Baker (a Pseudonym) v The Queen
[2015] VSCA 323
•2 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0102
| JAMES BAKER (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | REDLICH and McLEISH JJA and BEALE AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 20 October 2015 | |
| DATE OF JUDGMENT: | 2 December 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 323 | 1st Revision 18 December 2015, [61] |
| JUDGMENT APPEALED FROM: | DPP v [Baker] (Unreported, County Court of Victoria, Judge Gamble, 4 March 2015) | |
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CRIMINAL LAW – Conviction – 13 charges of child sexual offences against multiple complainants – Inconsistencies in evidence between one complainant and other witnesses – Credibility of complainants – Whether convictions unsafe and unsatisfactory – Evidence of confidential communication – Whether admissible – Evidence (Miscellaneous Provisions) Act 1958 ss 32C and 32D – Whether indictment should have been severed – Evidence of one complainant not cross-admissible – Whether prejudicial effect and probative value appropriately balanced – Whether directions to jury sufficient to cure prejudice – R v TJB [1998] 4 VR 621; GBF v The Queen [2010] VSCA 135 – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Traczyk | Turnbull Lawyers |
| For the Crown | Mr D A Trapnell QC with Ms S A Coombes | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
McLEISH JA
BEALE AJA:
On 4 March 2015 the applicant, who is now aged 52, was convicted of 13 charges of sexual offences against three complainants following a 23-day trial in the County Court. He was sentenced to a total effective sentence of 11 years and three months’ imprisonment with a non-parole period of eight years and three months.
The offending was alleged to have occurred between January 1986 and March 1999. Each of the complainants was a child at the relevant time or times. Two charges were alleged in respect of the complainant SK, 10 charges in respect of the complainant FR and one charge concerning the complainant ES. FR and ES are half-sisters. The details of the offending that was alleged are set out below.
Charges 1–2: SK
The offending alleged in relation to SK was comprised of one incident said to have occurred in 1986 when she was aged about four. SK and her mother were boarders in the applicant’s home (which he shared with his partner at the time) in Portland. On one occasion, SK was left in the care of the applicant while her mother and the applicant’s then partner went out. SK was roused from her sleep by the applicant who took her into the bedroom he shared with his partner. There he instructed her to get on the bed and remove her pyjamas and underwear. The applicant moved down her body and began licking her vagina telling her that ‘most females should like this’ (charge 1).
The applicant then lay on top of SK and rubbed his penis around her vagina, trying to insert it (charge 2). SK managed to get out from under the applicant and asked for her underwear back. She grabbed her pyjamas and as she was putting them on the applicant told her they were going to finish their ‘game’. SK found her underwear but the applicant took it from her. SK ran out of the room and across the road to neighbours she knew, and stayed the night with them before returning the next morning and getting into bed with her mother.
Charges 3–12: FR
The offending alleged to have occurred against FR was based on six separate episodes between 1996 and 1999. FR’s mother had started seeing the applicant, on and off, when FR was aged 6 or 7. Her mother moved her family to Portland to live with the applicant and his children. Later, they moved to Heywood.
On the first alleged occasion, when FR was 8 or 9, the applicant asked FR’s mother if FR could stay overnight at his house, because he planned to take her on an outing the following day. FR’s mother agreed. That night, the applicant came into FR’s room just as she was falling to sleep and took her to his room. She lay on the waterbed in that room with him. The applicant asked FR to remove her nightie and underwear. She initially refused but eventually did so. The applicant removed his t-shirt and underwear, and began cuddling and touching FR. The applicant told FR that this was a ‘game’ just for them to play. He then began touching FR’s vagina and inserted his fingers into her vagina (charge 3).
The applicant kissed FR’s face, lips and chest (charge 4) and told her she was going to enjoy what he was going to do. He then licked her vagina before inserting his tongue into her vagina (charge 5). He then moved his body on top of her and began pushing his penis into her vagina (charge 6). After a period of time, he helped FR put her underwear on and returned her to her room and told her he loved her.
On the second alleged occasion, FR, her mother and her sisters stayed at the applicant’s home. FR and her sisters stayed in the same room. After they had gone to bed, the applicant came into the room and knelt down next to FR who pretended to be asleep. He reached under the blankets and rubbed her vagina over her underwear (charge 7). After a time FR heard a noise and the applicant stopped and left the room.
On the third alleged occasion, FR was sitting next to the applicant on his couch while her sisters played on the floor. He had his arm around her waist and whispered to her that her sister had developed breasts and one day she would too. As he spoke he put his hand under the waistband of her pants and under her underwear and pushed his fingers into her vagina (charge 8). The applicant told FR not to let anyone else do to her what he did to her.
The fourth incident was alleged to have taken place when FR was due to travel to Queensland with her family to see ES’s grandmother. The applicant took FR to his home to collect a marionette doll she wanted to take on the trip. When they arrived at his house the applicant took FR into his bedroom and told her to sit on the bed and remove her underwear. He said it was the last time they were going to be able to play their game. The applicant laid FR down on the bed and he inserted his fingers into her vagina which lasted for a few minutes. He then asked her to open her legs and moved his fingers in her vagina, telling her how pretty she was and that she was growing up (charge 9).
