ADG v R
[2011] VSCA 430
•14 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0650
| A D G | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, BUCHANAN and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 January 2011 |
| DATE OF JUDGMENT | 14 December 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 430 |
| JUDGMENT APPEALED FROM | R v [A D G] (Unreported, County Court of Victoria, Judge L C Ross, 8 May 2009 (date of verdict), 25 May 2009 (date of sentence)) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant alleged to have sexually abused his sister over 40 years ago – Found guilty of committing act of gross indecency with child under 16, indecent assault, false imprisonment and rape – Whether verdicts unsafe and unsatisfactory – Whether trial judge erred in preventing cross‑examination of complainant on certain topics – Whether trial judge’s directions as to use jury could make of ‘uncharged acts’ were inadequate – Whether trial judge failed to give adequate Longman direction – Whether trial was unfair due to complainant’s delay in reporting alleged abuse – Appeal allowed – On whole of evidence, not open to jury to be satisfied beyond reasonable doubt of applicant’s guilt – Convictions sustained by applicant and sentences passed thereon set aside and verdicts of acquittal entered – R v Klamo (2008) 18 VR 644 – Weissensteiner v The Queen (1993) 178 CLR 217 – Longman v The Queen (1989) 168 CLR 79 – R v Glennon (1992) 173 CLR 592 – Evidence Act 1958 s 37(b).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Traczyk | Challenge Legal Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Bongiorno JA. I agree with the disposition of the appeal which his Honour proposes. I do so for the reasons which his Honour gives, and for the following additional reasons.
In my opinion, the additional ground of appeal, added by leave during the hearing of the application, should also be upheld. As formulated by counsel for the applicant, the ground contended that the complainant’s delay in making her allegations against the applicant rendered his trial unfair. In his most helpful supplementary submission dealing with this ground, counsel for the Director suggested that the ground might be formulated in these terms:
The delay between the commission of the alleged offences and the making of the complaint giving rise to the charges, and the consequences flowing from that delay, were such as to cause a miscarriage of justice in this case.
Counsel for the Director submitted that, in considering this ground, the Court could derive assistance from the joint judgment of Mason CJ and Toohey J in R v Glennon.[1] Applying their Honours’ approach by analogy, the question posed by this ground would be whether there was a serious risk that the applicant had been deprived of a fair trial by reason of the delay. This question would fall to be determined in the light of the evidence at the trial and ‘in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial’.
[1](1992) 173 CLR 592, 605–6.
Counsel for the Director identified as ‘the three most serious consequences of the delay’ the following matters:
·the death of two material witnesses, being the applicant’s parents, in whose home the events were said to have occurred;
·the applicant’s inability to lead objective evidence of the configuration of the train table, in order to determine whether or not the commission of some of the alleged acts was physically possible; and
·the substantial change in the law since the time when the offences were alleged to have been committed.
As to the deceased witnesses, the Crown’s submission acknowledged that, while the Longman warning identified for the jury the forensic disadvantages caused by the delay, it did not allow the jury to speculate about what those witnesses would have said in evidence. Given the likely importance of the evidence which the parents would have been able to give, it seems to me that their absence was productive of real unfairness.[2] In the circumstances of the case, the applicant’s inability to lead evidence about the lay-out of the train table, which bore directly on the likelihood of the sexual acts having occurred as alleged, was also a matter of real significance, in my view.
[2]See R v Edwards (2009) 83 ALJR 717, 722 [28]–[31] and the cases there cited.
As to changes in the law, the Crown submission referred to the substantial changes effected by the Crimes (Sexual Offences) Act 1980, in particular the removal of the need for corroboration. According to the submission
If the matter had been dealt with in a timely manner, the need for corroboration, which apparently was not available, would have meant the likelihood of an acquittal. This is a significant factor which cannot be redressed by an appropriate charge unless the judge ignores the modern rules applicable to the trial of sex offences.
The Crown submission further pointed out that where (as in the present case) a person committed an offence at an age when he could have been dealt with by the Children’s Court (or equivalent), and would have received a different penalty as a young offender, the consequences of delay could be very significant.
The Crown’s submission exemplified the highest standards of prosecutorial fairness, in my view. It reflected the ready acknowledgment, by counsel for the
Director in the course of argument, that this was a ‘troubling’ case, one which caused ‘some disquiet’.
Taken together, the matters relied on by the applicant lead me to conclude that there was a miscarriage of justice. That is, by reason of the extraordinarily long delay between the alleged offending and the bringing of the matters to trial, there is a significant risk that the applicant was denied a fair trial. If I had not otherwise been persuaded that the conviction was unsafe and unsatisfactory, I would have upheld the appeal on this ground alone.
BUCHANAN JA:
I agree with Bongiorno JA, for the reasons stated by his Honour, that the application for leave to appeal against conviction should be granted, the appeal allowed, the convictions set aside and the applicant be acquitted.
I also agree with Maxwell P’s observations as to the additional ground of appeal that delay rendered the trial of the applicant unfair.
BONGIORNO JA:
In May 2009, the applicant, ADG, was tried before his Honour Judge L C Ross and a jury in the County Court on a seven-count presentment for sexual offences against his sister, allegedly committed between June 1962 and December 1966. At the time of the alleged offences, the applicant was between 15 and 19 years of age and his sister was between four and eight or nine years of age. The offences included indecent assault, committing acts of gross indecency with or in the presence of a child under the age of 16, false imprisonment and, most seriously, rape.
