Bauer (a pseudonym) v The Queen
[2015] VSCA 55
•1 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0208
| DENNIS BAUER (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 and 7 October 2014 |
| DATE OF JUDGMENT: | 1 April 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 55 |
| JUDGMENT APPEALED FROM: | R v [Bauer] (Unreported, County Court of Victoria, Judge Gaynor; Conviction, 22 March 2013; Sentence, 15 August 2013) |
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CRIMINAL LAW – Appeal – Conviction – Refusal of permanent stay – Fair trial – Trial of alleged sexual offences – Delay – Alleged offending occurred up to 48 years ago – Child complainant – Whether trial unacceptably unfair – Whether substantial miscarriage of justice.
CRIMINAL LAW – Appeal – Leave to cross-examine complainant about prior sexual activities refused – Whether refusal of leave proper – No error in refusing leave – Criminal Procedure Act 2008, s 342.
CRIMINAL LAW – Appeal – Conviction – Tendency – Severance – Whether evidence of complainants cross-admissible – Whether indictment should have been severed – Some of the evidence not cross-admissible.
CRIMINAL LAW – Appeal – Conviction – Overloaded indictment – 37 charges – Dozens of uncharged acts – Whether substantial miscarriage of justice.
CRIMINAL LAW – Appeal – Sentence – Plea of guilty to two charges of indecent assault – Appellant 69 years old with no prior convictions – Teenaged complainant – Whether sentences of 10 months’ imprisonment on each charge manifestly excessive – Appeal allowed – Total effective sentence of 8 months’ imprisonment substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston | Doogue O’Brien George |
| For the Crown | Mr B F Kissane with Ms S A Flynn | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment prepared by Priest JA and Weinberg JA respectively. I agree with the orders proposed.
I respectfully agree with what their Honours have said about the unfairness of the trial resulting from the overloaded indictment. For the reasons their Honours have given, that alone would have warranted the setting aside of the convictions.
As to charges 1–6 and 36, I agree with their Honours, for the reasons they give, that those convictions should be set aside and verdicts of acquittal entered.
In relation to the prosecution’s reliance on what was said to be tendency evidence, I respectfully agree with Priest JA’s analysis of the inadequacy of the prosecutor’s articulation of that aspect of the case. As the decisions of this Court illustrate, the question of cross-admissibility of evidence as tendency evidence is one of some difficulty and both judge and jury are entitled to expect maximum assistance from the prosecution.
At the same time, as Priest JA has also pointed out, neither the judge nor the prosecutor had the assistance of the decision of this Court in Velkoski v The Queen,[2] which was handed down on 18 June 2014. In that case, the Court reviewed the substantial body of appellate jurisprudence on this question, and provided a clear restatement of the principles which should guide judges in deciding whether the evidence in question has
the degree of similarity in the commission of the offences or the circumstances which surround the commission of the offences that is necessary to support tendency reasoning.[3]
[2][2014] VSCA 121.
[3]Ibid [163].
I agree with Weinberg JA that it will be for the trial judge on a retrial to decide
the questions of cross-admissibility and severance. The judge should be assisted in that task by a properly drawn tendency notice and by prosecution submissions which clearly identify the similarities relied on to establish that the evidence has significant probative value, within the meaning of s 97(1)(b).[4]
[4]Rapson v The Queen [2014] VSCA 216.
WEINBERG JA:
I have had the advantage of reading in draft the reasons for judgment prepared by Priest JA. I agree with the orders that his Honour has proposed. I wish, however, to add some brief comments of my own.
The indictment brought against the applicant alleged some 37 separate offences against five different complainants. These offences were said to have been committed over a period of more than 32 years, between March 1966 and December 1998. They ranged in gravity from one carrying a maximum sentence of only 2 years’ imprisonment (charge 2) to one carrying a maximum sentence of 20 years’ imprisonment (charge 31).
As if an indictment containing so many charges was not already sufficiently troubling, the Crown relied upon a large number of uncharged acts (somewhere between 70 and 90 on my count, though it is difficult to be exact). To make matters even more complex, some of these uncharged acts were said to be admissible only as evidence of context, while a number of others were relied upon as evidence of tendency.
In effect, the jury were being asked to give separate consideration to something over 100 distinct acts of criminality spread out over many years. Moreover, they were being required to comply with judicial directions of an inordinately complicated nature regarding the legitimate use that could be made of these various allegations in terms of their cross-admissibility.
Perhaps surprisingly, in these circumstances, the trial itself only ran for a month or so. It resulted in convictions on 33 charges and acquittals on 4, 3 by direction.
In my opinion, even without the complicating feature of the vast array of uncharged acts, this was an overloaded indictment. The indictment should have been severed. That of itself would be sufficient to result in these convictions having to be quashed.
I have had occasion in the past to criticise the practice, seemingly prevalent in this State, of filing indictments, particularly in cases involving sexual offences, that are overloaded with an unnecessarily large number of counts.
No doubt there are legitimate reasons why, from a prosecution perspective, it is thought appropriate to cast as wide a net as the evidence might seem to support. Foremost among these may be a concern that, by reason of the principles enunciated by the High Court in R v De Simoni,[5] and later applied by this Court in R v Newman and Turnbull,[6] a failure to include each and every allegation of sexual offending, even those that are peripheral, and might be regarded as comparatively trivial, will preclude a sentencing judge from taking these matters into account as aggravating factors.
[5](1981) 147 CLR 383.
[6][1997] 1 VR 146.
There is, of course, a downside to all of this. Including more counts than are necessary results in longer and more complex trials, as well as risk of error, and the prospect of successful appeals.
In England, the Crown Prosecution Service has, sensibly, issued guidelines regarding the drafting of indictments which warn prosecutors against the practice of charging more offences than are strictly necessary. Those guidelines state that it will never be appropriate to include more counts than are necessary in order to encourage an accused to plead guilty to some lesser number. They also state that an indictment should never be overloaded with an unnecessarily large number of counts simply in order to bolster the overall chances of gaining a conviction against the accused.
For many years now, judges in England have made it clear that prosecutors should avoid including relatively trivial counts in indictments that add little to possible sentencing options, but in fact detract from the really serious nature of the case.[7] Indeed, they have exhorted prosecutors to display a little more common sense, in that regard, than is sometimes shown.
[7]R v Ambrose (1973) 57 Cr App R 538, 540 (Lawton LJ).
The Criminal Division of the English Court of Appeal, in R v Cohen[8] (commonly known as the ‘Blue Arrow case’), was highly critical of the prosecution for having overloaded the indictment, in a conspiracy trial, with what were described as ‘inessential particulars’. The trial lasted for just over a year. Lord Justice Mann, delivering the judgment of the Court, commented that the Crown bore a heavy responsibility not to overload an indictment. However, the trial judge had the ultimate responsibility of ensuring that the indictment was one on which a manageable trial was possible, and to achieve that end could use his or her power of severance. The problem presented by an overloaded indictment could be overcome only by a robust and early use of that power, always bearing in mind the limitations of a jury trial.
[8](Unreported, Court of Appeal (Criminal Division), 28 July 1992), cited in R v Wilson [1995] 1 VR 163, 174.
In more recent times, the then Lord Chief Justice, Lord Judge, provided a warning against including unnecessary counts in an indictment, and a helpful checklist for prosecutors. He said that the drafting of an indictment required close attention to:
·the realities of the case — and none at all to the theoretical legal possibilities which might arise;
·the criminality involved;
·the evidence to support the allegation;
·the avoidance of duplication; and
·the risk of unnecessary complication for both the jury and the judge.[9]
[9]R v N; R v D; R v L, The Times 11 May 2010.
Similar views have been expressed by judges in this country. Sometimes, it seems they fall on deaf ears.
In R v Smart,[10] the presentment in question contained some 63 counts of commercial fraud. Although these counts constituted a series of offences of the same or a similar character consistent with the presentment rules found in rule 2 of the Sixth Schedule to the Crimes Act 1958, the Full Court was highly critical of its overloaded nature. It was held that the trial judge had erred in refusing to exercise his discretion under s 372(3) of that Act to sever the presentment, since the issues and the evidence adduced at the trial were too complex to justify all the counts being tried together. There was a real danger that the jury did not have proper regard to the evidence legitimately admissible in respect of each count in reaching their verdict on that count.
[10][1983] 1 VR 265 (‘Smart’).
In R v Taylor,[11] a 76-count presentment alleging sexual offences involving children had been laid. Phillips CJ said:
The learned judge had protested the length of the second presentment before arraignment but to no avail. Having conducted what must have been an extensive analysis of both presentments, his Honour was prepared to proceed to arraignment but later referred to the preparation of this presentment as a ‘ridiculous exercise’ with the result that the proceeding had been unnecessarily complicated with a great increase in the risk of error. These criticisms were, in my opinion, entirely well founded. I do not know of a previous case in which this Court has been obliged to comment on such a presentment and it needs to be said, and said firmly, that this Court expects there will never be a repetition of such unhelpful pleading in criminal proceedings.[12]
[11](1992) 58 A Crim R 337 (‘Taylor’).
[12]Ibid 340-1.
Of course, the indictment in the present case contains ‘only’ 37 charges, as distinct from the twice that number to which the Chief Justice referred in Taylor. Nonetheless, in some respects, the indictment in this case was worse. As I have previously indicated, the inclusion of a vast number of uncharged acts, some of which went to context only, whereas others were said to be relevant as to tendency, made this jury’s task all but impossible.
Notwithstanding the criticisms levelled at overloaded indictments set out in Smart and Taylor, the prosecution felt justified in R v Appleby[13] in presenting an indictment containing some 94 counts of theft, and 1 count of obtaining a financial advantage by deception. It was held that the failure to sever the indictment resulted in a trial that had been oppressive, and which unfairly prejudiced the applicant, and which had resulted in a miscarriage of justice.
[13](1996) 88 A Crim R 456.
Self-evidently, there is no magic number beyond which the Crown cannot legitimately join multiple counts in an indictment. There may be cases where there is but a single issue, but which can only be prosecuted through the laying of numerous counts. To do otherwise would infringe the rule against duplicity. Equally obviously, an accused can always elect to plead guilty even to a vast number of counts, all contained in a single indictment.
Where the charges are contested, however, the position is quite different. A trial judge must be astute to ensure that the resulting trial can be conducted fairly, and in a way that enables the jury to understand the evidence, and the directions given.
I am, of course, conscious of the fact that s 194(2) of the Criminal Procedure Act 2009 provides that where two or more charges for sexual offences are joined in the same indictment it is presumed that those charges are to be tried together. Moreover, s 194(3) provides that that presumption is not rebutted merely because evidence on one charge is inadmissible on another charge.
Nonetheless, this Court, when dealing with the legislative precursor to that section, namely ss 372(3AA) and 372(3AB) of the Crimes Act 1958, made it clear that even in such cases, a presentment should always be severed where that is both desirable and practicable in order to ensure a fair trial.[14]
[14]R v TJB [1998] 4 VR 621, 630-31 (Callaway JA). See also R v KRA [1999] 2 VR 708, 716 (Winneke P); R v Papamitrou (2004) 7 VR 375, 388 (Winneke P); R v Buckley (2004) 10 VR 215, 226 [40] (Nettle JA). In R v Hakeem (2006) 163 A Crim R 549, Kellam J severed a presentment alleging 37 separate counts of violence and sexual offending involving 8 separate complainants. He did so notwithstanding s 373(3AA) of the Crimes Act 1958, and even in the face of some level of cross-admissibility.
It is to be hoped that prosecutors will, in future, give more careful consideration to whether it is really necessary when filing an indictment containing a charge, for example, of rape, to include as a separate charge within that indictment each and every separate but contemporaneous act of indecent assault, or gross indecency, that can be distilled from the complainant’s account. That practice which, in my experience, has become more prevalent in recent years, achieves nothing of any practical utility. It serves only to complicate unnecessarily the already difficult task of conducting a trial for sexual offences in this State.
