Barry Perryman v The Queen
[2019] VSCA 252
•7 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0176
| BARRY PERRYMAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T FORREST, EMERTON and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 October 2019 |
| DATE OF JUDGMENT: | 7 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 252 |
| JUDGMENT APPEALED FROM: | DPP v Perryman (Unreported, County Court of Victoria, Judge Lacava, 7 August 2018) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Sexual penetration of child under 16 –Facebook evidence – Affidavit evidence – DNA evidence – Whether fresh evidence – Whether new evidence – Whether trial legal advisors incompetent – Whether substantial miscarriage of justice occurred – No fresh evidence – No new evidence – No substantial miscarriage of justice – Leave to appeal refused – Hague v The Queen [2019] VSCA 218, Rich v The Queen (2014) 43 VR 558 applied.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr S Gillespie-Jones | Ferraro Pruscino & Co |
| For the Respondent | Mr R L Gibson QC | Mr J Cain, Solicitor for Public Prosecutions |
T FORREST JA
EMERTON JA
WEINBERG JA:
On 9 February 2018, the applicant was found guilty by a jury of one charge of rape. He was sentenced on 7 August 2018 as follows:
| Charge | Offence | Maximum | Sentence |
| 1 | Rape (Crimes Act 1958 s 38(1)) | 25 years’ imprisonment | 9 years’ imprisonment |
| 2 | Sexual penetration of a child under 16 years (Crimes Act1958 s 45(1)) | 15 years’ imprisonment | No verdict —alternative charge |
Total effective sentence: | 9 years’ imprisonment | ||
Non-parole period: | 6 years and 6 months | ||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 799 days | ||
Section 6AAA statement: | N/A | ||
| Other relevant orders: · Disposal order · Registration pursuant to Sex Offenders Registration Act 2004 · Registrable period of 15 years | |||
Trial summary
The evidence adduced in the prosecution case was that in August 2012, the complainant, then aged 15, had an interest in horse riding. Through that interest, she had met the applicant’s son at the applicant’s property at Tocumwal, in New South Wales. The complainant and the applicant’s son went out on an intermittent basis for about five or six months. During this period, the complainant met the applicant. He provided some training to the applicant aimed at improving her horse riding skills.
In mid-August 2012, after the complainant had broken up with the applicant’s son, she made an arrangement on Facebook to meet the applicant. The complainant left her house at 12.30 am on 11 August 2012. She walked to the Merrigum Hotel, which was close by. She met the then 44 year old applicant there. She stated that she got into his utility vehicle. He offered her a can of Coke and said, ‘Don’t skol it because it’s got alcohol in it’. They drove to a McDonald’s restaurant in Echuca, arriving there at about 1.10 am.
The complainant stated that, after purchasing takeaway food, the applicant drove to an area near a lake or river and a large bridge. The applicant gave her another Coke mixed with alcohol. He lit a fire while the complainant went to the toilet. The complainant said that the applicant laid out a swag or sleeping bag. She felt sick and laid down. She believed that she may have passed out for a short time. When she woke, she had no jeans or underwear on. The applicant was on top of her, kissing her. She asked, ‘Why are you doing this?’ He replied, ‘’Cause you asked me to.’ She said, ‘No, stop.’ He removed her top and bra, and took his shirt off. He forced her legs apart and put his penis into her vagina. She tried to attract attention. He put his hand over her mouth and said, ‘Be quiet because I don’t want to go to gaol.’ He kept his hand over her mouth for about five minutes while continuing to penetrate her vagina with his penis. The complainant believed she blacked out again. When she woke, her clothes were bunched up together nearby. The applicant said, ‘It’s four o’clock, we’d better go.’
The complainant slowly put her clothes back on. She vomited when she stood up. The applicant dropped her off at the Merrigum Hotel. She walked the short distance home. Her parents were awake, waiting for her. They asked where she had been and she said that she had been out with some boys. She then went to bed.
Over the next two days, the complainant maintained this account of having been out with some boys to her parents, to police, and to a Dr Singh. By 13 August 2012, she had told her friend, SP, that she had been raped by her horse trainer ‘at the bridge’. On the same day, she also told another friend, KD, that she had sent a message to the applicant and met him at the Merrigum Hotel. She said that he had given her alcohol, and that she had passed out. She woke to find the applicant on top of her with his hand over her mouth. When he had finished raping her, he gave her more alcohol and took her home.
