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[2014] VSCA 216
Court of Appeal (Vic)
2014-09-11
Mr P, Nettle JA, Maxwell P, Beach JA
Original judgment source is linked above.
DPP v Rapson (Unreported, County Court of Victoria, Judge Gaynor, 17 October 2013) (Conviction)
CRIMINAL LAW - Appeal - Conviction - Rape and indecent assault - Tendency evidence - Eight complainants - Whether evidence of individual complainants cross-admissible - Whether sufficient similarity or commonality in sexual acts or surrounding circumstances - Crown concession that evidence of two complainants not cross-admissible - Evidence of other complainants cross-admissible - Appeal allowed, retrial ordered - applied - , .
1 This appeal raises, once again, the question of cross-admissibility of evidence as tendency evidence under s 97 of the Evidence Act 2008 ('Evidence Act'). As the decisions of this Court illustrate, judges of the County Court are frequently confronted with this question in connection with trials of sexual offences.
2 The appellant was a teacher at a secondary school. He is charged with having committed sexual offences against eight boys who were in his charge at that school. The trial judge ruled that the evidence of each victim was admissible in proof of the charge(s) relating to each of the other victims, and that all of the charges should be tried together. The appellant was convicted on all charges. His submission on appeal was that none of the evidence was cross-admissible.
3 In assessing that contention, we had the considerable advantage, which was not available to the trial judge, of the recent decision of this Court in Velkoski v The Queen,[1] handed down on 18 June 2014. Drawing on the substantial body of appellate jurisprudence on this question, the Court in Velkoski[2] provided a clear restatement of the principles which should guide judges in deciding whether the evidence in question has
the degree of similarity in the commission of the offences or the circumstances which surround the commission of the offences that is necessary to support tendency reasoning.[3]
4 The position initially adopted by the Crown, in response to the application for leave to appeal, was that the trial judge's ruling on cross-admissibility was unexceptionable. In light of the decision in Velkoski,[4] however, the Crown revised its written case and, for the reasons set out below, conceded that the evidence of two of the complainants was not cross-admissible in proof of the charges relating to the other complainants.
5 At the commencement of the hearing, we informed the parties of our view that the Crown's concession with respect to that evidence was properly made and that, as a result, all of the convictions would be quashed and an order made for retrial on all charges.
6 The Crown's concession left for consideration the appellant's submission that none of the other evidence was cross-admissible. We have concluded that this submission must be rejected. The reasons which follow explain why the evidence the subject of the concession did not, but the other evidence did, satisfy the requirements for admissibility as tendency evidence.
7 The appellant faced five charges of rape and eight charges of indecent assault. The offending was alleged to have occurred between 1975 and 1977 (Charges 1-4) and between 1987 and 1990 (Charges 5-13). The appellant was a sometime Christian Brother and later priest, who served as a teacher and ultimately deputy headmaster at a Roman Catholic boys' secondary school. As already mentioned, the offences were allegedly committed at the school against boys in his charge.
8 Nettle JA granted leave to appeal against the convictions, on the ground it was reasonably arguable that the judge had erred in treating the evidence of each charge as cross-admissible as tendency evidence in proof of each other charge. The evidence so admitted was summarised by the trial judge as follows:
Charge [1] ... allegedly occurred in 1975 or '76 when A [then 11 or 12 years' old] was on a school day retreat at a catholic college where the accused was training to be a priest. The accused allegedly saw A, invited him into his bedroom, talked to him about sexual feelings, pulled out A's penis, masturbated it and at the same time pulled out his own penis and masturbated that.
Charge [2], indecent assault on a male between January and June 1975 involved ... B, a 12 year old, Year 7 boarder. One morning boys in his dormitory were ordered, four at a time, to a room at the end of the dormitory, wearing only a singlet and underpants for a medical examination. In the room were the accused and two other priests ... [and the boys] were ordered to look straight ahead, pull their underpants to their knees ... [T]he accused allegedly walked to [B], grabbed hold of his penis, held it up and fondled [B's] testicles for about 60 seconds.
Charges ... [3] and [4,] indecent assault on a male in 1977, involves C, a Year 10 boarder at the school, aged 15 or 16, who fell asleep on a school infirmary bed where he was sent in the late afternoon after taking an antihistamine for a bee sting. He was woken by a group of students brought into the infirmary by the accused, [who] allegedly, forced them to drink one or two mugs of Milo, which C found tasted strong and acrid, so drank only part of one, hiding his mug. Lights were turned out and C fell asleep ... [He later] woke, feeling groggy, hearing a boy in another bed crying out, 'What are you doing?', and, 'I'll tell my parents what you are doing' ... [T]he accused stood over [the other boy], threatened him verbally and made him drink another Milo after which the boy went quiet.