In the same way, while it may be perfectly justifiable for the Crown to rely upon an uncharged act or acts (whether as going to context or as going to tendency or coincidence) the question may legitimately be posed whether it is really necessary to single out every uncharged act separately, and to seek to lead evidence of it.
I turn very briefly to deal with other matters.
In relation to Priest JA’s analysis of the basis for a permanent stay in relation to the first six charges on this indictment, I should say that, in my opinion, this is a most unusual case. Offences such as these that go back well over 40 years almost always give rise to concerns as to whether a fair trial can be had.[15]
[15]ADG v The Queen [2011] VSCA 430 (Maxwell P, Buchanan and Bongiorno JJA).
Of course, the remedy of a permanent stay is wholly exceptional, and should be invoked only in the circumstances identified by the High Court in Jago v District Court of NSW.[16] A permanent stay is a remedy of last resort and should be granted only where nothing can be done to overcome what was, in the past, described as the ‘presumptive prejudice’ to the accused associated with a delay of that order. This case, even accepting the extraordinary delay involved in bringing these charges, may be on the borderline in that respect.
[16](1989) 168 CLR 23.
On balance, however, I agree that the combination of factors to which Priest JA has referred justifies the somewhat unusual course which his Honour favours.
In particular, I am concerned that, as the law stands, the applicant faces the hurdle of having to confront a trial in which the credibility of each complainant is directly in issue, but the law requires the jury to be directed that such credibility is enhanced by virtue of something akin to what used to be called ‘recent complaint’. At the same time, the delay of more than 40 years in considering this matter has meant that the person to whom that complaint was ostensibly made cannot be asked about it. That strikes me as grossly unfair and, insofar as it suggests genuine enhancement of credibility, somewhat illogical.[17] Secondly, I would not discount entirely, when considering whether it would be an abuse of process to permit a particular charge to proceed after this length of time the relatively innocuous nature of that charge.
[17]R v FJL [2014] VSCA 57. The delay in that case was some 32 years and, on an interlocutory appeal, conditions were stipulated under which the trial could proceed. One such condition was that the notion of enhancement of credibility would not be pursued. The delay in the present case is, of course, substantially greater as regards the oldest of the charges, more than 40 years as compared with 32 years.
Finally, it is sufficient for me to say, in relation to the ground that relates to cross-admissibility as tendency evidence, that whereas there may well be such cross-admissibility in relation to a number of the charges, that is not so in relation to all of
them. Equally clearly, despite the prosecutor’s invitation to the jury to use some of the uncharged acts as tendency evidence, that was never properly open.
It will be for the trial judge, on the retrial of the charges included in the indictment (which I would expect to be significantly fewer in number than those originally laid), and confronted with properly drawn tendency notices, to work out questions of severance and cross-admissibility.
PRIEST JA:
Introduction
The present applications concern sexual offending perpetrated many years ago against the applicant’s sisters-in-law, natural daughter and foster-children. Some of the offending occurred as long ago as 48 years. The most recent offending was more than 16 years ago.
Principal among the questions raised in the application touching conviction are whether the judge at the applicant’s trial erred in refusing a permanent stay of the charges the applicant faced, and whether certain evidence was properly left as tendency evidence.
The applicant, the complainants and other interested parties
The applicant married JW on 19 December 1965.
JW has two younger sisters, GP and WC. The applicant and JW had four children, including KP. They also had a number of foster children, including half-sisters, TB and RC. Each of GP, WC, KP, TB and RC complained that they had been the victims of the applicant’s sexual predations.
There were two indictments. The charges on the first indictment (‘the trial indictment’) spanned a period from 23 March 1966 until 17 December 1998. After a
contested trial, the applicant was found guilty by a jury on 22 March 2013 of 33 charges of sexual offences relating to GP, WC, KP, TB and RC. The application for leave to appeal against conviction is concerned only with the trial indictment.
Following conviction at trial on the first indictment, the applicant pleaded guilty to two charges of indecent assault contained in the second indictment (‘the plea indictment’). The complainant was HL, who was the partner of TB; and the indictment related to a period between 1 October 2008 and 31 December 2009. The application for leave to appeal against sentence is concerned ostensibly with the sentences imposed on both the trial indictment and the plea indictment.
The applicant was born on 14 November 1945. He was aged between 20 and 21 years during the period alleged in the first charge;[18] and between 52 and 53 years of age during the period alleged in the final contested charge, charge 37.[19] He is now aged 69 years.
[18]Charges 1 to 4, which concerned GP, related to a period ‘between the 23rd day of March 1966 and 22nd of March 1967’.
[19]Charge 37, which concerned RC, related to a period ‘between the 15th day of December 1998 and the 17th day of December 1998’,
GP, the applicant’s sister-in-law, was born 23 March 1955. She was aged 11 years at the time of the offending alleged against her, which embraced a period from 23 March 1966 until 22 March 1967 (charges 1, 2, 3 and 4), and is now aged 60 years.
WC, the applicant’s sister-in-law, was born on 29 May 1958. She was aged between 12 and 14 years at the time of the offending against her, which covered a period from 1 December 1970 until 28 February 1973 (charges 5 and 6), and is now almost 57 years.
KP, the applicant’s natural daughter, was born on 26 July 1966. She was aged between 9 and 11 years during the offending against her, which was in the period between 1 January 1976 and 31 December 1977 (charges 7 and 8), and is now aged 48 years.
TB, the applicant’s foster-child, was born on 26 September 1984. She was aged 5 to 7 years at the time of the alleged offending, between 26 September 1989 and 31 December 1991 (charges 13 and 19), and is now aged 30 years.
RC, the applicant’s foster-child (and sister to TB), was born on 16 January 1983. She was aged between 4 and 15 years during the period of offending alleged in her case, from 1 January 1988 to 17 December 1998 (charges 9, 13, and 15 to 37 inclusive), and is now aged 32 years.
For convenience, relevant details of the applicant’s wife and the complainants are set out in the following table:
Name Relationship to applicant Date of birth Charges JW Wife — GP Sister-in-law 23 March 1955 1 to 4 WC Sister-in-law 29 May 1958 5 to 6 KP Natural daughter 26 July 1966 7 to 8 TB Foster child 26 September 1984 13 and 19 RC Foster child 16 January 1983 9, 15 to 18, 20 to 37 HL [Partner of TB] — [Plea Indictment] Charges, convictions and sentences
At trial, the applicant was found guilty of 33 of 37 charges relating to GP, WC, KP, TB and RC. The judge directed the jury to return verdicts of not guilty on three charges relating to RC — charge 10 (gross indecency), and charges 11 and 12 (sexual penetration of a child under 10) — and the jury acquitted the applicant on one charge relating to TB, charge 14 (indecent assault).
The charges on which the applicant was found guilty were:
· indecent assault, 17 charges (charges 1, 3 to 8,[20] 9, 13, 15 to 20, 22, and 30[21]);
[20]Crimes Act 1958, s 55(1).
[21]Crimes Act 1958, s 44(1). Section 44, indecent assault, was substituted by the Crimes (Sexual Offences) Act 1980, with effect from 1 March 1981.
· gross indecency, one charge (charge 2);
· sexual penetration of a child under 10, one charge (charge 31);
· sexual penetration of a child under 16, five charges (charges 25, 26, 28, 29 and 34);
· attempted sexual penetration of a child under 10, one charge (charge 21); and
· committing an indecent act with a child under 16, eight charges (charges 23, 24, 27, 32, 33 and 35 to 37).
The offences, and the dates of their alleged commission; the complainants and their ages; and the sentences imposed; are set out in the table following:
Charge Offence Complainant and age Date of offence Statutory maximum Sentence Cum’n (months) 1 Indecent Assault GP, 11 23/3/66–22/3/67 3 years 8 months 3 2 Gross Indecency GP, 11 23/3/66–22/3/67 2 years 8 months 3 3 Indecent Assault GP, 11 23/3/66–22/3/67 3 years 12 months 5 4 Indecent Assault GP, 11 23/3/66–22/3/67 3 years 12 months 5 5 Indecent Assault WC, 12–14 1/12/70– 28/2/73 5 years 12 months 5 6 Indecent Assault WC, 12–14 1/12/70– 28/2/73 5 years 12 months 5 7 Indecent Assault KP, 9–11 1/1/76– 31/12/77 5 years 12 months 5 8 Indecent Assault KP, 9–11 1/1/76– 31/12/77 5 years 14 months 6 9 Indecent Assault RC, 4–5 1/1/88–15/1/89 5 years 14 months 6 13 Indecent Assault TB, 5 26/9/89–25/9/90 5 years 6 months 2 15 Indecent Assault RC, 6–7 1/1/90–31/12/92 5 years 6 months 13 16 Indecent Assault RC, 7–9 16/1/90–31/12/92 5 years 8 months 3 17 Indecent Assault RC, 7–9 16/1/90–31/12/92 5 years 10 months 3 18 Indecent Assault RC, 7–9 16/1/90–31/12/92 5 years 10 months 3 19 Indecent Assault TB, 6–7 29/9/90–31/12/91 5 years 18 months 6 20 Indecent Assault RC, 7–9 1/1/91–31/12/92 5 years 8 months 2 21 Attempted sexual penetration, child under 10 RC, 7–9 1/1/91–31/12/92 10 years 18 months 6 22 Indecent Assault RC, 7–9 1/1/91–31/12/92 5 years 18 months 6 23 Indecent Act, child under 16 RC, 9 16/1/92–15/1/93 10 years 8 months 2 24 Indecent Act, child under 16 RC, 9–10 16/1/92–15/1/94 10 years 8 months 3 25 Sexual penetration, child under 10 RC, 9–10 16/1/92–15/1/94 10 years 18 months 6 26 Sexual penetration, child under 10 RC, 9–10 16/1/92–15/1/94 10 years 18 months 6 27 Indecent Act, child under 16 RC, 9–10 16/1/92–15/1/94 10 years 12 months 4 28 Sexual penetration, child under 10 RC, 9–10 16/1/92–15/1/94 10 years 18 months 6 29 Sexual penetration, child under 10 RC, 9–10 16/1/92–15/1/94 10 years 2 years Base 30 Indecent Assault RC, 8 16/1/91–15/1/92 5 years 20 months 8 31 Sexual penetration, child under 10 RC, 8 16/1/91–15/1/92 20 years 20 months 8 32 Indecent Act, child under 16 RC, 11 16/1/94–15/1/95 10 years 20 months 8 33 Indecent Act, child under 16 RC, 11 16/1/94–15/1/95 10 years 20 months 8 34 Sexual penetration, child under 16[22] RC, 13 16/1/96–15/1/97 15 years 12 months 8 35 Indecent Act, child under 16 RC, 13 16/1/96–15/1/97 10 years 4 months 1 36 Indecent Act, child under 16 RC, 13 15/12/98–17/12/98 10 years 8 months 2 37 Indecent Act, child under 16 RC, 15 15/12/98–17/12/98 10 years 6 months 1 Total effective sentence 14 years and 2 months’ imprisonment [22]The particulars of this charge alleged that RC was under the care, supervision or authority of the applicant.
On each of the charges of indecent assault on the plea indictment, the applicant was sentenced to be imprisoned for 10 months, five months of the sentence on each to be served cumulatively with each other and with the sentences on the first indictment. The total effective sentence for the two indictments was thus 15 years’ imprisonment, upon which the judge fixed a non-parole period of 12 years’ imprisonment.
Grounds of appeal
The applicant seeks leave to appeal against conviction on the following grounds:
1. The consequences of the delay since the alleged offending against four of the complainants [GP, WC, KP and RC] rendered the applicant’s trial unfair, thereby occasioning a substantial miscarriage of justice.
