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[2017] VSCA 291
Court of Appeal (Vic)
2017-10-13
Santamaria JA, Kaye JA
Original judgment source is linked above.
CRIMINAL LAW - Appeal - Interlocutory rulings - Pleas of not guilty - Using a carriage service to procure a person under 16 years of age for sexual activity - Using a carriage service to groom a person under 16 years of age for sexual activity - Using a carriage service to transmit indecent communications to a person under 16 years of age - Refusal to certify - Admissibility of tendency evidence - Whether mobile phone seized under common law power of seizure - Leave to appeal refused on all grounds - Criminal Procedure Act 2009 s 295 - Evidence Act 2008 ss 97 and 101 - ; - ;
1 The applicant is currently facing trial in the County Court at Melbourne. He is charged as follows:
(a) Using a carriage service to procure a person under 16 years of age for sexual activity (s 474.26 Criminal Code Act 1995 (Cth) ('the Code'): 4 counts.
(b) Using a carriage service to groom a person under 16 years of age for sexual activity (s 474.27(1) of the Code): 4 counts.
(c) Using a carriage service to transmit indecent communications to a person under 16 years of age (s 474.27A of the Code): 4 counts.
2 There are four complainants. The applicant is charged with committing each of the three types of offences against all four early teenage girls. Thus there are a total of twelve charges.
4 On 26 July 2017, the trial judge delivered a ruling in which he rejected the defence application to exclude all evidence obtained from the applicant's mobile phone seized on 21 October 2015, the day of the applicant's arrest ('the seizure ruling').
5 On 28 July 2017, the trial judge delivered a ruling which permitted tendency evidence to be led in the prosecution case. The effect of this ruling was that allegations made in the case involving a particular complainant became cross-admissible in the cases involving the other complainants ('the tendency ruling').
6 The applicant requested the trial judge certify under s 295(3) of the Criminal Procedure Act 2009 (Vic) ('the Act') that one or other of the preconditions for certification within that subsection had been met in respect of one or other or both of the seizure ruling and the tendency ruling. His Honour declined to certify ('the refusal decision').
7 The applicant has applied to this Court under s 296 of the Act for a review of the refusal decision. He has also given notice under s 295 of the Act that he wishes to appeal against the two rulings.
8 The applicant, who is self-represented, endeavoured to develop a submission to the effect that he had been denied a procedurally fair opportunity to present to the trial judge his argument for certificates under s 295 of the Act. This argument is misconceived. Section 296(1) enables an unsuccessful applicant (for a certificate) to apply to the Court of Appeal for a review of the decision. Section 296(4) provides that that review will involve the Court of Appeal considering afresh 'the matters referred to in section 295(3)'. If the Court of Appeal is satisfied that it is in the interests of justice to give leave to appeal[2] then it will do so. As part of the Court of Appeal's review of the refusal to certify involves a reconsideration of the s 295(3) factors,[3] then any procedural unfairness type arguments at the trial level serve no practical purpose. The Court of Appeal will reconsider the s 295(3) factors at any event. In oral argument the applicant did not press these submissions. We should add that a review of the transcript demonstrates, in our view, that the applicant had a very fair opportunity to present submissions on this certification issue.
Use carriage service to procure child > As this material is so voluminous I shall only briefly summarise this evidence. [SW] was born on 6 June 2000 so she was between 13 and 15 years of age when engaged in communication with the accused. The first contact made with the accused was through Facebook Messenger. They eventually exchanged mobile telephone numbers. This enabled the accused to send [SW] SMSs messages and to call her phone.
The accused did meet [SW]. She identified the accused on a police photo board. [SW] confided in the accused that she had been sexually assaulted but she did not want this communicated to others. There were sexual references in the communications made by the accused to [SW]. He sought to control [SW] by threatening to disclose details of the sexual assault.
[PC] was born on 22 December 2001 so she was 13 years of age when contacted by the accused. The first contact was through Facebook Messenger. They later exchanged mobile phone numbers and there were then communications via SMS messages and voice calls. The accused asked whether [PC] had been sexually assaulted and she appears to have agreed with this. She wanted to know who had disclosed this to the accused.
The accused held himself out as being a law student. He told [PC] she needed to report the assault to police. [PC] told her aunt and mother about the accused's communications and it was reported to [PC's] father. There were sexual references in the communications between the accused and [PC]. The accused tried to persuade [PC] to meet him.
[TB] was born on 15 April 2002 so she was 13 years of age when contacted by the accused. The first communication was through Facebook Messenger. Mobile phone numbers were subsequently exchanged and they spoke to one another. There were sexual references in their communications.
After the accused implied that he knew about [TB's] sexual history [TB] told the accused that she engaged in a sexual act in the past. The accused made threats to report the matter to police and he asked [TB] to suck his dick and give him a blow job in exchange for not telling the police. The accused tried to pressure [TB] to have sex with him.
