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[2013] VSCA 311
Court of Appeal (Vic)
2013-11-07
Maxwell ACJ
Original judgment source is linked above.
CRIMINAL LAW - Appeal - Conviction - Sexual penetration of child under 16, indecent act with child under 16 - Two complainants - Whether evidence crossadmissible - Whether tendency evidence - Whether probative value substantially outweighed any prejudicial effect it might have - Acquittal on two of four counts relating to first complainant - Whether verdicts inconsistent - Appellant cross-examined about whether complainants were lying - Withdrawal and apology by prosecutor - Directions by judge - Jury discharge application refused - Whether miscarriage of justice - Appeal dismissed - Evidence Act 2008 (Vic) ss 97, 101.
EVIDENCE - Tendency evidence - Sexual offences - Evidence of two complainants - Lapse of time between incidents - Whether evidence of one complainant probative of tendency - Whether probative value substantially outweighed any prejudicial effect - R H B v The Queen [2011] VSCA 295; G B F v The Queen [2010] VSCA 135 applied - Evidence Act 2008 (Vic) ss 97, 101.
1 After a trial in the County Court, the appellant was convicted of two sexual offences against his stepdaughter, Eleanor,[1] and two against his biological daughter, Mary. He was acquitted of two other charges relating to Eleanor. He was sentenced to four years and six months' imprisonment, with a non-parole period of three years.
2 He was granted leave to appeal by a judge of this Court. For reasons which follow, I would dismiss the appeal.
3 At the time of the alleged offending against Eleanor, Mr Reeves was married to her mother, Irene. The offences were alleged to have occurred between 1 December 2007 and 31 January 2008, when Eleanor was aged 11.
4 Eleanor was staying at Mr Reeves' beach house. She developed a rash on her upper leg. She wanted to apply some cream to the rash. Mr Reeves applied cream to the rash and then, according to Eleanor, he touched her vagina with his fingers (charge 1 - indecent act with child under 16) and put his fingers inside her vagina (charge 2 - sexual penetration of child under 16). He also licked her vagina (charge 3 - indecent act) and put his tongue inside her vagina (charge 4 - sexual penetration).
5 The defence case was that the alleged conduct did not occur at all. The jury found Mr Reeves guilty on charges 1 and 2, but acquitted him on charges 3 and 4. (It is contended under ground 2 that the inconsistency of the verdicts makes the guilty verdicts on charges 1 and 2 unsafe and unsatisfactory.)
6 It was further alleged that, between 18 and 27 March 2011, Mr Reeves indecently assaulted Mary by touching her vagina with his fingers (charge 5 - indecent act) and rubbing her bottom with his fingers (charge 6 - indecent act). The defence case was that, in the course of tickling Mary's back while they were in bed together, Mr Reeves had accidentally brushed her vagina, on the outside of her clothing. There was no intentional touching. Mr Reeves was convicted on both charges.
7 In order to evaluate the grounds of appeal, it is necessary to set out in some detail the evidence given by each of the complainants. The evidence of each complainant was recorded, in accordance with s 367 of the Criminal Procedure Act 2009 (Vic), and each of them was cross-examined at a special hearing.
8 Eleanor said that they had been at the beach. She was wearing board shorts and her legs had rubbed because of the sand, resulting in a rash on both of her upper legs. She asked for the cream. She would normally rub it on herself and was intending to do so.
9 When she asked Mr Reeves for the cream, they went into his room. He closed the door and told her to lie down on the bed. He took the cream and rubbed it onto her legs. Having done so, she said, Mr Reeves pulled down her pants and underpants and then he touched her both outside and inside her vagina. Then he licked her on the vagina, and put his tongue into her vagina. He had opened her legs for this purpose.
10 At the end, he asked Eleanor whether she liked what he had done. She said she did not. Mr Reeves' two sons were in the house at the time. Eleanor's brother, and her stepsister, Mary, were also there.
11 About a month later, Eleanor's mother asked her why she no longer wanted to go to Mr Reeves' house. She said it was because Mr Reeves had touched her vagina. She had not discussed the matter with her mother subsequently.
12 It was put to Eleanor under cross-examination that the real reason for her not going to Mr Reeves' house was that she had had an argument with one of his sons. She acknowledged that there had been an argument but said that this was not the reason for her staying away. She said it was '[b]ecause I felt uncomfortable ... that he'd do it again'.
13 Eleanor was questioned about her relationship with her stepsister, Mary. She said she had never told Mary about what had happened to her. Mary had subsequently told Eleanor about what Mr Reeves had done to her, but Eleanor had never told Mary about his assault on her.
14 It was put to Eleanor in cross-examination that she had seen that Mary's allegation had 'meant something' to her mother, and had resulted in Mr Reeves staying away from Eleanor. It was then suggested that she had made her own allegation against him because she knew that, if she did so, it would help Mary, and her mother, and herself. She denied this.
15 It was further suggested to Eleanor that this was a chance for her to 'get at' Mr Reeves and that this was why she had persisted with her allegation. Eleanor responded:
No, I didn't - I didn't - I just wanted to forget about this. My mum's the one that made me ... confess.
COUNSEL: You didn't want to continue talking about it?
ELEANOR: No, it's very uncomfortable for me.
COUNSEL: But your mother's been in discussion with you, has she?
ELEANOR: Not about what happened, just telling me I need to - I need to confess. I need to tell what happened.
16 In April 2011, Eleanor was interviewed by a Senior Protective Worker, Ms Tracey Edwards. Ms Edwards made a note of the interview, the relevant part of which was as follows:[2]
Eleanor is aware of the current IVO and stated that she has 'mixed feelings' about this. I asked Eleanor what her mixed feelings are. Eleanor stated 'I feel sorry for Carl, but at the same time I'm worried about my sister'.
I asked Eleanor if Carl has ever said or done anything to her that she felt was inappropriate. Eleanor paused and then stated 'yes'. I asked Eleanor if she is able to explain this further. Eleanor stated 'he just did the same to me'. I asked Eleanor if she can provide any further detail. Eleanor stated 'I'm not really comfortable, I've never told anyone but my mum.'
I acknowledged with Eleanor that it is a very difficult thing to talk about, however it is important that I understand what has happened to ensure that she and her siblings are safe and supported. Eleanor stated that she was 10 or 11 years' old at the time. Eleanor stated 'I had a rash on my leg and asked for cream, and he umm ...'. I asked Eleanor where on her leg the rash was. Eleanor stated 'it was high up on my thigh' and pointed to the area. I asked Eleanor what happened after that. Eleanor stated 'he rubbed the cream on and then touched my vagina'. I asked Eleanor how long this happened for. Eleanor stated 'about 5 to 10 minutes'. I asked Eleanor what Carl used to touch her on her vagina. Eleanor stated 'with his fingers'. I asked Eleanor how she felt at that time. Eleanor stated 'I laid there, I was scared'. I asked Eleanor if she can recall what made him stop. Eleanor stated that she cannot remember.
I asked Eleanor when she told her mother about this incident. Eleanor initially stated that it may have been last year, however then stated that it may have been sooner than that, perhaps in 2008 or 2009. I asked Eleanor how her mother responded to this. Eleanor stated 'mum was devastated'. Eleanor does not know if her mother raised this with Carl and is fairly sure Carl does not know Eleanor has disclosed this to her mother.
I asked Eleanor if she is scared that Carl may find out that she has spoken about the incident. Eleanor stated 'for some reason, I feel sorry for him, but I don't want it to happen again and would be worried about Mary if she went back'.
17 Mary was staying at her father's house on a Friday night. She was due to play basketball the following morning. He was out at a wedding, so she was sleeping on the sofa bed. She was wearing her clothes at that stage.
18 When Mr Reeves came home, he asked her to go into his bed. This was quite normal, as she often slept in his bed. As was the usual practice, he removed her leggings. She was quite comfortable about this.
