Tendency and Coincidence Evidence in Victoria: Velkoski v The Queen Andrew Palmer Victorian Bar and Melbourne Law School 1. In Velkoski v The Queen [2014] VSCA 121 at [165] the Court of Appeal said that it might be of use to trial judges in this State if we formulate the principles that we think govern the operation of the tendency and coincidence rules in Victoria. This paper, based on an oral presentation made to the Judicial College of Victoria on 17 October 2014, seeks to further that aim by summarising the principles expounded in Velkoski, and examining a number of cases in which those principles have been applied, particularly multiple complainant sexual assault prosecutions. THE SCOPE OF THE TENDENCY AND COINCIDENCE RULES 2. Cases involving multiple complainants and uncharged acts will often require a court to apply the tendency and coincidence rules in Part 3.6 of the Evidence Act 2008 (the Act). The first question for the court to consider is whether the evidence falls within the scope of the exclusionary rules in ss 97 and 98: that is, is the evidence tendency or coincidence evidence (or both)? Like the hearsay rule, these rules depend on the way in which the evidence is being used. If used for a non tendency or non coincidence purpose the evidence does not have to meet the strict admissibility requirements that apply to tendency and coincidence evidence: see s 95 of the Act.
2 What is tendency evidence? 3. Tendency evidence is evidence that establishes that the accused has a tendency to act in a particular way or to have a particular state of mind, when the evidence is used to prove that the accused acted in accordance with that tendency on the occasion which is the subject of the charge. Tendency evidence is regulated by ss 97 and 101 of the Act. Tendency reasoning typically follows a pattern like this: a. Evidence that the accused has acted in a certain way on one or more occasions, leading to an inference that: b. The accused has a tendency to act in that way, leading to an inference that: c. The accused acted in accordance with that tendency on the occasion that is the subject of the charge. 4. The other conduct referred to in the first step could be: a. Something for which accused has been convicted; or b. Something being determined in the same trial; or c. Uncharged conduct. What is coincidence evidence? 5. Coincidence evidence is evidence of 2 or more events, when the evidence: a. Is being used to prove that a person did a particular act or had a particular state of mind; b. On the basis that, having regard to any similarities in the events or circumstances in which they occurred, it is improbable that the events occurred coincidentally. 6. Coincidence evidence is regulated by ss 98 and 101 of the Act. In order for the evidence to be coincidence evidence there must be some similarities between the events. 7. There are two common forms of coincidence evidence. The first relies on similarities in a pattern of otherwise ambiguous events to argue that it would be improbable for the
3 series of events to have occurred by accident or coincidence, so that they must instead be the result of (usually criminal) human action. This type of coincidence evidence is described in Velkoski at [174]. Well known cases involving this type of reasoning include Makin v Attorney General (NSW) [1894] AC 57 (the babies in the backyard), R v Smith (1915) 11 Cr App R 229 (the brides in the bath) and Perry v The Queen (1982) 150 CLR 580 (multiple cases of arsenic poisoning in a single family). In these cases, coincidence reasoning was used to prove that the events were in fact crimes; as a result no tendency on the part of the accused was established unless and until the jury was satisfied that the events were offences and that the accused committed them. Although highly memorable, these kinds of cases are relatively rare. 8. The second kind of coincidence reasoning relies on similarities in the accounts given by two or more witnesses, as described in Velkoski at [175]. With this kind of coincidence evidence the 2 or more related events are actually the making of the complaints, rather than the alleged offences. This kind of coincidence reasoning relies on the improbability of two or more people independently coming forward to make similar but false allegations about the same person. This leads to the conclusion that the witnesses must all be telling the truth. Well known cases dealing with this kind of reasoning include Boardman v DPP [1975] AC 421 and Hoch v The Queen (1988) 165 CLR 292. Dual relevance 9. In many cases the evidence could be used as either tendency or coincidence evidence (or as both). For example, in a case with multiple complainants, the evidence would be tendency evidence if it was said to be relevant on the basis of the following reasoning: a. The accused sexually assaulted complainant A, leading to an inference that: b. The accused has a tendency to sexually assault, leading to an inference that: c. The accused sexually assaulted complainants B and C. 10. If the jury was satisfied beyond reasonable doubt that the accused assaulted one of the complainants, it could use that conduct to make more probable the evidence of another
