R v Loguancio [2000] VSCA 33

"2. That the learned trial judge erred in ruling that the evidence of uncharged acts of violence was admissible in considering the guilt of the applicant in respect of counts 7-12, 19 and 21-22.

2A. The trial judge erred in his directions to the jury concerning evidence of uncharged acts of violence in that:

(a) the directions were apt to indicate to the jury that there were three purposes for which that evidence could be used and that they had a choice among those purposes;

(b) the jury were given no directions as to the relative weight that might be given to evidence of uncharged acts which respectively preceded, accompanied or followed the offences charged;

(c) the jury were not directed that they must be satisfied beyond reasonable doubt of each uncharged act before they could use such evidence in any way;

(d) the jury were not directed as to whether the charged acts of violence might also be used for the two purposes of 'relationship' and 'context'.

2B. The trial judge erred in his directions to the jury concerning evidence of uncharged acts of sexual activity in that:

(a) the jury were not directed that that evidence could be used only for the limited purpose of determining whether a non-consensual sexual relationship existed between the complainant and the applicant, thereby enabling the evidence relied upon in proof of the offences charged to be assessed and evaluated within a realistic contextual setting;

(b) the jury were given no directions as to the relative weight that might be given to evidence of uncharged acts which respectively preceded, accompanied or followed the offences charged;

(c) the jury were not directed that they must be satisfied beyond reasonable doubt of each uncharged act before they could use such evidence in any way."

Although ground 2 refers to nine counts, the gravamen of the complaint was the reception of evidence of uncharged acts of violence in respect of the six counts of rape. It will be observed that ground 2A(d) is logically a separate ground, relating as it does solely to charged acts.

24. I do not propose to summarize the evidence of the 30 offences of which the applicant was convicted. Some of them were of such a depraved character that a description in a judgment that will go on the Internet and may be reported would be contrary to public morals. If the rapes and acts of reckless endangerment are not described, there is little point in particularizing the counts of intentionally causing injury, threatening to kill and common assault. It is sufficient to say that the applicant raped the complainant six times on four separate occasions and committed numerous offences of violence or threatened violence against her and, on one occasion, her mother.

27. The evidence of uncharged acts of violence, referred to in grounds 2 and 2A, included allegations that the complainant was first assaulted within six months of her marriage to the applicant; that she was hit or beaten, and was black and blue, every day thereafter; that she was on occasions threatened with death if she tried to leave; that she had been strangled with a belt on several occasions and that she could not recall all the beatings, because there were so many. The prosecutor did not intend to lead evidence of uncharged sexual acts, but the complainant inadvertently testified to an uncharged rape in April 1997. The balance of the evidence of uncharged sexual acts, including another uncharged rape in January 1997, was elicited in cross-examination.

30. It will be convenient to consider the grounds of appeal in reverse order.

34. The portion of the charge relating to uncharged sexual acts reads:

"That sexual act that I have just referred to in the evidence of [the complainant] is not the subject of any charge on the presentment. It is therefore an uncharged act. The witness has also given evidence of other sexual activity by the accused man with her which is not the subject of any charge on the presentment. That evidence of uncharged sexual activity is admissible as an exception to the general rule excluding such evidence. It is admissible for the following reason: that reason is that evidence of such uncharged sexual activity, if you accept it, enables the evidence relating to the charged alleged offences to be placed into a more complete and realistic context. You may, if you accept that evidence of uncharged sexual activity, appreciate the significance of what may otherwise seem merely to be an isolated act or isolated acts of sexual activity, for example alleged rape, occurring without any apparent reason. You must understand, however, that although this evidence of uncharged sexual activity may be received by you it is admissible for that limited purpose and only for that limited purpose.

In the long run, you must be satisfied of the guilt of the accused man on the actual charge or charges brought against him before you may convict him. You may not substitute evidence of some other incident not the subject of a charge for the evidence in support of a charged incident. Above all, you must be careful and precise in your processes of reasoning. You may use the evidence of uncharged sexual activity in determining the context or setting of the charged acts, but it would be wrong, 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 is likely to have committed the crimes charged and for you to use such a conclusion as evidence that he had committed the crime or crimes charged or any of them. Whether you are satisfied beyond reasonable doubt of the guilt of the accused man of a particular charge or count you are considering is something you must decide on the evidence which relates to that particular allegation."

