Aman Ramlagun v The Queen
[2016] VSCA 68
•14 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0125
| AMAN RAMLAGUN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG, WHELAN and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 March 2016 |
| DATE OF JUDGMENT: | 14 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 68 |
| JUDGMENT APPEALED FROM: | DPP v Ramlagun [2014] VCC 270 (Judge Gucciardo) |
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CRIMINAL LAW – Trial judge’s charge to jury – Whether charge had the effect of reversing onus of proof – Whether comments by trial judge led to charge being unbalanced – Whether unreliable evidence warning in respect of witness whose evidence was exculpatory led to miscarriage of justice – Charge to be read as a whole – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Crown | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree for the reasons given by Coghlan JA that this appeal should be dismissed. There is one matter to which his Honour has referred that I wish to say something further about.
The trial judge, in relation to what is described in Coghlan JA’s reasons for judgment as the Albano comment, told the jury that they should be very cautious in dealing with Constable Albano’s account, as there were questions regarding its reliability. In effect, his Honour gave the jury the equivalent of an unreliable evidence warning under s 165 of the Evidence Act 2008 (the ‘Act’).
Constable Albano’s evidence was important to the defence, and the appellant sought to rely upon his account of his dealing with KM[1] as undercutting her credibility. The question therefore arises whether it was appropriate, in relation to a witness who was for all practical purposes a defence witness, to give a warning of that kind.
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the victim.
There is little authority directly in point. Odgers states the following: [2]
A warning may be given under s 165 even in respect of evidence supporting the defence in a criminal proceeding, although there may be ‘good reasons’ for not giving a warning in the particular circumstances of the case, or for not fully complying with the terms of s 165(2).[3]
[2]Stephen Odgers, Uniform Evidence Law in Victoria (Thomson Reuters, 2nd ed, 2013) 910.
[3]Ibid 910 (citations omitted).
In R v Salama,[4] Kirby J dealt with an objection taken at trial to a s 165 direction which impugned some hearsay evidence upon which the accused sought to rely. Section 165(1)(a) provides that the whole of the section applies to evidence of a kind that may be unreliable, including hearsay evidence. In the particular circumstances of that case, the Crown had not sought an unreliability warning. In the light of that fact, his Honour observed that a judge should hesitate to give a warning adverse to the accused where there has been no request by the Crown. In addition, even if the Crown had asked for such a warning, s 165(3) confers a discretion upon the trial judge not to give the warning if there were ‘good reasons’ for not doing so. In his Honour’s view, the fact that the warning was adverse to the accused arguably provided good reason for not giving it at all.
[4][1999] NSWCCA 105.
In R v Rose,[5] complaint was made regarding the giving of an unreliable evidence direction under s 165 in circumstances where the defence relied upon identification evidence that was exculpatory in nature. The Court of Criminal Appeal held, by majority, that the trial judge had acted appropriately in giving the relevant warning.[6] As their Honours said in their joint judgment, ‘[v]isual identification evidence of a particular person is no more reliable because the person being identified is not the accused.’[7]
[5](2002) 55 NSWLR 701 (‘Rose’).
[6]Rose (2002) 55 NSWLR 701, [283]–[297] (Wood CJ at CL and Howie J).
[7]Rose (2002) 55 NSWLR 701, [289] (Wood CJ at CL and Howie J).
It should be noted, however, that although the majority were of the opinion that identification evidence generally, whether inculpatory or exculpatory, fell within s 165, their Honours added that it did not follow that a warning had to be given.[8]
[8]The majority referred to R v Jamieson (1992) 60 A Crim R 68 and R v Baker [2001] NSWCCA 151, noting that these cases had held that a warning as to the potential unreliability of identification evidence, or the evidence of a witness who might reasonably be considered to be implicated in the offence charged against the accused, but who gives evidence exculpating the accused, ought not generally be given.
Smart AJ dissented in Rose, though his Honour’s analysis turned largely upon questions of history, which the majority regarded as irrelevant when construing the language of s 165.
Finally, I should note that although provisions such as ss 97 and 98 of the Act are couched in general terms, any attempt by the defence to rely upon tendency or
coincidence evidence will have fewer barriers to overcome, and rightly so, than such reliance by the Crown. Section 101 of the Act makes that abundantly clear.
WHELAN JA:
I have read in draft the judgment of Coghlan JA. For the reasons he gives I would dismiss the appeal.
In my view, the only matter of real significance raised by the appellant was the treatment by the trial judge of the evidence of Constable Albano. In the end, however, I do not consider that his comments went too far for two principal reasons.
First, the trial judge did put the defence position clearly and fairly. The defence position was that Constable Albano’s evidence had been clear and unequivocal. The judge said:
Now that is a matter entirely for you, you may have thought that he was very careful in his evidence, that he was adamant that he was taken through that evidence clearly.[9]
[9]Transcript of proceedings DPP v Ramlagun, County Court of Victoria, Judge Gucciardo, 3–6, 10–14, 17 and 18 February 2014, 381–2 (‘Trial transcript’).
Secondly, in the absence of the jury, counsel for the appellant at the trial raised concerns about the comments made and asked that the judge specifically refer the jury to what ‘the constable said in defence of not making the note’.[10] After discussion, counsel for the appellant took the judge to a particular passage which he wanted the jury to be reminded of. Before the jury, the trial judge then summarised Constable Albano’s evidence, without any further comment, and quoted the particular passage which the appellant’s counsel had asked that the jury be reminded of in full. No further exception was taken.