2. The trial judge erred in refusing the defence application to cross-examine complainant [RC] as to her sexual activities pursuant to s 342 of the Criminal Procedure Act 2009.
3. A substantial miscarriage of justice has been occasioned by the jury being permitted to engage in tendency reasoning as between the charges relating to complainants [GP, WC, KP, TB and/or RC].
4. The trial judge erred in failing to sever the indictment.
5. The conviction on charge
s9,36and 37 areis bad for latent ambiguity.[23]6. A combination of errors has resulted in a substantial miscarriage of justice.
[23]During the hearing of the application, the ground was amended as indicated.
With respect to sentence, the applicant seeks leave to appeal on two grounds:
1. The individual sentences, degree of cumulation and non-parole period are manifestly excessive.
2. The learned sentencing judge erred in punishing the applicant for uncharged acts.
The offending
Charges 1 to 4 — GP
Charges 1 to 4 involved the applicant’s sister-in-law, GP, aged 11 years. The offending alleged occurred in a period between 23 March 1966 and 22 March 1967, when GP came to stay with the applicant and his wife in country Victoria.
One evening during her stay, the applicant asked GP to come to the wood shed with him to get firewood. While they were in the shed, the applicant took his erect penis out of his pants, put it close to GP’s face and neck, and tried to put it near her mouth and push it in, asking her if she wanted to touch it. GP grabbed the wood and fled inside (charge 1, indecent assault).
Within days of the first events in the woodshed, the applicant again asked GP to help him collect wood from the shed. She at first refused, but accompanied the applicant when ordered by her older sister, JW, to do so. Once inside the shed, the applicant took out his penis and tried to approach GP, who picked up some firewood and ran inside (charge 2, gross indecency).
One night a few days later, GP awoke in her bedroom to find the applicant kneeling by her bed. His hands were under the blankets and her nightclothes, rubbing GP’s vagina (charge 3, indecent assault).
During the same visit, GP woke early one morning to find the applicant trying to get his hands inside her pants. She tried to push the applicant away but he managed to get his hands into her pants. He tried to push his fingers into her vagina, but GP jumped up and got out of bed (charge 4, indecent assault).
Charges 5 and 6 — WC
Charges 5 and 6 involved the complainant WC, a younger sister of the applicant’s wife and of GP. The offending against WC spanned the period from 1 December 1970 to 28 February 1973, when she was aged between 12 and 14 years.
The first relevant incident involving WC was in the nature of an uncharged act, which occurred in 1967 or 1968, when WC was about eight years old, and staying with the applicant and his wife. Following a bath, WC went into the lounge-room wearing only a towel. The applicant gestured to her to open the towel. She did so, and the applicant looked at her naked body.
During Christmas school holidays, when WC was about 12 years of age, she stayed with the applicant and his wife at their home in country Victoria. She shared a bedroom with two of the applicant’s daughters, who were then very young. WC awoke one night to find the applicant playing with her vagina under her underpants (charge 5, indecent assault). She screamed and the applicant’s wife came into the room. The applicant told his wife that WC had been having a nightmare.
In the same holiday period, WC was lying in bed awake. Hearing the applicant enter the room, WC pretended to be asleep. The applicant then touched her on the vagina under her nightclothes (charge 6, indecent assault). WC groaned and rolled over. The applicant’s two small daughters were also asleep in the same room.
The prosecution also relied on further uncharged acts relating to WC. She gave evidence that between the ages of 12 and 14 years, she stayed with the applicant and his wife most years during school holidays. She said the applicant touched her on the vagina between 10 and 12 times. He also often touched her on the breasts and bottom. On many occasions, the applicant put his hands on WC’s breasts over her clothes, while rubbing against her back. He also came into the bathroom through an adjoining toilet door on a few occasions when WC was showering so as to look at her naked in the shower.
Charges 7 and 8 — KP
Charges 7 and 8 related to the applicant’s daughter, KP, and occurred between 1 January 1976 and 31 December 1977, when KP was aged about 10 or 11 years.
WC gave evidence of an uncharged act relating to KP. She said that that she often saw the applicant touch KP’s chest, saying, ‘You’re growing boobies’, and tickling her chest.
During the relevant period, KP was asleep on the top bunk of a bedroom she shared with her two sisters. She was woken one morning by the applicant touching her on the vagina under her nightclothes, putting his finger between the lips of her vagina and then inserting it into her vagina (charge 7, indecent assault).
On another occasion, during an evening when the applicant’s wife was not at home, the applicant took KP to the marital bedroom, removed her underclothes and licked her on the vagina, placing his tongue into it (charge 8, indecent assault).
KP also gave evidence of other uncharged acts. She said that the applicant would walk into the bathroom while she was naked in the bath and would look at her.
Charges 13 and 19 — TB
Charges 13 and 19 related to the complainant, TB, who was one of the applicant’s foster children. When TB was an infant, she and her older sister, RC, came to live with the applicant and his wife.
When TB was four or five years old, between 26 September 1989 and 26 September 1990, she was in the habit of climbing into bed between the applicant and his wife after having a nightmare. On one occasion the applicant rubbed her vagina under her clothes and woke her (charge 13, indecent assault). TB then moved up on to the pillows, putting her head on the applicant’s pillow, and her bottom near JW’s pillow, and went back to sleep.
Between 26 September 1990 and 31 December 1991, when TB was five or six years old, she fell asleep one night on the lounge-room floor in front of the television. She woke next morning to find the applicant kneeling over her with his fingers in her vagina. He then removed them and went to the kitchen (charge 19, indecent assault).
Charges 9, 15 to 18, 20 to 37 — RC
Charges 9, 15 to 18, and 20 to 37 involved the complainant, RC, the older sister of TB. RC was fostered by the applicant and his wife when aged two years, after having been removed from her parents by the Department of Human Services. She lived with the applicant and his wife at their home in country Victoria. RC referred to the applicant and his wife as ‘Mum and Dad’.
Between 1 January 1988 and 15 January 1989, when RC was about five or six years of age, she had been with her family in a pool at the applicant’s home, but was sent inside for misbehaviour. She went into the lounge-room where the applicant was watching the cricket on television. She sat on the ground with her back against the lounge. The applicant then put on a pornographic video and sat on the ground next to her, rubbed her leg, put her hand on his penis under his shorts and had her masturbate him, while he at the same time put a finger in her vagina (charge 9, indecent assault).
Uncharged acts, relating to the playing of pornographic videos, were described by RC. She said that over a period of two years, whenever the applicant’s wife was out of the house, he would take her to the lounge-room, play pornographic videos and copy what was occurring on the video. The applicant would procure RC to masturbate and suck his penis, and he would lick and digitally penetrate her vagina.
Between 1 and 31 December 1990, TB was in the bath with the applicant, washing his back. When RC came into the bathroom, the applicant removed the wash cloth from his genitals and put RC’s hand on his penis (charge 15, indecent assault).
In the period between 16 January 1990 and 31 December 1992, when the applicant and RC were travelling in the family van being driven by JW, RC was told to sit in the back seat of the van because she and TB were misbehaving. The applicant got into the back seat with her, placed a blanket over both their laps and rubbed her vagina under her clothes (charge 16, indecent assault). On the same occasion, the applicant touched RC on the vagina under her clothes and rubbed her clitoris (charge 17, indecent assault). At some point, the applicant unzipped his pants, removed his penis and placed RC’s hand on it, moving her hand up and down (charge 18, indecent assault).
RC also gave evidence of an incident which occurred between 1 January 1991 and 31 December 1992, when she was nine years of age. She got into TB’s bed when TB was not there and woke to find the applicant kneeling next to the bed with his hand under the blankets, touching her vagina over her underclothes. On the same occasion, the applicant put his hand inside RC’s underwear and rubbed her vagina. The applicant then got into bed with RC under the covers and continued rubbing her vagina before inserting his finger into it (charge 20, indecent assault). The applicant then took off his clothes and rubbed his penis against RC’s vagina, asking if he could penetrate it. He was not able to do so because it hurt her (charge 21, attempted sexual penetration of a child under 10). The applicant continued rubbing his penis against her vagina until he ejaculated.
When RC was aged eight or nine, between 1 January 1991 and 31 December 1992, the applicant took RC to his bedroom and removed photographs from a wooden box which he then showed her. They were black and white photographs of men and women having sex. The applicant then undressed RC, made her lie on the bed and put her hand on his penis, which he held there with his own hand, rubbing it up and down until he ejaculated on to her stomach (charge 22, indecent assault). (Charges 30 and 31, which also relate to a period when RC was aged eight or nine years, are dealt with below.)
Between 16 January 1992 and 15 January 1993, when RC was aged about ten, she was at home in bed, sick with a fever. The applicant’s mother was also in the house. The applicant went into RC’s bedroom, telling her that his mother was there. He put his hands under the blanket and touched RC’s vagina under the bed clothes (charge 23, indecent act with a child under 16).
When RC was aged nine or ten years, between 16 January 1992 and 15 January 1994, the applicant had taken her to work. She fell asleep on the floor of a tractor he was driving. He touched her on the vagina over her clothes, keeping one hand on the steering wheel as he did so (charge 24, indecent act with a child under 16).
Between 16 January 1992 and 16 January 1994, when RC was nine or ten years old, she had come with the applicant to where he was working on a farm with his son and some other young men. After lunch the group separated, and RC was sitting in the passenger seat of the applicant’s truck, listening to music with the door open. The applicant approached RC and asked her for a ‘tickle’, which she refused. The applicant then turned her in the seat to face him and rubbed her vagina over her clothes. He put his hands under her clothes and inserted his finger into her vagina (charge 25, sexual penetration of a child under 16). The applicant then removed her underwear and licked her vagina, including her clitoris (charge 26, sexual penetration of a child under 16). He then put RC’s hand on his penis and moved it up and down (charge 27, indecent act with a child under 16). The applicant then inserted his finger into RC’s vagina (charge 28, sexual penetration with a child under 16), following which he asked her for a ‘headie’. He then inserted his penis into RC’s mouth until he ejaculated, telling RC to swallow the ejaculate (charge 29, sexual penetration with a child under 16).
In a period between 16 January 1991 and 16 January 1992, when RC was eight or nine years of age, she and the applicant were in his bed. RC lay on top of the applicant. He then licked RC’s vagina (charge 30, indecent assault). The applicant then made RC suck his penis while he licked her vagina (charge 31, sexual penetration with a child under 10). He asked her to suck his scrotum. After she did this, the applicant said that his wife never did this and that it was ‘magic’.
RC gave evidence of uncharged acts. She said that the applicant often used condoms during oral sex because she hated him ejaculating into her mouth. On many occasions he would let RC pick the condom he would use. In one incident, the applicant, wrapped in a towel, opened the towel to show RC that he had a blue condom on his erect penis. RC further gave evidence that the applicant often watched her in the bath through a hole in the door where the lock had been removed. She said that he once stuck his tongue through the hole in the bathroom door as she sat naked in the bath.
TB gave evidence that when she was six or seven years of age, she woke one night to get up and go to the toilet, having to walk through RC’s room to do so. She saw the applicant in bed with RC under the blankets, which were moving in ‘like a rubbing movement’ near RC’s vaginal area. The applicant yelled at TB to get back into bed. She did so and went back to sleep.
A further incident of sexual offending took place between 16 January 1994 and 15 January 1995, when RC was aged about eleven and a half years. She went to work with the applicant to his shed near the showgrounds of the town. RC was in the back of his panel van, which was parked inside the shed with its back doors open. The applicant touched RC’s leg, then took out his penis and had her masturbate it (charge 32, indecent act with a child under 16). He then then climbed into the back of the vehicle with RC, took off her underclothes and rubbed his penis against her vagina until he ejaculated on her stomach (charge 33, indecent act with a child under 16).
