Von Porebski v R [1999] WASCA 15

Von Porebski v R [1999] WASCA 15 - WASCA 1999 case summary — Zoe

[19]

"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged ... The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt whether neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such but because it has a prejudicial capacity of a high order the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused (Hoch (1988) 165 CLR at 296 ... see also Harriman (1989) 167 CLR at 602). Here 'rational' must be taken to mean 'reasonable' (see Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

[27]

11 As set out in the reasons to be published by Pidgeon J an application to have three separate trials relating to the counts on the indictment was refused by the learned trial Judge on 14 August 1998. In refusing the application the learned Judge applied the principles stated in Hoch and found that there was no reasonable foundation in fact for any suggestion of collusion or any basis for concoction. The evidence led at the trial has been fully described by Pidgeon J as well as the directions which were given in relation to the evidence. This was not so much a case involving striking similarities or unusual features as a case in which the evidence revealed an underlying unity system or pattern. Each complainant made contact with Mr Scott before being taken to the applicant. It was Mr Scott who introduced them and in some cases took part in the sexual conduct which occurred. The complainant LC and the complainant AC both said that the applicant had interrupted his work shift to come into the hotel bedroom. The evidence of TL was consistent with that. Two of them spoke of the change of bedrooms. On the occasions when Mr Scott did not himself go to the bedroom he made arrangements for TL to reach the bedroom in a way which was similar. Each of the complainants was given a key to enter the assistant manager's private bedroom. While the complainants had been involved in similar sexual activity with many other men, this had taken place at other places. There was no suggestion that the sexual conduct with other men took place at the Riverside Lodge Hotel in the absence of the applicant. The pattern associated with the sexual activity which took place at the Riverside Lodge Hotel was peculiar to the applicant. Given that the central issue at the trial was the identification of the applicant by the complainants as the person they met their evidence of similar facts had substantial probative force in relation to that issue in that it raised, as a matter of common sense and experience, the objective improbability of the events having occurred other than as alleged by the prosecution because each of the complainants was independently mistaken.

[129]

65 The last of the complainants to give evidence was LC, the complainant in the first three counts. He was born in Wales on 6 July 1964. He met Scott when he was 12 years old. He said that in the beginning he thought he was just a friend interested in music. He said that he then "did sexual things to me." He said Scott introduced him to the applicant and to Ellery. He was introduced to the applicant at a house in which Scott then was living in Blake Street, North Perth. The witness lived two doors down. He was twelve and a half years old at the time of this introduction. He said that the applicant gave him Black Russian Sobrani cigarettes to smoke. He then said without indicating to what he was referring, "I'm not sure whether it was gold or silver." When asked about the applicant the witness said that something happened to him first of all at Gardiner Street, East Perth and subsequently at the Riverside Hotel. This was also a house at which Scott lived, I assume at a later time. The complainant said that what happened at Gardiner Street was that the applicant penetrated his anus with both his tongue and penis. He said he thought it only happened once at Gardiner Street. He said that Scott was in another room. He said also that the applicant told him that he would kill him if the witness ever told anybody. He then said there was an incident at the Riverside Hotel. He had been there several times. Scott took him to the Riverside Hotel. Sometimes he would take him in his mother's motor car and sometimes on the back of a motor cycle. He could not recall how many times he went there, but said it was more than once. He said that the procedure was that Scott went to see the applicant and then would come back with a key or with the applicant himself and they would go up to the applicant's hotel room. He said the applicant would then have sex with Scott and that the applicant sucked his penis while he was there on one occasion. He said the applicant went back to finish his shift and later came back with a bottle of champagne and they drank champagne and smoked cigarettes. The applicant sucked the witness's penis after they had had a few drinks. He said every time he went to the applicant's place he was given alcohol. He described, in evidence, his schizophrenia. At the end of the evidence in chief his Honour repeated the following warning: (AB441)

[148]

74 I do not consider that it could be said that his Honour, by giving the directions he did, had some doubt on the correctness of the earlier rulings and was endeavouring to retrieve the situation. His Honour first gave the direction at the conclusion of the evidence in chief of the first witness and it would not then have been possible to form a different judgment on the question previously decided. His Honour, at that stage, was speaking more of the evidence going to prove relationship inasmuch as he was referring to acts of a similar nature performed against that particular witness and which were not charged in the indictment. His Honour's main aim, at that stage, was to ensure that the jury were not using this evidence as direct evidence to establish the offence. The position was the same in respect of the direction he gave at the conclusion of the evidence-in-chief of the next complainant. The direction related primarily to relationship and to make the point that the evidence could not be used to show that because he engaged in other sexual conduct, therefore he must have engaged in the particular offence with which he was charged. His Honour's direction at the end of the evidence-in-chief of the third complainant went to both relationship and evidence of other complainants that might establish a pattern. His Honour was again saying what the evidence could not be used for. He said he would later give a direction as to how it was to be used. When the defence had closed its case his Honour, in the absence of the jury then indicated the limited purpose which he considered the evidence could be used. He was restricting it to the issue of identification and the commission of the offences at a particular place. By this stage of the trial this was the main issue. The object of preventing the jury from using the evidence for impermissible purposes could no doubt be best achieved by limiting it to the live issue. It could not be said that his Honour ruled this way because he had some doubt as to the earlier rulings. I would dismiss the first ground.

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