R J P v The Queen [2011] VSCA 443

R J P v The Queen [2011] VSCA 443 - VSCA 2011 case summary — Zoe

[43]

In relation to [JR]. [JR] was 10 February 1983. When she was growing up she lived with her parents, [WJ] and [PJ]. And [WJ] is now [WS] and you'll be hearing from her at some stage later in the trial, and three siblings. They used to go camping each other with members of their extended family. When she was aged about eight her family went on one such camping trip, and they're accompanied by various extended family members including [JR]'s aunty [PM] and her husband the accused.

At times [JR] would accompany her uncle the accused to collect firewood. On one such occasion whilst out collecting wood, the accused pulled [JR] into some bushes, he lifted her top over her head and undid her training bra. Standing behind her he put his arms around her body and felt her breasts with his hands. And that is Count 3.

He then turned her around to face him and pulled her pants down to her knees. He first rubbed her vagina and then inserted his fingers into her vagina and that is Count 4. He told her 'don't tell anybody or else.'

He then instructed her to put her clothes back on and walked back to the camp with her. [JR] did not tell anyone what had happened. Some time after that incident whilst the accused and [MP] were living at the house in Willunga Street in Portland, another incident occurred. One afternoon [JR] went out to the shed of the property to find the accused working on one of his cars, she was looking at the car when the accused approached her from behind, stood behind her and pushed his body against her. She could feel his penis moving across her bottom, that is Count 5.

This went on for some time until [MP] called out asking what they were doing and whether they were coming inside to have a drink, and at that point the accused backed away and yelled out that they were coming inside.

The later incident took place in Portland, one day when [JR] was at her Nan's house with her family, the accused turned up at the house and announced that he would take the children down the street to the beach. [JR] got into the front seat of the car and the accused two sons [JS] and [JM], and [JS], who is [JR] sister, or one of [JR] sisters, got into the back seat.

On the way to the beach the accused reached across and placed his hand on [JR]'s right leg and rubbed his hand up and down her leg, that is Count 6.

A further incident took place at [JR]'s nan's house. One afternoon [JR] was walking towards the bathroom to go to the toilet when she noticed the accused following her. She walked into the bathroom, the accused followed her in and locked the door behind him. He told her not to worry because nothing bad was going to happen. He approached her and put his hand up under her top and her bra and rubbed her breasts and that is Count 7.

[52]

Mr Whitchurch, counsel for the accused, submits that in each case the evidence of one complainant is not admissible in respect of another complainant. He contends that there is a risk of unacceptable prejudice in conducting a joint trial. Given that the offences incite strong emotions and revulsion, and strong directions will not cure the risk of prejudice, a fair trial cannot be held.

The prosecution contends for crossadmissibility of evidence between complainants and relies upon the following matters: A, in each case the offences were committed against children. B, in each case the offences were committed against girls. C, in three of the four cases the complainants was a family member. D, in each case the accused stood in a position of authority in relation to the complainant; he was stepfather to two complainants, uncle to one and head of the household to one. E, in each case, the offending was opportunistic in nature, nearly all of the offences appear to have taken place as a result of the accused finding himself alone with one of the complainants. In each case the offending appears to be unplanned and entirely reliant on circumstance. F, in each case, the complainant was molested on at least one occasion at the accused's own property. G, in each case there was at least one offence of penile vaginal contact. H, in three of the four cases, the child was instructed not to tell. [ES] was not so instructed but the circumstances of the offending against her were such that the event ended abruptly when her mother returned home. I, in three of the four cases, there was offending in the accused's own bedroom. J, in two cases, [FR] and [SK], the complainant was told what the accused was doing was 'a game'. K, in two cases, [FR] and [SK], the accused roused the child from her bed as she was falling asleep in order to

commit an offence. L, in two cases, [FR] and [SK], the accused licked the complainant's vagina.

The prosecution submits that these matters taken in combination constitute a pattern of conduct and that a jury would be entitled to consider that the complainants' accounts make it more probable that each of them is telling the truth.