39. No complaint is made concerning the second paragraph beginning, "In the long run ...": see and compare R. v. Beserick[2]; R. v. Grech[3] and R. v. J (No. 2)[4].

42. Three complaints are made about the first paragraph. (It is convenient to deal with them, too, in the reverse order from that in which they are pleaded in ground 2B.) First, it is said that the jury should have been directed that they had to be satisfied of each uncharged sexual act beyond reasonable doubt. That submission is unsustainable for several reasons. One of them is that none of the uncharged sexual acts constituted a link in a chain of sequential reasoning of the kind explained in R. v. Kotzmann[5]. Another reason is that it is usually unwise to give directions about the standard of proof of subsidiary or additional facts, as opposed, for example, to the elements of the offence.[6] There are exceptional occasions where it is helpful to do so and sometimes, although a fact is not a link in a chain of sequential reasoning, a specific direction is justified by practical considerations.[7] That is not the case here, as attested by the fact that his Honour was not asked to give any such direction.

45. The second complaint is that the jury were given no directions as to the relative weight that might be given to evidence of uncharged sexual acts which respectively preceded, accompanied or followed the offences charged. Again, no such direction was sought and in the circumstance of this case that would be a sufficient answer.[8] It will be as well, however, to say something about the point itself. It is ultimately founded on the following passage from the judgment of Hunt, C.J. at C.L. in R. v. Beserick[9]:

"As the authorities which I have cited show, remoteness of the other sexual activity from the time of the offence charged goes to the weight of that evidence. The more remote the other sexual activity is, the less will be its weight; and, in general (as a matter of commonsense), the weight to be afforded to subsequent sexual activity will be less than that to be afforded to previous sexual activity." (Emphasis in original.)

Those remarks were directed to the probative value of uncharged acts as a factor bearing on their admissibility.[10] There is no rule that a jury must be directed to distinguish between previous, contemporaneous and subsequent uncharged sexual acts. Whether it is appropriate to do so depends on the circumstances of the case[11], but directions should not be multiplied unnecessarily.[12] Questions of fact are for the jury and they are usually well able to understand distinctions that go only to weight.

50. The third complaint is that, by referring only to context and not to relationship, his Honour incorrectly instructed the jury as to the sole purpose for which, counsel submitted, evidence of uncharged sexual acts may be used.

53. In R. v. Pearce[13], on which counsel relied, it was said that the only purpose for which evidence of uncharged sexual acts may be used by a jury is that expressed in the following passage in R. v. Vonarx[14]:

"Nevertheless we believe that in a case such as the present, where evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited 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 within a realistic contextual setting."

but that must be understood in context and not without reference to other cases. See, for example, R. v. Josifoski[15]; R. v. FJB[16] and R. v. PLK[17]. A direction in terms of both relationship and context, modelled on R. v. Dolan[18] and R. v. Beserick[19] has often been given in this State. Charges are to be judged not so much by reference to charges in other cases as by reference to the way they would have been understood by the jury in the instant case. The essential point[20] in R. v. Pearce is expressed at [27] in Tadgell, J.A.'s judgment:

"... the direction was capable of being understood by the jury to mean that, without considering whether the evidence revealed a sexual relationship, they could use the complainant's evidence of uncharged acts to bolster her evidence relating to the counts charged. Having regard also to the very generalised nature of the evidence of the uncharged acts, there was an acute danger that the jury would impermissibly reason that mere acceptance of the complainant's evidence of uncharged acts would afford more reason to accept her evidence with respect to the charged acts." (Emphasis added.)

His Honour had earlier been at pains to emphasize the peculiar facts of the case, including the evidence of uncharged acts.