The next alleged incident occurred at the panel shop where the applicant worked. He sat FR on a stack of tyres, pulled down a leg of her pants and underwear and pulled her foot out. The applicant pulled down the waist of his own pants, exposing his erect penis. He pushed FR’s right leg up and out and put his other hand behind her head to force her to look downwards, telling her to watch what he was doing. FR saw his penis move in and out of her vagina, though not completely inside of her (charge 10). FR closed her eyes and tried to think of a recent holiday she had taken to Queensland rather than what was occurring. FR heard her mother’s car arrive and the applicant stopped what he was doing and helped FR dress. He told FR not to tell her mother.
The final incident was alleged to have occurred in FR’s home she shared with her mother and sisters. FR shared a room with her eldest sister. FR’s mother asked the applicant to look after the three girls while she went out to look for the elder daughter. By the time the applicant arrived it was about 9pm and the girls were already in bed. He entered FR’s bedroom and put his hand under her pyjamas and underwear and pushed his fingers into her vagina and moved them around (charge 11). This continued for a few minutes until the applicant asked FR to come to the lounge with him. He told her he wanted her to do something for him that he really liked and that it would make him love her more. The applicant told her to kneel on the floor before pulling down his pants and exposing his erect penis. He told FR to put his penis in her mouth and instructed her to suck it like a lollipop. The applicant moved his penis in and out of FR’s mouth until he ejaculated into her mouth after which he told her to go to bed (charge 12).
Charge 13: ES
As mentioned, ES is the half-sister of FR. At the time of the alleged offending against her she lived with her mother, three sisters (including FR) and the applicant. One day when ES was aged between 6 or 7 the applicant was at home looking after the children while one of ES’s sisters was in bed and the others were playing elsewhere. The applicant grabbed her arm after she returned from going to the toilet and took her into the bedroom he shared with her mother, sat her down on the bed and spoke to her about improving her marks at school and not talking back to her mother. As he spoke he moved his hand up her leg, over her body to her shoulder and then grabbed her hair and pulled her down onto the bed. The applicant kept hold of her hair and pulled down her underwear with his other hand. He undid his jeans and pulled them down, pushed ES’s legs apart with his hips as he lay on top of her, and pushed his penis against her vagina. The applicant kept hold of her hair while he tried to push his penis into her vagina (charge 13). ES heard her mother’s car pull into the driveway and the applicant got off her. He told ES to get up and get out, which she did.
Previous trial
A previous trial of these charges occurred in 2009, at which the applicant was convicted of charges concerning four complainants. The applicant successfully appealed against his conviction in this Court and a re-trial was ordered.[2] The prosecution subsequently decided not to proceed with the charges related to the fourth complainant.
[2]RJP v The Queen (2011) 215 A Crim R 315.
A re-trial was attempted first in April 2013 and again in July 2013. On both occasions, the juries were discharged without verdict as a result of prejudicial evidence given by SK. As a result, the judge directed that the evidence of SK be recorded before the trial so that, if prejudicial evidence was again given, the recording could be edited so as not to cause the discharge of a further jury. The evidence of SK was duly given on 21 and 22 July 2014.
On 4 September 2014 the applicant sought a permanent stay of the charges relating to SK on the basis that her evidence had failed to identify events taking place on a specific occasion rather than a conglomeration of incidents. The trial judge refused the application, and an application for leave to appeal to this Court was refused on 14 November 2014.[3] This Court held that SK had given sufficient particularised evidence of the acts in question to leave open to the jury a finding that her memory concerned a single incident rather than a collection of events.
[3]RJP v The Queen [2014] VSCA 290.
The trial proceeded with all charges being heard together. The judge ruled, and it is not now in issue, that evidence of SK and FR to the effect that the applicant had described the offending as a ‘game’ and that they would enjoy him performing oral sex upon them, was cross-admissible as coincidence evidence in respect of the charges in question (charges 1–6). It will be necessary to describe at greater length below the manner in which a joint trial of all charges came to be conducted.
Proposed grounds of appeal
The applicant seeks leave to appeal against conviction on seven grounds, the last of which was added by leave granted at the hearing of the application. The grounds are as follows:
1. The convictions on charges 1 and 2 are unsafe and unsatisfactory.
2.The learned trial judge wrongly excluded relevant and admissible evidence which would have substantially affected the credibility and reliability of the complainant SK.
3.The conviction on charge 9 is unsafe and unsatisfactory.
4.The conviction on charge 13 is unsafe and unsatisfactory.
5.The learned trial judge erred in not severing the indictment.
6.The directions in respect of separate trials and separate consideration were not adequate.
7.The learned trial judge erred in ruling that in a joint trial of complainants SK and FR he would allow the prosecution to adduce evidence that a third complainant, ES, had made allegations of sexual offending by the applicant against her in that he:
(a)failed to adequately balance the prejudice to the accused against the limited relevance of the evidence;
(b)decided any such prejudice could be cured by directions.
Ground 1 — convictions on charges 1 and 2
The applicant argued that, for a combination of reasons, it was not open to a reasonable jury to be satisfied of his guilt in respect of charges 1 and 2. The applicant relied on:
(a) contradictory evidence as to the circumstances of the offences, in particular, the evidence of William Kelly and SK’s mother, RD;
(b) the unlikelihood of injuries being caused in the way alleged;
(c) the failure to make complaint when it was expected it would be made;
(d) the mental problems which the complainant seemed to have disclosed to a counsellor, including visual and auditory hallucinations.
It is convenient to set out the evidence and contentions in respect of each of these particulars before dealing with this ground as a whole.
