R v V A S [2006] VSCA 159

1 The applicant was found guilty by a jury in the County Court, on 18 February 2005, on three counts of committing an indecent act with a child under the age of 16 years (counts 1, 3 and 5 on the presentment).

2 He now seeks leave to appeal against those convictions, relying upon the grounds that:

1. The learned judge failed to adequately warn the jury about the dangers inherent in relying upon the complainants' evidence and in particular the forensic disadvantages that arose by virtue of delay.

2. The learned judge erred by failing to give the jury a warning in accordance with R v Grech [1997] 2 V.R. 609, and, in particular, erred in that he failed to adequately instruct the jury as to the use that they could and could not make of the evidence of, for instance, the use of pornographic videos and the vibrator.

3. The verdicts of 'guilty' should be set aside on the ground that they are unreasonable or cannot be supported having regard to the evidence.

PARTICULARS

(a) The verdicts of guilty are unsafe and unsatisfactory; and,

(b) The verdicts are against the evidence and the weight of the evidence.

The Background

3 In view of the conclusion at which we have arrived, the evidentiary background need only be set out in the barest detail.

4 L, the child referred to in counts 1 and 3, was born on 19 June 1989. Her younger sister K, who was born on 15 April 1991, is the child referred to in count 5.

5 The parents of the children, RM and KM, were friendly with the applicant and his wife, T, and from time to time, the girls would stay at the applicant's home.

6 In 1996 the M family moved to an address close to the city where they resided for some years. According to L, while they were living there and on an occasion when she was staying at the applicant's home[1], he gave her some lipstick to put on her mouth. The young girl applied too much and the applicant told her to remove the excess. She complied, using her fingers. She then enquired of him what should she do with the lipstick that was now on her hand. He told her to wipe it on her vagina, and again she did as she was told. The applicant then took her into a bedroom, put her on a mattress and proceeded to lick the lipstick from her. (count 1).

7 L stated that, on another occasion and in similar circumstances, the applicant compelled her to watch a pornographic video. They were in the lounge room at the time and she was clad only in a nightgown. The applicant rubbed a vibrator all over his body and then applied it to her, including the area on and around her vagina (count 3).

8 K stated that when her sister and she stayed at the applicant's house, he would show them pornographic movies when his wife was absent. Usually he would make them watch these movies in one room, while he watched television programs in another. On one such occasion, the applicant called her into the lounge room, put his hands down her pyjama pants and rubbed her vagina (count 5).

9 The applicant was questioned by police about these claims and denied he had ever sexually touched the two girls.

The Grounds

Ground 2

10 This ground raised the contention that the learned sentencing judge fell into error in inadequately instructing the jury concerning evidence that the applicant possessed a large number of pornographic videos, and that he directed the two children to watch such videos, and used a vibrator on his finger in their presence, on occasions other than those encompassed by the counts on the presentment.

11 Counsel appearing for the applicant in this Court accepted that the evidence as to the presence of the videos and a vibrator in the applicant's house was admissible, as it could be properly used by the jury in three ways:

• First, the knowledge of their presence could be regarded as providing some support for the complainants' claims that such objects had been used.

• Secondly, the showing of videos and the use of the vibrator could be seen to demonstrate the nature of the relationship between the applicant and the two children. This would be relevant to the likelihood or otherwise that the respective complainants were truthful in their accounts of the applicant's conduct on the occasions in respect of which charges had been laid.

• Thirdly, some of the evidence directly related to those occasions and could be seen either as constituting part of the res gestae or as providing a significant and effectively inseparable part of the background to the commission of the charged offences.

However, evidence of this kind, he argued, required the provision of a propensity warning. The jury should have been warned against the impermissible use of this evidence as suggestive of a propensity to engage in the kind of behaviour charged and therefore as indicative of the guilt of the accused of the commission of the specific offences under consideration.

