HIGH COURT OF AUSTRALIA
McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
KRM APPELLANT
AND
THE QUEEN RESPONDENT
KRM v The Queen [2001] HCA 11
8 March 2001
M11/2000ORDER
Appeal dismissed.
On appeal from the Supreme Court of Victoria
Representation:
P F Tehan QC with C B Boyce for the appellant (instructed by Allan McMonnies)
G R Flatman QC with C M Quin for the respondent (instructed by Solicitor for Public Prosecutions, Victoria)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
KRM v The Queen
Criminal law – Practice and procedure – Sexual offences – Multiple counts – One count of maintaining relationship with child under 16 pursuant to s 47A Crimes Act 1958 (Vic) – Whether propensity warning required when presentment involves multiple counts of sexual offences and relationship count pursuant to s 47A – Whether propensity warning required in respect of individual acts that form basis of a charge under s 47A – Use of "separate consideration" warning – Operation of proviso.
Criminal law – Sexual offences – s 47A Crimes Act 1958 (Vic) – Whether legislature can modify the need for particulars of criminal charges – Whether evidence of uncharged sexual acts admissible to prove the nature of the relationship between the accused and the complainant.
Evidence – Propensity evidence – "No rational view" test – Application to relationship evidence.
Crimes Act 1958 (Vic), s 47A.
McHUGH J. Section 47A of the Crimes Act 1958 (Vic) ("the Act")[1] relevantly provided[2]:
[1]The section has been amended since the date of the appellant's offence.
[2]Other jurisdictions have created similar offences: Crimes Act 1900 (ACT), s 92EA; Crimes Act 1900 (NSW), s 66EA; Criminal Code (NT), s 131A; Criminal Code (Qld), s 229B; Criminal Law Consolidation Act 1935 (SA), s 74; Criminal Code (WA), s 321A. In Tasmania the offence relates to young people under 17 years: Criminal Code (Tas), s 125A.
"Sexual relationship with child under the age of 16
(1)A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married and who is under his or her care, supervision or authority is guilty of an indictable offence.
(2)To prove an offence under sub-section (1) it is necessary to prove –
(a)that the accused during a particular period (while the child was under the age of 16 and under his or her care, supervision or authority) did an act in relation to the child which would constitute an offence under a particular provision of this Subdivision or Subdivision (8A) or (8B); and
(b)that such an act also took place between the accused and the child on at least two other occasions during that period.
(3)It is not necessary to prove the dates or the exact circumstances of the alleged occasions."
The appellant was tried by a judge and jury in the County Court of Victoria on a presentment that contained a count under s 47A of the Act. The presentment also contained another 17 counts charging him with specific sexual offences against the child with whom he was charged with maintaining an unlawful sexual relationship contrary to s 47A. The trial judge did not direct the jury that, if they found the appellant guilty of maintaining that relationship, they were not to use that finding or the acts constituting the offence to reason that he was the kind of person who was likely to have committed any of the specific sexual offences with which he was charged. Nor did the judge direct the jury that, if they found the appellant guilty of one or more of the 17 counts, they could not use that finding or findings to reason that he was the kind of person who was likely to commit the acts the subject of the s 47A count.
The principal question in the appeal is whether a trial judge must always give either or both of those directions (a "propensity warning") when the presentment includes a count under s 47A and counts alleging other sexual offences. If that question is answered in the negative, a further question in the appeal is whether the trial judge erred in not giving a propensity warning, having regard to the evidence and circumstances of the case.
In my opinion, there is no absolute rule that a judge must always give a propensity warning when the presentment contains a count under s 47A or its equivalents in other jurisdictions. Nor is a judge always required to give such a warning in respect of the individual acts that form the basis of a charge under s 47A or its equivalents. Ordinarily, no such warning is required. The circumstances of some cases, however, may require the judge to give a propensity warning. But ordinarily, it will be sufficient if the judge directs the jury that they must consider each count and the evidence relating to each count, separately.
The factual background
The appellant and the complainant's mother were married when the complainant was two years old[3]. In October 1992, the appellant confessed to his wife that he had been sexually molesting the complainant[4]. He took an overdose of tablets and spent a night in hospital. Five months later he left home, never to return. In 1995, the complainant's mother arranged for the complainant to make a statement to the police about the appellant's conduct. He was later charged with various sexual offences against the complainant.
[3]KRM (1999) 105 A Crim R 437 at 438.
[4]KRM (1999) 105 A Crim R 437 at 438.
The presentment alleged various acts of penile penetration or other sexual misconduct between June 1984 and February 1986 (counts 1 and 2), between March 1988 and December 1988 (counts 3, 4 and 5), between March 1990 and November 1990 (counts 6, 7 and 8), between March 1991 and October 1991 (counts 9 and 10), between August 1991 and October 1991 (counts 11 and 12), in November 1991 (counts 13 and 14), between September 1991 and March 1992 (counts 15 and 16), and between March 1991 and March 1992 (count 17). Count 18 of the presentment alleged that, between August 1991 and March 1992, the appellant maintained a sexual relationship with the complainant "in that he introduced his penis into the vagina of [the complainant] … on at least [three] occasions during that period".
The jury convicted the appellant on all counts[5].
[5]KRM (1999) 105 A Crim R 437 at 438.
He sought leave to appeal against his convictions to the Court of Appeal of the Supreme Court of Victoria (Phillips, Batt and Buchanan JJA). Among the numerous grounds of appeal were grounds alleging that the trial judge had erred in allowing the count of maintaining a sexual relationship to go to the jury and in failing to give a propensity warning to the jury with respect to the relationship between count 18 and the other counts in the presentment.
The Court of Appeal dismissed the appellant's application for leave to appeal holding that a propensity warning is not required simply because the presentment contains two or more counts concerning the same victim, even if one of the counts is based on s 47A, a section that the Court thought created "an offence which may offend the sensibilities of an experienced criminal lawyer"[6]. Although the Court acknowledged that the facts of a particular case may require a propensity warning to be given[7], it held that nothing in the present case required that warning to be given[8].