19 Some time later, while she was still awake, he pulled her underpants down and he touched her both on the vagina and on the bottom. She rolled on to her stomach so that he could not touch her vagina again. She then asked if she could go and sleep on the sofa bed. She said nothing to him about what had happened until the morning. Under cross-examination she explained that she had not said anything during the night because she felt scared.
20 In the morning, Mr Reeves asked her whether anything had happened. When she said he had touched her, he said, 'I'm sorry ... I thought I was dreaming'. He said that he would tell her mother and that she need not tell anyone. When they subsequently arrived at her mother's house, she asked him if she could tell her mother but Mr Reeves said that he would do so.
21 On arrival at Irene's house, Mr Reeves took Irene into the garage and spoke to her. Both Eleanor and her brother asked Mary what was going on. (According to Eleanor, she realised something was going on and 'beg[ged]' Mary to tell her what it was.) When Mary told them what had happened, Eleanor said, 'Are you sure you weren't dreaming?' After Mr Reeves left, Mary told Irene what had happened. Irene responded that it was wrong 'for people to touch you there'.
22 About three months later, Mary told one of her school teachers during the lunch break. Asked in cross-examination why she had done so, Mary said, 'I was kind of feeling a little bit sad at the time and I wanted to tell another person what had happened'. The teacher also said that such touching was wrong.
23 Mary was also cross-examined about the relationship with Eleanor. She agreed that they spoke often, 'but not about what happened'. Mary said that, apart from the first occasion when she had responded to her siblings' questions, she had not spoken to Eleanor on any other occasion about what had happened. Nor had Eleanor told her at any time that Mr Reeves had touched her. 'We knew that ... we weren't allowed [to speak about it]'.
24 Ground 1 contends that the trial judge should have discharged the jury, after the prosecutor cross-examined Mr Reeves about whether the complainants were lying. There are three impugned parts of the cross-examination. The first concerned the evidence of the complainants' mother, Irene:
Q: She's lying when she says all of that that she said there in that witness box this morning?
A: She's the biggest liar I've ever heard in my life.
Q: Yes. Well, you believe she's behind all this. She's made these allegations up against you, don't you [sic]?
A: Oh, yeah.
Q: That's what you think?
A: She's part of it. Yep.
Q: You say she is lying? Eleanor is making all this up, it didn't happen?
A: It's not true, yes.
Q: You say she's lying when she says those things? Flat out lying?
A: She's definitely confused.
25 These exchanges all took place on the same day, which was a Friday. The cross-examination had not concluded when the trial was adjourned for the weekend. On the resumption on the following Monday morning, the judge informed counsel in the absence of the jury that she had concerns about those questions and had asked for provision of the transcript to be expedited. Having read the transcript, her Honour said, she considered that she should inform the parties of her view that the questions were impermissible 'having regard to the authority of R v Davis'.[3]
26 Her Honour said that her preliminary view was that she could deal with the matter by giving 'very strong directions' to the jury. The prosecutor acknowledged that it had been his fault and that the questions should not have been asked. He apologised to her Honour and to defence counsel and to Mr Reeves. Having sought instructions, defence counsel submitted that the problem created by the questions could not be adequately cured by direction. Accordingly, he applied for a discharge of the jury.
27 Her Honour refused the discharge application, saying:
[I]t's clearly in my view a case where there is not demonstrated a high degree of need to discharge this jury. It is my view that a fair trial for the accused man can still be had and in the circumstances what I propose is that very firm directions be given to the jury with my authority as trial judge.
...
I will be reminding them that as they are the judge of the facts in the case, it is their task alone to assess the credibility, reliability and truthfulness of the Crown witnesses and it is a matter for them to determine whether any Crown witnesses are lying and any opinion expressed by the accused man is irrelevant and that they must disregard the offending questions and answers when they are deliberating, to consider their verdict.
28 The prosecutor proposed, and her Honour accepted, that he should inform the jury that the questions were impermissible and that both the questions and the answers should be disregarded. The following exchange then took place in front of the jury:
PROSECUTOR: Could I raise a matter with your Honour? On Friday in the heat of my cross-examination, I asked Mr Reeves some questions that were inappropriate in terms of asking him whether witnesses were lying, particularly Irene, Mary and Eleanor.
HER HONOUR: Yes.
PROSECUTOR: I shouldn't have asked him those questions, it's really a matter for this jury to determine whether witnesses are lying or not, and I'd ask your Honour to tell the jury that they should disregard those questions and answers.
HER HONOUR: Very well.
Ladies and gentlemen, the Crown prosecutor has quite properly brought to my attention that some questions that he asked on Friday of Mr Reeves in cross-examination were not permitted at law and therefore it is necessary for me to give you some directions about this evidence, and remember what I said at the commencement of this trial, I am the judge of the law and you must act on what I say to you is the law and you must act on the following direction.
I will refer to the evidence that [the prosecutor] referred to then. He asked Mr Reeves questions about Mary's allegations and he asked this question: 'You say she's lying when she says those things? Flat out lying?' ... To which he replied 'She's definitely confused'.
[The prosecutor] also asked this question about Irene's evidence, 'She's lying when she says all of that that she said there in that witness box this morning?' to which Mr Reeves replied 'She's the biggest liar I've ever heard in my life'.
Finally, he asked this question about Eleanor, 'You say that she's lying, Eleanor is making all of this up?' and the accused man said 'It's not true, yes'.
The law is, ladies and gentlemen of the jury, that any witness and, in particular, an accused who gives evidence ought not be asked in cross-examination whether another witness has lied. As I have already told you in my preliminary directions, it is for the prosecution to prove its case against Mr Reeves beyond reasonable doubt and the onus of proving Mr Reeves' guilt always remains on the prosecution and at no time does it shift to Mr Reeves. You are the judges of the facts in this case and it is your task, alone, to assess the creditability, reliability and truthfulness of the Crown witnesses and the question whether any Crown witness is lying is a matter for you to determine and the opinion expressed by the accused man is irrelevant and it ought not to be asked of him.
You must therefore disregard those questions and those answers when you are deliberating and considering your verdicts. Do you all understand that? Yes. Very well. We will proceed now.
30 The submission for the appellant relied on the following passage from the judgment of Nettle JA in R v Buckley:
Whatever may have been the position in the past, the law in this State is now that any witness and particularly an accused who gives evidence ought not to be asked in cross-examination whether another witness is telling lies or has invented something. Cross-examination of that kind is impermissible because it may deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the accused in accordance with the burden and standard of proof borne by the Crown. The problems which it creates are not easily overcome by the judge telling the jury that the accused is not required to provide an explanation for the propensity of other witnesses to lie. And the very fact of the cross-examination gives to the cross-examiner clear benefits which he or she is not entitled to have. The problems become particularly acute in a case like this where the central issue involves oath against oath.[4]
31 It was contended that the unfairness created by the questions asked of Mr Reeves could not be cured by direction. The questioning gave the cross-examiner 'clear benefits which he [was] not entitled to have', in that Mr Reeves was forced into offering opinions that Mary was 'confused'; that what Eleanor was saying was 'not true'; and that his former wife, Irene, was 'the biggest liar'. According to the written submission:
The questions and the [appellant's] responses thereto could not sensibly be excluded from the jury's thinking, despite the strongest directions. Nor could the mood of each moment those questions were asked be divorced from other surrounding questions and answers.
[N]otwithstanding her Honour's direction, as in R v Buckley, the prosecutor's questioning may well have deflected the jury from a proper assessment of the credibility of the applicant and the Crown witnesses in accordance with the burden and standard of proof. Such deflection is all the more likely given the judge's direction that 'the question whether any witness is lying is a matter for you to determine'. That direction had a tendency to suggest that the jury had to determine whether witnesses were lying, which in turn tended to cast an onus on the accused to prove that was so. Further, the direction had a tendency to set up a false issue - whether the witnesses were lying. The true position is the Crown has the onus of proving, on the criminal standard, that the offences were committed, and such proof depends upon acceptance beyond reasonable doubt of the truth and accuracy of the key aspects of the complainants' evidence. There is therefore an onus on the Crown to prove beyond reasonable doubt that the complainants were truthful in their accounts - ie not lying - and reliable. The judge's directions undermined this notion.[5]
33 Because this was a case of oath against oath, it was said, the problems caused by impermissible questioning of this type were particularly acute, as Nettle JA had said in Buckley. Insofar as the directions suggested that the jury had to determine whether witnesses were lying, they suggested a competition between the Crown witnesses and the accused as a witness, which again tended to undermine the onus and standard of proof.
