Allen v The King
[2024] VSCA 128
•11 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0200 |
| JUDD ALLEN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | TAYLOR, LYONS and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 May 2024 |
| DATE OF JUDGMENT: | 11 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 128 |
| JUDGMENT APPEALED FROM: | DPP v Allen (Unreported, County Court of Victoria, 28 March 2023, Judge Bayles) |
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CRIMINAL LAW – Conviction – Sexual penetration of a child under 16 – Applicant denied offending in record of interview – Applicant did not give evidence – Section 41 Jury Directions Act 2015 and Liberato directions requested – Liberato direction given – By oversight s 41 direction not given – No exception taken – Whether error may have affected the result of the trial – Whether conviction inevitable – Whether substantial miscarriage of justice – Appeal allowed.
Jury Directions Act 2015, ss 12, 16, 41.
Baini v The Queen (2012) 246 CLR 469, Karam v The King [2023] VSCA 318 followed.
Awad v The Queen (2022) 275 CLR 421, The Queen v Al Qasim [2009] VSCA 192, Saricayir v The Queen [2018] VSCA 319, Carson (A Pseudonym) v The Queen [2019] VSCA 317 referred to.
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| Counsel | |||
| Applicant: | Mr R Edney with Mr L McMahon | ||
| Respondent: | Ms S Lenthall | ||
| Solicitors | |||
| Applicant: | McMahon Criminal Defence Lawyers P/L | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TAYLOR JA
LYONS JA
T FORREST JA:
Introduction and overview
Following a six day jury trial in the County Court, the applicant was, on 28 March 2023, convicted of two charges of sexual penetration of a child under 16 years. Each charge was a course of conduct charge.
At trial the applicant’s record of interview, in which he denied the alleged offending, was played as part of the prosecution case. The applicant did not give evidence.
Pursuant to s 12 of the Jury Directions Act2015 (‘JDA’) counsel for the applicant requested a direction under s 41 of the JDA and a modified Liberato direction. The judge indicated that he would give both directions. During his charge the judge gave the Liberato direction but, through oversight[1], failed to give the s 41 direction. No exception was taken by either counsel.
[1]The judge’s report made plain that the absence of the direction was an oversight.
The applicant sought leave to appeal against his conviction on a single ground:
A substantial miscarriage of justice has occurred because of the failure of the trial judge to give, when requested, a direction pursuant to s41 of the Jury Directions Act 2015 (Vic).
At the hearing of the application, the Court made orders granting the application for leave to appeal, allowing the appeal, setting aside the convictions and ordering a new trial. These are the reasons for those orders.
The prosecution case
The prosecution allegations may be stated shortly.
Between February and October 2014 the applicant was a boarder in the home of the complainant’s father. The complainant was then 5 to 6 years of age. On multiple occasions the applicant penetrated the vagina of the complainant with his tongue and penetrated her mouth with his penis.
The complainant disclosed the alleged offending behaviour during a medical appointment in 2017. The complainant participated in a VARE on 16 August 2017. The applicant was arrested and interviewed on 28 May 2020. He was not charged until some time later.
Applicant’s contentions
The applicant contended that the failure to give the s 41 direction occasioned a substantial miscarriage of justice. The direction had been sought and was fundamental to the fairness of his trial. The jury failed to hear any direction to avoid impermissible use of the applicant’s exercise of the right to silence in court. That was a significant forensic disadvantage in a case where the jury had heard contradictory versions from the complainant, who gave evidence, and the applicant, who did not.
Accordingly the applicant contended that the absence of the direction sought may have affected the result of the trial and that his conviction was not inevitable.
Respondent’s contentions
The respondent accepted that the failure to give the s 41 direction was an error, but contended that it was not ‘fundamental’ and that it had not been demonstrated that the error may have affected the result of the trial. Four reasons were advanced.
First, the applicant was not silent before the jury as he gave an account in the record of interview. That account was heavily relied upon by his counsel in her closing address, suggesting to the jury that the applicant’s voluntary participation in that interview showed that he had ‘nothing to hide’. The trial was accordingly framed as a ‘word on word’ case. The jury was given a modified Liberato direction.
Second, in giving the standard, general direction that the burden of proof always rests upon the prosecution and that an accused person does not have to prove anything, the judge had – in effect – given the first two parts of the s 41 direction, as required by s 41(2)(a) and (b) of the JDA.
Third, in giving the modified Liberato direction, the judge referred to the conflict between the evidence of the complainant and the ‘evidence of … the accused man’ in his record of interview. Although the record of interview was part of the prosecution case, the judge’s incorrect description of the applicant’s answers to police as ‘his’ evidence elevated the status of the interview and meant that the jury would have perceived that the accused did give evidence. The jury would, therefore, have no reason to engage in impermissible reasoning concerning the applicant’s silence at trial. The third and fourth parts of the s 41 direction, as required by s 41(2)(c) and (d) therefore had little work to do. And, the modified Liberato direction meant that even if the jury disbelieved the applicant’s version, they would have simply put it aside.
Fourth, that neither the applicant’s counsel nor the prosecutor took exception to the judge’s oversight indicates that, in the atmosphere of the trial, the charge absent the s 41 direction was not seen as inadequate.
In the event that the Court found that the applicant had established that the error may have affected the result of the trial, the respondent did not contend that the conviction was inevitable.
Analysis
Section 276(1)(b) of the Criminal Procedure Act 2009 mandates that this Court must allow an appeal against conviction if the appellant satisfies the Court that as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice.
