Velkoski v The Queen [2014] VSCA 121

Velkoski v The Queen [2014] VSCA 121 | Case summary | Zoe

[88]

In Pfennig [(1995) [1995] HCA 7; 182 CLR 461] at 528-531, McHugh J attempted a re-statement of the common law. His Honour did not carry a majority of the High Court with him. Nevertheless, in my respectful opinion, the experience and rational considerations that underlay the common law, however formulated, were clearly expounded by his Honour. There is a great deal to be said for now using McHugh J's approach as a basis for making the value judgments called for by ss 97(l)(b), 98(l)(b) and 101, and by s 137, in the area of 'similar fact' evidence, whether in its tendency, coincidence or other forms of relevance. Although his Honour's remarks must be taken not to represent the pre-existing common law, that now furnishes no obstacle to resorting to them for guidance. Accordingly, I venture to include the following lengthy quotation from his Honour's judgment:

... upon what basis should [tendency] reasoning be admitted? Plainly, it cannot be admitted merely because it has probative or even strong probative value. The risk of an unfair trial through the use of [tendency] reasoning is too great to allow such a low threshold of admissibility. Consequently, this Court has insisted that as a matter of law and not discretion the probative value of the evidence must outweigh or transcend its prejudicial effect ...

Nevertheless, the proposition that the probative value of the evidence must outweigh its prejudicial effect is one that can be easily misunderstood. The use of the term 'outweigh' suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. ... In my view, evidence that discloses the criminal or discreditable [tendency] of the accused is admitted ... because the interests of justice require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced.

If there is a real risk that the admission of such evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgment, not a mathematical calculation ... Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.

If the evidence does no more than prove a mere [tendency] to commit crimes of the kind in question, it will never have sufficient probative force to make it admissible. If it does have the required degree of probative force, it will be because it is relevant for a reason other than proof of [tendency] or because it colours one's perception of the other evidence to such an extent that it can be confidently inferred that the accused gave effect to the [tendency] on the occasion in question. Evidence of a striking similarity between the commission of the crime and the method used by the accused will frequently be sufficient to prove that inference. But striking similarity is not the exclusive test. The circumstantial force of the other evidence together with the [tendency] evidence may prove the inference ... For [tendency] evidence to be admissible, however, it will need to have 'specific probative value in relation to the crime charged' ... Even then, [tendency] evidence will not be admitted if the prejudicial value of the evidence makes it contrary to the interests of justice to admit it.

If the risk of an unfair trial is very high, the probative value of evidence disclosing criminal [tendency] may need to be so cogent that it makes the guilt of the accused a virtual certainty. In cases where the risk of an unfair trial is very small, however, the evidence may be admitted although it is merely probative of the accused's guilt. Each case turns on its own facts. But the judge must bear in mind that the admission of evidence revealing criminal [tendency] is exceptional. ...

Thus, where the prosecution case depends entirely on [tendency] reasoning ... the evidence will need to be very cogent to be admitted. When [tendency] reasoning is relied upon, the danger is high that the tribunal will convict simply because of the accused's [tendency] instead of using it as an evidentiary factor. Consequently, in such a case the evidence will need to be so cogent that, when related to the other evidence, there is no rational explanation of the prosecution case that is consistent with the innocence of the accused. However, I do not think that evidence disclosing or tending to prove other criminal or wrongful conduct, and consequently the criminal or discreditable [tendency] of the accused, must always meet this high standard. In the relationship cases, for example, [tendency] reasoning may simply reinforce or explain other evidence that directly implicates the accused. In such cases, it would be contrary to both the practice of the criminal courts and the interests of justice to use the no rational explanation test as the condition of admissibility of such evidence. In other cases, particularly those where the evidence is admissible for a reason other than the accused's [tendency], the risk of prejudice may be so small that justice both to the accused and to the prosecution can be done by admitting evidence that is probative of guilt and warning the jury that they must not use the evidence in the way that is likely to create prejudice.

It follows that in each case where evidence is tendered that discloses, directly or indirectly, the criminal [tendencies] of the accused, it is necessary to identify the nature of the risk, if any, to which the admission of the evidence gives rise. In similar fact cases, for example, evidence is often admitted for the reason that the association of the accused with so many similar deaths, injuries or losses, as the case may be, makes it highly improbable that there is any innocent explanation for the accused's involvement in the matter ... In these cases, the [tendency] of the accused will usually only be established by the verdict ...

