R v Fotis [2004] VSCA 212

10. The Crown case relied in part upon evidence of uncharged acts and other conduct not the subject of the charges. It included:

a) that the applicant had engaged in a course of conduct over time of grabbing her tightly, holding her in his arms and telling her how much he loved her and he was attracted to her;[1]

b) that the applicant had on between seven and ten occasions, of which only two were the subject of a charge, put his hands down her pants and placed his fingers in her vagina;[2] and

c) that the applicant had on between seven and ten different occasions, of which all but one were not the subject of a charge, rubbed against her in bed when she had her back to him and such that she could feel his penis.[3]

a) that the applicant had spoken to her and CJF about sexual matters such as about her masturbating and about what kind penis she would like to suck, that he had run around the house naked on one occasion and looked in on CJF showering on another occasion;[4] and

b) that CJF usually slept in the applicant's bed, often very close to him cuddling.[5]

3. Evidence of CJF's brother ("SF") that he had heard the applicant speaking by telephone to another child of similar age to CJF ("LMB"), asking LMB whether LMB had big breasts and making other "suggestive sexy remarks" to LMB.[6]

21. The applicant contends that the judge erred in failing to direct the jury as to the limited purpose for which the evidence of uncharged acts and other prejudicial conduct was admitted, and thus as to the way in which they may and may not use it, and also by failing to warn the jury that they were not to reason that, because the applicant may have engaged in the uncharged acts and other conduct, he was the kind of person likely to have committed the offences which were charged. The applicant submits that the judge's failure so to direct the jury gave rise to a significant risk that some members of the jury used the evidence of uncharged acts in an impermissible fashion, and the applicant refers in support of that submission to an observation made by the judge in the course of his sentencing remarks that:

"I accept the submission of your counsel that the verdict of the jury might properly be understood to reflect a satisfaction beyond reasonable doubt, concerning the evidence of [JLS] as to what occurred at the property at Modewarre. That evidence related to an occasion when you grabbed the breast of each of the girls on the outside of their clothing and remarked that you were 'just comparing sizes'."

25. The need to give the jury directions as to the way in which they may and may not use the evidence of uncharged acts and other conduct is rudimentary[7]. So is the need to give the jury a propensity direction in respect of uncharged acts and other similar conduct[8]; especially where the charges are of sexual offences against children. The authorities are collected and synthesised in the judgment of Callaway, J.A. in R. v. TJB, as follows:

"When evidence of uncharged acts is led in relationship cases, there are certain directions that should, almost invariably, be given to the jury. One of them is that the commission of the offences charged can be proved only by the evidence relating to those offences and not by evidence relating to the uncharged acts. Another is that the jury must not reason that, if the accused engaged in the uncharged acts, he is the kind of person who is likely to have committed the offences charged. See, for example, R. v. Beserick (1993) 30 N.S.W.L.R. 510 at 516; R. v. Vonarx (unreported, Court of Appeal, 15 November 1995) at 12-13 and R. v. Grech [1997] 2 V.R. 609 at 614. The position is different with respect to charged acts committed against the same complainant. Ordinarily all that is required is a separate consideration direction: see R. v. J. (No. 2) [1998] 3 V.R. 602. That is the equivalent of the first direction to which I have referred above. The second, about propensity reasoning as such, is usually unnecessary. In R. v. T., however, this court held that both directions were necessary in a case like the present where charges of sexual offences against several children were tried at the same time, the evidence in relation to one child not being admissible in relation to the other. In those circumstances the jury had to be warned not to reason that, if the accused molested one child, he was the kind of person who was likely to have molested the other and a separate consideration direction was not enough. See R. v. J. (No. 2) in the judgment of Winneke P. and Charles J.A. at 614 and in my judgment at 642. Such cases will become more frequent if severance is less readily granted than under the former rule of practice."

29. The absence from the judge's charge of directions as to the way in which the evidence of uncharged acts and other conduct was and was not to be used and of a propensity warning in respect of that evidence is surprising. Such judicial directions and warnings are these days commonplace in sex offence trials.