RC also gave evidence of further uncharged acts which occurred on an interstate holiday, when she was close to turning 12 years of age. She said that between December 1994 and January 1995, the applicant, his wife, TB and she visited Port Macquarie to stay with KP for about a week. During that stay, RC woke to find the applicant in her room, saying the others had gone out to play the ‘pokies’. He touched RC on her vagina, outside her pyjamas, then moved his hand under her pyjamas and inserted his finger into her vagina. The applicant then got into bed with her, removing their clothes. He suddenly rolled off onto the floor when TB came in. RC said that TB told her she had heard a man, and asked if RC was ‘having sex with Dad’. RC denied that she was, and TB left the room. The applicant got back into bed, touching RC’s breasts and vagina and forcing her to masturbate his penis. He got out of bed when a car containing the other adult members of the family pulled up outside.
When RC was 13 or 14 years of age, between 16 January 1996 and 16 January 1997, she had left the applicant’s home and was living in Melbourne. She returned on a visit to see her sister, TB, and was sleeping on a mattress on the floor in a spare room. While the applicant’s wife and TB were in the lounge-room, the applicant went into the room where RC was and touched her on the breasts and vagina over her clothes, telling her how much he loved and missed her and that she was growing up (charge 35, indecent act with a child under 16). The applicant then put his hands under her clothes and inserted his finger in her vagina, getting her to masturbate his penis as he did this (charge 34, sexual penetration of a child under 16, under care, supervision and authority). He then ejaculated. The applicant told RC that he would use the excuse that he was in her room looking for the family dog, so as to explain his presence.
Between 15 and 17 December 1998, RC was visiting the applicant’s home to see her sister. RC gave evidence that the applicant would grab her on the vagina and breasts over her clothes whenever he could. The first of these occasions was charged (charge 36, indecent act with a child under 16); the other occasions were uncharged acts. RC said that during this visit the applicant poked out his tongue at her, made sexual noises and indecently touched her over her clothes. On the second or third night of the same visit, when RC was sleeping in her sister’s bed, she was awoken by the applicant kissing her on the lips. He tried to grab her breasts over her clothes and touched her vagina and stomach over clothes (charge 37, indecent act with a child under 16). The applicant said he wanted to kiss her and feel her tongue, and that he wished he was her boyfriend. He was over RC on his hands and knees, but left the room when she said she did not want to do anything. The applicant then returned into the room, wearing only blue shorts, which he pulled down to show RC his erect penis. He said, ‘Look what you’ve done to me’. The applicant asked RC to touch his penis but she turned her back and put her face in the pillow.
Conviction ground 1 — Delay
Prior to the empanelment of the jury, counsel for the applicant made an application for a permanent stay of proceedings with respect to charges relating to the four complainants, GP, WC, KP and RC (but not TB). The basis of the application was the irremediable prejudice occasioned by the delay — which ranged from 15 to 47 years — in the matters coming to trial. The trial judge refused the application.In this Court, counsel for the applicant submitted that the ensuing trial was unfair, and that a substantial miscarriage of justice was occasioned.
For reasons that I will later set out, in my view there should have been a permanent stay of the charges involving GP (charges 1 to 4) and those involving WC (charges 5 and 6). Leave to appeal against conviction should be granted, and the appeal allowed, with respect to the convictions on those charges. Given that the Court is empowered only to order a retrial or verdict of acquittal,[24] a verdict of acquittal must be ordered on those charges. Since the judge ruled that evidence between various charges was cross-admissible as tendency evidence, the convictions with respect to the charges involving KP, TB and RC must also be set aside, and a retrial ordered.
[24]Criminal Procedure Act 2009, s 277(1).
Before turning to a consideration of the merits, it is necessary to set out the principles which guide the Court in determining whether to grant a permanent stay where there has been delay. They were recently canvassed in FJL,[25] and were again examined in Hermanus.[26]I venture to repeat some of what I said in Hermanus:[27]
[25]R v FJL [2014] VSCA 57 (Redlich and Osborn JJA, and Sifris AJA) (‘FJL’).
[26]Hermanus (a pseudonym) v The Queen [2015] VSCA 2 (Maxwell P and Priest JA) (‘Hermanus’).
[27]Ibid [39]–[41].
Authority establishes that a court should stay an indictment if, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of
process.[28] A permanent stay will only be granted in circumstances which are rare or exceptional.[29]
[28]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ). See also Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’); R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237; R v Edwards (2009) 255 ALR 399 (‘Edwards’).
[29]Williams v Spautz (1992) 174 CLR 509, 529; Jago.
As I have said, the trial judge derived guidance from FJL. The following propositions may, I think, be drawn from the judgment of Osborn JA (with whom Redlich JA and Sifris AJA agreed) and the cases there cited:
· First, the exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction. The primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the Court.[30]
[30] FJL, [17]. See also Jago, 61 (Deane J), 76 (Gaudron J).
· Secondly, in cases involving delay, to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. The accused must demonstrate that the delay is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.[31]
[31]FJL, [18]. See also Jago, 33-4 (Mason CJ); TS v R [2014] NSWCCA 174, [1] (Leeming JA), [61]–[64] (Bellew J).
· Thirdly, circumstances that the court should consider in determining an application for a stay include, the length of the delay; reasons given by the prosecution to explain or justify the delay; the accused’s responsibility for and past attitude to the delay; proven or likely prejudice to the accused; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.[32] The critical factors are on the one hand the proven or likely prejudice to the accused, and on the other, the public interest in the prosecution and conviction of the guilty.[33]
[32]FJL, [19]. See also Jago, 61 (Deane J).
[33]FJL, [21].
· Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness — rather than the possibility — that is critical.[34]
[34]FJL, [22]. See also Edwards, 403 [23].
· Fifthly, a trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been lost or destroyed, or witnesses have died, so that the jury will be called upon to determine issues of fact on less than all of the relevant material which might bear upon the issues thrown up for determination.[35]
[35]FJL, [23]. See also Edwards, 405 [31].
· Sixthly, the trial judge may avoid obstacles to a fair trial by evidentiary rulings — including by the exclusion of evidence which is technically admissible, but which might operate unfairly against the accused — and by directions to the jury designed to counteract any prejudice that the accused might otherwise suffer.[36]
[36]FJL, [25]–[26]. See also Jago, 47 (Brennan J), 77-8 (Gaudron J).
Recently, in CT,[37] the Supreme Court of New Zealand — having reviewed the approaches taken in New Zealand, England and Wales, Canada and Australia — summarised the principles to be applied in determining applications for the stay of criminal proceedings based on delay, several of which complement the propositions which may be drawn from FJL:
(a) Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial.
(b) The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime.
(c) A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial judge must take to mitigate the risk of prejudice, there cannot be a fair trial.
(d) The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay.
(e) Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant’s physical or mental health (with consequent impact on ability to mount a defence), indeterminacy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case.
(f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay.
(g) Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be.
[37]CT v The Queen [2014] NZSC 155, [32] (Elias CJ, McGrath and William Young JJ). See also [59] (Glazebrook and Arnold JJ).
Later, I observed:[38]
[38]Hermanus, [42]–[44].
There will always be difficulties for an accused person in mounting an effective defence after a delay of the order in this case. A number of the difficulties that will inevitably be encountered were identified by Nicholson J in Jacobi[39] (a case where the delay was between 25 and 36 years):
[39]R v Jacobi (2012) 114 SASR 227, 253 [104]–[105]. See CT v The Queen [2014] NZSC 155, [13] (Elias CJ, McGrath and William Young JJ). See also Penney Lewis, A comparative examination of forensic disadvantage directions in delayed prosecutions of childhood sexual abuse, (2005) 29 Crim LJ 281, 281–2.
The appellant will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving quite young children. These problems include:
·the reliability or the accuracy of a complainant’s recollections about which evidence is given so many years after the events;
·the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child’s contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
·the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and
·the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.
These problems confront any accused person who wishes to defend historical child sex allegations and are inevitable where there is significant delay in the bringing of a prosecution. …
I sympathise with the notion that any trial relating to alleged events that are decades old inevitably will be attended by a degree of unfairness and prejudice to the accused. Indeed, nobody experienced in trials involving allegations of ‘historical’ sexual offences could fail to sympathise with that view.[40] Since events and circumstances contemporaneous to the events the subject of charges are usually incapable of any meaningful investigation, more often than not the accused is driven to a bald denial of misconduct, without the ability to present independent evidence contradicting or casting doubt on a complainant’s account. The opportunity to present an alibi is, in my experience, virtually non-existent. Moreover, with respect to those who hold a different view, I doubt the capacity of the average juror to readily comprehend the true extent of the unreliability and inaccuracy of memory where there has been the intervention of many years between the alleged events and their recounting.[41]
The law contemplates, however, that even in cases of very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage. So much underpinned the High Court’s reasoning in Longman;[42] and so much must underpin the Legislature’s provision for forensic disadvantage warnings, as provided for in s 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008.[43]
[40]See Longman v The Queen (1989) 168 CLR 79 (‘Longman’), 91 (Brennan, Dawson and Toohey JJ). Cf Annie Cossins, Time Out for Longman: Myths, Science and the Common Law, (2010) 34 MULR 69.
[41]See Longman, 107–8 (McHugh J). See also John Rowan QC, Old Allegations of Sexual Abuse, [2006] NZLJ 302.
[42]Above n 40.
[43]An examination of the two sections, and the reasons for their enactment, may be found in Greensill v The Queen (2012) 37 VR 257, 265–71 [38]–[53].
In cases of very long delay, the fairness of a trial will almost invariably be compromised at least to some degree. And it cannot be doubted that, to an extent, the fairness of the applicant’s trial was compromised. The central issue to be determined is whether his trial was rendered unacceptably unfair. In my view it was.
The charges involving GP
I have earlier set out the circumstances of the charges involving GP (charges 1 to 4).[44] GP is the applicant’s sister-in-law, and at the relevant time — between 23 March 1966 and 22 March 1967 — was aged 11 years. At the risk of repetition, the offending allegedly occurred when GP came to stay with the applicant and his wife in country Victoria. Charge 1, indecent assault, related to an event in the wood shed, when the applicant took his erect penis out of his pants and put it close to GP’s face. The activity founding charge 2, gross indecency, also occurred in the wood shed, when the applicant exposed his penis to GP. Charge 3, indecent assault, was based on the applicant having rubbed GP’s vagina whilst she was in bed. And charge 4, indecent assault, also related to a time when GP was in bed, and consisted of the applicant trying to push his fingers into her vagina.
[44]At [57] et seq.
Counsel submitted that GP was permitted to give evidence at trial that she had complained to her mother about the applicant’s conduct. The prosecution had sought to rely on her ‘complaint’ to her mother as going both to credit, and as a previous representation pursuant to s 66 of the Evidence Act 2008. Although the prosecution was not permitted to rely on s 66, the evidence was received as going to GP’s credit despite her mother having died in the meantime. The trial judge directed the jury that, notwithstanding her mother was deceased, they could use the supposed ‘complaint’ to GP’s mother as bolstering her credit (although, as part of a ‘forensic disadvantage’ direction the judge did point out that GP’s mother was deceased, and thus the evidence of GP’s account and the surrounding circumstances could not be tested).
It was also submitted that there was no evidence regarding the layout of the applicant’s house, preventing his counsel from testing GP’s evidence regarding the surrounding circumstances of the alleged offending. Importantly, GP made a statement in 1994, alleging sexual misconduct by the applicant, but no charges were laid. In the meantime, GP’s statement had been lost, depriving the applicant of the detail of the allegations. Given that the police had declined to lay charges, it could be inferred that this result flowed from what was revealed (or, perhaps, not revealed) in her account. Without GP’s statement, the applicant is unable to explore any weaknesses in GP’s account to police in 1994, which led them to take no action. Counsel also relied on substantial changes in the law since 1967, including the legislative abolition of the need for corroboration;[45] the abolition of unsworn statements;[46] and the abolition of Longman warnings.[47]
[45]See s 62(3) of the Crimes Act 1958, as substituted by the Crimes (Sexual Offences) Act 1980, s 5.
