R v F J B [1999] VSCA 90

(a) they must not reason on the evidence that the accused was the kind of person likely to commit the offence charged;

(b) they must not use the evidence led in respect of any one count on the presentment in substitution for the specific activity charged in another;

(c) they must not use the evidence led with reference to any one count in substitution for the specific activity charged in another;

(d) they must not reason that because the applicant may have done something wrong on an occasion charged in one count, he must also have done something wrong on an occasion charged in another count; and

(e) they must not reason that because the applicant may have done something wrong on an occasion which is referable to that charged in one count, he must also have done something wrong on an occasion charged in another count.

21. Further grounds of appeal (grounds 2 and 3) in effect claim that the judge also erred in directing the jury that "uncharged acts" need not be proved beyond reasonable doubt by the prosecution.

24. The Crown case, which was largely based on the evidence of one complainant, was as follows. The complainant, who was born in August 1978, as a young boy travelled daily to Maryborough Primary School alone by bus. At the relevant time the applicant owned a property close to the complainant's family home, and had developed a number of different buildings on the property. One of the sheds was used for sand-blasting. This shed was about 250 metres from the complainant's home and there was a nursery about 500 metres distant. The houses occupied by the applicant and the complainant's family were less than 400 metres apart.

27. Before 1991 the applicant and the complainant's family were friendly neighbours, although visits between them did not occur regularly. The complainant performed jobs from time to time for the applicant, including sweeping the floors of the sheds and pulling down a shed and cleaning up the farm, for which the applicant paid the complainant and occasionally gave him gifts. The applicant gave the complainant the use of a small wooden shed which the complainant and his friends used as a cubby house.

30. On an occasion before May 1991 the applicant took the complainant for a ride on his tractor. The incident could have occurred as early as late 1990. The complainant (then aged 12) was positioned on the bonnet of the tractor facing forward with his legs in front of him. The complainant said that when the tractor was stationary the applicant leaned forward from the driving seat and started touching the complainant through his clothes. He touched him on the inside of his thighs nearly up to his groin. The complainant then went with the applicant to the latter's home, no one else being there. The complainant said the applicant began to touch the complainant again and made him remove all his clothing. He masturbated the complainant with his hand and then knelt in front of the complainant and sucked the boy's penis. The complainant said the applicant then stood, lowered his pants and made the complainant masturbate him manually. He then made the complainant masturbate him using his mouth to suck his penis. When this was finished the applicant told the complainant to get dressed, telling him not to say anything to anyone or he would be in a lot of trouble. These events gave rise to counts 1 and 2, but the first incident on the tractor was an uncharged event, as also were the two events of sucking the penis.

33. The complainant said that on a second occasion before May 1991 he again visited the applicant at his home, finding him alone. The applicant took the complainant to his bedroom where he removed the boy's clothing and asked him to lie on the bed. According to the complainant the applicant then masturbated the complainant with his hands and removed his own clothing. The complainant said that the applicant "had a jar of cream next to his bed which he put on my penis and me anus, and he used his finger to put in my anus, and then he tried to use his penis. And he used his penis to try and do the same". The complainant pulled away, so that the applicant could not succeed in what he was doing. The complainant said that the applicant then used his mouth on the complainant's penis and then got the complainant to do the same to him. He then made the complainant masturbate him, after which he ejaculated over the complainant on the bed. The complainant then had a shower and went home, after again being told not to tell anyone. These events gave rise to counts 3, 4, 5 and 6, the two occasions of sucking the penis again being uncharged acts.

36. On a third occasion prior to May 1991, the complainant said he found himself alone with the applicant in the applicant's unoccupied house. He could not recall how this came to occur. They were in the kitchen which contained a bench and a sink. The complainant said he was masturbated by the applicant and then made to do the same to the applicant. This gave rise to count 7, the allegation being that the complainant was made to masturbate the applicant manually, this being the count on which the applicant was acquitted. The allegation that the applicant masturbated the complainant was a further uncharged act.

39. The fourth group of charges, counts 8, 9, 10 and 11, were alleged to arise in the period 1 January 1993 to 17 August 1994, during which the complainant attended the Maryborough Technical School, to which he travelled by bus. He was dropped off in a position which led him to walk past the applicant's sand-blasting shed on his way home. On one occasion he was walking past the shed when the applicant called to him, asking him to come in. The complainant said the applicant took him into the shed and again started touching him through his clothing. He undressed the complainant and took his pants down and then masturbated the complainant manually and used his mouth on the complainant's penis. The applicant got the complainant to use his mouth on his (the applicant's) penis and then to use his hands to masturbate him to ejaculation. The applicant ejaculated onto the ground and then manually masturbated the complainant until he did the same. They both dressed and before going home the complainant was again told not to tell anyone what had happened.