[RH] was born on 16 October 2002 so she was 13 years of age when contacted by the accused. The first contact was through an Alex Mills' Facebook Messenger account. It is alleged that this was communication by the accused.
The accused claimed to know that [RH] had been sexually assaulted. He was able to extract [RH's] mobile phone number from her after he promised to arrange for the disclosure of his informant in respect of [RH's] sexual assault.
There was sexual references in the communications between the accused and [RH]. The accused told [RH] that if she had sex with him he would not spread information about her.
16 His Honour set out the relevant portions of s 97(1) and s 101(2) of the Evidence Act 2008 and then referred to and cited passages from the majority judgment in the recent decision of the High Court in Hughes v R.[9] He then ruled as follows:
It is necessary to consider the proposed tendency evidence in respect of what are essentially three types of facts in issue: (1) Whether the offence has occurred at all; (2) whether the accused is the person who committed the offences; and (3) whether the accused had the intention to procure of groom the complainants for sexual activity when communicating with them. Although it is accepted (save and accept for any communication involving Jack or Alex) by the defence that the accused did use a carry service as alleged the critical issue in dispute is whether the offences occurred. That is the defence deny that any contact with any complainant constituted procuring, grooming, or was an indecent communication. There is also the related fact in issue of the intention of the accused. Finally, there is an issue of identification.
There is, in my opinion, a remarkable similarity in the conduct of the accused in respect of each complainant. In my opinion there is a clear modus operandi or pattern of conduct in what seems to me to have been a series of very unusual interactions between the accused and each complainant.
The accused was over the age of 18 years at the relevant time. Each complainant was a teenage girl. [SW] was 13 to 15 years of age, and [PC], [TB], and [RH] were 13 years of age. There was no previous relationship between the accused and any complainant. The first communication in respect of each complainant was via Facebook Messenger. The mode of communication changes with the introduction of mobile phone voice calls and in the case of three of the complainants, SMS messages.
In respect of each complainant there is communication concerning past sexual activity. In respect of three of the complainants the accused threatens to disclose this sexual activity. The accused is attempting to manipulate each complainant and is intending to exert power over that complainant. The accused does attempt to persuade each complainant to meet him. This is generally in a sexual context. Only one complainant does meet the accused.
The tendency sought to be proved is expressed with a considerable degree of specificity or particularity. This is an important consideration. In my opinion the evidence, either by itself or having regard to other evidence to be adduced, does provide strong support for the alleged tendency relied upon by the prosecution. It is also necessary to consider the probative value of the evidence in respect of the extent to which the tendency makes more likely the elements of the offence charged. I have considered this in respect of the facts in issue in respect of each charge.
The defence have analysed the weaknesses in the evidence in respect of each complainant and the dissimilarities in evidence. I've taken all of these matters into account. The defence have emphasised the absence of some of the features of the offending involving [TB] and [RH] in the case of [PC] and the inherent improbability of the evidence of [PC] establishing any procuring or grooming given the distance separating the accused and that complainant at various times.
I have had regard to all of the submissions. I accept all of the submissions of the prosecution. Given that there are similar charges of procuring, grooming and indecent communication in respect of each complainant I do not intend to expressly deal with each charge. I have considered each charge.
I find that in respect of all of the charges the proposed tendency evidence does have significant probative value. The most important matters in this case are the very unusual pattern of behaviour engaged in by the accused and the great similarity or close commonalities in the evidence in respect of each of the four complainants.
The evidence will be the subject of detailed directions to the jury. Having regard to the issues in dispute I find that the probative value of this tendency evidence is very high and it does substantially outweigh any prejudicial effect it may have on the accused. Accordingly I rule the tendency evidence to be admissible.
17 The review of the refusal to grant a certificate involves this Court considering the matters referred to in s 295(3). In the 'tendency' appeal, this requires that we consider whether the interlocutory decision is of sufficient importance to justify it being determined on an interlocutory appeal.[10] This is because the impugned tendency evidence is sought to be used cross-admissibly over a multi-count, multi-complainant indictment.[11] We shall defer determining this review until towards the end of these reasons. This is because part of that determination involves an evaluation of the merits of the admissibility argument.
18 An interlocutory appeal from a decision on admissibility under ss 97 and 101 of the Evidence Act 2008 is governed by the principles of House v R.[12] This Court must make an 'assessment as to whether the judge approached the question by reference to correct principles and whether it was open to him to draw the evaluative conclusion that was drawn'.[13]
19 We can find no error of legal principle in his Honour's approach to determining the tendency issue. His Honour correctly analysed the relevant content of s 97(1) and s 101(2) of the Evidence Act 2008 and cited and relied upon the relevant parts of the most recent High Court authority on the operation of these 'tendency' provisions. Assuming this to be the case, for this appeal to succeed the applicant must demonstrate that it was not open to his Honour to draw the evaluative conclusions (a) that the impugned evidence, in respect of all the charges, had significant probative value within the meaning of s 97; and (b) that the probative value of the impugned evidence is very high and substantially outweighs any prejudicial effect it may have on the applicant.