12 Evidence properly before the jury as relevant to the determination of some issue in the trial, but which suggests or demonstrates the existence of a propensity in the part of the accused to engage in criminal or otherwise reprehensible conduct, can be productive of injustice if it is used impermissibly. Of itself, the possession and use by an adult of materials of the kind involved here would neither be illegal nor indicate the existence of any propensity to the sexual abuse of young persons. Nor would the admissions by the applicant in his police interview of his possession and personal use of the videos and vibrator necessarily attract a propensity instruction.[2] The evidence went much further, however, as the following passages from that given by the complainants demonstrates.

13 The following two extracts have been taken from the transcript of L's evidence-in-chief:

"Just cast your mind back now to when you used to visit [the applicant] and [T]. Approximately how many times do you think it was over that whole period of time that you watched pornographic videos?---I'm not sure.

Let me ask you this: who put the videos on?--- [The applicant].

Was [T] ever there when he put the pornographic videos on when you were watching them?---No.

Where was [T] on those occasions?---At bingo or out at a friend's house or something.

Were those videos still running when [T] came home or had they been turned off?---They were turned off.

When [T] returned from bingo, would you be still up when she came home or would you be in bed---Most of the times I would be in bed asleep but sometimes I woke up.

But would you be sent to bed or would you go to bed before [T] came home?---Most of the time.

Who told you to go to bed or did you go by yourself?---Most of the time I asked if I could go to bed.

...

These pornographic movies, did you ever watch pornographic movies at [the applicant] and [T's] place when [K] was there?---Yes.

Where would you watch the movies on those occasions?---In the loungeroom.

Did you ever watch them in the kitchen?---No.

How many television sets were there at [the applicant's] place?---Three.

Where were they?---One in their bedroom, the loungeroom and kitchen.

So there was a TV in their bedroom, a TV in the loungeroom and TV in the kitchen. Could you play videos on the TV in the kitchen?---Yes.

When you were there would you ever watch videos in the kitchen?---Yes.

What sort of videos?---Just normal videos.

Where would [the applicant] be when you were watching videos in the kitchen?---In the loungeroom.

And what would he be doing?---Watching TV."

"When you used to go and stay at [the applicant's] place, would [T] always be there or would she go out from time to time?---She would go out.

Where did she go to, that you understood?---To bingo.

Would she go to bingo during the day or at night?---At night.

When she used to go to bingo what would you do when she was away at night?--- [The applicant] would put on a porno movie and make us watch it in the kitchen.

How often would he do that when you were there?---Only when [T] went to bingo.

Did [the applicant] ever put on a porno movie when [T] was there at home? ---No.

What do you mean by a porno movie?---Well, [the applicant] said it was only a little bit rude, but it was a bit more than that.

What was it?---It was where they had sex.

And I think you indicated that you would watch these porno movies in the kitchen; is that right?---Yes.

Was there a television set in the kitchen at [the applicant's] place?---Yes.

And what was [L] doing when you were watching - was she with you?---[L] and I were both watching the porno movies in the kitchen.

Did you have any choice about that?---No.

Why was that? How did that come about?---'Cos sometimes I was tired at night and I asked [the applicant] if I could go to bed and he said no, I had to stay and watch it all or just before the set time for [T] to get home.

Just before [T] got home what happened then?---Either we were in bed a little bit before when the movie finished or he would put us to bed just before [T] got home and would make out we had been in bed for ages and get us into trouble [sic].

Would you still be awake when [T] got home?---Yes, because we would only be in bed, like, a couple of minutes.

On one occasion when you were watching a pornographic movie - were these videos or were they on television?---These were videos because [the applicant] sat in the loungeroom and just watched normal TV, he didn't watch any pornos with us.

So you and [L] are watching them in the kitchen, he is sitting in the loungeroom watching his normal TV.

15 This evidence clearly encompassed occasions other than those covered by the counts on the presentment. Equally clearly, the evidence can be seen to have been potentially highly prejudicial. A jury, without instruction, might well adopt the view that a person who would take the opportunity of his wife's absence to compel - or even allow - two relatively young children to watch pornographic videos was the kind of person who would take the same opportunity to offend against them in the manner alleged by the prosecution. Once it was accepted that the applicant was sufficiently aberrant to act in this way, it would not be difficult to conclude that the evidence of the children - that he acted in the fashion claimed on the particular occasions - could be regarded as reliable.

