R v Papamitrou [2004] VSCA 12

[2004] VSCA 12

Court of Appeal (Vic)|2004-02-27|Before: WINNEKE, P., ORMISTON and BUCHANAN, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2004-02-27

Before

WINNEKE, P., ORMISTON and BUCHANAN, JJ.A.

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

The applicant, she said, closed the door after him. He told her not to make any noise or "I will fire your brother". She remained silent; and he blocked her escape by standing against the door (count 10; unlawful imprisonment). M.P. said:

[2]

"He removed his hand from my mouth and passionately ... started kissing me [with his tongue]. ... He then started rubbing my breasts above my clothing, with both of his hands."

[3]

She said that she did not know what to do. He then removed the singlet top, exposing her bra. He then rubbed her breasts again. Then he lifted her bra, and "licked and sucked" her breasts and nipples (count 11; indecent act with child under 16). Although she struggled, she did not want to upset him because she did not know what he would do. He then pulled her around so that they were "side on". He lowered her pants and underwear to her ankles and commenced to rub his unexposed penis against her bottom (count 12; indecent act). She noticed that he began to lower his own pants; but heard someone else enter the toilets, and move to another cubicle. The applicant, very softly, told her to raise her legs and told her to "shut up", putting his hand over her mouth. He knelt down in front of her until the other person had left. She said that, as he had been rubbing her breasts, he was groaning and saying that "her breasts were beautiful". He then pushed her legs apart and inserted a finger or fingers into her vagina. He was "rough" and was "hurting her". He asked her whether she was "enjoying" it. She did not reply; but - she said - it "felt disgusting". She then lashed out with her feet and kicked him as hard as she could in the stomach. He removed his fingers and left (count 13; digital rape). M.P. remained in the cubicle for some 10 minutes. She said that she was in a state of shock and did not know what to do. She then dressed herself and walked back to the store where she "nodded" good-bye to her brother and went home. From there, she made a telephone call to a friend - Michael Read - telling him, inter alia, that her brother's boss had "had his way with her". Read gave evidence in which he said he remembered a `phone call from M.P. in the course of which she had told him that her brother's boss had "come on to her". She did not tell her brother (i.e. J.P.), she said, because she was "too embarrassed". She agreed that, at some time after these events, she commenced to visit the store again; but not as frequently. She did so because she and her brother did not live together; and the store was a convenient place to visit him after school.

[5]

R.S. was 15 years of age in November 2000. She worked at the "Reject Shop at Greensborough after school and at week-ends. She was a work-mate of K.H.; she also knew J.P. from the Tandy Store. However she did not know the complainant M.P. (J.P.'s sister). She was acquainted with the applicant, and knew him as the manager of the Tandy Store, which was next door to her place of work. On Sunday, 5 November 2000, she was working a three hour shift from 11 a.m. to 2 p.m.. When her shift was completed, she went to the Tandy Store to meet J.P. The applicant was present. He asked her whether she had seen "their new cages" in the store-room. He asked whether she would like to see them, she said she would. She had not been to the store-room before. The applicant took her there and unlocked the door. She noticed some Christmas decorations in a box within the cage. "As a joke", she said to the applicant: "You want to give me a boost up there"; to which he said that he would "try". She said that he then put his arms around her stomach and "started to kiss my neck". He then turned her around and gave her "a peck" on the lips, and kissed her a second time. She kissed him back. She said, in cross-examination - that she had done that because she was scared. He then touched one of her breasts (count 14; indecent act). This, she said, "did not last long" because her telephone rang. It was someone returning her call. After she had spoken [she said nothing about her predicament because she did not want to put herself in danger], the applicant took hold of her and kissed her "with the tongue". She said: "Aren't you married?" He said that there was "more to the story"; said he was "attracted to her" and "kissed her again". She sought to pull herself away from him and put her hands on his chest. He grabbed one of her hands and put it on his penis which she could feel through his trousers (count 15; indecent act). R.S. said that she went to walk away; at which the applicant took hold of her again and tried to kiss her. He asked her why she wanted to go, to which she responded: "Because I have to". He opened the door for her and asked her whether there was "anyone outside". He also asked whether he had "any lipstick on his face". He asked her to "wait 5 minutes" before returning to the shop. She said it would be "unusual" if they returned separately. When they returned to the Tandy Store, J.P. was there. The applicant asked her, in front of J.P., whether she had liked the store-room. She did not reply. The applicant then went into his office. J.P. asked her whether she "was O.K.". The applicant returned, played her a copy of a C.D. which he had made, and asked her whether she would like a copy. She said she would; and the applicant told her that he would put one together and bring it to the shop. He then called her into the office at the back. She went to the door but did not enter; He offered her a copy C.D. there and then and said "come here a second". She said that she took a step forward, at which he "tried to kiss her again". She pulled away and walked into the store. He followed her and gave her a C.D. Shortly after, she returned to the Reject Shop where she spoke to Jessica - a workmate. The workmate asked her "what's going on?". R.S. said that she had replied with words to the effect "Spiro tried to kiss me". On the following day, R.S. said that she went back to the Tandy Store to meet J.P. She was told that he was "outside, having a cigarette with K.W.". When she was outside with J.P., the applicant joined them. He said he wanted to talk to her about "working for Tandy" to which she replied that she did not need another job. J.P. and K.W. then left; and the applicant asked her whether she had told anyone "about yesterday". She said she had not; at which he asked her "not to say anything". She replied "Why shouldn't I?".