[6]KRM (1999) 105 A Crim R 437 at 442.
[7]KRM (1999) 105 A Crim R 437 at 444.
[8]KRM (1999) 105 A Crim R 437 at 444.
The appeal to this Court
By his notice of appeal in this Court, the appellant contended that, where the presentment has a count alleging a breach of s 47A of the Act, the trial judge must direct the jury that, if they find that the accused has engaged in the sexual conduct the subject of that charge, they cannot use that finding to reason that he was the kind of person who was likely to have committed any of the other sexual acts that are the subject of other counts in the presentment. The appellant also contended that the jury must be directed that, if they find that the accused has committed any of the individual acts that are the subject of the s 47A charge, they cannot use that finding to reason that he is the kind of person who is likely to have committed any of the other sexual acts that are the subject of the s 47A offence.
Alternatively, the appellant contended in his notice of appeal that, by reason of the general nature of the complainant's evidence, the trial judge erred in law in not giving a propensity warning, even though no directions concerning propensity were sought at the trial. Originally, the complainant's evidence-in-chief was so unspecific that it is highly doubtful that her evidence was capable of proving beyond reasonable doubt that the appellant had maintained a sexual relationship with her during the period alleged in count 18. Near the end of her evidence-in-chief, however, the prosecutor asked her some further questions without objection:
" ... towards the end of your evidence yesterday you were telling the jury that in the last six months before all sexual activity ceased there were occasions where sexual penetration and digital penetration took place and I think your words were 'on numerous occasions' or 'it was repetitious'? --- Yes.
Do we take it from that, that it occurred on more than three occasions ---? --- Yes.
--- during that period? --- Yes.
And does that relate to the sexual penetration? --- Yes.
The penile penetration? --- Yes."
The appellant contended that, because of the general nature of this evidence, the trial judge erred by not giving a propensity warning. This Court did not give the appellant leave to challenge the sufficiency of this evidence to sustain the charge under s 47A. Nevertheless, the appellant's submissions concerning a propensity warning inevitably led to discussion in this Court of the nature of the evidence to support the charge.
If counsel had objected to the form that the prosecutor's questions took, the objection must have been upheld. It may be, as counsel for the appellant conceded, that counsel who represented the appellant at the trial did not object to this evidence for tactical reasons. He may have preferred the evidence to be given in this compressed form rather than having a more detailed account of the incidents relied on to support the charge. Or he may have thought the generality of the claims would make a jury reluctant to convict the accused on the s 47A charge.
But, whatever the reason for the failure to object, it is a mistake to assume that evidence of the kind and the form in this case is sufficient to support a charge under s 47A. Section 47A(3) provided at the relevant time that it "is not necessary to prove the dates or the exact circumstances of the alleged occasions." But that does not mean that the charge could or now can be proved by a blanket assertion that on three or more occasions the complainant and the accused engaged in an act that falls within a category specified in s 47A(2). This was recognised by the Court of Appeal of the Supreme Court of Queensland when it said of the Queensland equivalent of s 47A that "it stops short of authorising trials conducted as a contest between generalised assertions which can only be met by generalised denials"[9].
[9]Thompson (1996) 90 A Crim R 416 at 434.
Section 47A operates in the context of an adversary system of criminal justice where an accused person is entitled to be given as high a degree of particularity concerning a criminal charge as the subject matter will bear. An accused person "is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge"[10]. These particulars are needed to ensure that the accused person has a fair opportunity to defend the charge.
[10]Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J (emphasis added).
Subject to the operation of Ch III of the Constitution, the legislature of the State of Victoria may modify – even abolish – the need for particulars of criminal charges. But an intention to do so should be imputed to the legislature only when it has enacted words that make its intention unmistakably clear. Courts should not lightly infer that a legislature has intended to abolish or modify fundamental principles of the common law such as the principle that an accused person must have a fair opportunity to defend a criminal charge. Here the legislature has made it clear that the prosecution does not have to prove the date or the exact circumstances of the offence. But that is all. It has not said that the prosecution need not give particulars or need not prove the general circumstances of each act constituting an offence.
The need for the prosecution to prove that "such an act also took place ... on at least two other occasions" indicates that the prosecution must prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each "occasion". Reference to circumstances or occurrences happening at a particular time is the usual way of identifying or describing an "occasion". In the context of s 47A, where it would make no sense to describe the "act" as the occasion and where the date and the exact circumstances need not be proved, the term "occasion" should be understood as referring in a general way to the circumstances accompanying the "act". That this was the construction which the legislature intended to place on s 47A(3) is supported by the amendment to that sub-section which was made by Act No 81 of 1997. The amendment declares:
"It is not necessary to prove an act referred to in sub-section 2(a) or (b) with the same degree of specificity as to date, time, place, circumstances or occasion as would be required if the accused were charged with an offence constituted by that act instead of an offence against sub-section (1)."
If the prosecution cannot give particulars sufficient to identify each of the three occasions relied on to constitute the charge, absent some special factor, the proper course will be to stay the proceedings on the s 47A charge.
The directions
The appellant provided this Court with a document setting out the relevant directions that he contended the trial judge should have given to the jury in this case. The proposed directions were comprehensive and lengthy and they included propensity warnings. In substance, however, the learned trial judge gave all of them, apart from the propensity warnings. In addition, his Honour directed the jurors that they had to consider each count separately, saying[11]:
"There are, as you well know, 18 different charges ...
The [appellant] is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged. It may be that the same logic applies to some of them or all of them, but it would be quite wrong to say that simply because you found the accused man guilty or not guilty on one count, he must be guilty or not guilty as the case may be, of another.
Each count must be considered by you separately, in the light of the evidence that applies to it. You must ask yourselves as to each count separately, 'Am I satisfied beyond reasonable doubt by the evidence, that the accused is guilty of this crime?' If the answer to that question, is 'Yes', then you would find him guilty; if it is 'No', then of course you would find him not guilty."
