R H B v The Queen [2011] VSCA 295

1 This is an application for leave to appeal against an interlocutory decision of a judge of the County Court to admit evidence of previous convictions as tendency evidence in the trial of the applicant.

2 The applicant stands charged with one offence of participating in an indecent act with or in the presence of a child under the age of 16. The complainant is his granddaughter. The offence is alleged to have occurred at the applicant's home between 3 November 2003 and 2 November 2005, when the complainant was between 10 and 11 years' of age. The Crown alleges that, at the time of the offence, the complainant was staying with the applicant and his wife at their house for the weekend. While she was playing outside, the applicant came over to her and hugged her from behind. He had his hand on her waist and then he put his hands down her pants and underwear and touched her vagina with the back of his fingers for a period of approximately two minutes.

3 Some years passed before the complainant complained to her mother. When the applicant was interviewed by police on 8 October 2010 and asked whether he had touched the complainant, he said that it was an accident; that he did not fondle her or touch her and that they were just playing a game. At other stages of the interview, at one point he denied putting his hands over the complainant's vagina, and at another point he said that he was not was sure if his hand went briefly over her vagina.

4 Prior to the matter coming on for trial, the Crown served a Tendency Notice, pursuant to s 97(1)(a) of the Evidence Act 2008, that it would seek to adduce evidence to prove that the applicant had a tendency:

a) to act in a particular way, namely, indecently assault prepubescent and pubescent girls to whom he was related by touching them on the vagina; and

b) to have a particular state of mind, namely, an inappropriate sexual interest in and/or attraction to prepubescent and pubescent girls to whom he was related and a preparedness to act upon that interest.

5 The evidence so proposed to be adduced is that, on 28 June 2011, the applicant pleaded guilty:

1. To one charge of unlawful and indecent assault, committed between 12 June 1978 and 11 June 1979 against his daughter K, by touching her on her vagina with his fingers and penis, when she was approximately six years of age;

2. To one charge of unlawful and indecent assault, committed between 12 June 1984 and 11 June 1986 against his daughter K, by touching her on her vagina and breast, when she was approximately twelve to thirteen years of age;

3. To one charge of unlawful and indecent assault, committed between 23 January 1984 and 22 January 1985 against his other daughter B, by touching her on her vagina and licking her vagina, when she was approximately five years of age.

6 The matter came on before the judge for pre-empanelment argument on 13 September 2011. In his Honour's ruling, of which a copy is attached to these reasons, he concluded that the evidence was admissible as tendency evidence because there were 'quite remarkable similarities between the allegations' notwithstanding that some of the offending was said to have been committed indoors and some outside. As His Honour put it:

There are in my view - there are in my view, quite remarkable similarities between the allegations. It matters not, in my opinion, that the incidents are said to have taken place in a bedroom on the [one hand] and out in [the yard] at the other, or that they take place at the same premises. They are, in my view, to be characterised as very similar incidents whereby the accused man, in respect of a young child, for these purposes, it does not matter that he was related to those young children, but in respect of his daughters and his granddaughter, did much the same act in the sense of forcing his hand into the genital area.

7 The judge was alert to the long period of time between the last offending against K and the alleged offending against the complainant and he took into account that it 'is relevant and certainly [a consideration] to be borne in mind in weighing up the situation'. But his Honour considered that, in effect, the principal consideration was that the evidence shows a tendency to commit similar kinds of sexual acts against female relatives which is directly relevant to the assessment of how probable it is that the applicant would commit the, generally speaking, 'highly improbable act' of 'choosing to use his nine year old granddaughter as a vehicle for some unwanted sexual activity'. As his Honour observed:

It is often said to a jury in a case of this character that it is highly improbable that someone in the position of the accused man would take a sexual liberty of this character...

It can be reasonably said I think that it would be a most unusual event for a man of the age of the accused and in particular having the relationship with the alleged victim that he does have here, that is of grandfather and granddaughter, choosing to use his nine year old granddaughter as a vehicle for some uninvited sexual activity. It can be legitimately said that this is to be regarded generally as a highly improbable act, whether that is correct or not...

If the jury in considering that question is aware that the alleged perpetrator of that criminal act has in the past carried out what I characterise as a very similar act in respect of his own daughters, even if quite some time before, but when those daughters are of similar age to the alleged victim in this case, it seems to me that any jury would regard the question of the probability or not of whether the accused did the act alleged here in a very significantly different light.

8 It followed, his Honour concluded, that the evidence sought to be adduced as tendency evidence has 'very substantial probative effect'.

9 The judge referred also to the prejudicial effect of the evidence for the purposes of s 101 of the Act. His Honour observed that it would have a 'substantial prejudicial effect on the accused man'. But his Honour was of the view that the probative value of the evidence, as he assessed it, would substantially outweigh the prejudice.