20 In Bauer v R (No 2),[14] this Court extracted the following principles from the reasons of the majority in Hughes:
(a) first, the probative value of tendency evidence will vary depending on the issues that it is adduced to prove;
(b) secondly, the probative value of tendency evidence and its capacity to affect the rational assessment of whether the prosecution case is proved, will depend upon a consideration of the circumstances of the case;
(c) thirdly, the admissibility of tendency evidence does not depend on the assessment of any operative features of similarity with the conduct in issue;
(d) fourthly, although there are dangers in focusing on labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi', nevertheless conduct of the kind embraced by those labels may have significant probative value;
(e) fifthly, however, significant probative value may be expressed in other ways;
(f) sixthly, tendency evidence is likely to possess a high degree of probative value where the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and the tendency strongly supports proof of a fact that makes up the offence charged; and
(g) seventhly, in the circumstances of the case, it was the appellant's attraction to underage girls and his willingness brazenly to act upon it with a disinhibited disregard of the evident risks of discovery when committing the offence in question, that imbued the evidence with significant probative value.[15]
21 We have concluded that the impugned tendency evidence has significant probative value in demonstrating each of:
(a) whether the SW offences occurred at all. There is no direct evidence of electronic communication. The tendency evidence of his communications with PC, TB and RH matches the oral VARE evidence of SW and supports the reliability of her account;
(b) whether the applicant is the person who committed the offences; and
(c) whether in the case of PC, the applicant possessed the necessary intention to procure or groom her for sexual activity when he communicated with her. He did not articulate specific sexual intent. Insofar as the other three complainants are concerned, he made those intentions clear with express sexual propositions. The tendency evidence bears strongly on his intentions with PC.
22 In our view, his Honour was undoubtedly correct to observe a remarkable similarity in the alleged conduct of the applicant in respect of each complainant. Each complainant was in her early teens, none had had any previous dealings with the applicant and the initial communication was always through Facebook Messenger and then through (in the case of three complainants) SMS messages. In each case there is discussion about past sexual activity and, insofar as three of the complainants are concerned, threats to expose that sexual activity. The applicant endeavoured to persuade each complainant to meet him. We consider that the combined force of this evidence set out above acts powerfully to support the prosecution case on the happening of the offences themselves, the identity of the offender and his intentions. The evidence has significant probative value.
23 For the purposes of s 101(2) of the Act, we assess the probative value of the impugned tendency evidence as very high; essentially for the reasons set out in paragraph [21] above. His Honour concluded that the probative value substantially outweighed any prejudicial effect that it may have had on the applicant (after proper direction) and we agree with this finding. The applicant has failed to demonstrate that it was not open to his Honour to reach this conclusion.
Submissions to the trial judge and the seizure ruling
25 The applicant submitted to the trial judge that all evidence derived from the applicant's mobile telephone be excluded from evidence in the trial on the basis that the police had no power to seize his phone and therefore no power to investigate its contents. The prosecution contended that the telephone was lawfully seized pursuant to the common law power to seize as an incident of the applicant's arrest. Although no mention of s 138 of the Evidence Act 2008 arose during the applicant's submissions to the trial judge, the exclusionary submission must have been based on this section. Section 138(1) relevantly provides that evidence obtained improperly, in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained. Thus, although the applicant did not articulate his submission to the trial judge in s 138(1) terms it must have been made pursuant to this subsection. As events turned out, neither the applicant nor the prosecutor addressed the desirability/undesirability aspect of s 138 and focussed solely on the lawfulness or otherwise of the seizure. We invited the applicant to address us on the desirability/undesirability dichotomy set out in s 138, in the event that he had persuaded us that the seizure was unlawful.
26 His Honour's summary of the facts is consistent with the circumstances as set out in paragraph [24] above. If his Honour's summary of the precise act of seizure is vague ('.. the informant said that at some point ...(between 12.31pm and 1.48pm)... he seized the accused's mobile phone'), that is because the informant's evidence on that issue was vague. His Honour then set out the examinations conducted by Victoria Police E.Crime Unit and the type of data extracted from the phone including Facebook entries, messages and phone call logs. His Honour accepted that the informant 'believed the phone could be seized under the common law' and noted that, at a time when the informant had possession of the phone, the applicant provided the PIN code for the phone. In support of the existence of and application of the common law power of seizure, his Honour cited and relied upon passages from Field v Sullivan[16] and Levine v O'Keefe.[17] The judge accepted that the telephone was seized by the AFP officers 'at the time of the accused's arrest, or by the informant as an incident of that arrest'. His Honour went on to say 'given the very short time between the arrest and the informant's seizure of the phone I am satisfied the seizure of the phone by the informant was an incident of the arrest of the accused.' He held the police acted lawfully 'in holding, detaining and seizing the accused's mobile phone as an instrument of proof against the accused'. Alternatively, his Honour concluded that the earlier arrest by the AFP which involved searching the applicant and holding his property, including his phone, would constitute a lawful common law seizure of the phone.