[11]See KRM (1999) 105 A Crim R 437 at 443.
Propensity evidence
To evaluate the appellant's submissions, it is first necessary to understand when and why propensity evidence is admitted in a criminal trial. Only then can it be determined whether a propensity warning is needed because of the presence of a charge brought under s 47A and similar sections or because of the evidence led in the particular case.
For more than a century, the common law has insisted, with few exceptions, that proof of a criminal charge cannot rest, in whole or in part, on any inference to be drawn from "the character and tendencies of the accused"[12]. As a result, it has generally excluded evidence that shows that the accused has previous convictions, or is a person of bad character or has committed other crimes or misdemeanours. If the evidence does no more than reveal the criminal or discreditable propensities of the accused or show that he or she is the sort of person who is likely to have committed the crime charged, the common law requires the evidence to be excluded[13]. But propensity evidence may be admissible at common law, according to the prevailing view in this Court, if "the objective improbability of its having some innocent explanation is such that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged"[14]. Moreover, according to the prevailing view, in determining whether the evidence is admissible, "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"[15]. Only when there is no rational view of the evidence consistent with the innocence of the accused is propensity evidence admissible.
[12]Dawson v The Queen (1961) 106 CLR 1 at 16 per Dixon CJ.
[13]Pfennig v The Queen (1995) 182 CLR 461 at 480-481.
[14]Pfennig v The Queen (1995) 182 CLR 461 at 481-482.
[15]Pfennig v The Queen (1995) 182 CLR 461 at 483.
In Pfennig v The Queen[16], I pointed out that courts have regularly admitted evidence disclosing the criminal propensity or bad character of the accused even though it could not meet the "no rational view" standard laid down in Hoch v The Queen[17] and later confirmed by the joint judgment of Mason CJ, Deane and Dawson JJ in Pfennig[18].The clearest example is evidence of bad character led in rebuttal of a claim that the accused is a person of good character[19]. Other categories of evidence disclosing criminal conduct that have been admitted in criminal trials without satisfying the no rational view test include evidence showing an association with the crime scene[20] or the criminal venture[21] or possession of equipment which might have been used to commit the crime[22] or motive[23].
[16](1995) 182 CLR 461 at 516, 523-528.
[17](1988) 165 CLR 292 at 294-296.
[18](1995) 182 CLR 461 at 481.
[19]BRS v The Queen (1997) 191 CLR 275.
[20]R v O'Meally (No 2) [1953] VLR 30.
[21]Harriman v The Queen (1989) 167 CLR 590. However, two of the Justices, Dawson and Gaudron JJ, applied the no rational view test or its equivalent.
[22]Thompson and Wran v The Queen (1968) 117 CLR 313.
[23]cf R v Griffin (No 1) (1868) 1 QSCR 176.
But one of the best known examples of these categories of evidence is "relationship evidence" – evidence which explains the nature of the relationship between the accused and the complainant[24] and which often tends to show that the accused is guilty of the offence charged[25]. Thus, in O'Leary v The King[26], evidence was admitted that, on the day and early evening of the killing, the accused, the victim and others had taken part in a "drunken orgy" at a bush camp and that, during the drinking, the accused had assaulted or threatened to assault persons other than the victim. Although the evidence showed violent and criminal conduct on the part of the accused, this Court held that it was admissible. Dixon J said that "[w]ithout evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event"[27]. In holding that the evidence was admissible, Latham CJ, Dixon and Williams JJ said that it was admissible because it was "relevant"[28] or "logically probable"[29] or went "to show the probability"[30] that the accused was the killer. They did not require the evidence to be consistent with no rational view other than the guilt of
the accused. Similarly, in Wilson v The Queen[31], this Court held that statements made by the victim in the presence of the accused on two occasions were admissible although they indicated that the victim knew that the accused intended to kill her for her money. The evidence was admissible to show the mutual enmity between the parties and to negate the accused's explanation that the shooting of the victim was accidental. In R v Garner[32], where the accused was charged with assault, evidence of uncharged assaults extending over several months was admitted because "it was a connected series of events"[33].
[24]R v Bond [1906] 2 KB 389 at 401; Wilson v The Queen (1970) 123 CLR 334 at 338-339, 344.
[25]R v Ball [1911] AC 47 at 71; O'Leary v The King (1946) 73 CLR 566 at 574, 575, 577-578, 582.
[26](1946) 73 CLR 566.
[27](1946) 73 CLR 566 at 577.
[28](1946) 73 CLR 566 at 577 per Dixon J.
[29](1946) 73 CLR 566 at 582 per Williams J.
[30](1946) 73 CLR 566 at 575 per Latham CJ.
[31](1970) 123 CLR 334.
[32](1963) 81 WN (Pt 1) (NSW) 120.
[33](1963) 81 WN (Pt 1) (NSW) 120 at 123.
In cases concerning sexual offences, evidence of uncharged acts between the accused and the complainant has long been admitted where it tends to explain the relationship of the parties or makes it more probable that the charged acts occurred[34]. Thus, evidence of uncharged acts may explain why, on the occasion or occasions charged, the complainant did not rebuff the accused or showed no distress or resentment. It may also tend to prove that the accused had an unnatural passion for the complainant and thus prove the motive for committing the crime charged[35].
[34]R v Ball [1911] AC 47; R v Gellin (1913) 13 SR (NSW) 271; R v Etherington (1982) 32 SASR 230; B v The Queen (1992) 175 CLR 599 at 601-602, 608, 610, 618.
[35]B v The Queen (1992) 175 CLR 599 at 610.
No doubt the admission of these various categories of evidence was facilitated by the fact that, until recently, courts admitted evidence that revealed the criminal character of the accused if the evidence was relevant to the charge "for some reason other than that he [or she] has committed crimes in the past or has a criminal disposition"[36]. Subject to exercise of the ordinary discretion to reject evidence in a criminal trial where the prejudice likely to result from the evidence outweighs the probative value of the evidence[37], evidence relevant to an issue for a reason other than proof of the accused's propensity or criminal conduct was admitted almost as of course. But in Hoch[38], this Court departed from that view of the law, a view that can be traced back to Makin v Attorney-General for New South Wales[39].
