Allen (a pseudonym) v The Queen
[2013] VSCA 263
•20 September 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0252 | |
| REGINALD ALLEN (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH, COGHLAN JJA and T FORREST AJA | |
| WHERE HELD | BALLARAT | |
| DATE OF HEARING | 31 May 2013 | |
| DATE OF JUDGMENT | 20 September 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 263 | 1st Revision 24 Sept 2013 [11], [35], [37] |
| JUDGMENT APPEALED FROM | (Unreported, County Court of Victoria, Judge Tinney, 19 October 2012) | |
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CRIMINAL LAW – Appeal against conviction on charges of indecent assault and rape – Complainant cognitively impaired and suffering from schizophrenia – Request made by counsel for an unreliability direction – Section 165(1)(c) of Evidence Act 2008 – Whether evidence of a kind that may be unreliable – Warning at common law where witness suffering from mental ill health – Bromley v The Queen (1986) 161 CLR 315 considered – Whether s 165 requires different approach – Divergent views of intermediate Courts of Appeal – R v Flood [1999] NSWCCA 198; R v Stewart (2001) 52 NSWLR 301; Lane v The Queen (1996) 66 FCR 144 – Whether reasonable possibility that evidence of a kind that may be unreliable – Role of trial judge – Whether ‘good reason’ for not giving warning – Issue at trial whether the sexual assaults were consensual – Evidence at trial of the complainant’s mental health history – Jury conscious of potential unreliability – Leave to appeal refused.
CRIMINAL LAW – Sentence – Total effective sentence of eight years and three months – Whether sentence manifestly excessive – Leave to appeal refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | Victoria Legal Aid |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA
COGHLAN JA
T FORREST AJA:
On 15 August 2012, the applicant was convicted of three charges of indecent assault and one charge of rape following a jury trial in the County Court sitting at Ballarat. The offences were said to have occurred on 18 January 2010.
Following a plea, the applicant was sentenced on 19 October 2012 as follows:
| Charges on Indictment | Offence | Maximum | Sentence | Cumulation | |
| 1. | Indecent assault [Crimes Act 1958 s 39(1)] | 10 years [Crimes Act 1958 s 39(1)] | 18 months | 4 months | |
| 2. | Indecent assault | 10 years | 12 months | 2 months[1] | |
| 3. | Indecent assault | 10 years | 30 months | 9 months[2] | |
| 4. | Rape [Crimes Act 1958 s 38(1)] | 25 years [Crimes Act 1958 s 38(1)] | 7 years | Base | |
| Total Effective Sentence: | 8 years 3 months’ imprisonment | ||||
| Non-Parole Period: | 6 years | ||||
| Pre-Sentence Detention Declaration: | 69 days | ||||
| 6AAA Statement: | N/A | ||||
| Other Orders: Sentenced as a Serious Sexual Offender on Charges 2 and 3; Forensic Sample Retention Order. | |||||
[1]Expressed in the sentencing remarks as 10 months to be served concurrently– see (‘Reasons’) DPP v [Allen] (Unreported, County Court of Victoria, Judge Tinney, 19 October 2012) [82].
[2]Expressed in the sentencing remarks as 21 months to be served concurrently. See Reasons, [82].
The offences are all said to have occurred on 15 January 2010.
The appeal
The applicant originally filed four grounds of appeal against conviction and two grounds of appeal against sentence. Counsel for the applicant on this appeal abandoned three of the conviction grounds and one of the sentence grounds.
The surviving grounds are as follows:
Ground 2 — conviction
(a) the trial judge erred in failing to give an unreliability warning;
(b)a miscarriage of justice resulted from the failure to give an unreliability warning;
Ground 2 — sentence
(a)that, in all the circumstances, the sentences imposed were manifestly excessive.
No separate hearing for leave to appeal has been conducted. The hearing proceeded as an application for leave to appeal and, should leave be granted, the appeal itself.
Background to the offending
Given the relatively confined nature of this appeal it is unnecessary to provide a detailed background to the offending. It is sufficient to set out the following:
The complainant was at the time a 59-year-old cognitively impaired woman who suffered from schizophrenia. Her full score I.Q. was 55. The complainant was obviously disabled.
