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[2011] VSCA 442
Court of Appeal (Vic)
2011-12-16
Mr J, Redlich JA, Neave JA
Original judgment source is linked above.
R v [RR] (Unreported, County Court of Victoria, Judge Bourke, 5 October 2009)
CRIMINAL LAW - Sexual offences by father with a number of children - Cross admissibility - Improbability of coincidence reasoning - Underlying unity - Quality of evidence considered - Adequacy of directions - Uncharged acts - Browne v Dunn direction - Whether breach of rule - Misdirection - Error to allude to recent invention -The Queen v Morrow [2009] VSCA 291; (2009) 26 VR 526 applied.
1 I have had the advantage of reading the draft reasons of Redlich JA. Although I agree with his Honour that Ground 1 is made out, I reach that conclusion on a more limited basis than that set out in his Honour's reasons.
2 In my opinion, RD's evidence in support of Count 3 that the applicant touched her in the buttock or anal area and that this had occurred on numerous occasions and RT's evidence that he was required to remove his clothes and participate in the 'watermelon dance' was capable of satisfying the description of coincidence evidence under s 98(1) of the Evidence Act 2008.
3 The combination of this evidence with RA's evidence that she had danced naked at the behest of the applicant, the applicant's admission that he had engaged in 'bum fucking' (albeit as an innocent family interaction) and the mother's evidence that she had observed him performing this gesture on the four older children, made it more probable that the applicant had committed the sexual acts against RA and RN of which he was convicted. While these activities may have had an innocent explanation, they had unusual features which were capable of being regarded as evidence of 'grooming behaviour'. It was a matter for the jury to decide whether this was the case.[1]
4 The fact that the sexual acts of which the applicant was convicted were much more serious than the acts alleged by RT and RD did not deprive RT and RD's evidence of its probative value in establishing that the applicant sought to create an atmosphere in the household in which the children were acclimatised to participating in conduct of a sexual nature, as a prelude to more serious sexual abuse. In a family situation, where the applicant involves all of the children in such behaviour, it would have an air of unreality to limit the effect of the grooming (if the jury accepts it as such) to evidence limited to providing the context for alleged sexual acts against only one child.
5 However, in my opinion, the probative value of RT and RN's evidence was substantially outweighed by its prejudicial effect. Accordingly, it does not satisfy the requirement in s 101(2) of the Evidence Act 2008. It is on that basis that I agree with Redlich JA that Ground 1 is made out.
6 The applicant was tried on a 16 count presentment alleging sexual offending against four of his seven children. At the conclusion of the Crown case an acquittal by direction was entered on seven counts. The applicant was found guilty on three counts of indecent acts with RA, a child under 16 (Counts 5, 7 and 10), one count of attempted incest with RA (Count 14), and one count of incest with RN (Count 15) and was acquitted on the remaining four counts. The applicant was found not guilty of three counts of indecent acts with a child under 16, and one count of incest.
7 Following a plea in mitigation the applicant received a total effective sentence of 10 years and was ordered to serve a term of eight years' imprisonment before he was eligible for parole.
8 The applicant seeks leave to appeal against his conviction on two grounds. Under the first ground it is contended that the trial judge erred by directing that the jury could treat certain evidence as demonstrating underlying unity with the complainants' evidence so as to make the complaiants' evidence more probable. The second ground alleges that the prosecutor was wrongly permitted to cross-examine the applicant about the failure of his counsel to put certain matters to his wife and that the trial judge misdirected the jury on this issue.
9 I shall briefly summarise the evidence on the five counts on which the applicant was convicted.
10 The applicant and his wife had seven children. The eldest son, RS born 24 August 1995; a daughter RA, born 29 October 1996; a daughter RN, born
4 February 1998; a son RT, born 6 May 1999; a daughter RD, born 14 June 2001; a daughter RR, born 16 March 2003; and a daughter RK, born 13 July 2004.
11 The conduct the subject of the offences on which the applicant was convicted took place between 1 January and 20 February 2006. The applicant was between 49 and 50 years of age. RA was then aged nine and RN seven or eight years old. By January 2006 the applicant and his wife were sleeping in different parts of the family home. The applicant was sleeping in his oldest son RS's bed. The conduct the subject of Count 5, which alleged an indecent act with a child under the age of 16, was that the applicant rubbed lubricant on RA's vaginal area in a bedroom at their Hurstbridge home. A bottle of 'wet stuff' was tendered in evidence; a sexual lubricant or aid which was used by the applicant and his wife.
12 The conduct the subject of Count 7, a further indecent act with RA occurred in the applicant's bedroom at the Hurstbridge home. The applicant placed lubricant in RA's hand and had her masturbate his penis to the point of ejaculation.
13 The conduct the subject of Count 10, also a count alleging an indecent act with RA, occurred when the applicant, whilst bathing RA, rubbed her vaginal area.
14 Count 14 alleged attempted incest of RA. The applicant who was then sleeping in his son RS's room took off RA's clothes and took her to his son's bed. The applicant was also naked. He lay on top of her and attempted to penetrate her vagina with his penis. He could not achieve penetration and rubbed his penis up and down on her vagina.
15 The conduct the subject of Count 15 occurred in RA and RN's bedroom at the Hurstbridge home. The applicant entered the bedroom in the morning. RN was wearing her nightgown. Her sister RA was asleep in the next bed. The applicant was naked. He got into RN's bed, pulled her pants down and rolled her on top of him. He penetrated her vagina with his penis.
