideration whether, in the light of common sense and experience, it is capable of reasonable explanation on the basis of concoction. It will not be for the purpose of the trial judge making a preliminary finding whether there was or was not concoction.

In the present case it is clear from the evidence that the several complainants had a close relationship as well as opportunity to concoct their accounts of the offences charged. One complainant was ill disposed towards the applicant even before the events the subject of the counts in the indictment were said to take place. There is no feature of the case which displaces concoction as a reasonable explanation of the several accounts. The evidence of the several complainants lacked the requisite probative force necessary to render it admissible as similar fact evidence in relation to the other offences charged. There was therefore a miscarriage of justice by reason that the evidence was wrongly admitted and by reason of the refusal of the application for separate trials.

[155]

The prosecution has led evidence that the accused engaged in sexual activities with two of his natural daughters, being [GC] and [RC], in circumstances the prosecution says that were similar. That is, where both were under the ages of 18 when the offending occurred against them. That there was this modus operandi, which is a pattern of conduct really - don't get too bogged down in the terms - of isolating them from others to enable him to commit the offences charged. Of using innocent seeming situations and then behaving, such as asking them about their knowledge of sexual history of events and so on, and then using that as a prelude to the sexual offending against them.

So the prosecution says that there's this pattern of condu_c_t. ...

Now the prosecution argues that the similarities of that evidence from [GC] and [RC] mean ... that it is improbable that the alleged offences in Charges 1 to 11 occurred by coincidence. I remind you [defence counsel] at the start of this trial set out the matters in issue and he was saying well look, you can't use it as the prosecution want you to use it because it's the product of collusion, concoction, it's a set up - you've all heard what he said.

...

So as you'll understand, the prosecution argument is that it is improbable that all these events in Charges 1 to 11 involving both complainants occurred by coincidence. That's the prosecution's submission, with the two complainants.

Instead the prosecution says you can use the unlikelihood of coincidence to draw inferences - and I'll direct you more about inferences later, but the prosecution says you can use the unlikelihood of coincidence to draw inferences, being that the offences alleged in Charges 1 to 11 were committed. Secondly, that it was the accused who committed them. Thirdly, that the accused was acting voluntarily when he committed the offences. Fourthly, the prosecution says you can use the unlikelihood of coincidence to infer that the accused had a particular mental state when he committed the offences and also you can infer that [GC] and [RC], the complainants, have given truthful evidence, says the prosecution. ...

You can only infer that both complainants have given truthful evidence if you're satisfied beyond reasonable doubt that their accounts are so similar that they can't be explained by coincidence. In such a situation you might infer that the only reasonable explanation for the similarities is that each of the complainants, [GC] and [RC], are telling the truth. ...

Now it's for you to determine whether or not [GC] and [RC] were telling the truth, however you may only draw the inference that the prosecution wants you to bring or to draw from the fact that they both gave such similar accounts if you are satisfied beyond reasonable doubt that their accounts were not contaminated in any way, that there wasn't collusion, that there wasn't concoction.

... If you think there's possibility that their evidence was contaminated by concoction or collusion or getting their heads together then you may not draw the inference the prosecution wants you to draw. Remember that while the accused raised that matter of collusion, of concoction through [defence counsel] the onus of proof is on the prosecution at all times to prove that it wasn't concoction and collusion, all right?

[179]

[39] The real vice in the directions (or lack of them) given to the jury, so it was submitted, lay in the failure of the trial judge to tell the jury of the 'conditions required to exist' before the jury were entitled to use the evidence of one complainant as support for the evidence of another, or to entitle them to use the evidence of the complainants, if accepted, as bearing upon the objective improbability of the six of them giving the evidence which they gave, if it were untrue. Thus it was contended that the judge, having admitted the evidence on account of its underlying unity' was bound to direct the jury that they could only use the evidence of one if they found that such 'underlying unity' existed. Thus, it was said, the jury should have been directed that they could only use the evidence if they were satisfied that it revealed the necessary 'similarities' or 'unusual features' or 'system or pattern' such that it raised, as a matter of common sense, the objective improbability of the alleged conduct occurring in a manner other than that contended for by the prosecution.