32. It was submitted for the Crown that the jury were sufficiently directed as to the way in which they were to use the evidence, by the following directions:

"... The Crown must satisfy you of the guilt of the accused beyond reasonable doubt ... ... "Now, you have to apply that standard of proof to each of the counts with which the accused has been charged. There were 13 counts, as you know, and you can see on the document in front of you. There are, in effect, now 11 counts. If, at the end of your deliberation in respect of each count, your statement or your judgment is, 'I am satisfied beyond reasonable doubt by the evidence that the accused is guilty of the particular charge', then your verdict should be guilty. If, at the end of your deliberations, your state of judgment is, 'I am not satisfied beyond reasonable doubt that the accused is guilty of the particular charge', your verdict should be not guilty ... " ... " ... there are ten counts for you to consider. You must deal with each count and the evidence relevant to it. As a matter of law, it is necessary for the Crown to satisfy you beyond reasonable doubt with respect to each count if you are to convict on that count. It would be quite wrong for you to reason, 'Well, he's guilty of one count, therefore he must be guilty of the others.' Or indeed to reason, 'He's not guilty of one, therefore he's not guilty of the others.' "

36. I do not accept that submission. Those directions (sometimes called a separate consideration direction) are by and large directed to the different subject of the need for each count to be considered and decided separately from the others. Arguably the latter part of the directions to which the Crown refers also operated as a propensity warning in respect of the charged acts. I say "arguably", because in this State it has been said that the usual form of propensity warning is given in terms that the jury are not to reason that because the accused is shown to be guilty in relation to one count he is the kind of person who is likely to have committed other counts[9]. The latter part of the direction was given in terms closer to the form of propensity warning given in New South Wales, which is to say that the jury are not to reason that because the accused may have done something wrong with the complainant on some other occasion or occasions, he must have done so on the occasion which is the subject of the charge.[10] But even if it were sufficient for that purpose, it still said nothing about the impermissibility of applying propensity reasoning to the uncharged acts and other conduct. There are some cases in which a judge's charge may be so structured as necessarily to convey to the jury that a propensity warning directed to charged acts should be taken by the jury as applying also to uncharged acts. But this is not one of those cases. There is nothing in the charge as I read it to connect the warning about applying propensity reasoning to any of the charged acts with the dangers of applying propensity reasoning to any of the uncharged acts. Indeed to the contrary, the fact that the judge here warned the jury not to apply propensity logic to the charged acts and said nothing about the uncharged acts may have increased the likelihood that the jury would have perceived themselves free to apply propensity logic to the uncharged acts.

39. It was next submitted for the Crown that even if the directions given did not explain the way in which the uncharged acts evidence could and could not be used and sufficiently warn against the dangers of propensity reasoning, there is no "absolute necessity" to give such directions in every case. It depends, it was said, on the sort of case that it is, and reference was made to Callaway, J.A.'s statement in R. v. Grech that such a direction "should almost invariably be given", not that it must always be given.

42. Callaway, J.A. was doubtless being careful when he said that such a direction should almost invariably be given.[11] If I may say too, with respect, his Honour was doubtless correct. In a field as complex as human sexual relations and the crimes to which they give rise, it is well to allow for the possibility of exceptions, no matter how unlikely they may be. But it is clear enough that an uncharged acts direction must be given in all but the most exceptional cases in which evidence of criminal conduct other than that which is the subject of charges is allowed to go before the jury.[12] It is in my view equally clear that this case was not one of those most exceptional cases.

45. It was next submitted for the Crown that the Crown had not at the trial placed any explicit reliance upon propensity or similar fact evidence and that highly experienced senior counsel who represented the applicant at trial did not object to the evidence of uncharged acts and did not ask the judge to direct the jury as to the way in which that evidence could and could not be used or to give the jury a propensity warning. In those circumstances, it was submitted, the applicant ought not now be permitted to take the point.

48. I regret that I have to disagree with that submission as well. The fact that the Crown may not have placed explicit reliance upon the evidence of uncharged acts does not eradicate the possibility that the jury would have attributed significance to that evidence, as Mr Johnston for the Crown very frankly and fairly conceded. Equally, the fact that defence counsel said nothing about the point is really not persuasive. Evidently defence counsel was very experienced in the trial of sex offences and I am sure would have known of the need for directions concerning the uncharged acts evidence and a propensity warning. But the same can also be said of the prosecutor, and he said nothing either about the matter. The fact is that either counsel could, if they had thought of the matter, alerted the judge to the point, and it is to be expected that it would have been dealt with forthwith. It was however overlooked or, in the heat of the moment, not thought to be necessary.

