and Dean Glover (a pseudonym)[1] v The Queen
[2016] VSCA 91
•5 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0083 | |
| DEAN GLOVER (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES: | OSBORN, BEACH and McLEISH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | On the papers | |
DATE OF JUDGMENT: | 5 May 2016 | |
MEDIUM NEUTRAL CITATION: | [2016] VSCA 91 | |
JUDGMENT APPEALED FROM: | DPP v [Glover] [2014] VCC 845 (Judge Cotterell) | |
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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Charges of incest, assault, indecent act with child under 16 and indecent act with child aged 16 or 17 under care, supervision or authority – Jury address – Rhetorical question by prosecutor ‘Why would you not accept her?’ – Judge’s charge to jury – Whether judge’s summary of prosecutor’s address was erroneous – Use of expression ‘Why would she lie?’ – Redirection sought by trial counsel – Redirection given – Palmer v The Queen (1998) 193 CLR 1 referred to – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearances | |
| For the Respondent |
OSBORN JA
BEACH JA
McLEISH JA:
Introduction
In February 2014, following a trial in the County Court, the applicant was found guilty by a jury of one charge of common assault (charge 2), one charge of incest (charge 3), one charge of an indecent act with a child under 16 (charge 4) and one charge of an indecent act with a child aged 16 or 17 under care, supervision or authority (charge 7). At trial, the jury acquitted the applicant on a further charge of incest (charge 1) and a further charge of common assault (charge 5).
Prior to the empanelment of the jury in the applicant’s trial, the applicant pleaded guilty in front of the panel to two charges of knowingly producing child pornography. Following the applicant’s conviction, on 5 June 2014, the judge sentenced the applicant to a total effective sentence of six years and eight months’ imprisonment, with a non-parole period of five years and three months.[2]
[2]DPP v [Glover] [2014] VCC 845.
On 24 April 2015, the applicant filed a notice seeking leave to appeal against his conviction on the following ground:
1.There was a substantial miscarriage of justice in that in contravention of the principles laid down in Palmer v R:[3]
(a) The learned prosecutor asked the jury during his closing address the question ‘why would you not accept her?’
(b) In the learned trial judge’s charge to the jury, the learned trial judge summarised the learned prosecutor’s argument as ‘why would she lie?’
(c) [A] redirection by the learned trial judge was insufficient, and unlikely to have had sufficient impact to correct the impugned direction.
[3]Palmer v The Queen (1998) 193 CLR 1 (‘Palmer’).
On 16 September 2015, Priest JA refused the applicant’s application for leave to appeal.[4] Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application for leave to appeal. The applicant relies upon the same proposed ground as that which was rejected by Priest JA.
[4]Glover v The Queen (Unreported Court of Appeal, Priest JA, 16 September 2015).
The Crown case at trial
The applicant married TT in 1992. He became stepfather to TT’s daughter, NN, who was born in 1988. TT and the applicant also had twin children born in 1996. Each charge on the indictment related to NN. At all relevant times (between 1992 and 2006) NN was aged between five and 18 years.
While three other witnesses were called at trial, the Crown case relied almost exclusively upon the evidence of NN. Acceptance of her evidence was essential to the convicting of the applicant on any charge on the indictment that was contested by him. NN’s evidence may be summarised as follows.
The applicant’s temper was unpredictable. He frequently resorted to violence, and hit NN with his hands or objects (such as a broom handle or belt). The applicant also called her names, referring to her as ‘a fucking lying bitch’, ‘a dirty slut’ or ‘a cunt’. NN first experienced violence when aged about four years. She said that the applicant had a black belt that he called ‘Mr Black’, which he kept hanging over the twins’ bedroom door as a disciplinary tool. He would bend the children over the bed and hit them with it.
TT’s relationship with the applicant was very violent. He screamed in her face and hit her with his fists. NN recalled one occasion when her mother required medical treatment for injuries received at the hands of the applicant.
