In The Queen v Dennis Bauer (A Pseudonym)  HCA 40 (12 September 2018), the High Court of Australia has, in a unanimous decision, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria which had quashed the respondent's convictions for sexual offences (see Bauer (a Pseudonym) v The Queen (No 2)  VSCA 176 (30 June 2017)).
The appellant (the Crown) sought to reinstate the jury conviction of the respondent for 18 sexual offences against the complainant (“RC”), for which he was sentenced by the trial judge to a total effective sentence of nine years seven months’ imprisonment with a non-parole period of seven years. The prosecution case involved a course of sexual offending committed by the respondent against RC over a period of 11 years from 1988 to 1998, in which period RC was aged between four and 15 years and the respondent was aged between 42 and 53 years. RC was the foster child of the respondent and his then wife and she and her younger sister had lived with the respondent and his wife since RC was two years old.
The respondent has been through nine trials since 2011 and had spent more than 900 days in custody. The respondent was twice convicted of serious charges relating to RC, both overturned after successful appeals. The respondent’s first trial, in 2013, was conducted on a joint indictment alleging sexual offending against five separate complainants.
On appeal to the Court of Appeal of the Supreme Court of Victoria (see Bauer (a Pseudonym) v The Queen (No 2)  VSCA 176 (30 June 2017)), proceedings involving two of the complainants were permanently stayed, and a retrial was ordered on charges relating to the other three complainants. In a series of eight retrials however, guilty verdicts were returned only with respect to the charges relating to RC.
The appellant’s appeal were allowed by the Court of Appeal on four grounds:
First: The trial judge’s permitting the prosecution to tender a recording of the evidence of the complainant given in the original trial rather than calling her to give evidence in person at the re-trial. The prosecutor had conveyed to the trial judge that the complainant had a “strong preference” not to give evidence at the re-trial. Those instructions were not put in issue by defence counsel or the trial judge, although defence counsel objected to the reliance on the recording. The recording of RC’s original evidence was rendered admissible at the re-trial by virtue of section 379 of the Criminal Procedure Act 2009 (Vic) which is subject to section 381(1)(c) of that Act and which sets out the governing test for the admission of a recording, including the “availability or willingness of the complainant to give further evidence”. The Court of Appeal concluded that “. . . a ‘preference’ not to give evidence is not unwillingness to do so . . .” and allowed the appeal on that basis.
Second: That the trial judge had erred by admitting tendency evidence at the re-trial, namely that the respondent had a tendency “. . . to have a sexual interest in his foster daughter [RC] and a willingness to act on that sexual interest . . . ”. The issue being whether "tendency evidence" may be said to possess significant probative value when its source is a single complainant.
Third and Fourth: The Court of Appeal held that a substantial miscarriage of justice had been occasioned by the trial judge’s failing to order a severance of charge two on the indictment, as the only evidence called in support of that charge flowed from another witness and not from the complainant. The Court of Appeal also held that a substantial miscarriage of justice had been occasioned by the trial judge admitting a previous statement of complaint (made by RC to another person) as evidence at the re-trial.
The Crown subsequently appealed to the High Court of Australia on the grounds that:
The respondent cross-appealed on the ground that, upon allowing the appeal, the Court erred in ordering a new trial, in lieu of entering judgments of acquittal.
The High Court held, in respect of the recording, that in view of the complainant's strong preference to avoid giving evidence again if at all possible, and in the absence of competing considerations, no error had been shown in the trial judge's conclusion that it was in the interests of justice that the recording be admitted.
The High Court further held that the trial judge had been correct to conclude that the complainant's evidence was admissible as tendency evidence as all of the charged and uncharged acts were alleged to have been committed against the one complainant, and none of them was far separated in point of time or far different in nature and gravity from the others. These characteristics meant that there was no need for the evidence to have any "special feature" in order to render the evidence of one charge cross-admissible in proof of the other charges, or to render the evidence of uncharged acts admissible in proof of the charged acts. The complainant's evidence had very high probative value because it showed that the respondent was sexually attracted to the complainant and that he acted upon that attraction by engaging in sexual acts with her, making him more likely to seek to continue to give effect to the attraction by engaging in further sexual acts with the complainant as the opportunity presented. Nor was the complainant's evidence productive of unfair prejudice to the respondent. The complainant's evidence of each charged and uncharged act was cross-admissible in proof of each of the charges.
The Court also held that the previous statement of complaint made by the complainant to another, the evidence relating to Charge two, had significant probative value and was admissible in relation to each other charged act as evidence of the respondent's sexual attraction to the complainant and his tendency to act upon it when the opportunity presented, and that there was no real risk of the jury using that evidence in an unfair way as to justify its exclusion. Therefore, the trial judge had been correct to hold that there was no basis for Charge two to be severed and tried alone.
Finally, the Court held that the complaint evidence was admissible as there was evidence from which it could be inferred that the facts were fresh in the memory of the complainant when she made the complaint and the probative value of the evidence sufficiently outweighed its prejudicial effect.
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The Queen v Dennis Bauer (A Pseudonym)  HCA 40 (12 September 2018) and associated High Court Summaries.
Bauer (a Pseudonym) v The Queen (No 2)  VSCA 176 (30 June 2017)
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