[10]Trial transcript 391.
COGHLAN JA:
Background
On 18 February 2014, the appellant was convicted in the County Court of one charge of rape and two charges of indecent assault. On 14 March 2014, he was sentenced as follows:
Charge Offence Maximum Sentence Sentence Cumulation 1 Indecent Assault (Crimes Act 1958 s 39) 10 years 3 months +1 month 2 Rape (Crimes Act 1958 s 38) 25 years 3 years 4 months BASE 3 Indecent assault (Crimes Act 1958 s 39) 10 years 3 months +1 month Total Effective sentence:
Non-Parole period:
PSD
Other Orders:
3 years 6 months
2 years 4 months
22 days
Forensic sample pursuant to Crimes Act 1958 s 464ZF
The history of these proceedings is set out in detail in Ramlagun v The Queen[11] where the reasons for granting leave to appeal are to be found. For present purposes it is sufficient to say that the appellant was granted leave to appeal on the following two grounds:
1.The learned trial judge erred in charging the jury in terms which suggested there was an evidentiary burden on the accused.
2.The appellant was denied a fair trial as a result of the unbalanced and unfair comments made by the learned trial judge in the charge concerning the evidence of the witness Constable Albano.
[11][2015] VSCA 337.
During the application for leave, there was substantial argument about a proposed third ground which related to possible tampering with the tape recording of a conversation which took place between the appellant and the complainant when the appellant came to her home on 9 August 2012. Part of that conversation had been put to the complainant in cross-examination at trial. Leave to add that ground was ultimately refused.
At the hearing of the appeal before this Court, application was made to amend ground 2 by deleting all words after ‘the charge’. That application was not opposed, and the appellant was permitted to expand his argument into one which alleged that the charge, in its entirety, was unbalanced.
The Facts
It was the prosecution case at trial that on 9 August 2012 the appellant sexually assaulted the complainant, KM, at her home. KM and her then two year old son lived with her partner, JE, and his brother, BM. As at August 2012, JE was serving a short term of imprisonment.
At that stage, KM had known the appellant for about two years. She had met him through his then girlfriend, SB.
Shortly before 9 August 2012, the appellant told the complainant that JE had been ‘cheating on her’ with either another woman or other women. He had gone so far as to nominate and provide a description of one such woman.
KM was anxious to find out from the appellant the details of JE’s ‘cheating’. She invited him to her home on 9 August 2012. She was alone at the time, save that her son was present. It was KM’s intention surreptitiously to record the meeting with the appellant so that she could confront JE with the allegation. The appellant arrived at KM’s home at about 5:00pm. KM recorded about 15 minutes of what occurred after he arrived. That tape was played to KM by counsel for the appellant during the course of the trial, with a view to damaging her credibility. Towards the end of the taped conversation, the appellant can be heard to say that he was going home.
KM’s evidence was that she told the appellant that she thought she might be pregnant. At that stage, the appellant asked to touch her stomach. He then pinned her against the hallway wall, and kissed her on the neck. KM told him to stop. The appellant held both her hands above her head with one hand, and exposed her left breast, which he then kissed, with the other (Charge 1).
KM said that the appellant then put his hand down her pants. She said that she tried to resist him, but that he forced both his hands inside her underwear, and penetrated her vagina with a finger or fingers (Charge 2).
KM screamed, and repeatedly told the appellant to stop. She managed to push him away. He then propelled her into her son’s room, and shut the door. According to KM, her son was in the hallway at that stage. The appellant pushed KM towards the cot in the room, and bent her over it. He pulled her pants down. She said that she could feel his penis on the back of her bottom (Charge 3).
KM said that she turned around and could see the appellant’s penis. She continued to tell him to stop and said words to the effect, ‘What are you doing?’, ‘You are his friend’, and ‘You have a girlfriend’. KM’s son was then banging on the door.
At that point the appellant left the house. Before he left, he told KM that he would obtain proof of JE’s infidelity. He added that KM could then give him sex in exchange for that information.
KM spoke to JE who rang her from prison at about 6:00pm. She had earlier tried to contact her housemate, BM, and at about 5.30pm spoke to him. She was upset at the time, and asked BM to come home. She told JE that the appellant had tried to rape her and that she had fought him off. Later, she complained to BM and JE’s mother that she had been sexually assaulted.
BM and JE’s mother took KM to a police station where she first spoke to a young police officer, Constable Albano. She later spoke to a member of a specialist sexual offence investigation squad, Detective Senior Constable Lewis. She was subsequently examined by Dr Denise Dyer, who took a history and swabs for DNA analysis.
When interviewed by police on 16 August 2012, the appellant at first denied any sexual contact whatever with KM. However, he told police that on an earlier occasion KM had said to him that if he provided information about JE’s infidelity she would have sex with him. The appellant also told police that he did not know whether JE had, in fact, ever been unfaithful to KM.
When the swabs that were taken from KM’s neck and left breast were subsequently tested, the results revealed saliva which tested positive for the appellant’s DNA. Not surprisingly, that led to a change of tack on the part of the defence.