After the close of the prosecution case, the trial judge directed acquittals on the first three counts on the presentment and gave the jury a Prasad[3] invitation to
[3]Prasad v The Queen (1979) 23 SASR 161 (‘Prasad’).
acquit with respect to the remaining counts. Those counts ― 4, 5, 6 and 7 ― all arose out of one alleged incident which occurred more than a year after those alleged in counts 1, 2 and 3. In the event, the jury refused the trial judge’s invitation to acquit and, in due course, found the applicant guilty in respect of those four counts: committing an act of gross indecency with or in the presence of a child under the age of 16, indecent assault, false imprisonment and rape. He was convicted and sentenced by Judge Ross to a total effective sentence of three years’ imprisonment, wholly suspended for three years. He now seeks leave to appeal against his convictions on each of these counts.
The facts
The complainant was the adopted daughter of the applicant’s parents, she having joined the family when she was about 18 months old. She was born in 1957. The applicant was born in 1946. He was thus 11 years older than the complainant. The applicant’s brother, LDG, was eight years older than her. There were no other children. At the time all of the relevant events were alleged to have occurred, the family lived in a detached bungalow in a suburb in Melbourne.
The complainant’s evidence at trial was that the house in this suburb had a shed in the back yard which was divided into two rooms. One room was used as a sewing room by her mother; the other contained an electric train set. This train set, which was erected on a large table which occupied almost all of the room, belonged to the applicant. The complainant said that she was not allowed to go near the train set but that she did so nonetheless. She said that on one occasion when she was about four and a half years old she went into the shed. The applicant came in and lifted her onto the table to play with the train set. She said:
he’s picked me up, put me on the table to play with the train set. While doing that, his hand has wandered down in between my legs, over the top of my underpants and at the time I didn’t think too much of it because I was more interested in the trains at that age, and then as we were playing the trains, the trains were going around, he’s then put his hand inside my underpants and I remembered saying, ‘What are you doing?’ and he said, ‘How does that feel? Does that feel good?’ and then he stopped and then we - he got me down off the table on the train set and I left. That’s the shed, so ‑ ‑ ‑[4]
[4]Transcript of Proceedings, R v [A D G] (County Court of Victoria, Judge L C Ross, 30 April 2009) 12 lines 11–22.
The complainant identified the room in which she said these events took place on a rough sketch plan of the property, which she had drawn from memory, and in photographs of the property. The photographs were tendered, without objection, as having been taken by police in late 2007 or early 2008 ― over 40 years after the alleged assaults. No continuity evidence was led to establish the relevance of these photographs, notwithstanding that it eventually became clear that there was a significant dispute as to the locking mechanism on the train room door at the relevant time. This dispute concerned whether that door could be locked from the inside or only from the outside. As the trial judge directed acquittals on the only three counts to which this dispute might have been directly relevant, it never needed to be resolved by the jury in relation to those counts. However, its relevance to a very large number of uncharged acts left to be considered by the jury in reaching verdicts on the remaining counts does not seem to have ever been the subject of close attention. It was certainly relevant to them, or, at least, some of them.
The complainant described the train room in her evidence but said that she did not recollect the existence of the windows which are shown in the photographs. She said that, at the time of the events she described, her height was such that her head ‘was just above the table’. The complainant said that the touching events she described:
occurred several times, right up until I was about five years old. So I turned - the next date, at the end of December. So at least six months afterwards. It occurred several times. I couldn’t even name an amount of times. But most of the time then he would touch my vagina. It wasn’t on the outside. There was no penetration at that stage.[5]
Subsequently, the complainant said that these events occurred ‘several times a week’. One of these events (it may be assumed the first in time) constituted the actus reus of count 1 (indecent assault).
[5]Ibid 17 lines 12–18.
The complainant next described another form of indecent assault which occurred when she was between five and six years of age. It also occurred in the train room. She said:
This particular time, again, he lifted me up onto the train set and had the train-set going and the trains going around and um, he again touched me with his hand and he took my pants off and pulled a handkerchief out and started twisting it around and around and around his fingers. And then, in the mean - while this was happening, I’m saying, ‘Oh, what are you doing?’ You know, ‘This feels funny’, and he twisted it around and he put his fingers - with the handkerchief - inside my vagina. It was hurting and burning and I started crying and he was moving it in and out and he’s saying, ‘How does that feel? Does that feel okay?’ Um, just one moment. He’s saying, ‘How’s that feel, does it feel okay?’ and I said, ‘What are you doing, what are you doing?’ and then he stopped and said, ‘Well, that’s that then’, like it’s just a matter of fact. Then he lifted me off the table.[6]
[6]Ibid 20 lines 15–31.
The complainant said that at the time this event occurred the door to the train room had been locked by the applicant with a key which he put in his pocket. She cried and the applicant put his hand over her mouth. Subsequently, he unlocked the door and she ran out and ran inside the house. The applicant threatened her saying ‘don’t tell anyone or else’. This assault constituted the actus reus of count 2 (indecent assault). The locking of the door constituted the actus reus of count 3 (false imprisonment).
The complainant said that, after the first occasion, the applicant repeated this form of assault in the same location at least three or four times per week ― a course of conduct which, she said, commenced a few days after the first occasion. It continued at this frequency up until 1966 when the complainant was eight years of age; that is to say, three or four times a week for two or three years. Subsequently, in cross-examination, she said a number of times that this form of assault occurred ‘hundreds of times’.