34 The submission for the Crown accepted that the questioning was impermissible, but contended that the direction which her Honour had given the jury had provided a sufficient 'antidote', such that there was no miscarriage of justice.[6] That submission should be upheld, in my opinion.
35 It is clear from the authorities that impermissible questioning of this kind may - but will not necessarily - be productive of a miscarriage of justice. Whether there has been a miscarriage of justice is to be assessed having regard to all of the circumstances of the case and, in particular, having regard to the likely effectiveness of any directions given by the trial judge.
36 The starting point is the decision of the High Court in Palmer v The Queen,[7] where the Court was concerned with the related - but distinct - issue of questioning directed to an accused about whether a complainant has a motive to lie. In their joint judgment, Brennan CJ, Gaudron and Gummow JJ addressed the proposition that the effect of such questioning was to reverse the onus of proof.[8] In their Honours view, this proposition
may overstate the effect of the question in a particular case, especially if the trial judge gives the jury a direction to the contrary. A firm and clear direction from the trial judge may prevent the impropriety of asking the question from causing justice to miscarry. Nevertheless, as the question is irrelevant to any issue in the case, it ought not be asked.[9]
37 In Bajic, this Court was concerned with sustained cross-examination of the accused of the 'Is she lying?' kind. The analysis of Eames JA (with whom Charles JA and Byrne AJA agreed) proceeded on the assumption that the directions which the trial judge had given the jury might have been sufficient 'to cure any defect in the trial caused by the prosecutor's questioning'.[10] Ultimately, however, Eames JA was not persuaded that the defect had been cured by the directions:
The jury could not help but understand that the questions really asked 'Why would she lie?' Even if the prosecutor stopped short, at the point of asking 'Did she lie?' The latter question was repeated continuously throughout the cross-examination. Upon further consideration of the nature of the crossexamination in this case, and notwithstanding the strength of the directions by the judge, I am of the opinion that the cross-examination may have occasioned a miscarriage of justice.[11]
What was particularly significant, in his Honour's view, was that the prosecutor's questioning was intended to force the accused to adopt a position which the defence had not asserted but which was 'entirely of the prosecutor's own making'.[12] There is no parallel in the present case.
38 In R v H R A,[13] the Court concluded that the impermissible questioning had not caused a miscarriage of justice. The questions were, once again, of the 'Is she lying?' kind. As Kellam JA pointed out:
[T]he questions asked tended to require the applicant to express an opinion as to whether the complainant was lying and her motive for doing so. The opinion, or speculation, of the applicant as to those matters was irrelevant, it being for the jury to determine the credibility of the complainant, and not the applicant.[14]
However, no exception was taken to the questions by experienced counsel, nor was any exception taken to the trial judge's summary of that part of the evidence. In all the circumstances and although I consider that the questions asked of the applicant in this regard did cross the line of permissible crossexamination I do not consider that it can be said to be the cause of a miscarriage of justice.[15]
39 Again, in Martin v The Queen,[16] complaint was made about five separate pieces of cross-examination of the accused which, in each instance, invited her to say whether the relevant allegation against her was a fabrication or a lie. The Court concluded that there was no miscarriage of justice.[17] In relation to one set of questions, Ashley JA said that, on the assumption that the cross-examination was impermissible, he could not
detect any miscarriage in what eventuated. In the particular circumstances, the jury could not have thought otherwise than that the necessary corollary of the applicant's evidence was that [the witnesses] had lied. What the applicant said in cross-examination, really seeking to explain why they had done so, reflected that inevitability. Applicant's counsel conceded that there must be cases where an impermissible question would not give rise to a miscarriage of justice. That concession, in my view, has application in the present context.[18]
40 In the present case, there are powerful reasons for concluding that there was no miscarriage of justice. First, the relevant questioning was in each case very brief. Secondly, and most importantly, the judge intervened at the earliest opportunity, which ensured that any risk of the jury being diverted to a consideration of irrelevant issues was minimised. Thirdly, and unusually, the prosecutor himself made a prompt and unconditional disavowal of the questioning, and apologised for it. The prosecutor's conduct must have strengthened the effect of the judge's direction, which followed immediately afterwards. The adequacy of the judge's direction must be assessed in that context.
41 What her Honour said to the jury was clear and unequivocal. She gave, in my opinion, precisely the kind of 'firm and clear direction' contemplated by the joint judgment in Palmer. The assumption upon which this Court must proceed, of course, is that the jury followed and applied the directions they were given by her Honour.[19] There is nothing in the circumstances of this case to displace that assumption. It can safely be concluded, in my view, that the jury ignored the questions and answers, as they were directed to do.[20]
42 The circumstances of the present case are entirely different from those under consideration in Buckley. There, as Nettle JA pointed out, the trial judge had dismissed the defence objection to the impermissible questioning, implying that what was being done was perfectly fair in cross-examination.[21] In Nettle JA's view, the effect of the trial judge's responses was
to mislead the jury to the view that the applicant was scared of proper cross-examination about the honesty of the Crown's witnesses and thus that he had something to hide. In effect the judge lent the authority of his office in a visible fashion to a process of cross-examination that was impermissible and likely to lead the jury astray.[22]
In the present case, of course, the judge's decisive intervention was to precisely the opposite effect.
43 The submission for the appellant was that the guilty verdicts on charges 1 and 2 and the not guilty verdicts on charges 3 and 4 could not stand together. No reasonable jury, it was said, having applied their minds properly to the facts in the case, could have arrived at the conclusion that the appellant penetrated Eleanor with his finger but did not touch or penetrate her with his tongue. It was not possible to accept part only of what was an unbroken account of the version of events, from which Eleanor at no time resiled. It was said that the allegation of licking, and lingual penetration, was 'significantly more prominent' in Eleanor's account than the allegation of digital penetration. The difference in the verdicts was said to be 'an affront to logic and common sense'.[23]
44 I am not persuaded by that submission. There is no rule that, in cases of complaints by a single complainant of a number of sexual offences, a jury must either accept or reject all of the allegations. On the contrary, the court of criminal appeal must always examine any differentiation in the verdicts to see if it can be justified.[24]
45 In the present case there was an obvious explanation for the differential verdicts. The case note prepared by Ms Edwards recorded in considerable detail the account given to her by Eleanor of what had happened. According to that record, Eleanor spoke of digital touching but made no reference to licking or lingual penetration. The jury were entitled, in my view, to treat the absence of independent confirmation of those allegations as a significant point of differentiation.[25]
46 In accordance with s 97(1) of the Evidence Act 2008 (Vic), the Crown had given notice to the defence that it intended to adduce the evidence of each of the complainants as tendency evidence, that is, in order to prove a tendency on the part of Mr Reeves to:
Have a particular state of mind, namely:
(a) a sexual interest in prepubescent girls; and
(b) a preparedness to act upon this sexual interest with his daughter and step-daughter while they were in his care.
Act in a particular way, namely:
(c) a willingness to act upon this sexual interest when alone with his daughter and step-daughter by touching their genitals and sexually penetrating them in the manner alleged.
47 Following pre-trial argument, the judge ruled that the evidence could be led for this purpose. The relevant section of the reasons was in these terms:
I am satisfied that the relevant evidence is relevant to the facts in issue in respect to each of the charged offences. Clearly this evidence 'could' affect the probability of the existence of those facts in issue.