NN’s earliest recollection of the applicant’s sexual offending against her involved an incident of penile-oral penetration when she was aged five years (charge 1). The applicant was acquitted by the jury of the charge relating to this incident.
When NN was 14 years of age, she went to the movies with a boy, BB. As they were walking home, the applicant appeared in his car. BB ran home. The applicant ordered NN into the vehicle. He drove her home, where TT attacked her in her bedroom with an extension cord, causing NN pain.[5] She lay on the floor and heard the applicant tell TT, ‘We have to cure her obsession with the cock’. The applicant entered NN’s room, ordered her onto the bed and told her to take her pants off. When she refused to take her pants off the applicant became angry and started to punch her (charge 2). NN then removed her pants. The applicant accused her of having sex with BB. He spread her legs and put his index and middle fingers into her vagina, causing her pain (charge 3). Having noticed that NN was menstruating, the applicant said that he was satisfied that she had not been out ‘fucking’ BB, ‘because no one would fuck a dirty bitch on her rags’. The applicant then stood close to her face, took out his penis and commenced to stroke it to make it erect. He then told NN to touch it. She did so because she did not want to be hit again (charge 4). The applicant then left the bedroom without saying anything further.
[5]TT pleaded guilty in the County Court to one charge of common assault relating to this incident. On appeal, a suspended sentence of imprisonment was set aside, and a fine of $1,000 without conviction was substituted. See York (a Pseudonym) v The Queen [2014] VSCA 224 (Priest and Kyrou JJA).
Five or ten minutes later, the applicant returned to NN’s room and demanded to know where BB lived. She said that she did not know. The applicant then picked up a ceramic rabbit and threw it at her. He also picked up other items from the book case and threw them at her, asking ‘where does he live?’ (charge 5). The applicant was acquitted of the charge relating to this assault.
In her evidence, NN identified naked photographs taken of her in a shed at the rear of the family home. She modelled for the applicant perhaps seven or ten times in various states of undress and in various poses (charge 6). This was the first of the charges that the applicant pleaded guilty to, in front of the jury panel, before trial.
After the ‘BB incident’, NN was ‘on lockdown 24/7’. She was not allowed to receive mail; was not allowed to leave the house except to attend school; was not allowed to see friends; and was not allowed to attend her Year 12 formal.
In the summer after NN completed Year 12, the applicant suggested that she lie in the back yard and get a tan. He gave her a mixture of oil and vinegar, told her to rub it into her skin and suggested that she lie topless. NN did as suggested, and sunbathed topless whilst listening to music. At one stage she heard the sound of the applicant’s camera shutter going off coming from her bedroom window. NN later found the camera lens cap sitting on her desk (charge 8). This was the second charge that the applicant pleaded guilty to, in front of the jury panel, before trial.
Just prior to NN commencing her university studies, one evening she was watching ‘The Lord of the Rings’ trilogy in her bedroom. The applicant joined her. He had been drinking. The applicant started talking about how she would have a lot of sex at university. He said that he wanted to give her advice on how to satisfy her partners. The applicant asked NN if she masturbated, and asked her to show him how she did it. She did not want a confrontation, and so masturbated whilst he watched until he fell asleep on her bed (charge 7).
The defence position at trial
The applicant did not give evidence at trial. The defence case at trial was that (apart from the matters to which the applicant pleaded guilty), none of NN’s allegations could be believed. It was said that her evidence was neither reliable nor credible. The defence case was that the events described by NN, in support of the charges to which the applicant pleaded not guilty, never happened. The improbability of the offending occurring undetected in the domestic situation in which the complainant and the applicant lived was emphasised. Specific motives to lie were advanced as explaining why the complainant might give untruthful evidence against the applicant. Specific arguments were put concerning the delay of 20 years which had occurred since the events alleged to form the basis of charge 1 and concerning the quality of the evidence relating to this charge. Specific reliance was placed upon discrepancies between NN’s account in her evidence and BB’s account of relevant matters in his evidence
The prosecutor’s address
The applicant submitted that there was a ‘contravention of the principles laid down in Palmer’, as a result of what was said by the prosecutor in his final address and what was said by the judge, in summarising the prosecutor’s address, in her charge to the jury. Further, it was submitted that a redirection given by the judge to the jury did not cure the miscarriage of justice caused by the prosecutor’s remarks and the judge’s earlier summary of them.