[46]See Evidence (Unsworn Evidence) Act 1993, s 3.
[47]See Crimes Act 1958, s 61; Evidence Act 2008, s 165B; and Greensill v The Queen (2012) 37 VR 257, 263-71 [27]-[57].
The complaint to police, leading to the current charges, was made in October 2010, some 44 years after the alleged offending; and the trial, in March 2013, took place 46 or 47 years after the events. A delay of such magnitude, even in case of ‘historical’ sexual offences (often so-called) is exceptional. It cannot be gainsaid that the memories of those involved will have been adversely affected by the very great delay, for which the applicant bore no responsibility. Indeed, it cannot be doubted that the reliability of GP’s recollection must have been deleteriously affected, but that her recounting as an adult of events in childhood — with all of the possibilities of ‘reconstruction and re-interpretation’ that this entails[48] — would have given her evidence a different complexion than it would have possessed if given contemporaneously to critical events. Moreover, the applicant was deprived of the possible opportunity of producing evidence as to time, place and circumstance, which may have cast doubt on GP’s version of events. Further, the loss of the statement made in 1994, and the further delay since 1994 in prosecuting the applicant, are further matters which have caused prejudice to the applicant.
[48]See [95] above.
Were these the only matters — and by the use of the adjective ‘only’ I do not mean to diminish their importance — I might have felt constrained by authority to conclude that a permanent stay was not warranted on charges 1 to 4. But they are not the only factors bearing on the issue.
There is, the cases recognise, a public interest in the disposition of charges for serious offences. And at one level, any charge relating to sexual misconduct with a child must be regarded as serious. As such cases go, however, the conduct comprising charges 1 to 4 — particularly charges 1 and 2 — falls some way short of being at the more serious end of the spectrum of cases involving sexual offending against children. Indeed, the members of this Court have not previously encountered a case where an offence of the type alleged in charge 2 — little more than indecent exposure — has been prosecuted after nearly half a century. Almost certainly, had charges 1 and 2 been prosecuted in 1967, they would not have resulted in a custodial sentence if found proven. Hence one is left to doubt that the public interest required their prosecution. Indeed, as counsel for the respondent made clear in the course of oral argument, ‘without the supporting evidence that came from the other charges … it would have been a completely different situation and would have been a completely different exercise in determining whether to proceed or not’. Thus, a factor motivating the prosecution of the very old and relatively minor offences making up charges 1 and 2, and to a lesser extent charges 3 and 4, was the perceived availability of supporting tendency evidence related to conduct embraced by other charges.
Of course, when assessing whether the charges ought to have been permanently stayed, the issue for this Court is whether the trial of those charges was so unacceptably unfair as to lead to the conclusion that there has been a substantial miscarriage of justice, not the reasons underpinning the decision to prosecute.[49] To some extent, however, one might gauge the perceived seriousness of the charges, and therefore any public interest in prosecuting such ancient allegations, by the fact that they would not have been the subject of prosecution absent a resort to tendency evidence.
[49]On the assumption that the decision to prosecute was not prompted by an improper purpose: Williams v Spautz (1992) 174 CLR 509.
Moreover, one matter which assumes a deal of significance in determining the issue is the loss of the opportunity to test the ‘complaint’ allegedly made to GP’s mother, who is now deceased. It will be remembered that the judge directed the jury that they could use GP’s complaint to her mother — despite her mother giving no evidence of it — to support GP’s credit. Counsel and the judge seem to have assumed — probably in light of this Court’s decisions in J (No 2)[50] and GAE[51] — that such evidence of ‘complaint’ was admissible despite the recipient of the complaint not being called to give evidence. With respect, I have grave doubts as to whether J (No2) and GAE were, on that aspect, correctly decided. In my view, the reasoning of the Privy Council in White,[52] and the New Zealand Court of Appeal in Kincaid,[53] which holds that evidence by the alleged victim of having made a recent complaint is not admissible unless there is independent confirmation of what he or she said, is to be preferred.[54] But even were I of the view that such evidence was theoretically admissible, nonetheless the loss of the opportunity of adequately testing the circumstances surrounding the supposed complaint adds a further dimension to the prejudice already flowing to the applicant through the effluxion of time. That is particularly so when, as I have said, the jury were invited to use the complaint as supporting GP’s evidence; and, in turn, were permitted to use GP’s evidence in support of other charges.
[50]R v J (No 2) [1998] 3 VR 602, 619–20 (Winneke P and Charles JA) (‘J (No 2)’).
[51]R v GAE (2000) 1 VR 198, 228–9 [94]–[96] (Chernov JA) (‘GAE’).
[52]White v The Queen [1999] 1 AC 210, 215-6 (‘White’).
[53]R v Kincaid [1991] 2 NZLR 1, 9 (Somers, Casey and Williamson JJ) (‘Kincaid’).
[54]In HMLv The Queen (2008) 235 CLR 334, 433 [295] (n 313), Heydon J noted that there was an existing controversy as to whether it was possible at common law to prove a complaint through the evidence of the complainant alone, that controversy arising from the approaches taken in J (No 2) and GAE on the one hand, and White and Kincaid on the other. In the circumstances of that case, however, his Honour thought it unnecessary to resolve the controversy.
With respect to the application for a permanent stay of the charges involving GP, the judge ruled:
The delay, although lengthy, is not unknown in cases of this kind and has not resulted in the loss of important witnesses. The accused’s wife, apparently at the home at the time of the alleged abuse, is still alive. The death of GP’s mother means only that complaint evidence must be limited to matters of credit, which is conceded by the prosecution. The destruction of GP’s 1994 police statement, although unfortunate, does not, in my view, cause an irremediable defect in the trial. In my view, the forensic and recall directions as to difficulties arising from delay can adequately address this problem and the application is refused.
As will be clear from what I have already said, I disagree with the judge’s conclusion, and the reasoning which underpins it. In particular, I am not sure that I understand the purport of her Honour’s statement that ‘[t]he death of GP’s mother means only that complaint evidence must be limited to matters of credit’. I would have thought that, properly analysed, the trial judge would have had to have acknowledged that the complaint evidence was left intact in the hands of the prosecution as a bolster to the complainant’s credit, while at the same time the applicant suffered the prejudice of not being able adequately to test that evidence.
For the foregoing reasons, I am of the view that the judge erred in refusing a permanent stay of charges 1 to 4. For the reasons I have discussed, the trial was unacceptably unfair. A substantial miscarriage of justice was occasioned, and the convictions on charges 1 to 4 cannot stand. That raises for consideration the fate of the other convictions.
In that regard, I note that the judge left various categories of evidence to the jury as supposed tendency evidence. One of those categories was that the applicant ‘had a tendency to sexually assault young female member (sic.) of his extended family in circumstances where others were nearby and/or had a particular state of mind which was to be sexually attracted to young female members of his extended family upon which he was prepared to act in that way’. Specifically, under the umbrella of this category, the judge left the ‘tendency’ evidence flowing from charges 1 to 4 in support of charges 5 and 6 (WC); 7 and 8 (KP); 9, 10, 15, 16, 17, 18, 20, 21, 23, 34, 35 and 36 (RC); and charges 13, 14 and 19 (TB). Thus, quite apart from any question of whether the conduct on charges 1 to 4 could properly be regarded as tendency evidence, it is inevitable that the convictions on those charges must fall with the convictions on charges 1 to 4.
The charges involving WC
The judge ruled on the application for a permanent stay with respect to the charges involving WC and KP together. She said:
WC and KP can be conveniently dealt with together. The delays in these matters, although lengthy, are again not unknown in cases of this kind and the accused’s wife is available to defence. Her statement and committal evidence indicate she was unaware of anything untoward happening in her home at the time, which is helpful to defence.
WC’s medication may have the tendency to cause forgetfulness, but her statement and committal evidence do not, in my view, demonstrate a particular difficulty of recall, such that she should be regarded as an inherently reliable witness. Insofar as KP is concerned, whilst she admits some difficulties with memory, they are not of such a quality, in my view, that they cannot be cured, as can the difficulties said to exist in relation to WC by the appropriate judicial warning. And the applications in relation to both WC and KP are refused.
Counsel for the applicant submitted that the offending against WC, charges 5 and 6, was alleged to have occurred ‘between the 1st day of December 1970 and the 28th day of February 1973’ (with uncharged acts said to have commenced in 1967). WC first complained to the police in November 2010, some 40 to 43 years after the charged events. The trial took place between 42 and 45 years after the charged conduct.
It was submitted that WC’s evidence was inherently unreliable. Quite apart from the fact that any witness would have significant difficulty in recalling events from so long ago, WC was labouring under other particular difficulties. The trial judge had before her WC’s statement and committal depositions. At committal, WC produced to the court a letter from a doctor treating her for breast cancer. The evidence disclosed that WC was using a medication, ‘Arimidix’, which caused ‘some memory loss’. When asked by the prosecutor whether she felt that she had any memory loss, WC thought that she did. In cross-examination, she was unable to say ‘how badly it will be affected’ by the medication. Remarkably, WC also asserted that she had ‘repressed memories’. I note, however, that when cross-examined at trial she claimed to have no difficulty with her long-term memories.
In my opinion, the very great delay, coupled with the evidence bearing objectively on WC’s memory loss, should have led to charges 5 and 6 being permanently stayed. Although, as I have said, any sexual offending against children must be viewed with revulsion, the conduct alleged was, comparatively speaking, not at the high end of seriousness. The public interest, in my view, did not demand prosecution of the charges after such a long period, and, had it not been for the availability of supposed tendency evidence, one is left to doubt that their prosecution would have been pursued.
It will be remembered that WC was a younger sister of the applicant’s wife (and of GP). In the charged period she was aged between 12 and 14 years. There was also evidence of an uncharged act in 1967 or 1968, when WC was about eight years old, when, following a bath, the applicant looked at her naked body. Both charge 5 and charge 6 related to incidents when WC was in bed and the applicant touched her vagina under her underpants or nightclothes.
I should add that I have read WC’s evidence at trial. It is plain that, as cross-examination brought out, WC had difficulty accurately recounting details such as the layout of the house where the offending occurred, but in effect asserted that overall her long-term memory was sound. There is a temptation to reason backwards, that, because no specific defect in her memory on a significant matter could be detected in her evidence at trial, justice did not miscarry as a result of the failure to order a permanent stay. In my view, however, when the various factors for and against a stay are weighed properly in the balance, a stay should have been granted. The convictions on charges 5 and 6 should be set aside.
I note that the evidence on charges 5 and 6 was left as tendency evidence, under various categories, to support charges 1, 2, 3, 4, 7, 8, 9, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 23, 30, 34, 36 and 37. The convictions on those charges thus must also be set aside.
The charges involving KP, TB and RC
Although the charges relating to KP, charges 7 and 8, are very old, they involve conduct of such objective seriousness that, absent the applicant’s ability to point to any specific prejudice beyond delay, the public interest favoured their prosecution. The same might be said of the charges involving TB[55] (particularly charge 19), and those involving RC. In my opinion, the judge did not err in failing to stay the charges relating to RC.
[55]Although a permanent stay was not sought in relation to the charges involving TB.
The relevance of legislative changes to the law
Finally, as I earlier observed, counsel for the applicant placed great reliance on legislative changes to submit that a permanent stay was called for. But as I have said, the law contemplates that in cases of very long delay, in some circumstances it remains possible for there to be a trial which is not unacceptably unfair, despite there being some unfairness, prejudice or forensic disadvantage. This notion must underpin Longman; and must also underpin the statutory provision for forensic disadvantage warnings, found in s 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008.[56]
[56]Hermanus, [44]. See also Greensill v The Queen (2012) 37 VR 257, 265–71 [38]–[53].