[8]

J.P., the brother of the complainant M.P., also gave evidence. He said that he was the applicant's employee at the Tandy Store for some 15-16 months commencing in mid 1999. He said he was M.P.'s brother and the boyfriend of the complainant K.W. He did not know the complainant K.G. He had met the complainant R.M., but did not know her well. He knew the complainants K.H. and R.S. from the Reject Shop. He would share morning "smoke breaks" with K.H. on the loading bay. His sister, M.P., and his girlfriend, K.W., would visit him at the store. He had "broken up" with K.W. in August 2001; but until then his relationship with her was harmonious. He gave evidence about the events after the "promotional river cruise". On the Ring Road, the applicant had twice stopped his car and asked him to get out and "check the brake lights". He denied that he was the one who had said that the lights were faulty. He said that "a couple of weeks" before he resigned from Tandy in December 2000, he had received a call from K.W. asking him to meet her in the "Sanity car park". She was upset; they had been arguing earlier in the day. He said that he would meet her during the "afternoon break"; but she had asked him whether he "could come now". Some five minutes before this call, J.P. had seen the applicant walk into the shop following an absence. The applicant had told him that he had "felt sick" and had been "throwing up". J.P. found K.W. crying. He asked her what was wrong. K.W. told him that she had earlier rung the Tandy Store and had spoken to the applicant, who had told her that J.P. was "not available". She said that she had told the applicant that she and J.P. had quarrelled and that the applicant had asked her to meet him "to talk about it". She said that she had met the applicant in the store-room and that he had "come on to her". She said that the applicant had told her that he "loved her" and "wanted to make love to her"; and that he was "touching her and kissing her" or "trying to kiss her". She also told him about the incidents in the car following the river cruise. J.P. said that he was angry about what he had heard and "wanted to resign immediately" but that K.W. had "talked him out of it". He did not confront the applicant, because he was scared about his position. Indeed, he said that when he returned to the store, the applicant had asked him if everything was "O.K."; and that he had replied "Yes"., He said that he enjoyed his job with Tandy, and had an "excellent relationship" with the applicant. However, he resigned in December 2000, because "he could not stand working there with the applicant". He had attempted to get other work at another Tandy Store.

[14]

It is appropriate to consider these grounds together. They are complementary in the sense that the second ground asserts that the discretion to sever miscarried (ground 1) because the trial judge erred in his conclusion that the evidence of the several complainants was "cross-admissible". Trial counsel for the applicant had applied to the judge to sever the counts as between the six complainants on the basis that the evidence to be given by each complainant in respect of the counts relating to her was irrelevant to and, thus, inadmissible in support of the counts relating to the other complainants. The trial judge rejected that application, and declined to sever the counts. He did so on the basis that the evidence to be given by each of the complainants of the conduct of the applicant in committing the alleged offences against her bore such a similarity or relationship to the conduct of the applicant alleged by the other complainants as to render the evidence of each "mutually admissible" in the trials relating to the others. Having reached that conclusion, it became pointless - as he said - to order severance in the manner sought. In so concluding, his Honour's discretionary exercise was consonant with principles laid down in this Court in such cases as R. v. T.J.B.[3], R. v. G.A.E.[4] , R. v. Glennon[5]. It should, nevertheless, be pointed out that where multiple sexual offences against more than one complainant have been properly joined in the one presentment in accordance with the Presentment Rules contained in Schedule VI to the Crimes Act, the discretion to sever, at least in this State, is not necessarily dictated by "mutual admissibility" or the lack thereof. The amendments to s.372 of the Crimes Act made by the Crimes (Amendment) Act 1997 (to which I have referred in paragraphs [2] and [3] above) were introduced to ensure that trial judges carefully considered whether severance was necessary even where the judge concluded that the evidence of complainants was not "cross-admissible". Those amendments introduced sub-sections (3AA) and (3AB) into s.372. Sub-section (3AA) provides that:

[29]

