Anderson v Tasmania
[2020] TASCCA 11
•17 July 2020
[2020] TASCCA 11
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Anderson v Tasmania [2020] TASCCA 11
PARTIES: ANDERSON, Bruce Paton
v
STATE OF TASMANIA
FILE NO: 188/2020
DELIVERED ON: 17 July 2020
DELIVERED AT: Hobart
HEARING DATE: 1 June 2020
JUDGMENT OF: Blow CJ, Brett J, Porter AJ
CATCHWORDS:
Criminal Law – Evidence – Matters relating to proof – Miscellaneous matters – Other cases – Delay in complaint and prosecution – Significant forensic disadvantage as a consequence of delay – Three particular consequences identified at trial – Trial judge found no significant forensic disadvantage in respect of two aspects but finding made as to third – Whether trial judge erred in findings of no disadvantage – Whether sufficient directions given as to third aspect – No error shown.
Evidence Act 2001 (Tas), s 165B.
PT v The Queen [2011] VSCA 43; Jarrett v The Queen [2014] NSWCCA 140, 86 NSWLR 623; Pate v The Queen [2015] VSCA 110, 250 A Crim R 425, applied.
Aust Dig Criminal Law [2723]
Criminal Law – Appeal and new trial – Verdict unreasonable or not supportable having regard to evidence – Other matters – Ground of appeal that verdicts "unsafe and unsatisfactory" – Argued that verdicts unreasonable or unsupportable but by virtue of matters said to amount to a miscarriage of justice – Verdicts not unreasonable or unsupportable having regard to the evidence – No deficiencies or irregularities in the conduct of the trial constituting a miscarriage of justice – Use of the phrase "unsafe and unsatisfactory" in ground of appeal generally misleading and inappropriate.
Criminal Code (Tas), s 403(1).
Fleming v The Queen (1998) 197 CLR 250; Loone v Tasmania [2008] TASSC 7.
Aust Dig Criminal Law [3477]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Presentation of defence case – Allegation of biased summing up because of time spent on Crown case compared to that of accused – Where jury reminded of most of evidence in short case – No misdirection or miscarriage of justice – Summing up reflected relative times spent on respective cases – Appellant's case adequately and fairly put to jury.
R v Meher [2004] NSWCCA 355; Riley v Tasmania [2020] TASCCA 1, applied.
Aust Dig Criminal Law [3484]
REPRESENTATION:
Counsel:
Appellant: T Kovacic
Respondent: J Ransom
Solicitors:
Appellant: Leonard Fernandez
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASCCA 11
Number of paragraphs: 149
Serial No 11/2020
File No 188/2020
BRUCE PATON ANDERSON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
BRETT J
PORTER AJ
17 July 2020
Order of the Court
Appeal dismissed.
Serial No 11/2020
File No 188/2020
BRUCE PATON ANDERSON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
17 July 2020
I agree with the other members of the Court that this appeal should be dismissed. I do not wish to express any opinion as to the question discussed by Brett J as to the reminding of the jury of the evidence of prosecution witnesses. I otherwise agree with the reasons stated by Porter AJ.
File No 188/2020
BRUCE PATON ANDERSON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
17 July 2020
I have had the benefit of reading the reasons for judgment of Porter AJ. I agree with his Honour's conclusion that this appeal should be dismissed. With one minor reservation, I also agree with his Honour's reasons for that conclusion.
My reservation relates to his Honour's muted criticism of the extent to which the trial judge went in reminding the jury of the evidence of the prosecution witnesses, in particular that of the complainants. In my experience, particularly when a case involves multiple counts alleging sexual crimes, it is often useful for a trial judge to identify with precision the evidence which is relevant to each count. Doing so assists the jury to comply with the direction to consider each count separately, and not simply engage in a general consideration of the evidence. It also assists the jury to properly use tendency evidence and to avoid substituting other criminal conduct for that alleged in respect of the relevant count. In an appropriate case, the desired precision can best be achieved by reminding the jury of the evidence relevant to the count in question by using the actual words of the witness. Summarising or paraphrasing the evidence does not always do so satisfactorily. Further, it may be important to remind the jury of what the witness actually said in cases where counsel have summarised contentious evidence in the context of argument during closing addresses. Of course, all of this is a matter for the assessment of the trial judge in the circumstances of the particular case.
In this case, as Porter AJ has pointed out, her Honour did not simply read out a block of evidence, but rather read or summarised relevant parts of the evidence and then discussed that evidence in the context of the pertinent issues. In my opinion, by so doing, her Honour complied with her obligation to ensure that the jury focussed on and understood the applicable issues in the trial. I am satisfied that the summing-up was appropriate and effective in achieving this outcome.
I would dismiss the appeal.
File No 188/2020
BRUCE PATON ANDERSON v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER AJ
17 July 2020
Introduction
This is an appeal against conviction. The appellant was tried by a jury before Wood J on an indictment containing five counts of indecent assault – counts 1 to 5 – and two counts of aggravated sexual assault – counts 6 and 7. There were two complainants; one in relation to the five counts of indecent assault, "RK", and one in relation to the counts of aggravated sexual assault, "JM". On 8 November 2019 the appellant was found guilty on four counts of indecent assault – counts 1 to 4 – and one count of aggravated sexual assault – count 6. He was found not guilty on counts 5 and 7.
Counts 1 to 4 inclusive on the indictment each alleged that at a particular geographical location, between 23 August 2003 and 23 August 2006, the appellant indecently assaulted RK by placing his hand under her clothing and touching her vaginal area. Count 5, of which the appellant was acquitted, involved the same place and date range, but alleged indecent assault by touching the complainant's vaginal area over her clothing. RK's date of birth is 23 August 1995. It follows that the crimes were said to have been committed when RK was between her 8th and 11th birthdays; that is, when she was 8, 9 or 10 years old.
In count 6 it was alleged that at the same general geographical location referred to in counts 1 to 5, on or about 10 March 2007 the appellant indecently assaulted JM by penetrating her vagina with his finger. Count 7, of which the appellant was acquitted, was similarly worded but said to have been committed at a time subsequent to count 6. JM was 8 years old at the time.
The appellant's date of birth is 3 September 1958. At the time of the trial, RK was 24 years old; JM was 20 years old.
There are five grounds of appeal. The first three concern questions of directions to the jury under s 165B of the Evidence Act 2001 (the Act) concerning the issue of delay, the fourth complains of a summing-up biased in favour of the Crown, while the fifth asserts the verdicts are "unsafe and unsatisfactory". For the reasons that follow, I would dismiss the appeal. It is best if I first set out the evidence. I will include the evidence in relation to the counts of which the appellant was acquitted, because it is short and may affect the complainants' credibility.
The evidence at trial
As a preliminary matter, I note that before the trial the Crown served a notice of tendency under s 97 of the Act. The appellant did not argue that the evidence of tendency did not have significant probative value nor, under s 101(2), that the evidence did not substantially outweigh any prejudicial effect. The evidence specified was confined to the evidence of each complainant. Identified conduct included touching the complainants on the vagina, under and over clothing, and digital penetration. The tendency alleged was a sexual interest in girls approximately 7 to 10 years of age, and a preparedness to act on that sexual interest in circumstances where there was a risk of detection by people nearby.
The complainant, RK
RK told the jury that when she was about 5 or 6 years old she moved to an address in a certain location. It was a one acre block with a house and garden. After a little while, there was a shed put up and some excavation for a concrete slab for the purposes of a shed or an extension to the house. She said the appellant was there for the excavation on multiple occasions. When the excavation was being done or shortly after, she said she was walking along the side of the house "and he came up behind me and grabbed me around the waist and with his spare hand put his hand underneath my underwear and touched my genitalia". She said she was probably about 9 at the time. There was no discussion between the two of them beforehand that she could recall.
RK said there was further contact between her family and the appellant; they often as a family visited his house at a time when she was a similar age, "so around 9". The appellant then lived in the same general area. RK described the appellant's house as a two-storey house with a number of bedrooms upstairs, and a bar area in a downstairs lounge room. The toilet was at the top of the stairs. On an occasion, having used the toilet, she heard the appellant coming so she tried to hide in a bedroom; in particular next to a wardrobe that had a nook next to it. The complainant described that the appellant found her, and then grabbed her and put his hand down her pants and touched her vaginal area. He said nothing that she could recall.
When asked if anything else happened in the upstairs area of the house, RK said she tried to hide in another one of the bedrooms. She ran in and laid down on the floor next to the bed, as close to the bed as she could. The appellant found her and again put his hand down her pants and touched her. When asked if those two incidents happened on the same day or on different days, the complainant said, "I can't know for sure but it's likely ... the same day ... but it was two separate touchings". She said she made no complaint to anybody at the time because she did not think she had anyone to tell and she was embarrassed.
RK went on to describe a further incident that happened in the bar area. She said she was not sure whether it was on the same day as the incidents that happened upstairs, or on a different day, but agreed it was certainly a different incident. RK told the jury that there were a number of people sitting in the lounge and some in the kitchen/dining area. She was behind the bar looking at various items. The appellant grabbed her around the waist. She tried to run away. The appellant laughed and put his hand down her pants and touched her vagina. She called out for help but the appellant made it look like he was tickling her so they turned away.
RK's evidence in respect of count 5 was that it happened when she was riding a horse on the appellant's property. She said she thought she was visiting him with her mother. She went on the horse with the appellant leading the horse down a slope on a track on the property when "he hopped me off the horse by just holding onto my crotch area and after he put me down, his hand kind of just lingered there really uncomfortably for a period". His hand stayed in that position for probably half a minute to one minute. RK said she thought her mother was not there but had remained in the house. She was not sure whether it was the last of the incidents that she had described, and accepted that it could have been between some of the others. (It will be recalled that the appellant was acquitted of count 5.)
In evidence-in-chief, RK was shown some photographs taken by a police officer in April 2017. RK pointed out the slab on which a "granny flat" was put, and indicated where she was walking in relation to where the incident the subject of count one happened; she was walking from the back yard into the front yard and it occurred close to a window of the brick house shown in a photo. She also pointed out the slope of the roof that formed part of the "nook".
RK said the first person she told about these incidents was her partner, HL. That was when she was "probably about 18." She left him what she described as a "vague message" on an iPad or phone, basically saying she had been sexually abused. After seeking counselling, she wrote a letter to her mother about what had happened with the appellant. RK said she had never met or spoken to JM. She had not had any contact with her during preparations for the trial.