Dr Singh, in pre-recorded evidence, told the jury that the complainant was brought in by her mother at 4.40 pm on 12 August 2012. This was because her parents were concerned that she had stayed out the night before, and that she had been with some boys from the neighbourhood. When her mother left the consulting room, the complainant insisted that she had been out with some boys, and that she could not remember much of what had occurred. She said that she had not been forced into anything, but that she had been intoxicated. She agreed to emergency contraception.
On 14 August 2012, the complainant told a friend, MC, that the applicant had raped her. MC and her father took the complainant home to tell her parents. They then took her to the police. On 15 August 2012, the complainant participated in a video recorded interview with Detective Neville Fraser.
The complainant outlined the events involving the applicant. Later that same day, police attended the alleged crime scene with the complainant. They located various items for analysis, including a partly burnt McDonald’s drink cup, a lid and a straw. These were subsequently analysed for DNA. The evidence was that the DNA provided extremely strong support for the hypothesis that the complainant was a contributor to mixed DNA on the cup (likelihood ratio 1.2 million : 1) and moderate support that the applicant was a contributor to that mixed DNA (likelihood ratio 74 : 1). There was also extremely strong support for the proposition that the applicant was a contributor to the mixed DNA on the straw (likelihood ratio 100 billion : 1), but there was no evidence that the complainant’s DNA was on the straw. The second contributor to the DNA on the straw was unknown. Also located was a paper McDonald’s receipt dated 7 August 2012.
On 21 August 2013, the applicant was interviewed by police about the rape allegation at the Cobram police station. He said that he knew the complainant, but insisted that he had never been with her to the location of the alleged rape (which was sometimes called the ‘onion patch’). He said he had not been out with her on the relevant night. He denied having ever had sex with her. He said that the complainant had been dating his son for about six months but they had split up some time previously. He acknowledged having taught her to improve her riding over that period.
The applicant gave evidence at trial along the same lines as in his record of interview. Before his cross-examination commenced, the prosecutor sought and was granted leave to recall two witnesses to give brief evidence about matters that had not been put to them in cross-examination, but which the applicant had referred to in his evidence-in-chief. We shall refer to this in more detail when we consider ground 3A.
The applicant was then cross-examined. He adhered to his account.
This application
The applicant sought leave to appeal on the following amended grounds:
Ground 1:A substantial miscarriage of justice occurred as a result of the discovery of fresh and/or new evidence.
Ground 2:A substantial miscarriage of justice occurred as a result of the incompetent manner in which the applicant’s legal advisors conducted the litigation.
Ground 3A:A substantial miscarriage of justice occurred by the learned trial judge
(a)finding that the prosecution could not have anticipated that the defence would contend that the applicant had been to the Cobram McDonalds with the complainant in the circumstance where the DNA evidence on a McDonalds cup would place the applicant at the crime scene in Echuca when in the applicant’s Record of Interview he stated that he did not do the crime and had never been at the crime scene;
(b) [holding] that the applicant’s conversation with the complainant’s parents about retrieving the complainant’s horses that the complainant would not be coming to his property anymore because she had been sneaking out and drinking alcohol with her friends, as a matter that was required to have been put by defence counsel to the parents requiring a reopening of the prosecution case.
(c) Allowing the prosecution to split its case contrary to section 233(2) when it could not reasonably be anticipated that the accused would in its response to the prosecution summary or the notice of pre-trial admission expect reasonably to find reference to had a conversation with the complainant’s parents about retrieving the complainant’s horses that the complainant would not be coming to his property anymore because she had been sneaking out and drinking alcohol with her friends.
Ground 4A:The learned trial judge erred when, in answering the questions from the jury ‘Can you explain the weight of evidence? How to apply the weight of evidence from a witness?’ failed to direct the jury as to the consequences of judging the accused as a witness and the application of the weight of the accused’s evidence on the issue.
Ground 4A was abandoned by counsel for the applicant at the hearing of the application for leave to appeal.
Grounds 1 and 2
It is convenient to consider grounds 1 and 2 together, as they are interrelated. We shall explain this. If the applicant failed to establish that the evidence sought to be introduced was either ‘fresh’ evidence or ‘new’ evidence, then he contended, in the alternative, that it was the incompetence of his solicitor which led to its unavailability at trial, and thus to a substantial miscarriage of justice.