SK gave evidence that she and her mother were living in a house in Portland with the applicant and his wife at a time when SK was in kindergarten. She shared a bedroom with her mother who she said was heavily pregnant at the time with her brother, who was born in November 1986. SK was born in October 1981. She gave evidence that her mother and the applicant’s wife went out one night. After she had gone to bed and was just falling asleep she said that the applicant came into her room and took her with him to his bedroom. He asked her to take her clothes off and she did so. He grabbed her arms and when she went to scream he put his hand over her mouth and told her to relax. She was lying on the bed and he was on top of her. He moved his head down her body to between her legs and said ‘most females should like this’. He was licking her vagina. He then moved up and was rubbing his body against hers. He ended up on top of her and attempted to insert his penis into her vagina. SK said that, when she tried to get out from underneath the applicant he said that he ‘wanted to finish our game’.
SK said that, after she managed to roll out from underneath the applicant, she went to grab her pyjama top, pants and underwear and noticed there was ‘a little bit of blood’ on her underpants. She said that the applicant snatched them from her but she put her pyjamas back on and pretended that she was going to go back to bed. She said that the applicant told her not to tell anybody what had happened because her mother would not want her any more now that she had a new baby coming. SK said that, instead of returning to her bedroom, she ‘quickly turned around and ran out the front door, slammed the door, ran across the road, knocked on the neighbour’s door’. She said that Bill Kelly answered the door and she made it clear to him that she did not want to go back. She said that she did not want to stay the night at the applicant’s house and wanted to wait until her mother returned. She said that Mr Kelly let her sleep in the bunk bed with a girl named Rhiannon, whose mother lived in the house. SK gave evidence that the next morning she got up and went back and got into bed with her mother who was in bed asleep.
In cross-examination, SK said that when she went to the neighbour’s house, it could have been the middle of the night. She said that she was visibly distressed and told him that she did not want to stay with the applicant. She said that Mr Kelly never pushed her for an explanation. She was not 100% sure that, as she had said in her statement, she had made Mr Kelly promise not to tell her mother what had happened. She said that he only had a towel around him and smelt ‘very intoxicated from alcohol’. She had no memory of her mother asking her where she had been when she got home from her night out.
In his evidence in chief, Mr Kelly remembered SK but could not recall whether SK had ever stayed overnight at the house in question. When cross-examined, he could not recall any occasion when SK had come over to his house at night time in her pyjamas and knocked on the door. He did not recall SK coming to his house in the night and knocking on the door and saying that she did not want to stay with the applicant. He said that it ‘definitely didn’t happen’ that SK made him promise not to tell her mother about something that had happened. Mr Kelly agreed that if anything like the incidents in question had happened he would have remembered, and to the best of his knowledge ‘it just never happened’.
SK’s mother, RD, also gave evidence contrary to these aspects of SK’s account. Her evidence was that she had never come home after a night out with the applicant’s wife to discover that SK was not in the house. When the account of SK being sexually abused by the applicant, running to the neighbour’s place and staying the night there, then returning to the applicant’s house when RD was already in bed and jumping into bed with her, RD said ‘to my knowledge, that’s not correct’.
Counsel for the applicant contended that these two witnesses had contradicted a critical part of the narrative given by SK. It was submitted that the relevant events were inexplicably entwined with the criminal activity which had been said immediately to precede them and that the jury must therefore have had a reasonable doubt as to whether any of her evidence about the offending was correct.
The respondent submitted that it was open to the jury to accept that part of SK’s evidence which detailed the offending without accepting her account of what happened afterwards. Counsel drew attention to the fact that Mr Kelly gave evidence that his ‘memory’s not real good that far back’. Moreover, RD gave evidence in cross-examination of an occasion upon which she went out with the applicant’s wife, leaving SK with the applicant, and came home to find that SK was not in the bed where she was supposed to be but was in bed with the applicant. She said that the applicant and SK were asleep. RD said that this had happened in 1986. She said that the applicant’s wife woke him up and asked why SK was there and that he had said that she had woken up and come down the passage and was upset and so he had put her in bed with him. RD said that the next morning she noticed when she went to dress SK that she had no underwear on underneath her pyjamas. She took SK to kindergarten as usual.
The second particular under ground 1 contends that the injuries alleged to have been suffered by SK were unlikely to have been caused in the way alleged. SK gave evidence in cross-examination that she had bled as a result of the incident, but she could not remember it continuing over several days. She said that she was very sore and it stung to urinate. She said that she had been sore for quite a few days. She also said that she had seen a doctor and that she had ‘internal damage’. She named a Dr Myles. SK said that she did not know how the blood came to be on her underwear. It had not been part of the prosecution case that the offending against SK had caused bleeding. However, at the first trial, SK had given evidence to the effect that she had bled for several days after the incident.
The applicant contended that the discrepancies in SK’s evidence as to the bleeding and the source of the blood on her underpants was so great that the jury must have had a reasonable doubt about her credibility. The respondent pointed to evidence of RD to the effect that, around the time in question, she took SK to a doctor named Myles as a result of a vaginal laceration (which RD assumed had been caused by SK falling from her bicycle), and the doctor prescribed a cream.