51. If the evidence of uncharged acts was admissible at all, it was admissible only for the limited purpose of establishing context or relationship or guilty passion, however it may be described. It follows, for the reasons already given, that it was necessary for the judge to explain to the jury the limited purpose for which the evidence of uncharged acts could be used and the purposes for which it could not be used. The fact that defence counsel did not object to the evidence and did not seek directions as to its use or a propensity warning did not relieve the judge of that obligation, for as Gaudron, J. explained in BRS:

"It is well settled that where evidence is admissible for one purpose but is inadmissible for another, the trial judge 'should direct the jury that they must not use the evidence for the purpose for which it is inadmissible ... [if] the use of the evidence for that purpose would be adverse to the accused'. Certainly, a direction of that kind must be given whenever necessary to avoid a perceptible risk of injustice. And in this case there was a clear risk that, unless instructed otherwise, the jury would make improper use of W's evidence, treating it 'as indicative of a disposition to [sexual impropriety with young boys]' and using it as evidence of the appellant's guilt. ... As already indicated, there was a real risk that the jury might use W's evidence as positive proof of the appellant's guilt. In my view, that risk far outweighed any advantage that might have been obtained by the trial judge's failure to give directions as to the use to which that evidence could properly be put. Indeed so serious was that risk that, in my view, the trial judge should have instructed the jury with respect to its use notwithstanding the limited directions sought by defence counsel. In this last regard, it is sufficient to note that there is a duty on the part of a trial judge to give proper directions if there is a serious risk of injustice, whether or not those directions are sought. Correspondingly, failure of counsel to seek directions cannot be fatal to the success of an appeal or an application for leave to appeal if it appears that there has been a substantial miscarriage of justice ... "[13] [Emphasis added.]

55. The evidence of uncharged acts in this case was in my opinion highly

prejudicial and consequently I should have thought, as indeed is conceded, that there was a significant chance of the jury misusing the evidence in the absence of appropriate directions. The position is perhaps complicated by the fact that the jury acquitted the applicant on all counts except counts 1 and 13, and therefore presumably that they did not accept, or at least were not satisfied beyond reasonable doubt by much of the evidence given by CJF and LJS. On one view of what occurred, it is possible to surmise that the jury did not place any or a great deal of store on the evidence of uncharged acts. But it is impossible to know if that is the way in which the jury reasoned, and it would not have been illogical for them to have placed reliance on the evidence of uncharged acts in order to reach a state of satisfaction beyond reasonable doubt that the applicant was guilty of counts 1 and 13 and yet not to have been satisfied beyond reasonable doubt of his guilt of the other charges. At the least there remains a real chance that the jury not only remembered and accepted the evidence of uncharged acts but concluded that the evidence, combined with the evidence of the complainants as to the acts which were charged, made it highly probable that the applicant was a paedophile who preyed on young girls and committed the acts with which he was charged.[14]

59. It follows that in the absence of directions and a propensity warning it was likely that the trial would miscarry. Consequently it was incumbent on the judge to instruct the jury on both matters.

62. For those reasons, in my opinion, the application for leave to appeal ought be allowed and the appeal should be treated as heard instanter and allowed. I would set aside the conviction below and, because I consider that there is evidence appropriate to go to the jury on both counts 1 and 13, I would order a new trial to be had.

The application for leave to appeal against conviction is granted.

The appeal is treated as instituted and heard instanter and is allowed.

The convictions imposed in the County Court on 13 May 2003 are set aside and the sentences are quashed.

The Court directs that a new trial be had on counts 1 and 13 of the presentment.

An indemnity certificate will be granted to the appellant under s.14 of the Appeal Costs Act.

[7] R. v. Beserick (1993) 30 N.S.W.L.R. 510 at 516; R. v. Vonarx [1999] 3 V.R. 618 at 625 [22]; R. v. Grech [1997] 2 V.R. 609 at 612-614; R. v. FJB [1999] VSCA 90; [1999] 2 V.R. 425 at 431, per Charles, J.A.; and BRS v. The Queen (1997) 191 C.L.R. 175 at 294, 301, 302, 307 and 326.

[8] R v T (1996) 86 A.Crim.R. 293 at 299; R v TJB [1998] 4 V.R. 621 at 633.

[10] R v Beserick (1993) 30 N.S.W.L.R. 510 at 516; R v Grech at 612.

[11] The words come from the judgment of Hunt, C.J. at CL in Beserick.

[12] R v Dolan [1992] SASC 3638; (1992) 58 S.A.S.R. 501 at 503; BRS v The Queen [1997] HCA 47; (1997) 191 C.L.R. 275 at 331-2, per Kirby, J.

[13] [1997] HCA 47; (1997) 191 C.L.R. 275 at 301-302; see also at 294, per Toohey, J., at 306, per McHugh, J. and at 326-329, per Kirby, J.

[14] Cf BRS v The Queen [1997] HCA 47; (1997) 191 C.L.R. 275 at 310 per McHugh, J.