The evidence sought to be introduced
The Facebook evidence
The applicant produced in support of this application numerous Facebook posts and messages, authored either by the complainant, or concerning her. When pressed as to which particular messages counsel relied upon, he directed us to the following: [1]
[1]All errors in original.
(a) Facebook post by ‘Meagan Jane’, the complainant’s mother, on 9 April 2012:
Oh and just to tell everyone how proud I am of my daughter [the complainant] and her first barrel race at the Tocumwal Rodeo last night she did great!!! And Freddie what a great horse to be allowed to ride if we had the money we would buy him for you….. And to Bazza Pittrans[2] thanks so much for lookin after her and trainer her and helpin her to do what she wants and also to Dalton James Perryman, Mel Cowan and Butch for lookin out for her and takin care of her too She is lucky to have such Great people in her life
[2]Counsel for the applicant stated that this was likely to be a reference to the applicant.
(b) Facebook post by the complainant on 8 August 2012:
I’m a Party Girl! I’m 15 and Young! Woop Woop
(c) Facebook post by the complainant on 8 August 2012:
Clearly, i wasn’t good enough! :(
(d) Facebook Messenger conversation between the complainant and AP (the applicant’s daughter) on 20 August 2012:
Complainant: Yeah plus Ive got shit to sort out with the cops
AP: Yeah right
Complainant: No I do that’s why ive had a shit week
AP: Ok then
Complainant: Yeah I got sexual assaulted by one of my school mates
AP: When
Complainant: About two weeks ago
AP: Why
Complainant: Idk he got me drunk drugged me the yeah but I have no idea why.
AP: Okay then
The affidavit of Wayne Lacy
Wayne Lacy swore an affidavit on 30 October 2018 in which he stated that he kept horses owned by the complainant and her family at his property. He said that he had taught the complainant to ride. He specifically denied allegations by the complainant’s mother that he had touched the complainant sexually.
The affidavit of Reece Chessells
Reece Chesells swore an affidavit on 6 December 2018 in which he stated that he and the complainant had an on and off relationship over a period of about four years, including 2012. During that year, he would meet the complainant at her house or ‘down the street’ at a prearranged place, usually late at night. Over the four years, she also went out with other boys.
The affidavit of Christie Chessells
Christie Chessells, Reece Chessells’ mother, swore an affidavit on 30 October 2018 in which she claimed that the complainant had alleged, via Facebook Messenger, that her stepfather had abused her. Ms Chessells had sworn an affidavit to the same effect some two years earlier, on 30 November 2016.
We shall return to the asserted probative value of this ‘evidence’ in due course.
Legal principles
Fresh evidence
Recently, in Hague v The Queen,[3] this Court conveniently summarised the long-established principles relating to fresh evidence:
[3][2019] VSCA 218 (‘Hague’).
In a criminal matter, a party may seek to lead what is sometimes described as ‘fresh evidence’, and at other times ‘new’ or ‘additional’ evidence if certain threshold conditions are met.
The law regarding fresh evidence on appeal, in this State, is that evidence will meet that threshold if this Court concludes that a jury, acting reasonably, might accept the evidence, and act upon it.
More specifically, in R v Nguyen,[4] this Court adopted the following statement of principle governing fresh evidence:
[4][1998] 4 VR 394.
An appellate court cannot set aside a verdict on a ‘fresh evidence’ ground unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial ... If this ground is made out, the verdict of guilty will be quashed and, depending on the evidence considered as a whole, the appellate court may direct a retrial or discharge the appellant ... Ordinarily a court will not be satisfied that the ‘fresh evidence’ ground is made out unless:
a.the evidence was not available, or could not with reasonable diligence have become available, at the trial;
b.the evidence is relevant and otherwise admissible;
c.the evidence is apparently credible (or at least capable of belief); and
d.there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial ... If there is any practical difference between a test expressed in terms of ‘a significant possibility’ and a test expressed in terms of ‘a likelihood’, none has thus far been suggested; for it has been said that ‘likelihood’ is no more than ‘a substantial — a ‘real and not remote’ — chance regardless of whether it is less or more than 50 per cent’ ...[5]
This formulation of ‘a significant possibility’, adopted in R v Nguyen, reflects the approach taken by the High Court on a number of occasions when the issue of fresh evidence has arisen before that Court.[6]
[5]Ibid 400–1 (Kenny JA, Winneke P agreeing, Callaway JA agreeing) (citations omitted).