42. After the Crown had closed its case, several witnesses were called for the defence. The applicant himself gave evidence denying all the allegations against him.

45. Careful examination of the evidence of the complainant shows a large number (10) of uncharged acts that were contained in his evidence, the most significant (and the most prejudicial) being the four occasions of oral penetration to which reference has already been made.

48. The evidence of the various uncharged acts was not, we were told, tendered as propensity evidence, and the judge made no mention of propensity in his charge. No issue was, therefore, raised under s.398A of the Crimes Act 1958 and neither at trial nor in the appeal was it suggested that the evidence was inadmissible. The evidence did, I think, nonetheless have a tendency to establish propensity on the part of the accused. The evidence was probably admissible as part of the res gestae, forming "a continuous transaction" with the offences charged (R. v. Etherington (1982) 32 S.A.S.R.230, at 235; Harriman v. R. (1989) 167 C.L.R.590, at 628-634 per McHugh, J.; R. v. Best [1998] 4 V.R.603 at 608), on which view s.398A may not apply at all; see Harriman per McHugh, J. at 633-4, but compare Brennan, J. at 594. It will in the future be necessary to consider whether evidence of uncharged acts which are part of the res gestae and which may be characterised as propensity evidence is to be assessed in the light of s.398A, and in particular whether a court is obliged to determine that it is just to admit the evidence under s.398A(2).

51. In the Court of Criminal Appeal of New South Wales, it has been said that where the Crown introduces evidence for the purpose of establishing the relationship between the complainant and the accused, it is not tendency evidence; and that, once admitted for that purpose, the evidence cannot be used as tendency evidence; R. v. AH (1997) 42 N.S.W.L.R.702, at 708-9 per Ireland, J., with whom Hunt, C.J. at C.L. and Levine, J. agreed. It is not necessary to decide the point in this case, but I would need to be persuaded that evidence which, objectively, tends to show a propensity may nevertheless avoid or lose that quality simply because the Crown asserts that the evidence is introduced for a different purpose. If the evidence tends to establish that propensity, the jury is likely to use it for that purpose regardless of any direction they may be given. See also S. v. The Queen (1989) 168 C.L.R.266, at 275 per Dawson, J., where his Honour said that when evidence of acts of intercourse other than those charged was admitted, its relevance lay in establishing the relationship between the two persons involved in the commission of the offence or the guilty passion existing between them, "but it is in truth nothing more than evidence of a propensity on the part of the accused of a sufficiently high degree of relevance as to justify its admission". But the approach of the Court in AH may well be explained by the wording of ss.97 and 101 of the Evidence Act 1995 (N.S.W.) which are not in the same terms as s.398A. If, however, the view of McHugh, J. in Harriman at 633-634 is accepted, and the evidence forms part of the res gestae, s.398A may have no application at all; see also per Callaway, J.A. in Best at 608.

54. Before the judge came in his charge to deal with the facts relating to the individual counts, his Honour said to the jury that it was important to understand that the essence of each charge was the facts relied on to support it, not other sexual events. His Honour then said, in relation to the uncharged acts, that -

"the only reason why you have evidence in front of you about uncharged acts that might amount to some other offence that the accused is not charged with is because they are inseparably wound up with the story that does concern you relating to the acts that are the basis of the charge. You would not have any real comprehension of the way the Crown case is put in relation to the charged acts if you had not heard the context in which it is said by the Crown that those charged events occurred."

58. His Honour went on to identify which events were the subject of individual counts and which remained uncharged acts and dealt with the elements of the various offences with which the applicant had been charged. His Honour then said -

"You are to consider that these crimes - these allegations of crimes separately. They are separate allegations and they are to be considered with reference to the evidence applicable to them each and separately. Some of the evidence like the background evidence in this case, has come into all the charges."

"You should look at the matters with some care so as to identify those acts which the Crown relies upon to support each charge because it is those acts on each count, the charged acts that the Crown has to prove beyond reasonable doubt in order to obtain the conviction. Not the other acts, the uncharged acts mentioned by the witness, that do not form the basis of the charge."

"Those two or three descriptions of penis sucking are not the basis of any charge. They might have formed the basis of charges of sexual penetration but the law applicable was that any such prosecution had to be commenced within 12 months of the event and that did not happen, so they remain uncharged acts. And as I have indicated earlier these event (sic) on the tractor as described by the complainant is not the basis of any charge."