The timing of the excavation referred to by the complainant assumed significance in the trial, and has relevance in this appeal. In cross-examination, RK confirmed she was around 9 years old when the incidents she spoke of happened. Although she agreed that this would work out to be "about 2004-ish", in strict terms, if she were 9 that means between August 2004 and August 2005. In any event, RK said she did not recall exact dates when it was put to her that she did not "meet" the appellant until New Year's Eve in 2006. When asked whether she recalled there being fireworks on the night she first met the appellant, RK said she did not recall that being the first night, but did recall there being fireworks at his property at some stage. (From the cross-examination of later witnesses and from the appellant's evidence, the use of the word "meet" may have been a mistake; the intention being to refer to the first visit to the appellant's house.)
RK agreed that her father primarily did the excavation work using the appellant's equipment. She said she was not sure whether the slab had been put in place at the time of the incident she first described, saying she could not be certain, "it was either being prepared or it had been put in". When it was put to her that the slab was not poured until 2007, she said she did not know the date that it was poured. The following exchange then occurred:
"So, you'd accept though, that, if it is the case that the slab was poured in 2007, what you say happened, couldn't have occurred back in 2004 could it?.....I would assume then that the slab had not been poured at that point."
RK went on to say that she did not have a good memory of whether or not the slab had been poured, saying she was "fuzzy" about such things. She denied that the incident did not occur saying the appellant "definitely did" touch her as she had described.
When asked about the incident she described as happening upstairs, RK said she hid in a nook next to a wardrobe. She agreed that she had told police in 2017 that she had hidden next to an "inbuilt cupboard." When it was put that there were no "built in robes", RK said she remembered there being some sort of nook. When pressed about whether or not there were any inbuilt cupboards or wardrobes, she said she could not see any in the photographs that had been shown to her – it could have been a large movable wardrobe not an inbuilt one, she was not certain one way or the other. She rejected the proposition that she had not hidden at all, and denied the suggestion that the appellant had not touched her at all while she was upstairs. As to the second "upstairs" incident, RK said she did not know whether it was the same day, the same week, or the same month, she was not certain. She thinks they would have been in the same year.
As to the incident in the bar area, RK denied the suggestion that the appellant had not grabbed her while she was there and that he had not touched her vagina at all. As to the last incident, RK denied the suggestion that she had never ridden a horse at the appellant's property, and more particularly the suggestion that she was not alone with the appellant riding the horse at any stage. Essentially, she was uncertain about the sequence of the five incidents and accepted that she did not recall the order in which they happened. When asked about the terms of the letter to her mother, RK agreed she had said the appellant had molested her – sometimes even in front of "other people" – and did not use the word "family". She did so because she could not remember who was in the room, not because the event did not happen and was all in her mind.
RK's mother
I will call RK's mother "WM". Her evidence is capable of supporting RK's account in various respects. WM said that the family moved to the relevant property in 2001. She spoke of building a shed and plans to build another shed that would be attached to the house. The appellant was retained to do what she described as "the second one". She said he came to the property and did some work with his excavator in the form of digging footings. Before that they had hired his excavator and did some driveway alterations. The appellant came to their property more than once. WM said that at this time, the complainant "probably would have been about 10; ... 9 or 10". She said the excavation work done by the appellant would have been about 2004, 2005, possibly 2006.
WM said that after the work was finished they continued to have contact with the appellant as a family friend. They would visit his home on a regular basis. Sometimes RK went as well, although WM could not say on how many occasions. She remembered a birthday party during which the appellant was digging the complainant in the ribs; "She told him not to, he continued, I sort of glared at him and he stopped." WM said she was aware that in the appellant's home, there was one toilet downstairs and also a bathroom upstairs. She said RK had been able to go to the toilet by herself from an early age.
WM confirmed that the complainant went horse riding at the appellant's house; once that she was aware of. WM was present when it happened. The appellant offered to take her horse riding. WM took her to the appellant's property. The appellant and the complainant went off up into a bush area, while WM stayed behind. She said it took a little while before they came back.
In cross-examination, counsel suggested to WM that it was not until late 2006, "around October onwards" that the excavation work using the appellant's excavator was done. WM said that she could not dispute that "offhand at the moment", but if she looked she might find some sort of record. She was not able to say whether the first time they visited the appellant's property was on New Year's Eve 2006. As to the horse riding incident, WM agreed that she told police in September 2017 that she had allowed the appellant to take RK horse riding, but that RK did not go horse riding by herself with the appellant. In re-examination, WM offered in clarification that she meant she had taken RK to the appellant's property, and was at the property when the appellant took RK for the horse ride.
WM said that her husband – RK's father - died in 2011.
RK's brother
RK's brother, "RP", is two years older than the complainant. He thought he was about 10 when they moved to the particular property in question. He has a recollection of work later being done by way of additions or extensions. He remembered the appellant being there for that work, and of going to the appellant's house at a time later than when the building work was being done. He went there more than once. In cross-examination, he was unsure whether the first time he was there was New Years' Eve 2006.
Complaint evidence
RK's partner, HL, said he had been RK's partner for the last six years. RK disclosed something to him for the first time about 5½ years previously. He said it was not uncommon for her to be crying in bed. She did not usually tell him what was wrong, and he could not get her to speak about it. After he pestered her, and her saying that she cannot physically speak about it, she wrote a note on her phone. That note said that she had been sexually abused when she was a kid. The note mentioned that it was "her father and her family friends". Later, after they had moved, he asked her about some more details. She mentioned her father again and named two others, one of them was the appellant and she went on to give some detail about that.
HL said that RK had told him when she was younger, the appellant would put his hands down her pants and touch her. This happened away from her parents and sometimes when they were in the same room as her family; she said that sometimes he would do it in front of her family, that she would make a fuss about it and run away, but her family would just tell her to stop being silly and sit down; to stop making a commotion. RK had told him that there were also times when they went to the appellant's property. She would go for horse rides. He would take her away from everyone else, and would try to abuse her there as well.
In addition to this complaint evidence, the jury heard from a "mental health clinician", Caroline Thain. Ms Thain gave evidence that RK consulted her in July 2015, and attended for six subsequent sessions. Ms Thain said that RK had disclosed childhood abuse and trauma; in particular abuse from her father, her brother (not RP), and family friends. Ms Thain advised RK that she should go to the police at some stage. (There was no argument or discussion about all of this complaint evidence which was no doubt admitted under the provisions of s 66 of the Act.) The evidence showed that RK first spoke to police on 7 April 2017, but it was not possible to take a detailed statement from her until about two weeks later.
The complainant JM's mother
I will call JM's mother "KL". She gave evidence about a woman to whom I will give a pseudonym, "Naomi Pike". As I will later discuss, Ms Pike did not give evidence in the trial as she could not be located. However, two statutory declarations made by her to police were tendered in the Crown case. One was made in March 2007, the other in February 2010.
In evidence, KL said that Ms Pike was just a friend and regular visitor to the home. On 10 March 2007, Ms Pike asked KL if she was allowed to take JM horse riding. KL agreed. Ms Pike and JM, along with Ms Pike's son,"Kaine", left at about 11 am and returned at about 3 pm. After Ms Pike had left, JM told her mother that the appellant had "touched her in her rude spot" and she thought it was beside the house. To KL, the term "rude spot" meant "vagina". KL contacted Ms Pike who returned. Ms Pike said nothing had happened, so KL contacted the police.
A number of female officers arrived, and took JM and her mother first to the police station where KL made a statement, then to the hospital where JM was examined, and then back to the police station where JM was interviewed. In cross-examination, KL denied that JM simply complained of it hurting when she wee'd, saying, "No she just came out and told me what had happened." She said she was sure about that, and could not be wrong.
Police interview of JM – 10 March 2007
Constable Nadia Reid gave evidence that she and another female officer, Const Renee Tilyard, went to JM's home on 10 March 2007. Const Reid was not sure whether she spoke to JM at that time. The officers spoke to the mother, and then took both mother and daughter to the police station. Shortly after, JM was taken to the hospital for a medical examination, and then taken back to the station. JM was then interviewed in the presence of her mother. The interview was recorded. Counsel for the appellant asked Const Reid whether she had notes of what had happened, and the order in which things had happened. She said she did not have any notes that she could find from 12 years previously. When asked whether she recalled making notes she said, "Possibly, but I couldn't find them."
It is evident from the interview that the officers were relying on things that JM had said before the interview started. It seems to have been common ground at the trial that the police at least had notes of a general chronology, and that the notes were no longer available. In essence, Const Reid said she could not recall much from 12 years ago.
The video recording of the interview was played to the jury. A transcript of the audio as it was played was provided to the jury as part of the transcript of all the evidence. The transcript of the interview contains a number of times where the transcriber has noted "[No audible reply]", in some instances followed by notes such as "nodding", "nods head up and down", "shakes head up and down", or "shakes head from side to side". In some instances the transcriber has noted "indistinct words."
In the interview, JM said that Naomi had taken her and Naomi's son to a friend's place. The friend's name was Bruce. One of the officers asked whether JM remembered saying Bruce picked her up over the fence, and that is when he put her on the pony to ride. There was an inaudible reply. JM said that when she went horse riding Naomi and the son were outside. JM talked about Bruce and Naomi sitting at the table reading a newspaper. She described her and the son playing hide and seek. JM was asked what happened when she went upstairs looking for the boy; what did she see upstairs? JM said she saw Bruce and Naomi laying on the bed. Bruce was sitting on Naomi.
A little later in the interview, JM said when she saw them they pulled their pants up. JM kept looking for the boy and found him in a cupboard. Everybody went downstairs. JM said she went outside but not by herself. Bruce pulled her over near the shed and put his hand down her pants. This was in front of Naomi's car near the shed. She said "He was playing with it." By use of dolls, the officers elicited "he put it in that hole down there"; something JM called "a rude spot". When asked whether he was "playing with it", JM said, "He was squeezing it." She said his finger was there for a short time and he was moving it around.
JM was asked what happened after that, and she went on to reveal the following. Bruce told her to go to pat the horses, which she did and then went inside. She was sitting on the sofa and Bruce played with her hair. Naomi went to the toilet and JM went around the house trying to find Kaine "but he was inside and he was outside". When asked who was outside, JM said "When Naomi was in the toilet Bruce put his hand down my pants. He done it twice, …". This is the first mention of a second touching. The officer asked, "So he did it again inside did he?" JM said, "No, he done it outside." When asked whether that was near the shed or was that another time, she said that he did it near the house and near the shed. In answer to the question of what he did or said "the second time", JM said he asked whether she liked it, but she had said nothing to him.