Both girls were prepubescent when the alleged acts occurred. The accused man allegedly exploited his position as parent or person standing in the shoes of a parent, apropos Eleanor, when the girls were staying with him during access to take advantage of them. It is unusual for a parent to do acts of the kind described by each complainant.
Although alone with each girl at the time of the alleged offending, others were nearby. With respect to Eleanor, [her brother], Mary and [her two stepbrothers] were present and in respect to Mary, [her brother] and [one of her step-brothers] were present.
The alleged acts involved him removing the complainant's underwear and involve[d] him touching the girls' vaginas. Notwithstanding it is alleged that the charges concerning Eleanor involve penetration of her vagina by the accused's finger, the dissimilarity between the alleged offences do [sic] not necessarily deprive the evidence of probative value. Nor does the gap in time between the alleged offences.
The fact that the offences against Eleanor occurred when she was 11 and Mary when she was 9, may, in my view, be regarded as having probative value because it shows that the [appellant] had a sexual interest in prepubescent girls, which was pursued.
In my view, the circumstances of the alleged offending against Eleanor and Mary does demonstrate a pattern of conduct which makes the evidence of these two girls cross-admissible. That is, the evidence of one complainant that [the appellant] committed these offences against them has significant probative value as evidence of a tendency to offend against the other children in the family.[26]
48 The defence sought leave to appeal against her Honour's ruling, under s 295 of the Criminal Procedure Act 2009 (Vic). This Court refused leave to appeal, but expressed views on which reliance was placed in this appeal.[27] The Court (Nettle and Harper JJA and Hollingworth AJA) noted that, in the course of argument on the admissibility question, the trial judge had been referred to the judgment of this Court in R H B v The Queen.[28] In the Court's view, her Honour's reasons suggested that she had taken guidance from the following passage of the judgment in that case:
With great respect, I am not sure that P N J was correctly decided. But, accepting for present purposes that it should be followed, it was concerned with a question of coincidence evidence and thus, as it was held, whether there was sufficient similarities between the several incidents of offending as to make proof of one significantly probative of the proof of another. In this case we are concerned with tendency evidence, which is to say 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. The two are not the same, albeit that in some cases there may be a large degree of overlap.
As Hansen JA observed in K R I v R, the test for the admissibility of tendency evidence is one of fact and degree to be assessed in light of the facts and circumstances of the particular case. And in the facts and circumstances of this case, I am not persuaded there is room for doubt about it. As the judge held, it is a remarkable thing for a man to commit sexual acts against his female lineal descendants. It is still more remarkable when, in each case, the nature of the acts is similar if not identical, even if they are commonplace sexual acts. It is even more remarkable that in each case the acts were committed in the home while the victim was in the applicant's care, while other adults were close by and the risk of detection was significant. It follows that, if accepted, the evidence of the applicant's prior offending against his daughters would demonstrate that he had a tendency to be sexually attracted to his young female descendants and to act upon that attraction in similar ways at different times, when the victims were in his home under his care and thus vulnerable to his advances. As such, as the judge held, it would be capable of rationally affecting the assessment of the probability of the applicant having had a sexual interest in his granddaughter and giving effect to it by committing the offence alleged.[29]
49 On the interlocutory application in the present case, this Court said:
Evidently, her Honour was persuaded, by analogy with R H B, that there is sufficient 'peculiarity' in this case in that the alleged offending was committed against prepubescent female children of similar age, in relation to whom the applicant stood in loco parentis, in his own home, when other persons were close by with consequent risk of detection, and that the offending was in each case of a not dissimilar nature, constituted of touching the complainant's genitalia, albeit that in one case but not the other there was actual penetration.
With respect, we are not sure that we would have reached the same conclusion. As at present advised, we are inclined to think that her Honour may have pressed the analogy with R H B a little too far. Despite the similarities between the two cases, there are also some important differences.
To start with, in R H B, there was not just one previous occasion on which the perpetrator was alleged to have offended against another complainant, but three. And as was said then:
It does not follow from the fact that, because in this case there are three occasions of prior offending which are regarded as relevant to and probative of the charged act, in another case one previous act of offending would be regarded as relevant and probative of the act which is charged in that case.
Secondly, in R H B the relevance of the prior offending was not just that the perpetrator had in the past offended against his female lineal descendants but that he had done so in a particular way, albeit perhaps that it was not particularly striking. Here, there is not the same degree of particularity as there was R H B, if only because in this case there was penetration of one complainant but not of the other.
Thirdly, in R H B the perpetrator's modus operandi of approach to each complainant was virtually identical, whereas in this case one incident of the alleged offending arose out of what might otherwise have been seen as an innocent act of parental care and the other incident occurred in a different and more inexplicable context.
As Redlich JA warned in R R v The Queen, when it comes to the admissibility of propensity evidence, one must be careful to ensure that the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the offender committed previous acts or committed them in particular circumstances, he or she is likely to have committed the act or acts in issue. Otherwise, there is the danger of admitting evidence as tendency evidence simply because that evidence suggests that the accused is or was the sort of person who is more likely to commit the kind of offence with which he is charged.[30]
On the other hand, as it emerged in the course of oral argument this morning, there are two, perhaps three, further aspects of the evidence which also bear on the question of cross-admissibility and which tend to add some weight to the judge's decision. The first is that the Crown intends to call evidence from the complainants' mother that, when the applicant returned Mary to her custody the day after the alleged offending against Mary, the applicant volunteered that there had been some sort of incident between him and Mary, which Mary would likely speak to her about, during which he had removed Mary's pants, rubbed her back and possibly also her buttocks. Secondly, according to the complainant's mother, the applicant said that he had been drinking at the time of the incident with Mary, and did not remember much about the episode, other than that he was seeking to alleviate Mary's suffering from a skin disorder to which it was known that she was subject. Thirdly, there is some evidence that the applicant was affected by alcohol at the time of the alleged offending against Eleanor.
If all that evidence is accepted, and for present purposes its reliability may perhaps be assumed, it could be thought to amount to a partial admission of what is alleged against the applicant in relation to Mary and also to demonstrate an additional degree of commonality as between the circumstances of offending in each instance: inasmuch as it shows that the applicant, while affected by alcohol, took improper, opportunistic advantage of the need to treat one of his children for a skin disorder. [31]
51 The contention on the appeal was that the evidence was 'not sufficiently demonstrative of an underlying unity' and, accordingly, did not satisfy the threshold requirement for admissibility under s 97(1)(b) of the Evidence Act 2008 (Vic), namely, that the evidence be of 'significant probative value'. Alternatively, it was submitted, the probative value of the evidence did not substantially outweigh its prejudicial effect and hence it should not have been admitted.[32]
52 In my opinion, this submission must be rejected. For reasons which follow, I consider that the evidence was properly characterised as tendency evidence within the meaning of s 97(1); that it had significant probative value; and that its probative value substantially outweighed any prejudicial effect which it might have had on the appellant.