In his evidence at trial, the appellant acknowledged that there had, in fact, been some sexual contact with KM. However, he said it was consensual and denied any actual penetration.
It was part of the defence case that KM’s evidence at trial differed in significant respects from the various accounts that she had earlier given to police and other witnesses.
Submissions regarding Ground 1
As set out above, ground 1 complains that the learned trial judge erred in charging the jury in terms which suggested there was an evidentiary burden on the accused.
The relevant passages from the charge, upon which the appellant relies, are as follows.
First, in relation to the appellant’s own evidence, the judge said:
You do not need to be convinced that this is what happened [the applicant’s version] in order to find him not guilty. If you find that explanation reasonable in the light of all the evidence then you will acquit him. This is because the burden is on the prosecution to exclude all reasonable hypotheses that are inconsistent with his guilty. If you find that the evidence which the prosecution has brought forward makes that explanation unacceptable and that it is an explanation that can be excluded given all the evidence that you find proven, then as long as you are satisfied of the facts beyond reasonable doubt that have been proven, you will convict him. Just remember that if you think any facts are essential to your determination, those facts must be proven beyond reasonable doubt.[12]
[12]Trial transcript 374.
Secondly, in relation to KM’s prior inconsistent statements, his Honour said:
If you do find that they are inconsistent with her account to the court, you may use those statements in assessing her credibility and reliability. You may find that the fact that [KM] had previously given an inconsistent account means that the evidence she gave in court is less likely to be truthful or accurate. You may decide that. You may therefore be less willing to accept her evidence. It is for you members of the jury to determine whether or not to draw this conclusion and we go back to drawing conclusions.
What are the established facts, what are you satisfied of in relation to what was actually said, how it was said, when it was said, why it was said, under what circumstances. What facts about that are proven beyond reasonable doubt and then what inferences can you draw beyond reasonable doubt is the only reasonable inference from that. It is for you to determine whether or not to draw that conclusion from any inconsistencies you find. Keep in mind that a witness who gives inconsistent accounts is not necessarily lying.[13]
[13]Trial transcript 382–383.
Thirdly, in relation to whether KM had a motive to lie (based upon her remorse at having had consensual sexual contact with the appellant) his Honour told the jury:
Of course if you accepted what he says as a motive then that would lead you to reassessing her evidence and you would follow that line of reasoning through to see what impact it had on that credibility and reliability.[14]
[14]Trial transcript 385
The appellant submitted that these three passages, properly understood, had the effect of impermissibly imposing an evidentiary burden upon him.
In relation to the first of those three passages, the appellant submitted that the direction in question plainly, and on its face, reversed the onus of proof. It did so because it amounted to an instruction to the jury that the appellant could only be acquitted if they found his explanation ‘reasonable’, in the light of all the evidence.
In relation to the second of the three passages, the appellant submitted that the jury should have been told that any inconsistencies in KM’s various accounts would go to whether they could accept her evidence beyond reasonable doubt, and nothing more.
Finally, as to the third of the three passages, the appellant submitted that the jury should have been told that if they found that KM did have the motive attributed to her by the defence, this would necessitate an acquittal.
The appellant also complained, under the rubric of ground 1, that when his Honour dealt with post-offence conduct, he ought to have told the jury that if they were satisfied that nothing untoward had taken place in the hallway, as KM claimed, then they were obliged to acquit on Charges 1 and 2, and possibly Charge 3 as well.
The appellant submitted that trial counsel had, in general, raised these matters with his Honour, but that the directions given to the jury did not satisfactorily address them.
The Crown submitted that none of the passages complained of created any of the difficulties now suggested by the appellant. The Crown further submitted that a full examination of the charge revealed that his Honour dealt appropriately with all of the matters raised on behalf of the defence at trial.
The Crown noted that his Honour gave the usual directions about the onus and standard of proof in both his introductory remarks and in his charge.
In effect, the Crown submitted that the passages complained of, whether taken separately or in combination, did not support the interpretation attributed to them by the appellant. It followed, therefore, that when the charge was read as a whole, the jury could not have been in any doubt as to the Crown’s obligation to prove each element of each of the charges beyond reasonable doubt.
The Crown noted that in dealing with the acceptance and rejection of evidence, the judge said:
In this case there is a clear conflict between the evidence of [KM] and the evidence of Aman Ramlagun. It is not necessary for you to accept his evidence in order to find him not guilty. So do not reason we can only find him guilty if we accept what he says. In keeping with the requirement that the prosecution must prove the case beyond reasonable doubt, you must acquit him even if his evidence only gives rise to a reasonable doubt and it is in that case not only if it gives rise to a reasonable doubt, if his evidence gives rise to a reasonable doubt you must acquit him.
So the question for you is does his evidence give rise to a reasonable doubt. Look at the rest of the totality of the evidence to make that judgment. This is a case as all criminal cases are, that even if you prefer the evidence of [KM] to his evidence, it is not sufficient for you to merely find the prosecution case to be preferable to the defence case.
Before you can convict him you must be satisfied the prosecution have proven their case beyond reasonable doubt. Members of the jury, even if you think that Mr Ramlagun is not telling the truth in his evidence, but when you consider it you are unsure where the truth lies then you must find him not guilty. In fact even if you are convinced that his evidence is not true, it is not the case that you must convict him.