27 We have observed that interlocutory appeals on admissibility under ss 97 and 101 of the Evidence Act 2008 are governed by the principles of House v R.[18] The seizure ruling interlocutory appeal is also governed by those principles. The applicant must establish either that his Honour approached the question by reference to incorrect legal principles or that it was not open to him to draw the evaluative conclusion that was drawn. On the question of leave, the applicant (on this seizure issue) must establish that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.[19] As with the tendency ruling, we shall defer the question of leave until towards the end of these reasons.
28 At common law, the power to seize and take possession of articles at the time of arrest, or incidental to it, is set out in Field v Sullivan.[20] Adopting the words of the Full Court of New Zealand, Macfarlan J (Cussen J agreeing) accepted that it was settled law that a constable who is legally authorised to arrest an accused person may, at the time of the arrest and as incident to it, seize and take possession of articles in possession of or under control of an accused person. In Field v Sullivan, the seizure did not, in fact, occur at precisely the same time as the arrest but before it. Macfarlan J said that no point was attempted to be made of this fact, but that even 'if the power to seize be limited to where there is an actual arrest, regard must be had to physical exigencies and the seizure in this case was sufficiently close to the arrest to be fairly regarded as incidental to, and part of, the same operation as the arrest.'[21] In Levine v O'Keefe,[22] a policewoman, sued for wrongful seizure of goods, argued that the goods were seized pursuant to common law. No arrest had been made at any stage. The Court recognised the existence of the common law right of seizure but held it did not apply in this case where there was no arrest, charge or search warrant in existence at the time of the arrest.
29 No doubt has been cast over these authorities in the ninety-odd intervening years and it was this common law power that the informant purported to exercise.
30 We are of the view that the applicant has failed to establish that it was not open to his Honour to conclude that the telephone was lawfully seized and thus lawfully searched pursuant to common law. It is unclear precisely when the telephone was seized by the informant. Without finally determining the issue, we are of the view that the AFP 'safety search', which resulted in AFP officers temporarily possessing certain items, including the mobile phone, for the conjoint purposes of preserving the safety of the goods, the applicant and the police does not constitute a seizure of items. The custody of the goods is temporary and undertaken for non-investigative reasons. Assuming this to be the case, we tend to the view that a 'seizure' of a suspect's property can only be for an evidentiary purpose and must be effected either by warrant or pursuant to common law. If this is correct then the seizure was effected by the informant towards 1.48 pm - the conclusion of the record of interview. It was at about this time that the applicant's mobile phone passed from being merely held for safekeeping to becoming an item of evidentiary interest.
31 The applicant's submission to the trial judge and to us was predicated on this basis and was simply to the effect that the common law requires a strict coincidence in timing between the arrest and the seizure. In this case, so the argument went, no such coincidence existed, thus no common law search and seizure occurred and the item was thus obtained improperly or as a consequence of impropriety. It is clear to us that the common law power to search does not require an exact coincidence of timing between arrest and search. In Field v Sullivan the search occurred before the arrest. Macfarlan J adverted to the practical realities when he said, 'regard must be had to physical exigencies'[23] and that provided that the seizure was 'sufficiently close to the arrest'[24] as to be incidental to it, then the common law was satisfied. In our view, the applicant has failed to demonstrate that his Honour reached an incorrect evaluative conclusion when he concluded that the seizure of the mobile phone during the record of interview was incidental to the applicant's arrest earlier that morning.
32 Largely for the reasons expressed above, we doubt his Honour's alternative conclusion that the seizure occurred at the time of the AFP 'safety search' is correct.
33 If we are in error in concluding that the applicant has failed to make good his impropriety argument, then the 'desirability/undesirability' aspect of s 138 of the Evidence Act 2008 must be considered. We have observed that we invited the parties to address us on this issue. We have concluded that even if the mobile phone were seized without any lawful basis, the desirability of admitting the evidence obtained from it handsomely outweighs the undesirability of admitting 'evidence that has been obtained in the way the mobile phone evidence was obtained'. Once the impropriety has been demonstrated, the onus rests with the party seeking to tender the evidence to persuade the court that the evidence should be admitted. The goals of the s 138 process reflect the previous common law public policy exclusionary discretion.[25] The focus is on the nature of the impropriety and the insult it may occasion on the integrity of the criminal process.
34 Factors that bear upon our conclusion on s 138 are as follows:
(a) The evidence about the seizure of the telephone and its contents is quite important in the cases against the applicant. Whilst the telephone could independently be demonstrated to be operated by the applicant months earlier, the fact of his possession of the phone on 21 October 2015 meant that the prosecution were able, through direct evidence, to link offending between May 2015 and 21 October 2015 to the applicant. The phone evidence supports SW's VARE evidence. Evidence in the handset supports TB and PC's evidence of being contacted on the applicant's Facebook Messenger account. Also, RH communicated with the applicant across multiple platforms including Facebook Messenger to an 'Alex Mills' account. Evidence on the applicant's phone links him to the Alex Mills account.