In respect to the third particular, there was evidence that SK had made a statement in June 1996, and a further statement in October 1997, alleging sexual abuse by a man named Simpson. SK accepted that the police at that time had encouraged her to describe incidences of sexual abuse when she was a child and that she had ample opportunity to complain at that time about the applicant. Similarly, in counselling sessions with Portland Psychiatric Services since at least 1998, SK had complained of being sexually abused by a number of people but had not detailed offending by the applicant. It was submitted that SK gave no explanation for the failure to complain about the applicant on these occasions. The explanation given by SK was, in substance, that there had only been one incident involving the applicant, which did not constitute an act of penetration, whereas her allegations against Simpson involved penetrative offending over a period of four and a half years. Ultimately, she told the police about the applicant because she had heard about other complainants, which she said gave her own experience greater significance.
The applicant relies finally on statements made by SK to a counsellor in 1999. The notes made by the counsellor recorded statements that SK ‘hears voices outside her head’, ‘dreams of things that are going to happen to others and believes these things come true, ‘can read people’s minds’, ‘reports seeing a person while by herself and that you can see through them and they make you feel cold’, ‘presents with some ideas that she is able to read others minds and that her dreams about other people are predictive’ and ‘reports hearing things that others do not and recalls some possible visual hallucinations’. In cross-examination, SK denied ever having heard voices outside her head. She also denied saying that she could see through people and that they made her feel cold. She did not recall having said that she was able to read other people’s minds, that her dreams about other people were predictive, that she heard things that others did not or that she recalled possible visual hallucinations. The applicant contended that these answers did not explain the evidence of the counsellor to the effect that such statements had been made. It was submitted that this evidence showed that SK was an unreliable historian.
In order for ground 1 to be made out, the applicant must demonstrate that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of his guilt on charges 1 and 2. The question is whether the jury must (rather than might) have entertained a doubt about his guilt.[4]
[4]M v The Queen (1994) 181 CLR 487, 492–4; Libke v The Queen (2007) 230 CLR 559, 596–7; SKA v The Queen (2011) 243 CLR 400, 405 [11].
In considering this ground, the Court must bear in mind that the jury is entrusted with the primary responsibility of determining guilt or innocence, and that the jury has had the benefit of seeing and hearing the witnesses.[5] Counsel for the applicant submitted that this caution was inapplicable in the present case because the evidence of SK had been recorded before the trial and was available for the Court to view. The Court was invited to do so. In our opinion it would not be appropriate to accede to this invitation, and we have not viewed the evidence of SK. This is for two reasons.
[5]R v Nguyen (2010) 242 CLR 491, 499 [33]; SKA v The Queen (2011) 243 CLR 400, 405 [13].
First, although counsel asserted that the evidence of SK had been given in a ‘bizarre’ fashion, it was not submitted that anything about the way she gave her evidence must have led the jury to entertain a reasonable doubt as to its veracity. In those circumstances, viewing her evidence would not usefully inform the Court as to whether it was open to the jury to accept SK’s evidence.
Secondly, in any event, it would be insufficient, and unfair, to view the evidence of SK without also viewing that of the other relevant witnesses, especially Mr Kelly, RD and the applicant himself, who gave evidence denying that the offending had occurred. Again, nothing was submitted as to the manner in which any of these witnesses gave their evidence which would assist the Court in deciding whether it was open to the jury to convict the applicant on charges 1 and 2.
The Court must therefore, in the ordinary way, take account of the fact that the jury has had the benefit of seeing and hearing all the evidence.
In our opinion, none of the matters advanced by the applicant, whether taken in isolation or together, satisfy this test.
It is clear that there was a conflict in the evidence between SK, on the one hand, and Mr Kelly (and to a lesser extent, RD), on the other, in relation to the events after the alleged offending. It was not essential to the proof of the charges that any of these events be proved to have occurred. However, if the jury were satisfied that SK was wrong in her account of the events after the offending, it would have been open to them to conclude that there was a doubt about her recollection of the whole occasion. The evidence of Mr Kelly and RD provided the jury with a basis for doubting or rejecting the evidence of SK regarding some of the events of the night in question. But even had they had done so, it does not follow that the jury must have doubted or rejected all of her evidence as to the offending. That is especially so, because the evidence of RD, that she had come home one night after being out with the applicant’s wife to discover SK in bed with the applicant and inexplicably missing her underpants, was plainly capable of corroborating the evidence given by SK of the offending. It was further able to be corroborated by the evidence that SK had been taken to a Dr Myles in connection with a vaginal laceration around the time in question. The jury also had available to them the evidence of FR which was cross-admissible in respect of charges 1 and 2 to the effect that the applicant had used similar language when committing other offences.
As the respondent submitted, it was open to the jury to conclude that, while SK was mistaken in her evidence as to the aftermath of the offending, her evidence about the critical acts should be accepted.
There was also nothing in relation to the evidence of blood on SK’s underpants or the duration of any bleeding as a result of the incident which necessitated the rejection of her account of the offending. SK did not assert that the offending caused blood to get on her underpants. The jury was not obliged to disbelieve her evidence on the basis that she had previously claimed to have bled for several days.
Further, SK gave a plausible explanation as to why she had not complained to the police or counsellors in respect to the offending of the applicant. The offending which she alleged against Simpson was of a substantially graver nature. In the circumstances, the jury was entitled to accept that, when elaborating on that offending, SK did not think it worth mentioning the offending by the applicant.
Again, the jury could put the evidence of what SK said to her counsellor in 1999 (when she was aged about 18) to a number of different uses. They may have considered what the applicant said was exaggerated, by virtue of her going through a difficult phase in her life at that time, and they may have thought that she did make the claims in question and that some or all of them reflected a degree of mental instability at the relevant time. But, especially since there was no suggestion that SK suffered from any mental disability at the time she gave evidence, it was open to the jury to consider that any difficulties of this nature that she had had were in the past.
