R v VO[2024] QCA 96

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with Bond JA.
2. [2]
   BOND JA:  Between 24 and 30 May 2022, the appellant faced a jury trial in the District Court in respect of an 18-count indictment alleging sexual offences against his stepdaughter MAM and his biological daughter KLB.
3. [3]
   The respondent accepted the accuracy of the appellant’s summary of the critical evidence at trial:

“6. [MAM] was the complainant for counts one and two. [KLB] was the complainant for the remaining counts. The complainants are half-sisters. The appellant is the biological father of [KLB]. He was the step-father of [MAM].

7. In broad compass, the Crown case involved allegations of sexual offending against both complainants. [MAM] said that the appellant offended against her in the late 1980’s when the family was living at […]. On an occasion, she says that the appellant made her touch his penis (count 1). She said in general terms that the appellant continued to offend against her when they lived at […] and she was between nine and 13 years of age in the early 1990’s. He would remove her underwear and rub her vagina, touch her breasts, digitally penetrate her vagina, and make her touch his penis and perform oral sex (count 2).

8. When cross-examined, it was suggested that [MAM] had spoken to [KLB] about the allegations before going to police, which was denied, although she acknowledged that there had been some conversations. It was suggested in various ways that the offending never occurred. It was suggested that she embellished her account to portray the appellant in a negative light. A series of inconsistencies between [MAM’s] evidence and her police statement were identified.

9. [KLB] said that the offending began when she turned 14 years old and continued until shortly before her 18th birthday. The appellant had sexual intercourse with her on a number of occasions when they lived at […] (count 3). She remembered a specific occasion on which the appellant had sexual intercourse with her (count 6). On another occasion, the appellant had sexual intercourse with her twice during a truck trip (count 7 and count 8). He had sexual intercourse with her around her 15th birthday (count 9). A short time later he made her perform oral sex on him (count 10). He had sexual intercourse with her around her 16th birthday (count 11). He digitally penetrated her anus and had sexual intercourse with her on another occasion (count 12 and count 13). Shortly before a family trip to […], he had sexual intercourse with her (count 14). He did the same during the […] trip (count 15). Shortly before her 18th birthday he had sexual intercourse with her (count 17).

10. When cross-examined, it was suggested that [KLB] had lied about all of these events, which she denied. It was suggested that she was interested in a financial payout, which she denied. Some inconsistencies were explored in between various statements she had made. She agreed that she had spoken to [MAM] about the evidence that she was going to give in court, although she denied giving her much detail. It was suggested that the only inappropriate contact that had occurred was a playful touch to the nipple for which the appellant apologised, which she denied.

11. When police spoke to the appellant, he admitted to being drunk and grabbing [KLB] by the nipple on an occasion. He described his actions as “tomfoolery”, but denied raping the complainants, and clarified that he denied any sexual intercourse or other sexual contact with [KLB]. The appellant did not give evidence.

12. The appellant called [his wife and another person] to give evidence, but it is not necessary to summarise that evidence in these proceedings.”

4. [4]
   The appellant was convicted of both counts he faced in respect of MAM, those offences having occurred between 31 December 1984 and 10 June 1993.  The appellant was also convicted of many of the counts which he faced in respect of KLB, those offences having occurred between 16 April 2000 and 17 April 2004.  The following table sets out the nature of the charges, and the verdicts which were obtained:

5. [5]
   The appellant was sentenced to 10 years imprisonment in relation to count 3 and lesser concurrent sentences in relation to the other counts of which he had been convicted.  An automatic serious violent offence declaration applied to the head sentence.
6. [6]
   The appellant filed a notice of appeal against conviction on the grounds that the guilty verdicts were unsafe and not supported by the evidence.  He also sought leave to appeal against his sentence on the ground that the sentence was manifestly excessive.  He subsequently abandoned his application for leave to appeal against his sentence and abandoned the stated ground for his appeal against conviction.  With the leave of the Court, he advanced his appeal against conviction on these three grounds:

   1. The trial judge erred in making a pretrial ruling to allow the admission of evidence said to demonstrate a propensity to engage in sexual activity with a female child in the appellant’s care.
   2. It was an error to make a pretrial ruling refusing to order that counts one and two be tried separately from the other counts.
   3. The directions to the jury about the evidence said to demonstrate a propensity to engage in sexual activity with a female child in the appellant’s care were deficient in that the trial judge should have directed the jury that they must be satisfied that there was no real risk the evidence was untrue by reason of concoction between the complainants before they could use the evidence in combination.
7. [7]
   The first two grounds may conveniently be dealt with together.