70. Finally, his Honour said as to the uncharged acts that -

"their only relevance, and this is a matter of law, is as background to the events charged, to put those events, if they occurred, in context so that you may understand the evidence. Even if those uncharged events occurred, you are not to conclude from them that any of the charged acts occurred. That is not the exercise. You may look at the uncharged acts and what the accused said about them in forming your views about the credibility one way or the other of the complainant but that is all."

74. After referring to the cross-examination of the complainant about what had happened on the tractor, his Honour said -

"All uncharged acts. And the only use that you can make of that, apart from the contextual use, is whether the cross-examination about those matters by counsel for the accused affects your view of the credibility of the witness who was cross-examined, the complainant."

78. His Honour later repeated that the evidence of the complainant regarding other uncharged acts was simply contextual and that the jury could use them in forming a view about the credit of the witness, the complainant, but that was all.

81. In these circumstances, Mr Holdenson for the applicant submitted that in a case involving multiple alleged offences it was necessary that great care be taken to direct the jury as to the admissibility of the evidence in respect of each individual count, and that it would be necessary specifically to warn the jury (a) that proof of guilt upon any one count was irrelevant to the question of guilt upon another count, (b) that the evidence led in support of a count did not go in proof of any other count, and (c) that evidence led in support of one count must not be treated as tending to prove an inclination in the accused towards the relevant conduct. It was necessary, he submitted, that there be a separate trial direction. He submitted that the directions given by the trial judge were manifestly inadequate in all these respects and that a substantial miscarriage of justice had occurred, notwithstanding that no exception had been taken by the defence.

84. In response, Mr McArdle for the Crown submitted that the judge had instructed the jury in relation to the charged acts on the presentment, that each was to be considered separately and also separately from the uncharged acts. He said that the judge's direction in relation to the uncharged acts had been limited to a "contextual" use and that in addition they might be relevant to the complainant's credit. Mr McArdle submitted that the fact that the jury had acquitted the applicant on count 7 suggested that the sexual events were given separate consideration, and he relied on R. v. Gallagher [1998] 2 V.R.671 since defence counsel had taken no exception to this aspect of the charge. He submitted that the judge's directions on the matter were adequate and that no miscarriage of justice had occurred.

87. There is an abundance of authority to support the submission that in a case of this kind it is necessary for the judge in a charge to the jury to give the specific warnings Mr Holdenson contended for and which are enumerated as (a), (b) and (c) in the preceding paragraph; see, e.g. R. v. Beserick (1993) 30 N.S.W.L.R.510 at 515-516; R. v. Vonarx, unreported, Court of Appeal, 15 November 1995, at 12-13; R. v. T. (1996) 86 A.Crim.R.293, at 299-300; R. v. Grech [1997] 2 V.R.609, at 611-614; R. v. J. (No.2) [1998] 3 V.R.602 at 614, 638-643; R. v. Robertson [1998] 4 V.R.30, at 39-40; and R. v. T.J.B. [1998] 4 V.R.621, at 633. It will be sufficient here to take by way of example what was said by Southwell, A.J.A. (with the concurrence of Callaway, J.A. and Smith, A.J.A.) in T. at 299 -

"In any trial involving multiple offences, care must be taken to direct the jury as to the admissibility of the evidence in respect of the individual counts. Generally speaking, it will be necessary specifically to warn the jury, not only that proof of guilt upon one count is irrelevant to the question of guilt on any other count, but that the evidence led in support of a count [involving one victim] does not go in proof of any other count involving another [victim]. The jury will be warned against mistreating such evidence as tending to prove an inclination towards the relevant criminal conduct. That is generally so, although there may be cases where counsel for an accused could persuade the trial judge not to draw the attention of the jury to the aspect of propensity. In my opinion, it is particularly important that a jury should be warned when the evidence tends to show a paedophilic propensity."

91. Evidence of sexual activity between a complainant and the accused other than that which is the subject of a charge is frequently of a highly prejudicial nature, as Hunt, C.J. at C.L. observed in Beserick at 515. The evidence of the uncharged acts in the present case was plainly so, and the prejudice engendered can only have been increased by the judge telling the jury, in effect, that the accused had only escaped being charged with these offences as well because of the technicality that any such prosecution had to be commenced within 12 months of the event.