Counts 4, 5, 6 and 7 concerned a series of events closely related in time which occurred on one afternoon. The offences in those counts were described in the presentment as having been committed between 20 December 1965 and 31 December 1966; that is, when the complainant was between 8 and about 9 years of age, or about 43 years before she gave her evidence.
The complainant described these events in some detail. She said she was watching television in the lounge room of the family home when the applicant said he wanted to show her something. She said ‘no’, because she was watching television. Thereupon, the applicant pulled her by the arm and she went with him into his bedroom, which he shared with his brother, LDG. The complainant said she resisted, saying ‘I don’t want to go in. I don’t want to go in’. The complainant said that upon entering the bedroom the applicant told her to lie on the bed. When she refused, he said he was not going to hurt her and then pushed her onto the bed. She said the applicant then produced what she described as a ‘massage machine’, an electric hand-held device which her mother had purchased some time previously. She said that he then closed the door, pulled down his pants and began to use the machine to massage his genitals. She said that she protested and went to walk out of the room but the applicant said ‘if you don’t do this I will hurt you’. She continued:
Then he proceeded to push me onto the bed, took my underpants off, and then he pulled his pants down and turned the massager on. I could hear the buzzing of the massager. He started to rub it over his genitals and then came towards me, rubbed it on my vagina. Prised my legs open and rubbed it on my vagina. Then he stopped and I couldn’t say anything, I was just numb, because he was also saying to me, ‘How does that feel?’ Then he proceeded to get two men’s handkerchiefs and tie them together and place them - and tie them around my mouth and around the back of my head, and then another handkerchief. Tied my hands together, put them above my head. Then he came onto the bed towards me, prised my legs open, and I was just terrified. I couldn’t say anything because I had the handkerchief in my mouth. Then he proceeded to put his penis into my vagina. From the moment he started to do that the pain was excruciating, and then he pushed it in further. I couldn’t even scream, I couldn’t do anything.[7]
[7]Ibid 25 line 16 – 26 line 3.
The next thing the complainant described was the entry into the bedroom of the applicant’s brother. She said:
He opened the door, went to step in, and then he looked at me and looked at [ADG] and then I heard him say, ‘Shit,’ and then he walked out and closed the door. With that, [ADG] proceeded to undo the handkerchiefs around me. Pulled away off me, undid the handkerchiefs around my mouth and said, ‘Don’t you say anything. This didn’t happen.’ Then he left the room. When he left I got up and saw blood on the bed. Got off the bed, put my underpants on, went to the toilet. I could hear them talking. I went to the toilet and when I urinated it just stung really badly. Then I went back into the lounge room to watch television.[8]
[8]Ibid 26 lines 5–16.
The complainant said that this event was the last occasion on which the applicant assaulted her. She said that shortly afterwards he went overseas where he stayed for about a year or so. Subsequently, he went overseas again, this time to America, to study chiropractic. She said that the event she had described occurred about three weeks or a month before he went overseas the first time.
The complainant was extensively cross-examined over two days as to all aspects of her evidence. It was put to her that her story as to assaults by the applicant was a fabrication; that nothing of the kind ever occurred and that she was motivated by malice against her brother. She explained the delay in reporting these assaults to the police or anyone else as having been caused by a fear that she would not be believed. She said that she had suffered from nightmares ever since these events, which nightmares occurred every night. As far as reporting the assaults was concerned, she said she didn’t know what to do or how to do it. Eventually, she sought advice from a solicitor and subsequently went to the police in 2007. This was after both her parents had died; her father, who survived her mother by some years, having died in March of that year. She conceded that she thought she should have received more of her father’s estate than she did but she denied that her reporting these assaults was motivated by disappointment or ill will towards the applicant in that regard.
The complainant said that after her own children had grown up and her mother and father had died she went to a psychiatrist about the abuse she had suffered in childhood. The psychiatrist she consulted was in Brisbane as she then lived in Queensland. She said that although some years earlier, when she was about 16, she had been an inpatient in the psychiatric ward at the Austin Hospital following an overdose of sleeping tablets, she did not tell any of the psychiatrists who saw her then of her childhood sexual abuse.
In the course of the complainant’s cross-examination, she was questioned as to conversations she had with the applicant’s brother, LDG, about the assault in the bedroom during which she said he had entered the room. She said she had such a discussion with LDG and placed it as having occurred after her father entered a retirement home in Templestowe in 2005. She said LDG had raised the matter with her. She said:
There was a dispute who was going to have power of attorney for dad, and apparently dad wanted [ADG] to do it, and [LDG] was furious and he said to me, ‘You know, I thought it was just a bad dream what he’d done to you,’ and I said, ‘What are you talking about,’ and he said, ‘What [ADG] did to you, what I walked in on that time,’ and he said – ‘cause he was really angry about the power of attorney thing – and I said, ‘Well, where did this come from?’ And he said, he said, you know, ‘He’s not getting away with this,’ and then he took off out the door. And it was probably two hours later I went down to see dad, and I walked into the room and dad was crying and saying, ‘I’m so sorry. I didn’t know about this. I didn’t know this had happened to you.’ So [LDG] had gone down there and told him what had happened to me with [ADG] and what he’d seen.[9]
[9]Transcript of Proceedings, R v [A D G] (County Court of Victoria, Judge L C Ross, 1 May 2009) 146 line 25 – 147 line 10.