16 For them to reason in this way would be quite understandable and, we would suggest, to be expected. Indeed, it seems to us to be generally contrary to common sense, when assessing the likelihood or otherwise of a person's engagement in particular behaviours or the individual's conduct in a specific setting, to disregard what is known about their character or predisposition. In ordinary social interactions, considerable weight is very often, if not almost invariably and usually quite appropriately, attributed to such matters of background and observation.

17 As far as the criminal justice system is concerned, however, there is a degree of apprehension underlying the authorities which address this matter about reasoning in this normally well-accepted fashion. This is so because of a danger that it may compromise the jury's capacity to assess properly the strength of the case actually presented against the accused and lead too readily to the drawing of an inference of guilt. The fact that an individual has been known to engage in illegal or reprehensible conduct, or even habitually does so, is not by itself regarded as an adequate basis for concluding that the person would have performed the acts claimed on the specific occasion in question.

18 It is clear enough that evidence which is relevant and admissible for other purposes can be adduced where a trial judge properly concludes that it would be just to do so[3]. Obviously, consideration must be given by the judge, when addressing the question of admissibility, to the question whether its admission would be just in all of the circumstances. This necessitates an assessment of the probative significance, and potential prejudicial impact, of the evidence in the precise situation present before the Court.

19 If the judge decides that it would be just to admit the evidence, notwithstanding its possible prejudicial impact -

"an explanation should invariably be given to the jury - as soon as the first of that evidence is given and, if necessary, again in the summing-up - as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other ... activity for the specific activity which is the subject of the offence charged or reason that, because the accused may have done something wrong ... on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged."[4]

20 While there is no set form of words that must be employed, the jury has to be adequately warned of the ways in which the evidence cannot be used, for it is in such possible impermissible use that the seeds of injustice lie dormant.[5]

21 In the present case, no such instructions were given. The trial judge did make clear to the jury that separate consideration had to be given to each complainant and each count. Those instructions were appropriate and no criticism has been advanced with respect to them. In this context the judge said:

"It would be wrong for you to say 'Well if the accused is guilty of count 1 he must be guilty of counts 2, 3, 4, 5, he must be guilty of the rest if he is guilty of one.' You have got to look at each count separately. Further, you must not reason if you find the accused guilty of one count against the complainant you cannot say to yourself well he is the type of person who is likely to have committed the other offences against the complainant, or against [L] for example and against [K]. That would be wrong at law, it would be false reasoning and unfair to the accused if you say well if he is guilty of one he is the sort of person who would do the others, so bear that in mind."

22 It can be seen that his Honour was appreciative of the need to direct the jury with respect to the possibility that they might reason towards the guilt of the accused in relation to one of the children on the basis of the propensity shown by the commission of an offence or offences against the other. Similarly, they were told that a finding of guilt on one count could not lead, via propensity reasoning, to the same finding on another. The following question then arises: in view of those instructions, can the jury be taken to have appreciated that the evidence of the accused's engagement in the uncharged acts had to be approached in the same way and the evidence used only for the legitimate purposes that justified its admission?

23 In our opinion, the answer must be - no. For practical purposes, the only issues in the trial related to the truthfulness and reliability of the two young people. As we have indicated, it can be seen to be a relatively short step from the applicant's possession of those objects to acceptance of the evidence that the girls had seen them and then that he compelled them to watch pornographic movies and used the vibrator in their presence. It would be a much shorter step, once that evidence was accepted, to the conclusions that he sexually abused each of them. The risk of the impermissible use of the evidence by the jury must in this situation be regarded as substantial, and it should have been the subject of specific instructions.

24 Accordingly, we consider that the contention advanced in this ground - that his Honour fell into error - has been substantiated. By reason of the strong possibility that the jury may well have been influenced in their reasoning to the applicant's guilt by the impermissible use of the propensity evidence, we consider that a miscarriage of justice may have occurred. In arriving at this conclusion, we have not overlooked the fact - emphasised by the Crown on this appeal - that no exception was taken by defence counsel to the failure to give the propensity warning.