[40] In my opinion, the judge was not bound to give the type of direction to which I have referred in the preceding paragraph. I agree with the submission made by counsel for the respondent in this Court that the matters referred to are criteria of admissibility of the evidence of 'similar fact', and that it is no part of the trial judge's function to invite the jury to 'second guess' his determination that the evidence was relevant and admissible, and probative of facts in issue. It is the relevant purpose for which the evidence is admitted, and not the reasons for determining its admissibility, which should dictate the directions as to the use which the jury is entitled to make of it. If the judge was in error in admitting the evidence then, no doubt, an appellate court will say so and determine, on that basis, whether a miscarriage occurred. However, once the evidence has been admitted as probative of facts in issue, the function of the trial judge is to direct the jury as to the uses to which such evidence can and cannot be put. That is what the trial judge did here. He told the jury, correctly in my view, that (on the assumption that they accepted the evidence as reliable and excluded any possibility of concoction or collusion) they could use it in support of the complainant whose evidence they were considering, or as bearing upon the improbability of six persons telling similar lies. Relevantly, that was the probative force capable of being assigned to the evidence as a whole.[104] However, the judge was also bound to tell the jury that they could not engage in the impermissible use of propensity reasoning; namely that they could not reason from a finding that the accused had committed an offence against the complainant, whose evidence they were considering, that he was therefore the kind of person who was likely to have committed an offence against another. This the judge also did. I am, thus, of the opinion that the judge correctly perceived the purposes for which the evidence of all complainants could, and could not, be used, and adequately instructed the jury as to the use which they could make of that evidence; and the purpose for which they could not use it.[105] For the judge to have instructed the jury that they could only use the evidence of one complainant in support of the evidence of another if they were satisfied that there was an 'underlying unity', or a 'strong similarity', or a 'common pattern or thread' between the evidence of the individual complainants would not only, in my view, have been calculated to mislead the jury; but also would have redounded to the detriment of the applicant. That, no doubt, is why trial counsel for the applicant raised no exception to the content of his Honour's directions. So far as I am aware, directions similar to those given in this case have been given in other cases which this Court has considered,[106] concerning the directions which are appropriate in cases such as this where evidence of several complainants has been admitted pursuant to s.398A Crimes Act. That, of course, is not to say that trial judges should slavishly follow 'standard directions'. Directions should, as I have said, be relevant and appropriate to the issues raised in a particular trial.

[209]

In my opinion the trial judge following upon a conviction on a retrial must, when he comes to sentence, exercise his own judgment and his own discretion. He will do that having regard to the offence committed; to the circumstances of its commission; to the antecedents of the convicted person and to all other relevant facts which are personal to him. In addition he will have regard to the sentence imposed upon the first conviction and he will be conscious of the principle, so called, 'that unless there is some strong ground there should not be a disparity between the sentence imposed upon persons convicted on the second occasion after a retrial compared with those that were imposed upon them on the first occasion' (see Leary and Compt (unreported, Court of Criminal Appeal, Western Australia, 18th August 1975, per Jackson CJ)). That principle is based upon policy.

The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.

In the second place, the passing of a heavier sentence on a new trial could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But, at the same time, it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature. (see Gilmore (1979) 1 A Crim R 416, at 419 to 420, per Street CJ)

But if having had regard to the first sentence and to the policy considerations to which I have referred, as the trial judge in this case did, and to all other facts relevant to sentence, the sentencing judge is of the opinion that the sentence passed following upon the first conviction was inadequate or inappropriate, then he must act upon that opinion because it is at that point his judgment which is decisive and it is a judgment which he must make and act upon. It would, I think, be wrong for him to say: 'In my judgment the first sentence was altogether inadequate or inappropriate but nevertheless it was a sentence imposed and therefore I will impose it again'.

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Murdoch (a Pseudonym) v The Queen [2013] VSCA 272 (27 September 2013)

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Cases Cited (35)