One of the officers had JM confirm that she was telling them that Bruce touched her twice in her rude spot. The second one was "after the shed one." JM said he did the same thing as before while standing behind her. She explained that when Naomi was in the toilet, she went outside and Bruce followed. When asked whether he touched her more than twice, she replied, "Just two." On the second occasion "He put his finger in my rude spot."
JM's evidence
JM confirmed that when she was 7 years old she knew Naomi Pike, and remembered going horse riding with her. She was reminded of speaking in the interview about being upstairs and seeing Naomi and another person. She now knows the name of that person to be Bruce Anderson. They were in a bedroom. Bruce was on top of Naomi, with Naomi having no pants on. After that she went back downstairs and outside. Bruce followed, and pulled her over to the shed and put his hand down her pants. It was under her clothing and he touched her vagina. She was reminded that in the interview she referred to "her rude spot", and asked what she meant by that expression. She said, "In my vagina." She said his fingers went in. She remembered being touched once. That happened near the shed. JM said she had watched the interview. As to the mention of another time when Naomi was in the toilet, she now does not remember it.
JM was reminded of her reference to another time when Naomi was in the toilet. She said she did not remember anything about that now. JM was asked about any other ride that happened that day, and replied to the effect that before the horse ride, everyone went for a ride in Bruce's car. As to making a complaint, JM said she told her mother what had happened. She told her she was supposed to be horse riding "But I saw them doing something in the bedroom and he didn't like it so he pulled me outside and touched my vagina." JM said she had never met RK or talked to someone of that name, nor come into contact with her during the time she was being spoken to about the trial. (It will be recalled that the appellant was acquitted of count 7, a similar allegation to that made in count 6, but said to have occurred at a time subsequent to the incident the subject of that count.)
In cross-examination, JM said she remembered going into the house before riding the horse. She confirmed that she had not ridden a horse before. She was unsure whether Naomi or Kaine went on the ride. After the horse ride, they went inside and she played hide and seek with Kaine. She did not see Bruce and Naomi go upstairs. She confirmed she saw the appellant sitting on top of Naomi, and said she could not be wrong about that. She disputed the proposition that the appellant had not grabbed her, saying he grabbed her by the arm, and that he did not put his finger in her vagina. She said she recalled that when she had got home urination was painful or uncomfortable. When she was asked when she first noticed that, she said, "straight after he'd done it" and before she had arrived home.
What followed were these questions and answers, which were later relied by the appellant's counsel in closing arguments to the jury:
"Okay, so, when you got home, did you say, oh look, my – my wee is sore, what exactly did you say?.....Yeah I told – I told my mum that it was hurting.
It was hurting, okay, and did she then demand to know what happened?.....Yep.
Okay, did she put to you that someone had touched you and that's why you're sore?.....No, because I told her.
And is it possible that's what's happened?.....Yes."
The statements of Naomi Pike
As I have noted, Ms Pike was unable to be found and did not give evidence. Const Campbell was one of the police officers who investigated RK's complaint in 2017, (and who was no doubt pursuing the connection to the earlier JM complaint), gave evidence that she had made efforts to try to find Ms Pike. Const Campbell seems to have become involved in about April 2017, but apart from that, it is not clear when and over what period of time the inquiries about Ms Pike's whereabouts were made. Among the things Const Campbell said she did was to go to the address of Ms Pike's son. Const Campbell left details with him and asked him if he could get in contact with his mother. Someone she believed was Ms Pike later sent an email, "but since then I haven't been able to make any further contact with her."
There are two statutory declarations made by Ms Pike, the first on 14 March 2007, the second on 5 February 2010. The trial judge was told that counsel for the appellant had requested the prosecutor to tender them. Understandably, Crown counsel was not intending to seek their tender. His position was that both should be tendered, or neither. Again understandably, his view was that the first one should not be in evidence without the second.
In the first statement Ms Pike said she and the appellant were friends. She confirmed that she took JM and Kaine who was then 13 years old to the appellant's property. She had been there numerous times. JM had not met the appellant before. Ms Pike says that JM was shy and did not talk to Bruce. She said they had some lunch after which the children played hide and seek for about five to ten minutes before going outside. The statement continues:
"Bruce and I went upstairs. He showed me a new door he had been waiting for – he built the house himself. I was upstairs with Bruce – in the hallway – for only about 13 minutes then we went back downstairs. I didn't see either of the children come up the stairs.
Prior to Bruce and I going upstairs we had gone outside to give [JM] a ride on the pony. Bruce helped her on, there wasn't a saddle. She held onto the horse's mane. Bruce led the pony around the paddock. She was only riding for about 5 minutes."
In her statement, Ms Pike goes on to say that when they came back downstairs, she went to a table, while the appellant was in the kitchen. He went outside to let his dog off the chain. She said she followed basically straight away but briefly stopped at the door to put her shoes on. By this stage the appellant had turned back around and was walking back to where she was. They both went back inside. She could not see JM. She thought she was down at the paddock. They left about five to ten minutes later. Ms Pike describes receiving a text message from KL about 20 to 30 minutes after she had left after taking JM home. It was that JM had something to tell her, and she would let JM explain.
When Ms Pike arrived, JM told her that when she had gone outside Bruce had followed her to the shed and asked her if she touched herself and pointed between her legs. Ms Pike told KL that they were not alone together, to which KL said that JM had said she was sore "down there". Ms Pike says that she told KL that was understandable because she had been riding bareback and trotting the horse a little bit.
In the second statement, Ms Pike states she would like to change the content of the first one. The second statement continues:
"When I went upstairs with Bruce Anderson, we into a bedroom, [sic] which I believe was the one opposite the bathroom. I did get Bruce to give me a massage. I laid face down on the bed. I had my top off and bra undone. Bruce kept his clothes on. He said on me, facing my head. He massaged my back and shoulders.
...
By being massaged, I heard a noise, like steps creaking I didn't take much notice. I did not see anyone look into, or enter the room. There were no doors on this room, to my memory. Bruce and I were upstairs for about 15 minutes. After the massage Bruce and I went back downstairs. I went to the toilet, after having a coffee. While I went to the toilet, Bruce said he was going outside to check on the dog. I'm not sure where [JM] was at that stage."
Dr Amanda Dennis
Dr Dennis is a specialist gynaecologist. She was not the doctor who examined JM on 10 March 2007, but relayed the notes of the examination, and gave some opinion evidence. Dr Dennis said that if there was digital penetration of the vagina, it does not necessarily follow that injuries are detected. Injuries are extremely rare with the genitalia usually being normal despite an allegation of digital penetration. That would certainly be the case with a 7 year old child. The note made at the time was that the genital area appeared normal.
Dr Dennis read from the history recorded in the notes. It had been noted that JM said "I was going to pat the horses and he pulled me over behind the shed. He put his hand down my rude spot. He did it two times, he was playing with my rude spot. ... He let me go and told me to go and pat the horses." The examining doctor had noted that JM had indicated that it hurt, and clarified that she was not touched on her bottom, anal area or any area other than the "rude spot", but Dr Dennis said those words did not appear as direct quotations.
In cross-examination, Dr Dennis confirmed that the report stated that JM "complained of pain down below and stinging on passing urine". Dr Dennis agreed that a child riding a horse bareback could possibly explain some irritation during urination.
Police interview with the appellant – 16 March 2007
As would be apparent, this interview only related to the allegations made at the time by JM. The appellant completely denied sexually touching her. In essence, he said that Ms Pike, Kaine and JM visited him. He took JM for a pony ride without a saddle. Meanwhile the other two were standing by the fence. He denied giving Ms Pike a massage. He said they were upstairs for about 15 minutes looking at a door in one of the bedrooms, and looking at the view. He did not go downstairs until Ms Pike and he both went downstairs. He denied ever being alone with JM. He denied the specific allegations of the two instances of digital penetration. The Crown relied on his denial about giving Ms Pike a massage, as evidence of a lie that was relevant to an assessment of his credibility.
The appellant's evidence
The appellant's said he first met RK's father about 7 or 8 October 2006. RK's father came to his home as he was interested in hiring the appellant's excavator. He delivered the excavator to RK's home in late January/early February 2007. About two days after he delivered the excavator, he called into see how the father was going with the excavator. He then met WM. He could not "remember whether any of the kids were about, they may have been inside". He said he remembered meeting RK in the kitchen of her house. WM was there along with one of the other children. In late February 2007, he was called in to do the footings to enable the slab for the shed to be poured. He denied grabbing RK as she described, saying "No, no, definitely not", and denied ever putting his hand down her trousers.
As to his house, he said RK only came there twice; New Years' Eve 2007 [sic] and New Year's Eve 2008. She was with her family on those occasions. As to the first visit, he again said, "No, no, definitely not" when asked whether he had seen RK upstairs that evening. He denied finding her hiding. He denied grabbing her as she described, and putting his hand down her pants. He gave the same responses when asked about the following New Year's Eve. He denied physical contact of any description with RK when she was near the bar.
The appellant also denied that RK ever went horse riding on his property. He said there was a time when he had said to WM that if RK wanted to go for a horse ride he would be happy to take her. His evidence was that WM said that she would allow it as long as she was there, but he reiterated that no horse ride took place. When specifically asked about touching RK when he took her off the horse, he said, "No, it didn't happen." He said the only physical contact happened in the kitchen of RK's home. The mother, father and another child were there. Quite when this was, he did not made clear. He said that as he enjoyed "stirring people", he poked RK twice in the ribs.
He agreed that Ms Pike, her son and JM had come to his property in March 2007. He said the horse ride happened first. When asked about being upstairs with Ms Pike, he explained that he had shown her additions to the bathroom and toilet. That involved going into the spare bedroom. He agreed he was in a bedroom upstairs with Ms Pike, but denied massaging her. As to JM, the appellant agreed she came to his property with Ms Pike. After lunch he put JM on a horse with no saddle. He led the horse around the paddock for about 15 minutes. Before going for a ride in the car, they went inside for about 20 minutes. He went upstairs to show Ms Pike what he had done. When asked about the massage referred to in Ms Pike's second statement, he denied that occurred. He said they were upstairs for about 15 minutes and came back downstairs together.