60. That is not to deny that important statements of principle are to be found in other paragraphs of the judgment. For example, as Callinan, J. said in Gipp v. R.[21], there is no special category of background evidence per se.[22] It must always be admitted for some specific purpose, but that purpose may be to enable the complainant's evidence of charged acts to be given in an intelligible context. As King, C.J. said in R. v. Dolan[23]:

"His Honour did not state the basis upon which the evidence of conduct other than that charged was admitted into evidence. I assume that it was admitted as indicating the relationship between the appellant and the alleged victim and as establishing the true context and setting in which the offences were alleged to have occurred. I consider that it was properly admissible on that basis. It would not be possible to properly appreciate and evaluate the evidence of the alleged victim as to the incidents forming the subject of the counts without the knowledge that they occurred in the setting of a course of sexual conduct occurring over a period of time. The occurrence of the course of conduct was a necessary part of the alleged victim's story and her account of the incidents which were the subject of the charges, could only be evaluated in that context. Moreover the significance of her failure to complain of the conduct for a period of two years or more had to be evaluated in the light of the relationship between the parties including the alleged course of sexual conduct."[24]

64. The customary direction modelled on R. v. Dolan and R. v. Beserick will usually occasion no miscarriage, but there are cases, of which R. v. Pearce was one, where it is necessary to stress that the context is the relationship. That was plainly not the case here. It could not prejudice the applicant to instruct the jury that evidence of uncharged sexual acts could be used only to place the evidence relating

to the charged offences in a more complete and realistic context.[25] Indeed, having regard to the limited probative value of the evidence of uncharged sexual acts and the way in which that evidence emerged in the course of the trial, it might well have been a misdirection to have permitted the jury to use it in any other way.

69. The impugned portion of the charge relating to uncharged acts of violence reads:

"[T]he complainant and other witnesses have given evidence as to occasions of violence towards her by the accused man, which occasions are not the subject of any charge on the presentment. I repeat that direction I gave to you during the course of [the complainant's] evidence. That evidence of uncharged acts, whether her evidence or evidence of other witnesses, is admissible as an exception to the general rule excluding such evidence and it is admissible for the following reasons. The first reason that you may, if you accept that evidence, use it to determine whether there was a violent relationship in existence between the accused man and the witness. If you are satisfied that there was such a relationship in existence, you may use that to assist you in determining whether you accept her allegations as to what took place on the specific occasions the subject of the charges on the presentment. The second reason is that it enables the evidence relating to each of the alleged offences on the presentment to be placed into a more complete and realistic context and setting. You may, if you accept that evidence of uncharged acts, appreciate the significance of what may otherwise seem merely to be an isolated act or isolated acts occurring without any apparent reason. The third reason, that evidence of uncharged alleged violent acts by the accused man has been admitted into evidence, is that the Crown contends that that evidence and the evidence of the alleged violent acts charged on the presentment are relevant to the behaviour of [the complainant]. That is, that the alleged violent acts, whether charged or uncharged, by the accused man towards her explain her state of mind. Why, for example, she was passive or submissive, if you take the view that she was passive or submissive, when unwanted sexual behaviour was directed towards her. ... It is for these reasons that this evidence is permitted to be given. You must understand that although this evidence may be received by you it is admissible for those limited purposes which I have just explained and only for those purposes."[26]

The remainder of the direction was in similar terms to the second paragraph of the portion of the charge set out in [ 7] above. A similar direction had also been given in the course of the complainant's evidence.

74. Five complaints are made about the portion of the charge set out in [15] and the corresponding direction in the course of the complainant's evidence. Three of them may be summarily despatched. One was that the jury were given no instruction as to the relative weight that might be given to evidence of uncharged acts of violence which respectively preceded, accompanied or followed the offences charged. Another was that the jury were not directed that they must be satisfied of each such uncharged act beyond reasonable doubt. A third was that the reasoning in R. v. Vonarx and R. v. Pearce entailed, by analogy, that evidence of uncharged acts of violence could be used only for the purpose of determining whether a violent relationship existed, thereby enabling the evidence relating to the charged offences to be evaluated within a realistic contextual setting. Those complaints should be rejected for the same reasons as the corresponding complaints that were made under cover of ground 2B. Moreover, as the learned presiding judge observed in the course of the argument, there was no danger in this case that the jury might separate the context from the violent relationship.