The circumstances in which the preconditions for crossadmissibility are met were fully discussed in the Queen v. Papamitrou [2004] VSCA 12; (2004) 7 VR 375. In that case, the evidence found to be crossadmissible was variously described by President Winneke as containing or reflecting a sufficient connection in time and circumstance, an underlying unity, a common modus operandi or a pattern of conduct. Having had the benefit of written and oral submissions from counsel, I consider that the evidence of each complainant is admissible in support of the evidence of other complainants. At the relevant time, the accused enjoyed a familial or domestic intimacy with the complainants that was a product of his relationships with the mothers of the girls. The accused was the brotherinlaw to the mother of [JR]; he was the partner of the mother of [FR] and [ES]. In the final case, the accused allowed the mother of [SK] to be a domestic boarder in his house.

The jury can find that the accused abused his position of power and authority to gain the trust of and access to the complainants and to opportunistically sexually target them.

Each of the girls was young when they were allegedly violated. The relationship between the accused and the complainants were such that the girls were more likely to comply with the sexual demands of the accused and less likely to complain about his conduct.

I consider that the commonality of this factor provides an underlying unity to this volume of evidence that is probative of the live issue in this trial, that being whether or not the offences were in fact committed by the accused.

I consider the second body of evidence as also crossadmissible in respect of two complainants. Two complainants, [FR] and [SK], state that the accused told them that what he was doing was 'a game'. This is distinctive evidence and its idiosyncratic nature is such as to make one complainant's account admissible in the case of the second complainant.

Having regard to the statutory regime and having concluded that evidence is crossadmissible I consider that a joint trial should be conducted. I am mindful that careful directions will be necessary to ensure a fair trial and that an explicit antipropensity reasoning warning should be given.

[55]

[26] It is appropriate to consider these grounds together. They are complementary in the sense that the second ground asserts that the discretion to sever miscarried (ground 1) because the trial judge erred in his conclusion that the evidence of the several complainants was 'cross-admissible'. Trial counsel for the applicant had applied to the judge to sever the counts as between the six complainants on the basis that the evidence to be given by each complainant in respect of the counts relating to her was irrelevant to and, thus, inadmissible in support of the counts relating to the other complainants. The trial judge rejected that application, and declined to sever the counts. He did so on the basis that the evidence to be given by each of the complainants of the conduct of the applicant in committing the alleged offences against her bore such a similarity or relationship to the conduct of the applicant alleged by the other complainants as to render the evidence of each 'mutually admissible' in the trials relating to the others. Having reached that conclusion, it became pointless - as he said - to order severance in the manner sought. In so concluding, his Honour's discretionary exercise was consonant with principles laid down in this Court in such cases as R v TJB, R v GAE, R v Glennon. It should, nevertheless, be pointed out that where multiple sexual offences against more than one complainant have been properly joined in the one presentment in accordance with the Presentment Rules contained in Sch VI to the Crimes Act, the discretion to sever, at least in this State, is not necessarily dictated by 'mutual admissibility' or the lack thereof. The amendments to s 372 of the Crimes Act made by the Crimes (Amendment) Act 1997 (to which I have referred in paras [2] and [3] above) were introduced to ensure that trial judges carefully considered whether severance was necessary even where the judge concluded that the evidence of complainants was not 'cross-admissible'. Those amendments introduced sub-s (3AA) and (3AB) into s 372. Subsection (3AA) provides that:

Despite subsection (3) and any rule of law to the contrary, if in accordance with this Act, two or more counts charging sexual offences are joined in the same presentment, it is presumed that those counts are triable together;

and subs (3AB) provides that:

The presumption created by subsection (3AA) is not rebutted merely because evidence on one count is inadmissible on another count.

As this Court pointed out in R v KRA, these amendments make it appropriate that severance of the presentment :

should be approached on the basis that the rule of law or practice which had hitherto existed in this State had been, and was intended to be, modified by these amendments in favour of the more pragmatic approach adopted in the case of R v Christou.