Ground 1 - Similar fact/underlying unity evidence
The learned trial judge erred, and a substantial miscarriage of justice was caused thereby, in admitting the evidence of child witnesses [RD] and [RT] on the basis that such evidence could be used by the jury to reason that in all probability the Applicant had displayed a distinct modus operandi and/or that there was an underlying unity to the Applicant's alleged criminal activity when viewed in its totality.
16 This ground, though expressed in terms of admissibility, concerns the directions given by the trial judge that the jury could employ improbability of coincidence reasoning with respect to certain evidence said to establish underlying unity or pattern and which thereby rendered it more probable that the complainants' evidence was true. The impugned evidence said to permit improbability of co-incidence reasoning related to two matters. The first was the evidence of RD another of the applicant's daughters. She was the complainant in Counts 3 and 4. She described the applicant's conduct of 'butt fucking' her. The second was the evidence of the applicant's son, RT, the complainant in Count 1. He testified as to the context in which the conduct the subject of Count 1 occurred. He described that setting as 'watermelon' dancing. The evidence of RD was led in support of Count 3. The evidence of RT was led as the context in which Counts 1 and 2 occurred.
17 RD gave evidence of the applicant 'bum fucking' her by putting his hands up her butt and inside her underpants. She also said she had seen her father put his hand up RA's butt hole.
18 Evidence was also led from the applicant's wife that the applicant engaged in 'butt fucking' or 'bum fucking'. She stated that she had seen the applicant perform the gesture on the elder children RS, RA, RN and RT whilst they were fully clothed. However, only the evidence of RD as to this conduct was relied upon by the prosecutor and identified by the trial judge as relevant to improbability of coincidence reasoning concerning the complainants' RA and RN's accounts.
19 It was not apparently in issue that the children were allowed to view movies which had adult themes and sexual content such as 'Team America', 'American Pie', 'Something about Mary' as well as 'Little Britain' and 'Sex and the City'. The applicant testified that 'bum' or 'butt fucking' was an idea that was inspired by the TV show 'Little Britain'. It involved the open face of the hand moving laterally between a person's legs near their bottom accompanied by an exclamation 'eh eh eh'. The applicant admitted to performing the gesture on his family members including his wife. The applicant denied performing the gesture outside of the house, or under the clothing of the children.
20 It will be necessary to return to the different ways in which the trial judge instructed the jury that they could use the evidence of RD as to 'bum fucking' and the evidence of RT as to 'watermelon dancing'.
21 The applicant's wife and some children gave evidence about the watermelon dance. RA said the family were living in Melaleuca Avenue, Lower Templestowe at the time. RA first performed the watermelon dance. She climbed onto a glass coffee table in the family room of the house and started doing a striptease type of dance. RA removed all of her clothes as she danced on the coffee table singing 'what do you do with an empty vagina? Fill it up with watermelon juice'. The evidence of RT was also that he had to do the dance. He performed it naked in front of the family swinging his clothes around above his head. He said he did not like it but was afraid that the applicant would hit him if he did not do it. He observed RA also do it.
22 Counts 1 and 2 on the presentment alleged that RT licked his sister RN's vagina at the instigation of the applicant in the context of RT and other children doing the 'water melon dance'.
23 The applicant stated that the dance was only performed once in his presence and that he did not request RA or any of his other children to perform the dance or to perform any sexual act.
24 The Crown relied upon a combination of the evidence of RN in her VATE, RA RT and RS in support of Counts 1 and 2. By the end of the trial the evidence in support of that count was in a most unsatisfactory state. RT said he did not remember being required to lick RN's vagina after he performed the watermelon dance. His older brother, RS said that he heard the applicant make such a request of RT but did not see it performed. RN, who had initially stated that RT had licked her vagina, subsequently said at the special hearing that she did not remember such an incident. Only RA gave evidence that she observed RT do this to RN. Given the state of the evidence the jury returned unremarkable verdicts of not guilty on Counts 1 and 2.
The argument as to cross-admissibility of RT and RD's evidence
25 Shortly before charging the jury, the trial judge expressed the following view about cross-admissibility:
On this cross-admissibility argument, that is how broadly it covers the various witnesses, it seems to me that you had five of the accused's children giving evidence. RT makes no allegation against him or against others. RS, ultimately, makes no allegations against himself and ultimately against himself, so you are left with the three girls and when you look at the counts, every count left now but for count 1, I think, relating to RT, are the two older girls, all that RD speaks of that the jury could use in any way on a cross-admissibility basis is what she says about the putting of the hand at or near her buttocks, which presently now has only been stated as an uncharged act and I would have thought a pretty ambiguous one. In the range of uncharged act material you've got much better stuff than that I would have thought. I am inclined at the moment to direct the jury that the only two witnesses they can use as cross-admissible relevant on each other are RN and RA, as to the allegations that they make.