The applicant delivered furniture for the Salvation Army. He had, in the past, delivered furniture to the complainant’s unit in Wendouree. The complainant lived alone.
On 13 January 2011, the applicant arrived unannounced at the complainant’s unit. She allowed him to enter. He touched her on the breasts and nipples (Charge 1), he placed his hand outside her pants and in her genital area (Charge 2), he pulled out his penis and placed the complainant’s hand on it (Charge 3) and then in the bedroom of the unit penetrated the complainant’s vagina with his penis ultimately ejaculating on a doona (Charge 4). On the complainant’s account all of these activities took place without her consent.
The applicant in evidence maintained that he was invited to the complainant’s unit, she made the sexual advances touching his groin and they then participated in consensual sexual intercourse.
In a police interview the applicant denied having sex with the complainant. In evidence he said he lied because he was worried that his wife would discover his activities.
Thus the jury had before it competing accounts. The applicant sought to portray the complainant as an unreliable historian. In developing this he relied upon a combination of the complainant’s chronic mental illness and factual inconsistencies in her account.
Ground 2 — Conviction
In substance this ground argues that his Honour was obliged to give an unreliability warning in the terms prescribed by s 165 of the Evidence Act 2008, and that in declining to do so occasioned a substantial miscarriage of justice.
Section 165(1) of the Act provides relevantly as follows:
(1)This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:
…
(c)evidence the unreliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
…
(2) If there is a jury and a party so requests, the judge is to
(a) warn the jury that the evidence may be unreliable; and
(b)inform the jury of the matters that may cause it to be unreliable; and
(c)warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)The judge need not comply with subsection (2) if there are good reasons for not doing so.
If the evidence is of a kind that may be unreliable, upon request a judge is required to warn the jury in the prescribed manner unless there are good reasons for declining that request. Trial counsel for the applicant made the request and his Honour declined it. The issues under part (a) of this ground are therefore whether the evidence was of a kind that may be unreliable and if so whether his Honour had good reasons for taking the course that he did.
Section 165 has its origins in what was a common law requirement that a mandatory warning was required in respect of three categories of witnesses.[3] The raison d'etre of the rule at common law requiring a warning to be given was ’to ensure that the jury is alive to the danger of convicting on the uncorroborated evidence of a class of witnesses whose testimony may be untruthful’.[4] Most of the categories dealt with in sub-s (1), whilst no longer making warnings mandatory, are reflective of the common law experience which led to the presumption that such evidence may be unreliable.
[3]Reg v Hester (1973) AC 296, 325 (Lord Diplock).
[4] Kelleher v The Queen (1974) 131 CLR 534, 560 (Mason J).
Further categories of a ‘suspect witness’ were also recognised at common law where a warning while not mandatory ‘may’ be necessary. In Rozenes v Beljajev,[5] Brooking, McDonald and Hansen JJ discussed the meaning of ‘unreliability’ recognising that of primary importance is the potential unreliability of the source:
‘Unreliability’ for this purpose does not mean the actual falsity or inaccuracy of the evidence: it means the risk or probability that, by reason of the position of the accomplice, his evidence will be false or inaccurate. ‘Unreliability’ means what has been described by the High Court as ‘potential unreliability’ on a number of occasions in considering whether the position of a witness required that a warning about corroboration, or some similar warning, be given. See Bromley v R (1986) 161 CLR 315 at 319 per Gibbs CJ (‘potentially unreliable’); Pollitt v R (1992) 174 CLR 558 per Deane J at 586 (‘liable to be unreliable’; ‘prima facie unreliability’) and 587 (‘potential unreliability’); per Dawson and Gaudron JJ at 599 (‘potentially unreliable’); per Toohey J at 605 (‘potentially unreliable’); per McHugh J at 614 (‘potentially unreliable’).
‘Unreliability’ of evidence is a matter of degree: almost all evidence is, we suppose, unreliable in the sense that there is a risk or probability that it will not be accurate in every respect. The expression is used in the cases dealing with warnings to be given to juries to convey that the evidence in question is unreliable to what might be called an uncommon degree.[6]
[5][1995] 1 VR 533.