[6]Hague [2019] VSCA 218, [205]–[208]. See generally, Ratten v The Queen (1974) 131 CLR 510, 520 (Barwick CJ), 528 (Menzies J); Lawless v The Queen (1979) 142 CLR 659, 665 (Barwick CJ), 670–1 (Stephen J), 675, 677 (Mason J); Gallagher v The Queen (1986) 160 CLR 392, 396–7, 399 (Gibbs CJ), 402 (Mason and Deane JJ), 407–9 (Brennan J), 414–5, 421 (Dawson J); Mickelberg v The Queen (1989) 167 CLR 259, 273 (Mason CJ), 275 (Brennan J), 288–9 (Deane J), 301–2 (Toohey and Gaudron JJ); Rodi v Western Australia (2018) 92 ALJR 960, 965 [28].
New evidence
It will be recalled that ground 1 alleged in the alternative that the evidence sought to be adduced, if not ‘fresh’, is ‘new’. New evidence is evidence of a different quality to fresh evidence. It is evidence which could have been led at trial but was not. In Rich v The Queen,[7] this Court stated that ‘a higher bar applies to the admission of evidence which the accused could have called at the trial’.[8] The Court went on:
If admissible evidence persuades the court that there has been a miscarriage of justice because the appellant was innocent, or there is a reasonable doubt as to his or her guilt, it will quash the conviction and order entry of a verdict of acquittal or a new trial. That is the case whether the evidence is characterised as ‘fresh’ or only ‘new’.
If the court is not persuaded of either of those matters, but the evidence is ‘fresh’ and there is a significant possibility that the failure to receive it could result in the maintenance of an unfair conviction, the verdict will be set aside because there would be a miscarriage of justice if it were permitted to stand.[9]
[7](2014) 43 VR 558 (‘Rich’). See also Gentry (a pseudonym) v The Queen [2016] VSCA 54.
[8]Rich (2014) 43 VR 558, 571 [49].
[9]Ibid 571 [50]–[51] (citations omitted).
It follows that where admissible evidence not called at trial is ‘fresh’ evidence, a miscarriage of justice will be established if there is a significant possibility that the evidence, if believed, would have led a jury acting reasonably to acquit an applicant, had that evidence been adduced at trial.
Alternatively, where admissible evidence not led at trial is ‘new’ evidence (as explained above), a miscarriage of justice will have occurred if the evidence persuades the appellate court that the applicant is innocent, or that there is a reasonable doubt as to his or her guilt.
Analysis — Is there fresh evidence?
The Facebook evidence
Two deponents produced material said to have been recovered after the criminal trial from a Facebook archive. That person was ‘an ordinary Facebook user’, as described in the applicant’s written case. The applicant’s legal representatives were aware of the fact of Facebook messages between the complainant and AP by 6 April 2017 — nine months before the trial commenced, however, none were recovered pre-trial. We consider that the applicant has failed to establish that the material now produced could not have been obtained with the exercise of reasonable diligence pre-trial. At its highest, this evidence is new, rather than fresh. That means that the evidence must go further than merely establishing a ‘significant possibility’ of a different verdict if it is to be received on this appeal.
The evidence of Wayne Lacy
In an affidavit sworn on 30 October 2018, Mr Lacy deposed that the complainant’s mother stated that on some unspecified occasion, he (Mr Lacy) had ‘touched’ the complainant sexually. Mr Lacy said that this was totally untrue. Leaving issues of relevance and admissibility to one side for a moment, the applicant has failed to demonstrate that this evidence could not have been obtained with reasonable diligence prior to the trial. The applicant’s then instructing solicitor made a file note dated 26 September 2016 to this effect:
[Complainant] told Rhys[10] about Wayne. They had horses at Wayne & Kathy’s.
- Said that Wayne touching her up
- Told everyone at school
- Put a restraining order
Rhys got along with Wayne
Rhys thought it was crap
Rhys thought she was attention seeking
[10]Referring to Reece Chessells.
The applicant had 15 months to investigate the ‘Wayne Lacy’ allegations of false complaint. The applicant has failed to establish that this material, even if otherwise admissible, could not have been obtained with reasonable diligence well before the trial. It is, therefore, not fresh evidence. At its highest, it is new evidence, but that has its own drawbacks, so far as the applicant is concerned.
The evidence of Reece and Christie Chessells
In oral submissions, the applicant argued, in the alternative, that even if this evidence was not ‘fresh’ evidence, it met the test for ‘new’ evidence. We shall deal with this submission when we come to consider its cogency.