While the applicant’s submissions focussed on the prosecutor’s use of the phrase ‘… why would you not accept her?’, these words need to be examined in the context of the address as a whole and in the context of the way in which the trial was conducted. Having made the point in his address that the prosecution case depended upon the jury’s acceptance of NN’s evidence, the prosecutor went on to say:
[W]hat I want to do now is spend some time on [NN] and the way she gave her evidence. You see this is a trial all about her because if you don’t accept her on the elements of the offence, then you would say, well, not guilty of course, so the question becomes, well, why would you accept it, it’s a fairly properly asked question, it’s one [defence counsel] in his response will press with you, why would you accept it and he will point to things that he says you shouldn’t accept her, or you should be left in a reasonable doubt.
What we say, ladies and gentlemen, is any assessment of that woman’s evidence could leave you in no doubt, no doubt that she was telling you the truth about what happened to her at the hands of the [applicant]. She was forthright, she was compelling, she was sincere, she had the hallmarks of truth about her and the things that she said made sense at the intuitive level as well as the factual level. None of it wrangled or pranged against your common sense, understanding of the actions that she was describing.
That’s what I say to you. You might say, ‘Well, no, Mr [Prosecutor], I don’t agree with that at all’, fine, reject me on it, but what we say is a critical and proper analysis of her evidence will leave you in no doubt given the way in which it was given to you that she was telling you the truth, to use a simple expression. And that if you accept that she was telling you the truth your proper verdict will be one of guilty.
Now why would you not accept [her] is a number of tried and true ways in which witnesses can be challenged on the truthfulness of their evidence and sometimes witnesses can break down and confess, ‘Yes, you’re all too good for me, I’m making the whole thing up’. It rarely happens if ever it happens, really it’s more a question of subtly and watching the witness and comparing forensically what you hear with your own common sense and understanding of the world and how it works.
When you are empanelled onto that jury you don’t leave your common sense at the door. Yes, what you do is an intellectual exercise, it's not about emotion, you leave biases and sympathy, and all of those emotional reactions, you leave them outside the jury room, leave them outside the court room completely. This is a forensic and intellectual episode, you engage in examining it with your head and not your heart.
So what the things that you might use to assess that evidence. Well, putting aside things like the flow of the evidence and how it came across in the emotional sense of course. I said before none of it, nothing that she said really wrangled against your common sense, understanding of the way of the world I expect. One of the things, though, that was raised and this is perhaps the biggest stick that [defence counsel] has to hit the Crown case with, was that there was an incident where [BB] gave some evidence that was different to [NN] on two scores, and I want to deal with both of those if I can. …
The prosecutor concluded his address by referring to aspects of relationship evidence which had been called and which the Crown relied on as establishing the context in which the jury should assess the complainant’s evidence. After referring to the novel To Kill a Mockingbird, the prosecutor submitted:
Now if you’re going to be invited [to] judge her evidence about the way she gave it and what she said, have the courage to have a walk for a mile in her shoes. What was her life like on the evidence that you heard, she spent an entire childhood being told that she was a bad child, that she was a liar, that she was an attention seeker and that everything she was punished for was always her fault. She grew up in a dysfunctional family at the hands of a boorish and domineering man who forced upon her and intruded into her life in almost every single way.
Remember the screws in the window, her evidence was the day after the [BB] episode, the screws went into the window. It is interesting, isn’t it, to make the observation, that if you’re trying to put screws into a window to stop people getting in, you’d screw from the inside so the thread, the Phillips head on the end of the screw wouldn’t be on the outside of the window. You would screw that window shut from the outside if you were trying to keep people in from getting out perhaps.
