AJP (a pseudonym) v The Queen

Case [2022] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL
S EAPCR 2021 0185
AJP (A PSEUDONYM)[1] Applicant
v
THE QUEEN Respondent

[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES: PRIEST, McLEISH and WALKER JJA
WHERE HELD: Melbourne
DATE OF HEARING: 22 August 2022 
DATE OF JUDGMENT: 2 September 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 187
JUDGMENT APPEALED FROM: [2012] VCC 1830 (Judge Campton)

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CRIMINAL LAW – Appeal – Conviction – Fresh evidence – Applicant convicted in 2012 of common assault, incest and making threat to kill – Incest charge based on allegation that applicant inserted blunt object into complainant’s anus – Expert evidence adduced at trial that complainant had anal fissure which could be caused by insertion of blunt object, as well as by other things – Complainant told police he had never done anything that could have caused any injury to his anus – Complainant gave evidence that he told no one about abuse until 2008 – Complainant gave evidence at later, unconnected committal that he had inserted object into own anus on different occasion – Complainant also gave evidence at later committal that he told another person about abuse before 2008 – Fresh evidence could have affected jury’s assessment of complainant’s credibility – Evidence could have provided alternative explanation for complainant’s injury – Substantial miscarriage of justice because fresh evidence gave rise to significant possibility jury would have acquitted if evidence available at trial – Sentence already served in full – Appeal allowed – Orders for acquittal.

Criminal Procedure Act 2009, ss 276, 277.

R v Nguyen & Tran [1998] 4 VR 394; R v A2 (2019) 269 CLR 507, applied.

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Counsel
Applicant: Ms CA Boston and Ms H Canham
Respondent: Mr CB Boyce QC

Solicitors
Applicant: Leanne Warren & Associates
Respondent: Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

PRIEST JA

MCLEISH JA

WALKER JA:

(1).... Introduction

(2).... Relevant principles

(3).... The parties’ submissions

(4).... Relevance and admissibility

(5).... Significant possibility of acquittal?

(a)          The evidence concerning the anal fissure

(i)     The first complaint to police

(ii)    Dr Stillger’s examination

(iii)   The complainant’s 2010 statement to police

(iv)   The complainant’s evidence at the applicant’s committal

(v)     Dr Parkin’s examination of the complainant

(vi)   The complainant’s evidence at the applicant’s trial

(vii)  The complainant’s mother’s evidence at the applicant’s trial

(viii) Dr Parkin’s evidence at the applicant’s trial

(ix)   The prosecution’s closing address

(x)     Defence counsel’s closing address

(xi)   The judge’s charge

(b)          The bike pump evidence

(c)          Did the bike pump evidence raise a significant possibility of acquittal?

(i)     The complainant’s credibility

(ii)    The causation issue

(d)          The evidence about first complaint

(6).... Conclusion

PRIEST JA

  1. I agree with Walker JA.

MCLEISH JA

  1. I agree with Walker JA.

WALKER JA:

(1)Introduction

  1. In 2012 the applicant was convicted of one charge of common…

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AJP (a pseudonym) v The Queen [2022] VSCA 187
Case
[2022] VSCA 187
Decision Date

CaseChat Overview and Summary

In AJP (a pseudonym) v The Queen, the applicant appealed against his 2012 convictions for common assault, incest, and making a threat to kill, arguing that fresh evidence could have affected the jury’s assessment of the credibility of the complainant. The fresh evidence related to the complainant’s medical history and the possible causes of his anal injury, which was central to the incest charge. The applicant contended that the fresh evidence could have provided an alternative explanation for the injury and undermined the complainant's credibility.

The court was required to determine whether the fresh evidence was of such a nature that, if it had been available at the time of the trial, it would have led the jury to acquit the applicant. The court considered the potential impact of the fresh evidence on the jury’s assessment of the complainant’s credibility and whether there was a significant possibility that the jury would have acquitted the applicant if the evidence had been available. The court also had to decide whether to order a retrial or enter a verdict of acquittal.

