R v Taylor [2006] VSCA 53

2 The applicant seeks leave to appeal from his conviction on seven counts of indecent assault, one count of gross indecency with a person under the age of 16 years and one count of rape, for which the applicant received a total effective sentence of four years and six months' imprisonment with a minimum term of three years and three months' imprisonment. The applicant was also charged with one count of an act of gross indecency in the presence of a person under the age of 16 years, one count of indecent assault, three counts of rape and one count of procuring the commission of an act of gross indecency with a person under the age of 16 years. The jury were unable to agree in respect of those counts and were discharged without a verdict.

3 The offences were alleged to have been committed between December 1981 and March 1988. In December 1981 the applicant was aged 38 years. He was a scout leader and lived on a farm at Cowwarr. All but one of the four complainants were members of the scout group of which the applicant was the leader. Unfortunately the grounds of the application require the circumstances attending the alleged offences to be described in some detail.

4 The first complainant, who was aged 14 years and not a scout, gave evidence that his mother and the applicant's wife were work mates. The complainant said that he and his parents attended a barbeque at the applicant's farm. The applicant asked the complainant if he would like to ride upon the applicant's motor cycle. The complainant agreed. The complainant rode the motor cycle with the applicant seated behind him as his pillion passenger. The applicant told the complainant to stop the motor cycle, and when he did so he felt the applicant's hands on his penis over his clothes, where they remained for a few seconds. The complainant suggested that they go back, whereupon the applicant removed his hands. (Count 1.)

5 The second complainant was a member of the applicant's scout group. The complainant said that he and his family visited the applicant's farm, when the complainant was 11 or 12 years' old. According to his evidence the complainant was taken by the applicant on a motor cycle tour of the farm. The complainant was seated at the front of the motor cycle, with the applicant behind him. During the course of the ride the applicant placed his hand on the complainant's genitals over his clothing and fondled them. (Count 2.)

6 The next complainant was also a member of the applicant's scout group. The complainant visited the applicant's farm for a barbeque with a number of other people when the complainant was about 12 years' old. The complainant gave evidence that he and another boy rode on the applicant's motor cycle with the applicant. The applicant was in the middle, the complainant behind him and the other youth in front. After travelling some distance, the two boys swapped positions, and the complainant got on to the front of the bike, with the applicant seated behind him. The applicant placed his hands around the complainant's waist, slid both hands down to the complainant's crutch, placed one hand just above his penis and with his other hand squeezed the complainant's testicles hard. (Count 3.) Later that day the complainant mounted the motor cycle in front of the applicant. When the motor cycle stopped, the applicant put his hands down the pants of the complainant, held his penis and testicles and squeezed and fondled them. (Count 4.)

7 The fourth complainant was also a member of the applicant's scout group and a friend of the son of the applicant. When the complainant was about 13 years' old, he visited the applicant's farm. The complainant said that he mounted the applicant's motor cycle in front of the applicant. As they rode up a hill the applicant pulled the complainant back towards him with one hand. The complainant could feel the applicant's erect penis pushing into his bottom. When they got to the top of the hill the applicant stopped the motor cycle, turned the complainant around and said "look what you've done to me", pointing to his erect penis. (Count 5.) The following year the complainant again visited the applicant's farm. The applicant said that he would teach him to ride a motor cycle, and again put him on his motor cycle in front of the applicant. The applicant did just as he had done the year before, pulling the complainant towards him onto his erect penis. (Count 6.) The complainant said that this behaviour occurred about four or five times during that year.

8 On another occasion in that year the applicant took the complainant for a ride on the front of his motor cycle. The applicant turned into a hay shed on his farm. Inside the hay shed the applicant told the complainant to pull down his pants. The complainant did so. The applicant pulled his penis out and began masturbating. (Count 7.) The applicant grabbed the complainant by the shoulders and pushed him down on to the hay bales, using his left hand to hold the complainant down by the neck. The applicant bent the complainant over and stuck his right finger into the complainant's anus. (Count 8.) The applicant withdrew his finger and made the complainant smell it. The applicant then penetrated the complainant's anus with his penis, moving his penis in and out a few times, the penetration lasting for about five minutes. (Count 9.)