Ground 1

25 Whilst it was conceded that the trial judge did give the jury what was described as a "modified Longman[6] warning", the argument was advanced that his instructions were deficient in two respects. First, it was said, the judge should have instructed the jury that it would be dangerous to convict on the basis of the unsupported evidence of the respective complainants. Secondly, he did not address the claimed forensic disadvantage created by the delay in prosecution and the lack of specificity as to the dates and occasions on which he was alleged to offend.

26 These complaints lack force. There is no requirement that a trial judge in the circumstances present in this matter instruct a jury that it would be dangerous to convict on the evidence of the respective complainants. His Honour's obligation was to provide appropriate instructions so that, in a situation where the prosecution had the onus of establishing guilt beyond reasonable doubt, the jury in their deliberations would be mindful of matters that could impact upon the reliability of the evidence led against the accused or which, through the effluxion of time, may have placed the accused in a position of forensic disadvantage.

27 His Honour was astute to emphasize the need for the jury to scrutinize the evidence of the two complainants with great care. He addressed this topic on a number of occasions, drawing attention (inter alia) to their ages when the offences were alleged to have been committed and the time that had passed until the trial, as well as their different levels of maturity at that stage. He pointed out the lack of supporting evidence for the claimed incidents and the possibility of collusion between the two girls and several times reminded the jury of the burden and standard of proof in a criminal trial. His instructions were adequate and no complaint was made by counsel appearing for the applicant at the trial concerning them. Specifically, no forensic disadvantage to which the trial judge did not directly advert was identified or was made the subject of any exception. None, we should add, was drawn to the attention of this Court.

28 This ground must fail.

Ground 3

29 As noted earlier, ground 3 was the "unreasonableness" ground. That is, it was to be contended that the guilty verdicts should be set aside on the ground that they were unreasonable or could not be supported having regard to the evidence. Had that ground been pressed, we would have had to decide whether -

"upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."[7]

30 In argument, however, counsel for the applicant confined ground 3 to a contention that there was such an aggregation of defects as led to a miscarriage of justice. He relied on what was said by Batt, J.A.[8] in The Queen v. Kotzmann[9] . As his Honour there said, it is open to a court of criminal appeal to conclude that the combination or aggregation of defects in a trial amounts to a miscarriage of justice. That question will only arise, however, where none of the defects, by itself, is such as to have led to a miscarriage of justice.

31 In view of our conclusion on ground 2, it is unnecessary for us to consider this ground further.

Conclusion

32 This is a case in which the outcome is almost entirely dependent upon the credibility and reliability of the evidence of the two complainants. We have not had the opportunity to see or hear them, and are therefore unable to assess their credibility with any measure of confidence.

33 In those circumstances, the application of the proviso in s.568(1) of the Crimes Act would be inappropriate. We could not be satisfied that no substantial miscarriage of justice actually occurred.[10]

34 Accordingly, we would grant the application, treat the appeal as instituted and heard instanter, allow the appeal, set aside the conviction in the court below and order that a re-trial be held.

[1] The evidence indicated that the applicant's wife, who it appears was a regular player, had gone out to play bingo on that night.

[2] R. v. Arundell [1998] VSCA 102; [1999] 2 V.R. 228.

[3] R. v. Best [1998] 4 V.R. 597 at 605 et seq per Callaway, J.A.

[4] R. v. Beserick (1993) 30 N.S.W.L.R. 510 at 516 per Hunt, C.J. at CL. This instruction has long been required to be given. See Makin v. Attorney-General (N.S.W.) [1894] A.C. 57 and more than one hundred years later in R. v. Grech [1997] 2 V.R. 609.

[5] R. v. DCC [2004] VSCA 230; (2004) 11 VR 129.

[6] Longman v. R. [1989] HCA 60; (1989) 168 CLR 79.

[7] M v. The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.

[8] With whom on this point Phillips, C.J. and Callaway, J.A. agreed.

[9] [1999] VSCA 27; [1999] 2 VR 123.

[10] Weiss v. The Queen [2005] HCA 81; (2005) 80 ALJR 444 at 454 [41].