Admissibility of propensity evidence: the first and second grounds of appeal

8. [8]
   The appellant made a pre-trial application to Lynch KC DCJ which sought separate trials in relation to each complainant.  He argued that the evidence of each complainant in relation to the alleged offending against her was not cross-admissible in relation to the offending alleged against the other complainant because it should have been excluded as inadmissible similar fact evidence.
9. [9]
   Lynch KC DCJ considered the Crown case as it then appeared.  After a discussion of relevant High Court authority, including Pfennig v The Queen^[1], his Honour then had regard to the four-stage analysis approved by this Court in R v McNeish.^[2]  His Honour reasoned as follows:

   1. First, the factual issue that the Crown sought to prove by the evidence was that the defendant had the tendency or propensity to engage in sexual activity with a female child in his care.
   2. Second, having reviewed the proposed evidence of each of the complainants, he found that it was capable of demonstrating that the defendant, over the period alleged by each of them, had demonstrated a tendency or propensity to engage in sexual activity with a child in his care.
   3. Third, he then considered whether the evidence of the uncharged acts^[3] if accepted, contained some feature which linked the doing of the uncharged acts with the charged offence by reference to a particular issue in the case.  He answered that question in the affirmative, reasoning that, when considering the specific allegations of MAM, a jury accepting the allegations of KLB might conclude that it was more likely the allegations of MAM were truthful having been satisfied that the defendant had demonstrated the relevant propensity, and vice versa.
   4. Fourth, he considered whether the probative force of the evidence, upon the assumption that the jury accepted it, was sufficient to overcome its prejudicial effect.  He noted that the relevant prejudicial effect was the use of the evidence by the jury for an impermissible purpose.  He answered that question in the affirmative, concluding that use for an impermissible purpose could be sufficiently addressed in directions to the jury.
   5. He concluded that the evidence was cross-admissible because he was satisfied that there was no rational view of it consistent with innocence.  The evidence of MAM was admissible as circumstantial evidence in proof of the specific charges relating to KLB and vice versa.  The consequence was that there was no basis to order severance of the indictment as sought.
10. [10]
    In this Court the appellant accepted that the admissibility argument was a foundational issue when it came to cross-admissibility between the allegations of the two complainants, and therefore, joinder.  He submitted that the evidence lacked the probative force necessary to allow for its admission.  He submitted that the overwhelming prejudicial effect of the evidence was obvious.  It should have been excluded.  It followed that the application for separate trials should have been allowed.  He did not seek to support the second ground of appeal on any other basis than the alleged error in relation to the admissibility of propensity evidence.
11. [11]
    The resolution of these grounds of appeal is to be found in the proper application of the Pfennig test of admissibility, recently re-examined in detail in R v LBE^[4].  The judgment of the Court explained that the Pfennig test “… has two aspects: the impugned evidence must be relevant and it must have sufficient probative force that when it is considered along with the other evidence, there remains no reasonable view that is consistent with the innocence of the accused.”^[5]
12. [12]
    On the present appeal, the appellant’s submission that the evidence lacked sufficient probative force means that it is the application of the second aspect of the test which is in issue.  In LBE, the Court explained of that evaluative judgment (footnotes in original):

“… the impugned evidence must have sufficient probative force that when it is considered along with the other evidence, there remains no reasonable view that is consistent with the innocence of the accused.^[6]   Unless this evaluation can be made, the evidence must be excluded.  However, these important further observations must be made:

3. (a)
   This evaluative assessment of the probative force of the impugned evidence must not be of the impugned evidence, standing alone.  Rather the impugned evidence must be assessed in the context of the prosecution case on the charges for which it is sought to be tendered and on the assumptions that (1) the prosecution case (as revealed in evidence already given at trial or in the depositions of witnesses later to be called) may be accepted by the jury and (2) the impugned evidence would be accepted as true.^[7]

3. (b)
   This requirement was further explained by Hodgson JA in R v WRC^[8] in terms which have been approved in the High Court and often cited in this Court:^[9]

“Plainly, [the discussion in Pfennig at (1995) 182 CLR 461, at 482-483 of propensity evidence being regarded as a class of circumstantial evidence the admissibility of which is governed by its ability to exclude any rational view of the evidence consistent with the innocence of the accused] does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd (1990) 170 CLR 573; 51 A Crim R 181; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence.

On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of the propensity evidence.

