R v V A S [2006] VSCA 159

R v V A S [2006] VSCA 159 - VSCA 2006 case summary — Zoe

[7]

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:

[11]

"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.

[12]

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 -

[16]

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 -

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Cases Cited (4)