The appellant said that him putting his hand down JM's pants and putting his finger in her vagina, "didn't happen". He denied being alone with JM that day. When he found out about the allegations through Ms Pike, he went to the police station the next day. When asked whether he flatly denied it, he said "Yes, a hundred per cent." He was definitely not at any stage on his own with JM. In explanation of his visit to the police station after finding out about the complaint he said he spoke to a female police officer and said he was being accused of things. It was about three days after that that police called him in for the interview.
In cross-examination, the appellant strongly maintained his denials. He was asked about the timing of the excavation work. He said he took the excavator to the property in January 2007. He charged RK's father for the use of the machine and had given him an account. When asked about a copy of it, he said that it had been destroyed as "you only have to keep records for about six years". He confirmed that he went to the property in February 2007 to dig the footings for the slab. As to RK hiding beside a built-in wardrobe, he said that could not have happened because there were no built-in wardrobes in the house, at all, and no wardrobes at all upstairs. He was "definitely sure" that RK did not go for a pony ride at his place; "a hundred per cent definite."
When asked about being upstairs with Ms Pike, he denied massaging her and denied that what she described in the statement happened at all. It was suggested that JM walked in on it, and he also denied that had happened.
Overview of grounds 1 – 3: s 165B of the Act
After the evidence was finished and before closing addresses, counsel discussed with the trial judge the directions to be given to the jury. Counsel for the appellant applied for directions in accordance with s 165B(2) of the Act. Subsection (1) of the section makes it applicable in criminal proceedings in which there is a jury. The balance of the section reads:
"165B Delay in prosecution
(1) ...
(2) If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.
(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.
(6) For the purposes of this section —
(a) delay includes delay between the alleged offence and its being reported; and
(b) significant forensic) disadvantage is not to be regarded as being established by the mere existence of a delay."
As to the extent of the delay, of course JM's allegation, the subject of count 6, was first brought to the attention of police on the day of the alleged incident; 10 March 2007. The appellant was almost immediately made aware of the complaint, was formally advised by police of the allegations on 16 March 2007, and interviewed at that time. No action was taken. There was no explanation for this and no evidence that the appellant had any cause to think that the allegations would be resurrected. RK went to the police in April 2017. The appellant was charged by way of a complaint dated 4 June 2018, over a year later. The charges were the same as those in the indictment. The indictment was filed on 11 April 2019, and the trial took place in early November 2019.
Counsel submitted to the trial judge that the appellant had suffered significant forensic disadvantage because of the consequences of delay, in three respects. First, a relevant disadvantage had been suffered due to the death of RK's father. It was said his evidence may have assisted in the issue about the timing of the excavation. That evidence included documents he may have had. During argument, the trial judge pointed out that in relation to documentation, there was the appellant's own evidence that he had destroyed a copy of the invoice given to the father, due to the passage of time. I will come back to the detail, but simply note at this point that the trial judge ruled that there was no significant forensic disadvantage that arose from the death of RK's father in 2011.
Second, there was a significant forensic disadvantage due to the unavailability of Naomi Pike. This issue was the subject of a deal of discussion between the trial judge and counsel for the appellant. Earlier, when the statutory declarations were tendered, the trial judge had given directions to the jury, as had been foreshadowed when her Honour was informed of the proposal in the jury's absence. (Crown counsel said the tender would require a number of warnings as to the use of the evidence, and agreed with the trial judge that the issues included those of hearsay and the inability to cross-examine.)
The trial judge told the jurors that as with all evidence, it was up to them to what evidence they accepted as honest or reliable, or rejected. Her Honour directed the jury that they needed to bear in mind that the accounts in the statements were not given in court, and that they had not had the benefit of observing Ms Pike give evidence; they should also bear in mind that Crown counsel had not had an opportunity to clarify matters, and the accused had not had the opportunity to test or challenge any of what was said. With this issue also, I will later provide greater detail but the end result of the application under s 165B was that the trial judge said she would remind the jury of that earlier direction, and add specific reference to the issue of fact about the massage.
Third, there was a significant forensic disadvantage because of the loss or unavailability of the notes of the police officers who interviewed JM in March 2007. The trial judge accepted that the accused had suffered significant forensic disadvantage as submitted. Her Honour proposed to counsel that she address issues of unreliability and disadvantage, and read out the directions she proposed to give. Both counsel said they were content. The trial judge gave the foreshadowed direction, before reminding the jury of the content of the interview with JM.
Section 165B has been the subject of considerable judicial discussion. As the general interpretation and application of the section is concerned, I refer to PT v The Queen [2011] VSCA 43, Groundstroem v The Queen [2013] NSWCCA 237, Jarrett v The Queen [2014] NSWCCA 140, 86 NSWLR 623 at [60]-[63], Pate v The Queen [2015] VSCA 110, 250 A Crim R 425 and TO v The Queen [2017] NSWCCA 12, 265 A Crim R 191 at [176]-[183]. There is also Robbins v The Queen [2017] VSCA 288, 269 A Crim R 244 at [165] which concerns a similar provision in jury specific legislation.
For present purposes, what can be drawn from these authorities is as follows:
· "Significant" in the phrase "significant forensic disadvantage", means "important" or "of consequence".
· The disadvantage must be of a forensic nature; that is one suffered in challenging, producing or giving evidence or in conducting the case.
· The onus rests on an accused to satisfy the court that they have suffered a significant forensic disadvantage because of the consequences of delay.
· It is the consequences of the delay that require consideration, not the length of the delay itself.
· The relevant disadvantage must be identified, and must have been actually suffered, as distinct from a possibility of it having been suffered; there must be more than mere supposition.
· It is not necessary to prove anything beyond the loss of or inability to obtain evidence that may have been exculpatory.
· Any direction must alert the jury to, and help them understand, the nature and potential consequences of the delay; it should assist the jury in how they approach their task in light of the difficulties.
· There will be disadvantages as a consequence of delay which do not warrant a direction.
Ground 1 – death of RK's father/loss of business records
The ground complains that the trial judge erred in law in refusing to direct the jury in accordance with s 165B in that her Honour determined there was no forensic advantage in either not being able to cross-examine the deceased father, or in the destruction/loss of business records.
As to the application made about this issue, the trial judge provided brief reasons. Her Honour said:
"I conclude that there is no significant forensic disadvantage that arises from the death of [RK's] father in 2011. His evidence would only go to the timing of the association – his association with the accused, and the timing of the events and the bottom line is that the accused has given quite precise evidence about this and there's an absence of countervailing evidence from the Crown on this point due to the passage of time. So if anything, it seems that it might be said that the Crown is disadvantaged but that point shall not be made.
Furthermore, it seems somewhat artificial to sheet this disadvantage to the death of the complainant's father because the accused, in his evidence, has highlighted that he had – he would have had documents which referenced the timing of the work that was undertaken and, therefore, referenced his association with the complainant and those documents are no longer available and what I intend to do is to highlight that in my summary of the accused's evidence. It is a disadvantage but to highlight it as a significant forensic disadvantage is simply inapplicable given the issues on this trial and the state of play with regard to the evidence and it should be put no higher than that."
The appellant's case as put to the jury was that the complainants were "unreliable" witnesses, but for different reasons. As to RK, it was put that if the appellant's evidence about the timing of the excavation was correct, then although not fatal to the Crown case in strict terms, it "casts serious doubt" as to what RK said happened. The jury were "simply left without a clue about what really happened". From the timing issue and her inability to recall the sequence and locations of the incidents she described, she was not a trustworthy witness.
The argument about the s 165B direction is that the evidence of RK's father and the lost/destroyed documentation may have corroborated the appellant's assertions as to the relationship with RK, and the times and places they met. The suggested significant forensic disadvantage relates to the question of the "reliability" of RK's account. I need to go back to some dates. The last date in the range alleged in the accounts is 23 August 2006; just before RK turned 11. She was 9 years old, around which she said she was at the relevant time, between August 2004 and August 2005. The appellant says he was at the property to deliver the excavator in late January-early February 2007, and was there using the excavator in late February 2007. That is six months or a little more, after the end of the alleged date range. RK first spoke to police in April 2017, when she was then about 21½ years old.
In my view, there is real difficulty with the assertion of a significant forensic disadvantage. First, on any version, the appellant was at RK's property for the purposes of the use of his excavator. The appellant did not dispute the fact of him doing excavation work. On any version the use of the excavator related to the preparation for the laying of a slab. RK's father used it, and later the appellant. There is no suggestion all of this this happened more than once. That serves as a very marked fixing point for the timing of the time of the relevant events, irrespective of evidence about dates.
On any version, the excavation was the starting point of the relationship between the families. Depending on the view taken of the evidence, the time of the excavation can be used to fix the approximate time of RK's visits to the appellant's home. The evidence of RK and her mother was that they went to the appellant's home on a number of occasions after the excavation. If that evidence were accepted, the timing of the alleged incidents at the appellant's house could be fixed as from February 2006 onwards. If it were accepted that RK's family did not go to the appellant's home for the first time until, as he suggests, New Year's Eve 2007, that fixes the timeframe accordingly.
Second, although RK said she thought these things happened when she was around 9, when pressed about the slab being poured in 2007, she said she did not have a good memory of that, that she was "fuzzy" about those things. RK's mother, WM, could not dispute, offhand, and without searching for some kind of record, that the excavation with the appellant's excavator did not start until late 2006. In evidence-in-chief she accepted the possibility that the excavation work done by the appellant may have been as late at 2006. The brother, RP, was not asked about when the appellant was at the property with or using the excavator. It can be implied from his evidence that it was sometime after 2003. Crown counsel did not challenge the appellant on his evidence about when he used the excavator at RK's home. There was no real basis for doing so. In his closing address Crown counsel accepted that the jury might think the events took place "slightly after" the alleged date range, and simply said it was not fatal to the Crown case.
For the appellant's argument for the existence of a significant forensic disadvantage to succeed, he would have to show that in the context of that evidence, corroboration of what the appellant said was exculpatory. Because of the agreed fact of, and cause for, the appellant's presence at the location, the "lost" evidence did not amount to an alibi: R v GTN [2003] VSCA 38, 6 VR 150 at [113] per Eames JA. Nor would the evidence have otherwise established impossibility of occurrence so that RK's evidence would necessarily be shown as unreliable. And nor would it have had any real impact on the jury's assessment of the appellant's credibility as to his denial of offending. The unavailable/lost evidence, of itself or along with other evidence, must have been capable of demonstrating to the jury that RK's account of events could reasonably be false. That is, a false memory or a fabrication. I am entirely unpersuaded about that. In the circumstances, an inaccuracy about timing to the extent under consideration could hardly be a weighty factor suggesting falsity.