10 Counsel for the applicant contended that the judge's decision was erroneous. He argued that, compared to the charged offence, the offences which the applicant committed against his daughters lacked the degree of striking similarity or peculiarity or modus operandi or other underlying unity necessary to elevate the putative tendency above the level of mere propensity to commit sexual offences. In particular, counsel submitted:

a) Although the notice refers to the fact of the applicant being related to each of the victims, the relationship is in truth a mere indicium of opportunity, not a qualification of the applicant's attraction;

b) There is no evidence or learning to suggest that offending against family members is the result of anything other than proximity and opportunity, as opposed to sexual attraction to blood relations;

c) The Crown's selection of evidence is selective because, in the case of the third conviction relied upon as tendency evidence, the assault included licking as well as manual touching of the victim's vagina;

d) There is large time gap between the offending against B and K and the alleged offending against the complainant;

e) There are significant differences between the circumstances of the alleged offending against the complainant, which counsel characterised as a 'grope in the garden' and the offending against B and K, which occurred in bedrooms in the family home while B and K were in bed.

f) There is nothing particularly remarkable about the nature of the sexual acts committed against B and K, and alleged to have been committed against the applicant. In counsel's submission, they are commonplace sexual acts comparable to those which were held in CGL v DPP[1] not to be admissible as tendency evidence; and

g) There is a real possibility of contamination or unconscious influence between B and K and the complainant.

11 The Crown resists those contentions. Counsel for the Crown submitted that the judge was plainly right to admit the evidence of the applicant's offences against his daughters. He relied in particular on the fact that:

a) Each of K and B and the complainant are female relatives of the applicant (in the case of K and B, daughters; and, in the case of the complainant, granddaughter);

b) Each of K and B and the complainant was young at the time of commission of the offence (K was six and 12 years of age; B was five years' of age; and the complainant was 10 years' of age);

c) Each offence occurred in same the family home while the victim was in the applicant's care; and

d) Each offence was committed at a time when there were other adults present in the house.

12 In the Crown's submission, the evidence demonstrates that the applicant had a specific tendency to behave in a distinctive manner, in a particular setting, against his female descendants, by brazenly approaching them while in his care, in the family home, when other adults were nearby (and once when another sibling was asleep in the same room), and abusing them by touching them on the vagina.

13 As this court recently held, in KJM v R (No 2),[2] an interlocutory appeal from a decision to admit tendency evidence under s 97 of the Evidence Act 2008 is governed by the principles in House v The King,[3] which is to say that:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

14 I do not consider that the test is satisfied in this case. As appears from the judge's ruling, his Honour approached the problem in accordance with correct principle. It is not suggested and, in any event, there is no indication that he took into account any irrelevant consideration or failed to take into account any relevant consideration. There is no suggestion or indication that he made any error of fact. Nor do I consider that his ruling is unreasonable or plainly unjust. To the contrary, I respectfully share his Honour's view that the evidence is admissible as tendency evidence, for the reasons which he stated; that it is of significant probative value; and that its probative value would significantly outweigh its prejudicial effect.

15 Much was made in the course of argument of the decision of this court in PNJ v R,[4] in which it was held that, for the purposes of s 98 of the Act, the touchstone of admissibility is similarity; and that the degree of similarity must be such as to render the evidence of significant probative value, either by itself or having regard to other evidence to be adduced by the prosecution. In that case the court concluded that evidence that a youth officer employed in a supervisory role in a youth detention centre had committed sexual offences against several of the inmates could not be adduced as coincidence evidence in proof of an allegation that he had committed similar sexual offences against another of the inmates. Although all of the offences involved similar sexual acts, and were all committed within the centre against inmates of a similar immature age, the court ruled that the nature of the sexual acts was unremarkable, and thus could not be said to distinguish the accused's offending from that of any other such offender; that the location was insignificant because it reflected nothing more than the accused taking opportunistic advantage of the environment in which he worked; and that it could not be said that there was anything distinctive about the way in which the accused had taken advantage of his position as guard of the inmates in order to commit the offences.

16 Counsel for the applicant argued that similar considerations applied in this case. In his submission, there is nothing remarkable about the sexual acts alleged for, as he would have it, it is common place, if not invariable, that sexual offending by a man against a woman would involve the man touching the woman's vagina. The location of the acts was insignificant too, in his submission, because it represented nothing more than the product of the appellant taking opportunistic advantage of the presence of the victims in his home as opposed to a location to which he enticed his victims or which he selected as propitious to the offending. Counsel argued it could not be said there was anything particularly distinctive about the way in which the appellant took advantage of the opportunities thus presented to him to commit the offences he did.