Makin [v Attorney-General [1894] AC 57] is the classic example. It was a case involving objective improbability reasoning, not [tendency] reasoning ... The [tendency] of the accused to kill the babies was only established by the conclusion that it was probable to the point of certainty that so many babies including the baby the subject of the indictment could not have died by accident. Accordingly, they must have been murdered by the Makins. It was the verdict that established the accused's [tendency] .... The risk of prejudice in [such] true similar fact cases is not from [tendency] reasoning but from the fact, as Murphy J pointed out in Perry [v The Queen (1982) 150 CLR 580 at 594] ... that '(c)ommon assumptions about improbability of sequences are often wrong'. A jury may wrongly give the similar fact evidence far more weight than it deserves.

In other cases involving similar facts, however, the accused may have admitted the facts of a similar incident or the facts of a similar incident may clearly point to wrongdoing on the part of the accused in relation to that incident. In such cases, there is a risk that, instead of relying on probability reasoning, the jury will simply rely on the [tendency] of the accused as revealed by the incident that is admitted or proved. It follows that the nature of the prejudice and the degree of risk of an unfair trial will always depend on the facts of each case.

It also follows that I am unable to agree ... that evidence that discloses the criminal [tendency] of the accused cannot be admitted unless that evidence together with the other evidence denies any rational explanation of the accused's conduct that is consistent with his or her innocence. That rule will be generally applicable when the Crown is relying on the accused's criminal [tendency] because the risk of prejudice from [tendency] reasoning is so high. But in the relationship cases, for example, where evidence of [tendency] is relied on as confirmatory or explanatory of evidence implicating the accused, I do not think that such a high standard is either required or appropriate. Similarly, in cases where the accused's [tendency] is disclosed, but is not the basis of any reasoning process, a standard of proof lower than the no rational explanation standard may suffice for admission.[46]

[158]

To start with, in RHB [2011] VSCA 295], 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 RHB 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 [in] RHB, if only because in this case there was penetration of one complainant but not of the other.

Thirdly, in RHB 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 RR v R, 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.

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 'K' to her custody the day after the alleged offending against 'K', the applicant volunteered that there had been some sort of incident between him and 'K', which 'K' would likely speak to her about, during which he had removed 'K'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 'K', and did not remember much about the episode, other than that he was seeking to alleviate 'K'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 'I'.

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 'K' 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.[139]

[192]

The assault on CNE occurred when she was 11 years old. The allegation was of indecent touching in the area of the breasts and digital penetration of the vagina on an occasion when the appellant was lying on his bed and CNE was the only other person at home. PNE described a history of sexual molestation commencing when she was aged nine years. The first assault occurred when the appellant came into her bedroom at night when the other members of the household were asleep and touched her on the outside of her underwear in the area of her vagina. The second count involving PNE was of a similar incident. The remaining counts arising out of her complaint involved acts of penile/vaginal intercourse, which largely occurred at locations away from the family home. The similarities that the Judge identified were, in reality, unremarkable circumstances that are common to sexual offences against children.

The Crown Prosecutor on the appeal did not maintain that PNE's evidence was admissible under s 98 to prove the appellant's guilt on the counts relating to CNE on the basis of the improbability of the events occurring coincidentally. This was a realistic concession that the allegations made by PNE were not of events that were substantially and relevantly similar to the allegations made by CNE nor were the circumstances in which they occurred substantially similar. It was an error to admit the evidence of PNE at the trial of the counts involving CNE under the coincidence rule. ...

If the possibility of joint concoction cannot be excluded the evidence does not possess the same probative value since there exists another explanation for the circumstance that each complainant has made like allegations. Hoch [(1988) [1988] HCA 50; 165 CLR 292] was concerned with the admission of similar fact evidence under the common law and propounded the 'no other rational view' test that was adopted in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 at 482-483 per Mason CJ, Deane J and Dawson J. This is not the test for the admission of tendency or coincidence evidence under the Act; R v Ellis [2003] NSWCCA 319. However, it was not an error to consider the possibility of joint concoction in assessing the probative value of the evidence. To the extent that his Honour did so, it was an error to find that there was no possibility of joint concoction: The complainants were sisters and were in contact with one another at the time each made her complaint. Insofar as the Judge assessed the probative value of PNE's allegations as being substantial in proof of the allegation that the appellant assaulted CNE his Honour erred.