[36]Markby v The Queen (1978) 140 CLR 108 at 116.
[37]Noor Mohamed v The King [1949] AC 182 at 192-193, 195.
[38](1988) 165 CLR 292 at 294-296.
[39][1894] AC 57.
Since Hoch, the "for some reason other than" test no longer states the common law of Australia[40]. Because that is so, an important question still to be resolved by this Court is whether the "no rational view" test of admissibility applies to all evidence revealing criminal or discreditable conduct or only to evidence tendered to prove propensity and to evidence proving similar facts. A passage in the judgment of Mason CJ, Deane and Dawson JJ in Pfennig[41] is capable of being read as meaning that only similar fact evidence or evidence tendered to prove propensity must meet the "no rational view" test. It is possible to read this passage as meaning that evidence of "past criminal conduct" that is otherwise relevant but incidentally reveals propensity is not governed by such a stringent test. But the matter is far from clear.
[40]Pfennig v The Queen (1995) 182 CLR 461 at 481, 485.
[41](1995) 182 CLR 461 at 483-484.
The judgment of Gaudron J in Gipp v The Queen[42] also appears to accept that the "no rational view" test does not apply when evidence, disclosing bad character, is not tendered as similar fact or propensity evidence but is tendered to prove a subsidiary issue. In BRS[43], on the other hand, her Honour effectively applied the "no rational view" test in determining the admissibility of evidence tendered to corroborate the complainant's evidence that the accused had used a towel and KY jelly when engaged in sexual activity with the complainant. The corroborating evidence revealed discreditable or criminal conduct on the part of the accused, but it was not tendered as propensity or similar fact evidence. However, her Honour appears to have taken the view that the corroborating evidence in BRS could not be distinguished from the similar fact evidence tendered in R v Boardman[44] as corroboration and went to the issue of the accused's guilt. For that reason, her Honour appears to have concluded that its admissibility depended upon satisfaction of the "no rational view" test.
[42](1998) 194 CLR 106 at 112-113 [10]-[11].
[43]BRS v The Queen (1997) 191 CLR 275 at 298-302.
[44][1975] AC 421.
The reasoning of the majority Justices in Gipp[45] has also thrown doubt as to whether evidence of uncharged sexual acts is admissible to prove the nature of the relationship between the accused and the complainant. Gaudron J said that general evidence of sexual abuse on occasions other than those charged was not admissible to prove the relationship between the complainant and the accused or generally. Her Honour said that it "does not have that special probative value which renders evidence admissible as 'similar fact' or 'propensity' evidence"[46]. Nor in that case did it have any feature "that made it directly relevant to the question whether the appellant was guilty of the offences charged"[47]. Her Honour accepted that evidence of sexual abuse on other occasions may be admissible to explain lack of surprise or failure to complain, but only if the defence makes either matter an issue in the case[48].
[45](1998) 194 CLR 106.
[46](1998) 194 CLR 106 at 112 [11].
[47](1998) 194 CLR 106 at 112 [11].
[48](1998) 194 CLR 106 at 113 [12].
In Gipp, Kirby J said that evidence "of this kind is only admissible if its probative value outweighs its prejudicial effect"[49]. It is not clear whether in stating this proposition his Honour was applying the "no rational view" test of admissibility or the principles applied before the decision in Hoch. Thus, to support the proposition, his Honour cited the dissenting judgment of Dawson and Gaudron JJ in B v The Queen[50] which applied the "no rational view" test. On the other hand, his Honour cited both Gibbs CJ and Dawson J in Sutton v The Queen[51] to support the proposition. The judgment of Dawson J supports it. But in Sutton and in other cases Gibbs CJ applied the pre-Hoch principles which often produce results different from that when the "no rational view" test is applied. Kirby J also cited two passages in Harriman v The Queen[52] to support the proposition. But both passages are in line with the pre-Hoch law. Furthermore, when his Honour came to apply the law, he made no reference to the "no rational view" test, merely saying that "it is doubtful that the probative value of the evidence of the complainant concerning alleged events outside the offences charged outweighed the substantial prejudicial effect of such evidence"[53]. This seems to indicate that his Honour was simply applying the ordinary common law principles concerning the admissibility of evidence in a criminal trial.
[49](1998) 194 CLR 106 at 156 [141].
[50](1992) 175 CLR 599 at 618.
[51](1984) 152 CLR 528 at 534, 565.
[52](1989) 167 CLR 590 at 594-595 and 609-610.
[53](1998) 194 CLR 106 at 157 [142].
In Gipp, Callinan J, the other member of the majority, said that the evidence in that case was admissible only as propensity evidence, but did not discuss the test to be applied in admitting it[54]. However, his Honour rejected the proposition formulated by Deane J in B v The Queen[55] that general evidence of sexual conduct on other occasions could be led as "'part of the essential background' against which the other evidence is to be evaluated"[56]. Callinan J said[57]:
"If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such."
[54](1998) 194 CLR 106 at 168-169 [182]-[183].
[55](1992) 175 CLR 599 at 610.
[56](1998) 194 CLR 106 at 168 [181].
[57](1998) 194 CLR 106 at 168-169 [182].
By reason of the divided reasoning of the majority in Gipp, it cannot yet be said that evidence of uncharged acts of sexual conduct is no longer admissible to prove the relationship between the parties. Until this Court decides to the contrary, courts in this country should treat evidence of uncharged sexual conduct as admissible to explain the nature of the relationship between the complainant and the accused, just as they have done for the best part of a century. But that said, trial judges will sometimes, perhaps often, need to warn juries of the limited use that can be made of such evidence and will have to give a propensity warning concerning it[58].
[58]T (1996) 86 A Crim R 293 at 299.