In particular, the Court pointed out that the trial judge should consider whether potential prejudice could be overcome by appropriate directions, bearing in mind that juries can be trusted to heed the directions of the trial judge.

[27] Nevertheless, it seems to me to remain a sound approach in cases such as the present for the trial judge, in exercising the discretion given by s 372(3), to determine whether the evidence of the several complainants is cross-admissible because such a determination will - in most cases - be a powerful factor influencing the discretion. The capacity to ensure a fair trial for the accused must always be the dominant consideration governing the exercise of the discretion; and the more complainants there are whose evidence is not admissible in the trials affecting other complainants, the more difficult it will be for adequate directions to be given by the trial judge to avoid prejudice occurring to the accused. To that extent, the views expressed by the High Court in De Jesus and Sutton (to which I have referred in [3]) will remain influential in this State.

[28] In this application, Mr Priest submitted that the trial judge erred in his conclusion that the evidence of the complainants was cross-admissible, and that, accordingly, his discretion not to sever had miscarried. In its essence, the applicant's contention was that the judge should have ordered separate trials in respect of the counts relating to each complainant. Mr Priest's submission was that there was insufficient 'connecting link' or 'underlying unity' between the evidence of the various complainants to warrant the judge's conclusion that their evidence was mutually admissible. The nature of the conduct alleged was quite different Mr Priest submitted, and a proper appraisal of the evidence should have led his Honour to conclude that the evidence of each complainant fell into its own 'water-tight' compartment. When properly analysed, so Mr Priest submitted, the conduct of the applicant described by the various complainants was quite dissimilar and that the 'similarities' relied upon by the judge demonstrate nothing more than 'rank propensity'. In amplifying this submission, Mr Priest referred in detail to what he submitted were the differences between the allegations by the different complainants, and submitted that there was nothing which could be labelled as a 'modus operandi' or significant similarity of conduct which would render the evidence of one complainant admissible in the notional trials relating to the others. He submitted that 'similar fact' evidence, in any case, will only be received with 'great caution' because the risk of prejudice is high and that, absent the 'similarities' being 'striking', the evidence will usually lack the requisite probative force to render it admissible.

[29] Questions of the type which confronted his Honour in this case are not easy to resolve; the difficulties being compounded by the fact that the trial judge had - at least at the outset of the trial - only the depositions to work from. In this State, the issue is to be determined in accordance with s 398A of the Crimes Act; a provision which was introduced into the legislation by the Crimes (Amendment) Act 1997; the same legislation which introduced the amendments to s 372. Relevantly, for the purposes of this application, s 398A provides as follows:

[57]

The purpose and scope of these provisions was considered by this Court in R v Best. That decision makes it clear that the purpose of the section was to displace the 'no other reasonable explanation' test for admissibility of 'propensity evidence' as developed by the High Court in Hoch v R and Pfennig v R in favour of the 'just to admit the evidence despite its prejudicial effect' test enunciated by the House of Lords in Director of Public Prosecutions v P. Evidence which is broadly described as 'propensity evidence' will now be admissible provided that it is 'relevant to facts in issue in a proceeding' and if the court considers that 'in all the circumstances it is just to admit it despite any prejudicial effect it may have ... ' Issues arising as to the reliability of the evidence on account of possible collusion, collaboration or innocent infection are for the jury to decide.

[30] In DPP v P (above), the House of Lords was considering a case which, like this one, concerned the joinder in the one indictment of multiple sexual offences against multiple complainants. The issue was whether it was necessary, in the absence of 'striking similarity' for the charges to be tried separately. The Court of Appeal, following DPP v Boardman (above) held that it was. The House of Lords unanimously reversed that decision. Lord Mackay of Clashfern LC, who gave the leading judgment of the House said (at 460):

As this matter has been left in Reg v Boardman, I am of the opinion that it is not appropriate to single out 'striking similarity' as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another.

