R v E F [2008] VSCA 213

1 I have had the advantage of reading in draft the reasons for judgment of Weinberg JA and I agree with his Honour, substantially for the reasons that he gives, that the application for leave to appeal against conviction should be refused.

2 As to the first ground of appeal, however, I add that this court has recently considered the operation of s 398A of the Crimes Act 1958 in R v Sadler,[1] and there sought to reconcile the operation of the section with the recent observations of some of the members of the High Court in The Queen v HML.[2] The court concluded that, pending further guidance from the High Court, where evidence of uncharged sexual acts is admitted under s 398A, a trial judge should ordinarily assume that there is a real risk of the jury using that evidence as a sufficiently important step in their process of reasoning to guilt to warrant particular mention and, therefore, that the judge should ordinarily direct the jury that they should not conclude from the evidence of uncharged acts that the accused had a sexual interest in the complainant unless they are satisfied of that fact beyond reasonable doubt.[3]

3 As Weinberg JA notes in his reasons, in this case there was no exception to the judge's directions concerning the use of evidence of uncharged acts and there is no ground of appeal concerning those directions. But lest it be thought that the applicant may thereby have been deprived of a chance of acquittal, it should also be noted that the judge expressly directed the jury that they could not draw an inference as to the existence of an element of the offence charged, or of the guilt of the accused, unless satisfied beyond reasonable doubt of any facts necessary to the process of reasoning involved; and that it was the only reasonable inference to be drawn from the facts. In the circumstances of this case, I regard that as tantamount to a direction that the jury could not infer that the applicant had a sexual interest in the complainant unless satisfied of that fact beyond reasonable doubt.

4 The applicant seeks leave to appeal from a conviction in the County Court at Melbourne on three counts of having committed an indecent act with a child under the age of 16 and two counts of sexual penetration of a child under the age of 16. The offending took place between 23 February 2005 and 1 June 2005. The applicant, having married the complainant's grandmother, was her step-grandfather. The complainant was seven years of age throughout most of the period of offending. She turned eight on 21 May 2005.

5 The background facts may be briefly summarised. The complainant's mother, BT, and the complainant's stepfather, DT, had separated. As a result, BT, the complainant, and the complainant's younger brother had moved in to live with the complainant's maternal grandmother. BT, the complainant and her brother shared a bedroom and had their own bathroom and toilet.

6 The trial judge, when sentencing the applicant, summarised each count in the following terms:

Count 1 refers to the first of a number of occasions when you pulled down the victim's pants, laid on top of her and put your penis on her genital area. You are to be sentenced with respect only to the first of those occasions.

Count 2 is an occasion on which you forced the victim to suck your penis. That occurred in her bedroom.

Count 3 refers to an occasion in the victim's bedroom when you put your finger into her anus.

Count 4 refers to an occasion in the complainant's bedroom when you placed her hand on your penis and made her masturbate you.

Count 5 refers to an occasion when you took her to the bathroom that she used, pulled her pants down and laid pillows on the floor and placed her on those pillows. You then proceeded to lick her vagina.

7 The evidence against the applicant was principally given by the complainant, and was presented to the jury by VATE tape, which is the manner normally followed in such cases. There was, in addition, some supporting evidence of a circumstantial nature.

8 The first VATE tape was recorded on 5 June 2005. That was some four days or so after the last date on which any of the offences set out in the five counts was alleged to have been committed. In that VATE tape, the complainant was asked if she understood why she was at the police station. She replied that it was because 'something's been happening to me'. She said that the applicant had been grabbing her by the arm, and pulling his pants down and 'going on top of her'. She said that his 'rude part' had been touching her, and that she did not like it because she was not meant to be seeing 'boys' things'. She said that the applicant had been forcing her to suck his penis.

9 The complainant was then asked a series of questions and gave answers that formed the basis of the first of the two grounds of appeal that were pressed before this Court. Questions 79 to 82 of the transcript of the VATE tape relevantly read as follows:

Okay. Now, you told me that [the applicant] would pull his pants down.

Well, I just tell him that, "Can you just put on the water for me?" which he doesn't. And then he just looks at me, and then he just stays in the shower. He just stays in the bath and just watches me havin' a shower.

10 Thereafter, the complainant described, in some detail, various incidents in which the applicant had molested her. These formed the basis of the five counts on the presentment.

11 The complainant took part in a second VATE tape on 16 June 2005. On that occasion, she described how the applicant had shown her a 'rude book'. She said that the book was stored in a blue container located in one of the kitchen cupboards.