In determining whether the appellant has so satisfied the Court, a number of determinations must be made.[2] First, whether the appellant has established an error in connection with the conviction under appeal. Second, if so, whether that error is ‘fundamental’ or a ‘serious departure’ from proper trial processes so as necessarily to have resulted in a substantial miscarriage of justice. Third, if not, whether the appellant has established that the error may have affected the result of the trial. Fourth, if so, whether the respondent has established that the conviction was inevitable.
[2]Karam v The King [2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA).
In this case there is no doubt that the failure of the judge to give the requested s 41 direction was an error. The judge did not have ‘good reasons’[3] for not giving it. The failure to do so was an oversight.
[3]JDA, s 14(1).
The error was neither ‘fundamental’ nor a ‘serious departure’ from proper trial processes. [4] Both the failure to give a direction[5] and the giving of a prohibited direction[6] will usually require an appellate court to consider whether the error had the potential to affect the outcome of the trial.
[4]Baini v The Queen (2012) 246 CLR 469, 479-482 (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59, [25]-[33]. See also Saricayir v The Queen [2018] VSCA 319, [74] (Kaye, T Forrest and Ashley JJA) and Carson (A Pseudonym) v The Queen [2019] VSCA 317, [79]-[81] (T Forrest JA, Niall and Ashley JJA agreeing).
[5]See, for example, The Queen v Al Qasim [2009] VSCA 192 (Buchanan and Dodds-Streeton JJA and Lasry AJA).
[6]See, for example, Awad v The Queen (2022) 275 CLR 421 (Kiefel CJ, Gordon, Edelman, Steward and Gleeson JJ).
Doing so in this case, we are satisfied that the applicant has established that the error may have affected the result of the trial. We specifically reject the arguments advanced to the contrary by the respondent.
Section 41 of the JDA is in the following terms:
Direction on accused not giving evidence or calling witness
(1)If the accused does not give evidence or call a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.
(2)In giving a direction referred to in subsection (1), the trial judge must explain—
(a)the prosecution’s obligation to prove that the accused is guilty; and
(b)that the accused is not required to give evidence or call a witness (as the case requires); and
(c)that the jury should not guess or speculate about what might have been contained in—
(i) the evidence that was not given by the accused; or
(ii)the evidence that might have been given by a witness who was not called—
as the case requires; and
(d)that the fact that the accused did not give evidence or call a witness (as the case requires)—
(i) is not evidence against the accused; and
(ii) is not an admission by the accused; and
(iii)must not be used to fill gaps in the evidence adduced by the prosecution; and
(iv)does not strengthen the prosecution case.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so. Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.
The four parts of the direction required by s 41(2)(a) to (d) are in reference to ‘that fact’ in s 41(1) – that is the fact that the accused did not give evidence. It requires a judge to direct the jury about all four matters specifically in relation to the fact that the accused did not give evidence (or call a particular witness). It is therefore no answer to the failure to give the direction that some of the matters in s 41(2)(a) to (d) have formed part of the directions about matters other than the fact that the accused did not give evidence. By its terms s 41 contemplates that directions about the burden of proof, always given generally, will be repeated specifically when directing the jury not to reason impermissibly about the fact that the accused did not give evidence.
The s 41 direction and the Liberato direction are kindred but not equivalent directions. They each have separate but interacting work to do. In a situation where an accused has given an account in a record of interview, that account forms part of the prosecution case. The Liberato direction instructs the jury that their assessment of the accused’s account must be done consistently with the burden of proof. The jury are instructed that a preference for the version of the complainant or a non-acceptance or disbelief of the accused’s version is an insufficient basis to determine that the prosecution has proven guilt beyond reasonable doubt. The s 41 direction protects the accused from the jury speculating that his or her failure to give sworn evidence was for reasons adverse to him or her or, in some manner, assists the prosecution case. Both directions are separately important because, in the absence of the s 41 direction, the jury might reason that the version given by the accused in the interview is less credible or has less weight because it was not repeated as sworn evidence. That is, in following the Liberato direction and determining whether the accused’s version should be accepted – and therefore that the accused should be acquitted – the jury’s decision to reject and put aside the accused’s version might be influenced, perhaps determinatively, by impermissible reasoning. The jury’s subsequent determination of whether the prosecution case has, on the accepted evidence, been proven beyond reasonable doubt might too be affected by impermissible reasoning as to the accused’s silence before them.
That is so even where, as here, the applicant’s trial counsel framed the trial as a ‘word on word’ case and the judge, wrongly, referred to the record of interview as the applicant’s evidence. The jury would have observed that the complainant gave sworn evidence but the applicant did not. It is incorrect that an accused is not ‘silent’ before a jury because his or her answers to police during an interview are played during the prosecution case. There is no equivalence in the status of statements by an accused when interviewed by police and sworn evidence by an accused before a jury. The failure of both counsel to take exception to the judge’s failure to give the requested direction is, thereby, of little moment.
The applicant having established that the error may have affected the result of the trial, the respondent’s concession that the applicant’s conviction was not inevitable was properly made. The prosecution case was dependent upon the jury accepting the complainant’s evidence beyond reasonable doubt. Her evidence of the alleged incidents was not detailed. There was evidence in the trial that the complainant, although very young, had exhibited sexualised behaviour and, potentially, had suffered sexual abuse before she met the applicant and the recipient of an alleged contemporaneous disclosure gave evidence that it was never made.
Conclusion
For these reasons, the application for leave to appeal should be granted, the appeal allowed and the convictions set aside and a new trial ordered.
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