Subsequently, the complainant was cross-examined about conversations she had had with police investigators as to their conversations with LDG. She said the police told her that LDG was ‘saying he doesn’t remember anything’. Counsel persisted with this line of questioning, next asking the complainant whether she spoke to LDG herself about what he had told the police. She said she had phoned LDG. Her account of the phone call was as follows:
I said, ‘What’s going on? You know this happened, you know he did this to me,’ and he said, ‘I don’t want anything to do with it. I don’t remember anything.’ So then I text him and said, ‘You know he’s done this to me. Why are you doing this?’[10]
[10]Ibid 152 lines 3–7.
The complainant was cross-examined at length as to her subsequent contact with the applicant over many years. She conceded that she had social contact with him, that at one time she worked for him, that her children played with his children and that he had manipulated her back. However, her answers were, in almost all cases, qualified and perhaps, grudging. She explained greeting cards she had sent to the applicant at various times as having been only sent because her mother had bought them and told her to send them.
The applicant’s brother, LDG, gave evidence as to the events which were alleged to have constituted counts 4, 5, 6 and 7. His exchange with the prosecutor was as follows:
Now, the allegation is that her hands were tied up, her mouth was gagged and your brother was attempting sexual penetration with her or had actually sexually penetrated her at that point you walked in. Clear on the question?
---Yes.
What do you say about whether you walked in?---I cannot recall anything like that at all or walking in on anything.[11]
[11]Transcript of Proceedings, R v [A D G] (County Court of Victoria, Judge L C Ross, 4 May 2009) 203 lines 22–8.
In cross-examination, he described the train room which was integral to the evidence in respect of counts 1, 2 and 3 and the evidence of uncharged acts relied upon by the Crown as being relevant to counts 4, 5, 6 and 7. He said:
It was on a table, I think, wasn't it?
---Yeah, it was on a - virtually the whole room was taken up with a table and you could just go in - probably an area about this size that you could get in, and then you'd have to go under the table to get to a little control area where all the train set virtually ran all the way around the room. You couldn't get in other than just where the door opened and a little section.
…
In terms of the actual set-up of the train set was there any room on that table where somebody could sit or be seated?---No. The train set covered the whole table and then there was the mountains, and the whole thing was set up with plaster of Paris, the towns, and the whole room was a train set. If you got up you would have broken everything.[12]
[12]Ibid 205 lines 24–31, 206 lines 8–14.
LDG said that the train room was normally locked from the outside with, he thought, a padlock. The applicant had a key to that padlock but he, LDG, did not. He was not allowed to go into the train room. Questioned about the incidents comprising counts 4, 5, 6 and 7, LDG said that he would not have said ‘shit’ as the complainant alleged and that he never saw any conduct by the applicant as described by the complainant in relation to those events. He denied having any conversations with the applicant concerning anything that happened in the bedroom in the way the complainant alleged.
Questioned about social contact between the complainant and the applicant over many years, he confirmed that they did have such contact, and that the complainant worked for the applicant at some time. He said the complainant never expressed any reluctance about being in the presence of the applicant.
LDG said that when his father died in 2007 the complainant came from Queensland for the funeral and stayed at his home. Whilst there, she raised allegations of being sexually abused by the applicant. He said that she did not suggest that he had seen the abuse. Her statement was made, he thought, ‘when we were talking about the distribution of the money’. She said something like ‘well, [ADG] should pay me for the assault. For assaulting me’. Or something like that. He recalled no details of the conversation.
The only other Crown witness was the police informant who produced a record of an interview with the applicant in which many of the complainant’s allegations were put to him. He denied all of those allegations. The informant agreed that he expressed shock and outrage about them. The only other matter of relevance in the police officer’s evidence was that he had examined the door of what was the train room and said that it locked from the outside with a padlock. His examination was, of course, more than 40 years after the alleged events took place and long after the applicant and his family had ceased to live in the house.
This appeal
The applicant seeks leave to appeal on four grounds:
1. The verdicts are unsafe and unsatisfactory;
2.The trial judge erred in preventing cross-examination of the complainant on two specific topics:
(a)her management of the business of a ‘sex shop’ displaying graphic sexual material including material relating to bondage; and
(b)the circumstances of a suicide attempt which occurred when the complainant was 16;
3.The trial judge failed to adequately direct the jury as to the use of ‘uncharged acts’; and
4.The trial judge failed to give an adequate Longman[13] direction.
A fifth ground was added, by leave of the Court on the hearing of this application, in the following terms:
5.The trial was unfair due to the delay in making formal complaint.
[13]Longman v The Queen (1989) 168 CLR 79 (‘Longman’).
Verdicts unsafe and unsatisfactory
Notwithstanding the existence of some evidence which, if accepted, would enable a jury to convict on any particular count on a presentment, a court of criminal appeal must not permit a conviction to stand if, upon all of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt.[14]
[14]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
The relevant law was succinctly stated by Maxwell P in R v Klamo:[15]
[15](2008) 18 VR 644.
The approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground involves the following steps:
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
A guilty verdict can only be said to have been ‘reasonably open’ to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion. In Libke v R, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the ‘unsafe and unsatisfactory’ ground:
… But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
In other words, the question posed in M v R, namely:
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?
requires the court of criminal appeal to decide:
… whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’ or whether, instead, the ‘path to a conviction was open’.[16]
[16]Ibid 653–4 [38]–[40] (citations omitted).
In arguing this ground, counsel for the applicant submitted that the Crown case ― essentially the evidence of the complainant:
contained discrepancies, displayed inadequacies … or otherwise lacked probative force, such that this Court should conclude that there is a significant possibility that an innocent person has been convicted.[17]
Counsel criticised both the evidence relating to events in the train room ― left to the jury as ‘uncharged acts’ after the directed acquittals on counts 1, 2 and 3 as being relevant to the events comprising counts 4, 5, 6 and 7 ― and the direct evidence of the events that comprised counts 4, 5, 6 and 7.
[17]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
The complainant’s evidence of the train room assaults, described in more detail in paragraphs [14] to [19] above, was that they commenced when she was four and a half ― that is, in 1962, or about 47 years before she gave her evidence. They took two forms: non‑penetrative touching and penetrative touching ― the latter involving the use of a handkerchief wrapped around the applicant’s fingers.
In support of this ground, counsel for the applicant pointed to a number of matters which, he submitted, raised a doubt as to his client’s guilt. He referred to the forensic disadvantage his client suffered as a result of the delay in prosecuting this case. The complainant’s parents are both dead so that possible evidence as to any signs of, or lack of, distress on the complainant’s part is not available. Evidence as to the train room and the possibility (or impossibility) of someone sitting on the train set as the complainant said she did, the frequency with which she had access to the room and the locking mechanism on the door of the room was unavailable (other than from the applicant’s brother). He also referred to the fact that there was no evidence available, other than from the complainant, as to her psychiatric problems as a teenager.
Counsel emphasised the discrepancies in the complainant’s evidence with respect to the frequency of the train room assaults. At trial she said that non‑penetrative touching occurred hundreds of times over years, whereas at committal she had said that it occurred only once about a week prior to the commencement of penetrative touching. She described the frequency of the train room assaults in various different ways:
· every second day over years;
· hundreds of times ― three or four times a week;
· they first commenced in 1962 after her fourth birthday;
· they occurred two or three times a week;
· penetrative touching commenced in 1966 or 1963 (at trial) or 1962 when aged 4 (at committal) or between the ages of 5 and 6 (in her statement to police).
Counsel submitted that the train room assaults as alleged by the complainant were improbable: assaults only occurred there and there was no other sexual misconduct on the applicant’s part anywhere else (except for the occasion giving rise to counts 4, 5, 6 and 7). If the events occurred as frequently as the complainant said, there would have been a high probability of detection by the complainant’s mother who very frequently was present in the sewing room next door to the train room.
Counsel submitted that the complainant’s conduct subsequent to her alleged abuse, including her conduct over the decades which passed after the rape alleged in count 7, was conduct inconsistent with her evidence being true. He referred to the fact of the complainant not having made any complaint despite her allegation that she had daily nightmares and, on one occasion whilst a teenager, attempted suicide as a result of her brother’s conduct. He also referred to her social, employment, medical and other contact with the applicant over the intervening years and contact which she permitted between the applicant and her children. All of these matters, counsel contended, cast doubt on the veracity of her account of the applicant’s conduct towards her.
Of major significance, argued counsel, was the evidence of the applicant’s brother who, although he was a Crown witness, failed to corroborate the evidence of the complainant as to the occurrence of the rape charged in count 7 despite, on her account, being present whilst or immediately after it occurred. Further, this witness also contradicted the complainant as to her having access to the train room as she had said she did, as to the possibility of locking the train room from the inside and as to the feasibility of her sitting on the train set, as she alleged she did.
In answer to the applicant’s case, the Crown pointed out that all the matters relied upon by his counsel were squarely raised before the jury. Notwithstanding, the jury convicted the applicant on counts 4, 5, 6 and 7. It must have accepted the complainant as a witness of truth to have done so. The Crown submitted that this Court should give significant weight, in this case, to the jury’s advantage in seeing the complainant give her evidence, particularly having regard to the fact that she was cross-examined at length. Finally, the Crown pointed to the fact that the applicant had stood mute at his trial which, it submitted, enlivened the principle in Weissensteiner v The Queen.[18]
[18](1993) 178 CLR 217 (‘Weissensteiner’).
The first part of this submission is of some force ― the jury verdicts must be accorded appropriate respect as required by the authorities referred to. The second part of the submission cannot be accepted, however. This is not a case to which Weissensteiner can be applied. Whilst it is true that the applicant did not give evidence on his trial, his denial of the Crown case was before the Court. In his record of interview, he vehemently denied that any of the events deposed to by the complainant occurred. Further, with respect to the events giving rise to counts 4, 5, 6 and 7, he was corroborated by his brother who directly contradicted the complainant’s case.
As the plurality (Mason CJ, Deane and Dawson JJ) in Weissensteiner said:
Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused’s knowledge. Even if there are facts peculiarly within the accused’s knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.[19]
[19]Ibid 228.