12 The complainant was then asked about the statement that she had previously made in her first VATE tape regarding the applicant's behaviour when he showered her. She elaborated upon that earlier statement by saying that on one occasion he had 'touched my rude part when he was drying me'. She added that he kept 'feeling me up' and that he was lifting her legs up. She also described how, when she was not having a shower, the applicant used to go into the bathroom and lick her 'rude part'.

13 Questions and answers 158 and 159 of the second VATE tape then read as follows:

Okay. And is it normal that [the applicant] would come in and dry you after a shower?

14 The complainant was then asked to provide more detail regarding the occasion on which the applicant took her into the bathroom, pulled her pants down, laid pillows on the floor, and licked her 'rude part'. She did so. She also gave further details about the 'rude books' that she claimed to have been shown.

15 The complainant participated in a third VATE tape on 24 August 2005. However, nothing that was said on that occasion has any bearing on this appeal.

16 Counsel who appeared for the applicant at the trial took objection to questions 79 to 82 of the first VATE tape. She submitted that the answers given, which concerned the applicant's watching of the girl while she showered, constituted an 'uncharged act', which amounted to propensity evidence that ought not be put before the jury. The trial judge asked counsel why this evidence should not be regarded as suggesting some kind of 'sexual relationship' between the applicant and the girl. Counsel conceded that the evidence could be so regarded but submitted that it would still not meet the test of admissibility under s 398A of the Crimes Act 1958.

17 The current version of s 398A was introduced into the Crimes Act in 1997. Sub-section 2 lays down a test for the admissibility of what is termed 'propensity evidence'. It provides:

Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.

18 Section 398A was plainly intended to reverse the effect of the High Court decision in Pfennig v The Queen.[4]

19 Counsel for the applicant submitted that it would not be 'just', within the meaning of s 398A(2), to permit the complainant to give evidence that the applicant had 'watched' her while she showered. She submitted that even if the applicant had done so, that would not, of itself, suggest a 'sexual relationship' of any kind. She acknowledged, however, that it might suggest an unnatural interest on the part of her client in the child. She submitted that it would therefore have a highly prejudicial effect in the eyes of the jury.

20 When pressed by the trial judge, counsel expressly conceded that the evidence in question was relevant. However, she clung to her submission that its likely prejudicial effect would significantly outweigh whatever probative value it might have. His Honour rejected that submission, and the evidence was led.

21 It should be noted that the trial judge gave a series of detailed directions to the jury as to how they might use evidence of 'uncharged acts' in this case. There was, as it happened, an abundance of such evidence, though the only challenge mounted to any of it related to the applicant's having watched the girl while she showered.

22 The first of the two grounds argued before this Court related to his Honour's refusal to exclude this evidence. It was submitted that the questions and answers 79 to 82 of the first VATE tape ought not to have been admitted because they infringed the rules governing the admissibility of propensity evidence.

23 It is clearly established that propensity evidence creates a risk that the jury will engage in a form of impermissible 'propensity reasoning'; namely, reasoning that, because the accused has acted unlawfully or disreputably on another occasion, he or she is the 'kind of person' likely to have committed the offences charged.[5] Propensity evidence is, for that reason, normally inadmissible.[6]

24 Nonetheless, propensity evidence may be admitted, in accordance with s 398A(2) of the Crimes Act, 'if the Court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have'. Evidence which creates a risk of impermissible propensity reasoning can still be admitted if the trial judge considers that its probative value outweighs any possible prejudicial effect.[7]

25 The authorities make it clear that it will not ordinarily be 'just' to admit evidence which does no more than demonstrate that the accused has a propensity to have committed the offences charged. The evidence must establish a probative value beyond merely establishing a criminal tendency or disposition.

26 The cases suggest that there are three main circumstances in which it may be 'just' to admit propensity evidence:

• if the evidence assists the jury to understand the context of the offence.[8] To be admissible under this head, the evidence must relate to acts which were sufficiently proximate in time to the charged offences to establish the context of the offending.
• if the evidence demonstrates that the accused had an improper relationship with the complainant, making it more likely that he or she committed the offence charged.[9] In cases involving sexual offences, evidence of an existing sexual relationship may render the complainant's account more probable, as the jury will not be misled into thinking that the allegations simply arose 'out of the blue'. Sometimes evidence of this nature is said to demonstrate a 'guilty passion' and may be led to prove that the accused was sexually attracted to the complainant. Whether or not such evidence strictly involves propensity reasoning may be open to doubt, though in the end it may not matter a great deal.
• the jury can use the evidence to infer the accused's guilt by a process of probability reasoning. This is a form of reasoning whereby the jury rely upon the improbability of two or more seemingly independent events occurring in the absence of a common element.[10]

27 Even if the evidence falls within one or more of these categories, it will still only be admissible if its probative value outweighs its possible prejudicial effect.