In the end, each of the matters raised by the applicant goes to the assessment by the jury of the credit of SK. Her evidence, if accepted, plainly established the applicant’s guilt in respect of charges 1 and 2. We are not persuaded that the jury was bound as a result of any of the matters identified, taken in isolation or in combination, to conclude that SK was a witness whose evidence ought not be accepted, such that the jury must have had a reasonable doubt about the guilt of the applicant on charges 1 and 2.
It was open to the jury to convict the applicant on the evidence in relation to charges 1 and 2. Ground 1 is not made out.
Ground 2 — exclusion of confidential communication evidence
Ground 2 relates to a ruling by the trial judge refusing leave to the applicant to adduce evidence of confidential communications made by SK to another counsellor. The notes in question recorded a complaint by SK that she had been pack raped by two men, and that on another occasion had been abducted and put in the boot of a car with another girl who was tortured, raped and killed. The judge ruled that this evidence did not have substantial probative value and that the jury could not decide whether the allegations were true or false. He therefore refused leave to adduce the evidence.
Leave was required to adduce this evidence by virtue of s 32C of the Evidence (Miscellaneous Provisions) Act 1958. That provision provides that evidence is not to be adduced if it would disclose a confidential communication unless the Court grants leave to do so. It is not in dispute that the notes in question contained a confidential communication within the meaning of s 32B(1).
Section 32D makes provision in respect of the granting of leave. It relevantly provides:
(1)A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that —
(a)the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and
(b)other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and
(c)the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.
(2)Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account—
(a)the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;
(b)the extent to which the protected evidence is necessary to allow the accused to make a full defence;
(c)the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;
(d)whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;
(e)whether the protected confider objects to the disclosure of the protected evidence;
(f)the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.
…
The applicant submitted that the notes ought to have been subject to a grant of leave because the defence wanted to place material before the jury which would have substantially affected its assessment of the reliability and credibility of SK. It was submitted that the allegations were so grave and extraordinary that the very making of them reflected on SK’s credit.
The Court does not have access to the notes themselves. The trial judge permitted defence counsel to review the notes and to make his own record of what they contained. This is the only material upon which the Court can now proceed. It does not appear whether the notes gave any further detail of the claims that were made, or described any actions that SK may have taken (for example, going to the police) following the events they described. However, in our opinion, proceeding on the contents of the notes insofar as they were relied on before trial, it is clear that the judge was correct to refuse leave.
The test in s 32D(1)(a) requires the Court to be satisfied that the evidence will have substantial probative value to a fact in issue, either by itself or having regard to other evidence. Assuming for present purposes that the credibility of the complainant is a fact in issue for these purposes, the test for leave still imposes a high hurdle.[6] It calls for ‘substantial probative value’. It also requires satisfaction that the evidence ‘will’ have such value. As the trial judge held in his ruling, there was no way in which the jury would be able to assess whether the allegations were true. It was not proposed to adduce any other evidence as to the truth or falsity of the claims recorded in the notes. In that situation, it was not open to find that the evidence would have substantial probative value to the issue of SK’s credibility. Unfortunately, there was nothing inherently remarkable in her claim to have been raped by two people. Nor, unhappily, is it impossible that SK may have been abducted by an offender or offenders who tortured, raped and killed another girl. Without any basis for determining whether these claims have substance, the evidence in question lacked substantial probative value.
[6]The assumption finds support in SLS v The Queen (2014) 42 VR 64, 112–3 [240]–[242]. It is not necessary to explore the matter further.
Nor could it be said that the evidence would have substantial probative value when taken with any other evidence. On the appeal, it was submitted that the way in which SK answered questions about the notes could have reflected significantly on her credibility. For example, it would be extraordinary if she had made such claims and not taken the matters to the police. It may be accepted that the leading of evidence about the statements in the notes could have led to a successful attack on SK’s credibility. But this Court, like the trial judge, can do no more than speculate in that regard.[7] Section 32D(1)(a) sets a higher bar to the grant of leave by requiring that the evidence, taken with other evidence, ’will’ have substantial probative value. Here, as the judge held, the evidence of the notes was not of such a nature that this question could be answered in the affirmative.
[7]No voir dire was conducted in relation to these matters. It is therefore not necessary to address the question, raised in pre-trial argument, whether leave is required under s 32D to adduce evidence on such a voir dire itself. An affirmative answer to that question finds some support, however, in SLS v The Queen (2014) 42 VR 64, 106–14 [224]–[247].
Ground 2 should be dismissed.
Ground 3 — conviction on charge 9
The third ground alleges that the conviction on charge 9 is unsafe and unsatisfactory. Charge 9 alleged that the applicant on 8 January 1997 took part in an act of sexual penetration with FR in that he introduced his fingers into her vagina. In her evidence in chief, FR stated that, on the day in question, the applicant had put his tongue in her vagina. The prosecution was given leave to cross-examine her under s 38 of the Evidence Act 2008. She then gave evidence that the applicant had also penetrated her vagina with his fingers on this occasion. When cross-examined by counsel for the applicant, FR said that she had not previously remembered the incident of lingual penetration and that she had only remembered when she gave evidence about half an hour earlier.
The applicant contended that no jury acting reasonably could have accepted FR as a reliable or credible witness in respect of this charge.