The court found that the fresh evidence could have affected the jury’s assessment of the complainant’s credibility and provided an alternative explanation for the anal injury. The court concluded that there was a significant possibility that the jury would have acquitted the applicant if the fresh evidence had been available at the time of the trial. The court also considered factors such as the applicant having served his entire sentence, the lengthy delay between the alleged offending and any potential retrial, and the respondent’s concession to enter verdicts of acquittal. Based on these considerations, the court allowed the appeal and set aside the applicant’s convictions on all charges, ordering judgments of acquittal to be entered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Counsel for the applicant said as follows in her address:The medical evidence doesn’t assist you and I’ll come back to the medical evidence because there’s some very important aspects of that that would assist you or will assist you in rejecting [the complainant’s] evidence and I’ll come back to that.…A very good example of the danger of making an unfounded assumption in a situation like this, and that’s the assumption that was made both by Dr Parkin, the doctor who came along and gave medical — medical opinion evidence in this case and apparently her predecessor Dr Stillger who’s the doctor in Tasmania that you heard about that also examined [the complainant]. Dr Stillger and Dr Parkin both assumed apparently that there was no relevant medical history that might have caused the injury that Dr Stillger saw and the apparent healed injury that Dr Parkin saw that you might think was the same injury. Both of them assumed there was no history of — there was no medical history of relevance and there was no medical history of constipation. They both assumed apparently that because the bowel biopsy that Dr Stillger was told about by [the complainant’s mother] in the presence of [the complainant] if you accept [the complainant’s mother’s] evidence, and that Dr Parkin knew about because it was on the notes, they both assumed that the bowel biopsy was normal that procedure couldn’t have any relevance to what they observed when they examined [the complainant]. Now, true enough, the prosecutor has conceded that that evidence doesn’t assist the case. But just pause before you put that evidence to one side, and think about how dangerous it can be to make an assumption about something as important as that. Because it’s more good luck than good management that we’re now at the point where the Crown isn’t relying upon that evidence to support the evidence of the complainant.…You now know that this young man experienced anal trauma — if you want to call it that — because of medical procedures before and during the time that he complains he was abused by [the applicant]; he was suffering from a medical condition that he purports not even to remember and that he didn’t bother to tell the second doctor, Dr Parkin, about when he was examined by her. And you could have been sitting here in the position of listening to evidence about an injury which could be consistent with what [the complainant] complained of without knowing anything about that and how dangerous would that have been and how tempting would it have been for you to use that as evidence to support [the complainant]. And two medical practitioners made an assumption that they shouldn’t have made and potentially could have made a conclusion on the basis of that, so that’s the danger of making assumptions and not looking into things properly and not examining things properly.[14][14]Emphasis added. Later the applicant’s counsel returned to the medical evidence, as follows:Now, since I’ve come back to the medical evidence, can I ask you to think about some of the other things that [the complainant] said in this court and to Dr Parkin about his history and the medical issues and how they affect his credibility as well? Because again, when you look at what he told Dr Parkin, and when you look at what he told the court about his medical examination, you’ve got great conflict in his evidence, and lies or false statements or inaccurate statements about really important things in the context of this investigation and this case. He told you in this court that he didn’t know anything about the bowel biopsy, but his mother says in February 2000, he was present when she told Dr Stillger about it. And he remembered me asking him questions about it at the committal hearing, which was prior to his consultation with Dr Parkin. So, he knew there was a bowel issue there and he knew there was a constipation issue there, even if he didn’t have a personal memory of it. A truthful person, when asked about his medical history and history of constipation by Dr Parkin, would’ve said to the doctor, ‘Well, I can’t remember, but my mother has said I had constipation when I was a child’, or, ‘I believe I had a biopsy when I was a child’, ‘I don't remember it, but I think there is a history there’.Dr Parkin told you that he was lucid and cooperative when she consulted with him. She didn’t support his assertion that he was crying and emotional. She asked him things and he gave a medical history, and he was able to tell her about the seizures. Yet, he was completely untruthful about the most relevant part of his medical history. So, what does that say about his honesty and reliability? Then, even more significantly, you had the evidence about what else he said to Dr Parkin. Dr Parkin said quite clearly, ‘[the complainant] acknowledged that he had been referred to the surgeon’, and you remember the evidence from the notes about the letter of referral to doctor — I think it was Dr Alsaffer. Dr Parkin said, ‘[the complainant] acknowledged that he’d been referred to the surgeon. He said that he hadn’t actually gone to the surgeon. And he acknowledged that he had received the ointment or been prescribed the ointment and applied it’. But then he said to you, this jury, when I asked him about that, he said, ‘No, I was never sent to any surgeon’, ‘No, I never — I was never given any ointment, I never had any treatment about this’. And he was outraged that I suggested that to him. But there, you’ve got the evidence about it, you’ve got the medical evidence about that occurring and what he said to Dr Parkin. Now, you need to be pretty cynical, in my submission, about what you make of that evidence, and I would submit to you that you can conclude from that evidence that [the complainant] deliberately made up the story about not having any treatment because he wanted to create the impression that he still had an injury and that that injury was linked to what he says [the applicant] did. I mean, [ask] yourselves how could he possibly have forgotten treating a longstanding injury, a longstanding untreated injury, and being referred to a surgeon? How could he possible forget that. And if he did forget that, between November last year — I think it was 28 November last year and now — then how can you possibly believe that he really has an accurate memory of anything? What I say to you is this, he lied to this court about the treatment and referral because he was determined to make his injury look worse than it was and determined to try and link those so-called symptoms to the allegations against [the applicant]. You should take that lie very seriously. He told the doctor a deliberate lie about his history and his symptoms in the same way he told a pack of lies to you about that treatment and referral. He was determined to try and have that man convicted, regardless of what the truth really is. And you should take those lies very seriously, and you should take what I say are lies to this court very seriously.[15](xi)The judge’s charge[15]Emphasis added.