In the circumstances where you believe that his evidence is not true, you should put his evidence to one side and ask yourself whether the evidence which the prosecution has brought before you proves the case beyond reasonable doubt. So that is how you go about that task because it would be a legitimate question to ask from your point of view, well what do we make of the fact that the accused gave evidence and he gave us a version of events of the facts. What conclusions can we make from that but I will have some more to say about his giving of evidence a bit later on.
For the moment when looking at the standard of proof and the onus, that is who bears the burden of proving, remember even if you conclude that he has lied in the witness box and not told you the truth or the whole truth, then the following thing that happens is not well he must be automatically guilty. The following thing that happens is put that aside, you have made a judgment about that, and let us have a look at the evidence that you do accept.
It is a question of judging and I think I have said this before, it is a matter here of judging on the evidence that you do accept rather than evidence which you find is untruthful.[15]
[15]Trial transcript 366–368.
Conclusion regarding Ground 1
The first of the three passages to which objection was taken was contained in that part of the charge dealing specifically with inferences. In that context, the judge rightly stressed the importance of the jury considering the evidence as a whole. He said:
That is the difference between looking at all the evidence, but an individual piece of evidence might be very important, so do not ignore it, so you look at the individual pieces and at the totality. In this case the defence case has been that nothing of what the complainant has said happened either in the hallway or in Austin’s bedroom but something else happened somewhere else. And then in the interview the accused says that he has denied any sexual contact for a number of reasons that he gave you and I will outline those to you in a moment.[16]
[16]Trial transcript 373–374.
Several pages further into the charge, the judge directed the jury in the terms set out in the first impugned passage. However, it is apparent, and would have been understood by the jury, that this particular passage was linked to what had been said, shortly before, regarding inferential reasoning. Viewed in that light, there was no risk that the jury would have been misled into thinking that the appellant bore any onus of proof, legal or evidential.
The second passage complained of is located in that part of the charge where his Honour was dealing with the use to be made, by the jury, of KM’s prior inconsistent statements. Apart from the second paragraph in that passage, the direction was in the usual form. Although there is some uncertainty as to precisely what meaning should be attributed to that second paragraph, when the passage is read in context, it cannot be regarded as damaging to the appellant’s case. That is particularly so given that his Honour went on to say:
While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details depending on the circumstances. Now that’s common sense. We all know that liars when they are asked to repeat their lies get details wrong. We also know that honest witnesses depending on the circumstances of what they are recounting and what they are talking about, may make mistakes when you go to recount a story a number of times later on, especially if the occurrence is traumatic or difficult.
These are the matters for you to consider members of the jury. If you do find that her statement is inconsistent with her evidence you will have two different accounts from the same witness and it is for you to determine which account, if any account, you are to believe.[17]
[17]Trial transcript 383.
The third passage to which objection is now taken related to the question of KM’s motive to lie. No oral submissions were made before this Court regarding that passage. It appears to be somewhat infelicitously expressed, but it has to be read in conjunction with the balance of the charge on this point. His Honour said:
In this case the prosecution has suggested to you that [KM] had no motive to lie about these matters. She simply told you or endeavoured to do the best she could to tell you what happened. The defence has asserted to you that she did have a motive to lie in that she was the one who had initiated sexual intimacy with Mr Ramlagun and that had been consensual sexual intimacy. And then as a result of that she was forced out of guilt to create the allegations about what happened. So she did have a motive to lie, the motive to lie was her own misbehaviour according to the defence which was still of a sexual nature.
Now you will make of those arguments what you will and of that evidence and make relative findings. At all times it is for the prosecution to prove the charges, the accused is not required to prove anything including why the complainant may be making up the allegations. The accused does not need to prove such a motive. It is important that you do not reason that if you do not accept what he says about her motive, that therefore she must be telling the truth. So in other words I am warning you, do not equate not accepting his explanation as to her motive as to why she is saying these things, with he must be guilty.
There are many possible reasons why a person might lie and the fact that the accused has given you one motive which you do not accept if that is the case, does not mean that there might not be some other motive. Just because the accused cannot identify the right or the precise motive or reason in this case does not mean that there is not one. You must assess [KM’s] credibility on the basis of her testimony, not on the basis of whether the accused can tell you why she might be lying.
And do not speculate about any other motives. Base your decision on the evidence you have heard in court, not on speculation. Determine on the basis of that evidence whether the prosecution has proved the complainant is telling the truth and have established Mr Ramlagun’s guilt beyond reasonable doubt. Of course if you accepted what he says as a motive then that would lead you to reassessing her evidence and you would follow that line of reasoning through to see what impact it had on that credibility and reliability.
If you do not accept that motive then similarly in relation to the rest of his evidence put it aside, do not jump to guilty, just say well we have heard what he has had to say, we do not accept it. You put it aside and you go back and ask in the face of the totality of the evidence, do we accept that the complainant told us the truth and that we are relying on her evidence in that way.[18]
[18]Trial transcript 384–385.
Once again, when read in context, it is perfectly apparent that the charge regarding this question of motive did not involve any reversal of the onus of proof, legal or evidential.