This is a man who brutalised her psychologically over the course of her life and made her the woman that you saw in that witness box, and I say to you, ladies and gentlemen, there was not a single, not a single moment of dishonesty in the evidence that you heard, it was compelling and it was telling and if you accept it beyond reasonable doubt with respect to the elements of the charge you could be left in no doubt that the proper verdict here is one of guilty.
At trial, no exception or objection was taken by the applicant’s counsel to any part of the prosecutor’s address. Specifically, no exception or objection was taken to the above passages or to the prosecutor’s rhetorical question ‘why would you not accept her?’
The judge’s charge
The judge correctly charged the jury as to their task, what was required of them, the elements of the offences and the matters that form the standard directions in a case of this kind. What the applicant seeks to impugn is a passage in the judge’s summary of the prosecutor’s address. In the course of dealing with the arguments of counsel, the judge said:
The dispute is that the defence argue that [NN] is unreliable and that her evidence, the parts of it that are backed up, the two witnesses do not give exactly the same version of events and that is a matter for you. The matters that are not of which [BB] and [NN] do not agree are matters in relation to the timing of events, the way they parted company and what occurred afterwards but there is a certain amount of support for the fact that [the applicant] was clearly angry about that they had gone to the pictures together and it is for you then, the evidence is purely for you to decide what you accept, why you accept it and how you accept it. So that is the main issue and that is do you believe [NN], she is the person who gives all the evidence and if you believe her you should not have, as I say, difficulty with the elements and you must look very critically at her evidence. You need to assess it very carefully because it is vital to the prosecution case.
Now the argument of the prosecution is that why would she lie. She has grown up in this dysfunctional family. She was forever being told that she was a liar and she has obviously had a very difficult time if you believe that evidence. She grew up with a man who was very controlling and I will not go into all that evidence again and he urges that she is an honest, sincere and compelling witness and gave very clear evidence that that is the argument, that you should accept her evidence.
On behalf of [the applicant], it is raised the fact that he pleaded guilty to two charges of producing child pornography. He has admitted that responsibility because he pleaded guilty. The prosecution argue he is not on trial for being a generally bad person and you cannot reason, as I told you, that because he committed some offences he must have committed others. The defence argued that memory is fallible and also raises a number of general matters in relation to all the charges, asked you to consider the layout of the house, that [NN’s] bedroom was near that of her twin brother and sister who were some eight years younger than her and to consider the dynamics of the household and you use that in considering the evidence.
The defence rely on the fact that there has been a lengthy delay and that all of these matters are lies which [NN] has invented because she was unhappy, controlled and because of some incidents that had occurred with her while she was growing up in that family. So he also raised the fact that the car was taken away from her and defence also raises the general unlikelihood of these events occurring and in the situation within the house as it existed.
So defence say that you could not rely on [NN’s] evidence to convict the accused man …
It can be seen that after attributing the proposition ‘why would she lie’ to the prosecutor, the judge went on to summarise aspects of the context evidence upon which the prosecutor had relied in his final remarks.
Trial counsel for the applicant took exception to the judge’s summary of the prosecutor’s argument in the following exchange:
[DEFENCE COUNSEL]: Just one other matter Your Honour when Your Honour was summarising the prosecution’s arguments, Your Honour said, and I don’t have a precise note of it but that the prosecution had argued why would she lie?
HER HONOUR: I did.
[DEFENCE COUNSEL]: Well, I don’t think you did. [We take this to be an aside to the prosecutor.]
[PROSECUTOR]: No.
[DEFENCE COUNSEL]: In fact I would have objected if he did because he’s not allowed to make that argument.
HER HONOUR: Didn’t you say in you closing?
[PROSECUTOR]: Our position is not why would she lie, but I think I have it on the document that I filed, Your Honour has used the expression I’m not allowed to go to the jury on the footing explicitly of why would she lie, that’s a Palmer infraction and if my friend takes exception to it as I hear him doing it.
The prosecutor went on to tell the judge that it was not a case of him saying ‘why would she lie?’, it was a case where that question was asked rhetorically in the sense:
…why would you not believe her given the sincerity, the honesty and … then I go to these other matters why defence would say in a sense not to believe her now.