94. The passages from the charge quoted above, and the charge as a whole, were in my view, with all respect, objectionable in at least the following ways. The prejudicial nature of all such evidence (both as to uncharged acts and the counts themselves) was likely to cause the jury to mistreat it as tending to prove an inclination towards the relevant criminal conduct, and the judge was obliged to warn the jury against this tendency. The jury should have been told how to use such evidence of uncharged acts, which would in a case such as the present mean that they should have been clearly told that evidence of such conduct could only be used by them if they were satisfied that it occurred and (if the evidence was not regarded as part of the res gestae) only for the purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated in a realistic contextual setting (Vonarx at 12). Such evidence is sometimes tendered to establish guilty passion but the judge (I think correctly) did not charge the jury on this basis. In the present case however the jury were told, inadequately in my view, that they could use these events in forming their "views about the credibility, one way or the other, of the complainant but that is all", and that it was not necessary for them to be satisfied beyond reasonable doubt that the uncharged acts had taken place. I shall return to the question of the complainant's credibility shortly.

97. In my view the directions given by the judge were quite insufficient in that they failed to warn the jury that (a) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to extraneous conduct and (b) they must not reason that because the applicant engaged in sexual conduct with the complainant on other occasions or in other ways, he was the kind of person who was likely to have done so on the occasions charged (Grech, at 614). The second of these warnings was not given at all; the first was given, but then obscured by the jury being told that "some of the evidence has come into all the charges".

100. No exception was taken by counsel to this aspect of the charge, but like grounds have succeeded, notwithstanding a failure to take the necessary exception in T. (see at 300), Robertson (at 41) and Grech (at 614). Ground 1 has, in my view, been made good.

103. I turn then to the applicant's separate complaint that the judge told the jury that they need not be satisfied beyond reasonable doubt as to the uncharged acts. The same issue was considered by the High Court in Gipp v. R. [1998] H.C.A.21, 155 A.L.R.15. The appellant was convicted on seven counts involving the sexual abuse of his stepdaughter. He pleaded not guilty to the charges. The prosecution case consisted primarily of the uncorroborated evidence of the complainant. The appellant denied that he had ever behaved improperly towards the complainant. The appellant was convicted on five of the counts and appealed. The complainant had given evidence-in-chief that the appellant had regularly sexually molested her before the date of the offences and the charges. The trial judge instructed the jury that the complainant's general evidence of sexual abuse was "led to show the nature of the relationship between the complainant and the accused" and that there was "no need for [them] to be satisfied beyond reasonable doubt of those background facts ... provided that [they] accept[ed] the complainant's account that it occurred". The appellant complained that the evidence should not have been admitted and that the trial judge's subsequent direction was improper.

106. Of the judge's direction in Gipp, Gaudron, J. said (at para.21) that -

"The bare direction to the jury that they had only to be satisfied with respect to that evidence on the balance of probabilities was erroneous and dangerously so. It left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship involving regular sexual abuse, that the appellant was guilty of the offences charged."

110. Kirby, J. said (at para.139) of the course of events which had taken place at the trial that -

"Before this Court, the Crown properly conceded that the reference by the primary judge to the standard of proof relating to the evidence of prior molestation was 'undesirable and should not have been made'. It was 'unfortunate'. I entirely agree with these epithets. Where such facts may constitute 'indispensable links in a chain of reasoning towards an inference of guilt', it may be appropriate (and would have been appropriate in this case) to warn the jury that each 'link' must be proved beyond reasonable doubt."

"In the present trial it is doubtful that the probative value of the evidence of the complainant concerning alleged events outside the offences charged outweighed the substantial prejudicial effect of such evidence. However, assuming that it did, and that the evidence was therefore admissible as tendency evidence, far from giving the stringent warnings required by law at the point that the evidence was received and at the point at which the concluding instruction was given to the jury, the primary judge gave absolutely no warnings about the dangers of the use of such evidence. On the contrary, he instructed the jury that they could be satisfied on the evidence otherwise than beyond reasonable doubt. Read in context, such instruction was a most serious misdirection."

118. Callinan, J., the third member of the majority, said that the dangers of admitting evidence of criminal conduct not the subject of specific charges were obvious and expressed concern about the danger of admitting so-called "background" evidence. His Honour said of it, at para.176, that -

"Its reception, and the need to explain its purpose and utility, have the tendency to introduce into a trial, particularly a criminal trial, undesirable complications, and the notion that there may be various lesser grades of evidence calling for different standards of satisfaction in the minds of the jurors."

122. Later, after referring to what this Court had said in Vonarx, at p.4, Callinan, J. said at paras.181-2 that -

"I do not accept that non-specific prejudicial evidence may be led by the prosecution, and juries told that it might provide 'part of the essential background' against which the other evidence is to be evaluated. I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such."