28 It has recently been said by some members of the High Court that propensity evidence, which is led to establish the 'context' of the offending, should be admitted only with caution.[11] A judge must carefully weigh the probative value of such evidence against its prejudicial effect.[12]

29 In the present case, the trial judge admitted the evidence concerning the applicant having watched the complainant in the shower because he was satisfied that it demonstrated the existence of a 'sexual relationship' between them. Whether that is a wholly apt description of its probative value may be doubted. However, his Honour was plainly on firmer ground when he characterised the evidence as showing a 'guilty passion' on the part of the applicant towards the complainant. It should be noted that he also considered that this evidence would allow the jury to appreciate the significance of what might otherwise seem to be merely a series of isolated acts occurring without any underlying unity.

30 The only point taken regarding this evidence was that it ought to have been excluded. There was no challenge, before the trial judge, or before this Court, to the adequacy of the warnings given by his Honour regarding the limited use to which it could be put. The jury were told in the strongest terms that they could not convict the applicant on any of the counts charged on the basis of any 'uncharged acts', rather than the evidence that bore directly upon each of those individual counts. Implicitly, at least, the jury were told that they could not use the evidence of the applicant having 'watched' the complainant in the shower as a substitute for evidence going directly to his conduct in relation to any specific count.

31 The jury were also given a strong warning against the dangers of propensity reasoning. His Honour directed them as follows:

Above all you must be careful and precise in your processes of reasoning. You may use the evidence of uncharged acts in considering the relationship of the parties, thus the probability or improbability of the charged acts having occurred, but it would be wrong and prejudicial and contrary to law for you to reason that because the accused had engaged in some improper conduct, or in some other crime or crimes, he was the kind of person who was likely to have committed the crimes charged, and to use such a conclusion as evidence that he committed them or any of them.

32 Before this Court, counsel for the applicant submitted that the evidence of 'watching' did not have sufficient probative value to justify its admission. He submitted that the fact that the applicant remained in the bathroom while the complainant showered could not advance the prosecution case. That conduct was said to be entirely consistent with innocence, there having been uncontested evidence of the complainant's mother having authorised the applicant to dry her daughter after she had showered.

33 The fact that the evidence might have borne such an innocent complexion did not, in my view, render it inadmissible. Of course, the evidence must be viewed in context. What the complainant said about the applicant's behaviour in 'watching' her while she showered played a relatively small, and almost insignificant, part in the litany of uncharged acts that, by reason of the representative nature of the counts, inevitably had to be presented in this case. Much of that evidence was significantly more damaging to the applicant than this single, relatively isolated, description of his conduct.

34 More importantly, the probative value of this evidence had to be assessed having regard to the actual description which the complainant gave of what had occurred. It was tolerably clear from her account that the applicant came into the bathroom not for any innocent purpose of assisting her, but rather to ogle her while she showered It will be recalled that she said, in answer to question 82, that she had asked him to put the water on for her, but he had not done so. The account that she gave, if accepted by the jury, was capable of bearing the connotation that the Crown put upon it, rather than the optimistically benign interpretation for which the applicant contended.

35 There is another way in which the evidence in question could be said to be probative. The conduct giving rise to count 5 was alleged to have taken place in the bathroom while the complainant showered. The same was true of a number of the 'uncharged acts'. That very fact created something of a nexus between the evidence that she gave regarding his having 'watched' her, and at least one of the actual offences charged.

36 It was conceded before us that if, contrary to the applicant's primary submission, the evidence of 'watching' was probative in the way that the trial judge described, it could not now be contended that its prejudicial effect had outweighed its probative value. That concession was properly made. I think that the evidence did have that probative value. Accordingly, no error regarding its admission has been demonstrated.

37 The second ground of appeal complains of his Honour's having allowed evidence of 'recent complaint' to be led. The evidence in question was given by the complainant herself, and also by her stepfather, DT.