The appellant argues that the more recent the events, the greater the doubt about RK's reliability. That is because there is a less satisfactory explanation for her vagueness and imprecision about timing and the order of alleged incidents. The counter to that is, generally speaking, the more recent the events the more likely it may be that a person's recollection is accurate. In this case, given the allegations of abuse by the father and another family member, there may be alternative explanations for RK's suggested uncertainty and vagueness. In my view the trial judge was correct to find that the appellant had suffered no significant forensic disadvantage because of the consequences of delay in this respect.
In any event, the trial judge gave the following directions to the jury. Speaking generally at first, her Honour directed the jury that they should take into account the lapse of time. Her Honour said:
"Now no-one has a perfect memory, and that's the case when we're talking about recent events. And you would bear in mind here the time that has lapsed since the incidents that the witnesses are recounting. The witnesses were recounting events that happened between 2003 and 2007 so, twelve to sixteen years ago. You would expect the memories of honest and conscientious witnesses to be affected to some degree. Because of the lapse of time the honest recollections of a witness about events that occurred many years before – may – be unreliable. So it's for you to scrutinise the evidence of the witnesses who are recounting events some time ago, to see the impact that the lapse of time may have had on their evidence. It's for you to assess whether the witnesses' evidence about these events that occurred many years before is reliable or unreliable. So, does the witness seem to have a reliable memory of the key events? If their memories are affected does it seem to be affected about important details or peripheral matters?"
Later, again speaking generally, her Honour said:
"You would bear in mind that everything I said to you earlier about the lapse in time, the time that has lapsed since these incidents, and now has a bearing upon the reliability of [the complainants'] evidence. You would be conscious that these events happened a long time ago, over a decade ago, and as I explained to you earlier, there is a risk of distortion of memory over the years. So the lapse of time gives rise to a need to carefully scrutinise their evidence, the evidence of [RK] and [JM], as you would every witness who is recounting events from such a long time ago."
Further, the trial judge specifically dealt with the issue that had been raised. Shortly before the end of the summing-up, her Honour said:
"Now, during cross-examination Mr Ransom asked [the appellant] about the timing of the excavation work and whether he rendered [RK's father] an account for his excavation work. He said he did. He said the date of the excavation work was January 2007.
He was asked, 'Do you have a copy of that account?' and at page 169 of the transcript he spoke. He said, 'No, they get destroyed. You only have to keep records for about six years'. So here, ladies and gentlemen, you would bear in mind that this lack of documentation and the reason for its unavailability is because of a product of the lapse of time since the events."
It is true that the father's death was not specifically mentioned. What was mentioned was the destruction of the appellant's records because of the lapse of time, and that they should "bear in mind" that matter. Those general directions and the specific direction, put in the context of the closing address to the jury by counsel for the appellant, was sufficient to alert the jury to the difficulty.
All in all, I am not persuaded that the trial judge was wrong in her ruling, and I am not persuaded that any miscarriage of justice has occurred.
Ground 2 – the unavailability of "Naomi Pike"
The ground asserts that the trial judge was wrong in law in refusing to direct the jury in accordance with s 165B, in that her Honour determined there was no forensic disadvantage in not being able to cross-examine the witness.
As drafted, this ground is clear enough on its face; it asserts that the trial judge failed to find that there was a significant forensic disadvantage in not being able to cross-examine the witness, Naomi Pike. There is a preliminary difficulty with this ground. It is not entirely clear that her Honour did not determine that the appellant had suffered a significant forensic disadvantage in not being able to cross-examine the witness.
First, I think it is desirable to set out in full the directions given to the jury by her Honour when the statements were tendered. Although no application was made under s 165 of the Act – "Unreliable evidence"– it was likely to be this section that the trial judge and parties then had in mind.
"So these two statutory declarations, are accompanied by an agreed fact and essentially, what is agreed … is that these were the statutory declarations that were made by [Naomi Pike] on those two dates, 14 March 2007, 5th of February 2010.
Then it's a matter for you, what you make of what [Naomi Pike] told the police in those statutory declarations. It's a matter for you as with all evidence, so you decide, as you always would, what evidence you accept as honest or reliable or you reject.
In assessing the two statutory declarations, you would bear in mind that this is not an account that's given in a court room, it's given to police on each of those dates, so obviously, you haven't had the opportunity to hear [Naomi Pike] give that account and observe her whilst she's saying what happened, as you have with other evidence, so there's that distinction between this kind of evidence and the evidence that's given in a court room, so you haven't had the chance to observe her give those accounts and you would also bear in mind, that counsel for the Crown haven't had the opportunity to clarify any matters, and counsel for the accused haven't had the opportunity to test or challenge any of that account.
So what you've seen in the court room, is each of the witnesses have been questioned, we call it cross-examination by counsel for the accused. So you haven't had the benefit of that, so you would bear in mind, those matters when you consider this evidence along with the other evidence that you have."
During the later submissions as to the s 165B directions, counsel for the appellant submitted there was significant forensic disadvantage in the fact that Ms Pike was not available to be cross-examined on aspects of her evidence which needed to be challenged. In particular, counsel noted that in the second statement Ms Pike says she was upstairs which corroborates JM's account, and referred to the question of the massage. Counsel said, "We can't cross-examine her as to why she's come to a new view."
The issue was later revisited. Counsel for the appellant explained his request of the Crown for the statements to be tendered, saying that it was a case of the lesser of two evils; it was either have them tendered or there would not be anything from Ms Pike at all, and a decision had to be made. Counsel submitted there was still significant forensic disadvantage, at which point her Honour observed that if the Crown had not agreed to their tender, the appellant would be arguing a much greater significant forensic disadvantage. Counsel agreed.
In further discussions, her Honour queried whether the disadvantage suffered required any further explanation than a reminder of the warning given when the statements were tendered, added to which would be a highlighting of the dispute about the massage. Her Honour observed that the issue was really one of reliability and asked whether there was any further direction relating to significant forensic disadvantage due to delay. Counsel acknowledged that "they do overlap quite a bit". Importantly, her Honour then said, "The significant forensic disadvantage is the fact that you don't get to cross-examine her, which goes to reliability". Counsel for the appellant said "Yes, yes."
There was further brief discussion around the point, after which counsel requested a few minutes to reflect on the matter. Crown counsel then made submissions. Later, counsel for the appellant said his instructions were to maintain the application for a s 165B direction, but made no further substantive submissions.
Bearing that in mind, the appellant argues that by Ms Pike's unavailability, the appellant was denied an exculpatory witness. The appellant says it was crucial that Ms Pike's initial observations about the impossibility of the crime go to the jury; but at the same time, the statement of limited retraction of the original statement could not be tested. The unavailability of the witness drastically undermined the defence, and amounted to significant forensic disadvantage. It is put that the appellant was forced to choose between the lesser of two evils – both statements get tendered, or neither. Counsel explained that the decision was to take what seemed to be the least harmful course, but that either course created a significant forensic disadvantage.
It is true that the unavailability of Ms Pike led to the appellant having to make a decision as to what to do with the statutory declarations. I make no comment about the merits of adopting the course that was taken, but it was a decision by which the appellant is bound: Standage v Tasmania [2017] TASCCA 23 at [73]-[74] per Wood J. If no statements had been tendered, the jury was left with the evidence of JM's mother to the effect that Ms Pike said that the appellant "touching J" never happened. (That evidence was not the subject of any debate; it was admissible for a non-hearsay purpose, but as there was no discussion about it, its use was not limited in any way – see ss 60 and 135 of the Act.) Beyond that, the jury would have had no idea of what Ms Pike may have said. As it was, the jury had a version of events, and a later retraction of part of that version which was capable of corroborating JM's version and opened up the possibility of opportunity. The issue however, is whether the jury was not properly instructed as to the approach to their task given Ms Pike's unavailability.
Section 165B(4) of course provides that it is not necessary that a particular form of words be used. It is undesirable that the phrases "significant forensic disadvantage" or "forensic disadvantage" be used in the directions: R v Cassebohm [2011] SASCFC 29, 109 SASR 465 at [27]; Pate v The Queen (above) at [127]. The direction needs to make it clear that an accused's capacity to defend the charge has been compromised, and spell out the manner in which that capacity has been so compromised. A trial judge is required to instruct the jury to take the manner in which the accused's case has been compromised into consideration or account: Pate at [126], [149]. The trial judge must emphasise to the jury how they should go about the task in light of the difficulties: R v Johnson (1998) 45 NSWLR 362 at 371. An example is to highlight the need for careful scrutiny of the prosecution evidence.
In addition to the earlier direction given when the statements were tendered, and in addition to giving the jury a general direction that they should not speculate about what evidence might or might not have been given by witnesses who were not called, the trial judge specifically directed the jury as follows:
"As I said to you, it's a matter for you what you make of what [Naomi Pike] told the police in the police in those two statements. You decide what evidence is honest and reliable. You may accept some of the evidence or none of it. It's a matter for you. I am not going to express a view about any of this evidence. I am just going to highlight some matters for you which may potentially bear on the reliability of the evidence. Now, as I said to you during the trial itself, bear in mind that this is evidence that you did not have the chance to observe. You did not have the chance to see [Naomi Pike] give these accounts in court so these accounts are given to a police officer in presumably a police station or somewhere like that away from your scrutiny, away from your observation, out of sight and you don't have the chance to see her demeanour as she was responding to questions and assess her credibility, whether she was being honest and the reliability, the accuracy of her memory and so on, the way in which she responded to those questions.
So this is that obvious point. There is no explanation before you of what prompted the change. You do not have the opportunity to see matters clarified. You don't have the opportunity to see the evidence tested, challenged by defence counsel. As I said to you at the very beginning of the trial, cross-examination or the challenging by defence counsel is an important part of the trial process. It gives you the chance to see the evidence being tested and because of these reasons the evidence is potentially unreliable. There are aspects of the second statement concerning the massage that are plainly disputed by the defence and the defence have not had the chance to challenge that evidence so there is that disadvantage to the defence.