The last complaint advanced under the rubric of ground 1 was based upon part of the direction regarding post-offence conduct. His Honour was, at that point, dealing with a prosecution submission as to how the jury might use any lies told by the accused as implied admissions. The direction was, overall, favourable to the appellant. There was no need at that stage of the charge to deal with what the consequences might be if the jury were satisfied that no sexual contact took place in the hallway, as KM asserted.
In summary, when the charge is read as a whole there is no basis for concluding that his Honour imposed any onus of any kind, legal or evidentiary, upon the appellant. Ground 1 should be dismissed.
Submissions regarding Ground 2
As previously indicated, the appellant was given leave to amend ground 2 so that it now reads:
The appellant was denied a fair trial as a result of the unbalanced and unfair comments made by the learned trial judge in the charge.
Much of the material referred to above in relation to ground 1, particularly the directions which the judge gave regarding KM’s allegedly prior inconsistent statements, is relevant to this ground as well as ground 1.
Two particular matters were the subject of more detailed argument by the appellant under this ground.
First, the judge when he introduced the topic of prior inconsistent statements in his charge said:
Now in this case you heard evidence that the complainant said certain things and gave certain details to witnesses complaining of what had been done to her. And if you accept that during that telling she gave a slightly different version of events, then again your legitimate question would be well what do we make about that.[19]
[19]Trial transcript 378–379 (emphasis added).
The appellant argued that characterising KM’s various inconsistent accounts of the events in question as involving merely ‘slightly’ different versions of events constituted an undue and inappropriate deprecation of an important aspect of the defence case.
Of course, it must be noted that immediately following the above direction, his Honour said:
Arguments have been put to you, the Crown said to you well consider first of all her state of mind, her state generally, what she was complaining about the timing, who she was speaking to, what she was trying to describe. And then what else follows, the note taking by certain people, all of that really more or less amounts to nothing, there is an inherent consistency says the Crown about what she has said. The defence says well when you judge what someone says in those circumstances it’s reasonable to look at the consistency of what she says and it is not what the Crown says, there is no inherent consistency, there are inconsistencies and those inconsistencies says the defence, should persuade you that she is unreliable.[20]
[20]Trial transcript 379.
The judge then went on to deal with the alleged inconsistences in KM’s account arising from the evidence given by JE’s mother and BM. They both gave evidence that KM told them, on the day in question, that the sexual penetration had occurred in the bedroom. KM, of course, testified that the penetration had taken place in the hallway, and non-penetrative sexual contact had subsequently occurred in her son’s bedroom.
His Honour went on to deal with the evidence of Dr Dyer. She was cross-examined as to what KM had told her regarding the circumstances of the offending, as follows:
[Defence counsel]: Yes, as in fingers were removed and then there were subsequent penetrations?
[Witness]: That’s - yes, that’s what I took it to mean.[21]
[21]Trial transcript 176.
By way of contrast, of course, KM had said in evidence that the digital penetration had been very brief and had not mentioned multiple acts of penetration.
In addresses, there was argument as to exactly what Dr Dyer’s evidence meant, given that she was dealing with what was contained in her notes rather than any actual recollection that she might have had.
In his charge to the jury, the judge reminded them of the dispute as to the meaning of Dr Dyer’s evidence. His Honour made it clear that this was an issue for them to resolve.
The next alleged inconsistency in KM’s account of events concerned what she had told JE over the telephone. The tape recording of that conversation made it clear that she said that the appellant had pulled down her pants in the bedroom, rather than, as she said at trial, in the hallway. Of course, the jury had the advantage of hearing the tape recording. His Honour told them that it was a matter for them to decide whether or not the version contained in the tape recording was ‘really a prior statement which is truly inconsistent’.[22] He went on to say that ‘[t]he argument certainly is that all of these are inconsistent’.[23]
[22]Trial transcript 380.
[23]Trial transcript 380.
The judge then dealt with the evidence of Detective Senior Constable Lewis. She gave evidence of the account of the offending that KM had given her. That version was broadly consistent with KM’s evidence at trial.
In cross-examination of Lewis, it was put to her :
[Defence Counsel]: Can you go over the page. Did she say this — and it’s the third paragraph of your notes — saying, ‘You know you want me.’ Did she say that to you?
[Witness]: Yes.
[Defence Counsel]: Or to both you and your colleague. And then she said, ‘He got me in my son’s room and pulled my pants down and was bending over me. I was screaming. He was kissing me down my neck. He started putting his hands down my pants and trying to get his fingers in there. I was holding my son’?
[Witness]: Yeah.[24]
[24]Trial transcript 196–197.
The jury asked a question about the apparent difference between KM’s evidence and the account she gave to Lewis. Accordingly, Lewis was recalled and her notes of what is called a ‘disclosure interview’ with KM were read. The passage referred to in cross-examination was in those notes. Immediately following that passage, the notes recorded the following:
He got there about 5 p.m. He was talking about my partner. We were in the lounge room and then outside. When outside I told him I was pregnant. That’s when he was pulling my arm and grabbing me around the waist down the hall and trying to grab my belly. Then he pushed me against the wall in the hallway and then he was kissing me down both sides of my neck and breast and face but turned my face away. He then pushed me into the bedroom and closed the door. When in the hallway he put both his hands down my pants near my hips. He was holding both my hands above my head. He then put his hands down the front of my pants and tried to finger me. He didn’t get very far and then I pushed his hand away."
