Nam v The Queen [2010] VSCA 95

1 The applicant has been presented for trial on 11 counts of sexual offending concerning two complainants. The complainants, to whom I will refer (as the trial judge did) as 'TLM' and 'JMM' respectively, are sisters. They are granddaughters of the applicant.

2 The alleged offences are said to have occurred over a period of some eight years, between June 1996 and June 2004, at times when the complainants were staying with the applicant. During that period JMM was aged between six and a half and 13, and TLM was aged between three and a half and nearly 12.

3 The prosecution seeks to rely in the trial on tendency and coincidence evidence. For that purpose it gave notices under ss 97(1)(a) and 98(1)(a), respectively, of the Evidence Act 2008 (Vic). The applicant sought to challenge the admissibility of that evidence. For that purpose the trial judge conducted a pre-trial hearing at which she heard argument both from defence counsel and the prosecutor as to whether the evidence was admissible.

4 The questions which arise when there is a challenge to the admissibility of coincidence evidence were set out in CGL v Director of Public Prosecutions.[1] They need not be repeated here. The learned judge correctly set out in her revised reasons the questions which she needed to address in order to decide the issue of admissibility.

5 For reasons which her Honour gave on 14 April 2010, she concluded that the tendency and coincidence evidence was admissible on the basis contended for by the prosecution. In accordance with the new procedures under the Criminal Procedure Act 2009 (Vic), the accused has applied to this Court for leave to appeal against that interlocutory decision. His notice of application is dated 19 April 2010. The decision is said to be erroneous because 'the learned trial judge erred in refusing to sever Counts 4 to 11 of the indictment.'

6 Given the expectations both of trial courts and of this Court regarding interlocutory appeals, it is important that we have been able to hear this application for leave to appeal at short notice. It is very much to the credit of counsel involved that they have been ready so promptly to present argument, and have done so succinctly. Moreover, the very clear reasons given by the trial judge have enabled us to hear argument without the need for outlines of submissions, and to decide the application ex tempore.

7 In my opinion, for reasons which follow, the application for leave to appeal should be granted but the appeal should be dismissed.

8 The coincidence notice under s 98 of the Evidence Act 2008 (Vic) sets out the circumstances relied upon as evidence. Counsel for the applicant understandably drew attention to those matters which essentially concern the relationship between the victims and the accused, and the absence of their parents when the offending occurred. It is submitted that there is nothing distinctive about those matters in the relevant sense. That submission is well founded, in my opinion, for the reasons given by the Court yesterday in PNJ v Director of Public Prosecutions.[2] This is because those matters are all aspects of the setting in which the offending occurred and of the pre-existing relationship between alleged offender and victims. It is plain enough that on the allegations, it was that setting and that relationship, and the fact that the children were left alone with the accused, which provided the opportunity for the alleged offending to have occurred.

9 If that were all that could be said in support of the coincidence notice, the notice would in my opinion be unsustainable, for the reasons set out in paragraphs 19 and 20 of PNJ.[3] But this case is quite different from PNJ, because of the way in which the applicant took advantage of a situation which (I am assuming for present purposes) he did not create.

10 As appears from her Honour's analysis, the similarity questions which a judge should ask in a case like this are really threefold, all directed at the same overarching question. That is: is there anything distinctive and recurrent about the evidence to be given concerning:

• (this may just be a variant on the second) the way in which the accused is said to have taken advantage of the setting in which he and the victims found themselves?

11 In the present case her Honour concluded (and senior counsel for the Crown do not dispute) that the sex acts alleged to have been committed were for the most part unremarkable. Sad though it undoubtedly is, acts of sexual interference of the kind alleged here are commonplace.

12 There are, however, some important features of the case which are anything but commonplace. The first is that each complainant describes an occasion where a banana was used - at the instigation of the accused, so it is alleged - and inserted into his anus. JMM alleges that the accused prevailed on her to introduce a banana into his anus (particular (g) of count 1). TLM alleges that in her presence the applicant inserted a banana into his anus (the subject of count 6). Plainly enough that is a piece of conduct which is strikingly distinctive, and the accounts given by the respective complainants are strikingly similar. It goes without saying that it is highly improbable, to the point of impossibility, that the similarity in the complainants' accounts could be explained by coincidence.

13 It was not conceded by counsel for the applicant that evidence on those respective counts would be cross-admissible. His submissions were rather directed at what was said to be a misdescription, by one of the complainants, of the location of one of the banana incidents. Be that as it may, it is the distinctiveness of the act which provides the requisite degree of similarity. It does not matter for that purpose whether it was done at the same place in relation to each complainant or at different places.