Multiplicity of counts
What then is the position when the prosecution charges the accused with a number of sexual offences in the one presentment? If propensity evidence on each count is admissible in respect of the other counts in the presentment, a propensity warning could not be given except in some very limited way. But what is the position if the evidence in respect of each count is not admissible in respect of any other count? Must the trial judge give a propensity warning?
Hitherto, common law courts have accepted that a propensity warning is not required merely because a presentment contains a multiplicity of counts involving similar offences[59]. No propensity warning is required, for example, because the accused is charged with several counts of housebreaking or stealing or murder or sexual offences. Counsel for the appellant accepted that, if the presentment in this trial had not contained count 18, the appellant had no right to a propensity warning.
[59]R v J (No 2) [1998] 3 VR 602 at 638-643 per Callaway JA.
Directions concerning the dangers or the use that can be made of particular categories of evidence are the product of the collective experience or assumptions of the Anglo-Australian judiciary that, without these directions, miscarriages of justice are likely to occur. Directions concerning identification evidence, confessions made in police custody, prisoner-informer evidence and accomplice evidence, for example, are the product of judicial experience that, unless carefully scrutinised, evidence falling within these categories may lead to miscarriages of justice. Consequently, where over a long period courts have refrained from insisting that a class of evidence should always attract a direction, it is a reasonable inference that the experience of the judiciary is that universal directions or warnings concerning that evidence are not required.
It seems a reasonable conclusion, therefore, that the experience of the judiciary negates the need for a propensity warning merely because an accused person is charged on a presentment with a number of counts containing the same or similar offences against the same victim and that is so whatever the nature of the charges.
It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it (a "separate consideration warning"). The universal giving of a separate consideration warning and the omission of a universal propensity warning indicates that the giving of a separate consideration warning is ordinarily sufficient to avoid miscarriages of justice in cases such as the present. This indication is confirmed by the many cases where juries acquit accused persons of some charges and convict them of others where the presentment contains multiple counts involving the same or similar offences. Indeed, so freely do juries acquit of some charges and convict of others on presentments with multiple counts that appellate courts often hear arguments that there is such an inconsistency in the verdicts that the convictions are unsafe and must be set aside[60].
[60]cf Jones v The Queen (1997) 191 CLR 439.
Thus, although the evidence on one count may show a propensity to commit crime – even crime of the kind the subject of the other charges – the experience of the judiciary is that ordinarily juries do not use propensity reasoning to convict on other counts unless instructed that they can do so. To give the warning when it is not needed may divert the jury from its proper task. The more directions and warnings juries are given the more likely it is that they will forget or misinterpret some directions or warnings. Further, to require that a propensity warning always be given may sometimes be prejudicial to an accused person because it might distract a jury from doing what the trial judge told them to do here, to focus upon the evidence relevant to each charge. It may even suggest the very train of reasoning that a propensity warning is designed to overcome and make it difficult for the jurors, try as they might, to remain uninfluenced by the forbidden chain of reasoning.
In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or counts in the presentment. If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or counts unless, of course, the evidence is admissible in respect of that count or counts. An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts[61]. Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice[62]. But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually, because a separate trial is not sought[63]. If that occurs, a propensity warning will almost certainly be required.
[61]T (1996) 86 A Crim R 293.
[62]Sutton v The Queen (1984) 152 CLR 528 at 531, 541-542; De Jesus v The Queen (1986) 61 ALJR 1 at 3, 7, 8; 68 ALR 1 at 4-5, 12, 13.
[63]See, for example, T (1996) 86 A Crim R 293.
In most cases, however, the need for a propensity warning arises from evidence concerned with subsidiary issues rather than the existence of a multiplicity of counts involving the same or similar offences or by reason of the admission of similar fact or propensity evidence in respect of some but not all counts. If evidence tendered to prove a subsidiary issue (including the relationship between the parties) reveals the criminal or discreditable conduct of the accused, the judge will often, but not always, have to give a propensity warning. In some cases, giving the warning may excite the very prejudice that it purports to eliminate. And if evidence has been admitted generally as propensity evidence, it is difficult to see how a propensity direction is ever required. In that class of case, the evidence is tendered to prove that the accused is the type of person who is likely to have committed the crime with which he or she is charged. To require a propensity direction would contradict the basis on which the propensity evidence is admitted. And that is so, whether the propensity evidence consists of uncharged acts or evidence supporting the charge in one count that is also relevant to charges in other counts in the presentment. Conversely, a propensity warning will be required if propensity evidence is admissible in respect of some but not all counts in the presentment and there is a risk of prejudice in respect of those other counts. Ordinarily, there should be a separate trial in respect of those counts. But in practice that does not always occur.
It is possible that, in some cases of similar fact evidence, as opposed to propensity evidence, a propensity warning or other warning may be required although the evidence is admissible in respect of all counts. In the true similar fact case, evidence is often admitted to prove that the accused has been associated with so many similar deaths, injuries or losses that it is highly improbable that there is any innocent explanation for the accused's involvement with the series of events. These cases depend on probability reasoning and not propensity reasoning, the propensity of the accused usually being established only by the verdict of guilty[64]. The risk of prejudice, therefore, is not from propensity reasoning but from the danger that "[c]ommon assumptions about improbability of sequences are often wrong"[65]. It may be necessary to warn the jury about too readily making such assumptions rather than giving a propensity warning. In other similar fact cases, the facts of one or more events in the series may be admitted or be the subject of a conviction or convictions. If the evidence is admissible only as true similar fact evidence – evidence which relies on probability reasoning – it may be necessary to give a propensity warning in respect of the facts or convictions admitted or proved.
[64]See my discussion of this class of case in Pfennig (1995) 182 CLR 461 at 530-531.
[65]Perry v The Queen (1982) 150 CLR 580 at 594.