So you would bear in mind these considerations in assessing the reliability of this evidence. Now, I'm not suggesting that that second statutory declaration is not reliable or aspects of the first. I'm not suggesting that it's not open to you to accept the evidence or parts of the statements as reliable. That is open to you. I am just cautioning you to bear in mind these considerations in your assessment of that evidence and the reliability of the evidence in particular. Now here, in the context of this evidence, the defence highlights the inability to test, challenge the second statutory declaration, the change and the reason for the change three years late, and the defence contends to you that you should not regard that second statutory declaration as being reliable because you don't have the opportunity to see it tested." [My emphasis.]
I should add that having dealt with the evidence and the respective positions of the parties in relation to counts 6 and 7, her Honour provided the jury with a "recap". In the course of that overview, her Honour said:
"The defence case is that you should not be satisfied that a requisite degree of reliability of JM. … [The] witness interviews compromised by the lack of record, the lack of recollection of the police officers about what was said in conversation with JM before the interview. The interview itself contains leading questions and in reality, says the defence, JM volunteers very little. The defence says it's all a long time ago, risk of faulty memory, risks such as KM did suggest that someone had touched JM after she complained about her wee hurting and yet the reason for that complaint may simply have been that she went horse riding."
I am not persuaded that the trial judge did not make a finding that the appellant suffered a significant forensic disadvantage in the form of an inability to cross-examine a material witness. Even if that were to be so, given the directions given to the jury on two occasions about the issue of reliability, the caution to bear in mind the various considerations in their assessment of the evidence, and the comments in the "recap", I am not persuaded that that a miscarriage of justice resulted. This ground has no merit.
Ground 3 – inadequate directions as to loss of police records
It will be recalled that during the submissions about directions, the trial judge read out a proposed direction, with which both counsel said they were content. In essence, the direction given to the jury followed the proposed direction. The direction given was in the following terms:
"Another factor to bear in mind regarding the interview – now, it seems to me and I highlight that this is very much a matter for you but it seems from the content of the interview and the exchange that there have been other discussions between the child ... and the police before the interview started.
[A] number of matters seem to be the case. It seems the police had a general chronology of what had happened and referenced that and it seems that they had information of what [JM] had told them about before the interview started. Now, as we've heard, because of the passage of time the police officer's notes are no longer available. Constable Reid ... could not now recall her conversation with [JM].
So in assessing the reliability of her account in that interview, bearing in mind that background to the interview, if it seems to you that there has been this previous conversation, take that into account and that you don't have evidence about what was said in that preliminary conversation, if you think there was one, and you don't have the opportunity to assess that preliminary conversation. Of course, this makes it difficult for the accused as well. He is disadvantaged because his counsel cannot effectively question, challenge, test what was said before the interview because the police officer doesn't recall, and there is now no record of that conversation.
So bear those matters in mind when you're assessing the reliability of [JM]'s account in the interview. Helpful consideration may be, 'Well, taking that into account what can I glean from the interview? What can I tell from the interview? What is being spontaneously offered by the child during the interview?' those sorts of considerations." [My emphasis.]
The appellant now complains that this direction was insufficient, essentially in that it did not fully convey the extent of the disadvantage suffered. The particular complaints are that the trial judge should have made reference to the following as aspects of a significant forensic disadvantage suffered because of the consequences of delay:
· Had the prosecution been brought 12 years earlier, the witnesses would have had a better memory.
· The passage of time diminished the capacity for the defence to adequately cross-examine on the evidence of the complainants, KL and Dr Dennis.
Section 165B(4) requires the Court to inform the jury of the nature of the disadvantage suffered because of the consequences of delay, and the need to take that disadvantage into account when considering the evidence. Her Honour clearly pointed out that because of the passage of time the notes of the pre-interview conversation were no longer available, that this made it difficult for the appellant – he was disadvantaged because he could not effectively question, challenge or test what was said before the interview – and that the jury needed to bear those matters in mind in assessing the reliability of JM's account in the interview. Her Honour gave the jury specific instances of questions they might ask themselves in that exercise.
Further, it would be recalled that at the start of the summing-up, when speaking generally, her Honour directed the jury that they should take into account the lapse of time. I have set out above that part of the summing-up when dealing with ground 1. In that part the trial judge plainly referred to the possible loss of memory and difficulty with proper recollection, given the passage of time. The jury was told of the need to scrutinise the evidence "to see the impact that the lapse of time may have had on their evidence". The impact of that on cross-examination was not mentioned, but it was later in the impugned direction.
In considering this ground, it should also be borne in mind that at the conclusion of the summing-up, the trial judge asked counsel whether they had any submissions with respect to any aspect of the summing-up. Counsel for the appellant raised a completely unrelated matter, and did not raise any concerns about the direction given. That direction was given the day after it had been foreshadowed, so there was time for reflection. Of course, the fact that in the immediate context of the trial, counsel did not see it as insufficient is something that can be taken into account: see for instance Riley v Tasmania [2020] TASCCA 1 at [2] per Wood J, and the cases cited. But even ignoring that, I am not satisfied that the direction was not a sufficient one in terms of what is required under the section. This ground should also fail.
Ground 4 – biased summing-up
The ground alleges that the summing-up was excessively long, and biased in three respects. They are that it was heavily and extensively focused on the Crown case, it only described the defence case in the briefest of terms, and it quoted and repeated evidence that supported the Crown case to an excessive and unfair degree. As it is put in the written submissions, "the charge to the jury was heavily weighted in favour of the Crown" and "as a consequence of the length and bias of the charge, there was a substantial miscarriage of justice." In effect, the appellant argues that the summing-up focused more heavily on the Crown case at the expense of the appellant's case, and that what was said about the appellant's case was inadequate.
As to the reference to the length of the charge, in further submissions the appellant says that of itself the length did not lead to a miscarriage of justice, but that it is the relative time spent on focusing on the Crown case that has led to injustice. As to the length issue as such, the appellant notes that the trial was conducted over four days. The appellant asserts that there were less than seven hours of evidence, and that the summing-up occupied approximately four hours.
I have not looked at the number of hours taken up with evidence, but an analysis of the Court's AV recording system shows that the total time spent on the actual summing-up is approximately 3 hours and 20 minutes; one hour 50 minutes in an afternoon, and one hour 30 minutes on the following morning. It started at 12.26pm on the third day of the trial. The trial judge spoke for about a quarter of an hour before a lunch break, and resumed at about 2.15pm. There was a short break taken at 3pm, with her Honour starting again at 3.12 and stopping at about 3.50. Her Honour resumed the summing-up at 10am the following morning, took a 20 minute break at 11am and effectively finished at 11.55am. The jury was sent out but brought in a few minutes later and given final formal instructions, before retiring at 12.10pm.
It is true that the trial judge reminded the jury of all of the evidence. That exercise involved reading substantial parts of the transcript of RK's evidence-in chief, JM's police interview and her evidence-in-chief. Her Honour referred to some parts of the cross-examination mostly by way of summary, although some questions and answers were read out. The evidence of other witnesses was summarised, as was the gist of the appellant's evidence. I will come back to the question of content, as this brief observation of fact does not properly convey the nature of the summing-up.
There is a list of specific complaints in the written submissions. The appellant says the tone and nature of the charge was such that the jury "had to have been influenced by the weight put on the Crown case". The balance can be summarised as follows. The appellant asserts that the trial judge:
· "effectively regurgitated" the evidence of RK and read "extensive chunks" of the interview and evidence of JM;
· reminded the jury of parts of the cross-examination that favoured the Crown, mentioning few that related to issues of reliability that favoured the appellant;
· repeated "almost word for word" the complaint evidence of HL;
· in explaining the use of complaint evidence, told the jury that RK's conduct may indicate her evidence was false, but effectively advised them to be cautious in taking that view;
· made some reference to a passage of evidence on which defence counsel had put "some significance" but did not explain what that significance was;
· put the essence of the Crown case for a second time, when resuming on the morning of the last day;
· dealt briefly with the appellant's 2007 interview, the main focus being on whether he had lied about the massage.
The necessary content of a trial judge's summing-up has been the subject of considerable judicial discussion. Many of the primary cases were collected by Geason J in Riley (above) at [19]-[22]. The principles are clear. Relevantly to this case, they are as follows. The fundamental task of a trial judge is to ensure a fair trial of the accused. That requires instructions to the jury about so much of the law as they need to know in order to dispose of issues in the case, about the elements of the offence, the burden and standard of proof, and the respective functions of judge and jury. Subject to any statutory provisions, it will require the judge to identify the issues in the case and relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. See RPS v The Queen [2000] HCA 3, 199 CLR 620 at [41]; Lane v The Queen [2013] NSWCCA 317 at [36].
The obligation to put fairly the case of the accused, extends to explaining any basis on which the jury might properly return a verdict in the accused's favour: Castle v The Queen [2016] HCA 46, 259 CLR 449 at [59]. The way in which a judge structures the summing-up and the extent to which the jury is reminded of the evidence is a matter for individual judgment and should reflect the complexity of the issues raised in the case, the length of it, and the way in which it is conducted: Castle (above). Each charge to a jury must be tailored to the circumstances of the case and structured in the way assessed as most effectively distilling the issues for determination and, to the extent that is necessary, remind the jury of the evidence bearing on the determination of those issues: Alford v Magee (1952) 85 CLR 437 at 466; Huynh v The Queen [2013] HCA 6, 87 ALJR 434 at [49].
A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in it, and there is certainly no need to "painstakingly read all of the evidence to the jury": Domican v The Queen (1992) 173 CLR 555 at 560; R v Meher [2004] NSWCCA 355 at [77]. Where the jury is provided with a transcript of the evidence, as it was in the present case, the judge may consider that reference to the parts of the evidence that bear on the particular issues does not require reading passages from the transcript, or summarising it: Castle (above) at [59]. In R v Davis [1999] NSWCCA 15 at [24] Wood CJ at CL (with whom Spigelman CJ and McInerney J agreed) commented that where the summing-up in a short trial follows immediately after a defence address, particularly where the appellant has not offered any evidence, very little is likely to be achieved by a reiteration of the evidence or of the points made by counsel in their closing addresses; to require otherwise "would be to credit the jury with little in the way of intelligence or common sense."
The risk inherent in reading out large parts of the transcript or making lengthy summaries of the evidence when it is really not necessary, was identified by The Hon James Wood AO QC in a paper, "Summing up in Criminal Trials – A New Direction?", delivered to the Conference on Jury Research, Policy and Practice, Sydney, 11 December 2007. The learned author said:
"A real question arises as to whether the kind of lengthy summary of the evidence that commonly occurs achieves anything in circumstances where the jury have heard the evidence themselves, have received the benefit of addresses from counsel, and potentially have access to the transcript or sound or video recording of the evidence if they wish to check some aspect of it.