4 complainant in relation to a different charge. On the other hand, the evidence would be coincidence evidence if it was said to be relevant on the basis of reasoning such as this: a. A, B and C have all independently complained that the accused sexually assaulted them, such that: b. If the jury is satisfied beyond reasonable doubt that the complainants accounts have such similarities that they must all be telling the truth, then: c. The jury can use this as a basis for finding that the assaults did occur as alleged. 11. Requiring the jury to use both tendency and coincidence reasoning in relation to the same evidence is demanding. Many judges will therefore require the prosecutor to choose whether to put the evidence forward as tendency evidence or as coincidence evidence, and the prosecutor will presumably make that choice on the basis of whichever form of reasoning he or she believes to be the strongest in the circumstances of the particular case. Relationship/context evidence 12. The prosecution often also leads evidence of uncharged acts in relation to a complainant. This kind of evidence is usually described as relationship or context evidence, and is seen as falling outside the scope of the tendency and coincidence rules. In Murdoch [2013] VSCA 272 at [93], Priest JA argued that relationship evidence including context evidence should be seen for what it is. It is tendency evidence. The consequence of Priest JA s view would be that relationship or context evidence would only be admissible if it was able to meet the high threshold for admissibility imposed by ss 97 and 101 of the Act. 13. In Murdoch Redlich and Coghlan JJA at [12] declined to address the issue, firstly, on the basis that it had not been raised on the appeal; and secondly on the basis that it would involve departing from such a long line of authority that it would require a court constituted by five judges. In Velkoski at [127] the Court also thought that the views of Priest JA were difficult to reconcile with a number of this Court s own pronouncements
5 to the effect that a distinction should be drawn between, on the one hand, tendency and coincidence, and on the other, relationship and context. 14. For the time being, therefore, evidence admitted on the basis that it shows the relationship between the accused and the complaint, or that it provides context for the complainant s account of the accused s offending, is not subject to the rules in Part 3.6 of the Act. What if the defence does not object? 15. In New South Wales, the courts have said that the phrase is not admissible really means is not admissible over objection : see R v Reid [1999] NSWCCA 258 at [4] [5] and Gonzales v The Queen (2007) 178 A Crim R 232 at [22] [26]. This means that in New South Wales if the defence does not object, the evidence is admissible. 16. In Velkoski the point was not argued, so the court did not need to decide. However, the Court did indicate at [209] that where there is a deliberate decision not to object it would be hard to argue on appeal that the trial was unfair. Nevertheless the Court suggested at [221] that the trial judge may have a duty to intervene in situations where inadmissible evidence emerges (without objection) during the examination of a witness unless it is clear that this has been agreed to by both parties, and that it will not create the risk of an unfair trial. ADMISSIBILITY REQUIREMENTS Notice and probative value 17. The tendency and coincidence rules in ss 97 and 98 apply in both civil and criminal proceedings, and regardless of the party that is seeking to adduce the evidence. In order for tendency and coincidence evidence to be admissible, ss 97 and 98 require that: a. The party seeking to adduce the evidence give reasonable notice in writing to the other parties: ss 97(1)(a) and 98(1)(a); and
