Bellemore v Tasmania
[2006] TASSC 111
•21 December 2006
[2006] TASSC 111
CITATION: Bellemore v Tasmania [2006] TASSC 111
PARTIES: BELLEMORE, Roger Michael
v
TASMANIA, STATE OF
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 14/2006
CCA 22/2006
DELIVERED ON: 21 December 2006
DELIVERED AT: Hobart
HEARING DATE: 24, 25 August 2006
JUDGMENT OF: Crawford, Blow and Slicer JJ
CATCHWORDS:
Constitutional Law – The non-judicial organs of Government – The legislature – Legislation and legislative powers – Legislative powers – Power to act contrary to separation of powers doctrine – Constitution, Ch III – State Act creating crime – Retrospective effect – Whether jurisdiction conferred upon State Supreme Court incompatible with Ch III.
Constitution (Cth), s71.
Criminal Code (Tas), s125A.
Kable v Director of Public Prosecutions (1996) 189 CLR 51, distinguished.
R v Kidman (1915) 20 CLR 425; Polyukhovich v The Commonwealth (1991) 172 CLR 501, applied.
Aust Dig Constitutional Law [176]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Unreliability – Whether a discretion to reject unreliable evidence.
Rozenes v Baljajev [1995] 1 VR 533, considered.
Aust Dig Criminal Law [423]
Criminal Law – Evidence – Complaints – Admissibility of details and fact of complaint – Sexual offences – Evidence of how complainant came to make complaint many years after – Whether excluded by hearsay rule – Whether fresh in the witness's memory – Whether inadmissible under credibility rule.
Evidence Act 2001 (Tas), ss59, 66 and 102.
Graham v R (1998) 195 CLR 606, applied.
Aust Dig Criminal Law [506]
Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Character and previous convictions – Evidence of good character – Desirability of direction as to.
Simic v R (1980) 144 CLR 319; Melbourne v R (1999) 198 CLR 1, applied.
Aust Dig Criminal Law [558]
Criminal Law – Evidence – Miscellaneous matters – Other cases – Sexual crimes against children – Evidence by psychiatrist of tendency of victims not to complain – Evidence of tendency of victims to suffer psychological damage – Evidence not specific to the complainant – Whether relevant or admissible.
Evidence Act 2001 (Tas), s79A.
Aust Dig Criminal Law [619]
Criminal Law – Jurisdiction, practice and procedure – Course of evidence, statements and addresses – Addresses – Contents – Duty of counsel for prosecution – Whether comments excessive or prejudicial – Expression of counsel's own views of evidence – Comments minimising effect of Longman warning.
R v Liristis (2004) 146 A Crim R 547; R v MM (2004) 145 A Crim R 148, applied.
Aust Dig Criminal Law [777]
Evidence – Facts excluded from proof – On grounds of privilege – Professional confidence – Communication with counsellor – Whether evidence of treatment excluded.
Evidence Act 2001 (Tas), s127B.
Aust Dig Evidence [83]
REPRESENTATION:
Counsel:
Appellant: T A Game SC and G A Walsh
Respondent: T J Ellis SC and M A Stoddart
Solicitors:
Appellant: Greg Walsh & Co
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 111
Number of paragraphs: 277
Serial No 111/2006
File No CCA 14/2006
CCA 22/2006
ROGER MICHAEL BELLEMORE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
SLICER J (Dissenting in part)
BLOW J
21 December 2006
Orders of the Court
Appeal allowed.
Convictions and sentence quashed.
That there be a new trial of the charges in the indictment.
Serial No 111/2006
File No CCA 14/2006
CCA 22/2006
ROGER MICHAEL BELLEMORE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
21 December 2006
The appellant was found guilty of four counts of maintaining a sexual relationship with a young person under the age of 17 years, contrary to the Criminal Code, s125A, after a trial lasting six days. The crimes were allegedly committed between 1967 and 1971 against male students at Marist College, where he was a teacher. He was sentenced to imprisonment for five years with a non-parole period of three years. He has appealed against his convictions on 11 grounds and against the sentence on a single ground that it was too severe.
Ground 1
The ground is:
"(1)Section 125A of the Criminal Code (Tas) is invalid is [sic] insofar as it purports to vest in the Supreme Court of Tasmania, a court vested with federal judicial power under Chapter III of the Constitution, functions which are incompatible with the exercise of the judicial power of the Commonwealth.
(2)Alternatively, s125A of the Criminal Code (Tas), properly construed, has no application in relation to conduct committed wholly before the commencement of the provision."
The ground concerns the retrospective provision in s125A(1). Under the Criminal Code each of the individual unlawful acts alleged to have been committed by the appellant, if committed at the time of the indictment and the trial, would have amounted to a crime against s125B (indecent act with or directed at a young person under the age of 17 years) and a crime against s127 (indecent assault). However, at the time of the appellant's alleged acts they would only have amounted to a crime against s123 (indecent practice between male persons), which made it a crime if a "male person ... commits any indecent assault upon, or other act of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person". Section 125B was not inserted into the Code until 2001, and at the time of the alleged acts s127 was in a different form than it is at present, for it only applied to unlawful and indecent assaults of females. It was not until the Criminal Code (Sexual Offences) Act 1987 that the crime of indecent assault was extended to include an unlawful and indecent assault against persons of either gender, and by the Criminal CodeAmendment Act 1997, s127, it was further amended by the insertion of subs(4) that provides: "This section is to be taken to be in force from 4 April 1924."
The s125A crime of maintaining a sexual relationship with a young person under the age of 17 years was inserted into the Code by the Criminal Code Amendment (Sexual Offences) Act 1994, s4. By the Criminal Code Amendment Act 2001, s4(a), the words "whether committed before, on or after the commencement of this section" were added to subs(1) to give the section an effect that was retrospective to before the enactment of the section. Further, at the time of its original enactment, s125A(1) included references to s122 (unnatural crimes) and s123 (indecent practices between males), but after the amendment of s122 to confine it to acts of sexual intercourse with an animal, and the repeal of s123, both by the Criminal Code Amendment Act 1997, ss4 and 5 respectively, the section was amended by the Sentencing Act 1997, s103 and Sch1, to omit the references in subs(1) to ss122 and 123. Subsection (1) was further amended by the Justice and Related Legislation (Miscellaneous Amendments) Act 2005, s34, by the insertion of a reference to s125B (indecent act with a young person) following the creation of that crime by the Criminal CodeAmendment Act 2001, s4.
Following all of the amendments to which I have referred, s125A was in the following form at the time of the indictment and the trial:
"125A ¾ Maintaining sexual relationship with young person
(1) In this section, 'unlawful sexual act' means an act that constitutes an offence under section 124, 125B, 126, 127, 127A, 133 or 185 whether committed before, on or after the commencement of this section.
(2) A person who maintains a sexual relationship with a young person who is under the age of 17 years, and to whom he or she is not married, is guilty of a crime.