14 Counsel for the applicant did, however, concede that there was cross-admissibility between the evidence which supports count 3 in relation to JMM and that which supports count 11 in relation to TLM. Each complainant alleges that, at a funeral which they and the accused were attending, he touched her buttocks. Counsel for the applicant accepts that there is sufficient similarity because it is exactly the same sexual touching on the same occasion. Again, if that were relied upon by itself, it would not in itself say anything very remarkable either about the sexual act nor about the taking advantage of the occasion. But, as will appear, what really is decisive here concerns the surrounding circumstances. It was also conceded that the evidence relating to counts 9 and 10 involving TLM may also be cross-admissible in relation to parts (a) and (b) of count 1 involving JMM. That could depend, counsel said, on how they were particularised.

15 As the learned trial judge correctly said, the scope of relevant similarities for this purpose is not confined to the particular sex acts performed, or the manner in which they are performed. The case law makes clear - her Honour instanced R v Papamitrou[4] in this regard - that relevant similarities can be disclosed by the surrounding circumstances. In that case, Winneke P referred to the recurrence of what he described as the method of seduction and exploitation.[5] I take that to refer to the means by which the accused allegedly arranged matters so as to put himself in a position to commit the sex acts in question.

16 In the present case, as I have already said, it does not appear that the accused took particular steps to procure the setting in which the offending occurred. Rather, he behaved within that setting in a very distinctive manner. Her Honour summarised these matters in her ruling:

In this case, the offending always occurred when the complainants were alone with the accused and he was caring for them, either at his home ... or at the beach house ... and the evidence goes far beyond that which underlies the specific counts. Each girl says the accused would be naked much of the time whilst they stayed with him. Each girl says the accused would get them or try to get them to walk around naked when he cared for them.

JMM gives general evidence about the swimming pool and the accused's activities in the pool, that he would make them swim naked, would swim naked himself, make them swim about his legs and touch each of them on the behind. JMM says she saw the accused touch TLM on 'the butt' many times in the pool. She says she saw him touch TLM on the breast on other occasions. TLM says she saw the accused touch JMM on the breast many times. Each girl says the accused made them toilets out of buckets and would watch them urinate on many occasions.

They both describe in very similar terms a general situation where their grandfather used his care of them as an all out opportunity to sexually exploit them, and did so continually and in distinctive ways. So, for example, the general evidence of JMM as to the toilet and swimming pool, although not the basis of any counts involving her, has very strong probative force in relation to Counts 5 and 7 involving TLM. [6]

17 In my view her Honour was correct to conclude that those various aspects of the accused's behaviour were distinctive of his way of conducting himself, and strikingly similar as between the respective account(s) given by the complainant(s). One matter which should be added to the list her Honour gave is the one referred to by senior counsel for the Crown, that is, that it was also part of the alleged modus operandi for the accused to provide the girls with beer, and then with liquorice, in connection with the sexual offending.

18 When these matters were raised this morning with counsel for the applicant, he argued that these were such generalised descriptions of behaviour, and so vague, that they could not be seen to be sufficiently connected with any of the particular counts. Even if that were the test, it seems to me that there is a connection, with at least some of the counts - for example, the touching in the swimming pool. But the basis of admissibility is not that any of these aspects of his behaviour is said to be directly connected to a particular sex act, but that this is conduct of a sexual nature which recurs and which constitutes relevant surrounding circumstances.

19 In my opinion, there is an analogy with Papamitrou,[7] albeit that the surrounding circumstances are of a different kind. The similarities in the accounts given of the surrounding circumstances are such that it is improbable that the described behaviour occurred coincidentally, or - putting it in the language used in PNJ v The Queen[8] - such that it is improbable that the witnesses would give accounts having this degree of similarity unless the events occurred:

As the High Court stated in Hoch [(1988) [1988] HCA 50; 165 CLR 292, 295], the probative value of evidence of this kind -

lies in the improbability of the witnesses giving accounts of happenings having the requisite degree of similarity unless the happenings occurred.

Their Honours cited the well-known passage from the speech of Lord Wilberforce in R v Boardman [[1975] AC 421, 444], as follows:

This probative force is derived, if at all, from the circumstance that the facts testified to by the several witnesses bear to each other such a striking similarity that they must, when judged by experience and common sense, either all be true, or have arisen from a cause common to the witnesses or from pure coincidence.[9]

a case where the circumstances surround the discrete acts of offending arise from a general scenario described by each complainant in terms that have the necessary underlying unity and linkage to provide the probative force required both as to admission generally of evidence of tendency and coincidence, and as to admission specifically in a criminal trial.[10]

In my opinion her Honour was quite correct in that conclusion. This evidence has, for the reasons given, significant probative value so as to satisfy the gateway requirement in s 98(1) and 97(1). Moreover, it has such probative value, in my opinion, as substantially to outweigh the prejudicial effect of having the evidence of one complainant cross-admissible in relation to the counts referable to the other complainant.