The presence of a s 47A count does not always require a propensity warning
If, as counsel rightly conceded, a propensity warning would not have been required if counts 1 to 17 were the only counts in the presentment, can it make any difference that the presentment includes a count based on s 47A? I do not think that it can. The presence of the s 47A charge requires proof of three acts constituting offences. It is proof of those acts, and not the maintaining of the relationship, that constitutes the actus reus of the offence in s 47A[66]. If those acts had been charged as three separate counts, no propensity warning would be required either in respect of each of them or generally. It is true that, under s 47A, they can be proved with less specificity than if they were charged as separate offences. But when the jury has found each "act" described in s 47A(2) proved, the finding – "the conviction" – in respect of each act stands in no different position than convictions for the offences in the other counts. It is true that the offence enacted by s 47A is described as "maintain[ing] a sexual relationship with a child under the age of 16 ... ", but the substance of the offence is committing three or more offences of the kind specified in "this Subdivision or Subdivision (8A) or (8B)". If juries can be trusted not to use propensity reasoning in respect of the specific counts, it seems unlikely that they cannot be trusted not to use it because s 47A requires proof of three offences.
[66]KBT v The Queen (1997) 191 CLR 417.
I would hold, therefore, that the presence of s 47A in a presentment does not necessarily require a propensity warning. I would reject the appellant's first ground of appeal.
Nor do I think that the evidence and circumstances of this case required a propensity warning in respect of all counts. It would not have been inappropriate for the trial judge to have given a propensity warning in this case, if counsel for the appellant had asked for it. And it will often be right for a trial judge in a case of multiple sexual offences, including an offence under s 47A, to do so whether or not counsel seeks it. No universal rule should, or indeed may, be laid down in that regard. But no feature of the evidence in this case required propensity warnings of the kind that the appellant contends should have been given. In respect of one uncharged matter – requiring the complainant to parade in lingerie – the judge gave a propensity warning. But apart from the lingerie incident, nothing in the evidence suggested that this case should be regarded as an exception to the rule that a propensity warning is not required merely because a person is charged on presentment with a number of similar offences against the same victim.
The second ground of appeal must also fail.
I would dismiss the appeal.
GUMMOW AND CALLINAN JJ. The question which this appeal raises is whether a propensity direction should ordinarily be given in cases (including this one) in which a person is accused of maintaining an unlawful sexual relationship with a child under the age of sixteen, and of other sexual offences on the one presentment. In this case the charge of maintaining a sexual relationship was brought under s 47A of the Crimes Act 1958 (Vic) ("the Act"). Similar offences have been created by legislation in other jurisdictions[67].
[67]Crimes Act 1900 (ACT), s 92EA; Crimes Act 1900 (NSW), ss 66A-EA; Criminal Code (NT), s 131A; Criminal Code (Qld), s 229B; Criminal Law Consolidation Act 1935 (SA), s 74; Criminal Code (WA), s 321A. In Tasmania the offence relates to young people under 17 years: Criminal Code (Tas), s 125A.
Section 47A of the Act then relevantly provided:
"Sexual relationship with child under the age of 16
(1)A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married and who is under his or her care, supervision or authority is guilty of an indictable offence.
(2)To prove an offence under sub-section (1) it is necessary to prove -
(a)that the accused during a particular period (while the child was under the age of 16 and under his or her care, supervision or authority) did an act in relation to the child which would constitute an offence under a particular provision of this Subdivision or Subdivision (8A) or (8B); and
(b)that such an act also took place between the accused and the child on at least two other occasions during that period.
(3)It is not necessary to prove the dates or the exact circumstances of the alleged occasions."
Case History
The appellant and the complainant's mother were married when the complainant was two years old. The complainant addressed the appellant as "Dad". When the family was living on a farm and the complainant was eight years old the appellant penetrated the complainant's mouth and vagina with his penis. The complainant's mother confronted the appellant after her daughter had told her what had happened. The appellant at that time denied sexual misconduct of any kind.
The allegations in the presentment were of various acts of penile penetration or other sexual misconduct between each of June 1984 and February 1986 (counts 1 and 2), between March 1988 and December 1988 (counts 3, 4 and 5), between March 1990 and November 1990 (counts 6, 7 and 8), between March 1991 and October 1991 (counts 9 and 10), between August 1991 and October 1991 (counts 11 and 12), in November 1991 (counts 13 and 14), between September 1991 and 18 March 1992 (counts 15 and 16), between March 1991 and March 1992 (count 17), and of the maintenance of a sexual relationship between 5 August 1991 and 18 March 1992 (count 18), " … in that he introduced his penis into the vagina [of the complainant] … on at least [three] occasions during that period". Evidence of other and uncharged acts of unlawful sexual activity (including digital penetration) was given at the trial by the complainant.
In October 1992 the appellant confessed to his wife that he had been sexually molesting the complainant. He took an overdose of tablets and spent a night in hospital. Five months later he left home never to return. In 1995 the complainant's mother arranged for the complainant to make a statement to the police about the appellant's conduct.
The complainant's evidence included this exchange towards the end of her evidence in chief:
"[Complainant], towards the end of your evidence yesterday you were telling the jury that in the last six months before all sexual activity ceased there were occasions where sexual penetration and digital penetration took place and I think your words were 'on numerous occasions' or 'it was repetitious'? --- Yes
Do we take it from that, that it occurred on more than three occasions …? --- Yes.
… during that period? --- Yes.
And does that relate to the sexual penetration? ---Yes.
The penile penetration? --- Yes."
The appellant was tried in the County Court of Victoria. During the course of his summing up to the jury the trial judge said this with respect to the charge of maintaining a sexual relationship:
"The next element that the Crown must prove beyond reasonable doubt is this; that during the time span alleged, [the appellant] took part in an act of sexual penetration with [the complainant], in that he introduced, in the sense of put his penis, in the girl's vagina, on at least three occasions during the timespan alleged."
His Honour discussed the evidence on this count and drew attention to the fact that the case for the prosecution alleged penile, and not digital penetration over the relevant period. His Honour then said that the jury needed to be satisfied:
" … beyond reasonable doubt that on three or more unspecified occasions between the timespan alleged, at three or more unspecified places, an act of sexual penetration constituted by the accused putting his penis in the girl's vagina occurred."