After further discussion, the judge accepted that a redirection was necessary. Her Honour then foreshadowed the form of that redirection. The prosecutor and trial counsel for the applicant each expressed themselves as being content with the judge’s proposed redirection. The jury was then brought back into the court, and the judge (as she had foreshadowed) redirected the jury as follows:
… I got you back in because it was brought to my attention that when I was saying what the prosecution argument was, I said the prosecution argue — sorry — ‘Why would she lie?’ That is a complete error on my part, and I withdraw it absolutely. That is an impermissible question to ask. The burden of proof is on the prosecution; they have to prove all of the elements beyond reasonable doubt, and that is not a question to ask, and I do not know where I actually got it from, because I thought it was something that was written and it is not.
Following that redirection, the jury resumed their deliberations. Neither the applicant’s counsel nor the prosecutor took any further issue with the judge’s charge.
Analysis
Palmer was a case that concerned the legitimacy of asking an accused in cross-examination whether he could suggest any reason or motive explaining why the complainant would lie or invent allegations against the accused. A majority of the High Court[6] held that such cross-examination was generally impermissible. A complainant’s account gains no legitimate credibility from the fact that an accused is unable to suggest a motive for the complainant to lie. Such questioning is unfair. Additionally, the plurality[7] held that if a complainant’s account is strengthened by an accused’s inability to give evidence of a motive for the complainant to lie, the burden of proof may in effect be reversed and the standard of proof is impermissibly diminished.
[6]Palmer (1998) 193 CLR 1 (Brennan CJ, Gaudron, Gummow and Kirby JJ).
[7]Palmer (1998) 193 CLR 1, 7 [8], 10 [11] (Brennan CJ, Gaudron and Gummow JJ).
The plurality drew a careful distinction between questions directed to a complainant and questions directed to an accused.
It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross-examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant. A complainant knows whether he or she has a motive to lie and, as a motive to lie is a fact that may be proved to impeach the complainant’s credit, the complainant may be asked about it. And evidence may be given by other witnesses of events from which such a motive may be inferred. But the fact that an accused has no knowledge of any fact from which a motive of the kind imputed to a complainant in cross-examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie, but if the facts from which an inference of motive might be drawn are facts that the accused would know if they existed, his lack of knowledge could be elicited to disprove those facts.[8]
[8]Palmer (1998) 193 CLR 1, 7 [7] (Brennan CJ, Gaudron and Gummow JJ) (citation omitted).
This was not a case involving cross-examination of an accused and, insofar as it involved cross-examination of the complainant (which, as the High Court makes clear, is entirely legitimate), the defence squarely put motives to lie, which were in turn the subject of address to the jury.
The trial judge gave specific directions concerning this aspect of the case in the course of her charge:
I am now going to move on to the defence. Defence argue that the complainant, [NN], had a motive for falsifying the allegations against the accused. There are a number that they raised. There was generally, the relationship she had with her father. Then there were the incidents of being punished and controlled. When she left and went to university, her father disapproved of any boyfriends that she had. Further raised is a reason for inventing the allegations. The fact that she had been given a car which she was only allowed to drive in [her home town] and provided she stayed at university. At one point, she suspended her studies for a period of six months. She did not leave the university, according to her evidence. But she suspended her studies and the car was taken away from her.
Further, she was very resentful about the pornography that was made involving her without her consent and she was resentful about her general treatment within the family and the punishment and control that she suffered. You will remember all the incidents that she gave evidence about.
Now you have to assess her evidence and also assess her as a witness. You may recall that she also gave evidence that he was very helpful to her when she was trying to learn to draw certain parts of the body and the reason that she had watched The Lord of the Rings was because she thought as she was leaving the home and going to university she might be able to have a normal relationship with her father.
You may look to her evidence and look to see whether in her evidence she was vindictive or whether she admitted things that were correct, that is all part of your assessment. So basically it is that she — it was because of her relationship with her father that she has now made up all these matters in order to get revenge.