53 Successive decisions of this Court and of the New South Wales Court of Criminal Appeal (NSWCCA) have used words such as 'remarkable', 'unusual', 'improbable' and 'peculiar' when characterising the kinds of conduct which is properly the subject of tendency evidence.[33] As the Court made clear in R H B, it is the 'degree of peculiarity', or the extent to which the conduct can be said to be 'remarkable', which will guide the assessment of probative value.[34]
54 The starting point is, as Hodgson JA said in B P that it is unusual for a father (or stepfather) to interfere sexually with his daughter (or stepdaughter).[35] What made the conduct in the present case all the more unusual, or remarkable, was that (on the evidence which Eleanor and Mary had given, both in chief and under cross-examination):
55 In my opinion, the evidence of each complainant was capable of rationally affecting, to a significant degree, the assessment of the probability that Mr Reeves had behaved in a similar way in relation to the other complainant.[37] To adopt the language of Redlich JA in J L S v The Queen, the cogency of the evidence 'needs no elucidation'.[38]
56 The fact that, in each case, the alleged tendency to act in the manner alleged relied on only one other instance of the conduct does not, in my view, prevent its constituting tendency evidence. Drawing on what was said in the judgment in the interlocutory appeal in the present matter, 'the features of commonality or peculiarity which are relied upon are significant enough logically to imply' that if Mr Reeves committed the previous act (or the subsequent act, as the case may be), and did so in the particular circumstances alleged, it was more probable that he committed the act alleged by the other complainant.[39]
57 It is important to note that the 'features of ... peculiarity' were stronger by the end of the trial than they had been at the time of the interlocutory appeal. In particular, the appellant's own evidence confirmed - as this Court on the interlocutory appeal had anticipated might occur - that he admitted touching Mary while they were in bed together on the night identified by her, and had done so in the course of 'seeking to alleviate [her] suffering from a skin disorder to which it was known she was subject'.[40] Whether he had taken 'improper, opportunistic advantage' of the need to deal with the skin disorder was the very issue to which Eleanor's evidence of a similar incident was relevant.[41]
58 In those circumstances, the fact that only one prior (or subsequent) instance was relied on to establish the relevant tendency did not rob the evidence of probative value. In G B F v The Queen,[42] this Court reached a similar conclusion. Because of the 'remarkable and unusual behaviour' involved - touching the breast of a female coworker at the place of work - the Court was satisfied that evidence to be given by victim A of a single instance of that behaviour would be significantly probative of a similar allegation by victim B, and vice versa.[43] The Court said:
We are conscious that to say so is to recognise a tendency on the basis of only two incidents of its manifestation. But as logic dictates, and the common law similar fact cases confirm, an accused may have a tendency to engage in a particular kind of criminal behaviour which he or she has demonstrated on only very few occasions and yet which may still be significantly probative of the fact that he or she has so acted on a further occasion. It depends upon the nature of the tendency.[44]
59 In G B F, the Court referred to the decision of the NSWCCA in R v Ford,[45] which held that evidence was admissible to prove a tendency to act in a particular way, namely, to sexually assault young women who:
• had stayed over at the accused's house after attending a party;
• had consumed a significant amount of alcohol; and
in circumstances where there was a risk of the offending being discovered by others. This Court said:
In effect, [Ford] was a case in which the evidence revealed a modus operandi that was substantially probative of the offence alleged. ... [W]e see [the Court's] analysis as an affirmation of established principles as they applied to the facts at hand.[46]
In the present case, similarly, the evidence of each complainant revealed a modus operandi that was substantially probative of the offence alleged.
60 The lapse of time between the alleged incidents is, of course, a factor to be considered in assessing probative value.[47] In the present case, however, it is of little consequence, in my view, having regard to the 'peculiarity' of the alleged conduct.[48] As the Crown argued on the appeal, the alleged tendency was to offend against 'prepubescent girls in his care'. The age difference between Eleanor and Mary therefore provided an obvious explanation for the lapse of time between the alleged sexual assaults.
61 It was argued on the appeal that the probative value of the complainants' evidence was reduced because of the risk of collusion between them, and/or of concoction of their evidence. The judge declined to conduct a voir dire investigation into the possibility of collaboration or innocent influence. She said that she did not consider that there was sufficient basis to do so. In her words:
Overall I am not satisfied that there has been any collusion or contamination of the complainants' accounts of the kind which would diminish the probative value of the relevant evidence. Nor do I consider that there is any evidentiary basis for conducting a voir dire to explore this matter further.
62 In its reasons on the interlocutory appeal, the Court said:
In our view, there was some evidence which suggested the possibility of collaboration or innocent influence. The complainants are half sisters who lived together throughout the period of allegations, complaint and investigation, and Mary actually said in the course of her VARE interview that she had told Eleanor about what the applicant did to her. It also appears that Eleanor did not complain to her mother about the attack on her until months after the incident and that she did not complain to the police until after Mary told her of what Mary said was the attack on her.
...
With respect, we are inclined to think that it was not open to exclude the possibility of collaboration or innocent influence without further investigation.[49]
63 In my opinion, there was no 'real possibility' of collusion, concoction or contamination.[50] As noted earlier, both complainants were asked in crossexamination about their relationship and about whether they had discussed the allegations. Their answers were credible, in my view, and were substantially consistent with each other.
64 Eleanor was categorical that she had never told Mary about what she alleged Mr Reeves had done to her. Mary was equally firm on the point. It is significant, in this context, that after the recording of the cross-examination of Mary in the special hearing had been played to the jury, the judge expressed the view to counsel that Mary appeared to have been 'clearly shocked' when informed of Eleanor's allegations. Likewise, Irene gave evidence that, after the police station interview, Mary was 'confused' as to why Eleanor was being asked questions and her brother was not. I agree with the submission for the Crown that there was no evidentiary
foundation on which her Honour should have been satisfied, or this Court could now be satisfied, that the probative value of the evidence was reduced on this account.
65 I deal finally with the risk of unfair prejudice. It is of the very nature of tendency evidence, of course, that it is led in order to show the accused's propensity to act in a particular way in particular circumstances. For the jury to understand the evidence as having that effect is to reason correctly, not unfairly.
66 Impermissible propensity reasoning is to the effect that the accused is 'the kind of person' who would have committed the offence in question. Tendency evidence of this kind is quite different. It is evidence of quite specific (remarkable or unusual) conduct by the accused in particular circumstances which makes it more probable that he acted in the same way in similar circumstances on a different occasion.[51] As Hodgson JA said in B P v The Queen, the danger of the jury responding inappropriately to evidence of this kind, or giving it more weight than it truly deserves, is small, particularly if appropriate directions are given about the nature of the evidence and the purpose for which it is led.[52]
67 Maxwell ACJ, in his reasons which I have had the benefit of reading in draft, has concluded that this appeal against conviction should be dismissed. I cannot agree. In my opinion, grounds 1 (impermissible cross-examination) and 3 (admission of tendency evidence) must be upheld.
68 That said, I agree with his Honour, for the reasons that he gives, that ground 2 (inconsistent verdicts) is without substance.
69 Given that Maxwell ACJ has set out the circumstances and the evidence in moderate detail (for which I am grateful), I am relieved of their repetition save to the extent necessary to make my own conclusions capable of comprehension.
70 Although acknowledging that the impugned cross-examination of the appellant by the prosecutor was impermissible, and that such impermissible cross-examination may be productive of a miscarriage of justice,[53] Maxwell ACJ has concluded that there are three 'powerful reasons' for saying that there had been no miscarriage of justice in this case.[54] First, the questioning was brief. Secondly - 'and most importantly' - there was early intervention by the judge, which minimised the risk of the jury being diverted into consideration of irrelevant issues. Thirdly, his Honour considers important that the prosecutor made a 'prompt and unconditional disavowal' and apologised. Moreover, the judge gave to the jury a 'clear and unequivocal' direction, precisely of the kind contemplated in Palmer.[55]
71 At one level it might be said that the cross-examination was brief. Maxwell ACJ has set it out,[56] and it is plain that it is constituted by a handful of questions. But in my opinion there is no particular virtue in it being restricted to a few questions. It is the overall impact of the questioning that is important.
72 As appears from a review of what occurred, the prosecutor asked the appellant whether each of Irene, Eleanor and Mary were lying. Quite plainly the cross-examination was calculated to compel the appellant into offering an opinion that the three witnesses against him had been deliberately untruthful, and to create the impression that his evidence must be suspect (he, by implication, asserting himself to be the only truthful witness in the array). Such a course is unfair.
73 By the time the judge intervened the damage had been done. A fact-finder's assessment of credibility is very often a matter of impression. Once an impression is formed, trying to later disentangle the legitimate sources of such impression from the illegitimate is difficult enough for someone familiar with the cut and thrust of the forensic arena, let alone a jury of lay persons. I find it impossible to say that the cross-examination might not have created an indelible and unfavourable impression in the jury's collective mind as to the appellant's credibility.