Charge:
Maintaining a sexual relationship with a young person under the age of 17 years.
(3) An accused person is guilty of having committed an offence under subsection (2) if, during a particular period when the young person was under the age of 17 years ¾
(a)the accused committed an unlawful sexual act in relation to the young person on at least 3 occasions; and
(b)the young person was not married to the accused.
(4) For the purposes of subsection (3) ¾
(a)it is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed; and
(b)the unlawful sexual act that was committed on any one of the occasions need not have been the same as the unlawful sexual act that was committed on each or any of the other occasions.
(5) It is a defence to a charge under subsection (2) to prove that the accused person believed on reasonable grounds that the young person was of or above the age of 17 years.
(6) An indictment charging a person with having committed an offence under subsection (2) ¾
(a)is to specify the particular period during which it is alleged that the sexual relationship between the accused and the young person was maintained; and
(b)is not to contain a separate charge that the accused committed an unlawful sexual act in relation to the young person during that period.
(7) A prosecution for an offence under this section is not to be commenced without the written authority of the Director of Public Prosecutions."
It was submitted by the appellant that the retrospective provision of s125A(1) offended the Commonwealth Constitution, s71, which provides that the "judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction ...". That judicial power was vested in the several courts of the States by the Judiciary Act 1903, s39. It was submitted by the appellant that s125A is invalid insofar as it purports to vest in the Supreme Court of this State, a Court so vested with judicial power, functions which are incompatible with the exercise of the judicial power of the Commonwealth. It was argued that the retrospective provision impermissibly impairs the exercise of judicial power by asking the Criminal Court to adjudicate guilt and impose punishment for conduct which was not a crime or offence and which was not amenable to lawful punishment when committed.
It is incorrect to categorise in that way what the appellant is alleged to have done. The crime with which he was charged was not a crime at the time of his alleged offending, but each of his allegedly criminal acts, that were said to amount collectively to the commission of that crime, was a crime and each was amenable to lawful punishment at that time, for each of those acts amounted to the crime of indecent practice between male persons and was punishable accordingly.
Counsel for the appellant relied on statements in Kable v Director of Public Prosecutions (1996) 189 CLR 51, particularly of Gaudron J. At 106, her Honour described the legislation there being considered as involving "the antithesis of the judicial process" because it required a court to deprive an individual of his liberty, not because he had breached any law, but because an opinion was formed, on the basis of material which did not necessarily constitute evidence admissible in legal proceedings, that he was more likely than not to breach the law in the future by committing a serious act of violence. Counsel for the appellant pointed to the statement of Gaudron J at 107, that one of the central purposes of the judicial process, as she said in Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497, is to protect "the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained". Her Honour said that the exercise of the statutory power she was considering was not one that could properly be characterised as a judicial function, and was one that was contrary to what was ordinarily involved in the judicial process. At 108, she said that the statute in question made a mockery of the judicial process by its attempts to dress up proceedings as proceedings involving the judicial process.
Those authoritative statements should be applied by this Court in an appropriate case, but they are inapplicable to the circumstances here. The trial of the appellant involved the typical exercise of judicial power that has been performed every working day for many years by criminal and other courts in this country.
There is nothing in the Constitution that expressly prohibits the enactment of laws having retrospective operation, and the validity of such laws was upheld by the High Court as long ago as 1915 in R v Kidman (1915) 20 CLR 425. In that case, the Commonwealth Parliament had amended the Crimes Act 1915 by adding conspiracies to defraud the Commonwealth as indictable offences and giving the amendment retrospective effect. All members of the court held that the laws were a valid exercise of the power of the Commonwealth. It was made clear by the majority of the judges that within the constitutional limits as to subject matter, the power of Parliament was plenary and included the power to make acts criminal and punishable, whether they were committed before or after Parliament legislated on the subject. It must follow that the Parliament of this State has similar powers, given the absence of any other constitutional limits on it doing so.
The majority of the High Court applied that principle in the more recent case of Polyukhovich v The Commonwealth (1991) 172 CLR 501. Mason CJ, Dawson and McHugh JJ were of the view that a law which leaves it to the courts to determine whether the person charged had engaged in the alleged conduct and whether the conduct infringed the legislation, did not infringe upon the exercise of judicial power under Chapter III of the Constitution, notwithstanding its retrospective operation. See Mason CJ at 531 – 540, Dawson J at 642 – 651 and McHugh J at 717 – 722. Toohey J at 690 – 692, upheld the validity of the law paying particular regard to the fact that the charged conduct (acts amounting to murder) attracted criminal sanction at the time they were committed, as is the case here. The court did not overrule its previous decision in R v Kidman. This Court must apply the principles stated in both of those cases.
It was further contended by the appellant that the words "it is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed" in s125A(4) impermissibly impair the exercise of judicial power by facilitating a finding of guilt without there being a full and thorough judicial process. An obvious answer to the contention is that it has never been an essential part of the judicial process that the exact date of or circumstances in which a crime was committed must be proved before a charged person can be found guilty. There have been many cases where persons charged with a crime have been found guilty of it without exactitude in the date or circumstances having been proved. Many cases depending on circumstantial evidence provide examples. Two basic principles, among others, generally apply to such cases. One is that each of the elements of the crime must be proved beyond reasonable doubt. The other is that "it is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him." Johnson v Miller (1937) 59 CLR 467 at 497. A provision that the exact circumstances of an offence do not need to be proved is not contrary to either of those principles. Concerning a similar statutory provision in the Victorian Crimes Act 1958, McHugh J said in KRM v R (2001) 206 CLR 221 at 227:
"Courts should not lightly infer that a legislature has intended to abolish or modify fundamental principles of the common law such as the principle that an accused person must have a fair opportunity to defend a criminal charge. Here the legislature has made it clear that the prosecution does not have to prove the date or the exact circumstances of the offence. But that is all. It has not said that the prosecution need not give particulars or need not prove the general circumstances of each act constituting an offence."
Counsel for the appellant submitted that if vagueness in the date and exact circumstances is allowed, persons charged with crimes will be unable to raise defences such as lack of opportunity and alibi, but that inability often arises in cases where charges have been laid a long time after the charged events. It is in recognition of such difficulties for the defence that Longman v R (1989) 168 CLR 79 requires that a jury be warned by the trial judge about them so as to ensure a balance is kept so far as fairness is concerned.
Counsel for the appellant also submitted that subs(4) permits the prosecution to call evidence from a complainant by way of generalised summaries of the alleged sexual conduct of the person charged, for example, by merely giving evidence that the conduct was committed by the accused on a number of occasions. However, that is not a result to which the subsection is directed and it does not permit it. As was said by McHugh J in KRM v R at 227, the subsection does not say that the prosecution need not give particulars or need not prove the general circumstances of each act constituting an offence. His Honour was dealing with a statutory provision that was slightly different from the one that applies in this State, but his statement that it "indicates that the prosecution must prove the circumstances or occurrences surrounding each of the acts in sufficient detail to identify each 'occasion'" applies just as much to s125A.