The accused then allegedly went around the beds where other boys slept, lifting blankets and making comments like, 'You've got a small dick'. At C's bed he pulled back the blankets, allegedly masturbated C's penis with his hands under his pyjamas, ran his fingers over C's bottom and anus, squeezed [C's] testicles and penis hard together, saying words such as, 'You're useless', presumably because C's penis did not become erect, then punched [C] in the stomach. According to C another priest came in as the accused was lifting blankets on the beds and told him he must resist. The accused replying, God had made him that way and that the other priest was the same as him.
...
Charge [5], indecent assault of 1987 allegedly occurred one night at the school in the accused's bedroom where E, aged 15 to 16 and a Year 10 boarder, habitually went to drink Scotch and smoke cigarettes with the accused at his invitation after lights out. The accused was then the college deputy principal, who looked after the Year 10 and 11 dormitory. That evening the accused and E allegedly drank three quarters of a bottle of Scotch together, E becoming drunk and lying on the accused's bed, again at the accused's invitation. The accused then allegedly sat on the bed, rubbed [E's] leg over his clothes, moving higher, eventually rubbing his penis over his jeans. E jumped up and ran out avoiding the accused thereafter.
Charge [6], indecent assault in 1987 involved D, a 14 year old day boy at the college who reported to the accused's office one afternoon to hand him school work during a week's suspension from school. The accused allegedly invited [D] to play a game on [the applicant's] computer then leaned over [D] to open a drawer containing lollies and cigarettes, asking [D] if he liked anything there. As D then stood up the accused allegedly grabbed [D] on the testicles through his clothes and leaned in as if to kiss him. D told the accused to 'fuck off', punched him and ran from the room, rode home and told his parents. They went to the school and were told D should leave the college.[5]
Charge [7], [rape], in 1988 involved 'F' a 12 year old, Year 7, border [sic] who allegedly went to the accused's office to play games on the computer at about 10:00 pm one night at the accused's invitation. After about 20 minutes, the accused allegedly offered 'F' a lemonade drink which 'F' drank straight down as he was thirsty. He then felt dizzy and fell asleep waking in a foetal position on the floor by the desk feeling pain in his anus and discovered the accused on top of him allegedly pushing his penis in and out of his bottom but could not move from under the accused.
He allegedly felt the accused ejaculate after about 10 seconds. The accused climbed off and 'F' ran straight from the office back to his dormitory where he lay crying. He was thereafter unable to defecate and the following weekend went home and was taken by his mother to the doctor for constipation and given suppositories at the consultation according to the doctor's report occurring on May 16, 1988.
Charge [8], indecent assault in 1989 or 1990 involved 'G', a Year 10 day student, at the college whose father fell ill with cancer when 'G' was in Year 7. 'G' became friendly with the accused who was then Vice-Principal when he supervised the school yard at recess and thereafter enjoyed his company on a regular basis.
The accused allegedly became aware of 'G's' father's cancer when 'G' was in Year 8 and regularly called him into his office to talk about any problems 'G' may be having.
Allegedly on two occasions in his office in 1989 when 'G' was in Year 9 aged 14 or 15 the accused gave 'G', who was sitting in a chair, a glass of Scotch and then sat on 'G's' knees facing him with his forearms resting on 'G's' shoulders saying 'G' could talk to him about anything.
In the 1989-90 Christmas holidays 'G' allegedly went to school upset about a fight over his father's drinking to speak to the accused who took him to his bedroom and gave him two glasses of Scotch. As 'G' sat on a single couch drinking the second Scotch the accused allegedly came over and squatted beside him, ran his hand up 'G's' leg and sat it over his penis and scrotum over his jeans.
In his first statement dated 5/9/2012 'G' said he jumped up and said he had to go. In a second statement dated the 3/10/2012, 'G' said that after reaching his groin the accused allegedly then took off his jeans and underpants, told him to slide down the chair, took him by the hips and turned him round so he was kneeling in front of the chair. 'G' then felt something pushed into his anus. He did not know what but thought because the accused did not take off his clothes it may have been his finger or fingers. He said he was too embarrassed and disgusted to tell police about this in his first statement. As 'G' cannot identify what penetrated his anus this latter incident is being led as an uncharged act.