77. I have earlier pointed out that ground 2A(d) relates to charged acts. A "separate consideration" direction was given, of which no criticism is made. This was not a case where anything more was required. As Buchanan, J.A. said in R. v. KRM[27]:

"A propensity warning is not required simply because there are two or more counts on the one presentment charging similar crimes against the same victim. A warning is only required if some other factor is present which calls for the warning. See J (No 2) [1998] 3 VR 602 at 638-643 per Callaway JA. Examples of such factors are the admission of evidence of misconduct which is not the subject of a count (Dolan [1992] SASC 3638; (1992) 58 SASR 501; Beserick (1993) 30 NSWLR 510; 66 A Crim R 419; Pfennig [1995] HCA 7; (1995) 182 CLR 461 at 464-465; [1995] HCA 7; 77 A Crim R 149; Vonarx, (unreported, Court of Appeal, Vic, No 181 of 1995, 15 November 1995); Grech [1997] 2 VR 609; sub nom G (1996) 88 A Crim R 489; Gipp (1998) 194 CLR 106; 102 A Crim R 299) and the simultaneous trial of sexual offences committed against different victims (T (1996) 86 A Crim R. 293)."

81. There remains the complaint that his Honour wrongly directed the jury as to the purpose or purposes for which they could use the evidence of uncharged acts of violence. His Honour identified three reasons why that evidence was admissible and the corresponding purposes for which it could be used by the jury. The short answer to the criticism of the direction is that the evidence was admissible for the three reasons his Honour gave and could be used for the three purposes he explained.

84. In Wilson v. R.[28] Menzies, J. said:

"Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide."

Similar considerations apply, mutatis mutandis, to a case where the prosecution alleges a series of acts of violence, threatened violence and rape committed by a husband against his wife. Such evidence has always been received as evidence of relationship: see R. v. Mala[29].

89. In the circumstances of this case the evidence was also receivable for the second and third reasons given by the judge. Its probative value as contextual evidence was limited, having regard to the number and variety of counts on the presentment[30], but it was permissible for the jury to use it for the second purpose his Honour explained.[31] The third purpose was clearly permissible, for the question would inevitably arise why the complainant submitted to such abuse over a period of approximately 18 months if her allegations were true.[32]

93. For the reasons I have just given in connection with ground 2A, the evidence of uncharged acts of violence was probative, even in relation to the six counts of rape. The only question is whether in all the circumstances it was just to admit that evidence despite the prejudicial effect it might have on the applicant: see s.398A of the Crimes Act 1958. Counsel submitted that the prejudice was so great that it could not be contained by a direction to the jury. There are cases of that kind[33], but they are exceptional.[34] There is nothing about the evidence of uncharged acts of violence in the present case that could not be dealt with by appropriate instructions to the jury when the evidence was given and again in the course of the charge. I do not accept counsel's submission that there was an unacceptable risk that, in disobedience to his Honour's directions, the jury would reason from the uncharged acts that the applicant was the kind of person who was likely to commit the offences charged or that any of the uncharged acts of violence was too remote in time.

96. The admissibility of propensity evidence under s.398A is a question of law. It does not involve a discretion, albeit that the judge must decide whether it is just to admit the evidence despite any prejudicial effect it may have on the accused. The Crown must satisfy the judge that the evidence is admissible, unlike the Christie[35] discretion, where the onus lies on the accused to satisfy the judge that admissible evidence should be excluded because it is unduly prejudicial.[36] In describing one of counsel's submissions the learned judge did refer to a discretion to exclude, but he expressed himself to be affirmatively satisfied that it was just in all the circumstances that the evidence be admitted. There is no reason to think, nor did counsel submit, that his Honour did otherwise than apply the statutory test.