[6]Ibid 549–550. See also Jenkins v The Queen (2004) 79 ALJR 252, 256 [25].
One category of potential unreliability were witnesses suffering from mental disorder. In Bromley v The Queen[7] it was argued that the fact that a principal witness was a schizophrenic made his evidence so inherently unreliable that it was necessary for the learned judge to direct the jury that it would be dangerous for them to act on it unless it was corroborated and to explain to them what evidence was capable of amounting to corroboration. Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed, said:
What is required, in a case where the evidence of a witness may be potentially unreliable, but which does not fall within one of the established categories in relation to which the full warning as to the necessity of corroboration must be given, is that the jury must be made aware, in words which meet the justice of the particular case, of the dangers of convicting on such evidence. Where a warning is required as to the way in which the jury should treat the unsupported evidence of a witness whose evidence is potentially unreliable, the question is ’Was that warning sufficient? Did it in clear terms bring home to the jury the danger of basing a conviction on the unconfirmed evidence of the complainants?’ There is nothing formal or technical about this rule.
If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.[8]
[7] (1986) 161 CLR 315 (‘Bromley’).
[8]Ibid 319.
Brennan J said:
The reasons why a person suffering from a mental disorder might be led to give untruthful evidence depend, I suppose, on the nature and severity of the mental disorder. The effects of various kinds and degrees of mental disorders on a witness's capacity to observe, to recollect and to express accurately the matters he is to depose to and on his willingness to give truthful evidence are, I imagine, quite diverse. But the courts have no scientific knowledge about the danger of acting on evidence given under the influence of mental disorders of various kinds and degrees, nor have they acquired any experience of the danger of acting on evidence given by persons suffering from a mental disorder wider than the experience of the general public.
The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer (at p.353) ’partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind’. (See also per Lord Ackner at p.359 and per Lord Diplock in Hester, at p.325.) If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given. As Barwick C.J. said in Kelleher, at p.543:
‘The rule of practice as to the warning to be given to the jury is related to the reasons which have prompted it. In my opinion, it does not require a warning where those reasons have no play.’
When the danger is not obvious to the lay mind, the absence of the usual warning may leave a Court of Criminal Appeal unable to say that a reasonable jury properly directed on the evidence would have convicted. In such a case, there is a miscarriage of justice warranting the quashing of the conviction: R. v. Bassett [1952] VicLawRp 75; (1952) VLR 535, at p 538. ...
It cannot be said that a conviction on the uncorroborated evidence of a person suffering from a mental disorder, whatever the kind or degree of the disorder may be, is generally, in the absence of a warning pointing out the danger, a miscarriage of justice. If the mental disorder is quite trivial and transient, it may be quite irrelevant to the credit which might properly be given to the witness's evidence. And if the nature, severity and significance of the witness's mental disorder is deposed to by persons qualified to do so, that may bring home to the jury more vividly and more authoritatively than a judicial warning the danger of acting upon the witness's evidence without corroboration.[9]
[9]Ibid 324-5.
Gibbs CJ’s approach can be seen in Brooks v The Queen[10] where ‘important witness[es] with a mental disability’ were described by the Court (Phillips CJ, Batt and Buchanan JJA) as falling into a ‘specific categor[y] of witnesses in respect of whom a special warning is by law or practice required’.[11] The judgment would later continue:
That expression [‘potentially unreliable witness’] does not include a witness who may possibly or may well be wrong, and a warning of the kind in question is not required for a witness of whom no more than that can be said. The expression requires, I consider, a pre-existing proneness to or likelihood of unreliability which is inherent in the general nature of the witness or his or her relationship to the accused, the victim or the events. Thus, a drug-affected person, a mentally disabled person, and an alternative suspect are persons whose general description shows them to have the potentiality or latent capacity to be unreliable.[12]
[10](1999) 103 A Crim R 234.
[11]Ibid 243 [29].
[12]Ibid 244 [29] (emphasis in original).
Gans and Palmer write that the overall operation of s 165 remains overshadowed by the common law.[13] The Full Court of the Federal Court in New Zealand v Moloney[14] noted that the Evidence Act (NSW) did not affect the general common law rule requiring unreliable warnings, save for those abolished by s 164(3).