The evidence of the assaults on PNE was not admissible on the trial of the counts involving CNE unless its probative value substantially outweighed any prejudicial effect that it may have had on the appellant. The prejudicial effect is likely to have been great. This is so notwithstanding that the jury acquitted the appellant on 12 of the counts which depended on PNE's evidence. The jury may have accepted PNE as truthful but considered that her recall of the offences was not sufficiently reliable to establish beyond reasonable doubt the happening of the events as they were particularised in the indictment. The risk that the jury would be overwhelmed by the evidence of the long course of sexual misconduct against PNE in considering whether the Crown had proved the counts charging offences against CNE was real. We consider that the Judge erred in concluding that the probative value of PNE's allegations as evidencing a tendency to sexually molest young female members of the appellant's household substantially outweighed any prejudicial effect the evidence might have on the appellant's case.

It was an error to admit the whole of PNE's evidence as tendency or coincidence evidence on the trial of the counts relating to CNE.[190]

[254]

DEFENCE COUNSEL: But you've known about that for a while, haven't you?

OA: If you're asking me if that worries me, no.

DEFENCE COUNSEL: No, I'm not asking you if it worries you at all. I'm just saying you've known about MS and MS's making allegations for quite a long time, haven't you?

OA: I don't even think - when I heard it I think it just stayed in my mind for just a couple of minutes and I never remembered it unless someone tells me or remembers it for me so, no, I haven't, I haven't thought about it anyway, so I would say -

DEFENCE COUNSEL: Have you ever talked to [MS's brother] about [the applicant]?

OA: No.

DEFENCE COUNSEL: Have you ever talked to [MS's brother] about MS?

OA: No.

DEFENCE COUNSEL: But you do know that MS has said things about [the applicant], that much you do know, is that right?

OA: Um, can you repeat that, sorry?

DEFENCE COUNSEL: Sure. You know about MS making allegations, don't you?

OA: I've heard - I'm trying to make things clear but -

DEFENCE COUNSEL: All right. If I can ask you another question. Who did you hear that from?

OA: I don't know. All I just know is - it's actually, it's my mum's private business, so I don't know. I don't know what you mean.

DEFENCE COUNSEL: The police obviously did speak to you twice, didn't they, and that's what you've watched this morning on the tapes?

OA: Yes, then they told me nothing about - they asked me no questions about someone else. I'm sure they didn't.

DEFENCE COUNSEL: But around that time you did know that other children had said things about [the applicant], didn't you?

OA: Yes.

DEFENCE COUNSEL: And who did you hear about that from, was it the police or was it?

OA: Yes.

DEFENCE COUNSEL: Your parents?

OA: That's when MS dropped in. Now I'm getting your question and now I actually have an answer to your other question. The day I was about to tell things, just like I said, my parents already knew and they said how they got the information other kids have told their parents and including MS, she heard MS has also told her parents and that's how I knew but it's never bothered me though.

[264]

The prior question is whether the admissions in the statement were inadmissible in the absence of an objection to their admissibility. R v Reid [1999] NSWCCA 258 was concerned with s 424A of the Crimes Act 1900 (NSW), the predecessor to s 281 and although differently structured using the same key words that 'evidence of an admission is not admissible unless ... '. Spigelman CJ held at [5] that 'is not admissible' should be construed as meaning 'is not admissible over objection', saying that the usual course of proceedings in trials under the adversary system requires objection to be taken to evidence and that the usual practice was 'part of the total context in which Parliament used these words'. The reasons of Smart AJ were less explicit, but at [61] his Honour said that s 424A was 'enacted against the long-standing and well-known practice of the Court generally not to reject evidence led by a party until a legitimate objection is taken by the other party'; his Honour went on to point out that the parties were generally left to conduct their own cases and they should know, which the Court did not, whether there was a reasonable excuse why a tape recording could not be made. Greg James J at [11] agreed with Smart AJ, and also with the 'matters raised by the Chief Justice'. ...

The prior question is not one of use of inadmissible evidence which was not objected to, but of construction of s 281. It does not concern s 281 alone. The Evidence Act 1995 (NSW) uses the words 'is not admissible' in relation to hearsay evidence (s 59), opinion evidence (s 76) tendency evidence (s 97), coincidence evidence (s 98), credibility evidence (s 102) and visual identification evidence (s 114), amongst other provisions. The words are to be contrasted with 'is not to be adduced' in ss 118 and 119 and similar directory words in other provisions. Strong forms of words are found in s 137, 'must refuse to admit evidence', and s 138, 'is not to be admitted'. In Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [149] Spigelman CJ said that ordinarily 'not admissible' in the Evidence Act means 'not admissible over objection'.