In any event, it is clear that none of the proposed evidence meets the test for fresh evidence.
Analysis — Is there new evidence?
The applicant contended, in the alternative, that both the Facebook evidence and the evidence of Mr Lacy ought to be admitted as new evidence, as too should the evidence of Reece and Christie Chessells.
As we have explained, the applicant will have established a substantial miscarriage of justice if he can demonstrate that the supposedly ‘new’ evidence persuades us that either he is innocent, or that there is a reasonable doubt as to his guilt. A consideration of this part of ground 1 requires us to set out in short compass the nature of the prosecution case at trial, how the defence was conducted, and how the new evidence is said to operate in the applicant’s favour.
The only direct evidence of the actual rape came from the complainant. Her evidence was clear and direct, and she was not shaken in cross-examination. The applicant’s account was also clear, both in his police interview[11] and at trial. He had never been to the ‘onion patch’ with the complainant, or anyone else, and there had been no sexual assault. That conflict in the respective accounts meant that any evidence which tended to support either version of the events could be of critical importance to the outcome of the trial.
[11]Conducted on 21 August 2013.
The DNA evidence (see paragraph 9 of these reasons) thus became central to the prosecution case. It was open to the jury to conclude that the DNA of both the applicant and the complainant was on one or more of the discarded McDonald’s items found at or near the scene. Should the jury have reached this conclusion, then it would have been near inevitable that they would have found that the complainant and applicant had, in fact, been present at the ‘onion patch’, contrary to the applicant’s case, and clearly supportive of the complainant’s evidence.
At no stage during the trial was any sensible hypothesis advanced by the defence to explain the DNA evidence. Counsel floated the idea of transference in cross-examination, and also flirted with suggestion that the evidence may have been ‘planted’ by the police, and in conjunction with the complainant. That suggestion, however, was never directly put to any of the prosecution witnesses.
In cross-examination of the complainant, she was asked about the days immediately after the alleged incident:
COUNSEL:You knew the fire was there, because you had returned to that scene?
COMPLAINANT: No. I just assumed that the fire would be there. ‘Cause I doubt anyone would've gone down there and removed it.
COUNSEL:‘I think the fire’s still there. It’s not, you know, going, but I reckon it’s still there.’ I suggest to you that either you returned to that scene. What do you say to that?
COMPLAINANT: I didn’t return there.
COUNSEL: Or you went with someone else?
COMPLAINANT: The only time I went back to that scene, was with Narelle.[12]
COUNSEL: Or you went with someone else?
COMPLAINANT: Nup.
COUNSEL: Or you asked someone to go for you?
COMPLAINANT: Nup. Like I said, the only time I went back after it happened, was with Narelle. And I’ve never been there before the incident happened either.
[12]A police officer.
Counsel did not return to this topic in her further cross-examination of the complainant. Nor, as we have said, did she put the suggestion of a ‘plant’ to any of the investigating police.
In her final address, counsel did no more than submit that the DNA evidence was, effectively, a distraction:
There’s DNA on the straw and it’s strong. The cup is there, but weak. Seventy-four compared to, what is it, a hundred billion, whatever it was. A very big difference. A hundred billion times more likely. No one’s denying that. Never denied that. Do we know how the DNA got on the straw? No. Do not know. Do we know how the DNA got on the cup? No. We went through transference yesterday. So what? Don’t know. Dr Goray[13] said that it’s possible to have a positive DNA result without making contact with an item. Is there evidence, any evidence of this? No. We just don’t know. Remember that she discussed primary and secondary transfer and she said that, you know, potentially, if something’s in the same bag, it’s small, I think the prosecutor addressed it’s small, it’s possible. Yes, it could happen, she said.
That’s the only thing that’s connecting him, but it really doesn’t prove anything. It doesn’t prove sexual penetration. It proves there’s DNA on a straw in that area. That’s all it shows. He doesn’t deny knowing her. He doesn’t deny having contact with her. Doesn’t deny having contact with her alone. Doesn’t deny going in the car with her. Doesn’t deny going to McDonald’s with her. I’m just speaking generally. He doesn’t deny lots of things. He denies having sex with her. He’s an honest witness. He’s a simple guy. He was nervous. He was nervous and wouldn’t you be? Wouldn’t you be nervous? Who can blame him? You’d be a wreck, an absolute wreck and he doesn’t, I should add also, he doesn’t deny also knowing her age. He said it in the record of interview. They pull him in a year - over a year later and he has to answer these things immediately. It’s not easy. It’s really hard and he did the best he could.