26 That view was in my opinion entirely correct. But the trial judge was subsequently persuaded to depart from this position. The prosecutor submitted that 'probability reasoning' permitted the evidence of the witnesses RT, RD and RS to be considered in conjunction with the two complainants because they 'say similar things about, I'll call it a pattern of abuse'. On appeal senior counsel for the respondent drew attention to the fact that both the 'watermelon dancing' and 'butt fucking' were associated with a video known as 'Little Britain', a family video which had been viewed by all of the children. Senior counsel submitted that both of these incidents demonstrated an intent by the applicant to break down the children's 'modesty' and disguise such conduct as play. Neave JA has concluded that the evidence was capable of supporting an inference of grooming behaviour towards all of the complainants. Even if that is so, and I express no view on that question, the Crown did not invite the jury to use the evidence in that way nor did the trial judge instruct the jury to that effect.
27 Both before the trial judge and on appeal it was submitted that neither RT's account of his 'watermelon dancing' or RA's account of 'bum fucking' permitted improbability of coincidence reasoning that could support the credit of RA and RN who claimed that the applicant undertook penile penetration of their vaginas. It was submitted at trial that even if the conduct described by RT and RD had a sexual connotation so as to permit the inference that the father had embarked upon a corrupt sexual course of conduct with any of them, the substance of their accounts could not be used to support an allegation of sexual penetration of another older child who did not identify that form of grooming as having been a step on the way to that sexual penetration.
28 Following an examination of the evidence of these witnesses his Honour then said:
I see some difficulty in it but I am presently of this view, perhaps not concluded, that the pattern, the style of consistency or the pattern of consistency, the notion that lies at the heart of Papamitrou and those other cases that deal with cross-admissibility, that pattern in this case said to exist by the Crown is that of, to paraphrase some of what Mr Stougiannos said, a systematic, partly opportunistic, but also controlling sexual abuse or offending against his children within the confines and safety of his own home, including the use, including the exploitation of their youth and such things as the corruption of usual activities such as the watermelon dance and such as the bum fucking.
If the jury found that such activities did have a sexual connotation and wasn't what you put to witnesses, simply a matter of byplay within the usual confines of family relationship, bearing that in mind I think it is hard to say that the evidence of RT about the watermelon dance in which he says he takes his own clothes off had he had to do 'a worser one' and that his father required to do it, if the jury sees a sexual connotation in it and the evidence of RD about the movement to her buttocks, if the jury found a sexual connotation to it are not part of the proofs that go towards showing that pattern and therefore are cross-admissible, subject to this, but it certainly doesn't take up the major or significant part of the cross-admissible evidence, that seems to lie within the allegation of the two older girls...
If the evidence is capable of showing that unity, consistency or pattern that I described before. It is not really a common feature, although some exist, it is not really common features or similar fact situation or akin to that. Without repeating what I said before, the pattern that is put here by the Crown which justifies its admissibility and indeed the Crown seeks to justify a conviction by it, is that this was a father who exploits his position opportunistically, controllingly ... that necessarily imposed the corrupting towards sexuality of certain otherwise susceptibly innocent acts.
29 Later and before his directions his Honour further said:
The glue that holds it together here is that the Crown in effect is alleging that the combined evidence of the two older girls and that evidence by the two younger show a pattern of conduct, a pattern of systemic sexual conduct with or against a number of his children which was opportunistic and controlling.
30 His Honour did not elaborate these reasons in ruling the evidence cross-admissible but they were to a large extent reflected in his charge. On appeal they were treated as his reasons for allowing the evidence to be so used.
31 It is necessary at this stage to explain that the trial judge also ruled the evidence of RT and RD could be used as evidence of uncharged acts. The trial judge had directed acquittals in respect of four counts of indecent acts of a child under 16 (Counts 3, 9, 11 and 12), one count of attempted incest (Count 6), and two counts of incest (Counts 4 and 13). These counts related to RA and RD. Significantly, the conduct the subject of Count 3 was the allegation by RD that the applicant touched her in the buttock or anal area described by her as 'bum fucking'. It was the subject of a directed acquittal because the Crown was unable to specify to which of the many occasions of 'bum fucking' the count related. That was also the reason for directed acquittals on other counts.
32 The trial judge gave a direction immediately following the directed acquittals that the evidence the subject of the counts of directed acquittal, with one exception not presently relevant, could be treated as evidence of uncharged acts which the jury could take into account for a limited purpose in accordance with an earlier direction which his Honour reminded the jury he had given concerning uncharged acts. He had previously instructed the jury that evidence of an uncharged act of sexual activity was admissible for the purpose of showing that the applicant had a sexual interest in the complainant on the count they were then considering, so as to place the evidence of the alleged offence in a more complete and realistic setting. Given the basis for the directed acquittals, no complaint was made at trial or on appeal that in principle the evidence on these counts, if relevant, could be used by the jury as evidence of uncharged acts when considering the counts remaining on the presentment.
33 In closing, the prosecutor submitted to the jury that there was a vast body of sexual abuse constituted by uncharged acts and the evidence of the offences charged and that the cumulative effect of that evidence was overwhelming. The prosecutor spoke of probability reasoning suggesting that it was incredible to accept that all these children would 'come up with' these allegations. He made no specific submission about how the jury could use RT's evidence about watermelon dancing or RD's evidence about bum fucking.
34 The defence submitted that the term 'bum or butt fucking' was a gesture derived from a family video 'Little Britain' as was the watermelon dance. In closing, the applicant submitted that these events were innocent but had been given a sinister interpretation by the prosecution.
35 Having reminded the jury of the direction he had given as to separate consideration of each count, his Honour then instructed the jury as follows:
This direction I'm about to give you applies to your use of the evidence mainly on RA and RN about what they say happened to them, but also to some of the evidence of RD and RT.