On the other hand, s 190 of the Evidence Act (under the heading 'Waiver of rules of evidence') provides for the court to dispense by order with the application of many provisions of the Act if the parties consent, which at first sight is not consistent with the provisions being inapplicable if they are not invoked by a party objecting to evidence. In particular, by s 190(c) in criminal proceedings a defendant's consent is not effective unless the defendant has been advised to consent by his lawyer or the court is satisfied that the defendant understands the consequences of giving the consent.

However, the Chief Justice's construction of 'is not admissible' in R v Reid has been adopted in this Court in R v Spathis [2001] NSWCCA 476 at [416]-[417] (Carruthers AJ, Heydon JA and Smart AJ agreeing), R v Lyberopoulos [2002] NSWCCA 280 at [41] (Hulme J, Mason P and Simpson J agreeing) and R v Kaddour [2005] NSWCCA 303; (2005) 156 A Crim R 11 at [62] (the Court). The appellant submitted that R v Reid should be reconsidered in the light of the rationale for equivalents to s 281 explained, and the purposive construction given, in some of the judgments in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 and Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196, but the High Court was not concerned with the present question. In the absence of proper argument to the contrary, the decisions should be followed. Accordingly, the ground of appeal fails in limine because, in the absence of objection, the statement was not inadmissible and was not wrongly admitted.[254]

[273]

Although it was said in R v Ellis [1910] 2 KB 746, at p 764; [1908-10] All ER Rep 488 that a judge presiding over a criminal trial ought not to wait for objections to evidence, but should himself stop questions which would elicit inadmissible answers, it was held in R v Sanders [1919] 1 KB 550 that the Court of Criminal Appeal will not entertain an appeal based upon the wrongful reception of evidence if no objection to it was taken at the trial. But although the latter case seems clear and unequivocal it was not applied in its full rigour in R v O'Brien [1920] NSWStRp 52; (1920) 20 SR (NSW) 486, per Wade J, at p 493, where however it was said that where no objection was taken to evidence the admission of which is afterwards made a ground of appeal, the Court should require some strong reason to be shown why that course was adopted. In Stirland v DPP [1944] AC 315, at pp 327-8 Viscount Simon, LC, after referring to R v Ellis, supra, said: 'If that be the judge's duty, it can hardly be fatal to an appeal founded on the admission of an improper question that counsel failed at the time to raise the matter. No doubt, as was said in the same case, the court must be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made at the trial by the prisoner's counsel. The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced. It is not a proper use of counsel's discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal, but where, as here, the reception or rejection of a question involves a principle of exceptional public importance, it would be unfortunate if the failure of counsel to object at the trial should lead to a possible miscarriage of justice. There is nothing in the Act of 1898 to suggest that such an objection is necessarily invalid unless taken at the time, and in other branches of the law the right to object on appeal that evidence was inadmissible is not necessarily forfeited by the failure to object when the evidence was given. The object of British law, whether civil or criminal, is to secure, as far as possible, that justice is done according to law, and, if there is substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at the trial is not necessarily conclusive.' (Cf McLellan v Taylor [1966] 2 NSWR 185 and R v Oliver [1968] VicRp 27; [1968] VR 243, at p 247.)[268]

[303]

You will note that I said you must consider each charge in light only of the evidence which applies to it. This is because some of the evidence you have heard in this case is only relevant to one charge or another. Keeping in mind the separate consideration direction I have just given you I am now going to move on to explain to you how the prosecution has relied on the evidence of the complainants as being supportive of each.

This is the evidence of one complainant being supportive of another complainant. The prosecution case is that the evidence of the complainants - and when I say this I am talking about the evidence of each of the complainants in relation to the charges on the indictment, and that is Charges 1 and 2 in relation to GS and Charges 3 and 4 in relation to MS Charges 6, 7, 12, 13, 8, 10, 15 and 14 in relation to OA.

The prosecution case is that the evidence the different complainants gave show that the accused had a tendency to act in a particular way and to have a particular state of mind. That is that he had a sexual interest in the young children attending the day care run by his wife in their residence at Thornbury and that he was willing to act on that sexual interest by engaging in the indecent acts with MS, GS and OA.