In our view, there is no substance in this ground. The jury was not bound to reject FR’s evidence of digital penetration as a result of the fact that she had not previously stated that the incident was accompanied by an act of lingual penetration. FR explained that, in effect, she had rushed her evidence when she omitted to refer to the digital penetration. It is evident that the jury accepted the credit of FR in respect of her evidence about the other nine charges. There was no reason why her previous failure to mention the act of lingual penetration must have led the jury to decide adversely on her credit in respect of charge 9.
Ground 4 — conviction on charge 13
The fourth ground of appeal alleges that the conviction on charge 13 is unsafe and unsatisfactory because it was not open to the jury acting reasonably to accept ES as a credible witness.
Four aspects of the evidence going to the credibility of ES were relied upon in support of this ground. First, a counsellor’s note was put to ES which stated that she had said that the applicant’s ‘assaultive behaviour included digital penetration’. ES accepted that the applicant had never digitally penetrated her. Secondly, the notes recorded that ES said that whenever the applicant’s son was away, the applicant would call her into his bedroom and do sexual things with her. ES accepted that, if she had said either of these things to the counsellor, they were untrue. Thirdly, ES had made complaint of sexual abuse by others in circumstances where, if the applicant had offended against her, it was said that she would have been expected to have made complaint about him as well. Fourthly, ES gave evidence that she had attempted suicide on a single occasion, and that this was because of what the applicant had done to her. The notes of the counsellor stated that she had attempted suicide on a number of other occasions. ES accepted that if the notes said this, they were false.
All of these matters were capable of affecting the way in which the jury assessed the credibility of ES. But again, a reasonable jury did not necessarily have to decide that the communications of ES to counsellors affected her credibility such that her account of the offending was not to be accepted. A jury could have been sufficiently impressed by the evidence that ES gave as to the event charged, notwithstanding the attacks made on her credit. Moreover, insofar as this ground rests on the failure of ES to complain earlier in respect of the applicant, the jury could have accepted her evidence that she did not complain about his actions earlier because she viewed him as a kind of father figure and had been too scared to say anything. In any event, ES complained to a counsellor about the applicant, albeit in general terms, on 5 May 2005 when she was aged 15.
In our opinion, this ground is not made out.
Ground 5 — severance of the indictment
As originally framed, this ground sought to challenge two rulings made by the trial judge. As argument developed, it became apparent that the second of those rulings was not a ruling as to severance. As a result, leave was granted to add ground 7 to the application for leave to appeal. It is necessary to explain in more detail the background to each of these grounds.
In a pre-trial ruling that is not now challenged, on 15 April 2013, the trial judge ruled that there was limited cross-admissibility in respect of the evidence to be led from SK (charges 1 and 2) and FR (charges 3 to 6), insofar as the applicant was alleged to have told each of SK and FR that they were going to play a game and, immediately before performing oral sex upon them, he had told them they were going to enjoy it. Although there were references to the playing of the game in respect of other charges concerning FR, the judge also ruled that there was no cross-admissibility in respect of charges 7 to 12. The applicant then asked the judge to sever the indictment so that charge 13 would be heard separately, and there would also be a separate trial for charges 7 to 12. In respect of charges 1 to 12, the trial judge referred to the presumption that the charges were to be tried together (referring to ss 193 and 194 of the Criminal Procedure Act 2009).[8] The judge referred to R v TJB[9] and held that the jury could be adequately directed in respect of the potential cross-admissibility of evidence in relation to charges 1 to 6 and the absence of cross-admissibility in respect of the other charges. The judge expressed the view that the jury would have no difficulty understanding such directions or applying them to the evidence. On that basis, he refused to sever the indictment in respect of charges 1 to 12.
[8]The applicant submitted that the governing provision was in fact s 372 of the Crimes Act 1958. It was agreed that nothing turns on the point.
[9][1998] 4 VR 621, 629.
In relation to charge 13, the prosecution initially submitted that it should be heard separately. However, the defence indicated that there would be a vigorous exploration of the possibility that ES and FR, her sister, had colluded or infected each other’s accounts. As a result, the prosecution submitted that severance of charge 13 was no longer appropriate because it would cause each of ES and FR to be called as a witness in the trial involving the other. On that basis, the judge refused to sever the indictment in respect of charge 13. Again, he was satisfied that appropriate directions could be given to safeguard the interests of the applicant. This is the ruling the subject of ground 5.
Following this ruling, and after the evidence of SK had been recorded, the defence indicated that it would no longer pursue the issue of collusion between ES and FR. The prosecution at that point accepted that the danger of unfair prejudice arising from the hearing of the charge concerning ES outweighed other factors and that the indictment should therefore be severed in respect of charge 13. The judge ruled accordingly.
However, the defence subsequently indicated their intention to pursue the question of collusion or infection between SK and FR, and further made it clear to the prosecution that delay was going to be raised as an issue in the trial of charges 1 to 12. This led the prosecution to withdraw its concession that there should be two trials, because FR’s explanation for delay involved the revelation of the allegation of offending against ES, the subject of charge 13. FR would give evidence that she had not intended to say anything about the offending against herself until she discovered that the applicant had offended against her sister ES. Accordingly, the prosecution applied at the start of the trial for the judge to revoke his earlier ruling and conduct a joint trial on all charges.