Charges [9], [10], [11] ... and [12] ... are charges of rape and Charge [13] a charge of indecent assault said to have occurred in 1990 and the complainant is 'H', who came to the college as a 16 year old boarder in Year 10, turning 17 in July that year.
He had learning difficulties and dyslexia. He thought the accused may have taught him religious education but was not sure. He alleged one evening the accused told him to come to his office, the accused allegedly offered H a cigarette immediately he came in and then a drink which H thought was whiskey. The accused alleged[ly] talked about H's learning difficulty in school work 'then suddenly told me to come and stand in front of a high backed chair'. He then allegedly pushed H's head down in the chair, took off his pants and inserted his penis into H's anus. H began crying from the pain and the accused allegedly told him to shut up and hit him on the back of the head saying no one could hear him. Then after some time [he] withdrew his penis and walked H back to his dormitory. H then found blood in his jocks. These actions underlie Charge [9], rape.
H alleges the accused came into his dormitory one night soon after the Easter holidays that year and ordered him back to his office: H crying as he knew what would happen. There he immediately told H to go to the chair, pulled down his pants and put his penis into H's anus: Charge [10], rape. H alleges the exact same incident occurred again about a week later [Charge [11], rape]. H crying on each occasion and the accused slapping him on the head and telling him to shut up. Thereafter H said he hid from the accused when he saw him coming ... He alleges that in July or August 1990, the accused came into his dormitory late at night and ordered H to his office where he pushed H over the desk, then as he lay there tied his hands with a cord. The accused allegedly pulled down H's pants and inserted his penis into H's anus and was 'really rough and hard': this is Charge [12], rape.
While his penis was in H's anus the accused allegedly leaned over and grabbed H's testicles with his hand squeezing and yanking them, causing H to cry out in agony. The accused then put a hanky in H's mouth. H said he believed the accused then ejaculated withdrew his penis and came to the side of the desk with his pants still down, slapping his penis against H's still tied hands. He then alleged[ly] pulled the hanky from H's mouth and tried to insert his penis but H kept his teeth clenched and the accused could get only his penis between his lips: these later actions comprising Charge [13], indecent assault.
He then stopped and untied H's hands and had to physically help H back to a walkway area where he left him. H was allegedly unable to walk the next day due to pain in his testicles and was told to stay in bed in the dormitory but ran out in the afternoon when the accused came in, crossing fields and swimming a river to the next property where he was found and brought back that night and the doctor called. According to doctor's reports, on August 31, 1990 H underwent surgery for torsion of the right testicle and was treated for enuresis, a repeated inability to control urination.
The witness X was a boarder who in 1975 was aged 14 in Year 9 at the College when the accused was allegedly his dormitory co-ordinator and slept at night in a small room off X's dormitory. In his statement dated July 10, 2012, X said he began smoking the accused['s] cigarettes with him in his bedroom which progressed to him also drinking scotch and coke supplied by the accused. He said the accused allegedly first sexually assaulted him one night as X went to leave his room after drinking and smoking with the accused, coming up behind him, running his hand over X's body and pushing from behind so X could feel his erect penis through his pyjama pants. X said it was his first sexual experience, he became aroused and got an erection and 'next minute' the accused allegedly took X's penis in his mouth giving him oral sex until X ejaculated in [the appellant's] mouth.
He said the accused then gave him another scotch and cigarette. X alleges that from that night the accused sexually abused him every second or third night until he left the school the next year. He alleged that the accused either performed oral sex on him or would put Vaseline on X's penis and his own and lie on top of him, rubbing up and down until either of them ejaculated. He alleged on one occasion the accused tried to insert his penis into X's anus.[6]
9 In accordance with s 97(1)(a) of the Evidence Act, the Crown had served a tendency notice, which stated that the evidence of the respective complainants was to be adduced to prove the tendency of the appellant to:
(a) act in a particular way, that is, to offend sexually against young boys he had access to, 'including students at the school in which he taught', by using various methods; and
(b) have a particular state of mind, namely, a sexual interest in boys aged between 12 and 16, who were away from their families and to whom he could obtain access alone, and then to act on that interest by sexually offending against the victims in various ways.
10 Before the trial commenced, the defence sought an order for severance. It was submitted that there should be a separate trial of the allegations of each complainant. The prosecution countered that all of the evidence was cross-admissible, either as tendency evidence or as coincidence evidence, and that there should be a joint trial involving all complainants.