74 It is absolutely remarkable that the prosecutor in the first place conducted the cross-examination that he did. It is equally remarkable that none involved in the trial apparently realised (until the weekend had passed) that the prosecutor's cross-examination was illegitimate immediately upon questions of the forbidden kind being asked, since the forbidden nature of the cross-examination - asking a witness whether another is lying - is neither new nor novel.
In our view a witness ought not to be asked whether another witness is telling lies or has invented something. ... But if he says that what the other witness has said is not true, he should not be asked to enter into that witness' mind and say whether he thinks the inaccuracy is due to invention, malice, mistake or any other cause. To do so is to ask him for opinion evidence and in our view the normal objections to that type of evidence apply. It is for the jury to decide which witness is telling the truth and how far what they think to be an inaccuracy on the part of any witness is deliberate or otherwise and what effect such inaccuracy has on the rest of the witness's testimony. No attempt should be made by the cross-examiner to drive any witness, least of all the accused, into saying that any other witness, least of all a detective, is a liar.
The resort by counsel to questions which invite a witness to answer by reference to comment on the truthfulness of other witnesses is to be deprecated. On a level of professional practice, it is regarded as 'not a proper question'. The error, however, goes beyond one of professional practice; such questions are actually inadmissible. The literal object of such a question is to obtain an opinion whether someone else is a liar, and that of course is not an issue in the case or a matter for any other witness to express an opinion, it is a matter for the judge or jury. It is also unfair, because it forces the honest witness into a recrimination and seeks to rely upon the natural reluctance of a person to defame another. It is also a form of bullying, using unfair means to persuade a person to retract his or her evidence. Such questions are inadmissible and we agree with Professor Harrison's view that they are improper. Regrettably the practice of asking such questions is by no means uncommon. It should cease.
77 Rich[61] was a case involving sexual offending on a 13 year old boy. During the cross-examination of the accused by the prosecutor, the pattern of the questioning was to take the accused to some areas where his evidence was in conflict with that of Crown witnesses, and ask him whether those witnesses were lying. The prosecutor then relied on the cross-examination in his final address. Hidden J (with whom Grove and Hulme JJ agreed) drew an analogy - correctly, in my view - between cross-examination where the accused is asked whether another is lying, and that where an accused is asked whether he can attribute a motive to the complainant to fabricate evidence. He said:[62]
The Crown prosecutor in this Court (who did not appear at the trial) acknowledged that such a line of cross-examination, whereby one witness is invited to express an opinion about the truthfulness of another, ought not to have been pursued: Leak [1969] SASR 172 at 173-4, Praturlon (CCA, unreported, 29 November 1985) per Street CJ at p6-p10_. Particularly is this so where the witness is the accused in a criminal trial, who is being pressed in cross-examination about aspects of the case brought against him_. The situation is analogous to cross-examination of an accused in a case of alleged sexual misconduct about whether he can attribute any motive to the complainant to fabricate the evidence against him: a practice condemned in a number of decisions of this Court and, more recently, by the High Court in Palmer [1998] HCA 2; (1998) 193 CLR 1; 96 A Crim R 213.
And later, in arriving at the view that the cross-examination and the final address 'had a tendency to deflect the jury from a proper assessment of the credibility of the Crown witnesses and of the appellant, in accordance with the burden and standard of proof borne by the Crown', his Honour observed (in a passage which is pointedly apposite to the consideration of the present appeal):[63]
Very relevant to the jury's consideration was its assessment of the appellant's credibility. That assessment involved not only what was said in answer to each question, but how the appellant said it, together with the total impact of the cross-examination. One of the objects of cross-examination is to 'rattle' a witness so as to have a jury disbelieve him or her no matter what the answers are. The transcript suggests that the cross-examination of the appellant was vigorous. There were clear benefits to the cross-examiner in the impermissible questions that were asked, quite apart from the terms of the answers. This Court is quite unable, from the printed page, to distil the consequences of those impermissible questions.
78 I need not repeat what has been said by this Court in Buckley,[64] Bajic,[65] Davis,[66] S W C,[67] H R A,[68] or S A B,[69] which involved cross-examination not dissimilar from that impugned in this case. Those cases all recognise that the kind of cross-examination indulged in by the prosecutor in the present case is improper. It is lamentable that the guidance of this Court in S W C had apparently had no impact on the prosecutor. Maxwell ACJ, Kellam JA and Kaye AJA said in that case:[70]
There is now a substantial body of authority which, as a general rule, makes it impermissible for a prosecutor to ask an accused, in cross-examination, whether a complainant, or other Crown witness, has lied. It is of the utmost importance that Crown prosecutors be alert to the need to adhere to that rule. Certainly, as a matter of prudence, if a Crown prosecutor considers that it may be necessary to seek to depart from that rule in exceptional circumstances, that matter should first be raised with the trial Judge in the absence of the jury. While such a course may not be practical given the need to raise the issue in the presence of the accused, nonetheless such a course would obviate the unfortunate consequences which might otherwise ensue, should a prosecutor embark on the line of cross-examination which, in general, is prohibited by the authorities to which we have referred.
79 For much the same reasons, it is also absolutely remarkable that defence counsel did not object in a timely fashion after the cross-examination concerning Irene, and that the trial judge took so long to intervene. One may well excuse the failure to object to such cross-examination when a taboo question is asked without warning. But in this case there was proscribed cross-examination about Irene which did not attract an objection, followed by two further instances of prohibited questioning with respect to Eleanor and Mary.
80 I am firmly of the view that, in order to avoid a perceptible risk of a miscarriage of justice, the trial judge should have intervened much earlier than she did. Indeed, it might have been expected that she would have taken the prosecutor to task shortly following his prohibited cross-examination concerning Irene. That did not happen. Consequently, further forbidden cross-examination was tolerated concerning Eleanor and Mary. Moreover, the cross-examination having occurred on a Friday, the jury were permitted to go home without direction and with the questioning fresh in their mind. It was only on the following Monday morning that the judge raised the matter with counsel, provoking both the apology from the prosecutor and the belated application from defence counsel to discharge the jury.
81 The directions given by the trial judge to which Maxwell ACJ has drawn attention[71] were, with respect, no antidote for the poison flowing from the cross-examination. They were not, in my opinion, so 'clear and unequivocal' as to remove the substantial prejudice introduced into the trial by the prosecutor's improper cross-examination. Indeed, they may be contrasted with those of the trial judge in Palmer, which were far more potent than those given in this case, but which nevertheless were held to be incapable of saving the conviction. Some of the directions given by the trial judge in Palmer are set out in the joint reasons of Brennan CJ, Gaudron and Gummow JJ.[72] But an examination of the reasons of Brooking JA (with whom Hayne JA and Southwell AJA agreed) in the Court of Appeal demonstrates that the directions given by the trial judge were far more extensive than as digested in the joint reasons in the High Court, and far more pointed than those given by the trial judge in the present case, yet the convictions that had been upheld by the Court of Appeal were set aside by the High Court. Hence, quite apart from what the trial judge had said in the passages extracted in the joint reasons, further passages extracted in the judgment of Brooking JA demonstrate that the judge directed the jury that:[73]
And, having drawn the attention of the jury to a notorious case of a false allegation of sexual assault, the trial judge further directed:
Now people do tell lies of that sort. I am not saying anything, let me reiterate, about this particular complainant, [named], but I simply draw your attention to the fact that it is known that people tell lies, and tell lies without any dishonourable motive. It may, of course, come from their psychological state; some sort of neurosis. Sometimes, teenagers tell lies about their parents and to their parents, perhaps based on a feeling of antipathy because of perceived neglect or disregard, or for all sorts of reasons. And it is incumbent on you to bear that simple truth in mind in assessing the evidence.