99. Accordingly none of the grounds of appeal against conviction is made out.

102. Before turning to the application for leave to appeal against sentence, I should mention two submissions made by the Director at the conclusion of his address. The first was that directions to juries should be framed by trial judges, and evaluated by intermediate appellate courts, with a view to a workable system of justice. I agree with that submission, for which much authority in this Court and elsewhere could be cited. If the adversarial system is to remain workable, juries must be trusted to perform their role as the triers of fact[37] and trial judges must retain flexibility.[38] The second was that the applicant's case rested almost entirely on Gipp v. R., R. v. FJB and R. v. Pearce and that we had been invited to read those cases divorced from their facts and the wider body of case law of which they form part. That prompts the following observation. Several distinct topics are discussed in Gipp v. R. but, both in this State and in New South Wales[39], it is a decision that has proved hard to apply correctly. In most cases counsel would be well advised to steer clear of it. Like R. v. FJB and R. v. Pearce, it turns to no small extent on its own facts.[40]

106. The sole ground of appeal against sentence is that the head sentence and the non-parole period infringe the principle of totality. Three distinct submissions were made under cover of that ground. First, the applicant had become eligible for release on parole under the sentence that he was already serving but, because he was awaiting trial for the offences with which we are concerned, he had not been released. It was said that his Honour wrongly refused to take that into account. In my opinion there is nothing in the point. If the applicant had been sentenced on one occasion for the offences on both presentments, the non-parole period would have been much longer than 12 months and no question of eligibility would yet have arisen.[41]

109. Secondly, it was submitted that the judge had reduced the non-parole period to accord with the principle of totality but had not reduced the head sentence. That submission is unsustainable in the light of the sentencing remarks. At one point his Honour said, "the fact that you have been in custody since April 1997 is something to which I have had regard in considering the totality of the sentences to be imposed on you". Whatever the position might have been if he had referred simply to "the sentence", the reference to "the sentences" makes it clear that his Honour meant the individual sentences and the directions for cumulation and concurrency. Later in the sentencing remarks he said that he had fixed a lesser non-parole period than he otherwise would have, because the applicant had been in custody since April 1997. Far from showing that that fact had been taken into account only in connection with

the non-parole period, the two observations read together show that regard was had to totality both in determining the head sentence and in fixing the non-parole period.

113. Thirdly, the applicant had already served one year and eight months of the sentence earlier imposed. It was submitted that an aggregate total effective sentence of 13 years and 8 months with a non-parole period of 10 years and 2 months was crushing. There is a distinction between a sentence being crushing and its infringing the principle of totality, but I am not persuaded that the sentence imposed on this applicant was either crushing or infringed that principle. The offences on the instant presentment were numerous and barbaric, committed against a victim who was entitled to expect and enjoy the applicant's love and protection. They included six counts of rape. On seven counts the applicant fell to be sentenced as either a serious sexual offender or a serious violent offender. The gravest of the offences on the earlier presentment was committed against a different victim and all the other sentences imposed on that presentment were to be served concurrently with the sentence imposed on that count. His Honour expressly directed himself by reference to the principle of totality and the sentence on its face bespeaks no error.

116. For these reasons I would dismiss both the applications.

121. I have had the advantage of reading in draft the reasons for judgment prepared by Callaway, J.A. I agree that the applications should be dismissed for the reasons stated by his Honour. In particular I agree with Callaway, J.A.'s observation that charges are to be judged not so much by reference to charges in other cases as by reference to the way they would have been understood by the jury in the instant case. The directions given by the trial judge as to the use to be made by the jury of evidence of uncharged acts were appropriate. It is not to the point that in other cases special facts required different directions.

[1] Sentencing Act 1991, s.14.

[2] (1993) 30 N.S.W.L.R. 510 at 516.

[3] [1997] 2 V.R. 609 esp. at 613 lines 31-37 and 614.

[4] [1998] 3 V.R. 602 at 641 lines 17-23.

[5] [1999] VSCA 27; [1999] 2 V.R. 123 at [2], [14-21], [47] and [50-53]. See also R. v. Huisman and Shiells [1999] VSCA 170 at [14].