(c) If there was impropriety it was relatively slight. It was open to his Honour to conclude that the informant genuinely believed he had a common law right to seize the phone, and his Honour in fact did find this. Also, if there were impropriety, it is of a very technical nature. Had the phone been seized a little earlier on 21 October 2015, there would have been no hypothetical technical impropriety.
(d) The applicant appeared entirely willing during the record of interview to allow his mobile phone to be seized and to volunteer his PIN number.
35 We would not grant leave to appeal against either the tendency ruling or the seizure ruling, but for different reasons.
36 We are satisfied that the interlocutory decision, concerning as it does the severance of the indictment, is of sufficient importance to justify its being determined on an interlocutory appeal.[26] Notwithstanding this, the merits of this appeal in our view were not readily apparent. We are of the view that the impugned evidence was abundantly admissible and obviously so. The merits of an appeal form part of the evaluation carried out under s 295(3) of the Act[27] and leave to appeal may only be given if this Court is satisfied it is in the interests of justice to do so.[28] In our view, if an appeal is without merit, it cannot be in the interests of justice to grant leave to appeal, only then to dismiss the appeal.
37 For the reasons expressed, we are not satisfied that the evidence extracted from the seizure, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. Whilst the telephone evidence is a solid plank on what appears to be a strong prosecution case, its exclusion would neither eliminate nor nearly eliminate the prosecution case. At most, in our view, its exclusion would have a relatively mild impact upon a still strong prosecution case. In our view, all aspects of this 'seizure' application are without merit.
(a) The applicant was not denied a procedurally fair opportunity to present an argument for certificates under s 295 of the Act.
(b) Leave to appeal the tendency ruling is refused.
Court Reference: CR-17-00347 Indictment No: F13925961.1A
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
Apparently alex was gonna not mgs ur friends list if u agreed to let him fuk u once ... Or a bj he said
Would u have let him root u if he kept shut n didn't msg ur friends
OMG wft so he rapes ur pussy n u let him omg ur slut
Court Reference: CR-17-00347 Indictment No: F13925961.1A
IN THE COUNTY COURT OF VICTORIA Indictment No: F13925961.1A & G13150131A
IN THE MATTER OF Section 97 of the Evidence Act 2008
FACT(S) IN ISSUE TO WHICH THE TENDENCY EVIDENCE RELATES
Whether the accused was the person who used a carriage service to transmit a serious of communications the persons referred to in the charges.
Whether the accused intended to procure the persons referred to in the charges to engage in sexual activity with him.
Whether the accused intended to make it easier procure the persons referred to in the charges to engage in sexual activity with him.
(c) contacting adolescent girls whom he had not met previously through Facebook Messenger,
(d) persuading them to disclose to him that they had engaged in sexual activity with him,
(e) threatening to report or publicise their disclosure in order to pressure or control their behaviour,
(f) engaging in sexualised and indecent communications with them,
(g) attempting to persuade them to meet with him, and
(h) attempting to persuade them to engage in sexual activity.
The accused used a carriage service to transmit a series of communications to [SW]:
(a) with the intention of procuring her to engage in sexual activity with him (Charge 1), or
(b) with the intention of with the intention of making it easier to procure her to engage in sexual activity with him (Charge 2), or
(c) which included material that was indecent (Charge 3)
The accused initiates communications with the complainant via his Facebook account of [Lucas Reeves]. At the time the complainant is 13 to 14 years old, and she informs him of this in the initial stages of Facebook conversation. She also tells the accused of a past incident of sexual assault, which she did not report to Police.
When I was younger I was sexually assaulted and I didn't report it, and I told him about it and I didn't want anyone to find out because I'm from a small town... and it would get around... (VARE A35)
... he would use it pretty much every time to blackmail me. (VARE A36)
The accused would use this information to attempt to control the complainant.
And later on, when he got more comfortable with me, if he wasn't happy with who I was hanging around or what I was doing with myself, he would threaten to tell people what it was... (VARE A29)
He would also detail the sexual activity that he wanted to partake in with the complainant.
... it was different every time... he'd call me on the phone. And I'd answer and he would just explain sexual things that he wanted to do to me. (VARE Q&A 221-222)
Phone Extraction Report (SMS Messages & Exchanged Calls) of the Accused's phone
Statement of Detective Acting Sergeant Ramon Garay of 27 November 2016
The accused used a carriage service to transmit a series of communications to [PC]:
(a) with the intention of procuring her to engage in sexual activity with him (Charge 4), or
(b) with the intention of with the intention of making it easier to procure her to engage in sexual activity with him (Charge 5), or
(c) which included material that was indecent (Charge 6)
On 16 June 2015, the accused initiates communications with the complainant via his Facebook account of [Lucas Reeves]. The accused commences his communications by implying that he is aware that the complainant has been sexually offended against in the past:
Sweet. Hey no offence but did u get like really hurt by a guy a while ago
The Facebook emails and phone calls continue over approximately a three day period. The communications involve language of a sexualized and indecent nature.