In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.”^[10]

13. [13]
    In LBE, the Court also considered the utility to the application of the Pfennig test of the four-stage analysis approved by this Court in R v McNeish and observed (bold and footnotes in original):

“Although the four questions posed in R v McNeish are sometimes said to amount to a test of admissibility, they should not be so regarded.  As Brown J (with whom Morrison JA agreed) observed in R v YF after having discussed R v McNeish, the test for admissibility remains that confirmed by the majority in Pfennig.^[11]

The discussion in the majority judgment in R v McNeish is better regarded as a discussion of judicial methodology which may assist in the application of the Pfennig test in some cases.  The first and third of the four questions are aimed at ensuring a rigorous identification and consideration of the purpose of the tender, namely of the purported relevance of the impugned evidence.  The second and fourth questions are the questions aimed at the requisite evaluation of the probative force of the evidence tendered for the identified purpose.  Those questions should not, however, be treated as a sufficient statement of what is required in that respect.  Pfennig itself regarded the issue posited in the fourth question as of “little assistance unless it is understood that the evidence sought to be admitted is circumstantial and as such raises the objective improbability of some event having occurred other than that asserted by the prosecution; in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused.”^[12]  The test to be applied remains that articulated by the High Court in Pfennig, which we have endeavoured to articulate above.”^[13]

14. [14]
    The analysis made by Lynch KC DCJ followed the judicial methodology employed in R v McNeish.  The evidence in issue was obviously relevant on the basis his Honour identified, namely that it demonstrated that the appellant demonstrated a tendency or propensity to engage in sexual activity with a child in his care.  And it is evident from the way in which his Honour addressed the four questions posed by R v McNeish that he evaluated the probative force of the impugned evidence in the context of the prosecution case and on the assumptions that (1) the prosecution case might be accepted by the jury, and (2) the impugned evidence would be accepted as true.  In that context, his Honour concluded that when the impugned evidence was considered along with the other evidence, there would remain no reasonable view that was consistent with the innocence of the accused.
15. [15]
    The appellant submitted, but I reject, that it might be thought that that the evidence established no real similarity at all, in a practical sense, beyond the general category of sexual offending against young girls in care.  That underestimates the impact of the impugned evidence when assessed by reference to the appropriate assumptions.
16. [16]
    MAM and KLB shared the same mother, with MAM being about 7 years older than KLB.  In the early 80’s, after MAM’s birth but before KLB’s birth, their mother formed a relationship with the appellant.  On the assumption that a jury accepted MAM’s evidence, the appellant maintained a sexual relationship with MAM between the ages of 9 to 14.  MAM left home when she was about 18 and KLB was 11 or 12.  A few years later the appellant commenced offending against KLB in a similar way to the offending against MAM, albeit the offending against KLB escalated to involve penile penetration of the vagina.  The differences in the offending do not matter when one evaluates its significance to the question of the proof and weight of the alleged tendency or propensity.  Viewed from the perspective of each complainant, and on the assumptions which must be made about the jury accepting the evidence, the propensity evidence was such that, when it was added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence.
17. [17]
    Lynch KC DCJ did not err when he concluded that the impugned evidence was relevantly cross-admissible.  The first and second grounds of appeal fail.

Adequacy of directions to the jury about the risk of concoction: the third ground of appeal

18. [18]
    The appellant’s submission was that there was a miscarriage of justice because the directions given to the jury in relation to the similar fact evidence were deficient in that the trial judge omitted the part of the Benchbook warning that jurors should scrutinize the evidence to guard against the risk of collusion.
19. [19]
    The reference was to the following part of the Benchbook directions in relation to similar fact evidence:

“However before you can use one complainant’s evidence in support of the truthfulness and reliability of another complainant, you need to be satisfied beyond reasonable doubt about the following things:

No collusion

First you must be satisfied that the evidence of each complainant is independent of each other.  By ‘satisfied that the evidence of each complainant is independent’, I mean that you must be satisfied that there is no real risk that the complainants have together concocted similar complaints.

The value of any combination, and likewise any ‘strength in numbers’, is completely worthless if there is any real risk that what the complainants said was falsely concocted by them.

I direct you that you cannot use the evidence of the complainants in combination unless you are satisfied that there is no real risk the evidence is untrue by reason of concoction.

You must be satisfied that there is no real risk of concoction: a real risk is one based on the evidence, not one that is fanciful or theoretical.