[13]A forensic scientist called by the prosecution.
The suggestion that the jury largely disregard the DNA evidence was highly optimistic.
The conspiracy theory advanced before this Court
Against this background, the applicant submitted that the proposed new evidence, in combination with the evidence adduced at trial, operated to establish either that police conspired with the complainant to plant false evidence at the scene, or that this was a reasonable possibility.
Counsel initially submitted that the Facebook post of 9 April 2012 by the complainant’s mother (the ‘Meagan Jones’ post) established that the applicant was in close company with the complainant at a rodeo on 8 August 2012. During the course of argument, counsel came to appreciate that his entire analysis of this point was based on a fundamental misconception. He had proceeded on the assumption that the particular Facebook post was dated 9 August 2012, that being within two days of the purchase date on the McDonald’s invoice. That, together what was said to be with the unlikely positioning of the partially burnt McDonald’s cup, adjacent to the detached lid and straw — all some metres distant from the remnants of the fire itself —meant that there was a strong suggestion that the McDonald’s material had been planted at the scene by police, who, therefore had been engaged in a criminal conspiracy with the complainant.
It was submitted that this theory gained strength, if it were accepted that the complainant had a habit of making false allegations of a sexual nature, as evidenced by her Facebook messages to AP on 20 August 2012.
This conspiracy theory is utterly devoid of any merit. As indicated, the Facebook post by the complainant’s mother (said to be new evidence) is dated 9 April, and not 9 August 2012. That post, therefore, establishes nothing; a point ultimately conceded in oral argument by the applicant’s counsel.
For the theory to work, the 15 year old complainant must have retained the McDonald’s rubbish after it was purchased on 7 August 2012 for some inexplicable future purpose. She must further have suspected that the cup, lid and straw would have had the applicant’s DNA on them. She must then have decided to use this discarded rubbish as putative support for her false account of rape, by arranging to have it found, at the scene, some five days or so after the alleged incident. Having done this, she supplied the material to police, who planted it at strategic locations near the ‘onion patch’. There is no evidence whatsoever to support this wildly Machiavellian thesis.
Further, the Facebook message of 20 August 2012 (also said to be new evidence) does not establish that the complainant made a false allegation on that date. It demonstrates no more than that she made an allegation of sexual misconduct against various boys whom she knew. Neither that message, nor any other evidence in this case, bears upon the truth or falsity of that allegation. We repeat, therefore, that the conspiracy theory is nonsense.
The Facebook evidence
We have set out the Facebook evidence sought to be introduced at paragraph 16 of these reasons. In our view, this evidence, either considered individually or in combination, does not get near to establishing the applicant’s innocence or that there is a reasonable doubt as to his guilt. In particular:
(e) The ‘Meagan Jones’ Facebook post of 9 April 2012 is irrelevant, as we have explained in paragraph 40 to 43 of these reasons.
(f) The ‘I’m a party girl. I’m 15 and young. Woop Woop’ post of 8 August 2012 is irrelevant.
(g) The ‘[c]learly, I wasn’t good enough’ post of 8 August 2012 is both obscure and irrelevant.
(h) The Facebook Messenger conversation of 20 August 2012, which is relied on by the applicant as demonstrating a propensity on the part of the complainant to make false complaints, does not do so. It does no more than demonstrate that the applicant made a complaint of having been sexually assaulted in early August 2012, some two weeks or so prior to 20 August of that year. There is no evidence that it was false. Even if the evidence were to be admitted at a new trial, it would lead nowhere.
We ought also to observe that had trial counsel introduced this Facebook material, she would have confronted the very real risk that the prosecution may have sought to introduce other Facebook material as part of its own case. This would have included various complaints made by the complainant to the applicant’s daughter (AP) about her father’s conduct, which would have been extremely damaging to the defence case.
The affidavit evidence
This proposed evidence is said to establish a propensity on the part of the complainant to make false complaints of a sexual nature.
Reece Chessells was the complainant’s boyfriend in 2012. He was then aged 14. In an affidavit sworn on 6 December 2018, he deposed that during 2012, he would meet the complainant, on occasion, at a prearranged place, late at night. He also stated that over the four years of his intermittent relationship with her, the complainant went out with other boys as well. We cannot see how this evidence, even if it were to be admitted, would bear materially upon any aspect of this case.