38 DT described how, on Sunday 5 June 2005, he had gone to Flinders Street station to collect the complainant and her brother from their father, DS, who had been looking after them. BT, the complainant's mother, was with him. According to DT, DS said something to the mother about her daughter having 'issues' with the applicant having showered her. That caused DT to raise that very matter with the complainant while they were travelling back to Geelong by train.

39 According to DT, he asked the complainant whether the applicant had 'ever been rude to her'. Initially, she said nothing. Then she started to cry. Finally, she shook her head and said 'yes'.

40 DT said that he questioned the complainant about the applicant showering her. He then asked her for a second time: 'Has EF ever been rude to you?' She replied 'yes'. He said: 'What has he been rude, what has he done?'. She said: 'He's made me suck his thing.' She added: 'He played with my "rudie" and he had one time hurt me.' She also told DT that EF had shown her rude pictures.

41 Objection was taken to this evidence at the trial. It was submitted, on behalf of the applicant, that DT's questions to the complainant were 'leading' and that her responses to those questions were not 'spontaneous'. Indeed, it was submitted, in what was surely an overstatement, that what took place amounted to an 'interrogation'.

42 The Crown took issue with that characterisation. The prosecutor submitted that DT had done nothing more than ask the complainant, in broad terms, whether EF had ever been 'rude' to her. She had replied 'yes'. In substance, all that followed was that clarification was sought of that answer. It was submitted that DT's questions were open-ended, fair, and perfectly proper. Far from being leading, they did not draw or invite any particular response.

43 It was further submitted that, having regard to the complainant's tender age, and the short time that had passed between the commission of at least the last of these offences, and her complaint, evidence of that complaint was properly admissible.

44 The trial judge, having referred to R v Freeman,[13] allowed the evidence to be given. He concluded that the complainant's response to the question put by DT, 'Is EF ever rude to you?' had been spontaneous and voluntarily made. In his charge to the jury, his Honour gave careful and proper directions as to the use that could be made of this evidence.[14] No exception was taken to his Honour's charge in that regard, and no complaint is made to this Court regarding the adequacy of those directions.

45 The principles which govern the admissibility of evidence of recent complaint are well established. The admission of such evidence is one of the very few common law exceptions to the prohibition against leading evidence of prior consistent statements.

46 The requirement that the complaint be 'recent' refers to the proximity of the complaint to the alleged assault. The assumption underlying this doctrine is that the closer in time a complaint is to the alleged assault, the greater is the enhancement of the complainant's credit.[15] To be admissible, the complaint must be made at the first reasonable opportunity after the alleged assault.[16] No issue of the proximity of the complaint to the alleged assaults arose in this appeal.

47 A complaint will not be admissible if, effectively, it has been put into the mouth of a complainant by a question or questions of a suggestive or leading nature. The complaint must be made freely and voluntarily.[17]

48 The test, as stated in Freeman,[18] is:

What likelihood there was that the "complaint" was not the spontaneous and unvarnished narrative of the prosecutrix either because the statement had been put in the prosecutrix's mind and mouth by questions of such a character as to have suggested to the prosecutrix the answer she in fact gave, or that the questioner desired the answer given rather than another, or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind.

49 In the earlier English case of R v Norcott,[19] Viscount Reading CJ said:

The Court is concerned to see that in the present case the statement made by the girl was spontaneous in the sense that it was her unassisted and unvarnished statement of what happened. That she may have been persuaded to tell her unassisted and unvarnished story is no reason why the evidence of her having made the statement should be rejected.

50 In De B v De B[20] it was held that even if it could be said that a complainant was persuaded to tell someone what had happened, so long as the complainant did not do so in response to questions of a leading or suggestive nature, the answers to those questions would be admissible.

51 These principles were applied recently by this Court in R v HRA.[21] In that case a six-year-old girl complained to her mother of having been indecently assaulted. She first told her mother of a 'silly secret', which was that her grandfather had taken her to his room and licked her vagina. The following day, the girl was taken to hospital. After being examined by a doctor, she and her mother went to the hospital restaurant. The mother gave evidence in-chief as follows:

QUESTION: After she had been medically examined did you go somewhere with her?

ANSWER: Yes, I took her down to McDonalds at the Royal Children's and we had - I ordered her some food, and I just wanted to ask her some more questions, because by this stage, I still hadn't found out a lot about what had happened.

QUESTION: Did she elaborate on what she'd told you the night before?