While the evidence on each charge must be considered separately as I have just informed you, you may also use the evidence of one charge if you are satisfied beyond a reasonable doubt that it is proven in support of another charge. You may only use the evidence of one charge in consideration of another charge in the following two ways.

First if you accept that the evidence may place the alleged offence in a complete realistic context and setting, for example, it could assist you to understand the complainant's alleged conduct or state of mind such as why the complainant you are then dealing with might be submitting to the accused's demands or why that complainant did not complain about it.

It could help you to understand the accused's conduct or state of mind of the offences such as why he felt he could act in a particularly brazen way, for example, if you were satisfied beyond reasonable doubt that he committed an indecent act against one of the complainants without being discovered or without that complainant telling an adult about it, it might explain why he felt able to do the same with another complainant on another occasion.

The circumstances of the alleged offence are also relied upon for context such as to show you that the complainants do not say that the offences occurred out of the blue.

Secondly the prosecution has led the evidence to prove that the accused had a sexual interest in the complainants. If you find that the accused was sexually attracted to the complainants and was willing to act on that attraction you may use that finding in determining whether the accused committed the offences charged.

The prosecution case is that the accused had a pattern of behaviour towards these children which shows a particular state of mind. That is that he had a sexual interest in them. I direct you that this is a legitimate form of reasoning. If you accept the evidence you may infer that the accused had the tendency, and you may further infer that it makes it more likely that he committed the alleged offences.

You will remember what I just said about drawing inferences, and you have to apply the test I gave you about drawing inferences to the evidence before relying on it in this way. So you are entitled to consider the evidence of one complainant if you accept it makes it more probably [sic] that the other is telling the truth.

For example, if you accepted beyond reasonable doubt what GS said, then you might consider it makes it more probable that OA is telling the truth. However, if you are not satisfied beyond reasonable doubt of the evidence of a particular charge, or you do not think that the evidence on one charge makes it any more likely that the accused committed the alleged act on another charge or charges, then you must disregard the evidence on that particular charge. ...

It is important that you only use this evidence for the two purposes I have referred to, and only if you are satisfied beyond reasonable doubt that it is true and it helps you to explain the main issue in this case, that is whether or not the offences occurred. If you are not satisfied of the evidence beyond reasonable doubt, or if you do not think it makes it any more likely that the accused committed the alleged acts, then you must disregard it.

[319]

Q234: So what, when you said that you saw, on the September holidays that have just gone -

A234: Mm.

Q235: - what, what happened, what did you see him do?

A235: Oh, he would do it with me too, like, we will start play fighting, and then, like, oh, you know, I didn't know that he might do that, so, like, he would grab us there then.

Q236: So tell me about a time when he did that.

A236: Yeah, as I said, last holidays and -

Q237: Yeah.

A237: ... but he would do it, like, when we're older. Like, when we're little -

Q238: So last -

A238: - he never did it.

Q239: Last holidays, what, tell me what he did.

A239: Like, we will play fight and then he would, like, try and grab us in the privates -

Q240: Mm.

A240: - and, yeah.

Q241: So try to grab, or did he grab you?

A241: Oh, he would've tried to, but then he, yeah, he sort of did. Sometimes he did and sometimes he'd try.

Q242: So when you say, He did, what did he do? Tell me about it.

A242: Well, yeah, we were, like, playing, we were playing games and he would, you know, grab there. And then we would fall back down on the ground, and we would start playing again, and, yeah.

Q243: How would he grab your private?

A243: Oh, you know, the normal way, he would just grab it, like, yeah, with his hand he would grab it.

Q244: How long did he grab it for? What did he do with his hand?

A244: Yeah, he just grabbed it and then he let go, but -

Q245: OK.

A245: - yeah, he just grabbed it, then he let go.

Q246: Did he say anything when he did it?

A246: No. Like, we were laughing, but he, yeah, he didn't saying anything when he did it.

Q247: And whereabouts on your private part did he touch, like?

A247: Yeah, the, like, directly, he wouldn't touch here or here, like, he would, like -

Q248: Yeah.

A248: - if he wanted to do it.

Q249: But which part? Well, what do you -

A249: Oh -

Q250: - call your private part?

A250: Oh, penis, penis, penis.

Q251: Penis. So whereabouts on that area would he touch?

A251: All around it, you know, 'cause his hand's big, he would try to do that, and sometimes he would've done that, but, yeah.

At a glance

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Judgment (612 paragraphs)

Velkoski v The Queen [2014] VSCA 121 (18 June 2014)

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Cases Cited (38)