This Court must uphold the validity of the provisions of s125A and reject the submission that it offends s71 of the Constitution.
In the alternative, it was submitted by the appellant that s125A should be read down so as to apply only to conduct prior to the enactment of the section that was part of a course of conduct which continued after that date. Plainly, the terms of subs(1) do not permit such a limitation on its meaning. There is no ambiguity in its terms.
Ground 1 fails.
Ground 2
The ground is:
"The trial judge erred in declining to order a separate trial in relation to the charge concerning the complainant [H]. The trial miscarried by reason of the hearing of a joint trial of the complainant [H] together with the other complainants."
The indictment originally charged the appellant with five counts of maintaining a sexual relationship with a young person under the age of 17 years. Respectively they related to five students at Marist College. One of the counts, with W as a complainant, was severed and only the remaining four counts went to trial. They charged the appellant with having committed the crime between the following dates and with the following complainants:
Count 1 – between about 1 July 1968 and about 30 November 1969 with G, who was born on 18 May 1954.
Count 2 – between about 1 February 1967 and about 30 November 1968 with H, who was born on 23 January 1958. (H's evidence was that he was born on 23 January 1955).
Count 3 – between about 1 February 1971 and about 30 November 1971 with S, who was born on 4 September 1957.
Count 4 – between about 1 February 1970 and 30 November 1970 with N, who was born on 31 January 1958.
Prior to the trial, the State gave notice to the appellant under the Evidence Act 2001 ("the Act"), s98(1)(a), that it intended to adduce coincidence evidence from all of the complainants. The State contended that the evidence of each complainant was admissible in respect of the allegations relating to the other complainants and that all five counts should be tried together. The appellant opposed that course and argued that the counts should be severed from each other and that there should be separate trials of each count, upon the basis that the evidence of each complainant was not admissible in respect of any of the allegations relating to the other complainants. The appellant attacked the State's proposed course in three ways. Firstly, that the events described by each complainant were not "related events" for the purposes of s98(1) and (2) in the sense that they were not substantially and relevantly similar, and the circumstances in which they occurred were not substantially similar, to the events described by the other complainants. Secondly, that the evidence did not have significant probative value as required by s98(1)(b). Thirdly, that the probative value of the evidence did not substantially outweigh any prejudicial effect it might have on the appellant, as required by s101(2). Associated with that, the appellant argued that the minds of each of the complainants, other than S, had been contaminated by them becoming aware of media material about the charging of the appellant with a sexual offence and of rumours about sexual interference by the appellant at the college.
Evidence was received on the voir dire and the learned trial judge ruled that the allegations of the five complainants were strikingly similar and satisfied the criteria for "related events" in s98(2) that the events be substantially and relevantly similar and that the circumstances in which they occurred be substantially similar. She then held that she could not be satisfied "that there might not be a real risk of contamination" in respect of the evidence of W because of communications he had had with persons other than the other complainants, and that "any probative value his evidence may have had in the context of the argument now before the court is negated by the risk of contamination". For that reason, a separate trial of the count with W as the complainant was ordered. Concerning the other complainants, the learned judge concluded that the evidence of each of them was not contaminated in the relevant sense and that the probative value of their evidence substantially outweighed any prejudicial effect it might have on the appellant. The learned judge made no determination that the evidence of each of those complainants would have significant probative value on the trial of the charges concerning the other complainants, as required by s98(2)(b), but in the light of her finding that the probative value of the evidence substantially outweighed any prejudicial effect it might have on the appellant and her decision that counts 1, 2, 3 and 5 would be tried together, it is obvious that she was of that view.
As a result the appellant was tried and convicted upon those four counts following a joint trial of them.
The ground of appeal is confined to count 2. The appellant's argument is that it should also have been severed from the other counts because the events described by H, when compared with the events described by the other complainants, were not related events in the sense required by s98(2), as they were not substantially and relevantly similar, and for that reason his evidence did not have significant probative value at the trial of counts 1, 3 and 4.
The evidence received from H on the voir dire included his unsigned statement and his oral testimony. The statement did not coincide with his oral testimony in all respects, partly because his evidence was poorly led. In the statement only two specific acts of sexual conduct were identified and described, but in his oral testimony he gave evidence of three specific acts of sexual conduct but only described one of them in any detail. A combination of the statement and his oral testimony on the voir dire reveals that his allegations included three distinct occasions, as follows:
1The first occasion was early in 1967 (when he was 12). The appellant gently placed H's hand inside the applicant's pants to touch his penis. He particularly remembered the roughness of the pubic hairs. (Before the jury H said that he did not touch the appellant's penis, only his pubic hairs. He said that they were lying on the bed in the appellant's room.)
2The second occasion involved the appellant putting H's hand inside the appellant's pants onto his erect penis and rubbing it up and down. (Before the jury, H said that occurred in the appellant's room.)
3The third occasion was at the time of a religious event, perhaps Easter, and followed a special Mass, at which H was an altar boy. The appellant put H's hand inside the appellant's pants onto his erect penis and rubbed it up and down. (Before the jury, H said that the appellant was wearing a "frock outfit" following the Mass. He could not remember where the third occasion took place.)
H said that there were other similar and regular occasions. He said that it always happened on weekends with public holidays, such as Easter or Anzac Day, and it always occurred in the appellant's room after school, but he was not sure of exact times. He would be wearing his more casual after school clothes. The appellant would have asked him to go to his room, but not for disciplinary reasons. H had no memory of the appellant ejaculating.
The evidence from G on the voir dire included a statutory declaration and oral testimony. His evidence before the jury was virtually identical. He described three distinct occasions, as follows:
1The first occasion was in August 1969 (when he was 15). He strained a muscle in his thigh at rugby and went to the appellant for treatment as he was the priest in charge of the infirmary. The appellant said he was very busy and to come to his room after lights out, which G did. The appellant was dressed in his "priest clothes". At the appellant's request, G took off his dressing gown and pyjama pants and lay on the bed. The appellant put baby oil on his hands and rubbed G's thigh and his hands wandered up to his groin and made contact with his penis, which became erect. While that incident was occurring, a boy knocked on the door and the appellant told him "I have someone with me, don't come back".
2On the next night, G returned similarly dressed for further treatment. The appellant was wearing a dressing gown. Once again, G removed his dressing gown and pyjama pants and lay on the bed. This time the appellant massaged the boy's penis and testicles. While he did so, he opened his own dressing gown and stroked his own penis. He did not ejaculate and told G to return the following night.