Decision

Reasons for decision

I note for completeness that I do not consider it necessary to rely upon the complainant’s evidence in his 2018 statutory declaration and at the Keasts’ committal concerning his suicide attempts, and his mental health more generally.(6)Conclusion For the reasons given above I would grant leave to appeal and allow the appeal. It then remains to consider what orders ought to be made in light of that conclusion. First, there is a question whether that conclusion means that each of the applicant’s convictions ought to be set aside, or only his conviction on charge 6 (incest). The respondent conceded that, if the conviction on charge 6 was set aside, so too should the convictions on charges 1 and 7. That concession was properly made. The matters canvassed above are principally directed to whether there was a significant possibility that the jury, acting reasonably, would have acquitted the applicant of incest. However, if the jury had acquitted the applicant on the charge of incest (as well as on the other charges on which they acquitted him), there is also a significant possibility that they would have acquitted him on charge 1 (common assault) and charge 7 (threat to kill). The threat to kill the subject of charge 7 was said to have occurred on the same occasion as the events the subject of charge 6. And although the same cannot be said of charge 1, the fresh evidence goes to the complainant’s credibility; had the jury determined him to be untruthful, there is a significant possibility that they would have acquitted the applicant on charges 1 and 7. For those reasons, I consider that the applicant’s convictions on each charge ought to be set aside. The second issue concerns whether an acquittal on each charge ought to be entered. Section 277 of the Criminal Procedure Act 2009 provides that, if the Court allows an appeal against conviction, it must set aside the conviction and either order a retrial or a judgment of acquittal. That reposes a discretion in the Court.[25] Unless the interests of justice require the entry of a verdict of acquittal, ordinarily an appellate court would order a new trial where there is sufficient evidence to support a conviction.[26] However, there may be factors that suggest that, in a particular case, such a course is not appropriate.[27][25]R v A2 (2019) 269 CLR 507, 534 [85] (Kiefel CJ and Keane J); [2019] HCA 35 (‘A2’). [26]A2 (2019) 269 CLR 507, 534 [84] (Kiefel CJ and Keane J); [2019] HCA 35.[27]A2 (2019) 269 CLR 507, 534 [85] (Kiefel CJ and Keane J); [2019] HCA 35, citing R v Taufahema (2007) 228 CLR 232, 256–7 [55]; [2007] HCA 11. There, Gummow, Hayne, Heydon and Crennan JJ identified the following matters as factors that ‘conventionally point against orders for new trials’: where a significant part of a sentence has been served; the expense and length of a second trial; where the length of time between the alleged offence and the new trial will prejudice the accused. In the present case the applicant’s counsel contended that, given that the applicant had served the entirety of his sentence, this Court should enter a judgment of acquittal. That does not, of itself, necessarily mean that an acquittal should be ordered.[28] However, it is also significant that any new trial would occur some 25 years after the alleged offending, with the attendant problems that such delay would bring to any new trial. Further, the respondent conceded that verdicts of acquittal should be entered. Taken with the other factors, I consider that concession to warrant the entry of a judgment of acquittal.[29][28]Mokbel v DPP (Cth) [2021] VSCA 94, [61] (Beach and Osborn JJA).[29]See, eg, Carrott v the Queen [2013] VSCA 90, [69] (Priest JA, Ashley agreeing at [1], Weinberg JA agreeing at [4]; see also Walker v The Queen [2014] VSCA 177, [53] (Osborn JA, Weinberg JA agreeing at [1], Priest JA agreeing at [56]).