11 Having heard submissions from both counsel, which included helpful references to authority, her Honour refused the application for severance. She concluded that the evidence of each complainant was cross-admissible as tendency evidence, though not as coincidence evidence.
12 Her Honour referred to the decision of this Court in RHB v The Queen,[7] where Nettle JA said that tendency evidence was:
evidence which establishes that the appellant had a tendency to commit a particular kind of act or to commit an act in a particular way, and the question is whether the degree of peculiarity (for want of a better term), either in the acts themselves, or in the circumstances in which they were committed or in nature or identity of the persons against whom they were committed or by reason of a combination of those and possibly other considerations, are such that the [evidence] has significant probative value.
... [T]he test for the admissibility of tendency evidence is one of fact and degree.[8]
[t]endency evidence ... can comprise a combination of circumstances such as the nature of the alleged victims, the circumstances surrounding the offences, the way the offences were alleged[ly] committed, the nature of the acts themselves and so on.
13 In her Honour's view, there were 'many similarities between the allegations', which she summarised in these terms:
Faced with the fact that in each of the charges, ... the accused was either in training to be, or was a priest in a teaching order of the Catholic Church. That role involves taking a vow of celibacy in what might be termed professional commitment to a religious code of behaviour as a way of life such that the alleged offending, in my view, may be seen by analogy, to be almost as remarkable a departure from such a commitment and expected behaviour as a father's abus[e] of his lineal descendants, but such offending by members of religious orders against children is now known not to be uncommon is not to the point. So neither is sexual offending by fathers against their children. Each complainant was a Catholic schoolboy, aged between 12 and possibly 17, and significantly younger than the accused. Each was, by virtue of their religion, particularly vulnerable to the authority of a priest (I note this factor does not have application to Charge 1). In all cases bar those involving complainants B and C, the complainants were allegedly isolated by the accused in his bedroom or his office at the institution where he was residing. The indecent assaults allegedly involving complainants A, B, C, D, E and G involved [t]ouching of the genitalia either above or below clothing. The accused allegedly used enticements in the charges involving: A (take him to the movies); D (computer games and items in a drawer); E (cigarettes and alcohol]; F (computer games); G (alcohol); and H (a cigarette and alcohol).
He allegedly used counselling as a precursor to the sexual offending perpetrated on A and G. The cases involving B, E and F infer the use of drugs to render the victim more vulnerable to sexual assault, noting that the charge where E was [the] complainant, involved a frank use of alcohol rather than an unknown soporific. He allegedly used his authority in order to sexually assault B (ordered into a room for a medical examin[ation]), and C (ordered boys to drink Milo]. He allegedly assaulted in the presence of others who may have been [complicit] (the 'medical' examin[ation] of B involving the accused and other priests, the alleged assault on C in the school infirmary). There is alleged anal penetration of complainants F, G and H.
In terms of cross-admissibility there is also, in my view, what might be termed a meshing or crisscrossing of singular features running through the charges so that there is a singular feature of the offending as well as a dissimilar one, as between the charges. For example, the accused allegedly used a soporific in the alleged offending against C, the glass of lemonade, and F, the mug of Milo, which I regard as a most singular feature, yet the act on F was a penetration and the act on C an indecent assault.
Following the counselling alleged as a precursor to the assault on A and G, he committed an assault on G and he allegedly committed an indecent assault on A and an indecent assault and penetration on G, and so on.
14 As the Crown's concession was expressly founded on the analysis in Velkoski,[10] it is necessary to set out the key propositions enunciated by the Court in that decision. For this purpose, we have drawn on the helpful analysis in the Crown's revised written case.
15 In what follows, we will - for the sake of clarity - use the phrase 'the other evidence' to refer to the evidence sought to be introduced as tendency evidence, and the phrase 'the other conduct' to refer to the conduct the subject of that evidence. We will use the phrase 'the charged conduct' to refer to the conduct the subject of the charge in connection with which the tendency evidence is sought to be led.