6 b. The evidence has significant probative value (either by itself or having regard to the other evidence): ss 97(1)(b) and 98(1)(b). 18. Section 101 imposes an additional requirement when the tendency evidence or coincidence evidence is about the accused, and is being adduced by the prosecution: the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the accused. Notice requirements 19. Regulation 7 of the Evidence Regulations 2009 prescribes what must be contained in a tendency or coincidence evidence notice. A tendency notice must state: a. The substance of the evidence that the party intends to adduce; and b. If the evidence consists of conduct, full particulars of the conduct including the names of each person who witnessed the conduct. 20. Similarly, a coincidence notice must state: a. The substance of the evidence of the 2 or more events that the party intends to adduce; and b. Full particulars of each event, including the names of each person who witnessed it. 21. In Velkoski at [22] the Court made the point that the notice must not conflate the tendency or coincidence evidence and conclusions to be drawn from it. In Velkoski, for example, the notice described the accused s tendencies in the following ways: that the accused had a sexual interest in young children attending the day care centre run by his wife that the accused was willing to act on that sexual interest by engaging in sexual acts with the complainants 22. The Court advised that the notice must be confined to the particular manner or circumstances in which the applicant has previously acted or his state of mind on
7 occasions other than that the subject of the charge ; and must not assert that the tendency is that the accused had a sexual interest in the complainants and that he acted upon his sexual interest by engaging in the sexual acts alleged by the complainants. This is the conclusion that the prosecution may hope the jury reaches, not the reasoning that they hope will lead to that conclusion. Probative value: tendency evidence 23. In Uniform Evidence Law in Victoria, Odgers set out a list of features relevant to the probative value of tendency evidence. The Court reproduced that list in Velkoski at [166]. The relevant features are: a. the number of occasions upon which the particular conduct occurred; b. the time gap between those occasions; c. the degree of similarity between the conduct on those occasions; d. the degree of similarity of the circumstances in which that conduct took place; e. whether the tendency evidence is disputed; and f. the issue to which the evidence is relevant. 24. In respect of the last of these features, the Court noted, at [167], that it has often been suggested that tendency evidence may have greater probative value in proving conduct than in identifying an offender. It is in the cases where tendency evidence is used to identify an offender, such as R v Straffen [1952] 2 QB 911, that the need for striking similarity or a distinctive modus operandi can most readily be understood. This is because in those cases the modus operandi of the offence is supposed to identify the accused as the perpetrator in the same way that the discovery of their fingerprints might. However, the distinctiveness required still depends on the amount of work that the evidence has to do. In Pfennig v The Queen (1995) 182 CLR 461, for example, the issue was also identity, but given that the accused had been interacting with the victim shortly before he disappeared, the tendency evidence had relatively little work to do, and proof of a distinctive modus operandi was unnecessary.
8 25. In Velkoski the Court was focussed primarily on the third and fourth factors above. The Court at [4] summarised its conclusions on the degree of similarity required with the statement that the evidence must possess sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct. In deciding whether this threshold has been reached, the Court at [171] declared that: it remains apposite and desirable to assess whether those features reveal underlying unity, a pattern of conduct, modus operandi, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the tendency evidence its relative strength. 26. However, at [169] the Court clarified that Neither tendency nor coincidence evidence requires proof, as a condition of admissibility, of striking similarity. 27. The Court did not include the relationship between offender and victim among the relevant features. The Court explained at [168] that: Save where all the tendency evidence and charged acts relate to the same victim, the circumstance will be most unusual in which the relationship between the offender and the victims could by itself be sufficient to amount to tendency evidence. The exception may be where the nature of the relationship between the offender and the victims is so entirely remarkable and out of the ordinary (in which case the evidence would also support coincidence reasoning). But in the not so uncommon situations of parent and child or teacher and pupil, some other features of similarity must be present. Commonality of relationship between offender and victim will not ordinarily be sufficient. Tendency to have a state of mind 28. The Court noted at [173(f)] that Crown tendency notices often rely on the accused s state of mind to cover the offender s interest in particular victims and his willingness to act upon that interest. This is not permissible, because such a state of mind discloses only rank propensity : It shows only that he is the kind of person who is disposed to and commits crimes of the type charged.