1: RD speaks of her father putting his hand up or in the area of her bottom. It is the activity she and others call bum or butt fucking. At one point in cross-examination she states that that was inside her underpants.
2: RT speaks of being required to do the watermelon dance he said, and I recollected his VATE, therefore evidence-in-chief; but he didn't really know much about it. It entailed him, this is the evidence - my paraphrase - him taking his clothes off and swinging them around. Now of course you will bear in mind that the accused's position and evidence is that he did not ask any of his children to perform any kind of sexual dance and that butt fucking was in effect an innocent non-sexual bit of family fun.
3. The Crown argues to you that the combination of the evidence of what RA and RN say happened to them and the evidence of RD and RT about those two matters shows a pattern of conduct by the accused, that is a pattern, the Crown argues to you, a pattern of systemic sexual conduct with and against a number of his children which was opportunistic and controlling and exploited the privacy of family life, its relations and its activities. Now the evidence of what RA and RN say about what happened to themselves is of course directly relevant to those counts, eight of the counts on this Presentment.
4. Further, and I'm giving another direction now, further, the evidence of what RA and RN say happened sexually to them and that evidence of RD and RT I have identified just a moment ago, may also be used as relevant to all nine counts. Do you follow what I am saying?
5. Now, it is so relevant for a very limited purpose. That purpose is this: the combination of their evidence, the Crown says, shows underlying unity, such a consistency of pattern that it is improbable that that evidence is not true and particularly improbable, the Crown says, that the evidence of RA and RN is not true, that is their evidence directly related to the alleged offences.
6. Now, whether you accept or believe their evidence of the four children we are talking about is a matter for you. Whether it shows, if accepted, such consistency of pattern as the Crown argues to you, is also a matter for you...
7. The Crown says the evidence of RA, RN, RD and RT does emphatically, the combination of it, does emphatically show the pattern of conduct alleged.
36 The trial judge concluded that the jury could, by a process of probability reasoning, use the evidence of RT and RD to render more likely the accounts of the complainants that the applicant committed the alleged offences.[2]
The evidence of RD and RT - Does it exhibit those qualities which would permit 'improbability of coincidence' reasoning?
37 Probability reasoning involves the drawing of an inference from the improbability of two or more accounts or acts occurring in the absence of a common element.[3] The ability to draw such an inference depends upon the existence of some similar or common feature that cannot be explained by coincidence.[4] In R v Rajakaruna (No 2)[5] I said:
The probative capacity of similar fact evidence rests upon the improbability of coincidence of the similar facts asserted by the different complainants. The question which the jury were to ask themselves is whether the similarities between what the applicant was alleged to have said and done to each complainant were so unlikely to be mere coincidence as to permit the drawing of the inference that the applicant engaged in a course of conduct which each of them alleged.[6]
38 Such reasoning may extend to the evidence of witnesses who are not complainants testifying as to an alleged offence. At common law and then under s 398A of the Crimes Act 1958, which governed the admission and use of the impugned evidence at this trial,[7] the probative value of the evidence said to support the inference must be sufficiently high to render it just to admit the evidence, notwithstanding any prejudicial effect.[8] Commonly therefore, courts look for a 'striking similarity', 'underlying unity', 'common modus operandi' or pattern between the evidence to be admitted and the evidence of the offence charged or evidence which establishes a 'tendency to do something unusual'.[9] The oft quoted passage from the speech of Lord Mackay of Clashfern LC in DPP v P, contains the requirement that a 'signature' or 'other special feature' must be found for similar facts to be received. The judgment of Winneke P in R v Papamitrou[10] drew heavily upon these observations. While 'signature' may be a focus at the trial, dissimilarities will be a relevant consideration for the trial judge in assessing the probative force of the evidence.[11] Cases such as Papamitrou and R v DCC[12] recognise that it is unnecessary to demonstrate that there was 'striking similarity'[13] between the accounts so long as there is a 'sufficient connection in time and circumstances' between the accounts or acts alleged. The process of reasoning involved is that of 'admeasuring the probability or improbability of the fact or event in issue, ... given the fact or facts sought to be adduced in evidence.'[14] It requires a nexus between the various sets of allegations such that they must either all be true or have arisen from 'a cause common to the witnesses or from pure coincidence.'[15] In Papamitrou there were common features of the offender's conduct as he used 'a similar method of seduction and exploitation' so that the evidence of one victim was 'so related to that of other victims about what had happened to them' as to provide strong support for the evidence of the others. The evidence could then support the necessary inference. Such evidence must demonstrate an 'underlying unity' or a pattern of conduct such that the evidence is strongly probative and outweighs any prejudice flowing from its admission.[16]
39 The criteria of 'a sufficient connection in time and circumstances' stated in Papamitrou, and which appeared to influence the trial judge in the present case, is not to be understood as dispensing with the requirement that the evidence possesses some unusual features common to the events in question or that there be a combination of features common to the events in question which renders it improbable that those persons would give such accounts of the events if that conduct did not in fact occur. In CGL v DPP,[17] after referring extensively to the judgment of Winneke P in Papamitrou, the joint judgment concluded that there was no sufficient connection in either time or circumstance between the alleged similarities of the different acts which could raise any issue of the improbability of coincidence.