The same sentiments were expressed in the dissenting judgment of Gaudron and McHugh JJ:
That it is the failure to explain, and not the failure to give evidence as such, that the authorities allow to be taken into account in appropriate circumstances clearly appears from a passage in Wilson v Buttery which was approved by this Court in May v O’Sullivan. It was said in Wilson v Buttery that:
If the truth is not easily ascertainable by the prosecution, but is probably well known to the defendant, then the fact that no explanation or answer is forthcoming as might be expected if the truth were consistent with innocence, is a matter which the Court or jury may properly consider.
Not surprisingly, the cases which focus on the failure of an accused to give evidence, rather than the failure to explain, do not always provide clear guidance as to the circumstances in which that failure becomes significant. However, some indication appears from R v Burdett, where it was said:
But when one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases. ... It is enough, if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just.[20]
[20]Ibid 242 (citations omitted).
This case was not one in which the Crown depended upon the jury drawing inferences against the applicant from facts deposed to by witnesses in circumstances where he offered no explanation of those facts. Here, the Crown case depended upon an acceptance of the complainant’s evidence and consequent rejection of the applicant’s denials in respect of that evidence. No question of explanation arose. The principle in Weissensteiner does not apply in this case.
Having reviewed the whole of the evidence and counsel’s arguments, I am of the opinion that the jury’s verdicts on counts 4, 5, 6 and 7 are unsafe and unsatisfactory. There are a number of reasons for reaching this conclusion.
First, there are a number of inconsistencies in the complainant’s evidence, particularly with respect to the evidence concerning the train room assaults. The various statements she made concerning the number of such assaults, the accounts she gave as to the different methods of assault and when they occurred contained inconsistencies which must give rise to doubts as to what actually happened, if anything, in the train room. In order to use them as evidence relevant to the remaining counts, the jury had to be satisfied beyond reasonable doubt that those events occurred.
Secondly, the evidence as to the way in which the door to the train room could be locked was in a far from satisfactory state having regard to the complainant’s evidence that the applicant locked it from the inside when he assaulted her. The complainant said that she had access to the train room even though she was not supposed to be there. She said the applicant locked the door when he assaulted her although she was uncertain as to whether this occurred only once or on other or all occasions an assault took place. The photographs tendered by the Crown were of little assistance on the issue of the door lock and may well have been misleading, although the trial judge, in his directions to the jury, referred to one of the photographs as possibly supporting the defence case. The applicant said in his record of interview that the train room door could only be locked from the outside, using a padlock. His brother gave the same evidence, and, for what it is worth having regard to the effluxion of time, so did the police informant.
Thirdly, the applicant’s brother, called as a Crown witness (and accordingly not regarded by the Crown as other than a witness of truth), deposed that he had not been present when or immediately after the events comprising counts 4, 5, 6 and 7 occurred as the complainant said he was. He said he would not have used the expletive attributed to him by the complainant and did not engage in any conversation with the applicant as she said he did. Of lesser significance perhaps, but still relevant, were the interactions of the complainant over many decades with the applicant ― particularly, perhaps, her being employed by him, her allowing him to treat her professionally (including physically manipulating her back) and her permitting her children to associate with him. These interactions must be viewed in the light of the complainant’s evidence that she has had nightmares constantly throughout her life since the relevant assaults occurred which, she deposes, are associated with those assaults.
Finally, the evidence must be viewed by this Court having regard to its being given, uncorroborated, by the complainant well over 40 years after the events described occurred and to those events having occurred when she was a very young child. The train room assaults also occurred in close proximity to her mother’s sewing room which, the complainant said, she used constantly. It must also be viewed in the context of the complainant’s report to the police occurring after the second of her parents died thus depriving the applicant of valuable evidence which might have assisted his defence.
When all of these matters are considered, this Court should not permit the applicant’s convictions on counts 4, 5, 6 and 7 to stand. A jury, acting reasonably, ought to have entertained a reasonable doubt as to the applicant’s guilt.
Other grounds
Although the upholding of ground 1 would necessarily lead to verdicts of acquittal being entered on all the counts upon which the applicant was convicted, it is necessary to consider the other grounds of appeal raised, albeit briefly.
Ground 2
This ground relates to two rulings by the trial judge disallowing cross‑examination of the complainant on two discrete topics; the first concerning her operating a sex shop and the second concerning the circumstances of a suicide attempt when she was a teenager.
Each of these matters was raised by counsel for the applicant at a point in the trial when the complainant had been cross‑examined for some time over two separate days. Some 80 pages of transcript of that cross‑examination had already been produced. The trial judge appeared to be concerned about the length of the cross-examination and the areas it had covered.
The issue of the sex shop was raised by counsel for the applicant who said:
MR TRACZYK: Now, there was a time, Your Honour, when she in fact – I’ll just give you a brief chronology. As I understand it when her father died, he died in 2007, she received about $50,000. That in fact was the totality of the estate because the father had in fact distributed to [LDG] and [ADG] before then, and I’m going to raise this on the question of financial motive to lie. Now, as I understand it, and I think she agrees with this at the committal, she took that $50,000 and bought a sex shop with it. In that sex shop was material dealing with bondage and things of that nature. Now, in my submission, Your Honour, I’d be entitled to ask her about that, or the jury should know about that. Because the reality of human life and human experience and common sense is this: that if you’d been - this is an argument that I’d seek to ‑ ‑ ‑[21]
Counsel went on to say that he wanted to address an argument to the jury as to why, if she had been raped as she alleged, the complainant would want to surround herself with the sort of material which might be found in a sex shop ― material dealing with bondage, et cetera.