Apparently after it hapnd uve let heaps of guys root u (tbh I dnt think u seem like that) n he was like an adult who raped u n was ur cousin
Statement of Detective Acting Sergeant Ramon Garay of 27 November 2016
The accused used a carriage service to transmit a series of communications to [TB]:
(a) with the intention of procuring her to engage in sexual activity with him (Charge 7), or
(b) with the intention of with the intention of making it easier to procure her to engage in sexual activity with him (Charge 8), or
(c) which included material that was indecent (Charge 9)
On 7 September 2015, the accused initiates communications with the complainant via his Facebook account of [Lucas Reeves]. The accused commences his communications by implying that he is aware that the complainant has been sexually offended against in the past:
Na just saw the posts about all that shit going on and was like wtf
On 20 September 2015, the complainant messages the accused on Facebook and states that she is 13 years old. He elicits information about the complainant's sexual experiences. The complainant discloses to the accused that when she was 12 years old, she was digitally penetrated by another male who was 17 years old.
TB: This was different guy when we whant datting he was 17 I wazoo 12
[LR]: Wow. Way older. That musta hurt... did he make u do it
From 20 September 2015 until 26 September 2015, the accused then threatens the release of that disclosure if the complainant does not engage in sexual activity with him.
[LR]: If ur bf didnt know... and I promise to delete every record of pur convo... would u trade sumfin for that
[LR]: ... would u suck me to avoid all this crap happenibg
[LR]: I cnt believe yd rather police n rezzy n parents n court for months rather than give up a few mins to get fingered
Facebook Messages between [TB] and [Lucas Reeves] of 07 September 2015 to 26 September 2015, extracted from the account of [TB]
Phone Extraction Report (SMS Messages & Exchanged Calls) of the Accused's phone
Statement of Detective Acting Sergeant Ramon Garay of 27 November 2016
The accused used a carriage service to transmit a series of communications to [RH]:
(a) with the intention of procuring her to engage in sexual activity with him (Charge 10), or
(b) with the intention of with the intention of making it easier to procure her to engage in sexual activity with him (Charge 11), or
(c) which included material that was indecent (Charge 12)
On 17 October 2015 the accused initiates communications with the complainant via his Facebook account of Alex Mills. The accused commences his communications by implying that he is aware that the complainant has been sexually offended against in the past:
No offence but I kinda found out what haooened to us ... what he did to u are u ok.
From 17 October 2015 to 20 October 2015, the accused communicates with the complainant via Facebook, text messages and voice calls using the false alias Alex Mills and Jack Kent.
During Facebook messages exchanged with "Alex Mills" the complainant informs the accused that she is 13 years old and fabricates a false tale of a previous sexual assault. She states that she was raped at the age of 9, had a baby that didn't live with her but lived in care, and the father was classed as a dangerous father (VARE Q&A 47-50).
The accused claims that he recorded the conversation. He makes repeated threats to release the recording to her Facebook friends if she does not comply with his demands to engage in sexual activity.
Apparently alex was gonna not msg ur friends list if u agreed to let him fuk u once. Or a bj he said.
Would you have let him root u if he kept shut n didn't msg ur friends.
Facebook Messages between [RH] and Alex Mills of 17 October 2015 to 20 October 2015, extracted from the account of [RH]
Phone Extraction Report (SMS Messages & Exchanged Calls) of the Accused's phone
Phone Extraction Report (Facebook) of the Accused's phone
Statement of Detective Acting Sergeant Ramon Garay of 27 November 2016
HIS HONOUR: I have been asked to rule on the admissibility of tendency evidence. The accused is charged with four charges of using a carriage service to procure a person under 16 years of age for sexual activity, four charges of use a carriage service to groom a person under 16 years of age for sexual activity and four charges of use a carriage service to transmit indecent communications to a person under 16 years of age.
There are four complainants, [SW], [PC], [TB] and [RH]. There is a charge of procuring, grooming and transmitting an indecent communication in respect of each complainant.
The prosecution have filed an amended tendency evidence notice dated 20 June 2017 together with an outline of submissions about tendency. The issues in dispute are defined in the defence response to the summary of prosecution opening. The background to these offences and the nature of the alleged offending are set out fully in the summary of prosecution opening.
The accused was born on 18 July 1994. At the time of this offending, which extended from 6 June 2013 to 21 October 2015, he was over 18 years of age. When the offending commenced he was living in Western Australia. He moved to Victoria in May 2015. He was arrested on 21 October 2015. The accused allegedly communicated with the complainants, teenage girls, about sexual matters through Facebook Messenger and his mobile phone.