3On the following night, they were both similarly dressed when G arrived. The appellant completely undressed G and lay with him on the bed wearing only boxer shorts. After stroking G's legs, belly and penis, he French kissed G and at the same time vigorously rubbed G's penis, and then rubbed his own penis up and down against G's thigh, in the course of which the appellant removed his boxer shorts. He ejaculated on G's stomach and said, "now look at what you have made me do".
G said that the appellant would have him go to his room after lights out about twice a week for about two months, when similar incidents took place. It came to a stop on an occasion when G saw a small blond boy entering the room before him at a time when the appellant had told G to go there, and when he knocked the appellant answered and told him, "I have someone with me, don't come back", thereby terminating the relationship.
The evidence of S on the voir dire included a statement to the police in 2002, a statutory declaration in 2005 and oral testimony. In his oral testimony, he said that the sexual conduct occurred in 1970 (when he was 12 years of age). (However, before the jury he said it was in 1971.) It appears that in his statement, statutory declaration and on the voir dire he described only one distinct occasion and described in general terms what happened on other occasions. However, before the jury he gave evidence of two other distinct occasions. He described the following:
1The first occasion occurred when he was having trouble with his Latin studies. The appellant was a Latin teacher and told S to come to his room after tea one night for assistance. S arrived before lights out. The appellant sat next to him on the bed and put his arm round S's shoulders and started to rub S's penis and testicles. (Before the jury S added that the appellant got out his own penis and played with it and had S masturbate him. There was no ejaculation. Although in his statutory declaration and statement S related some further sexual conduct as if it occurred on that first occasion, before the jury it appeared to be described as occurring on a separate occasion.)
S said that over a period of about two or three months, the appellant called him back to his room on at least eight to ten occasions and similar acts occurred. He was always lured to the room by being told that he would be in a lot of trouble because of his poor schoolwork and would be punished. He said that the appellant always masturbated himself first and that after the first two or three occasions the appellant took all of his clothes off and made S do the same and they both lay on the bed and rubbed each other's penises. The appellant also rubbed S's backside on occasions with his hands and rubbed his erect penis against S's backside. He did not try to penetrate S's anus. On at least three occasions the appellant ejaculated on S's stomach and on each occasion gave S either a hand-towel or tissues to clean himself up. After the first occasion, the appellant would be wearing his dressing gown or pyjamas when S arrived. At the trial, S gave evidence of the two further distinct occasions as follows:
2He returned to the appellant's room when told to do so, purportedly for Latin coaching, but that did not happen. The appellant was wearing a robe which he dropped so that he was naked. He had S take his own clothes off. They lay on the bed facing each other. The appellant rubbed his penis against S's crotch and had S masturbate him. The appellant ejaculated on S's crotch. He also tried to kiss S on the neck and cheek. S's evidence was that he went to the appellant's room about four times in 1971 and on each occasion there was masturbation involved.
3S also gave evidence before the jury that the appellant rubbed his penis in the crack of S's backside and ejaculated on his backside. He gave him a towel or tissue to clean up whenever he ejaculated on S.
The evidence from N on the voir dire included a statement and oral testimony. He described the appellant as a kindly father-like figure and said that he liked him. In 1970 (when he was 12 years old), he went to the appellant's room a few times and talked to him about himself and his family. The conversation would lead to N crying and the appellant putting his arm around him. They would lie on the bed, where the appellant would cuddle him. The appellant gave him cigarettes and alcohol and would leave pornographic magazines in view. N would always go to the appellant's room in his pyjamas and the appellant would be in his dressing gown and underpants. In his oral testimony, N said that sometimes the appellant would be in his priest's uniform. N described four distinct occasions, as follows:
1After a time, the appellant lay on the bed and had N lie down and tell him all his troubles. The appellant then rubbed N's shoulders and nipples and told him that everything would be all right. He undid N's fly and rubbed his hand on N's penis. Such activity happened about twice a week. The appellant would tell N he had something to look at or show him and to see him in his room that night.
2The appellant had N rub baby oil on himself and he would have N masturbate the appellant and watch the appellant masturbate himself.
3On one occasion only, the appellant tried to penetrate N. It hurt and he did not try again. (Before the jury, N said that the appellant then proceeded to rub his penis up and down between N's buttocks until he ejaculated on N's back and buttocks.)
4The appellant was in charge of the infirmary. When N was sick and in a bed in the infirmary, the appellant played with N's penis under the bed-sheets. (Before the jury, N said that the appellant did the same thing when he was in the bath at the infirmary.)
N also gave evidence that the appellant would have N masturbate the appellant to ejaculation and the appellant would masturbate N to ejaculation. The appellant would also masturbate himself in front of N.
There are some differences between the events described by H and those described by the other three complainants. He only gave evidence of his hand being put inside the appellant's pants and of it being rubbed up and down on the appellant's penis. The other three complainants described the appellant touching and masturbating them, lying on the bed with them and rubbing his penis against them to ejaculation. However, S and N also described the appellant having them masturbate him. Particular similarities between the events and their circumstances as described by all four complainants were that the sexual acts all occurred between 1967 and 1970 or 1971 at Marist College where they were boarders and the appellant was a teacher; in the main the sexual acts were performed in the appellant's bedroom; three of the complainants were 12 or 13 and one 15; most if not all of the sexual acts occurred after school hours; and on most occasions the complainants went to the appellant's room in response to a request or invitation from him.
I am not persuaded that the learned trial judge erred by considering that the events described by all four complainants were substantially and relevantly similar. Certainly, the circumstances in which they occurred were substantially similar. A conclusion that the events described by H were related events when compared with those described by G, S and N has not been shown to be erroneous.
Ground 2 fails.
Ground 3
The ground is:
"The learned trial judge erred in admitting evidence of complaint and the circumstances in which complaints were made by the four complainants."
The first complainant to give evidence before the jury was S. After he had given evidence of what the appellant had done with him, counsel for the State asked whether, after he left school and settled down, he recalled the events, to which S unresponsively replied that he had told his wife all about it. Counsel for the appellant objected to the evidence, arguing that it was inadmissible because of the hearsay rule and applying for an order that the jury be discharged. As the evidence could have had no material impact on the minds of the jurors, the appellant was doomed to fail with that application, which he did. Shortly after, counsel for the State asked S, "How did you come to make a complaint to the police about this?" Once again, there was an objection by the appellant's counsel and an unsuccessful application for the jury to be discharged. However, counsel for the State did not pursue the matter with the witness.
The next complainant to give evidence was H. Almost as soon as his evidence began, counsel for the State asked how he had come to make a complaint against the appellant, whose counsel objected once again. In the course of making his submissions to the learned judge, counsel for the appellant made it clear that he had no intention of cross-examining H so as to raise the suggestion that H's evidence was contaminated in some way by reason of his awareness of publicity about allegations against the appellant or any other source. The learned judge overruled the objection. She accepted that the State could not lead evidence from a witness that was relevant only to the witness's credibility, but admitted the evidence because she expected that in her summing up to the jury she would give a direction in accordance with Longman v R (1989) 168 CLR 79 (concerning delay in a complaint). Her Honour considered that the issue of the delay in making the complaints would occupy the minds of the jurors and that "it is in my view relevant that the jury knows the circumstances in which a complaint was made".