[13]Jeremy Gans and Andrew Palmer, Uniform Evidence, (Oxford University Press, 2010) 376.
[14](2006) 235 ALR 658.
Section 165(1)(c) is concerned with evidence of a kind ‘the reliability of which may be affected by age, ill health(whether physical or mental), injury or the like’. As Bromley shows, mental ill health will only affect the reliability of evidence in limited circumstances. The same may be said of other forms of ‘ill health’, ‘age’ and ‘injury’.
There must be a request for a warning within the meaning of s 165(2). Plainly, mere assertions of unreliability will be insufficient to enliven s 165 unless accompanied by some evidence of it. Warnings otherwise may be given routinely and without careful thought.[15] As Heydon J with whom Crennan J agreed said in Evans v The Queen[16] the request must relate to ‘evidence of a kind that may be unreliable’ and the request must identify what the ‘kind’ of evidence is, why it is unreliable and what the terms of the warning should be. But the need to give a warning may arise when the judge assesses the evidence may be unreliable even when no request is made.[17] Whether and in what form a warning should be given remains a largely unfettered discretion informed as always by the need to ensure that there is no perceptible miscarriage of justice.
[15]Subject of course to s 165(3).
[16](2007) 235 CLR 521.
[17]R v Williams (1999) 104 A Crim R 260, 268 [34]; R v Andelman [2013] VSCA 25, [57].
As a request was made based upon the attribute of the complainant’s mental ill health and intellectual disability, a closer examination of the evidence that touched upon the potential unreliability of the complainant is required.
The complainant’s evidence was taken at a pre-recorded hearing.[18] She was asked in cross-examination about her mental state in January 2010. She agreed she was stressed at that time. She said she had ’illness, schizophrenia problems, and I had dementia, bad dementia too’. She said she had dementia ’for a couple of months there as well. The doctor told me that I had dementia’.
[18]Criminal Procedure Act 2009 (Vic), Part 8.2 Division 6.
Dr Patange was the complainant’s treating psychiatrist. By agreement, his evidence at an earlier trial was read to the jury. He said that he had treated the complainant since February 2012. The complainant suffered from a mild intellectual disability, having a full scale I.Q. of 55. She also suffered from chronic schizophrenia with associated thought disorder, more pronounced when she was unwell. She was able to live independently save for help with her medications and food. As at June 2012 she had not suffered from delusions for three or four months. Dr Patange said that the complainant’s ’memory was fine. She can recall things historically’. She was receiving (in June 2012) medication for her schizophrenia and mood disturbance.
In cross-examination, Dr Patange accepted that the complainant had in the past reported both auditory and visual hallucinations. These were in addition to her delusional thinking, thought disorder and mood disturbance. He reiterated that he thought that her memory remained intact.
Two police officers who attended upon the complainant on the evening of the alleged offence described the complainant in an agitated, emotional state. A field report was submitted by Senior Constable Cummins. Relevantly, it read:
…reporting being raped by U/K male. Inconsistencies in story. Mental health issues. Nil evidence to support story.
This evidence was adduced in cross-examination without objection. Senior Constable Greenwood, whose evidence included the complaint of rape, said that the complainant was polite and friendly but ’very confused … It was very hard to comprehend what she was saying’.
As we have observed, trial counsel requested a s 165(1)(c) unreliability warning. He relied essentially on the evidence we have reviewed in the preceding paragraphs. His Honour correctly identified the three preconditions that we have referred to in paragraph 10 of these reasons:
(a)there must be a request for the warning; and
(b)the evidence is of a kind that may be unreliable; and
(c)that the warning must be given unless there are good reasons for not doing so.
Was the evidence of a kind that may be unreliable (s 165(1))?
His Honour concluded that the evidence was not of such a kind.
The fact that a witness fits into a listed category is not decisive of the unreliability, or for that matter the need to give a warning such as that contemplated by the provisions…
It requires a judge in my position to form views, to resolve questions as to the possibility of unreliability to make such judgments on the balance of probability.
I have to look at the various factors at play that might cause the evidence to be unreliable.