According to the amended tendency evidence notice the facts in issue to which the tendency evidence relates are; charges 1 to 12, whether the alleged conduct occurred; charges 1 to 12, whether the accused was the person who used the carriage service to transmit a series of communications to persons referred to in the charges; charges 1, 4, 7 and 10, whether the accused intended to procure the persons referred to in the charges to engage in sexual activity with him; charges 2, 5, 8 and 11, whether the accused intended to make it easier to procure the persons referred to in the charges to engage in sexual activity with him.
The tendency sought to be proved is the tendency of the accused to act in a particular way, namely, and I quote:
"4(a) contacting adolescent girls whom he had not met previously through Facebook Messenger; (b) persuading them to disclose to him that they had engaged in sexual activity with him, (c) threatening to report or publicise their disclosure in order to pressure or control their behaviour, (d) engaging in sexualised and indecent communications with them, (e) attempting to persuade them to meet with him and attempting to persuade them to engage in sexual activity".
Table B sets out in detail the particulars of the conduct of which evidence will be adduced. In the outline of prosecution submissions the prosecution have reduced into a table format the main features of the prosecution case concerning each of the four complainants. Both the prosecution and defence have carefully analysed the evidence of each complainant and each has emphasised either the similarities or dissimilarities in the evidence.
Whilst the use of the table is of assistance I have had regard to all of the evidence of each complainant, both in their VARE interviews and in cross-examination, and the other evidence to be relied upon by the prosecution, including the numerous messages. As this material is so voluminous I shall only briefly summarise this evidence. [SW] was born on 6 June 2000 so she was between 13 and 15 years of age when engaged in communication with the accused. The first contact made with the accused was through Facebook Messenger. They eventually exchanged mobile telephone numbers. This enabled the accused to send [SW] SMSs messages and to call her phone.
The accused did meet [SW]. She identified the accused on a police photo board. [SW] confided in the accused that she had been sexually assaulted but she did not want this communicated to others. There were sexual references in the communications made by the accused to [SW]. He sought to control [SW] by threatening to disclose details of the sexual assault.
[PC] was born on 22 December 2001 so she was 13 years of age when contacted by the accused. The first contact was through Facebook Messenger. They later exchanged mobile phone numbers and there were then communications via SMS messages and voice calls. The accused asked whether [PC] had been sexually assaulted and she appears to have agreed with this. She wanted to know who had disclosed this to the accused.
The accused held himself out as being a law student. He told [PC] she needed to report the assault to police. [PC] told her aunt and mother about the accused's communications and it was reported to [PC]'s father. There were sexual references in the communications between the accused and [PC]. The accused tried to persuade [PC] to meet him.
[TB] was born on 15 April 2002 so she was 13 years of age when contacted by the accused. The first communication was through Facebook Messenger. Mobile phone numbers were subsequently exchanged and they spoke to one another. There were sexual references in their communications.
After the accused implied that he knew about [TB]'s sexual history [TB] told the accused that she engaged in a sexual act in the past. The accused made threats to report the matter to police and he asked [TB] to suck his dick and give him a blow job in exchange for not telling the police. The accused tried to pressure [TB] to have sex with him.
[RH] was born on 16 October 2002 so she was 13 years of age when contacted by the accused. The first contact was through an Alex Mills' Facebook Messenger account. It is alleged that this was communication by the accused.
The accused claimed to know that [RH] had been sexually assaulted. He was able to extract [RH]'s mobile phone number from her after he promised to arrange for the disclosure of his informant in respect of [RH]'s sexual assault.
There was sexual references in the communications between the accused and [RH]. The accused told [RH] that if she had sex with him he would not spread information about her.
The prosecution seek to rely on the evidence of the conduct of the accused towards each of the complainants as tendency evidence that is admissible to support the charges concerning the other complainants. The admissibility of tendency evidence is governed by s.97(1) of the Evidence Act. Insofar as relevant, it provides:
"97(1) Evidence of the character, reputation or conduct of a person or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or (a) to have a particular state of mind unless: (b) the court thinks that the evidence will either by itself or having regard to other evidence adduced or to be adduced by the parties seeking to adduce the evidence, have significant probative value"
The dictionary to the Evidence Act defines the probative value of evidence as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".
Tendency evidence must not merely have probative value. The threshold to admissibility in s.97(1)(b) is that the tendency evidence possesses significant probative value. The high threshold of admissibility for tendency evidence is further emphasised by s.101(2) which provides that in a criminal case tendency evidence adduced by the prosecution cannot be used against an accused person unless its probative value "substantially outweighs any prejudicial effect it may have on the accused."
The principles in respect of tendency evidence have been the subject of numerous appellate decisions. The recent High Court decision of Hughes v R [2017] HCA 20 is of particular importance. In that case in the majority judgment at paragraph 39 the court stated:
"Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence".
"...the particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case. The test posed by s.97(1)(b) is as stated in Ford 'the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged'. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible".
"The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged offence. Where the question is not one of the identity of a known offender but is instead a question concerning whether the offence was committed, it is important to consider both matters. By seeing that there are two matters involved it is easier to appreciate the dangers in focusing on single labels such as 'underlying unity', 'pattern of conduct' or 'modus operandi'. In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged".