Evidence was then led from H that he came to make a complaint against the appellant because one morning, his wife mentioned to him that she had read in the newspaper that the appellant had been charged with having a sexual relationship with a boy under 17 years; she perceived a reaction in him; and she persuaded him to discuss the matter with her and he told her that he "was in the same situation" as the boy.
The next complainant to give evidence was N. Once again over an objection from the appellant's counsel, evidence-in-chief was led from N that he did not complain about what the appellant had done to him until about 12 months before. He had been with his wife at the home of a friend who fostered children who had been abused and while driving home he "blurted it all out to my wife".
The complainant G gave evidence, the admissibility of which was not the subject of contention, that two days after the appellant had terminated their sexual relationship in 1969, he told his brother that he had gone to the appellant's room, that the appellant had touched his genitals and that he had acted like a true super hero and had punched the appellant so hard that his head had banged against a wall. He told his brother that untruthful version of events to explain why (consequent upon the appellant's rejection of him) he had run away from school and did not return until his brother found him two days later near a department store in Burnie, and persuaded him to return to the school. Over an objection from the appellant's counsel, he also gave evidence of a much more recent event. He had been sent a newspaper cutting that reported that the appellant and another priest had been charged with crimes relating to sexual conduct at Marist College. He said that as a result, he contacted the Burnie CIB and reported what had happened to him for the first time, apart from the occasion when he spoke to his brother in 1969. He gave a statement to Sergeant Stevens, who refused to give him any details about what he was investigating.
Except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding. Section 56(1). The hearsay rule provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation. Section 59(1). However, that rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. Section 60. An exception to the hearsay rule in criminal proceedings, if the maker of a previous representation has been or is to be called to give evidence, is evidence of a previous representation that is given, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. Section 66(2).
The hearsay rule in s59 does not apply to evidence from a witness merely because the evidence is about a previous representation that was made by the witness. Its prohibition is directed only to evidence of a representation the purposes of calling which is to prove the existence of a fact that the maker of the representation intended to assert by the representation. For that reason it is doubtful that the rule applied to the evidence of what G said to his brother. On G's evidence, what he told his brother was essentially untrue.
At the time G made his representations to his brother in 1969, the events he was untruthfully asserting were only two days old and for that reason, counsel for the appellant conceded that they would have been fresh in his memory and that the exception to the hearsay rule in s66(2) applied. On the other hand, counsel argued that apart from that piece of evidence, the evidence of all of the complainants of the making of their complaints was excluded by the hearsay rule because the events to which their complaints related had occurred about 30 years earlier and could not be said to have been fresh in their memories. See Graham v R (1998) 195 CLR 606. However, it seems to me that counsel for the State did not seek to call the evidence about the making of their complaints in breach of the hearsay rule in s59(1) because he was not seeking to use that evidence to prove the existence of facts that the witnesses intended to assert when they made those complaints. In effect, the evidence of the witnesses only explained how, when and in what circumstances they came to make their complaints against the appellant, and not the content of those complaints. The evidence did not include the facts they intended to assert by their representations when they made them. All S said in evidence was that he told his wife all about "it". H merely said that his wife "gently persuaded me to discuss it a bit further with her" and he told her that he "was in the same situation" as the boy referred to in the newspaper report that the appellant had been charged with having a sexual relationship with a boy under 17 years of age. N's evidence was merely that he had "blurted it all out" to his wife. G's evidence was that he contacted the Burnie CIB and reported what had happened to him. None of them gave any detail of what they said. If counsel for the State had sought to call evidence from the complainants of the detail of what they complained about, the evidence may have breached the hearsay rule, but by stopping short of calling that evidence, the rule was not breached.
The question that remains for determination when considering this ground is whether the evidence breached the credibility rule in s102. Evidence that is relevant only to a witness's credibility is not admissible. Exceptions to that rule are evidence adduced in cross-examination under ss103 and 104 and evidence adduced in re-examination under s108(1), subject to the requirements of re-examination imposed by s39 that the questions must be about matters arising out of evidence given by the witness in cross-examination, unless the court otherwise gives leave. Another exception, in s108(2)(b), is that the credibility rule does not apply to evidence of a prior consistent statement of a witness if it is or will be suggested, either expressly or by implication, that evidence given by the witness has been fabricated or reconstructed, whether deliberately or otherwise, or as the result of suggestion, and the court gives leave to adduce the evidence of the prior consistent statement. That exception does not arise for consideration here because such leave was not sought from or given by the learned trial judge and because, once again, the contents of what the complainants said was not sought to be led.
If the evidence was relevant only to the credibility of the witnesses who gave it, the credibility rule excluded it. Should the evidence in question have been so categorised? The learned trial judge thought that it should not and that it was relevant to the delay by the complainants in making their complaints which she would highlight for the jury when she gave a direction in accordance with Longman v R (1989) 168 CLR 79. There are two basic reasons for directions in accordance with Longman v R and Crofts v R (1996) 186 CLR 427. One is that the credit of the complainant may be affected in circumstances where there has been a long delay between the happening of the relevant events and the making of the complaint and the laying of charges. The other is that the person charged, so long after the material events, may have been seriously disadvantaged in the ability to defend the charge, for example, by an inability to adequately test the evidence of the complainant and by a lack of available evidence that is contrary to the evidence of the complainant. Evidence that merely establishes the fact that there was a delay in the making of a complaint and the accused person becoming aware of what was alleged against him, will be particularly relevant to the second of those reasons. However, evidence explaining why a complainant delayed making a complaint or what motivated a complainant to make a complaint many years after the material events, particularly in a case where no earlier complaint was ever made, will generally be relevant only to the credit of the complainant. In other words, a question asked of a complainant, in the course of evidence-in-chief, as to how the witness came to make a complaint to the police, or to anyone else, should generally be disallowed for it seeks to elicit evidence that is relevant only to the witness's credibility. For that reason, the evidence of H, N and G of how they came to make their complaints was inadmissible, and that is so regardless of whether their evidence was to be used as coincidence evidence at the trial. The unresponsive statement of S that he told his wife "all about it" was also inadmissible, because it was not relevant to any issue at the trial.
Ground 3 of the appeal succeeds.
Ground 4
I agree with the conclusion of the other members of the Court, for the reasons they have given, that this ground succeeds.
Ground 5
I agree with the conclusion of Blow J, for the reasons he has given, that this ground fails.
Ground 6 – Evidence of Dr Sale
The ground is:
"(1)The trial judge erred in admitting the evidence of Dr Sale.
(2)The trial judge failed to give the jury adequate directions in relation to the evidence of Dr Sale.