For the most part what was said to be similarities were features which would characterise almost any allegation of sexual offending against a young girl, or was so non-specific (allegations of touching/rubbing of the vaginal area) as to reveal nothing distinctive about any particular alleged act. They were 'in reality, unremarkable circumstances that are common to sexual offences against children'.[18]
40 CGL v DPP was concerned with both tendency and coincidence evidence under the Evidence Act 2008. For evidence of either to be admitted, relevant similarities must be present otherwise the evidence would be 'pure propensity evidence' and would not demonstrate 'underlying unity' or a 'common modus operandi' or a 'pattern of conduct' which would justify cross-admissibility. These considerations were repeated in GBF v The Queen[19] in the context of dealing with tendency evidence. Drawing upon common law conceptions of similar fact evidence the Court said:
Accordingly, one is loath to accept that offending on one occasion is significantly probative of offending on another unless there are significant or remarkable similarities as between previous acts and the act in question or as between the circumstances in which previous acts were committed and the circumstances in which the act in question was committed or, more compendiously, unless the evidence reveals a pattern of conduct, modus operandi or some other underlying unity which logically implies that because the accused committed the previous acts or committed them in particular circumstances he or she is likely to have committed the act in issue.[20]
41 These considerations also apply to evidence admitted under s 398A. In MRO v The Queen[21] it was again stated that for evidence to be cross-admissible under s 398A there must be features of 'commonality' otherwise the evidence would simply be evidence of propensity showing that the accused was the 'kind of person' likely to have committed the alleged offences.[22]
42 Let it be assumed in the prosecution's favour that the acts of RT and RD described had a sexual connotation which involved the applicant. There were no similarities between the acts described by RT and RD and the applicant's acts described by the complainants RA and RN as would make it unlikely that the complainants' accounts were mere coincidence and so support the inference that the applicant engaged in the course of conduct which the complainants alleged. In my respectful opinion, the trial judge was in error in concluding that the events or circumstances described by RT and RD could logically form part of any process of improbability of coincidence reasoning with the accounts of RN or RA. The fact that the applicant was a father occupying a position of authority within the household and who, on the children's accounts, by various and quite differing conduct opportunistically exploited the privacy of family life for sexual purposes, did not, without features of similarity, enable improbability of coincidence reasoning. Without more, if the evidence of RT and RD was accepted as having a sexual connotation, it established only a father's propensity to engage in sexual acts but not underlying unity or a commonality of features. [23]
43 The trial judge's initial reaction to the prosecutor's invitation was the right one. RT's account involved no sexual impropriety associated with the watermelon dancing. The jury subsequently acquitted the applicant on Counts 1 and 2. The evidence of RD as to bum fucking was ambiguous. At its highest the evidence disclosed that the applicant was prepared to engage in conduct which had a sexual character or encouraged his children to engage in conduct of that nature. Beyond that tendency, there was no feature of RD or RT's description of the events that rendered it more likely that the applicant would engage in entirely different and more serious sexual conduct such as attempted or actual penile penetration with other of his children. The direction which the trial judge gave the jury would not have enabled them to recognise that the evidence did not have the necessary quality to permit such reasoning. It amounted to an instruction that the jury might reason that if the applicant had the tendency to commit an act which had a sexual connotation with one child, then it was more likely that he committed the sexual acts alleged by the complainants. His Honour should not have left the evidence of RT or RD to the jury as evidence that permitted improbability of coincidence reasoning.
44 If contrary to my conclusion, the evidence of RD or RT did have the necessary commonality of features or underlying unity with the complainants' RN and RA's accounts, the concept of probability reasoning had to be sufficiently explained to the jury so that the basis for drawing the inference was understood.[24] The direction to the jury did not adequately focus the jury's attention on the question whether the evidence of RT and RD exhibited features which made it improbable that their account and that of the complainants was co-incidence. It referred to a 'consistency of pattern', earlier explained as 'a pattern of systemic sexual conduct' that made it improbable that the evidence of the complainant was not true. There was no instruction that the jury consider whether there were similarities between the accounts of RT or RD and the complainants which rendered it improbable that the complainants' accounts were only coincidence. The jury were left with the impression that if they accepted that the evidence of RT and RD established that there was a sexual connotation, then the sexual acts alleged by the complainants were rendered more likely. That was an invitation to engage in propensity reasoning. The risk that the jury might do so was unfortunately exacerbated by his Honour's instruction that their evidence could be viewed as uncharged acts.
45 The direction given during the charge as to uncharged acts was expressly stated to include the evidence of RD as to 'bum fucking' and the evidence of RT as to 'watermelon dancing'. The direction as to uncharged acts followed his Honour's impugned instructions to the jury, the subject of Ground 1, that they could use the evidence of RD and RT in combination with the two complainants, RN and RA to show a pattern of conduct by the applicant. His Honour then directed the jury that they could use the evidence of the complainants RN and RA of other sexual acts of the applicant on occasions other than those charged such as penetration or attempted penetration of their vagina by the applicant, digital penetration and masturbation, as uncharged acts showing his sexual interest in that complainant. His Honour continued:
Now, that is the conduct that was, to remind you, originally the subject of those counts that you, upon my direction, acquitted earlier in the trial because they failed to sufficiently identify a specific occasion, that the evidence has remained before you in a more general way. Do you follow that?