There is a risk that undue emphasis on this part of the trial will swamp the more helpful areas of guidance which could be contained a short and well-focused summing-up or, alternatively, will cause a bored and tired jury to switch off.
Certainly, the tedious and wholly unnecessary exercise sometimes encountered that involves a summary of the evidence of each witness in turn, without any attempt to marshall it in relation to the critical issues, is to be avoided and discouraged by appeal courts at all costs: R v Zorad (1990) 19 NSWLR 91, 105; Piazza v The Queen (1997) 94 A Crim R 459."
The authorities make it clear that ordinarily there is no need for a trial judge to read out or summarise the evidence; it will be sufficient if the judge explains the law in the context of the facts and how it is to be applied to the particular facts, and provides those explanations in the context of identified issues. When an issue of excessive reading out of, or summarising, the evidence arises, the overriding consideration must be one of fairness. Such a complaint will usually be made in the form it takes in this case; that the evidence in the Crown case was reinforced to the jury by the time taken in reading out and summarising it, with little time comparatively spent on the accused's case.
As to this relativity issue, in Riley (above) at [23] Geason J said:
"The trial judge's articulation of the appellant's case was brief, but the measure of its compliance with the requirements reposed in a trial judge is not determined by its length, but its content. The question is whether the issues raised in the defence case have been identified sufficiently clearly to draw the jury's attention to them in a way which ensured a fair trial. Some disparity is an inevitable consequence of the difference in the volume of evidence placed before the jury by the prosecution and the defence (which led none). 'It is not the length of the time devoted to the case of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the appellate court must review and safeguard': R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 per Gleeson CJ, Kirby P and Lusher AJ at 56."
Similarly, in R v Meher (above) at [86], the Court (Wood CJ at CL, Buddin and Shaw JJ) said:
"Whether there has been a balance in the summing up, or not, does not however depend upon a comparison between the time that was spent on the prosecution and defence cases, respectively. Almost inevitably the bulk of the evidence is led in the prosecution case, and more often than not more time will need to be spent on it: see R v Courtney-Smith (No 2) … at 56."
That said, a cautionary note appears in R v Davis (above). It appears that the trial in that case lasted three days, in which there were only six witnesses in the Crown case and none in the defence case. The trial judge summed up without reference to the evidence, with the consent of the parties. At [22], Wood CJ at CL observed that on one view, this approach worked in favour of the appellant, "since it avoided the one-sided appearance that may have been presented by a reiteration of the evidence called by the Crown, and silence in relation to the defence."
As to the present case, bearing in mind the above matters I respectfully think the extent to which the trial judge reminded the jury of the evidence by reading out large parts, and summarising the balance, was unnecessary. It was a very short trial. The evidence was heard in the two days preceding counsels' closing addresses and the start of the summing-up. Counsels' addresses were in the morning before the summing-up started. Each counsel dealt with the evidence as it related to their respective cases. The jury had the transcript when they retired to deliberate.
However, that does not amount to an error or a miscarriage of justice, and is as far as any criticism can be taken. This was not a case in which the trial judge has merely read out most of the evidence in chronological order, starting with the first witness and going through evidence-in-chief, cross-examination and then re-examination "before turning to the next witness and so on, [believing] that by doing so they are presenting to the jury the issues of fact which they had determined": Piazza v The Queen (1997) 94 A Crim R 459 per Hunt CJ at CL at 460.
At various times the trial judge interrupted her reading or summarising process to link the particular evidence to the issues, to point out certain features of it, to remind the jury of the parties' positions, or to give them directions. For instance, after reminding the jury of RK's evidence, and before moving to the evidence of the mother and brother, the trial judge again told the jury that the critical issue was that of credibility, honesty and reliability, and set out the parties' positions which included reference to the defence points about uncertainty as to dates and timing, and a general lack of specificity.
Another example is that between dealing with the evidence on counts 1 to 5, and that in respect of counts 1, 6 and 7, the trial judge gave the jury general directions about delay in making complaint, and reminded them that they could not find the appellant guilty of any of the five incidents unless they were satisfied RK's evidence was not only honest but reliable. Further, and after dealing with the evidence on counts 6 and 7, the trial judge summarised the defence case as to those counts, and then dealt with tendency evidence, before reminding the jury of relevant parts of the appellant's evidence.
The comparatively very short period of time spent in relation to the appellant's case was really reflective of the time taken up during the trial. Almost inevitably this is so: see R v Meher (above). It is the content which is decisive. I have carefully reviewed the content of summing-up in this case. Of course, an assessment of a summing-up must be made by looking at its entirety, in the context of the trial. In this case, I am not at all persuaded that there is any imbalance or unfairness. As noted by counsel for the respondent, the trial judge made specific reference to important aspects of the appellant's case as follows.
· A summary of the defence case on counts 1 to 5.
· A summary of the defence case on counts 6 and 7.
· Cross-examination of RK.
· The defence position on complaint evidence.
· Further cross-examination of RK.
· Cross-examination of JM about the painful urination issue.
· The reliability of JM's evidence.
· A summary of the defence position as to JM.
· A summary of the appellant's evidence.
The trial judge made frequent references to the issue of honesty and reliability; the reliability of the complainants' accounts being the cornerstone of the appellant's defence. I am not satisfied that the summing-up gave rise to a miscarriage of justice. In my view, there is no substance in any specific complaint that some aspects of the appellant's case were mentioned, but not adequately. When analysed, the complaint that the trial judge made few references to issues of reliability that favoured the appellant, is a reference to answers where the complainant had a lack of recollection. I think the trial judge's references were more than sufficient. There was no need to point out every instance. A further specific complaint is that the trial judge said one matter was of significance to the defence but did not explain what that significance was. That is so, but counsel for the appellant had addressed the jury only that morning, and highlighted the point.
In considering this question of a summing up biased in favour of the Crown, it should not be overlooked that the jury acquitted the appellant on one count that related to each complainant. Generally, in my view the trial judge dealt with all the matters that were required to be put to the jury in this type of case, appropriately and fairly. No complaint was made on behalf of the appellant when her Honour finished summing up, and asked counsel if they had any submissions. The ground must fail.
Ground 5 – Unsafe and unsatisfactory verdicts
The ground as framed
The notice of appeal as filed was later amended to include the ground that the verdicts were "unsafe and unsatisfactory". The appellant subsequently provided particulars. At this point I would comment on the use of the phrase "unsafe and unsatisfactory" in this context. It does not appear in s 402(1) of the Criminal Code. That section enables this Court to allow an appeal on the basis that the verdict is unreasonable, or that it cannot be supported having regard to the evidence, where there is a wrong decision on a question of law, or on any ground whatsoever there was a miscarriage of justice. In M v The Queen (1994) 181 CLR 487 at 492, Mason CJ, Deane, Dawson and Toohey JJ observed that a verdict that is unreasonable or cannot be supported having regard to the evidence, is frequently described in terms of being "unsafe and unsatisfactory", "unjust or unsafe" or "dangerous or unsafe". At 493, their Honours said that a verdict which is unsafe or unsatisfactory for a reason other than that it is unreasonable or unsupportable, "must also constitute a miscarriage of justice."
There is ample authority for the proposition that a ground of appeal which alleges a verdict is "unsafe and unsatisfactory" is misleading and inappropriate, and in drafting an appeal ground should not be used in preference to using the language of s 402(1) or its equivalents. See Gipp v The Queen (1998) 194 CLR 106 at [17] per Gaudron J, at [120]-[126] per Kirby J; Fleming v The Queen (1998) 197 CLR 250 at [12] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ; R v Giam [1999] NSWCCA 53, 104 A Crim R 416 at [31]-[44]; Loone v Tasmania [2008] TASSC 7 at [96]-[98] per Evans J; Lin v Tasmania [2012] TASCCA 9 at [215]; Lin v Tasmania [2015] TASCCA 13 at [146]. In this case, although the ground is so worded, the particulars provided avoid the use of the phrase, "unsafe and unsatisfactory". However, an analysis of the submissions shows it is not clear on what basis within s 402(1) this ground is put. The issue of unreasonable or unsupportable verdicts is one of fact, and seems to be conflated with what is said to constitute a miscarriage of justice.
The particulars state that the jury ought to have entertained a reasonable doubt "by [sic] the effect or cumulative effect of" forensic disadvantage due to delay and asserted failures of the trial judge, effectively as alleged in grounds 1-4. It is asserted the verdicts are "irreparably tainted." In the appellant's written submissions, the first subject matter is the approach for an appellate court in determining a ground that a verdict of the jury is unreasonable or cannot be supported having regard to the evidence. Relying on M v The Queen (above) at 493, the question is correctly said to be whether or not the jury ought to have entertained a reasonable doubt.
The submissions then state that "because of the inadequacies on the record of the trial, and as are particularised below, the Court should be satisfied that a jury acting rationally, ought to have entertained a reasonable doubt as to proof of guilt beyond a reasonable doubt". The appellant then asserts that the inadequacies are those particularised in the first four grounds of appeal. In oral argument counsel explained that the word "inadequacies" related to jury directions as to the use of the evidence. It is at this point where the lack of precision about which of the bases in s 402(1) is relied on, becomes apparent.
In the written submissions, the appellant goes on to submit that the resulting forensic disadvantage from the delay has an important bearing on whether the verdicts are unsafe or unsatisfactory, and to provide particulars of the disadvantage. They are the inability to adequately test allegations, a broad date range of alleged offending which was in issue, witnesses "with differing or little or no recollection as to specific acts", the unavailability of witnesses by death or otherwise "effectively depriving the appellant of alibi evidence", the inability to test evidence by reference to police notes, and the difficulty "of dealing with vague recollections in respect of material surroundings at indistinct material times, as compared with the position if the complaint were of 'reasonable contemporaneity'."
The appellant then submits that at common law, instances of forensic disadvantage as a consequence of delay have included inability to establish an alibi, to explore the detail of the circumstances alleging offending, and an inability to identify alleged events with specificity. The argument advances to the proposition that the resulting forensic disadvantage is coupled "with the series of interconnected events". Those "events" are in effect the suggested failures of the trial judge to make findings of significant forensic disadvantage and to direct the jury accordingly – as agitated in grounds 1 and 2 – and the bias in the summing-up as argued in ground 4. (There is no apparent mention of the ground 3 issue.) All of this is said to irreparably taint the guilty verdicts.
