Neubecker v The Queen [2012] VSCA 58

Neubecker v The Queen [2012] VSCA 58 - VSCA 2012 case summary — Zoe

[20]

That evidence that does not directly relate to the offences that the Crown relies on or that Mr Neubecker's been charged with, ordinarily you would not hear such evidence. Because you must base your decision solely on the evidence relating to the charges that has been given. But the evidence has been given in this case, if accepted by you, because it provides you with background information that you may find relevant when assessing and evaluating the other evidence.

There are two ways in which you can use this evidence. First, you may use it to help you to understand the nature of the relationship between the accused man and [JF]. This may help to explain some of the evidence. That is, for example, it may aid you to make a proper assessment of [JF's] conduct or state of mind, for example, as to why he submitted to relevant acts or failed to complain earlier. For example, it may help to explain, or not, why he sought the companionship of Mr Neubecker or why he asked frequently to be present when Mr Neubecker would go out and so on and so forth. So it may help you and is relevant to that particular aspect of the evidence.

It may shed light and help your assessment on the accused's state of mind, on his conduct or his motives. For example, the frequency and the variation of locations may help to explain why the accused felt able to act in this particular brazen manner. And it may go to the credibility of the complainant, why the conduct alleged is plausible, despite the unusual nature of the allegations for example. So I am just giving you examples of how it may be of assistance to you. That is the first way.

Secondly, this evidence may enable you to understand the evidence relating to each count in a more complete and realistic context and setting. It may assist you to appreciate the significance of what might otherwise seem to be perhaps more isolated or unexpected events. It is important that you only use this evidence about the relationship between the accused and the complainant for these two purposes only, and only if you accept that it is true and helps to explain the evidence and the relationship and the context.

If you do not believe the evidence or do not think that it provides you with any assistance, then you should disregard it and concentrate on the instances on which the Crown relies, if you find them proven. This is important. You must not use this evidence for any purpose other than what I have just described to you. In particular, you must not substitute the evidence of the relationship between the accused and [JF] for the evidence that directly relates to the charge. That is, you must not reason that because the accused has in some general, unspecified way said to have taken part in a sexual penetration in those other places, then he must also have done it on the occasions charged.

For example, let us say you find the incident at the Hastings marina or his description about the shed to have been credible, but the Crown does not rely on it, and you say, 'Well, we've got a doubt about all of those other seven occasions, or most of them, not enough to give us the three, but we believe what is said about that so therefore he must have done it on the other occasions that the Crown relied on.' You cannot use the evidence that way. You must not use it that way.

Similarly, you must not use this evidence to decide that the accused is the kind of person who is likely to have committed the offences charged and to use this conclusion as evidence of guilt. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the case, not an assumption about the kinds of people who commit these crimes.

[31]

In face of the competing views expressed in HML, we respectfully understand the ratio of the decision to be limited to this: that where evidence of uncharged sexual acts is admitted under the common law test propounded in Pfennig,[19] and a priori the evidence is relied upon as a step in reasoning to a conclusion of guilt, the jury must be directed that they cannot find that the accused had a sexual interest in the complainant unless satisfied of that beyond reasonable doubt.

Despite the strength of the judgments of Kirby and Hayne JJ (and thus of Gummow J) and the observations of Heydon J, as to the need for uncharged sexual acts to be proved beyond reasonable doubt in jurisdictions where Pfennig provides the criteria for admissibility, the majority of judges in HML did not express any clear view as to whether uncharged sexual acts must always be proved beyond reasonable doubt.

We further observe that two members of the majority (Kirby and Heydon JJ) expressly limited the decision in HML to jurisdictions in which Pfennig is still the law and, on one view of Hayne J's reasoning, his Honour's conclusion was similarly limited.[20] If we may say so with respect, it appears more likely that his Honour's reasoning was intended to apply to all Australian jurisdictions. But even if that is so, as a matter of stare decisis we consider that the ratio of the decision must still be understood as limited to Pfennig jurisdictions.[21]

With respect, therefore, on a strict analysis, we understand the law for the time being to remain that evidence of uncharged sexual acts, like evidence of other uncharged acts, may be tendered as relationship evidence put forward as demonstrating the context in which the charged offence was committed, and that, generally speaking, if it is tendered for that purpose alone, as opposed to establishing a sexual interest in the complainant and a disposition on the part of the accused to act to gratify that interest, it is not necessary for a trial judge to give separate directions about the standard of proof applicable to such uncharged acts, unless the judge perceives that the jury are likely to use the uncharged acts as a step in the reasoning towards guilt or that it is unrealistic to contemplate that any reasonable juror would differentiate between the reliability of the complainant's evidence as to the uncharged acts and as to the charged acts.

If so, it follows that the standard of proof applicable to uncharged acts, and the directions to be given to the jury as to the use which they may and may not make of evidence of the uncharged acts, will continue to vary according to whether the Crown relies on the evidence of uncharged acts to establish a propensity to commit acts of the kind which are charged or merely for contextual and explicative purposes of the kind adumbrated by Crennan and Kiefel JJ in HML.[22]

[65]

Because of the serious nature of a criminal trial, you must be very careful about the way that you reason and only rely on reasonable inferences. So there are two rules that you must abide when you engage in inferential reasoning, or drawing of inferences. The first is that you are satisfied beyond a reasonable doubt of the facts upon which you base that inference; so the base facts from which you are to draw conclusions must be proven beyond reasonable doubt. Secondly, that you are satisfied that the inference that you want to draw is the only reasonable inference to be drawn from those facts.

If it is not the only reasonable inference then there will be an inference that is consistent with innocence and you will not and should not draw the inference for guilt because if there is another reasonable inference open, you must have a reasonable doubt. That is how it works.

So, establish facts - facts proven beyond reasonable doubt. Am I required to draw an inference from those facts? Yes. Are they proven beyond reasonable doubt? Yes. Can I draw the inference from them? I can draw an inference. Is it the only reasonable inference that I can draw? Or are there other reasonable alternatives? So, it is the only reasonable inference I can then - you can draw.

...

In determining whether an inference is a reasonable inference, you have to consider all of the evidence. Do not disregard an item of evidence because when you consider it alone, it does not support a reasonable inference. For instance, it would not be reasonable of me to step out and from the single fact that in front of my door the ground is wet for me to infer that it has rained. It only becomes reasonable, when I take into account that the cars are wet, the trees are wet, there are grey clouds in the sky, the forecast was for rain, then I can draw the inference, safely, that it rained.

The opposite is also true. This does not mean that you should not consider each individual piece of evidence carefully. It is your duty to do so. You may only base your decision on evidence that you accept to be true. But in order to determine which evidence to accept, and what inferences to draw, you must consider the evidence as a whole.

At a glance

Court

Decision date

Before

Source

Judgment (145 paragraphs)

Neubecker v The Queen [2012] VSCA 58 (4 April 2012)

Parties

Cases Cited (11)