R v LBE

This case was an unsuccessful appeal against conviction in relation to the admissibility and use of tendency and coincidence evidence in a trial involving multiple child complainants alleging sexual offences against a single accused. The first ground of appeal was that a separate trial direction ought to have been made in relation to one of the complainants. The appellant also contended that to the extent the prosecutor relied on coincidence reasoning, this was outside of the limited basis in which the evidence of each complainant was ruled to be cross-admissible by the learned pre-trial judge. The Court rejected both grounds of appeal. There was no error in the application of the test recognised in Pfenning v The Queen [1995] HCA 7; (1995) 182 CLR 461. The evidence of the child complainants was cross-admissible on both a tendency and coincidence basis. The appeal was dismissed.

Bowskill CJ and Morrison and Bond JJA

9 April 2024

Background

The appellant was charged on a single indictment with 20 counts of sexual offences concerning five separate child complainants. [1]. The appellant applied for a separate trial direction with respect to each child complainant. [1]. The learned pre-trial judge declined to make a separate trial direction in relation to Counts 1 to 17 which concerned three separate child complainants: A, B and C. [1]. However, a separate trial direction was granted in relation to the remaining counts involving two other child complainants. [1]. In the trial concerning allegations relating to A, B and C, the jury returned verdicts of guilty in respect of nine sexual offences. [2]. The appellant appealed against his convictions on the basis that the learned pre-trial judge erred in declining to make a separate trial direction in relation to Counts 1 to 13 (the counts concerning A); and the learned trial judge erred in allowing the prosecutor to rely on coincidence reasoning in her address to the jury. [3]–[4], cf. [22], [41]–[42].

Whether the learned pre-trial judge erred in declining to make a separate trial direction

The Court observed that this ground of appeal turned on whether the learned pre-trial judge erred in concluding that the evidence of A, B and C was cross-admissible, and accordingly, erred in declining to make a separate trial direction in respect of those counts. [10], [22]. The learned pre-trial judge considered that the evidence of A, B and C was cross-admissible as tendency evidence going to an “unusual sexual interest … that he was prepared to act on, although the particular act might vary according to opportunity or nature of the relationship.” [23]–[24]. The evidence was obviously relevant on this basis, however, the key question was whether it was sufficiently probative to meet the high threshold required for reception of this kind of evidence as set out in Pfenning v The Queen [1995] HCA 7; (1995) 182 CLR 461. [25]. The Court identified a number of features of the evidence which were the same or similar including e.g. the nature ad location of the offending, the age of the child complainants and his relationship to each of the child complainants: see [28].

The Court considered the “four questions” identified in R v McNeish [2019] QCA 191; (2019) 2 QR 355: see [19]–[21]. Although these four questions are sometimes referred to as a “test of admissibility”, this is not correct. [20]. As Brown J (with whom Morrison JA agreed) in R v YF [2023] QCA 111, the test for admissibility of tendency evidence remains that confirmed by the majority in Pfenning. [20]. The Court observed that the discussion in McNeish was better regarded as an approach to judicial methodology which may assist in the application of the test in Pfenning in some cases. [21]. The first and third questions identify the purpose of the tender, namely, the purported relevance of the tendency evidence. [21]. The second and fourth questions, which are aimed at assisting the evaluation of the probative force of the tendency evidence, should not be treated as a sufficient statement of what is required when evaluating the probative force of the evidence tendered for the identified purpose. [21].

The Court held that there was no reason to conclude that when the tendency evidence was considered with the other evidence and on the assumptions required there would remain a reasonable view consistent with the innocence of the accused. [26]–[28]. The appellant had contended that the conduct alleged by A was of such a different character to that alleged by B and C that it destroyed any underlying unity between the relevant counts. [29]. However, this was rejected for a number of reasons: see [30]–[40]. One reason was that the Court considered the significant probative effect of the tendency evidence was not diminished on the basis that the appellant engaged in a variety of different acts. [33]. The probative value was the appellant’s tendency to act in an unusual way i.e. sexually in respect of child complainants in his care, his house and in his bed. [33]. The Court explained:

“The probative force of the evidence was principally in its sufficiency to establish that the appellant had a sexual interest in boys of the nature of that found by the [learned pre-trial] judge and was prepared to act on it. There was also a strong degree of similarity, or underlying unity, between the circumstances of offending against each complainant. Such differences as existed between each complainant’s accounts of the offending against them, did not diminish the strength of either of those considerations.” [39].

Whether the learned trial judge erred in allowing the prosecutor to rely on coincidence reasoning

The Court understood the second ground of appeal as being, in effect, that the pre-trial judge’s ruling only permitted cross-admissibility on a tendency basis, not a coincidence basis. [42]. To the extent the prosecution relied on this evidence on a coincidence basis, this was said to be unfair and the learned trial judge should have given appropriate directions to remedy this. [41]–[42]. This ground of appeal was rejected for a number of reasons: see [49]–[66]. An analysis of the record showed that the relevant evidence was not admitted on a limited basis and the prosecutor had clearly foreshadowed her intention to use the evidence on a coincidence basis. [50]–[52]. That defence counsel knew of the prosecutor’s intention could be inferred from the record: no objection had been made after the prosecutor’s address, nor was an application made to redirect the jury. [56]. The absence of any objection or application for a redirection could have had a legitimate forensic justification. [63]–[64].

Disposition

The appeal was dismissed. [67].

D Kerr