16 The Court in Velkoski[11] held that the admissibility of evidence as tendency evidence was to be determined according to the following principles:
apposite and desirable to assess whether those features reveal 'underlying unity', a 'pattern of conduct', 'modus operandi', or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the other evidence its relative strength'.[13]
17 These propositions have an important corollary, as counsel for the Director submitted. It is that dissimilarity in the nature of the sexual act(s) (as between the charged conduct and the other conduct) does not necessarily preclude tendency reasoning. The point was well made in the Crown's submission:
This follows from the proposition that the underlying pattern can be found in either the offending or in the circumstances surrounding the offending. Of course, the more marked the dissimilarity in the sexual misconduct the greater the requirement for there to be a pattern of commonality or underlying unity elsewhere in the evidence;
Similarly variation in the surrounding circumstances in which the alleged offences are committed will not automatically disqualify the evidence as admissible tendency evidence. Again, it will be a question of fact and degree.[15]
18 It is clear from the decision in Velkoski,[16] and from the decisions of this Court to which it refers, that there can be no definitive prescription of the types of evidence which will satisfy the requirement of 'sufficient similarity'. Thus, there may be such similarity in the respective accounts of the alleged preparatory conduct that the other evidence would have significant probative value, notwithstanding that the sexual acts ultimately engaged in varied markedly as between one case and another. Conversely, there may be such similarity in the particular form of sexual activity engaged in with individual complainants that an absence of similarity in the surrounding circumstances would not deny the other evidence significant probative value.
19 It is, of course, necessary for admissibility that the other evidence have significant probative value. But satisfaction of this requirement is not sufficient by itself. Section 101(2) of the Evidence Act prohibits the use of tendency evidence (or coincidence evidence) 'unless the probative value of the evidence substantially outweighs any prejudicial effect it may have'. As will appear, this was one of the considerations which informed the Crown's concession.
20 Before leaving the decision in Velkoski,[17] we should deal with a general submission advanced on behalf of the appellant, to the effect that the decision could be seen to have 'hardened up' - that is, made more stringent - the requirements for the admissibility of tendency evidence. We think that to be a mischaracterisation of the decision. By and large the principles enunciated in Velkoski[18] reflect the weight of decisions of this Court since the Evidence Act first came into force. Moreover, the clarity of the Court's restatement of principle should facilitate rather than inhibit the utilisation of s 97 of the Evidence Act in the future.
The Crown's concession: the anal rape charges
21 The Crown's concession related to the evidence to be given by complainant H (Charges 9-13) and complainant F (Charge 7). Unlike any of the other charges, these charges allege penile-anal rape. In its revised written case, the Crown accepted that, on the authority of Velkoski,[19] it could no longer be maintained that the evidence of those complainants was cross-admissible in proof of the charges relating to the other complainants.
22 In a careful analysis, the Crown submitted that there was insufficient commonality - in either the nature of the sexual misconduct or the surrounding circumstances - to give the evidence significant probative value. The sexual misconduct, it was said, was
of a markedly different and graver character than the fondling or masturbation charges. Self evidently penile anal rape and non-penetrative fondling are some distance apart on the spectrum of sexual abuse.
23 Likewise, the Crown accepted, the surrounding circumstances described by complainants H and F were 'of a distinctly different qualitative character' from the circumstances described by the other complainants. The submission should be set out in full:
(a) In the offending in Charges 9, 10, 11, 12 (and 13) and Charge 7 the applicant did not seek any form of ostensible consent or passive compliance from either complainant, or allow any real opportunity for protest. In each case the applicant actively engaged in conduct so as to totally overwhelm the will of the complainants and to suppress their capacity to resist. The applicant did not engage in any incremental or seductive behaviour as a prelude to rape;
(b) Charges 10, 11, 12 (and 13) 'were all the result of a combination of straight up brute force, physical attack and emotional terrorism'.[20] Charge 9 also involved the applicant suddenly telling the complainant to stand in front of the chair pushing his neck down into the chair and anally penetrating him with his penis. When the complainant screamed the applicant slapped him in the back of the head and was telling him to shut up. Charges 10 and 11 were similar and both involved similar violence (slapping to the head). Charge 13 involved violent or aggressive handling of the complainant's genitalia, so much so that the complainant screamed out in pain. Surgery was later required. Also during the episode involving Charges 12 and 13 the complainant had his hands tied up by the applicant and the slapping to the head was even harder;
(c) In the case of Charge 7 the applicant anaesthetised the complainant, who woke to find he was already being anally penetrated;
(d) By contrast, the offending in the other charges was non-forceful and non-violent (in relative terms), involved an element of 'testing of the waters' and incremental behaviour (which allowed for ostensible compliance or consent, or the possibility of resistance), and self-evidently commenced towards the lower end of the sexual offending spectrum.[21]
24 The Crown's submission also drew attention, correctly, to s 101(2) of the Evidence Act. According to the submission:
[T]he dangers of unfair prejudice here were very high. Given the forceful and violent overtones of Charges 9, 10, 11, 12 (and 13) and the grave nature of that sexual offending, there was a serious danger the jury would be overwhelmed by this evidence when considering the more passive and less serious charges involving (to one degree or another) inappropriate touching and fondling. While no physical force was used in relation to Charge 7 the fact that the complainant was anally raped having been anesthetised also had the capacity to overwhelm any objective consideration of the molestation type charges. If the evidence qualified as possessing 'significantly probative value' under s 97, it could only have barely done so. The probative value of the evidence such as it was could not outweigh the correspondingly high risk of improper or impermissible use of the tendency evidence. The evidence should have been excluded under s 101.