HIS HONOUR: Sorry, there’s a word missing from what you read down the bottom of the page? — ‘Didn’t get very far in and then I pushed his hand away. Then he pushed me in my son’s room and he slammed the door and my son Austin, was on the other side in the hallway. He was then trying to bend me over near the crib and near the door — and then near the door. Then he pulled me pants down’.[25]
[25]Trial transcript 225.
The defence sought to rely upon the passage in the notes regarding the holding of the child as an inconsistency. His Honour directed the jury regarding that matter in the following terms:
In what context was that complaint made, what state of mind was she in, when was it made, what is she trying to describe, is it really a prior statement which is truly inconsistent, those are all matters for you to determine. The argument certainly is that all of these are inconsistent. And then you get Albano and Lewis. Lewis who has the notes, you remember that you asked a question about that and ultimately they were read into the evidence, you will have that and you will be given a reference in the transcript to that. And I would ask you to pay particular attention to the aspect about holding the child, you will see that that note, in her note, comes at the end of a paragraph where the notation is tacked on to say, ‘And I was holding Austin who had run into the room’.
Ask yourself, and this is now my comment about that, how was that note written at that point, was it elicited by a question, was it a chronological thing that was being recounted, what is the impact of that note having been made at that time. Is it inconsistent, does it create a whole new scenario which is certainly what the defence would say to you, where did this child, all of a sudden he is in the room and she is holding him. And if you accept that that would certainly be inconsistent to some extent with what it is that she is describing even though she does describe the child at the door endeavouring to come in.[26]
[26]Trial transcript 380.16–381.11.
The Crown submitted before this Court that these directions, and any comments contained within them, were reasonable, though it acknowledged that it might have been preferable had his Honour not used the adverb ‘slightly’ in referring to the inconsistencies in KM’s account.
The Crown argued that the inconsistences upon which the appellant relied, even assuming they could properly be so characterised, were insignificant when the overall circumstances were taken into account. The Crown submitted that his Honour’s detailed charge regarding the use to be made of allegedly inconsistent statements was unexceptionable.
The next comment by the judge is really at the heart of the appellant’s argument on ground 2. His Honour, when dealing with the evidence of Constable Albano, said:
And the second one which is probably the most stark inconstancy is the evidence given by Albano, the young constable who says that [KM] told him that there had been some either reference or some attempt at oral sex. This is a comment of mine members of the jury, both in relation to Lewis but particularly in relation to Mr Albano. Mr Albano was an inexperienced police officer, one of the skills which police officers develop over time is how you take notes. The fact that he briefs experienced sexual investigators later on and puts in the allegation that the complainant has told him about oral sex, comes in the heels of no note taken by him as a young inexperienced officer.
And my comment is that you should be very cautious and very careful to rely on his evidence when he says that [KM] told him that detail. I am not telling you one way or another, I am asking you to examine that carefully and to be very cautious because the background situation is one which may lead to some unreliability about that. Now that is a matter entirely for you, you may have thought that he was very careful in his evidence, that he was adamant that he was taken through that evidence clearly.
I am sounding for you a note of caution when looking at his evidence in concluding that what he said is reliable about what [KM] told him, particularly in view of the fact that that allegation does not appear in any other complaint whatsoever, which may be a way of testing whether that allegation was really made or whether perhaps there might not have been some conflation or confusion of thought by a young police officer involved in a serious investigation, probably for the first time who is not even investigating anything, he is just at the front desk. So I am simply sounding a note of caution if you are to rely on that evidence.[27]
[27]Trial transcript 381.12–382.15.
In cross-examination Constable Albano’s evidence was as follows:
[Defence counsel]: Now, when you were in conversation with [KM] about what she said occurred, she told you that a male had forced himself on her, bent over and tried to get her to give him oral sex. Correct? —
[Witness]: Sorry, can you repeat the question?
[Defence counsel]: That you were advised by [KM] in the course of her telling you what had transpired that she was forced by a male to give him oral sex?
[Witness]: Yes.
[Defence counsel]: And I suggest you were also told in the course of the same conversation that [KM] was forced into a room where her pants were pulled down and her vagina was penetrated with the male's fingers. Correct?
[Witness]: Yes.[28]
[28]Trial transcript 154.19–30.
In re-examination he said:
[Prosecution counsel]: Constable, you said that you took notes of a conversation that you had with [KM]?
[Witness]: Yes, I did.
[Prosecution counsel]: And is it your usual practice to make a note of what a person says if they are disclosing to you a sexual assault?
[Witness]: Yes.
[Prosecution counsel]: And on this occasion did you make notes about that?
[Witness]: I put — whatever I put on the paper was what she was telling me at the time, but there may have been some other things she was telling me that I didn't record at the time on paper that I may have briefed the SOCA Unit with.[29]
[29]Trial transcript 155.
And after an objection was dealt with:
[Prosecution counsel]: Constable, did you make a note about [KM] telling you anything to do about the topic of oral sex?
[Witness]: I didn’t make a note on paper. No.
[Prosecution counsel]: And is there a reason why you didn’t make a note about that?