Christie Chessells made two affidavits in 2016 and 2018. In substance, she swore that at some stage prior to 2012, the complainant’s mother and stepfather told her that Wayne Lacy had ‘done something’ to their daughter. On another occasion, the complainant herself told Ms Chessells that her stepfather had been abusive towards her.
On 30 October 2018, Wayne Lacy deposed that the complainant’s mother had accused him of having touched the complainant sexually. He said that this was completely untrue.
Neither Ms Chessells’ two affidavits, nor that of Mr Lacy, establish that the complainant had a propensity for making false complaints of a sexual nature. Without more, there would be no basis for its admission into evidence in the rape trial.
Similarly, the complainant’s account of ‘abuse’ by her stepfather does not have any adequate basis for admission into evidence in any future rape trial. The complainant does not specify whether the ‘abuse’ was verbal, physical, psychological or sexual. In the absence of any adequate particularity, it cannot be said that this was even a complaint about ‘sexual abuse’, let alone a false complaint on the part of a young girl.[14]
[14]We note that in the solicitor’s file note of a conversation with Ms Chessells, Ms Chessells is recorded as describing the complainant saying her stepfather ‘hit’ her.
In short, there is nothing in the proposed ‘new’ evidence, whether considered alone or in combination, that even comes close to establishing the applicant’s innocence, or demonstrating that there is a reasonable doubt as to his guilt.
Ground 2 — Analysis
Insofar as ground 2 is concerned, the applicant relied on the exculpatory effect of the material considered under ground 1. The applicant’s contention was that even if the evidence addressed under ground 1 is not ‘fresh’, that is only because of the previous solicitor’s incompetence in failing to procure it. Accordingly, and by reason of that incompetence, it was said that the applicant had sustained a substantial miscarriage of justice.
In our view, for the reasons set out above, the material does not cast any doubt upon the jury’s verdict. It follows that ground 2 must fail. We should also observe that trial counsel and her then instructing solicitor were well justified in deciding not to rely on Reece and Christie Chessells. The solicitor’s file notes produced in counsel’s affidavit, filed before this Court, revealed that both were well disposed towards the applicant, and ill disposed towards the complainant. We note the argument put by the respondent in its amended written case that there was a substantial risk that these witnesses, if questioned about these matters, may have conveyed strong bias against the complainant, for a relatively modest forensic advantage to the applicant.
Grounds 1 and 2 —Conclusion
Leave to appeal on grounds 1 and 2 will be refused.
Ground 3A — Analysis
This ground complained of a ruling by the trial judge in which the prosecution was permitted to reopen its case in order to recall the complainant and her parents. It is necessary to provide some background to this issue, most of which can be extracted from his Honour’s ruling.
After the conclusion of the prosecution case, the applicant was called to give evidence. In his evidence-in-chief, he raised two matters which the trial judge — correctly, in our view — considered should have been put to prosecution witnesses. Both, his Honour considered, were critical matters:
(i) The applicant gave evidence that the complainant’s parents rang him and told him that the complainant would not be coming to his property any more. They said that they were removing their horse from the applicant’s property because the complainant had ‘been sneaking out and drinking alcohol with her friends.’ This was an issue in the trial because the complainant’s original account to her parents, as to being out late at night with some boys, was, broadly speaking, along the very lines.
(j) In his record of interview, the applicant denied ever having been to the McDonald’s in Echuca with the complainant. This, of course, was entirely contrary to the complainant’s account. As we have observed, the DNA evidence on the McDonald’s cup and straw was a critical issue in the trial because it provided support for the complainant’s account. It placed the applicant and her at the crime scene. Although the process of ‘transference’ of DNA had been briefly explored with Dr Goray, the point was never properly developed. In the applicant’s evidence-in-chief, he stated, unresponsively, that while he had never been to the Echuca McDonald’s with the complainant, they had been to the Cobram McDonald’s together. His Honour also noted that while the prospect of a police ‘plant’ of the McDonald’s evidence was not to form part of the defence final address, it was a matter that had been ‘floated’ in cross-examination.
It is not disputed that neither of these matters in (a) or (b) above had been the subject of questions put to the complainant’s parents (about her sneaking out of the house) or to the complainant herself (about having been to the Cobram McDonald’s).