Applying the principles to which I have referred, I cannot agree with Mr. Priest that his Honour was in error in determining that the evidence of the complainants was mutually admissible. In this case, the issue was whether the offences had been committed; not the identity of the person who had committed them. It was not necessary to demonstrate, as I think Mr. Priest was at times submitting, that there were "striking similarities" between the conduct engaged in by the applicant against each complainant. The trial judge concluded that there was a sufficient connection in time and circumstance between the acts alleged to have been committed against each complainant to render the evidence of one admissible in support of the evidence of the others. In my opinion, his Honour was correct. Although his Honour did not elaborate his reasons for his ruling as extensively as he might have, it is evident from his reasons that he was of the view that there was an "underlying unity" between the evidence of each complainant to be found in the fact that the applicant was using his place of work, and his position at that place, to solicit and exploit for sexual purposes girls of adolescent age. It is also apparent that his Honour took the view - and I think correctly - that the applicant employed in each case a similar method of seduction and exploitation; namely the use of pretexts to isolate the girls from the company of others and the use of blandishments to induce them into sexual contact with him. The places where the assaults occurred were related to his work environment; namely car parks within that environment, the Tandy "storage room", the toilets at the Plaza, the vehicle which he drove from his place of work or from work related functions. Whether one describes these factors as providing an "underlying unity", or a common "modus operandi" or a "pattern of conduct" is of little consequence. The "links" were sufficient, in my view, for his Honour to conclude that the evidence of one victim about what had happened to her was so related to the evidence of other victims about what had happened to them that the evidence of the first victim provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect. Absent collusion, collaboration or other forms of "infection" the relationship of time and circumstance and the nature of the evidence of each complainant were such as to render the evidence of each as supportive - and in my view strongly supportive - of the evidence of others. Not only that, but - in my opinion - the support which the evidence of each was capable of giving to the evidence of the others made it just to admit the evidence notwithstanding the prejudicial effect it might have. It is obvious that evidence of this type carries with it a "prejudice" to the accused. But the "prejudice" of which s.398A speaks can rarely be a prejudice which flows from evidence which is strongly probative, which this evidence clearly was. Such prejudice is clearly distinct from prejudice flowing from evidence which merely demonstrates that the accused was the kind of person likely to have committed the acts which other complainants were alleging had been committed against them. For the reasons which I have given, his Honour was entitled to conclude that the evidence of each complainant went beyond evidence of "mere propensity" as the applicant here submitted.

[43]

In my opinion, the judge was not bound to give the type of direction to which I have referred in the preceding paragraph. I agree with the submission made by counsel for the respondent in this Court that the matters referred to are criteria of admissibility of the evidence of "similar fact", and that it is no part of the trial judge's function to invite the jury to "second guess" his determination that the evidence was relevant and admissible, and probative of facts in issue. It is the relevant purpose for which the evidence is admitted, and not the reasons for determining its admissibility, which should dictate the directions as to the use which the jury is entitled to make of it. If the judge was in error in admitting the evidence then, no doubt, an appellate court will say so and determine, on that basis, whether a miscarriage occurred. However, once the evidence has been admitted as probative of facts in issue, the function of the trial judge is to direct the jury as to the uses to which such evidence can and cannot be put. That is what the trial judge did here. He told the jury, correctly in my view, that (on the assumption that they accepted the evidence as reliable and excluded any possibility of concoction or collusion) they could use it in support of the complainant whose evidence they were considering, or as bearing upon the improbability of six persons telling similar lies. Relevantly, that was the probative force capable of being assigned to the evidence as a whole[16]. However, the judge was also bound to tell the jury that they could not engage in the impermissible use of propensity reasoning; namely that they could not reason from a finding that the accused had committed an offence against the complainant, whose evidence they were considering, that he was therefore the kind of person who was likely to have committed an offence against another. This the judge also did. I am, thus, of the opinion that the judge correctly perceived the purposes for which the evidence of all complainants could, and could not, be used, and adequately instructed the jury as to the use which they could make of that evidence; and the purpose for which they could not use it[17]. For the judge to have instructed the jury that they could only use the evidence of one complainant in support of the evidence of another if they were satisfied that there was an "underlying unity", or a "strong similarity", or a "common pattern or thread" between the evidence of the individual complainants would not only, in my view, have been calculated to mislead the jury; but also would have redounded to the detriment of the applicant. That, no doubt, is why trial counsel for the applicant raised no exception to the content of his Honour's directions. So far as I am aware, directions similar to those given in this case have been given in other cases which this Court has considered[18], concerning the directions which are appropriate in cases such as this where evidence of several complainants has been admitted pursuant to s.398A Crimes Act. That, of course, is not to say that trial judges should slavishly follow "standard directions". Directions should, as I have said, be relevant and appropriate to the issues raised in a particular trial.