Conviction ground 2 — Refusal of leave to cross-examine RC
Charges 9, 15 to 18, and 20 to 37, concerned offending against RC. She was aged four to five years during the period embraced by charge 9, and was aged 15 years at the time of charges 36 and 37. Much of the offending against RC was of the utmost seriousness, and included an attempt by the applicant to penetrate her vagina with his penis when she was aged between seven and nine years; digital penetration of her vagina; and cunnilingus and fellatio.
Defence counsel at trial made application pursuant to s 342 of the Criminal Procedure Act 2009 (‘CPA’) to cross-examine RC about —
· first, complaints that she had made in 1986 and 1992 to the applicant’s wife, JW, and to the Department of Human Services (‘DHS’), to the effect that her step-father, ‘GS’, had sexually abused her;
· secondly, RC having told a DHS worker in 1997 that she did not remember any abuse by GS having occurred; and
· thirdly, the fact that RC had applied to the Victims of Crime Assistance Tribunal (‘VOCAT’) in 2011 for compensation, claiming abuse both by GS (notwithstanding her disclaimer in 1997) and the applicant.
The trial judge refused the application. She did not deliver a formal ruling — which would have been desirable — but I think it is fair to say that her Honour was of the view that the material did not possess the ‘necessary degree of relevance’ so as to permit cross-examination on it.
By virtue of s 349 of the CPA, the trial judge was required to refuse leave under s 342 to cross-examine RC about her ‘sexual activities’ unless ‘satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence’, having regard to several enumerated considerations.
At trial, RC was cross-examined about the fact that she was convicted in 2008 of making a false report to police in 2007 to the effect that her partner had stabbed her. Thus, so it was argued, the ‘potential’ that RC had made another false report about GS in 1986 (concerning sexual offending shortly prior to the commencement of the applicant’s alleged offending against her), and to repeat that complaint in 1992 when aged nine years, ‘assumed greater significance’.
In my view, neither did any of the three matters relied upon have substantial relevance to a fact in issue, nor was it in the interests of justice to permit the proposed cross-examination. There was, so it seems to me, no evidence that properly could support the proposition that RC’s complaints against GS in 1986 and 1992 were false. Further, it does not strike me as remarkable that RC — who was aged three when the first complaint was made against GS — might not recall the alleged abuse in 1997. I see no relevance to a fact in issue in either topic.
Moreover, as the judge remarked during discussion, RC did not ‘wax eloquent’ about her supposed abuse by GS in her application to VOCAT. By that observation, the trial judge probably meant that the allegation against GS was not central to RC’s application for compensation, but that the allegations against the applicant were so. This proposed topic of cross-examination was of such marginal relevance that the judge was correct to refuse leave with respect to it.
For the sake of completeness, I note that counsel for the applicant also sought to submit that cross-examination on the complaints to JW had relevance on the basis that, in effect, JW had ‘acted very responsibly’ when told of the allegations against GS; yet, despite RC claiming that JW knew of the applicant’s abuse of her, JW did nothing about that abuse. As I apprehend the argument, it was submitted that, since JW acted responsibly with respect to the complaint against GS, she would also have acted responsibly were there any truth in the assertion by RC that JW knew of the applicant’s abuse of her. The fact that JW took no action is evidence that RC’s assertion that JW knew of the applicant’s abuse, and this bore on RC’s credit. One need only state the argument to see that it is without substance. I need say no more about it.
Ground 2 cannot be upheld.
Conviction ground 3 and 4 — Tendency evidence and failure to sever the indictment
The indictment was overloaded
Much of the difficulty attending this case flowed from the melancholy fact that that the Director of Public Prosecutions sought to proceed on a single indictment containing 37 charges, and relied also on dozens of uncharged acts. In my view, it is apt to describe the indictment as overloaded. The overloading of an indictment by the inclusion of so many charges, particularly where it is sought to rely on cross-admissibility, is oppressive to an accused person, and is calculated to promote the prospect of error. The task of conducting a defect free trial is, at the least, made difficult for a trial judge, and, at the worst, close to impossible. Indeed, the inclusion of so many charges, relating to five separate complainants, coupled with the prosecution’s reliance on tendency evidence as between the complainants, made the task of judge, jury and defence, in this case very difficult. More consideration should have been given to the drafting of an appropriate indictment (or indictments) and to the question of notional severance of the allegations of the various complainants.
In Andrew,[57] Weinberg JA discussed the vices attendant on overloaded indictments. His Honour said:[58]
[57]Andrew v The Queen [2013] VSCA 333 (‘Andrew’).
[58]Ibid [50]–[52].
… The effect of an overloaded indictment is to make the jury’s task more difficult than it need be, to lengthen jury directions, to render the task of sentencing extraordinarily complicated, and to thereby increase the risk of error.
The prosecution’s reliance on tendency evidence
Strictly speaking, resolution of the admissibility of the purported evidence of tendency should be antecedent to a consideration of its use. That said, prior to a consideration of its admissibility and the issue of severance, in my view it is convenient to examine the way in which the purported tendency evidence was relied upon by the prosecution, and the manner in which the judge ultimately left the evidence to the jury.
As will become clear, in her Charge the judge repeatedly directed the jury that the prosecution alleged that particular evidence demonstrated a ‘tendency’ to act in a particular way or showed a ‘pattern of behaviour’. And as will also become clear, the judge divided the tendency evidence into five ‘categories’, asserting that each ‘category’ of the five was ‘alleged by the prosecution’. It should be recognised, however, that the prosecutor addressed none of the five categories in his final address to the jury; and, indeed, as far as I can see, put no arguments about tendency reasoning or patterns of behaviour. Importantly, when opening the prosecution’s case to the jury, the prosecutor did not refer to any of the five categories of tendency evidence which the judge later identified.
As part of his opening, the prosecutor told the jury:[84]
All the complainants independently allege similar sexual assaults were committed by the accused man over many years. It is the prosecution case that the evidence shows that the accused had a tendency to commit sexual assaults and was attracted to young female family members, and Her Honour will give you some directions as to how you deal with it. This type of evidence that I have referred to is tendency evidence. There are very specific directions she will give you.
Now, I don’t want to burden you with the details of it now, but just caution you that it is evidence of similar, if you like, conduct towards other complainants that can be used as part of the evidence in this trial to show really that he was attracted to young family members and had a tendency to act upon that attraction, so that is a potted version, but Her Honour will give you very specific instructions about that and how you deal with it.
[84]Emphasis added to this and succeeding passages.
Elsewhere, the prosecutor’s references to ‘tendency’ evidence were more apt to describe evidence of ‘relationship’ or ‘context’.[85] Thus, in opening the evidence of an uncharged act relating to WC — the applicant looking at WC when she came out of the bathroom naked with a towel around her — the prosecutor said that the evidence showed that the applicant ‘had a tendency and was sexually attracted and was showing improper sexual interest towards his sister-in-law in this case’. And later, when opening the evidence of the uncharged act of the applicant touching WC’s breasts over her clothes, the prosecutor said:
Now, that again is evidence that is not a specific allegation in Charges 5 or 6 but it is more of the tendency contextual evidence. This is the way he behaved around her and was showing an improper sexual interest. So that is the purpose of that evidence being led by the prosecution.
[85]Cognisant of the fact that the weight of authority does not support my view, I have previously contended that evidence of ‘relationship’ should be seen for what it is — tendency evidence: Murdoch, [62], [86]–[93]. I remain unrepentant, and adhere to that opinion, albeit I am bound by authority to accept that my view is heretical. As the Court was at pains to point out in Velkoski, my ‘aspiration’ cannot be reconciled with other judicial pronouncements that draw a distinction between ‘on the one hand, tendency and coincidence, and on the other, relationship and context’, it being said that the distinction ‘lies at the heart’ of s 95 of the Evidence Act 2008: Velkoski, [127].
With respect to the evidence of the applicant commenting on, and touching, the breasts of his daughter, KP, the prosecutor opened:
The evidence again is of the same type. It is relied upon as contextual and showing the tendency that the accused man had of an improper sexual interest towards the complainant involved there.
Addressing the same topic, the prosecutor later told the jury:
That is evidence again but not of a specific allegation but evidence of the nature of the relationship and the tendency or interest that the accused man was showing in his daughter at that time.
As to the proposed evidence of KP that the applicant came into the bathroom and watched her naked in the bath, the prosecutor opened:
She also gives evidence of the accused coming into the bathroom when she was naked having a bath and watching her and she would try to conceal herself. That is the same type of tendency evidence I have outlined to you previously.
From these submissions, it will readily be appreciated that the prosecutor put to the jury that evidence that was relevant only as to context was to be treated as evidence of ‘tendency’.
Further, when opening evidence to be given by RC of uncharged acts, the prosecutor said:
She can’t be specific about those other occasions, she just says, well, I remember this first time watching the videos after having a swim in my bathers or whatever, but there were many other occasions she says where he was doing the same sorts of things, and that evidence as I have said is there, it is contextual, part of what was going on and showing the tendency of an improper sexual interest and willingness to act on that interest.
On the same topic, he later said:
That evidence is being led to show again, as I have said, the tendency that he had and the improper sexual interest that he had towards her.
And when addressing the circumstances of charge 36, which involved allegations that the applicant ‘brushed up against her and touched her on the vagina and breasts over her clothing on four separate occasions’, he said:
That is the specific allegation on the first occasion and the three other alleged occasions are relied on as part of the relationship context, or tendency, that I have mentioned previously.
Indeed, the closest the prosecutor came in his opening to addressing what might be considered to be specific tendency evidence was when he told the jury concerning RC’s evidence relating to charge 18:
The complainant is unsure how this incident finished, but she asserts that it was a shock to her that he’d done something so brazen with the wife in the front seat and the sister, and that’s a characteristic that will reappear and some of this conduct that has significance, we say, that the accused man was sexually attracted in a way which meant that he was taking risks if you like on many occasions, very brazen type of behaviour the prosecution asserts was taking place and that’s the tendency that he was showing of interest and willingness to act on that interest is part of our case if you like.
Having opened in the manner described, in his final address — the evidence of the complainants having been led — the prosecutor made no real attempt to inform the jury how it was the prosecution argued that any of the evidence in the case might legitimately be relied upon as tendency evidence. The closest he came was when he submitted:
The women give similar accounts, you might think, and Her Honour will talk to you about this in greater detail. You might recall at the start I introduced it talking about tendency, that there is a body of evidence here of similar activities taking place with the various women and there is a particular way you can use that but the prosecution leads this evidence to show that this accused man had a tendency to act in a particular way and also that he had a particular state of mind and was willing to act upon it. That is that he was sexually attracted to child female members of his extended family, so you can from that tendency that he may have committed offences alleged (sic.).
Her Honour is going to give you detailed instruction. It’s a complicated area of law for lawyers let alone for juries, but I think you understand the general gist of how it has been put by the prosecution and why it was led in this trial.
Elsewhere in his final address, the prosecutor spoke of the evidence showing that the applicant had a ‘tendency to be sexually attracted … to the particular people involved’, or that certain evidence showed a tendency being ‘a sexual interest in the particular people’ involved. Nowhere, however, did the prosecutor attempt to categorise the tendency evidence in the way that the judge later did, or to address any submission that particular pieces of evidence were cross-admissible as evidence of tendency. He abrogated that task to the judge.