9 The following year the complainant went to a scout camp with the applicant and a number of other scouts and the parent of one of the other scouts. The applicant and the complainant drove to a boat ramp some distance from the camp. At a clearing the applicant stopped. He told the complainant to pull his pants down and fondled the complainant's penis and his own penis (Count 10), then turned the complainant over, pushed him onto his knees and held him down while he raped him again. First the applicant put his finger into the complainant's anus (Count 11) and made the complainant smell his finger, then penetrated the complainant's anus with his penis, pushing his penis in and out. (Count 12.) The following day the applicant took the complainant to the same spot, pulled down his pants and his own, made the complainant masturbate him (Count 13), then pushed him to the ground then penetrated his anus with his penis. (Count 14.) The next day the applicant drove the complainant to the same place, they both removed their pants and the applicant pushed the complainant down and inserted his penis into the complainant's anus. (Count 15.)

10 The applicant gave evidence that he could not recall two of the complainants being on his farm and denied committing any of the acts said to constitute the offences.

11 The first ground of the application is that the trial judge erred in failing to sever the presentment. Counsel for the applicant contended that counts 1 to 4 should have been heard separately from counts 5 to 15. It was submitted that the circumstances attending the first four counts involving three complainants were similar. Each consisted of the applicant feeling the complainant's genitals while mounted on the applicant's motor cycle. The remaining counts concerned the other complainant. It was said that the offending alleged in the later counts was very different to that in the first four counts, involving far more repugnant behaviour.

12 Charges may be joined in one presentment if the charges are founded on the same facts or form or are part of a series of offences of the same or a similar character.[1] In my view the offences alleged against the applicant were part of a series of offences of a similar character. Even so, severance will be ordered if the Court is of the "opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment."[2]

13 Counsel for the applicant submitted that in refusing to sever the presentment the trial judge's discretion miscarried because he erred in concluding that the evidence of each complainant was admissible in support of other complainants. The trial judge rejected the application to sever on the basis that the evidence to be given by each of the complainants, about the conduct of the applicant in committing the alleged offences against him, was of 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.

14 While the exercise of the discretion to sever is not necessarily dictated by whether the evidence is cross-admissible on other counts[3], nevertheless the question whether the evidence of several complainants is cross-admissible will usually have an important bearing upon whether the discretion to sever a presentment is exercised.

15 The evidence was not admitted for the purpose of proving the identity of the offender but for the purpose of establishing the commission of the acts constituting the offences. There was no further narrowing of the issues by the applicant's admission of elements of the offences.[4] There were common factors in the counts. Whether those factors are described as demonstrating an underlying unity or a common modus operandi or a pattern of conduct, they constituted links which, in my view, were sufficient to enable the trial judge to conclude that the evidence of one victim was so related to the evidence of other victims that the evidence of the first provided strong enough support to the evidence of the others to make it just to admit it notwithstanding its prejudicial effect.[5]

16 The applicant was able to exploit his position as a scout master to three of the complainants, and use his farm and his motor cycle as the means to initiate intimate contact with each of the complainants, all in their early teenage years. I do not think that the fact that later offences against the fourth complainant went beyond the conduct constituting the offences against the first three complainants, and did not take place on the applicant's farm, required the later offences to be severed. In my view, the evidence on each count was relevant to the other counts and the probative force of the evidence warranted the conclusion that in all the circumstances it was just to admit the propensity evidence notwithstanding any prejudicial effect it might have had on the applicant.[6]

17 Once it had been determined that the counts should not be severed, it was necessary that the trial judge ensure that the evidence was properly used by the jury when considering each count.[7] Counsel for the applicant contended that the trial judge's directions failed to achieve that objective.

18 A significant danger, in many cases the most significant danger, represented by propensity evidence is the temptation to reason that, because the accused has committed an offence on one occasion, he is therefore the kind of person who is likely to have committed a like offence on another occasion or against another complainant.[8] The trial judge gave an orthodox warning against impermissible propensity reasoning in relation to the evidence of uncharged acts of sexual activity concerning the fourth complainant.[9] The trial judge told the jury that the evidence could be used only for two purposes. It was relevant to the question of the nature of the relationship between the applicant, and the complainant, that is the existence of a "guilty passion" on the part of the applicant, and it placed the evidence relating to the offences against the complainants in a "more complete and realistic context". His Honour said:

"You must understand that although this evidence may be received by you, it is admissible only for those two limited purposes. In the long run you must be satisfied of the guilt of the accused of the actual charge or charges brought 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 the charged incident. ... [B]ut it would be wrong, prejudicial and contrary to law for you to reason that because the accused had engaged in some improper conduct [at] some other [time] or [times], he was the kind of person who was likely to have committed the crimes charged and to use such a conclusion as evidence that he committed them or any of them."