82 In the present case, the judge told the jury that the prosecutor had drawn her attention to the fact that he had asked some questions that 'were not permitted at law', reminded the jury of the forbidden questions and answers, and told the jury that the law is that 'an accused who gives evidence ought not to be asked in cross-examination whether another witness has lied'. The judge then called attention to the onus of proof (and that it does not shift) and instructed the jury that they had to assess credibility, reliability and truthfulness. She also said that whether a prosecution witness is lying is a matter for the jury to determine 'and the opinion expressed by an accused man is irrelevant and it ought not to have been asked of him'. The judge told the jury that they 'must therefore disregard those questions and answers' when deliberating and considering their verdicts.
83 With respect, these directions were not a 'firm and clear direction from the trial judge' as contemplated by Brennan CJ, Gaudron and Gummow JJ in Palmer which 'may prevent the impropriety of asking the question from causing justice to miscarry'.[74] They were not as strong as the directions in Bajic,[75] which could not preserve the convictions in that case.[76] In my opinion, quite apart from reminding the jury of the burden and standard of proof, and the presumption of innocence, the judge was required to instruct the jury why it was such questions were not permitted and were irrelevant. Any proper direction should have directed the jury to guard against the kind of speculation that such questions invite, such speculation having the danger that if the jury could not readily identify why a person was lying they might be prepared to accept the evidence. Further, the jury should have been told that even if they rejected the notion that the witnesses had lied, that did not mean that the jury necessarily had to accept their evidence. Moreover, the jury should have had brought home to them the unfairness of the impugned cross-examination, such unfairness being that an accused person or his counsel cannot be expected to read the mind of a witness, and the accused be held accountable for failure to discern a motive for falsity. As occurred in Palmer at trial, the jury should have been told that sometimes people lie without there being any discernible motive (or at least, one discernible to the accused). Finally, the judge should have warned the jury to be careful of acting on any adverse impressions of the appellant's credibility that may have been aroused by the improper cross-examination.
84 Counsel for the respondent on the appeal conceded that if the trial judge's directions were not capable of curing the error, then there will have been a substantial miscarriage of justice. That was a realistic position to adopt. But as I have endeavoured to demonstrate, the directions given were no panacea.
85 It cannot be contended that absent the identified errors conviction would have been inevitable.[77] For the foregoing reasons there has been, in my opinion, a substantial miscarriage of justice.
86 I am also of the opinion, as I have said, that ground 3 is made out.
87 Maxwell ACJ has concluded that the impugned evidence was properly characterised as tendency evidence within the meaning of the Evidence Act 2008 ('the Act'); that it had significant probative value; and that its probative value substantially outweighed any prejudicial effect it might have had on the appellant.[78] His Honour has reached the view that the evidence of each complainant was capable of rationally affecting, to a significant degree, the assessment of the probability that the appellant had behaved in a similar way in relation to the other complainant;[79] and has identified a number of aspects of the appellant's alleged conduct which make the conduct 'all the more unusual, or remarkable',[80] had 'peculiarity',[81] and which 'revealed a modus operandi that was substantially probative'.[82] Moreover, his Honour has expressed the opinion that there was no real possibility of collusion, concoction or contamination, noting that both complainants were asked in cross-examination about their relationship and whether they discussed their allegations, and concluding that their answers were credible and consistent with each other.[83]
88 I should say at the outset that, in my opinion, were the evidence of each complainant properly mutually admissible as tendency evidence, then the directions given by the judge to the jury - including that before they could rely on it they 'would need to be satisfied beyond reasonable doubt that the evidence of each complainant was true and that it was not the result of any concoction or unconscious influence or innocent infection' - were adequate. That conclusion, however, says nothing about whether it was proper to admit the evidence in the first place as tendency evidence.
89 Maxwell ACJ has set out in his reasons the terms of the notice under s 97(1) of the Act.[84] The asserted tendency was to have a particular state of mind - 'a sexual interest in prepubescent girls', and 'a preparedness to act on this sexual interest with his daughter and stepdaughter while they were in his care' - and to act in a particular way - 'a willingness to act on this sexual interest when alone with his daughter and step daughter by touching their genitals and sexually penetrating them in the manner alleged'.
90 It will be noticed immediately that it was no part of the prosecution case that the appellant sexually penetrated Mary. Moreover, the offending against each complainant took place in different contexts. The activities leading to convictions with respect to his stepdaughter, Eleanor, were said to have occurred in December 2007 or January 2008 when Eleanor was aged 11 years. Having applied cream for a rash that she had, the appellant touched her vagina with his fingers (charge 1) and put his fingers inside her vagina (charge 2). The events involving the appellant's natural daughter, Mary, took place over three years later. Mary was aged nine years when the offending which is the foundation of charges 5 and 6 occurred in March 2011. The appellant touched her on the vagina and bottom while she was in his bed.
91 Section 97 of the Act, which deals with the admissibility of tendency evidence, creates an exclusionary rule. In my opinion, it adopts an approach similar to the former common law, by requiring admissibility of tendency evidence in criminal proceedings to depend on 'significant probative value'. Tendency evidence will be excluded unless the evidence reaches a high threshold of admissibility. The need for a high threshold is emphasised by s 101(2) of the Act, which provides that in criminal cases, tendency evidence adduced by the prosecution cannot be used against him or her 'unless the probative value substantially outweighs any prejudicial effect it may have'. Hence s 101(2) also is broadly similar to the common law in that it contains a further exclusionary rule in circumstances where the probative value of the evidence does not substantially outweigh any prejudicial effect it may have. In my view, in combination the provisions of s 97(1) and s 101(2) make it plain that tendency evidence must possess a high degree of cogency before being admitted.[85]
92 The most important factor in determining whether a piece or pieces of tendency evidence has 'significant probative value' will depend on the nature of the tendency sought to be proved. Hence, evidence of a sexual interest in one complainant might, depending on the circumstances, have significant probative value with respect to allegations of sexual offending against that complainant, but not against others. On the other hand, evidence of a tendency to commit a particular kind of act, or to commit a kind of act in particular circumstances, might, depending on all of the circumstances, have significant probative value.[86]
93 In every case, whether tendency evidence has significant probative value will be a matter of fact and degree, and will be influenced by the nature of the fact in issue sought to be proved (or disproved).[87] Among a non-exhaustive list of factors which may bear upon whether evidence has significant probative value in proof of an alleged tendency are the number of occasions that the conduct displaying the alleged tendency have occurred; any temporal connection between the relevant conduct; the degree of similarity between the conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi); and whether the circumstances of occurrence of the various items of conduct are similar.[88]
94 In my view, the tendency evidence in this case did not possess a high degree of cogency. To adopt the language of the Court in P N J[89] (although uttered in the context of an examination of coincidence evidence), '[t]he allegation that such acts were committed is, sadly, unremarkable'; and 'is a commonplace in sexual offending of this kind, and cannot be said to distinguish the applicant's offending from that of any other such offender'.[90] It must be acknowledged that both complainants were young girls and family members, but, when considering offending of this generic kind, there is nothing particularly unusual about those factors. Nor, it must be said, is there anything particularly unusual about the offending occurring when the complainants were under the appellant's care, or when others were in the premises where the events occurred.[91] Importantly, from my perspective, the nature of the activities was markedly different. True it is that the activities with each complainant involved touching on the vagina, and removal of clothing to permit direct touching, but unhappily those are aspects which are not uncommon in this kind of case. There were also, in my opinion, significant differences. The offending against Eleanor had the distinctive features of the application of a cream and the actual penetration of her vagina. By comparison, the offending against Mary occurred once she and the appellant had retired to bed, and did not involve the application of any cream or the penetration of her vagina. (The acts involving Mary had the added feature of her bottom being touched, but I do not regard this as being of any great moment.)
95 Had the trial judge formed the view that the evidence of each complainant was not admissible in proof of the offences concerning the other complainant, I think it likely that she would have ordered severance of the indictment.[92] That would have been the proper course to adopt.
96 Ground 3 is established. The evidence of each complainant was not admissible as tendency evidence with respect to the other. Severance should have been, but was not, ordered as between the two sets of charges relating to the two complainants. There has thus been a substantial miscarriage of justice.