It is therefore necessary to compare the tendency and the facts in issue. As the majority state at paragraph 64.
"...A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant."
It is necessary to consider the proposed tendency evidence in respect of what are essentially three types of facts in issue: (1) Whether the offence has occurred at all; (2) whether the accused is the person who committed the offences; and (3) whether the accused had the intention to procure of groom the complainants for sexual activity when communicating with them. Although it is accepted (save and accept for any communication involving Jack or Alex) by the defence that the accused did use a carry service as alleged the critical issue in dispute is whether the offences occurred. That is the defence deny that any contact with any complainant constituted procuring, grooming, or was an indecent communication. There is also the related fact in issue of the intention of the accused. Finally, there is an issue of identification.
There is, in my opinion, a remarkable similarity in the conduct of the accused in respect of each complainant. In my opinion there is a clear modus operandi or pattern of conduct in what seems to me to have been a series of very unusual interactions between the accused and each complainant.
The accused was over the age of 18 years at the relevant time. Each complainant was a teenage girl. [SW] was 13 to 15 years of age, and [PC], [TB], and [RH] were 13 years of age. There was no previous relationship between the accused and any complainant. The first communication in respect of each complainant was via Facebook Messenger. The mode of communication changes with the introduction of mobile phone voice calls and in the case of three of the complainants, SMS messages.
In respect of each complainant there is communication concerning past sexual activity. In respect of three of the complainants the accused threatens to disclose this sexual activity. The accused is attempting to manipulate each complainant and is intending to exert power over that complainant. The accused does attempt to persuade each complainant to meet him. This is generally in a sexual context. Only one complainant does meet the accused.
The tendency sought to be proved is expressed with a considerable degree of specificity or particularity. This is an important consideration. In my opinion the evidence, either by itself or having regard to other evidence to be adduced, does provide strong support for the alleged tendency relied upon by the prosecution. It is also necessary to consider the probative value of the evidence in respect of the extent to which the tendency makes more likely the elements of the offence charged. I have considered this in respect of the facts in issue in respect of each charge.
The defence have analysed the weaknesses in the evidence in respect of each complainant and the dissimilarities in evidence. I've taken all of these matters into account. The defence have emphasised the absence of some of the features of the offending involving [TB] and [RH] in the case of [PC] and the inherent improbability of the evidence of [PC] establishing any procuring or grooming given the distance separating the accused and that complainant at various times.
I have had regard to all of the submissions. I accept all of the submissions of the prosecution. Given that there are similar charges of procuring, grooming and indecent communication in respect of each complainant I do not intend to expressly deal with each charge. I have considered each charge.
I find that in respect of all of the charges the proposed tendency evidence does have significant probative value. The most important matters in this case are the very unusual pattern of behaviour engaged in by the accused and the great similarity or close commonalities in the evidence in respect of each of the four complainants.
The evidence will be the subject of detailed directions to the jury. Having regard to the issues in dispute I find that the probative value of this tendency evidence is very high and it does substantially outweigh any prejudicial effect it may have on the accused. Accordingly I rule the tendency evidence to be admissible.
[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and certain other people.
[2] Subject to the considerations set out in s 297(1)-(3) of the Criminal Procedure Act 2009 (Vic) ('the Act').
[3] The trial judge has determined this matter unfavourably to the applicant.
[5] This table has been adapted from one prepared by the respondent. Its accuracy has not been challenged.
[7] The tendency notice also contained a description of the particulars of conduct in Table B annexed to the notice.
[9] [2017] HCA 20; (2017) 344 ALR 187 ('Hughes').
[10] See PNJ v DPP [2010] VSCA 88; (2010) 27 VR 146.
[11] See KJM v R (No 2) [2011] VSCA 268; (2011) 33 VR 11.
[12] [1936] HCA 40; (1936) 55 CLR 499; KJM v R (No 2) [2011] VSCA 268; (2011) 33 VR 11.
[13] CV v DPP [2014] VSCA 58 [17], referred to in Bray (a pseudonym) v R (2014) 46 VR 623.
[20] [1922] ArgusLawRp 102; [1923] VLR 70, 80-1 (Macfarlan J).
[25] Bunning v Cross (1978) 141 CLR 54.
[26] See KJM v R (No 2) [2011] VSCA 268; (2011) 33 VR 11.
[27] MA v R [2011] VSCA 13; (2011) 31 VR 203, 205 [5] (Redlich JA, with whom Weinberg and Bongiorno JJA agreed).
[29] The basis for the admissibility of this identification evidence is the accused's earlier refusal to participate in an identification parade, communicated through an email by his solicitor Maja Harris on 13 September 2016.
Reeves (a Pseudonym)
The Queen [2017] VSCA 291
(2010) 27 VR 146
(2014) 46 VR 623
(1936) 55 CLR 499
(2011) 31 VR 203
(2017) 344 ALR 187
(2011) 33 VR 11
(1978) 141 CLR 54