In substance his Honour repeated himself by saying:
"Proof of three such acts of penile penetration - and you must all be satisfied that at least three such acts of sexual penetration occurred in the timespan alleged …"
His Honour enlarged upon this topic as follows:
"Even if you were satisfied beyond reasonable doubt that on three or more unspecified occasions between the timespan alleged, at three or more unspecified places, an act of sexual penetration constituted by the accused putting his penis in the girl's vagina occurred, that in itself is not enough to prove the offence. Proof of three such acts of penile penetration - and you must all be satisfied that at least three such acts of sexual penetration occurred in the timespan alleged - but additional elements have to be proved beyond reasonable doubt, before you could convict a person … of these incidents, of maintaining a sexual relationship. ...
What is alleged here is an offence of a continuing nature, not one that is committed at a specific place, at a specific time on a specific day. Therefore what has to be proved by the Crown is a course of conduct over the relevant period.
The first additional matter which must be proved beyond reasonable doubt is in the circumstances proved, and on the evidence you accept, [the appellant] can be said to have maintained a relationship with her during the timespan alleged in count 18, that is, what you are satisfied he did, amounts to maintaining a relationship. Now, 'relationship' is a position where one person holds with respect to another, on account of some social or other connection between them, and 'maintain' is to cause to continue, to carry on, or keep up. The Crown must therefore prove an offence of an ongoing nature, and it is a course of conduct.
Then the Crown of course has to establish beyond reasonable doubt that the relationship was a sexual relationship, that is a relationship that is characterised by or given a sexual character by the commission of unlawful sexual acts, namely in this case by the accused taking part in an act of sexual penetration by putting his penis in [the complainant's] vagina on at least three separate occasions during the timespan alleged by count 18 ...
The Crown must also go on and prove that throughout the time span alleged [the appellant] had a particular state of mind, namely that he intended that the unlawful sexual behaviour, which gives the relationship its sexual character, would be ongoing, that is would continue as a course of conduct. … "
His Honour was careful to direct the jury that each count should be considered separately:
"There are, as you well know, 18 different charges, or counts as they are technically called, against the accused, both on the - all on the one presentment as the formal document which is headed 'Particulars of Offence', and you have a copy of it - they are all on that one document called the presentment, and that is done for convenience, as it would obviously be highly inconvenient and absurdly expensive to hold a separate trial before a separate judge and jury on each of these counts.
However, you must not allow convenience to usurp justice. The accused man, [the appellant], is entitled, as is the Crown, to a separate consideration by you of each of the crimes charged. It may be that the same logic applies to some of them or all of them, but it would be quite wrong to say that simply because you found the accused man guilty or not guilty on one count, he must be guilty or not guilty as the case may be, of another.
Each count must be considered by you separately, in the light of the evidence that applies to it. You must ask yourselves as to each count separately, 'Am I satisfied beyond reasonable doubt by the evidence, that the accused is guilty of this crime?' If the answer to that question is, 'Yes', then you would find him guilty; if it is 'No', then of course you would find him not guilty."
The trial lasted seven days. No applications for any redirections were made on behalf of the appellant. He was convicted on all counts and sentenced to a term of imprisonment.
The appellant sought leave to appeal against his convictions to the Court of Appeal of the Supreme Court of Victoria (Phillips, Batt and Buchanan JJA)[68]. The grounds of appeal to the Court of Appeal were numerous. They included that the trial judge erred, in refusing to allow cross-examination of the complainant on prior inconsistent statements, in rejecting a tape-recording sought to be tendered on behalf of the appellant, in allowing the count of maintaining a sexual relationship to go to the jury, in failing to give a propensity direction to the jury with respect to the relationship between that last count and the other counts, and in his directions in various other respects.
[68]KRM (1999) 105 A Crim R 437.
Because the only grounds of appeal to this Court relate to the charge of maintaining a sexual relationship it is unnecessary to discuss the disposition by the Court of Appeal of the appellant's other grounds all of which were rejected.
Buchanan JA (with whom Phillips and Batt JJA agreed) was of the opinion that a propensity warning is not required simply because there are two or more counts on the one presentment against the same victim. A warning of that kind is only required if some other factor calls for it[69]: the question that was raised by this case was whether the nature of the evidence led to establish count 18 was a factor of itself alone which required the giving of a propensity warning. It was his Honour's opinion that in this case such a warning was not required. His view was that the evidence in support of the offence under s 47A of the Act (which came at the end of the complainant's evidence), was readily distinguishable from the evidence relating to the other counts. In this respect his Honour was referring to the evidence of the complainant that we have quoted.
[69](1999) 105 A Crim R 437 at 443.
Buchanan JA said that the jury were directed in clear terms that each count and the evidence relating to it had to be considered separately, and they were not to find the appellant guilty on one count because he was guilty of another count. Even though the evidence may have lacked particularity it was more than the generalised evidence that the appellant claimed it to be. It was, his Honour said, evidence of individual acts which were clearly distinct from the acts founding the other counts[70]. Accordingly, the appellant's appeal to the Court of Appeal on this ground failed also[71]. Indeed, in giving a separate direction on the need for proof beyond reasonable doubt of the maintenance of a sexual relationship as a matter distinct from the proof of three identical acts during the relevant period, the trial judge may have given, Buchanan JA said, a direction that was unduly favourable to the appellant[72].
[70](1999) 105 A Crim R 437 at 444.
[71](1999) 105 A Crim R 437 at 442.
[72](1999) 105 A Crim R 437 at 442.
The Appeal to this Court
As we have foreshadowed there are only two grounds of appeal to this Court:
"1.That the Victorian Court of Appeal erred in law in failing to hold that in every such case involving a presentment including a count pursuant to Section 47A Crimes Act 1958 (Vic) that there should have been a propensity direction.
2.That the Victorian Court of Appeal erred in law by holding that a propensity direction was not necessary in the particular circumstances in this case."