9 Probative value: coincidence evidence 29. The principles are largely the same, the Court said at [174], for coincidence evidence. In order to be admissible as coincidence evidence, the 2 or more related events therefore need to share some similarity, system, pattern, underlying unity, or relationship in purpose, circumstances and mode of conduct. In multiple complainant cases, the Court said at [176], the more such complainants there are the less need there will be for their evidence to be distinctive, still less, strikingly similar. Possibility of collusion/contamination 30. In multiple complainant cases, the Court said at [173(c)] that a finding that it is reasonably possible that there has been concoction, collusion, collaboration or contamination among the complainants, is enough to render them inadmissible as either tendency or coincidence evidence. The Court noted that there must be an evidential basis for such a conclusion: mere opportunity for it to have occurred is not enough. But once the issue has been raised by evidence, the Crown bears the onus of negating any such reasonable possibility. Use of case law 31. In Velkoski at [162] the Court confirmed that Part 3.6 effectively covers the field, and should be viewed as a code in relation to the admissibility of tendency and coincidence evidence. As a result, the common law principles and cases that previously applied are no longer binding. The same is true of the Victorian cases dealing with the previous statutory regime that applied in Victoria by virtue of s 398A of the Crimes Act 1958. 32. The Court also noted that the law regarding tendency and coincidence evidence appears to have developed along divergent paths in New South Wales and Victoria, with New South Wales courts effectively setting the bar too low. 33. In relation to previous decisions of the Victorian Court of Appeal, the Court noted at [34] that:
10 A review of the decisions in this Court shows that though there have been perceived differences in approach in a small number of cases, upon analysis those differences may be more apparent than real. As the following review shows, they are largely to be explained as differences arising from the application of established principle to the facts of the particular case. 34. Nevertheless, it is suggested that cases decided before Velkoski should be treated with some caution. 35. Finally, as the courts have repeatedly stated, each case turns on its own facts: there is always, therefore, a limitation to the amount of guidance that can obtained from a particular decision on the facts. With that caveat in mind, the final part of this paper will seek to draw some guidance from the way in which the principles have been applied to the facts in a number of Victorian and New South Wales cases. Joinder and severance 36. There is a presumption introduced by s 372 of the Crimes Act 1958 and now found in s 194 of the Criminal Procedure Act 2009 that all counts properly joined should be tried together. The presumption is not rebutted merely because evidence on one count is not admissible on another. 37. In GBF [2010] VSCA 135 there were two complainants, and some, but not all, of the charges were cross admissible. The Court noted the presumption but thought that the trial judge should have severed the counts, on the basis that it would have been too difficult for the jury to have complied with the directions about how the evidence could and could not be used. Jury directions 38. The Victorian Criminal Charge Book contains model charges for tendency and coincidence evidence, with the charges varying according to the nature of the evidence and how it is being used. All of the variations require a detailed charge that:
11 a. Identifies the evidence the prosecution relies on as tendency or coincidence evidence; b. Relates the evidence to the issues and other charges; and c. Explains how the evidence can and cannot be used. 39. In Velkoski the trial judge failed to follow the model charge, and the Court ordered a retrial largely on the basis that the directions were inadequate. EXAMPLES FROM THE RECENT CASE LAW 40. The remainder of the paper will examine some recent Victorian and New South Wales cases to see how the tests above have actually been applied in practice. CGL (2010) 24 VR 486 41. CGL was a multiple complainant case where the trial judge admitted the evidence as both tendency and coincidence evidence. accounts had the following features: There were four complainants, whose a. Complainants B and C: i. The accused lived with each of the complainants mothers; ii. Complainant B was aged between 13 and 18 at the time, and the allegations were of a long term sexual relationship involving sustained sexual abuse and sexual penetration; and iii. Complainant C, by contrast, was aged between 10 and 12 at the time of the alleged offence, which involved a single occasion when the accused prevailed on C to massage him while he masturbated; b. With Complainant A, the allegation was that: i. The accused rubbed her vaginal area on the outside of her clothes; and ii. The assault occurred in a private house, with only one other person present; and
12 c. With Complainant D, by contrast, the allegation was that: i. The accused rubbed her vaginal area under her clothing; and ii. The assault occurred during a public event, attended by many other young people. 42. The Court in CGL held the evidence to be inadmissible as either tendency or coincidence evidence, commenting at [39] that: Part of the difficulty lies, once again, with the degree of generality in the notices. When s 97(1) speaks of a tendency to act in a particular way, we hardly think that Parliament had in mind a tendency which would be expressed as generally as a tendency to act upon sexual attraction to young girls aged between eight and 13 years. PNJ (2010) 27 VR 146 43. In this case the trial judge had admitted as coincidence evidence the evidence of three teenage boys who alleged that the accused had assaulted them while they were detained in a youth training centre. The similarities in their accounts relied on by the prosecution were that: a. The assaults were by a person in authority over the victim (the accused was a supervisor at the centre); b. All the victims were of a similar age; c. All the victims were effectively captive ; and d. The assaults occurred in the bedroom of either the complainant or the accused. 44. The Court at [19] indicated that it was a mistake to treat as relevant features which were outside the accused s control and which merely reflected the setting in which the offending occurred, namely a youth training centre. In the Court s view this included: a. The age range of the victims; b. The locations where the assaults occurred; and c. The fact that the victims were captive.