25 The Crown conceded that the wrongful admission of this evidence in proof of the indecent assault charges had resulted in a substantial miscarriage of justice and that, as a result, there should be an order for retrial on all charges. As indicated earlier, we concluded that this concession was properly made, for the reasons advanced by the Crown.
Decision in WEA v The Queen[22] distinguished
26 In ruling that the evidence of penile-anal rape was admissible in proof of the indecent assault charges, her Honour referred to the decision of this Court in WEA.[23] In that case, the Court refused an application for leave to appeal from a ruling which her Honour had given on a similar question of cross-admissibility. In the present case, her Honour noted that her ruling in WEA[24] had been upheld notwithstanding that there were differences as between the five complainants as to the sexual assaults committed, and that the allegations 'included offending against one complainant which was far more serious and protracted than that inflicted on the other complainants'.
27 A review of the reasons in WEA[25] reveals, however, that the similarities were very considerable and the dissimilarities relatively insignificant. Whelan JA (with whom Coghlan JA agreed) set out her Honour's description of the relevant similarities in the offending, which was in these terms:
The complainants, GP, WC, KP, RC and TB were all pre-pubescent female members of the accused's extended family when the offending began and, apart from RC, were still pre-pubescent when it ended. Apart from RC, all of the offending occurred at the accused's home and generally when other family members were present in the house and there was a high risk of detection. All five complainants experienced the accused either rubbing or digitally penetrating their vaginas while they were asleep or in bed.[26]
28 His Honour agreed that the similarities were significant:
Those similarities include the fact that all the complainants were pre-pubescent female members of the applicant's extended family when the offending occurred or began, the fact that all were allegedly offended against in the applicant's home, the fact that all were allegedly subjected to forms of offending whilst asleep or in bed, the fact that all were allegedly offended against in circumstances of remarkable brazenness, and the fact that all of them, except GP, were subjected to some form of offending while bathing or showering.[27]
29 In that context, it was held, the dissimilarities did not preclude tendency reasoning. Whelan JA said:
[S]o far as RC is concerned, it seems to me that the offending against RC could legitimately be seen as extensions of similar activities rather than as distinctive activities. RC was allegedly offended against more extensively than the others, but all were allegedly subjected to significant offending. She was offended against away from the home, but she was also allegedly offended against in the home, as the others were, and the offending away from the home in RC's case was open to be seen as still being related to the domestic association between her and the applicant. The duration of the alleged offending against RC was longer than the others and did extend beyond her pre-pubescent years but, like the others, she was also allegedly offended against when she was pre-pubescent.[28]
30 We turn to address the remaining questions of cross-admissibility.
Cross-admissibility between the evidence of complainant H and the evidence of complainant F
31 The appellant's submission was that, although complainants H and F both alleged anal rape, there was insufficient similarity between their accounts for the evidence of one to be cross-admissible in the trial of the charge(s) based on the evidence of the other. Defence counsel pointed to the following differences in the circumstances:
32 We do not consider these to be significant differences, given the similarity in the surrounding circumstances. That similarity, coupled with the similarity in the nature of the sexual misconduct, gives the evidence of each complainant significant probative value in proof of the charge(s) relating to the other complainant. There was, as the Crown submitted, a pattern of conduct, or an underlying unity, in the way that the appellant (according to the allegations) went about achieving his sexual objective.
33 Drawing on the Crown's helpful analysis, we would identify the relevant elements of commonality as follows:
34 In our view, the fact that the appellant used his office for the purposes of these rapes is a very significant common feature. Plainly enough, he could have chosen a variety of other locations for this purpose, including locations away from school premises. What is distinctive about his use of the office, apart from anything else, is that it was a location which embodied, and reinforced, his authority over the boys at the school.