In so concluding, his Lordship went on (at 462):

When a question of the kind raised in this case arises, I consider that the judge must first decide whether there is material upon which a jury would be entitled to conclude that the evidence of one victim about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms, and while these forms may include "striking similarity" in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called ... a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.

(my emphasis)

These principles have been regularly applied in this Court in determining whether a trial judge had correctly exercised his discretion not to sever counts in cases such as this one on the basis that the evidence was admissible in accordance with the provisions of s 398A of the Crimes Act.

[31] Applying the principles to which I have referred, I cannot agree with Mr Priest that his Honour was in error in determining that the evidence of the complainants was mutually admissible. In this case, the issue was whether the offences had been committed; not the identity of the person who had committed them. It was not necessary to demonstrate, as I think Mr Priest was at times submitting, that there were 'striking similarities' between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct. Although his Honour did not elaborate his reasons for his ruling as extensively as he might have, it is evident from his reasons that he was of the view that there was an 'underlying unity' between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view - and I think correctly - that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy 'storage room', the toilets at the Plaza, the vehicle which he drove from his place of work or from work related functions. Whether one describes these factors as providing an 'underlying unity', or a common 'modus operandi' or a 'pattern of conduct' is of little consequence. The 'links' were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of 'infection' the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive - and in my view strongly supportive - of the evidence of others. Not only that, but - in my opinion - the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a 'prejudice' to the accused. But the 'prejudice' of which s 398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them. For the reasons which I have given, his Honour was

entitled to conclude that the evidence of each complainant went beyond evidence of 'mere propensity' as the applicant here submitted.

[32] For the reasons stated, I cannot accept that his Honour was in error in concluding that the evidence of each complaint was probative and admissible in the circumstances. I would accordingly reject grounds 1 and 2.

[80]

I turn to the question now of what in law is described as cross admissibility. Members of the jury in this trial you have heard evidence from four complainants. As I have instructed you, you must base your decision solely on the evidence relating to each charged offence and you must find each offence proven beyond reasonable doubt.

The prosecution submits that you should find the accused enjoyed a familial or domestic intimacy with the complainants. It contends this was a product of his relationships with the mothers of the girls. [The applicant] had a sexual relationship with [FD] the mother of two of the complainants, [FR] and [ES]. Also he was married to the sister of [SW] ,the mother of [JR]. [RD] the mother of the complainant [SK] was a boarder in the Willunga Street, Portland home of the accused.

The prosecution case is that the accused abused his position of power and authority to access the complainants and opportunistically sexually target them. It argues that the authority of the accused as an uncle, stepfather or head of the household made the girls more likely to comply with his sexual demands and less likely to complain about his conduct.

I direct you that if you accept the evidence of one complainant beyond reasonable doubt, you may use that complainant's evidence to more readily accept that the accounts of another complainant are so similar that they cannot be explained by coincidence. In such a situation you may infer that the only rational explanation for the similarities is that each of the complainants is telling the truth.

The defence has suggested that the evidence of each complainant is not true. In particular, it is said that the apparent similarities or circumstances possibly arise from contamination or collusion.

Mr Whitchurch argued that [FR] and [ES] had got together and discussed their stories before going to Manangatang and before later going to the police. He also suggested that the police had told [SK] and [JR] that there were other complaints before taking their own statements.

It is for you to determine whether or not the complainants were telling the truth. However, you may only draw an inference from the fact that they all gave similar accounts, if you accept that they did give similar accounts, if you are satisfied beyond reasonable doubt that their accounts were not contaminated in any way. If you think there is a possibility that [FR] and [ES] made up the fact of, or discussed the details of sexual abuse and that the evidence of the other two complainants is also compromised, then you may not draw that inference.

You will recall that both [FR] and [ES] denied discussing the details of their abuse with each other and that there is no evidence of [SK] and [JR] talking to each other or to [FR] or [SE].