At this juncture, and before looking at the trial judge’s analysis, I should refer to the contents of the prosecution’s ‘Notice: Tendency Evidence’, purportedly filed in accordance with s 97 of the Evidence Act 2008. Paragraphs 3(a) and 3(b) of the notice stated that the ‘tendency sought to be proved’ is that of the applicant ‘to act in a particular way’, or ‘have a particular state of mind’. As to the tendency to act in a particular way, it was asserted:[86]
The charged acts were not isolated. The accused had a tendency to engage in improper sexual activity or act in a sexual way with the complainants on many occasions.
The various acts, charged and uncharged, demonstrate that the accused had an improper sexual interest in each of the complainants and a willingness to express that interest despite the complainants being part of his extended family of young females.
There is a similarity and unity in the allegations of each complainant, in particular the fact that they all allege he first sexually interfered with them when they were young females, they were part of his extended family be it sisters in law ([GP] and [WC]), daughter ([KP]), foster daughters ([RC] and [TB]) and partner of his foster daughter [HL], the abuse generally involved digital penetration (fingers in vagina) and other indecent acts (touching vagina & hand on penis), the abuse generally took place in the setting of the family homes and the abuse was brazen and showed an element of risk taking in that other extended family members were often present in the homes at the time.
And as to the applicant’s alleged tendency to have a particular state of mind, the notice asserted:
[86]Emphasis added.
To intentionally engage in sexual activity as stated above. That the accused had a particular sexual interest in the complainants (particularly when they were young females) and the accused was willing to act on this.
The directions to the jury on tendency and the judge’s five categories
As I have mentioned, notwithstanding the particulars contained in the prosecution’s notice, and the manner in which the case was presented by the prosecutor (both in opening and closing the case), the judge repeatedly directed the jury that the prosecution had alleged that particular evidence demonstrated a ‘tendency’ to act in a particular way or a ‘pattern of behaviour’. And as I have also previously observed, the judge divided the tendency evidence into five ‘categories’, which she said were ‘alleged by the prosecution’. The trial judge’s formulation was contained in a document — the judge called it a ‘hand out’ — which was provided to the jury at that point in her Charge when she turned to ‘what is called tendency evidence’. The jury had the ‘hand out’ as the judge gave the oral directions about tendency, and the jury were invited to look at the hand out as the judge delivered the oral directions.
It is fair to say that the contents of the hand out and the oral directions were complementary, and the content of each was, in general, a reflection of the other. There were, as I have said, five separate categories of tendency evidence referred to in the ‘hand out’, and upon which her Honour orally directed the jury. Each category included that the applicant had a ‘tendency’ either to ‘sexually offend against’, or to ‘sexually assault’, ‘young female members of his extended family’, ‘and/or had a particular state of mind which was to be sexually attracted to young female members of his extended family upon which he was prepared to act in that way’. The five categories of tendency were to sexually offend or assault the young female members of his extended family:
·first, ‘by rubbing or digitally penetrating their vaginas’;
·secondly, ‘when they were in the bathroom’;
·thirdly, ‘by licking their vaginas’;
·fourthly, ‘by touching them on the breasts, bottom or vagina over their clothes in various parts of his house’; and
·fifthly, ‘in circumstances where others were nearby’.
Under category 1 (rubbing or digital penetration of the vagina), category 2 (‘when they were in the bathroom’) and category 5 (‘where others were nearby’), certain evidence of both charged and uncharged conduct involving all five complainants (GP, WC, KP, TB and RC) was left by the judge to the jury as being cross-admissible evidence of tendency. Under category 3 (‘licking their vaginas’) the evidence of two complainants concerning two incidents — KP on charge 8, and RC on charge 30 — was left as being cross-admissible. And under category 4 (‘touching them on their breasts, bottom or vagina over their clothes in various parts of his house’), the judge left the evidence of WC as to uncharged acts, and the evidence of RC concerning the circumstances of charge 36 and her evidence of uncharged acts, as being cross-admissible.
In her Charge, the judge, when introducing the topic of ‘what is called tendency evidence’ — and having provided the ‘hand out’ — told the jury:
The prosecution has led evidence which it submits can be used by you to infer that the accused man had a tendency to 1) act in a particular way, that is to sexually assault the young females of his extended family and 2) to have a particular state of mind, that is to be sexually attracted to young female members of his extended family and a preparedness to act upon this.
Throughout her directions about tendency evidence — including the evidence of both uncharged and charged acts — the trial judge invited the jury to ‘look’ at the hand out so as to better comprehend her instructions. The written directions in the hand out, and the oral directions in the course of the Charge, were thus complementary.
Severance should have been ordered
I have set out in some detail the prosecution’s approach to tendency evidence, and the judge’s directions, so as to illustrate that much of the evidence left to the jury as tendency evidence should not have been so left.
In Semaan,[87] I said:[88]
That tendency evidence must reach a high threshold of admissibility is emphasised by s 101(2) of the Act, which provides that in criminal cases, tendency evidence adduced by the prosecution cannot be used against him or her ‘unless the probative value substantially outweighs any prejudicial effect it may have’. Read together, the provisions of s 97(1) and s 101(2) make it abundantly clear that tendency evidence must carry a high degree of cogency before being admitted.
In my view, a non-exhaustive list of factors which may bear upon whether evidence has significant probative value in proof of an alleged tendency might include the number of occasions that the conduct displaying the alleged tendency have occurred; the temporal (and, perhaps, geographical) connection of such conduct with the charged conduct; the degree of similarity between the evidence of tendency and the charged conduct on the various occasions alleged (for example, its distinctiveness, such as showing a particular pattern or modus operandi); and whether the circumstances of occurrence of the conduct and charged conduct are similar.
[87]Semaan v The Queen (2013) 39 VR 503 (Buchanan, Ashley and Priest JJA) (‘Semaan’).
[88]Ibid 511 [39]-[40] (footnotes omitted). See also Velkoski [122], and [166] (set out above at [134).
The relationship of the complainants to the applicant differed. KP was his lineal descendant; GP and WC his sisters-in-law; and TB and RC his foster children. The fact that he offended against them reflects no more than that he had access to them and the opportunity to offend.
There were also significant temporal gulfs between the different offending. The offending with respect to GP was between 1965 and 1967; WC between 1970 and 1973; KP between 1976 and 1977; and TB between 1989 and 1991. The conduct involving RC occurred between 1988 and 1999; and, unlike the offending with respect to the other complainants, continued for more than a decade, the first incident occurring when she was about five years of age, the final when she was 15.
Indeed, the applicant’s conduct with respect to RC in many ways stood apart from the kinds of conduct relevant to the other complainants. The majority of the conduct involving RC was, so it seems to me, markedly dissimilar from that alleged in the cases of the other complainants, and, to a large extent, was of a far greater order of seriousness. Thus, in the cases of the other complainants it was not alleged that the applicant had — as he had with RC — attempted to penetrate them vaginally with his penis (charge 21); penetrated them orally with his penis (charge 29, 31); ejaculated on or in them, or in their presence (charges 21, 22, 29, 33, 35); contrived to have them masturbate his penis (charges 9, 18, 27, 32); rubbed his penis on their bodies (charge 33); indulged in sexually charged talk (charges 9, 20, 21); or used pornography (charges 9, 22). And save for KP (charge 8), there was no lingual penetration of another complainant’s vagina (charge 26, 30).
Whether, in any given case, tendency evidence has ‘significant probative value’ will be a matter of fact and degree, and a determination on that issue will be influenced by the nature of the fact in issue sought to be proved (or, perhaps, disproved). Hence, in determining whether purported tendency evidence has ‘significant probative value’ the nature of the tendency sought to be proved will be pivotal. Thus, for example, evidence of a tendency to commit a particular kind of act, or to commit a kind of act in particular circumstances, might have significant probative value.
In my view, the tendency evidence in this case, divided as it was into the five categories, did not possess the high degree of cogency necessary to render it admissible. To adopt the language of the Court in PNJ[89] (albeit the Court was addressing coincidence evidence), ‘[t]he allegation that such acts were committed is, sadly, unremarkable’; and ‘is a commonplace in sexual offending of this kind, and cannot be said to distinguish the applicant’s offending from that of any other such offender’.[90]
[89]PNJ v DPP (2010) 27 VR 146 (Maxwell P, Buchanan and Bongiorno JJA) (‘PNJ’). See also Reeves (a pseudonym) v The Queen [2013] VSCA 311, [94] (Priest JA).
[90]Ibid 151 [22].
As is the situation in cases of this kind, the complainants were young. In the case of four of the complainants, however, the offending was isolated generally to when they were pre-pubescent and were not teen aged;[91] whereas in the case of RC, the offending occurred over a decade or more, from when she was aged about 5 years (and pre-pubescent), until she was aged 15. But, as this kind of case goes, there was nothing particularly unusual about the offending occurring when the complainants were part of the applicant’s ‘extended’ family; that some of the offending occurred in the bathroom; or that others were in the relevant premises, or close-by, when the offending conduct occurred. Similarly there was nothing distinctive about the conduct which involved digital penetration of the vagina; and, even less so, the generic conduct which involved touching various complainants on their vaginas, breasts or bottoms over their clothes. In my view, any superficial similarity in conduct or circumstance was not such as to imbue these aspects of the evidence with significant probative value.
[91]Save for charges 5 and 6, when WC was said to have been between the ages of 12 and 14 years.
So far as the third ‘category’ of tendency is concerned (‘by licking their vaginas’) — which involved the applicant’s daughter, KP (charge 8), and his foster daughter, RC (charge 30) — the two episodes were separated by 14 years or more, and the conduct with RC occurred in circumstances of a more concerted and prolific set of offending directed towards her. There was, in my opinion, insufficient similarity in time or circumstances to permit the evidence of each episode of cunnilingus to be used as tendency evidence. The evidence lacked significant probative value.
Properly viewed, the supposed tendency evidence in the five categories amounted to no more than evidence of mere propensity. It did not have significant probative value, and should have been excluded. And given that the evidence was not cross-admissible, severance as between complainants should have been ordered. A substantial miscarriage of justice has been occasioned. The convictions on the trial indictment must be set aside. In light of the conclusions reached concerning the convictions involving GP and WC (charges 1 to 6), there will be — subject to the Director’s discretion — separate retrials involving the charges against KP, TB and RC.
These conclusions make it unnecessary to consider the submissions made concerning contamination, concoction or collusion.
Grounds 3 and 4 should be upheld.
A Parthian shot
I cannot leave grounds 3 and 4 without observing that, with respect to the purported tendency evidence, neither trial counsel gave the judge the assistance to which she was entitled.
As is obvious, when opening the case, the prosecutor had no clear idea as to how the ‘tendency’ evidence was admissible, and the uses to which it might properly be put. And in closing the case, he put no lucid submissions to the jury as to the evidence that could legitimately be used as tendency. These deficiencies were perhaps prompted by — and were certainly exacerbated by — an inadequate tendency notice.
The judge, as I have said, formulated five categories of tendency evidence. She did so without any real assistance from counsel. Indeed, both counsel for the prosecution and counsel for the defence abrogated any responsibility for identifying evidence that might properly be classified as tendency evidence. Hence, in a discussion between counsel and judge prior to the final addresses, the question arose whether the judge was required to identify evidence of conduct bearing ‘hallmarks’. Neither counsel sought to identify relevant similarities of conduct, the prosecutor somewhat unhelpfully submitting that, ‘I don’t dispute your Honour’s right or duty, in a sense, to elaborate on [tendency evidence] and to deal with similarities’.
A little later, after some cursory discussion of what might (and might not) qualify as tendency evidence, the judge pondered — ‘the horrifying question that goes floating through my mind is whether I have to isolate that this charge … from this complainant relates to this charge insofar as another complainant is concerned’ — prompting the reply from defence counsel, ‘Well, in my submission your Honour does, that is really what is required in a case like this’. Later still, again rather unhelpfully, defence counsel said, ‘it’s a very onerous task for your Honour and one that I’m glad it’s your Honour doing it (sic.), not me’.