35 It is, of course, a common occurrence for a teacher to invite, or require, a pupil to attend the teacher's office. Since, however, most invitations of this kind are for proper purposes, the use of the office has obvious advantages when the objective is to lure an intended victim into close proximity. This is doubtless the kind of thing the Court in PNJ v DPP (Vic)[29] had in mind when speaking of similarities in the way in which an accused allegedly 'took advantage' of the (institutional) setting in which he found himself.[30]
36 Equally distinctive, however, is the degree of risk-taking which was involved. The risk of discovery, it must be assumed, was very real. There were presumably other staff on duty at the school in the evening and, moreover, all sorts of emergencies which might have arisen and which would have resulted in one or more students - or staff - seeking out the appellant in his office.
37 For these reasons, the evidence of complainants H and F is cross-admissible as tendency evidence.
Cross-admissibility of evidence of complainants A, E, D and G and witness X
38 The appellant's submission was that there was no cross-admissibility as between the evidence of complainant E (Charge 5), complainant G (Charge 8) and witness X. It was said to be of particular significance - as showing dissimilarity - that complainant E described only the external touching of his genitals, whereas complainant G described a progression from external touching to (the uncharged act of) anal penetration. Witness X likewise described a progression from external touching to oral penetration.
39 According to the Crown, the evidence of complainants A, E, D and G (in proof of Charges 1, 5, 6 and 8) was cross-admissible as between each of those charges, and the evidence of witness X was admissible in proof of each of those charges. In addition to the commonality of setting and relationship (said to convey a tendency by the appellant to abuse his authority and position at the school to commit sexual offences against adolescent students), the evidence was said to reveal a significant underlying unity, comprising the following features of the appellant's conduct:
(a) the appellant sexually abused each student complainant in a private room which he controlled (his office or bedroom), after using a pretext to secure the attendance of the student or at least his continued presence. In the Crown's submission, the fact that different inducements or pretexts were employed did not diminish the cogency of the common theme of operation;
(b) in each case, the appellant engaged in sexual offending of a non-penetrative kind, which fell towards the same general end of the spectrum of sexual offending;
(c) in each case, the appellant commenced the sexual abuse with inappropriate touching or fondling of the complainant's genitals over the complainant's clothes. That was clear in the case of Charges 5, 6 and 8 and, although it did not appear in the depositions, the Charge 1 complainant gave evidence at trial that, initially, the applicant also fondled his penis over the top of his clothes for less than 30 seconds; and
(d) such differences as there may have been in the level of sexual misconduct as between the charges (and the case of witness X) were simply the result of the different responses to the appellant's initial touching, as opposed to any difference in modus operandi.
40 This submission must be upheld, in our view. The differences in offending do not detract from the essential commonality. As the complainants in the cases of Charge 1 and Charge 8 - and witness X - did not physically resist or verbally protest, the sexual behaviour escalated. In the case of Charge 1, when the complainant offered no resistance to the initial over-the-clothes fondling, the appellant undid the complainant's fly and took out the complainant's penis and started squeezing it and then took his own penis out and started masturbating himself. In the case of Charge 8 and witness X, the complainant did not run out of the room after the initial fondling and the appellant proceeded to penetration. In contrast, in the case of Charge 5 and Charge 6, each complainant immediately resisted the initial over-the-clothes fondling and ran out of the room, thus negating the possibility of progression to a more serious level of offending.
41 Nor is it of any great significance, in our view, that in the case of Charge 6 and Charge 8 (and the uncharged act evidence of witness X), each complainant habitually visited the appellant's room or visited on multiple occasions (and drank whisky with him). As the Crown submitted, that is simply an additional feature which reinforces the unity in conduct involving those complainants, rather than diminishing or undermining the unity which otherwise exists between Charges 6 and 8 (and the evidence of witness X) on the one hand and Charges 1 and 5 on the other.
42 Accordingly, in our view, the evidence to be given in proof of each charge has significant probative value in proof of each other charge. On that basis, the evidence to be led in support of Charges 1, 5, 6 and 8 is cross-admissible as between each of those charges. No question arises under s 101(2) of the Evidence Act in relation to this evidence.
43 For the same reasons, we conclude that the evidence of witness X is admissible as tendency evidence in proof of Charges 1, 5, 6 and 8. The Crown conceded - correctly, in our view - that the evidence of this witness should be confined to his description of the first sexual contact with the appellant.