The appellant argues that "each of or a combination of the grounds as currently particularised in the notice of appeal or other inadequacy (to the extent it will amount to a miscarriage of justice) will support an unsafe and unsatisfactory ground." Greensill v The Queen [2012] VSCA 306, 37 VR 257 is cited as supporting authority. The final submission is:
"[T]hat the state of the evidence is such as to preclude a jury, acting reasonably, from being satisfied of guilt beyond a reasonable doubt, and accordingly the jury were affected to the disadvantage of the Appellant and rendered unsafe and unsatisfactory verdicts."
Discussion
As is apparent, the statutory basis for this Court's intervention is somewhat obscure. Although apparently advancing the argument that this Court should find that the verdicts were unreasonable or unsupportable, the appellant did not undertake any analysis of the evidence with a view to identifying aspects which demonstrate the jury ought to have come to a different conclusion. Despite the language used, it appears that what is also being advanced is the proposition that the verdicts are unsafe and unsatisfactory constituting a miscarriage of justice caused by irregularities in the trial process. I note that the respondent's submissions, both written and oral, are directed to the simple complaint that the verdicts were unreasonable or could not be supported having regard to the evidence. They are confined to references to the evidence.
An examination of Greensill might assist in resolving the difficulty. In that case, a direction under s 165B was not only not sought by defence counsel at trial, but expressly disavowed. On appeal it was argued a direction should have been given. The Court held that the provision did not relieve a trial judge from the obligation to ensure a fair trial by giving such directions as were necessary. The Court noted s 9(1) of the Act which provides that the Act does not affect the operation of the principle or rule of common law. However, it was held that if a direction as to delay was given pursuant to the general common law duty, it should be given in accordance with the section. The Court said that it was a case where it would have been appropriate, if not highly desirable, to have given a forensic disadvantage warning, but rejected the ground of appeal on the basis that the direction was said by counsel not to be warranted, the appellant was bound by counsel's conduct, and the circumstances were such that obliged the trial judge to give a direction.
At [57], the Court stated that was not the end of the matter, saying it was of the opinion that the delay in the case and the resulting forensic disadvantage, had an important bearing on whether the verdicts were unsafe and unsatisfactory, an issue to which their Honours said they would return in considering the first ground of appeal; that the verdicts were "unreasonable or cannot be supported having regard to the evidence". On that ground, an extensive forensic review of the evidence bearing that factor in mind, led to it being upheld. Three specific aspects of disadvantage arising from a 30 year delay were identified.
Greensill does not support the proposition for which it was cited in support. The appellant's references to common law instances of forensic disadvantage, and then to Greensill, suggest that at least part of the argument is that the trial judge was obliged to direct the jury on the consequences of delay, independently of the operation of s 165B of the Act.
Bearing all of that in mind, I think the best course to adopt is to treat the ground as having alternative bases. The first is that deficiencies and irregularities in the trial process have caused a miscarriage of justice, and so the verdicts are unsafe and unsatisfactory in that sense. The second is that the verdicts are unreasonable or cannot be supported having regard to the evidence, that expression being used in the accepted statutory sense.
A miscarriage of justice?
As to the first basis, reliance on the alleged "intervening events" was not made conditional on the fate of grounds 1 to 4. I would immediately exclude consideration of the alleged "intervening events" that are in fact the subject of the grounds already resolved. The appellant cannot, through the vehicle of this ground, re-enliven those grounds and arguments about miscarriages of justice that have been expressly rejected. In relation to whether there has been a miscarriage of justice due to "inadequacies" beyond the scope of those grounds, I am not satisfied that any miscarriage of justice has occurred.
It can be accepted that, in broad terms, the appellant was at a forensic disadvantage in some respects. But as I have indicated in dealing with grounds 1 to 3, the trial judge properly and adequately directed the jury about the consequences of delay that operated in this case. Those directions extended to the effect on recollections and the possible adverse impact on reliability. They included reference to the lack of business documentation and the need to bear that in mind, the disadvantage suffered by the unavailability of Naomi Pike, and the disadvantage caused by the loss of police notes.
Verdicts – unreasonable or unsupportable on the evidence?
This should be considered in accordance with well-established principles. It should be considered consistently with the way in which the issues in grounds 1 to 3 have been disposed of. The consequences of delay can be taken into account when assessing whether the jury ought to have entertained a reasonable doubt, but in essentially the same way as the jury was directed to by the trial judge. There is no reason to proceed otherwise.
I need to say a bit more about the approach to such a ground. As noted above, the question for an appellate court in determining a ground that a verdict is unreasonable cannot be supported having regard to the evidence, is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: MFA v The Queen [2002] HCA 53, 213 CLR 606 at [56]-[58]; Paite v Tasmania [2019] TASCCA 5, 30 Tas R 73 at [98]-[102]. The court undertakes its own independent evaluation but needs to pay full regard to both the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that the jury has had the benefit of seeing and hearing the witnesses: M v The Queen (above) at 492-493.
The question is whether the jury must, as distinct from might, have entertained a reasonable doubt: Libke v The Queen [2007] HCA 30, 230 CLR 559 at [113] per Hayne J, Gleeson CJ and Heydon J agreeing. I would add a reference to a passage from the judgment of Mason CJ in Chidiac v The Queen (1991) 171 CLR 432. At 443 his Honour pointed out that it is the nature and quality of the evidence that must be taken into account, and at 444 continued:
"In resolving [the] question the court must necessarily recognize that issues of credibility and reliability of oral testimony are matters for the jury. For that reason, if for no other, an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility. Nonetheless, occasions do arise when a jury proceeds to a conviction when the Crown case rests upon oral testimony which is so unreliable or wanting in credibility that no jury, acting reasonably, could be satisfied of the accused's guilt to the required degree."
I have outlined the factors that the appellant says have an important bearing on whether the verdicts are unreasonable or cannot be supported on the evidence. Beyond general issues of witness reliability and disadvantage suffered, the appellant has not identified inconsistencies, discrepancies or instances of where the evidence lacks any probative force. I will examine this ground by reference to defence counsel's closing address to the jury. I bear those matters in mind in undertaking the assessment of the evidence.
As I see it, the principal contentions were as follows:
· Neither complainant was a reliable witness, although for different reasons.
· If it is accepted that the appellant did not meet RK until late 2006 or early 2007, that casts serious doubt as to what she says happened given that she said she was about 9 at the time.
· In giving evidence about her age and that making it about 2004, RK said, "I think that's what it works out to be", which was a semi-dismissive answer suggestive of a lack of seriousness about it happening in 2004, the end result being a lack of reliability or trustworthiness.
· By RK saying that she did not know about dates was a very easy response to being pinned down on very serious allegations.
· RK's general vagueness about the times she had been in the appellant's house, and the pouring of the slab created a real question about her trustworthiness.
· Further, there is the vagueness of her evidence about being upstairs and going to the toilet, whether it was once or twice; if twice, why go back upstairs and not stay with her parents.
· Her evidence about the nook next to a cupboard when there are no wardrobes of any type suggests her evidence is unreliable.
· If events happened in 2007, you would expect RK's memory to be more extensive; the fact she referred to "other people" in the letter to her mother, but said in evidence she could not remember who was there was an "answer of convenience", and not to be trusted
· JM's evidence is unreliable because of the extent to which suggestions were made to her in the interview, with no way of establishing what was said beforehand because of the loss of police notes.
· There is a need to consider JM's evidence about the way in which she revealed the incident to her mother, it being reasonably possible that the suggestion of being touched was made to JM when she complained of painful urination.
· There is a need to consider the exculpatory first statement of Naomi Pike from which she resiled a little, although the reasons for this now cannot be tested.
· The medical evidence was that discomfort during urinating is consistent with riding a horse bareback which is what JM had done that afternoon.
There is some substance in the submissions about the vagueness of RK's evidence, the way in which JM's complaint emerged, the absence of notes of the preliminary discussion before the interview, and the fact that some of the questions in that interview are leading questions. However, the Crown case was a strong one. Counsel for the respondent submits that the acquittal on count 5 can be put down to the touching being established, but not that it was indecent. Counsel ascribed the acquittal on count 7 to the way in which the second incident was revealed in the course of JM's interview, and her concession that she now only remembers being touched the once. Those observations seem reasonable to me. The acquittals do not necessarily entail positive rejections of the complainants' evidence.
As to RK, her evidence about the individual counts was relatively clear given the lapse of time. She gave an explanation for why she did not make immediate complaint. The evidence about the lack of contact between the two complainants was unchallenged. RK was able to identify from the photographs the slab and the part of the house containing the nook. Although WM was also a little vague about dates, she seemed clear and unshaken about the fact of the horse ride, and appeared to recollect the detail of it.
As to JM, she immediately complained to her mother, and shortly afterwards in similar terms to a doctor. There is the issue of JM's concession that it was possible the suggestion she had been touched was made to her by her mother when she complained of painful urination. As to that, the relevant questions and answers – set out above – need to be carefully considered. Precisely what was being conceded is ambiguous. (The trial judge told the jury it was a matter for them to consider what JM was saying had possibly happened.) In my view this piece of evidence is too equivocal for it to be given any real weight, and in any event must be put in the context of all the evidence.
After the initial complaints, JM then provided more detail to police. There are significant revelations in that interview which are not elicited by leading questions. In evidence, she frankly conceded that she did not now remember the second occasion, the subject of count 7. She was able to recall other detail of the day in question including the ride in the car. Some consideration can be given to the terms of Naomi Pike's retraction, although it may do no more than simply negate the effect of the first statement with the end result being neutral.
There is also the use of tendency evidence. In light of the other evidence, I do not think it necessary to resort to any established tendency in order to resolve the matter. But I would observe that, given the age of the girls and the nature of the conduct alleged, satisfaction of one or more acts could establish the suggested tendency, which could then be of assistance as a circumstance when considering all counts.
I have carefully reviewed the whole of the evidence. I take into account the consequences of delay that operated. Adopting the approach required by the High Court authorities, I am not satisfied that the jury ought to have had a reasonable doubt about the guilt of the appellant on any of the counts of which he was found guilty. Given the Crown case, it cannot realistically be said that the jury should have decided the case differently.
Conclusion
As I said at the beginning, I would dismiss the appeal.
5
33
1