Quite plainly, it is contrary to ordinary notions of a fair trial that the prosecution might seek to introduce and rely on evidence without any clear picture of whether the evidence is relevant and admissible. And it is anathema to the adversarial system of criminal justice for the judge, unaided by any meaningful input from counsel, to be left to formulate the admissibility of evidence led by the prosecution.
In this case, the judge was entitled to — and should have insisted upon — meaningful assistance from counsel. In turn, both counsel should have done far more than they did to ensure that the trial did not miscarry.
Conviction ground 5 — Latent duplicity on charge 36
As originally framed, ground 5 complained that the convictions on charges 9, 36 and 37 were bad for latent ambiguity. On the second day of the hearing in this Court, however, after a thorough examination on the first day of the merits of the complaints embodied in the ground, counsel for the applicant abandoned any argument that the convictions on charges 9 and 37 were infected by latent duplicity. Counsel maintained, however, that the conviction on charge 36 was so infected.
The applicant submitted that the conviction on charge 36 — indecent act with a child under 16 — suffered from latent duplicity, since RC gave evidence that when she was about 14 or 15 years of age (and visiting TB in Shepparton), the applicant would grab her vagina and her breasts over her clothes. The judge directed the jury as follows:[92]
… Charge 36 relates to an allegation that on another visit to Shepparton the [applicant] would grab [RC] on her vagina and breasts over her clothes whenever he could. Charge 36 is said to be the first of those occasions.
[92]Emphasis added.
Importantly, RC’s evidence included the following:
When you went to Shepparton? --- Yep.
And was staying at the [Bauer] household, did anything happen during that visit? --- Yeah, there was two incidences that I remember — that I remember that are very distinct for me. One of them — I just remember, like, I tried to avoid him like the plague. I was not going back there for him. I was putting myself through this so that I could have a relationship with my sister. I did whatever it took to have a relationship with my sister. So I even put myself through this. I remember just removing myself and staying as far away as possible from him. But there were — on the occasion that I couldn’t and he was always lurking around. I remember him, many times, if he’d walk past me in the kitchen, he would just grab my vagina. Like, he would actually just grab it. You know, he’d have this really disgusting perverted look on his face. He’d like, sit there and he’d poke his tongue out and make sexual noises and, you know, or he'd grab my breasts and he’d ---
Do you remember how many times that happened in that visit, approximately? --— Just whenever he could do it.
Are you able to identify an approximate number of occasions, was it one occasion or more? --- More than one. As I said, whenever he could seize an opportunity. If there was no one around and he saw me and I was walking past him in the kitchen, he would grab me, from the back of my backside to the front of my backside, like, and he would just grab my vagina. And he would just — he’d be really sexual and perverted and make sexual and perverted noises or he’d grab my breasts and he'd say things like, do you want a tickle, why not, it's like you're so beautiful, you're so good looking. He's like, I wish I was your boyfriend.
And later, immediately before recounting a specific incident when the applicant woke her from sleep in her sister’s bed, kissed her, touched her breasts, stomach, legs and vagina, RC gave the following evidence:[93]
When was that [specific incident], relative to when you went there? --- I think it was the following night to when — well, as I told you, his sexual remarks and him grabbing my body or my breasts or my vagina, it was constant the whole time I was there whenever he could do it, but it was — yeah, it was probably the second or third night that I was there.
[93]Emphasis added.
The effect of the evidence is that, whenever he could, the applicant would ‘grab [her] vagina’, or ‘grab [her] breasts’, or grab her body, or grab her from the back of her backside to the front of her backside, and ‘that happened’ many times. There is thus a deal of force in the submission that the conviction of the applicant is bad for latent duplicity. Although, as a matter of logic, there must have been a first incident of some form of indecent touching, RC’s evidence did not identify with particularity any one activity that could be so characterised. It seems to me that, properly understood, her evidence relevant to charge 36 was an amalgam of disparate activities. Indeed, as I understand her testimony, RC gave evidence of no single occasion when the applicant grabbed both her breasts and her vagina at the same time.[94]
[94]See Rixon v Thompson (2009) 22 VR 323.
Where the prosecution resorts to the device of relying on a ‘first occasion’ or ‘first incident’, that the ‘first occasion’ must be actual, rather than notional. If a complainant is incapable of differentiating in some way the charged act from a series of similar acts, the use of ‘first occasion’ particularisation is not sufficient to overcome the problem of latent ambiguity.[95]
[95]R v DWB (2008) 20 VR 112, 119 [36] (Vincent, Weinberg and Mandie JJA); PPP v The Queen (2010) 27 VR 68, 70 [2] (Neave JA), 86 [61] (Redlich JA). See also DPP v Lewis [1997] 1 VR 391; R v NVD (2007) 177 A Crim R 108; R v Osborne [2009] VSCA 88; TC v The Queen [2011] VSCA 190; Veysey v The Queen (2011) 33 VR 277; BN v The Queen [2011] VSCA 406; JRW v The Queen [2013] VSCA 255; James v The Queen [2013] VSCA 348.
RC’s evidence was insufficient to identify an actual first occasion. Ground 5 must be upheld.
I would order a verdict of acquittal on charge 36.
Conviction ground 6 — Aggregate of errors
In light of the conclusions I have reached on other grounds, ground 6 need not be considered.
Sentence application
The sentences on the trial indictment
Given that I have reached the conclusion that the applicant’s convictions cannot be permitted to stand, it is strictly unnecessary to say anything about the sentences imposed on the trial indictment. I note, however, that following discussion, counsel for the respondent fairly submitted that the sentence imposed on the applicant on the trial indictment was infected with error, and had to be set aside. The concession that the applicant had to be resentenced was properly made.
As I have said, it is strictly unnecessary to say more about the sentences on the trial indictment. To illustrate briefly why the respondent’s concession was properly made, however, one need look no further than the sentences imposed on charges 1 and 2 (charges respectively of indecent assault and gross indecency). The activities that founded those charges occurred when the applicant was aged 20 or 21 years, and was without prior convictions. Neither charge involved any physical contact. Rather, the essential nature of the conduct on each charge was the applicant’s exposure of his penis. Despite the applicant’s youth at the time of the offending and lack of prior convictions, however, and the absence of physical contact, the judge imposed sentences of eight months’ imprisonment on each charge, in circumstances where a custodial sentence plainly was not warranted. The sentences imposed on these charges might, for the sake of argument, be compared with the sentences on charges 16, 20, 23, 24 and 36, where the conduct involved objectively was far more serious. Charges 16, 20, 23, 24 and 36 all involved the applicant touching RC’s vagina both over and under her clothes, and, in the case of charge 20, the insertion of his finger into her vagina, yet attracted the same sentence — eight months’ imprisonment — as was imposed on charges 1 and 2, despite the applicant being older at the time of commission of the offences, the conduct being objectively more serious and the applicant falling to be sentenced as a serious sexual offender on those charges.[96]
[96]Sentencing Act 1991, s 6D and s 6E.
The approach taken to the imposition of sentence on the charges selected for discussion is indicative of the fact that the judge did not approach the sentencing task in the fashion dictated by principle; that is, as a starting point, imposing proper and proportionate sentences individually on each charge, before turning to concurrency and cumulation and, ultimately, totality.
The sentences on the plea indictment
As to the plea indictment, the applicant pleaded guilty to two ‘representative’ charges[97] of indecent assault against HL. By the time the judge came to impose the sentences on these two charges, she had made orders with respect to the trial indictment which had resulted in a total effective sentence on that indictment of 14 years and two (2) months’ imprisonment. In the course of delivering her sentencing reasons, the judge told the prosecutor, ‘I want to add 10 months of that sentence to the 14 years and two months’, and asked how that might be achieved. After discussion, the judge said, as part of her sentencing reasons:
You are sentenced to 10 months on each of the charges contained in the second indictment. Five months on each of those charges will be served cumulatively to the sentence imposed in Indictment (sic.) — so that a total of five months of each of the imposed (sic.) in relation to each of the charges on [the plea indictment] will be served cumulatively to the sentence imposed in [the trial indictment], giving a total effective sentence of 15 years' imprisonment.
[97]As to the approach to be taken to representative charges, see DPP v Hugh Jones (a pseudonym), [2013] VSCA 330, [80] (Redlich and Priest JJA).
The Record of Orders signed by the judge on 15 August 2013, contains the curious direction that ‘all sentences imposed in this case are to be served concurrently’ — the reference to ‘this case’ can only sensibly be to the sentences on the plea indictment — so that the total effective sentence is recorded as being 10 months’ imprisonment, yet it also contains an endorsement that ‘5 Months of Charge 1 and 5 Months of Charge 2 is to be served cumulatively upon [the sentences on the trial indictment] and each other’.
It seems plain from what her Honour said orally, however, that she intended to make orders to the effect that the applicant serve a total of 10 months’ imprisonment on the plea indictment in addition to the sentence imposed on the trial indictment. Whatever her Honour’s intention, in my view the individual sentences imposed on charge 1 and charge 2 on the plea indictment are manifestly excessive and must be set aside. It is necessary briefly to discuss the applicant’s offending.
HL was the partner of TB from about 2007. She was aged 17 to 18 years at the relevant times, and worked casually in the office of the applicant’s irrigation business. During their association, the applicant would pinch HL on the buttocks over her clothes, grab at her breasts over her clothing or try to kiss her on the mouth.
On one occasion when he had driven HL to a McDonalds’ restaurant ‘drive-through’, the applicant put his hand on HL’s leg before rubbing her on the vagina over her clothes (charge 1, indecent assault — representative charge). The applicant yelled at her when she pushed his hands away, told her that no one would find out and asked her why she was so nervous. On another occasion, HL was at work with the applicant at a shed in rural Victoria. He walked up behind her and tried to put his hands down her pants (charge 1, indecent assault — representative charge). HL pushed the applicant’s hands away and he put both hands on her breasts (charge 2, indecent assault — representative charge). On a further occasion, the applicant and HL were in the office, when the applicant pulled HL’s top and bra down, exposing her breasts. He then sucked her right breast for a couple of seconds (charge 2, indecent assault — representative charge). On a further occasion still, HL went camping with the applicant and other family members on a rural family property. Whilst HL was seated next to the applicant as he was driving a boat, he rubbed her back side. On again another occasion, the applicant and HL were about to leave work for the day and the applicant pulled down her singlet and bra with his right hand and sucked on her breast (charge 2, indecent assault — representative charge). Finally, HL recalled a further occasion after Easter 2009 where the applicant tried to put his hand up her skirt when she was at home and her dog bit him on the arm.
The applicant was interviewed on 8 June 2011 and declined to answer questions.
Charge 1 represented occasions when the applicant touched HL on the vagina over her clothes, and charge 2 was representative of occasions when he touched or sucked HL’s breasts. By the time he fell to be sentenced on these charges, the applicant was to be regarded as a serious sexual offender. The sentences on the trial indictment having been set aside, however, he no longer is to be sentenced as such. In my view, the sentences imposed on the two charges on the plea indictment were probably influenced by the conclusions that the judge had reached with respect to the offending on the trial indictment.
The offences on the plea indictment was committed on an older person than were the other offences. For that reason alone, the offending was not of the same order of seriousness as that on the trial indictment. Moreover, the applicant now notionally is to be sentenced as a 69 year old man with no relevant prior convictions.
Leave to appeal against the sentences imposed on the plea indictment should be granted and the appeal allowed. I would set aside the sentences imposed, and in lieu sentence the applicant on charge 1 to be imprisoned for four (4) months, and on charge 2 to be imprisoned for six (6) months. I would order that two (2) months of the sentence on charge 1 be served cumulatively with the sentence on charge 2. The total effective sentence is thus eight (8) months’ imprisonment. I would hear the parties on any declaration of pre-sentence detention.
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