(3)The trial miscarried by reason of comments of the prosecutor in his address to the jury concerning Dr Sale."
The learned trial judge admitted Dr Sale's evidence under the Act, s79A, which is in these terms:
"79A A person who has specialised knowledge of child behaviour based on the person's training, study or experience (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse) may, where relevant, give evidence in proceedings against a person charged with a sexual offence against a child who, at the time of the alleged offence, had not attained the age of 17 years, in relation to one or more of the following matters:
(a) child development and behaviour generally;
(b) child development and behaviour if the child has had a sexual offence, or any offence similar in nature to a sexual offence, committed against him or her."
The evidence of Dr Sale dealt primarily with two topics, the tendency of the victims of child sexual abuse not to report what has happened and the likelihood that they will suffer psychiatric and psychological problems. Dr Sale said that they often feel helpless and unable to complain to others about what is occurring, and tend to feel entrapped in the sense that if, for any reason, they are unable to disclose the sexual abuse at a very early stage of its occurrence, they increasingly feel guilty and ashamed, almost as if they were an accomplice of the abuser, and therefore become secretive about what has occurred. They may keep it secret for many years. Some may be well into middle age before making their first disclosure. Most of them retain a continuing memory of what happened but suppress it. They keep it away from the forefront of their mind because it causes distress. Some appear to be able to delete the matters from their memory entirely, although it may re-surface in the memory later, often when they are faced with circumstances that have some resemblance to what occurred to them. Dr Sale added that the abuser will probably have said something to the child which tends to exploit the feelings of shame and guilt. (The only evidence that the appellant may have done so was the evidence of S that the appellant told him not to tell anybody what he had done.)
Such evidence was relevant to the credit of the complainants. It would have been obvious to the jury that if the complainants were telling the truth, they had kept quiet about what the appellant had done to them for close to 30 years before they eventually disclosed it to the police. Dr Sale's evidence tended to rebut an argument that their failure to make an earlier complaint was harmful to their credit.
The only restriction in s79A is relevance. So long as the evidence is relevant to an issue at the trial, evidence in relation to child development and behaviour generally and child development and behaviour if the child has had a sexual offence committed against him or her, is admissible. For that reason, the evidence was admissible under s79A, unless s102 operates. However, s102 prohibits the admission of evidence that is relevant only to a witness's credibility. The question that arises is, which section prevails? Neither section is expressed to be subject to the other or to any other provision in the Act. Section 102 contains a rule that is of general application, whereas s79A contains a rule that applies to a special category of cases that concern charges of sexual abuse against children. In the circumstances, the principle of interpretation embodied in generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail) should apply and s79A prevails. See Pretty v Solly (1859) 26 Beav 606 at 610; Refrigerated Express Lines v Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347; Smith v R (1994) 181 CLR 338 at 348. For these reasons, the content of the evidence of Dr Sale explaining why victims of child sexual abuse might not complain, or might delay before doing so, was admissible under s79A, subject to the question of Dr Sale's qualifications to give evidence of his opinions. In that regard, I agree with Blow J, for the reasons he has given, that Dr Sale was so qualified.
The other topic dealt with by Dr Sale was that children who have been the subject of sexual abuse are at risk of suffering a range of problems in adolescence and adulthood, principally depression, relationship problems, sexual adjustment problems and substance abuse problems. The evidence became relevant as a result of the cross-examination of S in which he agreed that he had been suspended from school for pushing or punching a teacher; he was caned a lot of times at school for disciplinary reasons that included smoking; since leaving school he had been in trouble with the police; he had been caught for drink driving four times; he had convictions for growing, possessing and selling marijuana; he had regularly used marijuana in large quantities for about 15 years; and at a later stage he used morphine intravenously.
The evidence of Dr Sale as to how victims of child sexual abuse are likely to be affected, tended to prove that S had been sexually abused as a child. Therefore, it was relevant and admissible. However, its probative force was slender, for there may well have been many other explanations for S's behavioural problems, apart from the alleged offending of the appellant. The seeds for them may well have been sown before he became a student at Marist College.
I also agree with Blow J that the learned judge's directions to the jury concerning Dr Sale's evidence were not inadequate. The learned judge reminded the jury of much of that evidence. She made it clear that Dr Sale had not met any of the complainants and that his evidence was of a general nature about the behaviour of victims of child sexual abuse, to assist the jury understand the question of delay in complaint and other consequences of child sexual abuse. She made it clear that it was not Dr Sale's evidence that the complainants' evidence must be truthful. She reminded the jury of Dr Sale's evidence in cross-examination that the cause of persons suffering substance abuse problems could be other than sexual abuse as a child.
The ground of appeal also complains about comments made by counsel for the State in his closing address. My understanding of the attack is that counsel used the evidence to bolster the credit of the complainants. For the reasons I have given that the evidence was admissible, the State was entitled to use it in that way (notwithstanding the disavowal to this Court by the respondent's counsel that there was an attempt to so use the evidence). Counsel used Dr Sale's evidence so as to make the point to the jury that victims of child sexual abuse may remain silent about what is happening.
The ground fails.
Ground 7
I agree with Blow J, for the reasons he has given, that ground 7 fails.
Ground 8
I agree with Blow J, for the reasons he has given, that ground 8 fails.
Ground 9
I agree with the views of Blow J concerning the impropriety of the individual comments by the Crown prosecutor in his closing address. Whether there should be a new trial arising out of a miscarriage of justice occasioned by the prosecutor's comments will be addressed at the conclusion of these reasons.
Ground 10
The ground is:
"The trial judge erred in failing to direct the jury on good character evidence."
Father Pidcock was the bursar and a teacher at Marist College from 1971 until 1977. In the course of his evidence, he said that he had never heard of any complaints concerning the behaviour of the appellant towards the students. Father McFadgen was a teacher at the college from 1969 to 1971 and in charge of the junior dormitory in 1969 and 1970, and in the course of his evidence he said that he did not hear of any complaints about the appellant's conduct as a teacher or towards the students. In addition, the appellant gave evidence in the course of cross-examination, that if there had been any complaint against him it would have been made to the college principal, who had never made any reference to him about a complaint having been made against him and that he had never heard any criticism of him by students or teachers. He also gave evidence that he had remained celibate in accordance with his vows in 1955 and that apart from a period of university study, he was involved in education in schools until 2003.
No directions were given by the learned trial judge to the jury concerning the question of the appellant's character or the use the jury might make of that evidence. No such directions were sought by the appellant's counsel when, at the conclusion of the summing up, the jury had retired to their room and the learned judge invited submissions from counsel in the usual way. A further direction was given, at the request of the appellant's counsel, concerning the use of coincidence evidence.