[Witness]: There was so much going on at the time, I was just letting the conversation flow. I didn’t want to interrupt. I didn’t want to disturb her or, sorry, take away eye contact when I was speaking with [KM]. So I was just letting her talk, and it was something that I just put in the back of my mind, and obviously it was a key point that I kept in the back of my mind. So when I was brief — when I was briefing the SOCA Unit, I brought that up to their — to their attention.[30]
[30]Trial transcript 155–156.
There was no evidence at trial of what Constable Albano had actually said to the SOCA unit officers. However, there was evidence that he had briefed them.
In cross-examination two quite different propositions were put to Constable Albano. The first was that KM had told him that the appellant had ‘tried to get her to give him oral sex’. The second was that she had told him that she was ‘forced by a male to give him oral sex’.
The appellant submitted that if the jury accepted that KM had told Constable Albano that she was forced to have oral sex, that would involve a fundamental inconsistency with the evidence she gave at trial. He submitted that, in those circumstances, it was inappropriate for his Honour to have commented as he did, in such strong terms regarding the need to view Constable Albano’s evidence with caution because that comment undermined a lynchpin of the defence case.
Exception was taken at trial to what may be termed the Albano comment. Following discussion in the absence of the jury, his Honour agreed to remind them specifically of what Constable Albano had said and, in particular, his explanation for not having taken notes of what KM had said to him. No further exception was taken regarding that matter. Moreover, no exception was taken to his Honour’s charge about the other supposed inconsistencies in KM’s various versions. Furthermore, no application was made at any stage to discharge the jury.
The Crown submitted that when his Honour dealt specifically with the question of Constable Albano, he made it crystal clear that what he was about to say amounted to a comment. He had, of course, previously and repeatedly told the jury that any comment that he might make would in no way bind them. Moreover, the Crown submitted that his Honour put the appellant’s argument regarding Constable Albano entirely fairly, so that both sides of the case were before the jury.
The modern law regarding permissible judicial comments seems to commence with what was said by the Privy Counsel in Broadhurst v The Queen.[31] That case was discussed by Brennan J (as his Honour then was) in B v The Queen:[32]
[31][1964] AC 441, 446.
[32](1992) 175 CLR 599.
Although his Honour’s summing up was, in general, adverse to the accused, he directed the jury that all questions of fact were for them to determine and he gave an appropriate direction as to the onus and standard of proof. Nevertheless, a reading of the summing up raises in my mind the question whether the jury was left with an adequate opportunity of giving effect to the defence.
A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived ‘of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence’. I agree with the observations of the Full Court of the Supreme Court of South Australia in Reg v Hulse:
‘[T]o use the words of the Privy Council in Broadhurst’s Case, there is a danger of the Jury being overawed by the decision on the facts is for them, the language of the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views.’
Whether his Honour went too far in deprecating the defence case depends on the impression gained by reading the summing up as a whole. The Full Court of the Federal Court held the summing up as a whole could not have ‘left [the jury] in any confusion about their role or how they should go about deciding whether they accepted the evidence of the complainant to the extent necessary to found a conviction’. I regret that I am unable to share that view.[33]
[33]Ibid 605–6 (citation omitted).
Similarly in RPS v The Queen[34] it was said:
But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.[35]
[34](2000) 199 CLR 620.
[35]Ibid 637 [42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ) (citation omitted).
The question of what are the permissible limits of judicial comment has arisen in a number of cases, many of which relate to what might be said in cases involving sexual offences.
In R v Brown[36] this Court was faced with a situation not dissimilar to the present case. There, an issue arose as to whether a particular comment made by the trial judge had crossed the line, and brought about a miscarriage of justice. In that case, Chernov JA (with whom the other members of the Court agreed) said:
In her charge, her Honour told the jury that she would give them one direction and would make one observation, or comment, on the issue of the complainant’s inability to explain the manner in which the applicant got into the position to attack her from behind. The judge then directed the jury that this issue was not an element of either offence with which the applicant was charged and that they did not have to be satisfied about it before they could convict him. Her Honour went on to explain that the applicant’s counsel was merely suggesting to them ‘in the strongest terms’ that the complainant could not explain how the applicant passed her on his bicycle and shortly thereafter grabbed her from behind.
The learned judge then made an ‘observation’ about the matter, the gist of which was that the prosecution case did not rely upon the jury being satisfied of the precise sequence of events that preceded the alleged attack and that the complainant did not seek to give an account or an explanation of how the applicant came to be behind her. Her Honour also said that the jury might consider that the complainant would not have had any reason to keep the applicant under close observation after he rode past her because she had no reason to anticipate being attacked. It seems to me that in making these observations, her Honour did not criticise the applicant’s address, as was claimed, but merely pointed out that there might be an explanation other than the one pressed on them by the applicant's counsel, for the complainant not having seen the applicant come up behind her. Perhaps more importantly, the learned trial judge reiterated that this question was one within the jury’s exclusive province.
Mr Danos, who appeared for the applicant before us but not below, submitted that her Honour’s direction was impermissible because it related to a factual issue and was not confined to a direction on the applicable law which the jury were required to follow. Unlike counsel below, Mr Danos was not critical of her Honour’s comments on this issue, but claimed that the direction in relation to it was impermissible because it related to evidence or a factual matter. It was also said that, in any event, there was no basis for her Honour’s concern that what counsel said in his final address may have led the jury to take the view that the issue so raised by him was an element of the offence. That her Honour so mis-characterised counsel’s submissions, it was argued, gained support from her acknowledgment in her charge that counsel did not say in his address that the above issue was an element of the offence.[37]
[36](2002) 5 VR 463 (Chernov and Eames JJA and O’Bryan AJA).