Ratio Decidendi

Legal Principle Established

The judge dealt with Dr Parkin’s evidence concerning the anal fissure at several different places in her charge. First, she explained that Dr Parkin was permitted to give opinion evidence because of her expertise. Second, she referred to Dr Parkin’s evidence when directing the jury about inferences, as follows:You have heard evidence in this case about the anal fissure that the accused had when Dr Stillger examined him in 2009 — sorry, the complainant had in 2009. You have heard evidence from Dr Parkin of scar tissue which was in more or less the same position when she examined the accused. As defence counsel quite rightly pointed out [in her] closing address, you have also heard evidence of the [complainant], as a young child, having a history of, I suppose you could refer to it as chronic constipation. You have heard evidence from Dr Parkin that there are a number of causes for or that could be responsible for someone having an anal fissure and they include explosive diarrhoea, Crohn’s disease, and constipation. In other words, if we go back to the example that I have given you about the danger of drawing inferences, you will see in this case that while you might say that penetration by an object could cause an anal fissure, so could explosive constipation, so could Crohn’s disease, and so could explosive diarrhoea. In this case, the matter becomes even more important that you do not draw an inference where it is not appropriate, given that the evidence is that the complainant in this case has a history, as a young child, of chronic constipation, and also a history of penetration of his anus by possibly doctors or nurses to get out impacted faeces. So, that is a really important direction I have given you in relation to the drawing of inferences.[16] [16]Emphasis added. Later in her charge, the judge returned to the medical evidence in the course of summarising the evidence, as follows:Now, you heard — this case you heard some evidence in relation to a medical condition that the accused suffered from and that was the anal fissure and Dr Parkin gave some evidence about that. I am just going to summarise what she said. I am not going to go through all her evidence and all her cross-examination but I will be bringing some — there were some issues which I am going to bring to your attention. In summary, she said that on examination she found evidence of scar tissue in what she called the 6 o’clock position of the anus and she said that scar tissue indicated that there may have been a fissure there. She said that a fissure is a tear or laceration in the perimetral area which is the pigmented area outside the anus that you can actually visualise. She said that there was no way that a doctor is able to age an anal fissure with any degree of certainty. And she said there were multiple explanations for a fissure including blunt force trauma, constipation, explosive diarrhoea, Crohn’s disease, inflammation. Cross-examination — she agreed the most she could say was that the anal fissure which she had not actually observed because she saw the scar tissue could have been consistent with some form of trauma to the anus of the complainant.[17] [17]Emphasis added.