[7] See, for example, R. v. Heaney [1999] VSCA 169 at [32]. There are some other exceptions that are made for policy reasons: see, for example, R. v. Best [1998] 4 V.R. 603 at 611 lines 34-44 and 616 point 4 and R. v. Kotzmann at [21].

[8] R. v. Wright [1999] VSCA 145 at [1-2] and [16-20].

[10] Now, in Victoria, under Crimes Act 1958, s.398A. See R. v. Best esp. at 611 line 45 - 612 line 29 and R. v. GAE [2000] VSCA 18 at [1] and [20-22].

[11] See, for example, R. v. Pearce [1999] VSCA 221 at [29].

[12] R. v. J (No. 2) at 642 lines 10-15.

[14] Shortly to be reported, Court of Appeal, 15th November 1995 at 12.

[15] [1997] 2 V.R. 68 at 75 lines 24-27.

[16] [1999] VSCA 90; (1999) 105 A.Crim.R. 567 at [27].

[17] [1999] VSCA 194 at [46] citing R. v. AH (1997) 42 N.S.W.L.R. 702 at 708.

[18] [1992] SASC 3638; (1992) 58 S.A.S.R. 501 at 503.

[20] The ratio decidendi is that it was not open to the jury to be satisfied of the guilt of the accused beyond reasonable doubt. The order made was that the convictions be quashed and judgments and verdicts of acquittal entered: see esp. [4], [31] and [39-41].

[22] R. v. Pearce at [26]. See also R. v. Best at 612 lines 6-8.

[24] See also R. v. Beserick esp. at 515-516 and Dixon, J.'s reference to "an unreal and not very intelligible event" in O'Leary v. R. [1946] HCA 44; (1946) 73 C.L.R. 566 at 577.

[25] It was also submitted that the reference to context in this direction reinforced what was said to be an impermissible distinction between relationship and context in the direction relating to uncharged acts of violence. That submission cannot be sustained in the light of the reasons given below for rejecting ground 2A.

[26] Italics have been used to highlight the three reasons and the corresponding purposes his Honour identified.

[27] [1999] VSCA 91; (1999) 105 A.Crim.R. 437 at [21].

[28] [1970] HCA 17; (1970) 123 C.L.R. 334 at 344. See also 338-339 per Barwick, C.J.

[29] Unreported, Court of Appeal, 27th November 1997 at 9-11 and the cases there cited. See also R. v. Tsingopoulos [1964] VicRp 86; [1964] V.R. 676 at 684-685.

[30] Compare R. v. GAE at [1] and [20-22]. It is important to remember, here and under ground 2, that it was not admitted solely as contextual evidence.

[31] Compare R. v. Beserick at 522-523.

[32] The prosecution called a psychiatrist, and the defence called a forensic psychologist, to give evidence with respect to "battered woman syndrome".

[33] So much was recognized even in R. v. Christou [1997] A.C. 117, as I pointed out in R. v. TJB [1998] 4 V.R. 621 at 629-630.

[34] See R. v. TJB and R. v. KRA [1999] VSCA 157.

[35] R. v. Christie [1914] A.C. 545.

[36] The distinction is discussed in R. v. TJB at 632. Even before the enactment of s.398A, the admissibility of propensity evidence was a question of law: see R. v. Vonarx at 7-8.

[37] RPS v. R. [2000] HCA 3 at [42-43].

[38] R. v. Miletic [1997] 1 V.R. 593 at 605 lines 17-18.

[39] See R. v. Fraser (unreported, New South Wales Court of Criminal Appeal, 10th August 1998) at 29-31 and R. v. Adam [1999] NSWCCA 189; (1999) 106 A.Crim.R. 510 at [55-57].

[40] So far as the standard of proof of uncharged acts is concerned, it is worth recording that R. v. Kotzmann was not cited to the Court in R. v. Pearce.

[41] Compare Mill v. R. (1988) 166 C.L.R. 59 at 66-67.