In the course of argument on that application, defence counsel indicated that the defence would confine its reliance on delay to SK alone and would not challenge FR’s credibility on that account. The judge refused to accede to the application for a joint trial on all charges, but indicated in the course of his ruling that in a trial on charges 1 to 12 he would permit the prosecution to elicit evidence from FR that she had only complained about the applicant after she discovered that her sister ES had also made a complaint about him. This ruling, which led defence counsel to accede to the prosecution’s application for a joint trial on all charges, is subject of ground 7.
In the result, the judge ruled by consent that there would be a joint trial of all charges. This ruling is the subject of ground 5. The applicant contends that his consent was, in effect, involuntary, as a result of the ruling the subject of ground 7. It is convenient to put aside for the moment the question whether the applicant should be precluded from pursuing ground 5 by virtue of the position taken on his behalf at trial.
In respect of the question of severance, the applicant placed reliance on the judgment of this Court in R v TJB.[10]Particular reference was made to the ‘guidance’ set out in the judgment of Callaway JA, as follows:[11]
1.A presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial. It is for defence counsel to persuade the judge that that is so. In that respect sexual offences are no different from other offences.
2.One aspect of a fair trial is the taking of reasonable steps to prevent a jury from misusing evidence. That is not limited to propensity evidence and again is not peculiar to trials of sexual offences. See, for example, R. v. Smart especially at 283 and 289.
3.It is usually to be assumed that the jury will comply with any directions they are given by the judge. A fair-minded lay observer takes that very factor into account in considering whether a trial is fair: cf. Webb v. R. (1994) 181 C.L.R. 41 at 55.
4.There are nevertheless cases where the risk of prejudice is unacceptable. It will often be found that that is so in the case of offences of an unnatural character or offences that arouse strong emotions or excite revulsion.
5.There is also a greater risk that a direction will be ineffectual if evidence in relation to one complainant is probative in relation to another but either the Crown does not rely on it for that purpose or the judge rules that it is inadmissible because of prejudice.
[10][1998] 4 VR 621, 629–31.
[11]Ibid 630–1 (original emphasis).
It was submitted that this was a case where the risk of prejudice was unacceptable, not least because it was a case of ‘offences of an unnatural character or offences that arouse strong emotions or excite revulsion’, noting that Callaway JA had stated that sexual offences, particularly those of an unnatural or repellent character like offences against young children, were peculiarly likely to arouse prejudice.[12]
[12]Ibid 629.
In making this submission, counsel for the applicant appeared to advance a general proposition which TJB does not support. TJB is not authority for the proposition that there is an unacceptable risk of prejudice in conducting a joint trial involving more than one complainant in respect of allegations of sexual offences against young children. The presumption, elaborated upon in TJB and now found in s 194 of the Criminal Procedure Act, is to the contrary. The law is as stated in GBF v The Queen:[13]
[13][2010] VSCA 135, [51]–[54].
Section 193 of the Criminal Procedure Act 2009, like its predecessor, s 372 of the Crimes Act 1958, empowers the court to order that one or more charges on an indictment be tried separately. In the same way, however, that ss 372(3AA) and 372(3AB) of the 1958 Act provided, s 194 of the new Act provides that, if two or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together and the presumption is not rebutted merely because evidence of one charge is inadmissible on another charge. As is explained in R v TJB,[14] that is so because it is usually assumed that the jury will comply with any direction they are given by the judge. Nevertheless, there are cases where the risk of prejudice is unacceptable.[15] In our view, this is such a case.
[14][1998] 4 VR 621, 629.
[15]Ibid 630–1.
Ordinarily, in a multi-complainant sexual offence case, the jury can be directed either that they may take the evidence given by one complainant into account as tendency evidence in determining whether the Crown has established the offences alleged to have been committed against another complainant, or that they are to put the evidence of one complainant completely out of mind as they consider whether the Crown has established guilt in relation to the offences alleged to have been committed against the other complainant. In such cases, the mere fact that there are two complainants is not ordinarily regarded as sufficient reason to sever the indictment.
In this case, however, unless the indictment is severed, the jury would have to be directed, among other things, that the evidence of C1 as to Counts 2 and 4 to 18 is irrelevant to, and must be excluded from consideration in, the determination of whether the Crown has established beyond reasonable doubt the commission of the offences against C2 alleged in Counts 19, 20 and 21. Yet at the same time, assuming the Crown were to persist with its intention to adduce the tendency evidence, or at least so much of it as we consider to be admissible, the jury would have to be directed:
a) that C1’s evidence as to uncharged acts, and as to the offences alleged in Counts 1 and 3, was relevant as tendency evidence in determining whether the Crown had established beyond reasonable doubt the commission of the offences against C2 alleged in counts 19, 20 and 21; and
b) that C2’s evidence of uncharged acts and as to Counts 19 to 21 was relevant as tendency evidence in determining whether the Crown had established beyond reasonable doubt the commission of the offences alleged in Counts 1 and 3.
Some might regard directions of that kind as bordering on metaphysical. But whether or not it would be right to do so, we consider that a jury would find it very difficult to comprehend or accept the logic of them, and still more, be able fully to apply them. Therefore, although it may be assumed that the trial judge would strive to make such directions as simple and clear as possible, we think that there would remain an unacceptable risk of the jury taking into account C1’s evidence as to Count 2 and Counts 4 to 18 in proof of Counts 19, 20 and 21 and, potentially, more damagingly to the applicant, taking C2’s evidence as to Counts 19, 20 and 21 into account in proof of the offences alleged in Counts 2, 4 to 18. For without needing to be unduly precise about it at this stage of the proceeding, we were told that the defence in relation to Counts 8 to 18 will or may be that at least some of the alleged acts occurred, but that they were consensual. In those circumstances, we consider that the applicant’s chances of acquittal on Counts 2 and 4 to 18, and more especially on Counts 8 to 18, might be put at risk of significant unfair prejudice by reason of the jury being aware of and thus, perhaps only subconsciously, taking into account C2’s evidence as to Counts 19, 20 and 21.