Now, the other evidence relevant to this direction about what I was calling uncharged acts and now calling other sexual conduct, sexual conduct outside these nine counts that are left, the other evidence relevant to the direction is that of RT about the watermelon dance and RD about butt fucking. In other words, that very evidence I identified for you for the purposes of the last direction I gave you about the use of the combination of the four children's evidence.
46 His Honour then explained to the jury that the normal rule is that an accused can only be convicted on evidence which relates to a defined offence. He then said:
It follows that the normal rule in any trial is that evidence of criminal acts not charged on the presentment is not led, it is not admissible. In this trial, as has been made clear to you, there is an exception to that, there is this other sexual conduct which is not directly related to or about the nine counts alleged. Now, given it is an exception to the norm to lead such evidence there must be a legitimate reason or purpose for leading it, and this is important, it must be used by you only for such limited purpose.
Now, here the evidence of the other alleged sexual conduct is admissible for this purpose, showing, the Crown says, that a sexual relationship existed between the accused and the relevant child or complainant. Put another way, that he had a sexual interest in the particular complainant, depending on which count you are looking at. Thereby, the Crown says, the evidence of the other sexual conduct alleged places the evidence of the alleged offences, those on the presentment, in a more complete and realistic setting.
Now, you may use evidence of the other alleged conduct only on such a restricted basis, that is only for such restricted purpose.
...
It would be wrong to reason that because the accused did some or all of these other things alleged, the other sexual conduct, that he is therefore the kind of person likely to have committed the offences that are charged on the presentment.
...
Now, it is important that I make it clear to you that evidence of the other alleged sexual conduct is only relevant for the limited purpose I've described, that is, briefly put, the nature of the relationship alleged. It is not relevant to show that the accused is likely to have committed the offences charged because he is that sort of person.
47 The instruction that they could use the evidence of RT as to 'watermelon dancing' or the evidence of RD as to 'bum fucking' as disclosing a sexual interest by the applicant 'in the relevant child or complainant' was erroneous and dangerous as RT and RD were not complainants. Notwithstanding the warning at the end of this direction that the jury should not engage in propensity reasoning, it is difficult to see how the jury might have otherwise used a finding that the applicant had a sexual interest in RD or RT. As the prosecution did not suggest that the applicant engaged in any sexual act with RT, the jury may have understood the description of RT's account as an uncharged act as a reference to the applicant's daughters, said to be present at the time of the 'watermelon dance'. The direction permitted the jury to use the evidence of RD and RT as disclosing a sexual interest that could be used in combination with the complainants, RN and RA. The direction thus served to further distract the jury from the reasoning process of identifying similarities or common features between the evidence of RT, RD and the complainants if they were to infer that their evidence was improbable coincidence. It substantially increased the risk that the evidence of 'watermelon dancing' or 'bum fucking' would be used to engage in propensity reasoning.
Ground 2
A substantial miscarriage of justice occurred by reason of the prosecutor being permitted to cross examine the applicant (a) as to his failure to produce items of evidence that might have supported his viva voce evidence and (b) as to the fact that certain matters were not put in cross examination to [the applicant's wife] the impropriety of such cross examination not having been remedied by judicial direction.
48 Under cover of this ground the applicant contends that the prosecutor had impermissibly cross-examined the applicant as to the fact that certain matters were not put in cross-examination to prosecution witnesses and that he had failed to produce items of evidence that might have supported his viva voce evidence. Secondly, it was submitted that the trial judge gave an inadequate direction concerning the alleged breach of the rule in Browne v Dunn.
49 The applicant initially contended that on three discrete subjects the prosecutor impermissibly suggested that the applicant had testified as to matters which his counsel had failed to put to witnesses.
(a) That none of the complainants would ever enter the applicant's shed or 'sacred place'
50 Although some of the acts were said to have occurred in the applicant's shed, it was not put to any complainant that they were not allowed to and did not enter the applicant's shed.
51 In his closing address the prosecutor submitted that the applicant, through his counsel, had failed to put to any of the prosecution witnesses that the shed where it was alleged some of the offences had been committed was a 'no go zone' for the children and that they were not permitted to enter the shed. It was submitted that the first occasion that that suggestion was made was during the course of the applicant's evidence. The prosecutor further suggested that someone with the applicant's experience as a police officer would have known that it was fundamental to put such a fact to the children and to the children's mother and that the failure to do so was not an oversight. The prosecutor suggested in closing that it had not been done because the applicant did not want to give any of his children or their mother the opportunity to answer his claim that the shed was not a place to which they were allowed to go.
52 When pressed, counsel for the applicant conceded during oral argument that this was a matter that should have been put to those complainants. Not only had those complainants been denied the opportunity of contradicting the applicant's claim that they were not allowed to go into his shed but the applicant's wife was also denied the opportunity to give evidence about that allegation. Accordingly, counsel did not further press this subject in aid of this ground of appeal.
(b) Whether the complainants ever fantasised or dreamed
53 The last question asked by the prosecutor before objection was taken to the line of cross-examination suggesting that there had been a failure to put matters to prosecution witnesses was the question whether the applicant had ever asserted that his children were prone to fantasy or dreams. This question was not linked to any suggested failure by the applicant's counsel to put any question to prosecution witnesses. Objection was taken before the applicant responded to that question and this subject was not returned to.
54 Nonetheless, counsel for the applicant initially contended that the jury would have treated this subject as encompassed by the prosecutor's comments, and later the judge's direction concerning the failure of the applicant's counsel to cross-examine the complainants.