21 The notion referred to by Lord McKay in Director of Public Prosecution v P,[11] of a prolonged course of conduct having recurrent features, is apt to this case. His Lordship said:

In the present case the evidence of both girls describes a prolonged course of conduct in relation to each of them. In relation to each of them force was used. There was a general domination of the girls with threats against them unless they observed silence and a domination of the wife which inhibited her intervention. The defendant seemed to have an obsession for keeping the girls to himself, for himself. The younger took on the role of the elder daughter when the elder daughter left home. There was also evidence that the defendant was involved in regard to the payment for the abortions in respect of both girls. In my view these circumstances taken together gave strong probative force to the evidence of each of the girls in relation to the incidents involving the other, and was certainly sufficient to make it just to admit that evidence, notwithstanding its prejudicial effect. This was clearly the view taken by the Court of Appeal and they would have given effect to it were it not for the line of authority in the Court of Appeal to which I have referred.[12]

22 The conclusion that the probative value substantially outweighs the prejudicial effect for the purpose of s 101(2) is reinforced by the fact, as emerged in the course of argument, that the evidence in respect of a number of specific counts is cross-admissible in respect of a corresponding count referable to the other complainant. I have already referred to the striking similarities which arise on some but not all of the counts.

23 Finally, I should refer to an argument advanced by counsel for the applicant, that the argument from similarity was weakened by the lack of recent complaint by the complainants about the alleged offending, and by their delay in complaining. As Nettle JA pointed out in argument, those matters could not bear upon the question which the trial judge had to decide and we have now to decide - that is, what probative value this evidence has. Those matters would go to the credibility of the complainants. They are no part of the evaluation which the Court must undertake for the purposes of ss 97 and 98. Issues of credibility are for the jury.

26 I also agree but would add the following. The essence of the applicant's complaint, as it seems to me, is that there is here no such striking similarity between the offences alleged to have been committed against one victim and the offences and other uncharged acts alleged to have been committed against the other, as to make each admissible in proof of the other. More precisely, it is contended that the acts alleged to have been committed against each complainant are, in the context of the kind of alleged criminal behaviour here in question, so unremarkable as to lack probative value or at least to lack sufficient probative value to outweigh the prejudicial effect which that evidence would have if admitted - in much the same way it was found to be the case with the alleged offences in PNJ v The Queen.[13]

27 As the judge rightly held, however, striking peculiarity of an offence, and thus striking similarity as between two such offences, is not the only circumstance in which the commission of one offence may be so probative of the commission of another as to render it admissible in proof of the other. As Lord McKay LC observed in Director of Public Prosecutions v P,[14] the view that some feature of similarity beyond what has been described as the paederast's or incestuous father's stock in trade must be demonstrated before one victim's evidence can properly be admitted upon the trial of another, seems to have been stated for the first time in those terms in R v Inder.[15] But that case and others like it should not be regarded as binding. Thus it was held in DPP v P that, despite the absence of striking peculiarity, evidence of commission of offences by a father against one daughter was admissible in proof of commission of offences against the other, upon the basis that the evidence given by

both girls described a prolonged course of conduct in relation to each, whereby each was subjected to general domination by a series of not dissimilar techniques.

28 Here according to the evidence which the judge has ruled may be admitted, the applicant sought to disinhibit and seduce each victim with alcohol and other treats, thereby to take advantage of the opportunities afforded to him of being left alone in their care; he endeavoured to encourage an aura propitious to offending by going naked for much of the time that he was in their care; he encouraged each complainant to walk around naked, and when he swam with them, he swam naked; and in that context, it is alleged, he committed against each of them similar offences of breast touching, vaginal touching, buttock touching, and of inserting a banana into his own anus in their presence.

29 In my view, therefore, this evidence, like the evidence in DPP v P, when taken as a whole, is capable of describing a prolonged course of conduct in relation to each complainant which involved techniques and offences sufficiently similar to make the evidence of the applicant's conduct in relation to one complainant admissible in proof of the offences which he is alleged to have committed against the other. It follows, in my view, that the judge was right to rule as she did.

1. The application for leave to appeal is granted.

2. The appeal is treated as having been instituted and hear instanter and dismissed.

[1] [2010] VSCA 26 ('CGL') [21]-[22].

[2] [2010] VSCA 88 ('PNJ').

[4] [2004] VSCA 12; (2004) 7 VR 375 ('Papamitrou').

[6] R v NAM (Ruling) (Unreported, County Court of Victoria, Judge Gaynor, 14 April 2010) 83-4.

[7] [2004] VSCA 12; (2004) 7 VR 375.

[8] [2010] VSCA 88.

[10] R v NAM (Ruling) (Unreported, County Court of Victoria, Judge Gaynor, 14 April 2010) 84-5.

[11] [1991] 2 AC 447.

[13] [2010] VSCA 88.

[14] [1991] 2 AC 447, 461.

[15] (1977) 67 Cr App Rep 143.