Before inviting the jury to consider its verdicts, the learned judge asked if they wished to be reminded of any of the evidence. They asked if they could watch a video replay of the appellant's evidence. With the agreement of counsel, the replay commenced but at some point the transmission of the sound broke down and the learned judge concluded by reading out the transcript of the appellant's evidence. The jury retired to consider its verdict. Counsel for the appellant then announced that he wished to seek an additional direction to the jury. The learned judge indicated that she would not agree, having regard to the fact that counsel had been given an earlier opportunity to seek further directions. Counsel for the appellant persisted with his application, so that it would be recorded. He said:
"I accept your Honour's ruling in that regard but it does occur to me that in the light of the jury's question and this evidence being given as it were, a degree of prominence, by having been read out to them again, that there were no directions in your Honour's summing up to the jury on the question of character. The issue of character has effectively been raised in this case through a number of questions and perhaps more particularly in the questions that were asked by my learned friend in cross-examination of the accused."
The learned judge confirmed that she would not recall the jury to give a further direction.
Counsel for the appellant submitted to this Court that the learned judge ought to have given a direction to the jury about the use to which the jury could put the evidence of the appellant's good character. He submitted that the repetition of the appellant's evidence, particularly the cross-examination, reinforced the need for full directions to be given on character.
The evidence that the appellant was of good character was relatively slight and consisted largely of evidence that the appellant and two other teachers at Marist College heard no complaint about his conduct while at the college. He had left there by 1972. There was no evidence of good character in the usual form, for example by him giving evidence that he had never been convicted of an offence or by witnesses giving evidence that he had always been regarded as of good character and reputation. There may have been some robustness about the way the prosecutor challenged his evidence, particularly his denials of the allegations against him, but the cross-examination revealed nothing to suggest that he was of bad character or, for that matter, other than of good character.
In Simic v R (1980) 144 CLR 319 at 333 the High Court held that there was no rule of law that in every case in which evidence of good character is given, the trial judge must give a direction as to the manner in which it can be used, although the court acknowledged that generally speaking, it would be wise to give it if asked to do so. The High Court considered the matter more recently in Melbourne v R (1999) 198 CLR 1 and the majority repeated the view that the trial judge is not obliged to give such a direction, adding that there is a discretion whether or not to do so after evaluating the probative significance of such evidence in relation to both the accused's propensity to commit the crime charged and the accused's credibility.
The probative significance of the evidence upon which the appellant's counsel relied before this Court was not much. That no complaints about his conduct were made in the course of a few years over 30 years ago said nothing for his credibility. It did little more than confirm the evidence of the complainants that they made no complaint at that time. It was not capable of establishing a great deal about the appellant's character. However, that he had successfully completed a career in education over a period exceeding 30 years, did support a conclusion that he was of good character.
In all the circumstances and having regard to the fact that no character direction was sought by the appellant's counsel when submissions first were sought by the learned judge and that the application for the direction came almost as an afterthought after the jury had retired to consider its verdict, it has not been shown that in exercising her discretion whether or not to give such a direction, the learned judge erred.
The ground fails.
Ground 11
The ground is:
"The directions given to the jury on the elements of the offence of indecent assault were erroneous."
The ground reflects a misunderstanding by the appellant's legal advisers of the degree of force necessary for an indecent assault to be committed. It has long been accepted for the purposes of the Code that an unlawful and intentional touching in indecent circumstances is all that is required. The learned judge made no error in her directions about it.
Conclusion
In my view, grounds 3, 4 and 9 succeed. Under ground 3, the inadmissible evidence that was heard by the jury was minor on its face. It consisted of the evidence of H explaining that he made his complaint against the appellant as a consequence of his wife reading in a newspaper that the appellant had been charged; the evidence of N explaining that he made his complaint about 12 months before as a result of visiting a friend who fostered abused children and "blurting it all out to my wife"; the evidence of G explaining that he made his complaint to the police upon reading a newspaper cutting that the appellant and another priest had been charged; and the unresponsive evidence of S that he told his wife all about "it". In breach of s107 it supported their credit, particularly of H, N and G, and the appellant was unable to adequately test it. Under ground 4, the ruling of the learned judge that prohibited the appellant's counsel from cross-examining State witnesses about the treatment and therapy and their use of the book "The Courage to Heal" may have prevented the raising of a possibility or likelihood that two of the complainants had distorted or unreliable recollections. Through the evidence of Dr John Roberts, the appellant had hoped to discredit the evidence of S and H if he had been able to establish the possibility that S had received eye movement desensitisation reprocessing therapy or that H had read the book in question. It is impossible to forecast that what the appellant was seeking to do would have proved unsuccessful. Under ground 9, I do not consider that the prosecutor's statements, without more, amounted to a miscarriage of justice. However, the success of all three grounds in combination do establish that.
Accordingly, I would quash the convictions and sentence and order that there be a new trial of the four charges in the indictment.
Appeal against sentence
There is also an appeal against the sentence on the ground of severity. In the event of all of the convictions standing it was not maintained. As all of the convictions and sentence will be quashed and a new trial ordered, there is no need to deal with it.
File Nos CCA 14/2006
CCA 22/2006
ROGER MICHAEL BELLEMORE v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
21 December 2006
The appellant stood trial on four counts alleging the crimes of maintaining a sexual relationship with a young person contrary to the Criminal Code, s125A. The indictment had originally alleged the commission of five crimes involving different complainants, one count being severed and a separate trial on that count ordered before a jury was empanelled. The indictment comprised crimes committed against four complainants said to have been committed between 1967 and 1971. Parliament enacted s125A in 1994, but provided for its retrospective operation.
The terms of the indictment were that the appellant:
"(1)… at Marist College … between on or about the 1st day of July, 1968 and on or about the 30th day of November, 1969 maintained a sexual relationship with G, a boy born on the 18th day of May, 1954.
(2)… at Marist College … between on or about the 1st day of February, 1967 and on or about the 30th day of November, 1968 maintained a sexual relationship with H, a boy born on the 23rd day of January, 1958.
(3)… at Marist College … between on or about the 1st day of February, 1971 and on or about the 30th day of November, 1971 maintained a sexual relationship with S, a boy born on the 4th day of September, 1957.
(4)… at Marist College … between on or about the 1st day of February and on or about the 30th day of November, 1970 maintained a sexual relationship with N a boy born on the 31st day of January, 1958."
The fifth count had involved another former student of Marist College. The learned trial judge did not sever that count because of general prejudice but confined her decision to that of "risk of contamination of evidence". She determined that she:
"… could not be satisfied in the circumstances that there might not be a real risk of contamination in respect of his evidence."
The appellant was convicted on each count and sentenced to a term of imprisonment of five years with a non-parole period of three years.
Validity of enactment
Before considering the appeal generally, it is first necessary to determine whether there could have been any conviction for conduct committed long before the enactment.
The appellant challenged the validity of the Code, s125A, on two bases, namely:
"Ground 1:
(1)Section 125A of the Criminal Code (Tas) is invalid is [sic] insofar as it purports to vest in the Supreme Court of Tasmania, a court vested with federal judicial power under Chapter III of the Constitution, functions which are incompatible with the exercise of the judicial power of the Commonwealth.