44 The Crown submits that the evidence of complainant B (Charge 2) is admissible in proof of Charges 3 and 4 (complainant C), and vice versa. In addition to the commonality of setting and relationship (by which is meant the appellant's alleged tendency to abuse his position of authority in order to commit sexual offences against adolescent students), the evidence was said to reveal an underlying unity, comprising the following features of the appellant's conduct:
(a) sexually abusing students by directly molesting or fondling their genitalia under clothing - both penis and testicles;
(b) so molesting multiple students at the one time;
(c) doing so in a relatively public location (dormitory or sick bay) in the presence of multiple students and at least one other priest (albeit that in the case of Charge 2, the other priests were participating, whereas in the case of Charges 3 and 4, the other priest counselled against the offending);
(d) doing so brazenly, in a manner which bespoke a perception of total impunity; and
(e) doing so during a similar period of time (1975 and 1977 respectively).
45 The appellant, for his part, points to what he says are important differences between Charge 2 and Charges 3 and 4. In the case of Charges 3 and 4, the appellant is alleged to have used a soporific. That was not so in the case of Charge 2. In the cases of Charges 3 and 4, moreover, the complainant said in his statement that the appellant punched him in the stomach. There was no suggestion of violence in the case of Charge 2.
46 In the Crown's submission, those differences are not as great as may at first appear. The molestation the subject of Charges 3 and 4 occurred while some of the students were unconscious. The complainant was conscious and he heard another student protest loudly at the appellant's conduct. The appellant was also saying derogatory things to the students about their genitalia. Equally, although the allegation by complainant C - that the appellant punched him in the stomach - had no equivalent in the account given by complainant B, the evidence given at trial showed that the difference between the two cases was in fact much less pronounced. At trial, complainant C said that, '[the appellant] sort of punched, m'mm, but, you know, whether he - he just threw the blankets over my head and I just lay there'.
47 We have concluded that the Crown's contentions must be upheld. Despite the differences which have been identified, there are significant similarities between the circumstances of each of the offences the subject of Charges 2, 3 and 4. When regard is had to the number of complainants involved in relation to Charges 2, 3 and 4, and the similarities between their accounts of the offending in each case, we are persuaded that the evidence of each charge does have 'significant probative value' in relation to each other; and, on that basis, that the evidence of each of those charges is cross-admissible in proof of each other.
48 In addition to his arguments as to cross-admissibility, the appellant sought leave to add as a ground of appeal that the judge erred in directing the jury as to the way in which they were permitted to use the evidence determined to be admissible as tendency evidence. The Crown has also advanced a number of submissions concerning the adequacy of the trial judge's directions on the use of tendency evidence.
49 In our view, it is sufficient to say of those submissions that, because the judge considered the evidence of the penile-anal penetration charges was admissible in proof of the indecent assault charges, at least some of her Honour's directions were misplaced. The judge who conducts the new trial will need to fashion different directions to reflect the fact that evidence of the penile-anal penetration charges is not admissible in proof of the indecent assault charges, or vice versa, and otherwise as to how the evidence which is admissible as tendency evidence may be used.
50 We note that the model charge in the Charge Book has been revised, very promptly, to take account of the statement of principles in Velkoski.[31] This will be of great assistance to trial judges. In those circumstances, the appellant did not press his application to add the proposed new ground of appeal.
51 Finally, it is necessary to mention that, in the course of argument, counsel for the appellant urged us to rule on whether, in view of our conclusion on cross-admissibility, any of the charges should be severed from the indictment. In the first instance, that will be a question of the trial judge to decide, in accordance with the principles and authorities discussed in GBF v The Queen.[32] Accordingly, we are not disposed to rule on the point in advance of the trial. We should mention, however, that the Crown conceded - in our view, correctly - that it would be appropriate to order that Charges 7 and 9 to 13 be severed and thus tried separately from the remaining charges.
[1] [2014] VSCA 121 ('Velkoski').
[5] The paragraphs containing charges 5 and 6 have been amended from the original transcript to ensure that they appear here in chronological order.
[6] (Unreported, County Court of Victoria, Judge Gaynor, 15 August 2013) 26-9, 31-5.
[8] Ibid [17]-[18] (Harper JA agreeing) (emphasis added) (citations omitted).
[20] This was a quotation from the reasons of Nettle JA in granting leave to appeal. Emphasis in original.
[22] (Unreported, Court of Appeal, Whelan and Coghlan JJA, 22 February 2013) ('WEA').
[32] [2010] VSCA 135, [51]-[55]. See also KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221, 235 [38] (McHugh J).
Rapson
The Queen [2014] VSCA 216
(2010) 27 VR 146
(2001) 206 CLR 221