R v Rajakaruna [2004] VSCA 114

R v Rajakaruna [2004] VSCA 114 - VSCA 2004 case summary — Zoe

[25]

By way of grounds 1(b), 10 and 12 it is claimed that, even if the evidence of the complainants was cross-admissible, his Honour erred in the directions he gave to the jury as to the use to which they could put that evidence when considering whether the applicant had committed each of the offences to which he had pleaded not guilty. The applicant's more specific criticism of the judge's charge is examined in some detail by Eames, J.A. in the reasons for judgment. His Honour concludes that the judge's directions were inadequate, essentially as was contended for on the applicant's behalf. Since I have come to a different view on this issue I will state only briefly the reasons for my views. I consider that his Honour's directions accorded with the principles stated by Callaway, J.A. in Best and by King, C.J. in R. v. Dolin[7]. In particular, I consider that the judge gave strong and clear separate consideration directions and that he clearly directed the jury not to engage in "propensity reasoning". Moreover, his Honour explained specifically that they were not to use, in determining the counts in respect of one complainant, the evidence of the other complainants as to the applicant's modus operandi, other than for the limited purpose that his Honour made clear to them. I agree, with respect, with Eames, J.A. that the "underlying unity" evidence in particular was capable of being misused by the jury and, therefore, it was incumbent on the trial judge to direct them, not only as to the manner in which the evidence could be used, but also as to the ways in which it could not be used. But I consider that, having regard to the charge as a whole, his Honour did not fail to give such a direction. In my view, the jury would have understood the limited nature, and the permitted use, of the modus operandi evidence and that, if they concluded that the applicant offended against some of the complainants, they were not permitted to reason that he was, therefore, the kind of person who was likely to have committed the offence that they were considering. More specifically, I think that the judge explained sufficiently to the jury that they must not substitute evidence of some other incident that was not the subject of the count they were then considering - and that was plainly a reference to the applicant's conduct in respect of other complainants - for the evidence in support of the count in question. Importantly, as I have already mentioned, his Honour directed the jury that, although they could use the modus operandi evidence in considering the probability or improbability of the offence in question having occurred, they were not permitted to engage in "propensity reasoning".

[102]

"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."

[105]

"When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include `striking similarity' in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle. For the reasons which I have given, I am of opinion that there was sufficient connection between the circumstances spoken of by the two girls in the present case for their testimonies mutually to support each other that the appeal should be allowed, and the conviction restored. I would answer the first question posed by the Court of Appeal by saying that the evidence referred to is admissible if the similarity is sufficiently strong or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abuse charged, that the evidence if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect. It follows that the answer to the second question is no, provided there is a relationship between the offences of the kind I have just described. These matters raise questions of law but also involve judgments on matters of degree. Judgments properly made in the light of the appropriate principles should not, I think, yield results which could properly be described as a lottery."

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Before

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Judgment (278 paragraphs)

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