Now the prosecution, of course, dispute this. It’s important that you understand that if you do accept the submission by the prosecution and reject the defence argument that [NN] was lying because of the events in the household, that is not the same as accepting that she was telling the truth. All that you are doing is eliminating one possible reason for rejecting [NN’s] evidence.
It is still possible that she was lying. She may, for example, have a motive for lying that [the applicant] does not know about. So just because you have rejected one possible motive does not mean there cannot be another. Similarly rejecting the motive suggested by the defence will not make her evidence any more credible. You need to assess her credibility on the basis of her testimony and consideration of the other evidence in the case not on the basis of whether [the applicant] can tell you why she might be lying.
Remember it is for the prosecution to prove beyond reasonable doubt that the complainant is telling the truth. The accused, as I have told you, is not required to prove his innocence or to prove that [NN] had a reason for making false allegations. You can only convict [the applicant] of any of these offences if, on the basis of all the evidence, you are satisfied of his guilt beyond reasonable doubt. That is dealing with that matter that the defence raised.
There was no error in these directions and they made very clear to the jury that, in considering the question of whether the complainant had a motive to lie, the jury must always remember that it was for the prosecution to prove its case beyond reasonable doubt that the complainant was telling the truth.
The present case does not involve any impermissible cross-examination. The issue is whether the prosecutor’s rhetorical question and/or the judge’s summary of the prosecutor’s argument containing the rhetorical question was unfair or was otherwise impermissible because it reversed the onus and/or diminished the standard of proof.
In our view, the prosecutor’s address did not contravene either the principles in Palmer or any other relevant principles. In addressing the jury as he did, the prosecutor did no more than identify that the credibility of NN was a critical issue in the trial, before he then went on to address arguments that he anticipated would be put by defence counsel on the issue of why the jury should not accept, or rely upon, NN’s evidence.
We are fortified in the view that the prosecutor said nothing impermissible in his final address by the fact that the applicant’s counsel at trial took no exception to it; and further, by the exchange between counsel (as set out above) that occurred after the judge had summarised counsel’s addresses in her charge.
The critical question in this application for leave to appeal is thus whether, in summarising the prosecutor’s address in the way that she did, her Honour reversed the onus or diminished the standard of proof. In other words, did the rhetorical question ‘why would she lie’ carry with it the same vices in respect of the burden and standard of proof that such a question would have had if asked of the accused in cross-examination.
The passage of the charge that the applicant now seeks to impugn followed earlier (correct) directions concerning the burden and standard of proof both generally and specifically with respect to the issue of lies by the complainant. In her charge, the judge emphasised that the applicant bore no onus and that at all times the prosecution bore the onus of establishing the elements of the offences, with which the applicant was charged, beyond reasonable doubt.
It was unfortunate for the judge to mischaracterise the prosecutor’s address in the way contended for by the applicant. But, viewed in context, the judge’s statement would be understood as shorthand for the prosecutor’s arguments which were themselves entirely legitimate. Moreover, the judge had shortly before made clear that, in considering why the complainant might lie, the jury should at all times remember that the accused carried no onus and that it remained at all times for the prosecution to prove its case beyond reasonable doubt.
Furthermore, even if one were to conclude that the judge’s misstatement of the prosecutor’s argument risked reversing the onus or diminishing the standard of proof, the redirection given by the judge (which redirection was given with the acquiescence and approval of both parties’ counsel) cured any defect that otherwise might have been held to have arisen from what her Honour originally said. In the redirection, the judge firmly corrected what had been said earlier. In our view, that redirection was more than sufficient to address the issue. When one looks at the charge as a whole (including the redirection), it is not reasonably arguable that the judge diminished the standard of proof, or imposed any burden of persuasion upon the applicant. Again, we are fortified in these conclusions by the fact that trial counsel agreed with the proposed form of the redirection before it was given and took no further exception to the judge’s charge after the redirection.
Conclusion
The application for leave to appeal must be refused.
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