13 45. In order to qualify as a relevant similarity, the Court at [20] said that there must be something distinctive about the way in which the accused allegedly took advantage of the setting or context. The decision was doubted by Nettle JA in RHB [2011] VSCA 295 at [17]. CW [2010] VSCA 288 46. This was a case involving three counts of arson. Fires had been deliberately lit at three different commercial premises in Rosebud within the space of four hours. The premises were Roberts Carpet Court, Rosebud Carpet and K & N Norris Real Estate. The fires shared the unremarkable similarity that each fire started at or near the entrance door to the premises. 47. However, the relationship between the accused and each of the victims revealed a more compelling pattern. The accused was a carpet layer who had hostile relationships with both Rosebud Carpet and Norris Real Estate. With the Roberts Carpet Court fire, evidence falsely implicating the accused s former apprentice (with whom the accused was also in a hostile relationship) was found at the scene and near the former apprentice s car. The accused s DNA was found on some of this evidence. 48. The Court at [16] quoted a passage from the judgment of Gibbs CJ in Perry (1982) 150 CLR 580 at 587 about the improbability that a series of poisonings would occur by coincidence in the circle of persons with whom the accused was associated. Adapted for the circumstances of CW, the passage might read:... where a number of fires have been lit, and the victims are all persons with whom the accused had had business dealings and was in current dispute, the evidence of the other fires may be admissible to support the inference that the accused was responsible for the fire in issue, because it would be contrary to ordinary experience that a series of deliberately lit fires would occur by coincidence in such a circle of persons. 49. This feature gave the events an underlying unity such that the Court in CW held that the three fires were admissible as coincidence evidence against the accused.
14 RHB [2011] VSCA 295 50. In 2011 the accused had pleaded guilty to three charges: a. Touching his daughter K on her vagina with fingers and penis when she was 6; b. Touching his daughter K on her vagina and breast when she was 12; and c. Touching his daughter B on her vagina and licking her vagina when she was 5. 51. He was then separately tried on a count alleging that he had touched his granddaughter s vagina when she was 10. The Crown relied on the accused s earlier convictions to prove tendencies: a. To act in a particular way, namely, indecently assault prepubescent and pubescent girls to whom he was related by touching them on the vagina; and b. To have a particular state of mind, namely, an inappropriate sexual interest in and/or attraction to prepubescent and pubescent girls to whom he was related and a preparedness to act upon that interest. 52. Nettle JA held at [123] that the evidence was admissible, on the basis that: it is a remarkable thing for a man to commit sexual acts against his female lineal descendants. It is still more remarkable when, in each case, the nature of the acts is similar if not identical, even if they are commonplace sexual acts. It is even more remarkable that in each case the acts were committed in the home while the victim was in the applicant s care, while other adults were close by and the risk of detection was significant. It follows that, if accepted, the evidence of the applicant s prior offending against his daughters would demonstrate that he had a tendency to be sexually attracted to his young female descendants and to act upon that attraction in similar ways at different times, when the victims were in his home under his care and thus vulnerable to his advances. As such, as the judge held, it would be capable of rationally affecting the assessment of the probability of the applicant having had a sexual interest in his granddaughter and giving effect to it by committing the offence alleged. 53. Given what the Court in Velkoski said about the need for sufficient features of similarity beyond the commonality of relationship between accused and victim (as discussed at paragraph 27 above), it is significant that Nettle JA did identify a number of
15 shared features beyond the fact that all of the victims were the accused s female lineal descendants. DR [2011] VSCA 440 54. In DR the accused was alleged to have committed incest against two step daughters. The Court of Appeal had said at [88] that: It does not seem to us that the sexual abuse of a child, step child or grand child by their parent, step parent or grandparent is such a common occurrence that it should be regarded as having limited probative value in relation to an allegation that the applicant has abused another child, step child or grandchild. We would therefore be inclined to hold that evidence that a person had committed sexual offences against a child, stepchild or grandchild has significant probative value as evidence of a tendency to offend against other children in the family. 