His Honour identified the evidence said to justify the warning. He concluded that on the evidence the various conditions did not impact upon the complainant’s ability to recollect and narrate the disputed events which centred not around whether sexual intercourse occurred but whether it was consensual. His Honour then said:
…Ultimately I am not satisfied that the very fact of her having a mental illness or an impairment necessarily triggers the application of s 165(c). I am not satisfied, on the balance of probabilities that her evidence is unreliable in the circumstances, or might possibly be unreliable.
In New South Wales, and elsewhere there has been some division of opinion on the application of s 165. In R v Clark[19] Heydon J, with whom Dowd and Bell JJ agreed said that the issue is not limited to whether the witness falls within the category specified – in that case para (d) – but whether the evidence which the witness gave was ‘of a kind that may be unreliable’. That is, the opening words of s 165(1) were to be viewed as qualifying each of the sub-paragraphs.[20]
[19](2001) 123 A Crim R 506.
[20]Ibid 548 [70] (Heydon JA, Dowd & Bell JJ concurring.)
Subsequently the further view emerged in NSW that the phrase ‘evidence of a kind that may be unreliable’ requires more than that witness falls within one of the enumerated categories in s 165(1) of the Act and that the judge must come to a view that the actual evidence given is, or may potentially be unreliable. Under this approach there has been an inclination to take a less literal and more restrictive approach to the language and to impose a requirement that there be an analysis of the actual evidence.[21]
[21]R v Flood [1999] NSWCA 198; R v Fowler [2003] 151 A Crim R 166; R v Harbulot [2003] NSWCCA 141.
His Honour’s approach was, it appears, informed by this more restrictive approach to be found in the observations in R v Flood,[22] where Spiegelman CJ said that the section applied ’a test of possibility’.[23] Paragraph ‘c’ ’plainly turns upon an issue of possibility namely that the evidence ‘may be affected … by ill-health …’.[24] Spiegelman CJ held that in order to apply the section
a fact finding exercise on the part of the trial judge was required as to whether or not the reliability of the complainant’s evidence in the instant case ‘may be affected’ by a mental condition.[25]
[22][1999] NSWCCA 198.
[23]Ibid [3].
[24]Ibid.
[25]Ibid [4].
The onus to demonstrate this possibility rested on the party seeking the unreliability warning; the standard to which the possibility must be demonstrated is the balance of probabilities.[26] Spiegleman CJ saw advantage in this less literal approach:
The word kind is a word of breadth and generality which may be appropriate to read down. Any reason that could be advanced for questioning the reliability of evidence in the specific circumstances of a case can be stated at different levels of generality. Once stated at a level of generality higher than the specific facts of a particular case, such a reason could satisfy the description of ’a kind’ of evidence. That would have the result in every case in which an assertion of lack of reliability is made, the compulsory provisions
for a warning or request in s 165(2), would apply subject only to the exception in s 165(3).[27]
[26]Ibid [4]; s 142 Evidence Act 2008.
[27]R v Stewart (2001) NSWLR 301, 305.
In Flood Bell J stated:
It is not for the trial judge to decide whether her evidence […] was unreliable. The phrase used in s 165(a) is ‘may be unreliable’. That test involves a low threshold as a precursor to giving the required warning. More is required than some general argument that the evidence may be unreliable. Some reasonable basis must appear from the evidence to support the conclusion that the evidence may be unreliable. Such a basis may emerge from the evidence of the complainant or some other lay witness. It may emerge from medical evidence, which, while not necessary, will often be given.[28]
[28]R v Flood [1999] NSWCCA 198, [52].
There is another line of authority which might be said to more closely conform to the common law approach that ‘evidence of a kind that may be unreliable’ has been considered to limit the operation of sub-s (1) to evidence that is of a type or class that may be unreliable without an assessment of the actual evidence itself but with a discretion not to give the warning if there is good reason. In Lane v The Queen,[29] Gallop, Davies and Kiefel JJ, said of the provision:
And it ought also be borne in mind that the section speaks only of a ‘kind’, which is to say a class, and this would require a generalised assessment and not one based upon a particular witness’s account in proceedings.[30]
[29](1996) 66 FCR 144.