At trial, the applicant’s counsel resisted the prosecutor’s application under
s 46(1)(b) of the Evidence Act 2008 to recall the complainant and her parents for further cross-examination. This application by the prosecutor was made at the conclusion of the applicant’s evidence-in-chief, but before cross-examination had commenced.
His Honour ruled as follows, with our corrections to the transcript of what he said included below:
In Shaw v The Queen,[15] Dixon, McTiernan, Webb and Kitto JJ in a joint judgment said inter alia at 380:
But the prosecution may not split its case on any issue. The Court poses a power to allow further evidence to be called, but it must be exercised according to rule and the rule is against reopening the Crown case unless the circumstances are most exceptional. We are not disposed to lay down the rule in terms adopted from Tindal CJ in R v Frost.[16] It is a matter of practice and procedure, and in such matters, even where the procedure is criminal and it is directed to safe guarding the position of the accused, there is less reason for closely following English authority than where the development of the substantive law is involved. It is, for example, difficult to apply the rule where the jury ask the recall of a witness or further proof or disproof of a fact. It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case, and before the prisoner is called upon for his defence.
[15](1952) 85 CLR 365.
[16](1839) 4 St Tr (NS), 386.
The trial judge continued:
In R v Chin[17] at 676, Gibbs CJ and Wilson J referred with approval to Shaw and also to Killick v The Queen[18] and Lawrence v The Queen[19] at 3. They said this:
The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant) … The principle would not prevent the prosecution from giving him reply evidence directed to an issue that proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind, and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief.
[17](1985) 157 CLR 671 (‘Chin’).
[18](1981) 147 CLR 565 (‘Killick’).
[19](1981) 38 ALR 1 (‘Lawrence’).
The trial judge further continued:
It can be seen that in the case of Chin, Gibbs CJ and Wilson J used the words, ‘ought reasonably to have been foreseen’. The words they used are very similar in my view to the words found in s 233(2) of the [Criminal Procedure Act 2009 (‘CPA’)], [where] Parliament has chosen the words, ‘could not reasonably have been foreseen’.
In my judgment, the prosecution could not have reasonably foreseen that the accused would give evidence in chief that he had been to Cobram McDonald’s with the complainant or that he had had a phone conversation with the complainant’s parents relating to retrieving the complainant’s horses. But the kind to which I have earlier referred or of the inference which might be drawn that the complainant, for want of a better way of putting it, planted the McDonald’s cup at the crime scene. These are critical issues in this trial and in a case which is otherwise the word of the complainant against the word of the accused man.
In my judgment, I would fall into error, were I not to allow the Crown to recall the complainant and her parents, for these matters to be put to them. Accordingly, for these reasons, I grant the leave sought by the prosecutor.
It is sufficient to observe that this ruling is unimpeachable. The prosecution could not have anticipated that the applicant, in his evidence-in-chief, would have raised issues of this kind. Nor could it have anticipated the ‘floated’ suggestion that the DNA-infused McDonald’s rubbish was, in fact, a ‘plant’, jointly orchestrated by police and the complainant, or orchestrated by the complainant alone.
Neither of these issues had been flagged in the defence response. The ‘plant’ issue (as we have earlier indicated) was merely ‘floated’ airily in cross-examination, before the applicant’s counsel swiftly retreated from it.
A judge is confronted with a choice when a situation of this kind arises. The judge can accede to this type of application, where it will not impact greatly on the smooth running of the trial, and otherwise conforms with the statute, and established authority.[20] Alternatively, the judge can give the jury a strong Browne v Dunn[21] direction, either in running, in the charge, or perhaps on both occasions. If the fairness of the trial cannot be cured by one or other of these courses, the judge may, as a last resort, have to discharge the jury.
[20]CPA s 233(2); Chin (1984) 85 CLR 157; Killick (1981) 147 CLR 565; Lawrence (1981) 38 ALR 1.
[21](1893) 6 R 67 (HL).
In our view, his Honour took the most sensible and just course. To allow the prosecution to reopen and call very brief evidence avoided the need for the blunt instrument of a Browne v Dunn direction.[22]
[22]The further evidence called by the prosecution, including cross-examination, occupied six pages of transcript. The cross-examination of the applicant then commenced.
Ground 3A — Conclusion
There is no merit in proposed ground 3A. Leave to appeal will, accordingly, be refused on this ground.
Overall conclusion
Leave to appeal against conviction is refused.
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