[refer to any evidence of concoction]

…”

20. [20]
    It is true that the trial judge did not address the risk of concoction by using the words of the Benchbook.  However, I am not persuaded that there was a miscarriage of justice for the following reasons.
21. [21]
    First, it was obvious that the credibility of both complainants was central to the jury decision.  Both were cross-examined at length and the falsity of their respective counts suggested to them, including by an examination of the extent to which each had spoken to the other about the matters the subject of their evidence.  Counsel for the appellant had suggested that the jury should conclude there had been collusion between the two complainants.  The summation was replete with directions that the jury had to be persuaded beyond reasonable doubt of the complainants’ evidence.
22. [22]
    Second, the trial judge did specifically advert to the submissions made concerning collusion in the following manner:

3. (a)
   After a discussion of the elements of the offences, the trial judge turned to a summary of MAM’s evidence and of the submissions made in respect of the evidence.  When addressing the defence submissions in relation to MAM’s evidence his Honour noted that the defence pointed to a number of matters which undermined her credibility and reliability, including that:

“The submission made was that there is some evidence here of collusion between the two complainants in determining what should be said in evidence but, in addition, it was submitted that you would conclude [MAM] was untruthful when she denied that she had warned [KLB] to be careful about particular evidence that she might have given and it was pointed out to you that [KLB’s] evidence was that that was something that was said to her by [MAM] and the submission that was made was that that shows that [MAM] was not being truthful.”

3. (b)
   The same point was made later when summarising the rival contentions:

“The Defence contend that there is evidence of collusion between [KLB] and [MAM], and [KLB] admitted as much, that she had been warned by [MAM] to be careful about details of her account because they might be contradicted. Again, the Defence say that undermines her credit and reliability.”

3. (c)
   In the context of addressing motive to lie directions, the trial judge noted:

“It was suggested to [MAM] she had colluded to some extent with [KLB] in giving evidence and their evidence was rehearsed or perhaps coached. [MAM] denied she had colluded with anyone, or that she had made any false claims. If you conclude a motive or motives for either to have lied has been made out, then no doubt that will be significant in your assessment of their credit or reliability.”

and then went on to advise the jury that it remained necessary for them to satisfy themselves that the complainants were truthful; that it was for the prosecution to satisfy them of the guilt of the defendant; and that they must not reason that because a defendant could not or does not provide an explanation why either might have lied, that adds in any way to the complainant's credibility or reliability.

3. (d)
   Finally, when the trial judge summarised the closing addresses, he again referred to the defendant’s submissions that –

3. (i)
   MAM had denied warning KLB to be careful about details of her account because they might be contradicted but the evidence from KLB showed that there had been collusion between them; and

3. (ii)
   There was other evidence which suggested that MAM and KLB must have “got their heads together”^[14].

23. [23]
    Third, the appellant made no complaint to this Court about the other aspects of the summing up in relation to the impugned evidence, acknowledging that, in essence, the trial judge had told the jury:

    1. This impugned body of evidence could only be used so far as it relates to the credibility and reliability of the complainants.
    2. That the jury would need to be satisfied that the events occurred beyond a reasonable doubt before using the evidence.
    3. That the jury would need to be satisfied that the evidence showed that the appellant had a sexual interest in female children under his care.
    4. The jury should take care not to reason that the appellant was a person of bad character and therefore more likely to offend.
    5. The evidence from each complainant could be used in this limited way so far as it related to their assessment of the other complainant.
24. [24]
    Fourth, the appellant was represented by experienced defence counsel and that counsel made no complaint at trial about the absence of the suggested warning, presumably because he saw no forensic advantage in having the issue specifically addressed yet again.
25. [25]
    In short, the jury had been told that they should not use the impugned evidence unless they were satisfied beyond reasonable that the events related by the evidence had in fact occurred.  The jury had been invited by defence counsel to reject the impugned evidence as untrue, amongst other reasons, because MAM and KLB had “got their heads together” and concocted evidence.  The judge reminded them of that invitation on a number of occasions.  Although the directions were not expressed in the same way as the Benchbook warning, when their full context is considered they must be taken to have made a sufficiently similar warning in substance.  The directions were sufficient to address the risk that the jury might take the impermissible course of using the impugned evidence to assist their assessment of the credibility and reliability of the complainants without being satisfied that there was no real risk the evidence was untrue by reason of concoction.
26. [26]
    In the particular context of this case the failure to give the direction in the specific manner for which the appellant contended was not an error.  But even if it could be so characterized, in my view it did not give rise to a miscarriage of justice because it could not have caused any prejudicial or practical injustice to the appellant in the sense discussed in the majority judgment in HCF v The Queen.^[15]  Accordingly, the third ground of appeal fails.

Conclusion

27. [27]
    The appeal must be dismissed.
28. [28]
    CROW J:  I agree with Bond JA.