55. The Court in Velkoski at [115] indicated that the dicta in this passage lowered the threshold too far, because the dicta suggested that incestuous behaviour is itself such an uncommon occurrence as to render evidence by more than one complainant admissible without any need for a distinctive pattern of offending to be shown, or any similarity in the background circumstances surrounding the offending. Doyle [2014] NSWCCA 4 56. In Doyle, there were five male complainants, four of whom the accused had befriended while he was the proprietor of a cinema. Offences had allegedly been committed during different periods ranging from 1980 until 2003; in a number of locations, including in the projection booth of the cinema, in the accused s unit, in his pool and in his car; and had involved a variety of acts, including intercourse, mutual masturbation, fondling, posing for photographs and watching pornography. 57. The trial judge admitted the evidence as proving the tendency of the accused to have sexual interest in young male employees, to engage in sexual activities with them and to use his position of authority to obtain access to his employees for that purpose. The Court in Velkoski at [152] suggested that in Victoria, given the differences in the conduct
16 and the time between offences, any appeal against that ruling would have had reasonable prospects of success. 58. One can speculate, however, whether such evidence might not have had a better chance of being admitted in Victoria if it were put forward as coincidence evidence rather than as tendency evidence. In Doyle the five complainants had, it seems, independently come forward with their complaints about the accused. Given this, could it not be argued that it is so improbable that one person would be the victim of five independent, false allegations of abuse that all of the complainants must have been telling the truth? Such a conclusion might be consistent with the Court s comment in Velkoski at [176], that the greater number of such witnesses, the less need there will be for their evidence to be distinctive, still less, strikingly similar. Sokolowskyj [2014] NSWCCA 55 59. In Sokolowskyj the accused was charged with touching the vagina of 8 year old girl in his care in the parents room of a shopping centre. He had three previous convictions relating to offences committed between 2000 and 2003. One of the convictions involved exposing his penis to a 15 year old girl; the other two involved masturbating in public. The convictions were admitted as showing that the accused had a tendency to have sexual urges and to act on them in public in circumstances where there was a reasonable likelihood of detection. The New South Wales Court of Criminal Appeal held that the evidence was too general to have significant probative value. Murdoch [2013] VSCA 272 60. In Murdoch the evidence was admitted on the basis that it showed that the accused had a tendency to act in a particular way, namely to sexually assault his two daughters in circumstances where: a. Each was a young girl below the age of 18 and was the accused s natural daughter;
17 b. Their mother was not present, and in relation to each complainant, their other sibling/s were not present in the same room; and c. The accused used innocent seeming situations and behaviour as a prelude to sexual assault. 61. It was also admitted to show that the accused had a tendency to have a particular state of mind, namely a tendency to have a sexual interest in his natural daughters that he was willing to act upon. 62. The Court held that the similarities relied on fell short of demonstrating the kind of distinctive or unusual features which would have justified its admissibility as either tendency or coincidence evidence. Priest JA at [102] cited CGL as authority for the conclusion that they were in reality, unremarkable circumstances that are common to sexual offences against children. Velkoski 63. In Velkoski the accused s wife ran a day care centre in which the accused sometimes helped. There were three complainants (two female, one male), and multiple charges. Some, but not all, of the charges had the common feature that while helping to supervise children at the centre, the accused encouraged each complainant to touch his penis or exposed it to the complainant. 64. The Court held that evidence of conduct with this distinct pattern of behaviour was cross admissible as tendency or coincidence evidence; but that the other charges which did not conform to that pattern were not cross admissible. Rapson [2014] VSCA 216 65. The accused faced five charges of rape and eight charges of indecent assault. The offending was alleged to have occurred between 1975 and 1977 and between 1987 and 1990, during periods when the accused was a Christian Brother and later priest, who served as a teacher and ultimately the deputy headmaster at a Roman Catholic boys secondary school. All of the complainants were former students at the school.