ANSWER: Well, I said to her, "You know, how often did it happen?" She said that it happened every time she went to stay or she was - every time she went to stay at poppy's. She said that - she repeated the line that it was when poppy took her to his room and licked her pee pee, and I said, "Well, what else happened?" She said well, she licked his pee pee and he rubbed cream on her and she rubbed cream on him and then they rubbed cream into each other's pee pees.

52 In a judgment delivered by Kellam JA, with whom Neave JA and Curtain AJA agreed, it was held that there was no basis for saying that the complaint should not have been admitted because the disclosures lacked spontaneity in that they were 'extracted' from the complainant by her mother. The Court held that while it was true that the complaint was made in response to questions asked by the mother, there was no evidence that those questions were 'suggestive, intimidating or leading or that she was interrogated in a forceful manner ...'[22]

53 Before this Court, the only point taken in relation to the evidence of recent complaint was that the complainant's statement was not spontaneous, but rather the product of leading questions. I reject that submission. In my view, the question put by DT, 'has EF ever been rude to you?', against a background where the complainant had previously indicated that she had 'issues' with EF showering her, can hardly be regarded as 'leading'. Nor does the form of that question detract from the spontaneity of the answer given.

54 It was submitted on behalf of the applicant that DT had gone too far, and that he ought simply to have asked something along the lines of whether there was anything wrong at home. That submission seems to me to lack reality. It must be remembered that the complainant had, by that stage, already indicated to DS, in broad terms, the nature of the problem. In answering the questions put by DT, she was essentially elaborating upon what she had previously said. It follows that there is no substance in this ground of appeal.

55 It also follows that leave to appeal against conviction should be refused.

[1] [2008] VSCA 198, esp. at [48].

[2] [2008] HCA 16; (2008) 245 ALR 204; see [2008] VSCA 198, [49]-[60].

[3] [2008] VSCA 198, [65].

[4] [1995] HCA 7; (1995) 182 CLR 461. Section 398A(3) provides that the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-s 2.

[5] R v Best [1998] 4 VR 603 and R v Mark & Elmazovski [2006] VSCA 251.

[6] Makin v Attorney-General of New South Wales [1894] AC 57; Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461; R v Best [1998] 4 VR 603.

[7] R v Best [1998] 4 VR 603 and R v Tektonopoulos [1999] VSCA 93; [1999] 2 VR 412.

[8] R v Vonarx [1999] 3 VR 618 and R v BJC [2005] VSCA 154; (2005) 13 VR 407.

[9] R v Beserick (1993) 30 NSWLR 510; R v Grech [1997] 2 VR 609; R v Loguancio [2000] VSCA 33; (2000) 1 VR 235; R v GAE [2000] VSCA 18; (2000) 1 VR 198; and R v BJC [2005] VSCA 154; (2005) 13 VR 407.

[10] Makin v Attorney-General of New South Wales [1894] AC 57; BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275; and R v DCC [2004] VSCA 230; (2004) 11 VR 129.

[11] See generally R v HML [2008] HCA 16; (2008) 245 ALR 204.

[12] R v Josefoski [1997] 2 VR 68 and R v BJC [2005] VSCA 154; (2005) 13 VR 407.

[13] [1980] VicRp 1; [1980] VR 1.

[14] The jury were told that the evidence was admissible only in relation to the credit of the complainant, and that what she told DT was not evidence of the matters complained of.

[15] That assumption was seemingly questioned in the joint judgment of Gaudron and Gummow JJ in Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145.

[16] R v Freeman [1980] VicRp 1; [1980] VR 1; R v King [1995] QCA 48; (1995) 78 A Crim R 53; R v W [1996] QCA 246; [1996] 1 Qd R 573; and Suresh v R [1998] HCA 23; (1998) 153 ALR 145.

[17] R v Adams & Ross [1965] Qd R 255.

[18] [1980] VicRp 1; [1980] VR 1.

[19] [1917] 1 KB 347, 350.

[20] [1950] VicLawRp 44; [1950] VLR 242.

[21] [2008] VSCA 56.

[22] Ibid [82]. See also The Queen v Lazos (1992) 78 A Crim R 388. To the same effect is DS v The State of Western Australia [2008] WASCA 182, where a complainant's mother asked the 11-year-old complainant whether her father had touched her. When she received no answer, she said: "Did he touch you on the wee?" and received a nod in response. The complaint evidence was admitted. See also R v McCormack (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Callaway JA and Southwell AJA, 16 May 1996) in which this Court upheld the admission of complaint evidence from a complainant to her friends. In response to a question, 'Have you been raped', the complainant replied that she had, and added that it was the applicant who had raped her.