97 There are two further observations that I should make. First, in the interlocutory appeal in this case, the Court observed that, in the course of oral argument on that appeal, several further aspects of the evidence emerged 'which also bear on the question of cross-admissibility and which tend to add some weight to the judge's decision'.[93] Those aspects were, first, that the prosecution intended to call evidence from Eleanor's mother that, when the appellant returned Eleanor to her custody the day after the alleged offending, the appellant volunteered that there had been some sort of incident between him and Eleanor, which she would likely speak to her mother about, during which he had removed Eleanor's pants, rubbed her back and possibly also her buttocks. A second aspect was that, according to the complainant's mother, the appellant told her that he had been drinking at the time of the incident with Eleanor, and did not remember much about the episode, other than that he was seeking to alleviate her suffering from a skin disorder to which it was known that she was subject. There was also a third aspect, that there was some evidence that the appellant was affected by alcohol at the time of the alleged offending against Mary.[94]
98 I respectfully disagree with the notion that these further aspects might legitimately have informed an assessment of whether the evidence of each complainant could be admitted as tendency evidence with respect to the other. The assessment required by ss 97(1) and 101(2) must revolve around the evidence of the alleged tendency itself. Although the first and second aspects might have operated as partial admissions, they had nothing to say as to the relevant tendency as described in the prosecution's notice. Moreover, unless it was sought to demonstrate from the third aspect that the appellant committed the offences against both complainants when affected by alcohol - a very long bow to draw - it too had nothing to say about the relevant tendency.
99 The second observation I wish to make is that, in my opinion, the trial judge should have explored the question of concoction, collusion and contamination on the voir dire;[95] but that, in the circumstances of this case, no miscarriage of justice flowed from the failure to do so.
100 For these reasons, there has been a substantial miscarriage of justice. I would allow the appeal, quash the convictions and sentences and order a retrial.
101 I agree that the appeal against conviction should be dismissed for the reasons expressed by Maxwell ACJ.
[1] Pseudonyms have been used for the two victims and for their mother.
[2] The real names have been replaced by the pseudonyms.
[4] R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 218 [9] ('Buckley'). See also R v Bajic [2005] VSCA 158; (2005) 12 VR 155, 169-171 [73]-[82] ('Bajic').
[6] This was a reference to what was said by Ashley JA in Martin v The Queen (2010) 202 A Crim R 97, 108 [45]: '[A] suitable direction may in some circumstances provide a sufficient antidote for impermissible cross-examination'.
[7] [1998] HCA 2; (1998) 193 CLR 1 ('Palmer').
[8] See R v E (1996) 39 NSWLR 450, 464.
[9] Palmer [1998] HCA 2; (1998) 193 CLR 1, 8-9 [8].
[10] Bajic [2005] VSCA 158; (2005) 12 VR 155, 171 [84].
[13] [2008] VSCA 56; (2008) 183 A Crim R 91 ('H R A').
[19] Gilbert v The Queen (2000) 201 CLR 414, 420 [13], 425-6 [31]-[32], 431 [51]-[52].
[20] Contrast R v Hewitt [1998] 4 VR 862, 869.
[21] Buckley [2004] VSCA 185; (2004) 10 VR 215, 221 [20].
[23] See MacKenzie v The Queen (1996) 190 CLR 348, 368.
[24] M F A v The Queen [2002] HCA 53; (2002) 213 CLR 606, 632 [89].
[25] Ibid 618 [36], 631-2 [87]-[88].
[27] C E G v The Queen [2012] VSCA 55 ('C E G').
[28] [2011] VSCA 295 ('R H B'); C E G [2012] VSCA 55, [8].
[29] R H B [2011] VSCA 295, [17]-[18] (citations omitted, emphasis added); C E G [2012] VSCA 55, [8].
[30] C E G [2012] VSCA 55, [9]-[14] (citations omitted).
[32] Evidence Act 2008 (Vic) s 101(2).
[33] G B F [2010] VSCA 135, [27]; B P v The Queen [2010] NSWCCA 303, [112] ('B P'); R H B [2011] VSCA 295, [7], [17].
[35] B P [2010] NSWCCA 303, [112].
[36] K R I v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552, 563 [57] ('K R I').
[37] Cf R v Smith [2008] NSWCCA 247; (2008) 190 A Crim R 8, 13 [19].
[38] (2010) 28 VR 328, 337 [28].
[39] C E G [2012] VSCA 55, [14], referring to R R v The Queen [2011] VSCA 442, [37]-[38].
[40] C E G [2012] VSCA 55, [15].
[42] [2010] VSCA 135 ('G B F').
[45] Ibid [28]-[29], citing R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 ('Ford').
[46] G B F [2010] VSCA 135, [29].
[47] R v Watkins [2005] NSWCCA 164; (2005) 153 A Crim R 434, 441-2 [35]-[37].
[48] R H B [2011] VSCA 295, [23]-[24].
[49] C E G [2012] VSCA 55, [25]-[27] (citation omitted).
[50] K R I [2011] VSCA 127; (2011) 207 A Crim R 552, 559 [33]; R H B [2011] VSCA 295, [26].
[51] R v Cittadini [2008] NSWCCA 256; (2008) 189 A Crim R 492, 495 [22]-[23]; R v P W D [2010] NSWCCA 209; (2010) 205 A Crim R 75, 86-7 [59]-[63].
[52] B P [2010] NSWCCA 303, [112].
[55] Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 ('Palmer').
[57] R v Leak [1969] SASR 172.
[58] Ibid 173-4 (emphasis added). See also Middleton v The Queen [2000] WASCA 200; (2000) 114 A Crim R 141, 144 [9]-[10].
[59] R v Foley [2000] 1 Qd R 290.
[60] Ibid 297 (citations omitted; emphasis added).
[61] R v Rich (1998) 102 A Crim R 165.
[64] R v Buckley [2004] VSCA 185; (2004) 10 VR 215, 218 [9].
[65] R v Bajic [2005] VSCA 158; (2005) 12 VR 155, 169-71 [73]-[82] ('Bajic').
[66] R v Davis [2007] VSCA 276, [20].
[67] R v S W C [2007] VSCA 201; (2007) 175 A Crim R 71, 76-7 [25]-[28].
[68] H R A [2008] VSCA 56; (2008) 183 A Crim R 91, 103 [37].
[69] R v S A B [2008] VSCA 150; (2008) 20 VR 55, 62-3 [62]-[63].
[70] R v S W C [2007] VSCA 201; (2007) 175 A Crim R 71, 78 [34].
[73] R v Palmer (Unreported, Supreme Court of Victoria, Court of Appeal, 10 September 1996).
[77] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Andelman v The Queen [2013] VSCA 25.
[85] Murdoch v The Queen [2013] VSCA 272, [80].
[86] G B F [2010] VSCA 135, [26].
[87] Semaan v The Queen [2013] VSCA 134, [38]; Murdoch v The Queen [2013] VSCA 272, [80].
[89] P N J v DPP [2010] VSCA 88; (2010) 27 VR 146.
[91] See C E G v The Queen [2012] VSCA 55, [9]-[13].
[92] Criminal Procedure Act 2009 (Vic) ss 193, 194. See G B F [2010] VSCA 135; C G L v DPP [2010] VSCA 26; (2010) 24 VR 486; M R O v The Queen [2010] VSCA 240; (2010) 29 VR 527.
[93] C E G v The Queen [2012] VSCA 55, [15].
[95] C E G v The Queen [2012] VSCA 55, [26]-[28].
Reeves
The Queen [2013] VSCA 311
(1998) 193 CLR 1
(2005) 12 VR 155
(2000) 201 CLR 414
(1996) 190 CLR 348
(2010) 28 VR 328
(2008) 20 VR 55
(2012) 246 CLR 469
(2004) 10 VR 215
(1996) 39 NSWLR 450
(2002) 213 CLR 606
(2010) 24 VR 486
(2010) 27 VR 146
(2010) 29 VR 527