19 Unaccountably, however, the trial judge limited the warning to the evidence of the uncharged acts against the fourth complainant, save that in a somewhat confusing direction he appeared to confine the use the jury could make of the offences alleged to have been committed on the farm against the fourth complainant in considering the counts relating to that complainant said to have occurred at the scout camp. His Honour said that the events at the scout camp lacked the "hallmarks" or "elements of commonality" of the events of the farm.

20 The propensity issue went well beyond the charged and uncharged acts against the fourth complainant. The jury were not warned against reasoning that, if they found the applicant guilty of a count relating to one complainant, they were not to reason that he was the sort of person likely to have committed other offences against the same complainant or offences against other complainants. Further, compounding this omission, the trial judge failed to instruct the jury that a verdict on one count did not dictate the verdict on other counts[10]. Instead, he uncritically reminded the jury that the prosecutor had argued that the commission of offences against each of the complainants revealed a common modus operandi or pattern of behaviour, the account of each complainant thus lending support to the accounts of the others.

21 Counsel for the respondent submitted that the absence of a propensity warning in respect of all but the uncharged acts did not occasion a miscarriage of justice because the prosecutor in his final address to the jury did not invoke impermissible propensity reasoning.

22 In the course of his address the prosecutor referred to evidence of one of the complainants that the applicant watched scouts while they were showering, and said:

"Now that's all a bit odd, isn't it? I mean, the accused man says he's in the showers, just being a very good and proper scout leader, making sure these young boys have properly showered themselves or whatever. What need for a scout leader to actually be in the showers with the scouts while they shower, you may wonder the need for that, but there it is. That's a matter for you ... In any event, you may think it's all very odd."

In my view the prosecutor was inviting the jury to reason that a man who watched youths in the shower was the sort of person who was likely to commit the offences with which the applicant was charged.

23 In any event, it was the propensity evidence itself, rather than its treatment by the prosecutor, which required a judicial warning. The danger was that the jury would themselves arrive at the conclusion that the applicant's guilt on one count did not merely establish a relationship or constitute part of the context or setting in which the offences were alleged to have occurred, but enabled the applicant to be viewed as the kind of person who was likely to have committed one or more of the other offences charged because he had done so on another occasion or occasions. The danger is particularly acute in cases dealing with multiple sexual offences.[11]

24 Counsel for the respondent said that the use made by the prosecutor of the multiplicity of allegations of sexual misconduct was to invite the jury to engage in probability, not propensity, reasoning. The difference between the two processes is significant. As Callaway, J.A. said in R. v. DCC[12]:

"The difference between probability reasoning and propensity reasoning is not a matter of words or artificiality. It is a different train of thought. It is one thing to say that the account of a witness is more likely to be true because of the similarities it bears to the independent account of other witnesses and the improbability that, by sheer coincidence, their accounts would be so similar. ... It is a different thing altogether to reason that, because the evidence of one witness is accepted in relation to offences committed against her, the accused is the kind of person who is likely to have committed similar offences against other complainants, i.e., in the present context, to conclude that he is a paedophile."

In my view, the trial judge should have explained the distinction and told the jury

not to engage in propensity reasoning. His failure to do so occasioned a miscarriage of justice.

25 I would grant the application, treat the appeal as heard instanter, allow the appeal and order that the applicant be retried.

26 I would grant the application for leave to appeal against conviction for the reasons stated by Buchanan, J.A.

[1] See s.371 of the Crimes Act ("the Act") 1958 and Rule 2 in the Sixth Schedule.

[2] Section 372(3) of the Act.

[3] See sub-s.(3AA) and (3AB) of s.372 of the Act.

[4] Cf. Phillips v. R. [2006] HCA 4.

[5] See R. v. Papamitrou [2004] VSCA 12; (2004) 7 V.R. 375 at 391 per Winneke, P.

[6] Section 398A of the Act.

[7] R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412 at 417 - 8 per Winneke, P.

[8] Where there are multiple counts on one presentment but only one complainant, a separate consideration direction will generally be sufficient. R. v. J.( No. 2) [1998] 3 V.R. 602 at 614 and 638 - 43.

[9] See paragraph [7], above.

[10] R. v. Robertson [1998] 4 V.R. 30 at 39 per Winneke, P.

[11] See R. v. T. (1996) 86 A.Crim.R. 293 at 299 - 300 per Southwell, A.J.A.; R. v. Grech [1997] 2 V.R. 609 at 614 per Callaway, J.A.

[12] [2004] VSCA 230; (2004) 151 A.Crim.R. 403.