55 The applicant advanced as an explanation for the complainants' evidence that his wife had coached and manipulated the children to make these allegations in order to further her claim for custody of the children. On appeal it was conceded that it was no part of the defence case to suggest that the children's allegations could be explained as fantasy or dreams. It was further conceded that it was permissible for the prosecutor to ask such questions in order to establish that the applicant was not advancing some other explanation for why his children might have made the allegations which they did. Accordingly, this subject was not further pressed in support of this ground.
56 I turn then to the only aspect of this ground that was ultimately relied upon during oral argument.
(c) The applicant's work as a handyman - whether there was opportunity to commit the offences alleged
57 The applicant and his family lived at Melaleuca Avenue, Lower Templestowe between early 2000 and January 2004. The family then moved to Nola Street, Doncaster. From January 2005 to February 2006 the family lived at Bingley Avenue, Hurstbridge. During that time the applicant did not work on a full-time basis. He said he worked in security and as a handyman but his primary source of income was a disability pension from his former career as a police officer.
58 The prosecutor cross-examined the applicant extensively about his work during the relevant period. Objection was taken to the cross-examination attention being drawn to the fact that save for Counts 1 and 2, all of the counts covered a period only from January 2005 to February 2006. His Honour overruled the objection stating in the jury's presence that opportunity is almost always a matter of relevance in defending in cases like this.
59 Although the applicant did not suggest in his evidence that his work prevented him from having the opportunity to commit the offences alleged, the prosecutor obviously thought that was the purpose of his evidence-in-chief. When raised by the prosecutor, the applicant denied that he was making any such suggestion on a number of occasions during the cross-examination. He maintained that he had not regarded the fact that he may have been out of the household for many hours in some weeks as significant as he and his wife shared the responsibility of looking after the children during this period and that he was basically housebound with so many children. The applicant's evidence was plain enough that he was not suggesting that because of his part-time work, there was no opportunity for him to commit the offences alleged.
60 The criticism of the prosecutor's initial cross-examination is unjustified. However, once it was clear from the applicant's evidence that he had not intended to suggest by his evidence about his hours of work that he could not have committed these offences, there was no purpose to be served in further cross-examination as to why this particular matter had not been raised with Crown witnesses. The applicant's working hours was said at trial and on appeal to be relevant only to the forensic disadvantage which the applicant was said to suffer arising from the delay in the making of the complaints.
61 Prior to closing addresses his Honour stated his intention to give the jury the first limb of a Browne v Dunn direction which would include the fact that the complainants' mother had not been given the opportunity to respond to the evidence subsequently given by the applicant that he worked part-time 30 hours or more per week. As to the particular matter, the applicant's counsel expressed concern that the applicant had not suggested in his evidence that there was no opportunity to commit these offences and that in that regard no breach of any limb of the rule in Browne v Dunn had occurred. He made it plain that he did not intend to make any such suggestion to the jury in closing address.
62 His Honour considered the prosecutor's cross-examination was permissible because his working hours had been opened up in evidence-in-chief and that there was no impropriety associated with the prosecutor's cross-examination. That conclusion, though attacked on appeal, was one perfectly open to the trial judge.
63 The only real issue on appeal was whether on the subject of the applicant's hours of work, any direction should have been given and whether the direction went too far. His Honour considered that the only relevant point to be made to the jury was that they had lost the opportunity of a response by witnesses to certain matters raised by the applicant. Significantly, his Honour recognised that any direction should be tempered as this was not a case in which it would be appropriate to suggest that any breach of the rule in Browne v Dunn could support a suggestion that the applicant's evidence was recent invention. He said that the jury should be told that they should not be overly distracted about the principle in Browne v Dunn and should focus on the evidence that they had heard. The prosecutor agreed.
64 The prosecutor said in closing that the applicant only raised 'late in the piece' the fact that he was working as a handyman in the order of 30 hours per week but that any lack of opportunity was not raised with the children or their mother. The implication in the prosecutor's closing remarks was that the applicant had belatedly raised this issue after the Crown witnesses had completed there evidence. He further submitted that the applicant had failed to produce tax records for anything else that might assist the jury in concluding that he worked such hours.
65 In the charge his Honour referred to the applicant's evidence that he worked as a handyman up to 30 hours per week between January 2004 and 2006. His Honour said:
He was tackled on the basis that it wasn't put to his wife that he was working such long hours in the face of what his wife had said about him being at home most of the time and there were other aspects of the cross-examination as it developed, put to him that various witnesses, mainly his wife, perhaps also the children, mainly his wife had not had things put to them that he, upon one view, spoke of in evidence now. Now that's led me to see it as necessary to say something to you as a matter of legal direction about that.
This alleged or perceived failure to put things to witnesses can have a number of possible consequences. If something is not put one consequence that did exist here is the trial, including you, doesn't have the benefit of the answer of the earlier witness to the proposition. That witness doesn't have the opportunity to respond to something that may in some cases be an allegation or the like, or at least respond to any proposition of relevance and we don't have the advantage of having heard and observed what that response might have been. Now, that can be said in this case in respect of the aspect of evidence I have just brought up, the working hours and perhaps some others as they developed in cross-examination.