See also Velkoski v The Queen.[16]
[16][2014] VSCA 121, [88], [173(e)].
The applicant submitted that the present case was indistinguishable from GBF. As the Court held in that case, the necessary directions which would need to be given to the jury were, it was submitted, bordering on the metaphysical. There is no substance in this submission. It is true that, as here, GBF involved evidence that was cross-admissible in respect of only some of the charges in question. But in GBF the evidence was tendency evidence concerning the accused’s behaviour with women. In that regard, there was also evidence of uncharged acts committed upon third parties. The evidence, including that which was held to be cross-admissible, related to women who worked with the accused. There were to be issues of consent in relation to many of the charges on which there was not cross-admissible evidence. The complexity of the necessary directions, and the likelihood of prejudice arising from a joint trial, was correspondingly greater.
Here, in contrast, the cross-admissible evidence is coincidence evidence of very narrow compass. There is no evidence of uncharged acts or acts committed against third parties, calling for more complicated directions. Nor is there any issue as to consent. The jury needed to be told, as it was, that they needed to consider each charge separately and that, with the exception of the very limited cross-admissible evidence, the evidence of one complainant was not admissible in respect of the charges involving another complainant.
As counsel for the applicant accepted, the decision of the trial judge whether or not to sever the indictment was made in the exercise of his discretion. In GBF, the trial judge had erred in her ruling as to cross-admissibility.[17] That is not suggested here. We are not persuaded that any error was shown in the exercise of the judge’s discretion in this case.
[17][2010] VSCA 135, [55].
It is therefore not necessary to consider the relevance of the applicant’s consent to the order for a joint trial. Ground 5 is not made out.
Ground 6 — directions as to separate trials
Ground 6 alleges that the manner in which the judge charged the jury on the issue of separate trials was unduly restricted and inadequate. It was submitted that the judge concentrated overly on the coincidence evidence and that the direction he gave about other charges and complainants would have been ineffectual. At the hearing of the application for leave to appeal, counsel accepted that this ground did not materially add to ground 5. This concession properly reflected the fact that no redirection was sought at the trial. The position taken by defence counsel was that, consistent with his submissions in respect of severance, no directions would be adequate to cure the prejudice caused by the joint trial. It follows that, since there is no substance in ground 5, ground 6 should also be dismissed.
Ground 7 — ruling as to evidence of ES’s complaint
It will be recalled that, in the course of dealing with the various applications that were made regarding severance, the judge indicated that he would permit the prosecution to adduce evidence, in ‘very brief and general’ terms, of the fact that FR explained her delay in complaining about the offending of the applicant on the basis that she had not intended to tell anybody about it until she discovered that her sister ES had claimed he had offended against her as well. The applicant contended that, since the defence did not intend to raise the issue of delay on the part of FR at all, there was no proper basis for permitting such evidence to be led. It was submitted that the judge failed adequately to balance the ensuing prejudice to the applicant against the relevance of the evidence and that he erred in concluding that such prejudice could be cured by directions to the jury.
The respondent submitted that it would have been entirely artificial for the trial to proceed without reference to the reasons for FR’s delay in complaint, irrespective of whether this issue was raised explicitly by the defence. Given that delay was relied on in the case of SK, the judge would have been required to direct the jury that there may be good reasons for a victim of a sexual assault to delay complaining about that matter and the whole question of delay would have been ventilated. In those circumstances, the lapse of time before FR complained regarding the applicant would be obvious to the jury and it would be prejudicial to the prosecution if there was to be an evidentiary vacuum regarding that question.
In our opinion, the respondent’s submissions should be accepted. The judge indicated only that he would ‘permit very brief and general evidence to be elicited so as to explain [FR’s] reason for not complaining to police earlier’. In circumstances where the jury would be required to consider the question of delay in respect of SK, the issue necessarily arose, even if only implicitly, in the case of FR. It is doubtful in the circumstances whether a direction to the jury to ignore the matter in the case of FR would have sufficed to address the problem, and this does not appear to have been suggested at trial. The solution identified by the judge, involving evidence in only brief and general terms, reflected an appropriate balancing between the need to address the point by adducing relevant evidence without unfairly prejudicing the applicant.
The judge’s approach to the treatment of FR’s reasons for delay was made necessary by the intention of the defence to rely on delay in the case of SK alone. Because delay was present in respect of charges 1 to 12, it would have been artificial and unjust for the trial to have proceeded without reference to the delay by FR. In effect, this presented the defence with a choice, which the impugned ruling embodied — to sever the charge in respect of charge 13 and have FR’s delay explained in general terms to the jury, or to conduct a joint trial on all charges in which FR’s delay could be relied on and fully explored.
In the events that happened, the latter course was taken and issues of collusion and delay were actively explored at trial. Moreover, the defence contended that FR’s discovery of the complaint made by ES afforded her a motive for making false allegations of her own.
In our opinion, it has not been shown either that the ruling was in error or that a substantial miscarriage of justice occurred by reason of it.
For the reasons given, each of the proposed grounds should fail. We would refuse leave to appeal.
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