[37]Ibid 467 [11]–[13] (emphasis in original).
His Honour continued:
As to the judge’s comment on the factual issue, it is true that a trial judge must take great care, when commenting on aspects of defence counsel’s final address on factual issues, to ensure that there is no sensible risk that the jury will give those comments some special weight, or that they do not otherwise work an unfairness to the accused. For example, it was said in RPS v. R:
Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the argument of counsel.
Their Honours further observed that to attempt to instruct the jury about how they might reason towards a verdict of guilty (as distinct from warning them about impermissible forms of reasoning) leads only to difficulties of the kind that arose in that case. Nevertheless, it has long been held (and was repeated in RPS and Azzopardi) that a trial judge may comment (and comment strongly) on factual issues.
In my view, neither her Honour’s direction nor her comments sought impermissibly to deal with how the jury might reason towards a verdict of guilty. What her Honour told the jury was balanced and fairly put. I see no basis for contending that her Honour’s direction relevantly undermined the applicant's case and if the judge’s comments had that effect, that would have only been because the jury chose to accept them and not because her Honour made an impermissible observation in relation to the defence case.[38]
[38]Ibid 468 [20]–[22] (citations omitted).
In R v Mong[39] the Court had to determine whether a comment made by the trial judge had exceeded legitimate bounds. Tang was a witness at the trial who gave a version of events which could be taken to support the applicant’s defence. The real issue at the trial was whether the applicant knew that a package that he handed to Tang contained heroin.
[39][2002] VSCA 203 (‘Mong’).
The trial judge in that case engaged in an analysis of the evidence which was devastating to the credibility of Tang, although his Honour twice said that it was a matter for the jury. Complaint was made at the trial about what the judge had said in that regard, and application was made for a discharge of the jury.
Callaway JA (with whom the other members of the Court agreed), after setting out the relevant passages from both Broadhurst v The Queen,[40] and RPS v The Queen[41] said:
In the present case, however, I am persuaded that his Honour’s comments went too far. Tang’s evidence was so favourable to the defence that he was not cross-examined. There was little or no criticism of him in the prosecutor’s final address and much reliance by counsel for the applicant. The judge’s comments left his evidence in tatters. True it is that they included two reminders that it was a matter for the jury and that the jury may well have disbelieved Tang in any event, but his Honour’s analysis was devastating and all the more effective for being expressed as a series of examples of how to test Tang’s evidence. It was included in the charge with the best of intentions but, in my respectful opinion, the passage set out in [22] caused the trial to miscarry. The applicant was deprived of a chance of acquittal that was fairly open to him having regard to the course of the trial.[42]
[40][1964] AC 441.
[41](2000) 199 CLR 620.
[42]Mong [2002] VSCA 203 [29].
The principles that govern permissible comment are therefore tolerably clear. It is their application in any given case that may cause difficulty.
The Crown in the present case relied heavily upon the fact that the trial judge made it clear that he was making a comment regarding the evidence of Constable Albano. Having made that comment, his Honour summarised what Constable Albano had said as to the critical matter. When asked to give a further direction, his Honour did so.
The Crown submitted that no miscarriage arose from the Albano comment, and that when the charge was read as a whole it could not be said that the charge itself was in any way unbalanced or unfair.
Another issue which arose in oral argument stemmed from the trial judge’s use, when dealing with the evidence of Constable Albano, of language redolent of the unreliability direction given under s 165 of the Evidence Act 2008. That section is expressed in general terms. It is, of course, possible that a warning, suitably crafted, could be justified in relation to a defence witness, or a Crown witness who has given evidence favourable to an accused. However, there are dangers associated with warnings of that kind in respect of witnesses who assist the defence, and trial judges should exercise great care before embarking upon that course.
Conclusion regarding Ground 2
Save for two matters, there is no substance in this ground.
In my view, his Honour’s use of the expression ‘slightly different’ when referring to KM’s various accounts of the events in question was perhaps unwise. Although the discrepancies relied upon, with the exception of Constable Albano’s evidence, might be regarded as relatively minor, the use of the term ‘slightly’ cast a somewhat pejorative shadow over a defence argument that would have been best left to the jury to evaluate.
In my opinion, the language which his Honour used in his comment about the evidence of Constable Albano was inappropriate.
However, his Honour did deal with all of the suggested inconsistencies in detail. He reminded the jury of what both the prosecution and the defence said about each of them. He repeated, on a number of occasions, that the Crown always bore the onus of proof, and that each element had to be proved beyond reasonable doubt. Nothing said by the trial judge by way of comment could have diminished the force and clarity of those directions.
When the charge is read as a whole, it cannot be said that any comments made by his Honour led to a miscarriage of justice. In the case of the Albano comment, the judge made it clear that what followed represented nothing more than a comment which in no way bound the jury. As importantly, he put the defence submission regarding Constable Albano’s evidence squarely to the jury, and left the matter to them for their consideration.
It follows that there was no miscarriage of justice. Ground 2 must be rejected.
It follows that the appeal should be dismissed.
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