Sometimes a perceived failure to put or a failure to put can be used to reflect upon the credibility of the relevant party in this case the accused. For example, this logic can be used. If he didn't tell his barrister or counsel he may now, if he is saying it, have made it up, recently invented it. Now, you would be very careful about using this aspect of the cross-examination, to putting that his barrister failed to put certain things about using that aspect or those aspects of this cross-examination which is in any way related to the accused's credit or credibility. You would be careful about that. There can be many explanations for a perceived failure to put matters. Communications even between barristers and clients can be an inexact science. People can have a different perception of a significance of a piece of information and indeed counsel, in relation to that counsel may decide not to raise something. Now I am not saying any of those things happened here but you have got to consider the possibilities. I think the best approach to it is, to these areas is this, that you would recognise, yes, you haven't had the opportunity of hearing what the response of [the witnesses] was to the proposition that he was working longer hours than she said he was, but it may be best at the end of the day to concentrate on the evidence that has been led before you. That's what I want to say to you about that.
66 The respondent submitted that the subsequent direction by his Honour was appropriate and temperate as his Honour intended. Moreover, no redirection was sought, notwithstanding that contrary to his Honour's earlier stated intention, his Honour specifically adverted to the possible explanation that the applicant may have made up or recently invented that evidence. The Crown submitted that his Honour had gone far enough to ensure that the jury would be alert that they should not accept such an explanation unless all others could be excluded.
67 The circumstances in which non-compliance with the rule in Browne v Dunn should be permitted to become an issue in a criminal trial were comprehensively considered in The Queen v Morrow.[25] Nettle JA and I each observed in Morrow, that where there has been a breach of the rule in Browne v Dunn, a trial judge should seldom proceed beyond a direction to the jury as to the potential disadvantage to Crown witnesses arising from the omission to put matters in dispute to that witness. Here the matter of the sanctuary of the shed was the one matter which the applicant conceded justified a direction concerning the weight or cogency of the evidence or argument relating to the allegation that it was not 'put' to relevant witnesses.[26] But this topic was not the subject of explicit mention in his Honour's charge. Rather his Honour, like the prosecutor, focused upon the applicant's hours of work and his opportunity to commit the offences. Given the applicant's evidence and the fact that counsel in argument before closing addresses eschewed any suggestion that the applicant did not have the opportunity to commit the alleged offences and raised no such argument in his closing address, this issue should not have been the subject of any Browne v Dunn direction at all. It should have been treated as a non issue once it was clear that such a suggestion was no part of the defence case. The only direction called for was to instruct the jury that on this topic it could not be said there was any failure by the applicant's counsel to put such allegations as it was not the defence case that the applicant had no opportunity to commit the offences alleged. Further the jury should have been instructed that this was not an issue that could in any way affect the applicant's credit.
68 This was not one of those rare cases that would have warranted a direction suggesting that non-compliance with the rule could support recent invention and
thereby affect the credibility of the accused.[27] It is not clear why his Honour departed from his own advice that this was not an appropriate case in which to suggest that some of the applicant's evidence was recently invented. Such a suggestion is, as I said in The Queen v Thompson,[28] a potentially damaging allegation. His Honour's efforts to soften its effect by the further direction that they concentrate on the evidence that was led rather than consider that possibility could not remove the prejudice arising from the instruction. No basis for drawing an inference of recent invention could arise. However, as no objection was taken to his Honour's direction, I do not regard the error as one which, standing alone, establishes that a miscarriage of justice has occurred.
69 I would grant leave to appeal as a consequence of the errors established under Ground 1. The appeal should be allowed and the convictions quashed. I would order that the applicant be retried.
70 I agree with Redlich JA, generally for the reasons he gives, that the application for leave to appeal against conviction should be granted, the appeal allowed and a new trial ordered.
[1] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228.
[2] R v EF [2008] VSCA 213.
[3] R v Rajakaruna (No 2) [2006] VSCA 277.
[4] R v Buckley [2004] VSCA 185; (2004) 10 VR 215; R v DD [2007] VSCA 317.
[7] Such evidence is now treated as either tendency or coincidence evidence under the Evidence Act 2008.
[8] R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412; DPP v P [1991] 2 AC 447.
[9] R v Ford [2009] NSWCCA 306 (Campbell JA).
[11] R v Dupas (No 2) [2005] VSCA 212; (2005) 12 VR 601, 607 [14].
[13] Reg v Boardman (1975) AC 421, 444 ( Lord Wilberforce).
[14] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 385.
[15] Director of Public Prosecutions v Boardman [1975] AC 421, 444.
[16] R v Rajakaruna [2004] VSCA 114; [2004] 8 VR 340, 346 [14] (Eames JA).
[17] [2010] VSCA 26; [2010] 24 VR 486. The court was concerned with tendency and coincidence evidence under the Evidence Act 2008.
[18] [2010] VSCA 26; (2010) 24 VR 486, 495 [30]-[31] (Maxwell P, Buchanan and Bongiorno JJA).
[23] See RJP v The Queen [2011] VSCA 443 to the same effect.
[24] R v DCC [2004] VSCA 230; (2004) 11 VR 129.
# R R
The Queen \[2011\] VSCA 442
(2009) 26 VR 526
(2006) 66 NSWLR 228
(2010) 24 VR 486
(2008) 21 VR 135
(2004) 10 VR 215
(2004) 7 VR 375
(2005) 12 VR 601
(2004) 11 VR 129
(1936) 55 CLR 367