[21]Transcript of Proceedings, R v [A D G] (County Court of Victoria, Judge L C Ross, 1 May 2009) 110 line 26 – 111 line 10.
In opposing the application, the prosecutor referred to s 37(b) of the Evidence Act 1958, which was in the following terms:
37 Cross-examination as to credit
If any question put to a witness upon cross-examination relates to a matter not relevant to the suit or proceeding except in so far as it affects the credit of the witness by injuring his character it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may if it thinks fit warn the witness that he is not obliged to answer it. In exercising this discretion the court shall have regard to the following considerations―
…
(b) such questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree only the opinion of the court as to the credibility of the witness on the matter to which he testifies; …
Discussion ensued and his Honour ruled in the course of that discussion:
HIS HONOUR: No, I understand and I’m against you. I want to get on with and I don’t believe it’s a legitimate attack on her credit. I’ll permit you to ask questions as to whether she got money and bought a business in 2007 and whether she had a relationship. But it is producing a side wind which I don’t think has sufficient probative value on the question of her credit. You’ve got a heap of material to challenge her credit, and I think that’s introducing an element of unfairness. I’m not suggesting that this is your intention, but it could introduce a snide, sordid attitude towards her which may well not, and could not, be justified as a matter of logic.
MR TRACZYK: Look, I would never, ever, I hope, to suggest to a jury that just because she works in a sex shop she’s not a person that can be believed; I’d never say that. But I’ve put my arguments and Your Honour has heard my arguments and ‑ ‑ ‑
HIS HONOUR: No, I hear what you say, but you’re really wanting to raise some argument requiring the jury to be psychologists and be attracted to your argument that why would a person do that. Then if that was going to be the issue that’s one area where the prosecution might produce a psychologist to say it’s a perfectly normal reaction in a person who was sexually abused; it’s not inconsistent with her entering into this field. There might be some bizarre reason she did it. No, it’s too speculative and I don’t think it’s legitimate.
MR TRACZYK: Very well, Your Honour.
HIS HONOUR: So I’m against you. But I will permit you to ask her questions, ‘You received money and did you buy a business with it and conduct a business?’ and also, ‘Did you enter into a relationship?’ which enables you to go to the jury on the basis, well, it has been 40 years and there’s no really no solid reason why she couldn’t have gone to the police, conducted herself, and so on. That's the point you want to make.[22]
[22]Ibid 115 line 18 – 116 line 22.
The trial judge, who was fully cognisant of the evidence and the issues in the trial, clearly ruled, although not in so many words, that the questions which the applicant’s counsel wished to ask the complainant went only to her credit and disallowed those questions pursuant to s 37(b) of the Evidence Act1958.
In this Court, counsel’s argument was brief. He submitted that in the context of an alleged rape where the complainant was tied up, it was relevant for the jury to consider whether engaging in the occupation of operating a sex shop was consistent with her allegations particularly because of her evidence of constant nightmares which led to a suicide attempt.
Even though a court should be slow to prevent defence counsel from cross‑examining a Crown witness as he considers appropriate, and great latitude should be allowed,[23] in this case, the trial judge exercised a statutory discretion in circumstances where the applicant is not able to demonstrate, in a House v The King[24] sense, that that discretion has miscarried. This part of ground 2 cannot succeed.
[23]R v Smallman (1914) 10 Cr App R 1.
[24](1936) 55 CLR 499.
The second matter raised by ground 2 was the correctness of a ruling by the trial judge that the complainant could not be cross-examined as to the circumstances of a suicide attempt she described in the course of her cross-examination. She said that she had taken an overdose of sleeping tablets ‘to make it all go away’. Defence counsel did not pursue the matter further initially but returned to it at a later point in his cross-examination. He then elicited from the complainant that she was 16 at the time she took the overdose and a student at Stott’s Business College. She said:
I just didn’t want to be here any more. I didn’t want to have the nightmares any more and I didn't want to think about it any more.[25]
[25]Transcript of Proceedings, R v [A D G] (County Court of Victoria, Judge L C Ross, 1 May 2009) 142 lines 16–18.
Cross-examination continued as to her treatment at the Austin Hospital and as to why she did not tell psychiatrists treating her at the hospital of the abuse by her brother. Later again in his cross-examination, defence counsel suggested that the complainant had ‘simply taken a drug overdose’ ― that is to say, an overdose of illicit drugs. Following an observation by the prosecutor that the complainant may need to be warned as to self-incrimination, the trial judge intervened saying:
It’s not relevant. There is no probative value, Mr Traczyk.[26]
After a further exchange the judge terminated the argument by saying:
I'm against you. Let’s get on with it.[27]
[26]Transcript of Proceedings, R v [A D G] (County Court of Victoria, Judge L C Ross, 4 May 2009) 168 lines 24–5.
[27]Ibid 169 line 8.
It is clear that the trial judge thought that the further exploration of the complainant’s overdose episode was irrelevant or of such peripheral relevance to the complainant’s credit that it should not be continued. Like his ruling as to the evidence relating to the sex shop, his Honour’s ruling as to this topic can be justified as a proper exercise of the discretion conferred by s 37(b) of the Evidence Act 1958. In the circumstances, there is no warrant for any interference by this Court with the trial judge’s ruling.
Neither of the complaints made under ground 2 should be upheld.