In addition, the prosecution argues that in one aspect the accounts of two of the complainants were so similar that they cannot be explained by coincidence. Both [SK] and [FR] said that the accused told them that what he was doing was a game. If you accept this evidence from one complainant, beyond reasonable doubt, you may use it to more readily accept the account of the second complainant, because it is improbable that the two complainants would coincidentally provide such a similar account of the words used by the accused. Again, you can only draw such an inference from the fact that similar accounts were given if you are satisfied beyond reasonable doubt that the accounts were not contaminated in any way. If you think that there is a basis for contamination you may not draw that inference.

You must not use that evidence for any other purpose. In particular, you must not use this evidence to decide that [the applicant] is the kind of person who is likely to have committed the offences charged and to use this conclusion as evidence that he is guilty. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the case, not on assumptions about the kinds of people who commit crimes.

[83]

[38] However, I cannot agree that, in their context, the directions which his Honour gave transgressed those imperatives or were inadequate as has been contended. I say 'in their context' because his Honour's directions were not given in a vacuum. They were given after counsel for the prosecution and counsel for the accused had made lengthy addresses in the course of which the latter had subjected the evidence of the complainants to critical analysis, submitting that the jury should conclude that the evidence of each was unreliable. His Honour had directed the jury, in strong terms, that it was for them to determine the truth and reliability of the evidence of each witness and that, to the extent that it was rejected, it could not be used in their deliberations. It is apparent that it was in this context that his Honour directed the jury that they had to be 'logical and consistent' in applying evidential facts found or not found in respect of individual complainants in determining the strength of support which the evidence of each gave to the evidence of others. This Court has not had access to a transcript of counsels' addresses; but only to the summary made of them by his Honour. It is, however, significant that trial counsel for the applicant (a very experienced counsel in criminal trials) took no exception to the passages in the charge which are now claimed to be inadequate.

[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.

[96]

Of course then the Crown says, well, you know, there's the similarity aspect. If you accept beyond a reasonable doubt one person's evidence then one can look at the issue of drawing inferences from the similarities - the way he works as Mr Lewis put it to you. The difficulty about all that in a case like this is that when you look at the particulars or the offences, there's indecent assault, there's attempting or actually introducing penis into vagina or into mouth, the digital penetration or penile penetration. Those are the charges. Don't get confused with similarity in the context of what the charges are as opposed to the acts. It's the acts and the evidence which are really important, as to how you analyse those.

The small little snippet of - this is again - that's one incident that the prosecution say there's a sort of a coincidence that really goes - it goes to the extent where look you really can't say it's coincidence, it's really what the fact is. We would say that this isn't coincidence, this is simply just the way these respective women have said these things. It is very easy to say things like this. It is very easy to make statements. It might be said that it is difficult and difficult to talk about these things if it happened to you. I am not saying to you ladies and gentlemen that here we have, getting back to [SK], well over 20 years later, 23 years I think.

If you combine that with the aspects of unreliability and the lack of memory, you really are compelled in my submission to look at certainty becoming uncertainty. That uncertainty is the predominant point. You can't be certain about anything really, and that raises the point, there's got to be a very real doubt, a very real doubt about how the Crown puts the case.

Certainly you look at what's said about how things happened, but there's a recalled (indistinct) or it's what happened that you don't know about or what happened that's not talked about. Some things that are obviously, analysed to the Nth degree these days. Everybody is encouraged to think about some of these things. As I said yesterday, this time 40 years ago Neil Armstrong took a step on the moon, and as Barack Obama said today, that footprint is still there. Ideologically, and in a figurative sense, that's absolutely perfect, so poetic, so true; a great thing for man.

But when you're dealing with something like this, it's not just what's said and what's recalled. It's what is not said and it's easy to say, 'I don't remember, I don't remember it' without even attempting to try and remember I would think. So what I submit to you is that there are major holes in the evidence, to the extent that there's doubt which overwhelms this sort of neat construct that's been put before you in the Crown case.

At a glance

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Decision date

Before

Source

Judgment (148 paragraphs)

R J P v The Queen [2011] VSCA 443 (16 December 2011)

Parties

Cases Cited (2)