18 66. At the trial the evidence of each complainant had been cross admitted to prove the tendencies of the accused: a. to act in a particular way, that is, to offend sexually against young boys he had access to, including students at the school in which he taught, by using various methods; and b. to have a particular state of mind, namely, a sexual interest in boys aged between 12 and 16, who were away from their families and to whom he could obtain access alone, and then to act on that interest by sexually offending against the victims in various ways. 67. The prosecution had also applied to have the evidence admitted as coincidence evidence, but this application had been refused. If all of the complaints were independent of each other, then one might speculate whether the convictions would have had a better chance of surviving an appeal if the evidence had been admitted on that basis instead. This would be for the reasons discussed at paragraph 58 above. However, given that the evidence had not been admitted as coincidence evidence, the decision in Rapson is confined to whether the evidence was admissible as tendency evidence. 68. The appeal was heard after the decision in Velkoski had been handed down. In light of Velkoski, the Crown conceded that the evidence of complainants H and F (who alleged penile rape) was not admissible in relation to other complainants, and that the evidence was so prejudicial that these counts should be severed from the others in any retrial. 69. However, the Crown argued and at [33] [37] the Court agreed, that the evidence of H and F was cross admissible as tendency evidence on any retrial of the offences relating to those two complainants. This was on the basis of the following shared features: a. The accused lured each complainant in the evening into his office, a private space under his control (and which embodied, and reinforced, his authority over the boys at the school);
19 b. The accused sought no ostensible consent or passive compliance from either complainant before engaging in sexual penetration; c. The accused did not engage in any incremental or seductive behaviour as a prelude to rape ; d. The accused s conduct was directed to overwhelming the complainant s will and suppressing his capacity to protest and resist; and in this regard, there was no material difference between suppressing resistance by administering a sleepinducing drug or alcohol and suppressing it through physical force; and e. Given the risk of discovery, there was a high degree of risk taking by the accused. 70. The prosecution also argued (and the Court again agreed) that the evidence of complainants A, E, D and G and witness X was cross admissible on any retrial as tendency evidence, on the basis that it possessed an underlying unity due to the following shared features: a. The accused sexually abused each student in a private room which he controlled (his office or bedroom), after using a pretext to secure the attendance of the student or at least his continued presence (the fact that different inducements or pretexts were employed did not diminish the cogency of the common theme of operation); b. The accused engaged in sexual offending of a non penetrative kind, which fell towards the same general end of the spectrum of sexual offending; c. The accused commenced the sexual abuse with inappropriate touching or fondling of the complainant s genitals over the complainant s clothes; and d. Any differences in the level of sexual misconduct were simply the result of the different responses to the accused s initial touching, as opposed to any difference in modus operandi.
20 71. Finally, the Court agreed that the evidence of complainants B and C was crossadmissible on any retrial as tendency evidence, on the basis that it possessed an underlying unity, due to the following shared features: a. The accused sexually abused students by directly molesting or fondling their genitalia under clothing, both penis and testicles; b. The accused molested multiple students at the one time; c. The accused did so in a relatively public location (dormitory or sick bay) in the presence of multiple students and at least one other priest (albeit that in the case of complainant B the other priests were participating in the offending, whereas in the case of complainant C the other priest counselled against it and in the case of C only, the accused used a soporific and punched C in the stomach); d. The accused acted brazenly, suggesting a perception of total impunity; and e. The offending occurred during a similar period of time (1975 and 1977). 72. The Court left it for the trial judge to determine whether the charges relating to complainants B and C should be tried separately from the charges relating to complainants A, E, D and G. CONCLUSION 73. The decision in Velkoski was intended to provide guidance to trial judges as to how to apply the tests for admissibility that apply to tendency and coincidence evidence by virtue of ss 97, 98 and 101. This paper was intended to further that aim by not only summarising the principles expounded in Velkoski, but by examining a number of recent cases in which those principles have been applied.