Ground 3
As has already been noted, the trial judge gave directions as to the ‘uncharged acts’ in this case twice ― once when the evidence as to them was led and subsequently in his charge to the jury. This ground complains that although those directions instructed the jury as to how they could not use such evidence, they did not properly instruct the jury as to how they could use it.
No exception was taken to either part of his Honour’s directions and no question was ever raised as to the relevance of the train room assaults to the Crown case in respect of counts 4, 5, 6 and 7. The trial judge directed the jury that the evidence of the ‘uncharged acts’ was relevant to proof of a ‘sexual interest’ of the applicant in the complainant and provided a ‘context’ in which, on the Crown case, the events charged in counts 4, 5, 6 and 7 occurred. He gave appropriate anti‑substitution and propensity warnings and directed the jury to confine their consideration of the uncharged acts to the existence of a ‘sexual interest’.
As this Court (Winneke P, Callaway JA and Southwell AJA) said in R v Vonarx,[28] the purpose of evidence of the kind with which this ground is concerned is:
proving an improper sexual relationship or guilty passion which existed between the accused and the victim, tending to make it more likely that the offence charged in the indictment was in fact committed.[29]
[28][1999] 3 VR 618.
[29]Ibid 622.
Their Honours referred to R v Ball,[30] R v Beserick,[31] S v The Queen,[32] Harryman v The Queen[33] and to the statement of Deane J in B v The Queen[34] that such evidence can be used by the jury as:
the key to an assessment of the relationship between the applicant and [the victim] and, as such, constitute[s] part of the essential background against which both the [victim’s] and the applicant’s evidence of the alleged offences necessarily [falls] to be evaluated.[35]
[30][1911] AC 47.
[31](1993) 30 NSWLR 510, 522–3 (Hunt CJ at CL).
[32](1989) 168 CLR 266.
[33](1989) 167 CLR 590, 631 (McHugh J).
[34](1992) 175 CLR 599.
[35]Ibid 610.
The trial judge’s direction as to uncharged acts contained no error of commission. However, it could be said that his Honour did not relate the findings as to context and sexual interest that the jury might legitimately make to the events constituting counts 4, 5, 6 and 7. It is true, as his Honour said, that the evidence of uncharged acts was admitted in this case for the limited purpose referred to. However, he did not go on to explain the consequence of such findings ― namely, that the jury might then reason that the probability of the events constituting counts 4, 5, 6 and 7 was enhanced. Thus it could be argued that he made an error of omission.
The trial judge’s directions adequately protected the applicant from impermissible substitution or propensity reasoning. Having regard to the fact that no exception was taken to the direction at trial, this Court should infer that counsel for the applicant perceived no danger to his client in not seeking a redirection of greater amplitude on this point. Even if there were a deficiency in the relevant direction, nothing the trial judge said was to the detriment of the applicant and, in the circumstances, the deficiency did not lead to a substantial miscarriage of justice. It could well be argued that the trial judge’s direction was unduly favourable to the applicant. This ground should not be upheld.
Ground 4
This ground complains that the trial judge failed to give an adequate Longman direction.
In the course of his charge, the trial judge gave a lengthy direction as to delay in complaint to the jury. That direction pointed out the length of the delay, the relevance of delay to the jury’s overall assessment of the case, the complainant’s explanation for the delay, the forensic disadvantage to the applicant and the effect of the delay on his capacity to defend the charges against him. Subsequently, in the context of the Crown’s onus of proof, his Honour directed the jury that they should not return a verdict of guilty unless, having scrutinised the evidence with great care and having considered all of the circumstances relevant to its evaluation, they were satisfied beyond reasonable doubt of the truth and accuracy of the complainant’s account.
The argument of the applicant in this Court was that the direction given by the trial judge was not adequate in that it failed to carry with it ‘the stamp of judicial approval as required by the authorities’.[36] This submission cannot be sustained. A reading of the passages in the trial judge’s charge to which reference has been made above leaves no doubt whatsoever that those parts of the charge were being given to the jury as directions which they were required to follow. Not only did the trial judge use language of direction in relation to those matters, he did so with sufficient and appropriate emphasis. If there were any deficiencies in the trial judge’s directions on this matter, they did not adversely affect the applicant’s case. This ground cannot be sustained.
[36]Since the amendments made to s 61 of the Crimes Act 1958 by the Crimes (Sexual Offences) (Further Amendment) Act 2006, it is doubtful whether ‘the authorities’ to which the applicant’s submission made reference have any application: see Crimes Act 1958 ss 61(1A)–(1F), (2)–(3). No reference was made to any of these provisions in the course of this application.
Ground 5
This ground, which was added by amendment on the hearing of this application, complains that the applicant’s trial was unfair by reason of the complainant’s delay in making her allegations against him. Although a separate submission was made by counsel for the applicant and responded to by an extremely helpful submission from the Crown, the ground was not developed in oral argument and, having regard to the relevance of delay to ground 1 and the conclusions I have reached on that ground, it is unnecessary to consider it separately.
Conclusion
The applicant’s application for leave to appeal should be granted on ground 1, the appeal treated as instituted and heard instanter and allowed, the verdicts of the jury in respect of counts 4, 5, 6 and 7 and the conviction of the applicant on each of those counts set aside and verdicts of acquittal entered. The order of the County Court requiring the applicant to be registered under the Sex Offenders Registration legislation should be set aside.
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