In Pfennig v The Queen[73] this Court (Mason CJ, Deane, Dawson, Toohey and McHugh JJ) discussed in detail the nature of propensity evidence, the rationale for its reception, and whether in that case the evidence in contention truly answered the description of propensity evidence. All members of the Court were of the opinion that the evidence tendered there was truly propensity evidence and that the trial judge's direction in respect of it was sufficient and appropriate, although there may have been some difference between the members of the Court (which it is unnecessary to resolve here) as to the way in which propensity evidence is to be identified and defined[74].
[73](1995) 182 CLR 461.
[74]See Pfennig v The Queen (1995) 182 CLR 461 at 487-488 per Mason CJ, Deane and Dawson JJ, 505-506 per Toohey J, 513-514, 520 per McHugh J.
There is no dispute as to the general form of a propensity direction when it is to be given, although quite clearly its details will, as the parties to this appeal recognise, vary from case to case. In this case the appellant ventured to submit in precise terms the form of the direction that he contended the trial judge should have given, despite that no request for a redirection of that or any other kind was made at the trial. That proposed form of direction, the paragraphs of which we will number, was as follows:
"(i) The next count on the presentment is that at Traralgon between 5 August 1991 and 18 March 1992 the accused man maintained a sexual relationship with [the complainant], a child under the age of 16 to whom he was not married and who was under his care, supervision or authority in that he took part in an act of sexual penetration with [the complainant] a person whom he knew to be his stepchild in that he introduced his penis into the vagina of [the complainant] and that such an act took place between the accused man and [the complainant] on at least two other occasions during that period.
(ii)In order to be satisfied beyond reasonable doubt of this offence you must be so satisfied of each of the elements which make up this offence. They are firstly that the accused man maintained a sexual relationship with [the complainant] during the relevant period. The Crown in order to satisfy you of this element rely upon the evidence of [the complainant] that during this time the accused man introduced his penis into the vagina of [the complainant]. The Crown do not have to prove the exact date or circumstances of this incident, but they do have to prove that this act occurred. In addition, in order to prove this element of maintaining a sexual relationship, the Crown must satisfy you that such an act (that is, that the accused introduced his penis into the vagina of [the complainant]) occurred on at least two other occasions during that period. So each of you must be satisfied that the act of penile penetration of the vagina occurred on one occasion and at least two further occasions during that period. Each of you must also be satisfied that, in respect of each occasion, it is the same act of penile penetration which has been proved beyond reasonable doubt.
(iii)It is most important in considering this element of this offence - that is, of maintaining a sexual relationship - to guard against reasoning which may be prejudicial to the accused. First, as I have said the Crown do not have to prove the specific dates and circumstances of the incidents which make up this offence. That places the accused at a particular disadvantage in meeting the charge levelled against him. The nature of the evidence given by the complainant was of a very general nature, and this makes it difficult for the accused man to test or contest that evidence. Second, the element of maintaining a sexual relationship is made out by proof of one act of penile penetration of the vagina and then two further acts of the same character. You may be satisfied that the first mentioned act took place. And then in considering whether a second or, as the case may be, a third act took place, there is a natural tendency to think that because you are satisfied as to the first act, that the accused man is the sort of person who has a propensity or disposition to commit the second or third acts. It is that reasoning which I warn you not to engage in. I direct you that merely because you find a single act occurred you should not reason that the accused is the type of person who might commit the other acts required to be proved. Evidence of other acts in this case has been introduced for the limited purpose of proving that there were acts of penile penetration of [the complainant's] vagina on at least two other occasions during the relevant period. The evidence concerning those other acts should be considered by you for this limited purpose only.
(iv)Third, in this case there has been generalised evidence given by the complainant of sexual misconduct by the accused. [The complainant] said that there were no specifics she could remember, that it was very repetitious - just the manner of him always inserting his penis inside me. This generalised evidence was given in the context of the complainant being unable to remember specific incidents. But you should not reason from this evidence that the accused was the type of person to commit any of the three acts which as a minimum must be proved to satisfy this offence. You cannot decide whether the accused is guilty of this offence or indeed any of the offences upon the presentment by regard to this generalised evidence.
(v)Finally, there is a special danger in this case which you must guard against which arises by virtue of the fact that the accused man is charged with 17 other offences of a sexual character against the same complainant and the time periods in respect of some of these offences and that alleged in Count 18 overlap. That danger is to reason that because you find the accused engaged in sexual conduct the subject of Count 18, he was the kind of person to have done so on the other occasions charged. Such a process of reasoning would be quite wrong. And I direct you not to engage in it. You must not use the evidence you have heard in relation to Count 18 in your evaluation of the evidence concerning the other counts on the presentment.
(vi) The other elements of this offence - that [the complainant] was a child under the age of 16 to whom the accused was not married and who was under his care, supervision or authority at the relevant time are not in dispute in this case." (emphasis added)
It is convenient to deal with the appellant's submission by reference to that suggested form of directions. Its terms may be compared with the directions that the trial judge gave, relevant parts of which we have quoted. There can be no question that the trial judge told the jury in the clearest language that they needed to be satisfied in respect of the charge under s 47A of the Act that during the relevant period the appellant on no fewer than three occasions introduced his penis into the complainant's vagina. He emphasised that it was important that it be proved that these three sexual acts had taken place during the period of the sexual relationship alleged. He did this four times in the course of his summing up. In short, everything for which the appellant contends in the first four paragraphs of his suggested summing up was in fact put by his Honour in appropriate language.
Separate questions may then arise about the sufficiency of the evidence which a complainant gives at trial to establish the commission of the three acts in question. There may well be cases where the evidence is so general and vague as not to be capable of persuading a jury beyond reasonable doubt that the accused committed the acts. But, unless the evidence is such that the trial judge could properly take the question of guilt away from the jury (as, for example, for want of proof of one of the acts constituting the offence) the sufficiency of the evidence is a matter for the jury. In the context of s 47A, which explicitly recognises that exact evidence may not be available, the fact that a complainant gives evidence which does nothing more than rehearse the elements alleged in the indictment is not reason enough to withdraw the matter from the jury.