17 I do not accept the argument. With great respect, I am not sure that PNJ was correctly decided.[5] But, accepting for present purposes that it should be followed, it was concerned with a question of coincidence evidence and thus, as it was held, whether there was sufficient similarities between the several incidents of offending as to make proof of one significantly probative of the proof of another. In this case we are concerned with tendency evidence, which is to say evidence which establishes that the appellant had a tendency to commit a particular kind of act or to commit an act in a particular way, and the question is whether the degree of peculiarity (for want of a better term), either in the acts themselves, or in the circumstances in which they were committed or in nature or identity of the persons against whom they were committed or by reason of a combination of those and possibly other considerations, are such that the has significant probative value. The two are not the same, albeit that in some cases there may be a large degree of overlap.[6]

18 As Hansen JA observed in KRI v R,[7] the test for the admissibility of tendency evidence is one of fact and degree to be assessed in light of the facts and circumstances of the particular case. And in the facts and circumstances of this case, I am not persuaded there is room for doubt about it. As the judge held, it is a remarkable thing for a man to commit sexual acts against his female lineal descendants. It is still more remarkable when, in each case, the nature of the acts is similar if not identical, even if they are commonplace sexual acts. It is even more remarkable that in each case the acts were committed in the home while the victim was in the applicant's care, while other adults were close by and the risk of detection was significant. It follows that, if accepted, the evidence of the applicant's prior offending against his daughters would demonstrate that he had a tendency to be sexually attracted to his young female descendants and to act upon that attraction in similar ways at different times, when the victims were in his home under his care and thus vulnerable to his advances. As such, as the judge held, it would be capable of rationally affecting the assessment of the probability of the applicant having had a sexual interest in his granddaughter and giving effect to it by committing the offence alleged.

19 Counsel for the applicant submitted that if that reasoning were correct, it would mean that whenever someone in the applicant's position committed a sexual offence against a female relative, evidence of that would be admissible if he were ever again charged with another sexual offence.

20 I do not accept that submission either. To begin with, its based on a false premise. In this case, there was not just one previous occasion when the applicant offended, but three.

21 Secondly, it is not just that the applicant offended against his daughters in the past but that he did so in a particular way, albeit perhaps not particularly striking, and in circumstances which were similar.

22 Thirdly, as I have observed, each case is to be decided upon its own facts and circumstances. It does not follow from the fact that, because in this case there are three occasions of prior offending which are regarded as relevant to and probative of the charged act, in another case one previous act of offending would be regarded as relevant and probative of the act which is charged in that case.

23 I do not overlook the long period of time between the most recent offending against K and the offence with which the applicant is charged, nor do I overlook the decision of the New South Wales Court of Criminal Appeal in R v Watkins[8] to which counsel for the applicant referred us, but I consider that despite the gap in time in this case, the applicant's offences against his daughters would have significant probative value in the determination of whether the applicant committed the charged offence against his granddaughter. Proof that the applicant committed the offences against his daughter would make it more likely that he committed the similar charged offence against his granddaughter and would also have a significant probative value in rebutting the applicant's suggestion in his record of interview that any touching of his granddaughter's vagina was accidental or innocent.

24 The circumstances in this case are a long way from those which were considered in R v Watkins. There, the applicant was charged with fraud committed between 1999 and 2002 by fraudulently signing cheques, and the evidence sought to be adduced as tendency evidence was that the accused had been convicted of larceny almost 20 years before. Not surprisingly, Barr J concluded that there was no logical connection between the events of 1983 and 1984 and those of 1999 to 2002. The only way in which the jury could have used the putative tendency evidence was to reason that the appellant was a cheat and a fraud and was, therefore more likely to have cheated and defrauded his employer by committing the alleged offence. As Barr J observed, in effect that was just another way of saying that he was therefore more likely to be lying in his assertion about the arrangement he said was proposed to be made in that case. In contrast, here we are concerned with evidence which tends, if accepted, to establish a tendency to have a particular interest in female lineal descendants to the applicant which the applicant gratified by acting upon in particular circumstances in similar ways.

25 Equally, I see little room for doubt about the application of s 101. Given what I think to be the significant probative value of the evidence, I see no error in the judge's conclusion that it would substantially outweigh any prejudicial effect it might have.

26 Finally, on the question of contamination or innocent infection, the judge held that the issue did not arise because the applicant has admitted the offences against his daughters. With respect, I agree. I see nothing to support the idea that there was a real possibility of contamination between B and K.

27 Counsel for the applicant argued that there was a possibility of the complainant's version of events having been informed by what she was told by B and K, and thus that there was a risk of contamination in that sense. That may or may not be so. But, even if it were so, it would not affect the admissibility of the evidence of the offences committed against B and K. There can be no doubt about the accuracy of that evidence because the applicant has admitted it. The only possibility of doubt, if there is any, would be about the credibility and reliability of

the complainant's testimony. That does not bear on the admissibility of the tendency evidence. It is something for the jury to assess in light of the direction they will be given that it is necessary for them to be satisfied beyond reasonable doubt of the truth of the complainant's allegations.

29 I agree for the reasons given by the learned presiding judge that the application for leave to appeal should be dismissed.

30 The order of the Court is that the application for leave to appeal is dismissed.

[1] [2010] VSCA 26.

[2] [2011] VSCA 268, [12].

[3] [1936] HCA 40; (1936) 55 CLR 499, 504-5.

[4] For the purpose of assessing the admissibility of tendency evidence: [2010] VSCA 88.

[5] Cf GBF v R [2010] VSCA 135, [29].

[6] See and compare R v PWD [2010] NSWCCA 209, [77]-[84] (Beazley JA).

[7] [2011] VSCA 127, [57].

[8] [2005] NSWCCA 164.