[30]Ibid 146.
In R v Stewart,[31] Hulme J found that where evidence falls sufficiently into a category to be regarded as of a ‘kind’ it is also of a kind that may be unreliable. For the reasons given by Howie J, he considered that an appropriate test was whether the evidence could not be expected to fall within the general experience and understanding of a jury and in respect of which the courts have special knowledge.[32] Howie J said s 165 was concerned only with those occasions where the possibility of a miscarriage arises because there is evidence before the jury ‘of a kind that may be unreliable.’ The section provided for a ‘guided discretionary approach’ initially, by a discretionary determination as to whether the evidence fell within the scope of the section, either generally or because it fell within one of the designated categories, and thereafter, by the discretion to refuse to comply with the section if the judge considered that there were good reasons to do so: s 165(3).[33] Howie J also agreed with the ‘appropriate test’[34] stated by Hulme J and cited with approval the passage from Lane v The Queen which we have set out, describing it as consistent with earlier decisions by the Court of Criminal Appeal.[35] This approach appears to have been followed recently in R v Michael Allen Jacobs (No. 8).[36]
[31](2001) 52 NSWLR 301 (‘Stewart’).
[32]Ibid 308 [36], [38].
[33]Ibid 318-9 [88], [91] (emphasis added).
[34]Ibid 321 [98].
[35]Ibid 322 [100].
[36][2013] NSWSC 949.
It seems clear from his Honour’s ruling in the present case that he took the more restrictive approach to this issue advocated in Flood. On appeal it was submitted that, if his Honour did impose a test that required him to be satisfied on balance that the complainant’s evidence was unreliable then that test was more stringent than any test contemplated by the Act. The Act requires only that the judges be satisfied that the evidence is of a kind that may be unreliable.
Section 165(1)(c) is concerned with age, physical or mental ill health or injury, characteristics of a witness which, unlike the other matters in sub-s (1), will in only limited circumstances affect the unreliability of the witnesses evidence. His Honour was thus correct in stating that the fact that a witness may suffer from mental ill-health was not decisive of the possibility of unreliability or the need to give a warning. He resolved that he was not satisfied, on balance, that the applicant had demonstrated that the complainant’s evidence might be unreliable as a result of that mental illness. Assuming without deciding that the more restrictive approach is correct and that his Honour was obliged to undertake such an assessment, then given the evidence of Dr Patange that the complainant’s memory was unaffected by her various mental health problems, and that there was no evidence to suggest that
she was suffering from any delusion at any time material to the case, we consider that it was plainly open to his Honour to make this factual finding.
Furthermore, we are of the view that his Honour did not impose a test as stringent as that for which the applicant contends. In our view, his Honour’s words set out in paragraph 16 demonstrates that his Honour was not satisfied that the impugned evidence might possibly be unreliable as a consequence of the complainant’s mental illness or impairment. In the earlier passage from His Honour’s reasons (para 15) he confined his inquiry to the possibility of unreliability. Whilst his Honour also said that he was not satisfied on balance that this complainant was unreliable, we consider it clear from the passages we have set out that His Honour’s factual findings were concerned primarily with the possibility of unreliability.
This is not the occasion to resolve whether, contrary to the position at common law, s 165 requires the trial judge to undertake the more restrictive approach and assess the actual evidence in order to determine whether it may be unreliable. For the above reasons and also because we agree with the trial judge’s conclusion that there was ‘good reason’ why in this case it was unnecessary to give the jury any particular warning, it is unnecessary to resolve this issue. Whatever be the correct approach to the question whether the evidence falls within sub-s (1), as Bell J observed in Flood, it is not for the judge to determine whether the evidence is in fact unreliable. That would be to usurp the role of the jury. Importantly where a characteristic enumerated in sub-s (1)(c) is said to provide the foundation for the warning, then under either approach the requesting party must demonstrate that there is a reasonable possibility that it is evidence of a kind that a jury acting rationally may consider to be unreliable – hardly a mountainous obstacle.
Were there good reasons for not giving the warning?