126. McHugh and Hayne, JJ., in dissent, referred at para.75 to the fact that the evidence was general in its nature and had been admitted for the limited purpose of making the circumstances of the specific offences more intelligible. Their Honours then said, at para.76 -

"If the evidence of sexual history had been directed to specific incidents, although not the subject of charges, the learned judge would have been entitled to direct the jury that if they found one or more of those incidents proved, they could use such a finding or findings as proof of 'guilty passion' in support of the charges in the indictment. In that event, it would have been necessary to direct the jury that these incidents as well as the charges had to be proved beyond reasonable doubt."

130. Their Honours later said at para.79, as to the standard of proof, that -

"No doubt it would also have been better if his Honour had made no mention of the standard of proof when referring to the background evidence. But his Honour's statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence."

134. In the present case the evidence of the uncharged acts of oral penetration was not of a general nature, and I have some difficulty with the characterisation of it as "background". Rather, these were specific acts and contemporaneous with the events charged in counts 1, 2 and 3 to 6 (inclusive). To establish that the accused had been guilty of two additional (and more serious) uncharged offences at the same time as various charged offences of masturbation in my view had only peripheral relevance to the complainant's credit - save to the extent that, insofar as the complainant had failed to make complaint at the first opportunity or, indeed, for a considerable time afterwards, that failure might possibly be explained by his embarrassment at the nature of the uncharged acts: R. v. Kilby (1973) 129 C.L.R.460, at 469 per Barwick, C.J. I note that a different view as to the possible relevance of such evidence to a complainant's credibility was stated by Ireland, J. in AH at 708. If this was what the judge intended to convey by his statement that the jury could look at them in forming a view as to the complainant's credibility, it was essential that this be carefully explained. The absence of any such explanation in the charge, with respect, can only have confused the jury as to how it was that the uncharged acts were relevant to the complainant's credibility, particularly having regard to the potential for the jury to misuse such evidence as establishing a tendency or propensity on the part of the applicant.

137. No doubt, as McHugh and Hayne, JJ. observed in Gipp at para.79 above, it is the charge, not the surrounding facts, which must be proved beyond reasonable doubt. But the various passages already quoted from the judgments in Gipp demonstrate the difficulties inherent in attempting to formulate any general propositions in relation to the standard of proof which ought to be applied to uncharged acts.

140. The circumstances of the present case, and the course of the trial, present, in my view, no such difficulties. Mr Holdenson's submission was that the uncharged acts were here inextricably intertwined with the charged acts, and that the Crown had relied on them in proof, or to assist in proof, of its case. Accordingly he submitted that it was artificial to distinguish between standards of proof as to the charged acts and the uncharged acts, and that it was erroneous to direct the jury that there was a different and lesser standard of proof in respect of the uncharged acts.

143. In my view Mr Holdenson's submission should be accepted. Since the jury were given inadequate instruction as to how they should use the evidence of the uncharged acts, it was plainly possible that they may have used this evidence in proof of the prosecution's case in an impermissible fashion, whether in relation to the complainant's credibility, or as a link in the chain of proof. In so doing, the jury is likely to have acted on the judge's direction that they need only be persuaded beyond reasonable doubt as to the charged acts. Indeed, having regard to the facts that the oral penetrations were an inextricable part of the course of conduct covering the offences charged (inseparably wound up, as the judge put it, with the counts) and that his Honour had given the jury an explanation as to why they could not be the subject of specific charges, it is almost inevitable that the jury, if satisfied on the balance of probabilities that those acts had occurred, would carry those findings into their consideration of the offences charged. Viewed in this way, the evidence of the oral penetrations was, in truth, not contextual but an inseverable part of the course of conduct giving rise to the offences charged. As such it was entirely artificial and confusing for the jury to be told that they could apply differing standards of proof to the specific events forming part of the same course of conduct. Furthermore if the jury had a reasonable doubt as to whether an uncharged but contemporaneous act had occurred as alleged by the complainant, it is difficult to see why they should not have had similar doubts as to the whole of the complainant's version of events. Defence counsel took exception to this aspect of his Honour's charge at the trial but no redirection followed.

146. Grounds 1, 2 and 3 of the application have, in my view, been made good. I would allow the appeal, and direct that the verdict of guilty on all counts be quashed and a new trial ordered.

151. I agree, for the reasons given by Charles, J.A., that the application for leave to appeal against conviction should be allowed, that the verdicts of guilty on all counts be quashed and a new trial ordered.

154. I simply note that the question whether the admission of evidence of uncharged criminal conduct now falls to be assessed pursuant to s.398A of the Crimes Act was not the subject of any argument on this appeal because it had been conceded at trial, and was conceded before us, that the evidence of such conduct in this case was admissible.

164. The formal order of the Court will be that the application for leave to appeal against conviction is allowed. The verdicts of guilty recorded against the applicant below will be quashed and it is ordered that there be a new trial on all counts.