His Honour, out of an abundance of caution, concluded that if he were in error on the s 165(1) issue, that there were in fact good reasons for not giving the warning. He considered that there was no hidden or lurking danger such as might exist with an accomplice or a prison informer and that the issue of the complainant’s mental ill-health and its potential impact on her reliability was completely exposed in evidence. We conclude that these reasons were ‘good reasons’ within the meaning of s 165(3) of the Act. Approaching the matter as Brennan J suggested in the passage from Bromley to which we have referred, there were no dangers lurking in the evidence of which the jury would not have been aware. Simpson J (referring to the common law case of R v DellapatronaandDuffield[37]) concluded that a full and open exposure before the jury of the asserted unreliability with all potential weaknesses exposed may be sufficient to fully inform the jury without the need for any specific further direction.[38] In our view the jury were fully apprised of all relevant material relating to this issue. It was established that the complainant suffered from chronic mental ill-health, its impact upon her reliability was explored in cross-examination, it was established that she was apparently confused when making her complaint to police and the inconsistencies in her accounts were comprehensively explored. In short the issue of the complainant’s reliability was at the heart of the applicant’s defence and completely exposed to the jury. In the absence of a latent danger, known only to seasoned criminal practitioners, a s 165(1)(c) warning had no legitimate work to do.
[37](1993) 31 NSWLR 123.
[38]R v Reardon (2002) 186 FLR 1, 31 [143]. His Honour ultimately concluded that an unreliability warning should have been given, but the failure to do so did not constitute a miscarriage of justice.
We refuse leave to appeal on this ground.
Ground 2 — Sentence
The applicant was sentenced to a total effective sentence of eight years three months’ imprisonment with a non-parole period of six years. Pre sentence detention of 69 days was declared. He was sentenced as a Serious Sexual Offender on charges 2 and 3. The individual sentences and the cumulation ordered is set out in paragraph 2 of these reasons.
The applicant contends in his written case that the individual sentences imposed and the cumulation orders were manifestly excessive and constitute a total effective sentence that gave insufficient weight to the applicant’s relative lack of proper convictions, his reasonable prospects for rehabilitation and his Honours finding that the offending was opportunistic (and therefore relatively spontaneous) rather than predatory or preplanned.
This court has stated on many occasions that grounds of manifest excess permit little argument or discussion. It is insufficient for the applicant to demonstrate that the sentence is stern or severe. The applicant must demonstrate that the sentence was ’wholly outside the range of sentencing options available’.[39] He must demonstrate that it was not reasonably open to the sentencing judge to come to the relevant sentencing conclusion if proper weight has been given to all relevant circumstances of the offending and the offender. This is not an easy ground to make out.
[39]R v Boaza [1999] VSCA 126.
His Honour clearly took a stern view of the offending:
Your crimes were serious indeed, committed as they were upon a lone and vulnerable women in her own home. The courts have spoken repeatedly of the deep impact caused by the crime of rape and of the high degree of seriousness. I must fix upon an appropriate and just punishment in the circumstances of your offending. You must be punished for your conduct. The court must manifest the strong denunciation of your serious offending.
We consider his Honour was correct in this characterisation of the offending. The complainant was a 59 year old intellectually and psychologically disabled woman who, with a little help, was managing to live independently. This independence was no doubt fragile, but it has been destroyed by the offending. The complainant now lives in care and her quality of life has been substantially diminished.
The aspect of general deterrence was said to be ’a significant purpose of sentencing in this case’ and his Honour paid ’some regard to the need to deter … (the applicant) … from offending in the future despite finding that his prospects for rehabilitation were “reasonable” and the chances of reoffending “low”.’ In our view it was open to his Honour to reach those conclusions and it was open to His Honour to cumulate the sentences in the way that he did. The applicant was sentenced as a serious sexual offender on Charges 2 and 3 which explains the relatively greater cumulation on those counts.
Overall we consider the sentences imposed, and the cumulation ordered, as stern and towards the upper end of the available range. They are however, in our view, within the range of sound discretionary judgement as is the total effective sentence and the non-parole period ordered. Accordingly we refuse leave to appeal on the ground of manifest excess.
The applications for leave to appeal against conviction and sentence are both refused.
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