(2)Alternatively, s125A of the Criminal Code (Tas), properly construed, has no application in relation to conduct committed wholly before the commencement of the provision."
Two central arguments were advanced, both said to involve incompatibility with the exercise of the judicial power of the Commonwealth. The retrospective enactment creating criminal liability is said to be incompatible with the Constitution, ChIII, whilst the provision governing the form and notice of the charge or charges is said to preclude the possibility of a fair trial as required by law.
The Code, s125A, provides:
"125A ¾ Maintaining sexual relationship with young person
(1) In this section, 'unlawful sexual act' means an act that constitutes an offence under section 124, 125B, 126, 127, 127A, 133 or 185 whether committed before, on or after the commencement of this section.
(2) A person who maintains a sexual relationship with a young person who is under the age of 17 years, and to whom he or she is not married, is guilty of a crime.
Charge:
Maintaining a sexual relationship with a young person under the age of 17 years.
(3) An accused person is guilty of having committed an offence under subsection (2) if, during a particular period when the young person was under the age of 17 years ¾
(a)the accused committed an unlawful sexual act in relation to the young person on at least 3 occasions; and
(b)the young person was not married to the accused.
(4) For the purposes of subsection (3) ¾
(a)it is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed; and
(b)the unlawful sexual act that was committed on any one of the occasions need not have been the same as the unlawful sexual act that was committed on each or any of the other occasions.
(5) It is a defence to a charge under subsection (2) to prove that the accused person believed on reasonable grounds that the young person was of or above the age of 17 years.
(6) An indictment charging a person with having committed an offence under subsection (2) ¾
(a)is to specify the particular period during which it is alleged that the sexual relationship between the accused and the young person was maintained; and
(b)is not to contain a separate charge that the accused committed an unlawful sexual act in relation to the young person during that period.
(7) A prosecution for an offence under this section is not to be commenced without the written authority of the Director of Public Prosecutions."
A person charged under s125A retains the same defences based on age differences as provided for by the Code, s124.
Legislation declaring certain acts to be criminal ought not be given retrospective effect so as to apply to such acts committed prior to the legislation unless such an intention is clearly expressed (R v Griffiths [1891] 2 QB 145; R v Harper (1894) 12 NZLR 413). The Code Act, s8, which provides for the saving of common law defences does not itself operate to bar such legislation. Legislation which is procedural, as where a time limit is altered for the commencement of proceedings alleging sexual misconduct (R v Chandra Dharma [1905] 2 KB 335) does not come within the ambit of matters provided by the Code Act, s8.
Retroactive or retrospective legislation has long been accepted as a valid exercise of power by a Parliament, both State and Commonwealth (R v Kidman (1915) 20 CLR 425; R v Snow (1917) 23 CLR 256; Maher v Hamilton [1990] Tas R 199). The legislation here considered does not of itself create a new crime but restates historic prohibited conduct (rape, indecency and protection of young persons). The statement of the crime is the compilation of existing crimes, a combination of which, if found by a jury or pleaded to, constitutes a distinct named form of culpable conduct but remains a procedural compilation. (DPP (Tas) v M (2005) 154 A Crim R 475; Emery v R (1999) 9 Tas R 120.) The compilation permits proof of commission in a particular way and without the historic necessity of specificity in pleading. It might constitute a potent vehicle for prosecutors and create problems of fairness and the like (Crofts v R (1996) 186 CLR 427; Longman v R (1989) 168 CLR 79) but is not outside the power of the Tasmanian Parliament (Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501). The basis for validity is similar to that recognised in Commonwealth legislation proscribing child sex tourism offences outside of Australia, itself dependent on the external affairs power of the Commonwealth. For the State of Tasmania, its basis would be a law for "the peace, order and government" of the State (Hart v Woods [1972] Tas SR 143).
In Polyukhovich the issue was that of the "geographical externality principle", whilst in this case the claimed defect giving rise to inconsistency, and hence invalidity, is temporal retrospectivity. In XYZ v Commonwealth (2006) 227 ALR 495, Kirby J dealt with the problem of conflict with the Constitution in the following terms at pars114 – 118:
"Conflicting features of the Constitution: The arguments of the plaintiff in this case have planted a doubt in my mind concerning the geographical externality principle. It is a doubt that was not previously there. I do not accept, as the plaintiff urged, that the Polyukhovich principle should be overruled. However, the plaintiff's submissions call attention to some difficulties in the 'modern doctrine' that have not, so far, received sufficient attention from this Court. Such attention may be needed in future cases where the sole constitutional foundation available or propounded for a federal law is that it is made with respect to facts, persons or things external to Australia, without connection otherwise to relationships with other nation states and with international organisations that seem to be implied by the composite expression 'external affairs'.
In accepting arguments about the scope of federal legislative powers, this Court should be conscious of two important and sometimes conflicting features of the Constitution. The first is the federal character of the polity thereby created. This introduces checks and balances. It divides the power of lawmaking. The divisions are essential to the constitutional design. They are also protective of individual liberties and personal freedoms. Liberties and freedoms can sometimes be endangered by the concentration of power within modern government. Thus in Australia, whatever the inconvenience, the military are always subject to 'civil power [and] constitutional norms': see X v The Commonwealth (1999) 200 CLR 177 at 230 [166]. It may therefore be necessary for this Court to look afresh at its federalism jurisprudence to ensure that it accords with the constitutional text and purpose.
The second feature is the functional capacity of the Constitution to adapt so as to be relevant to a world in which Australia must now operate as an independent nation state - a world quite different from that of 1900. In that world, there are now so many facts, persons and things external to Australia's geographical borders that, if this is accepted as a valid criterion for sustaining federal laws applicable to facts, persons and things within Australia, there would be almost no limit to the lawmaking power thereby accorded to the Federal Parliament. This is why Brennan J in Polyukhovich (1991) 172 CLR 501 at 552-553. proposed the need for some additional factor of connection ('nexus' with Australia) to reconcile the second stated feature with the first. The present case suggests to me that the Court needs to revisit Brennan J's reasoning and to elaborate the geographical externality principle further before applying it as an accepted doctrine of Australian constitutional law.
Avoiding problematic issues: Having identified the problems raised by the plaintiff, I can circumvent them in this case. There is, in my view, an alternative foundation for the constitutional validity of the challenged provisions of the Crimes Act. At the risk of being criticised as 'unduly timorous or full of self-doubt', (Allan, '"Do the Right Thing" Judging? The High Court of Australia in Al-Kateb', (2005) 24 University of Queensland Law Journal 1 at 11) I will therefore place the geographical externality principle aside in the present case. I will do so because of what I regard as unresolved difficulties that can be left to another day.
The main alternative bases propounded by the Commonwealth for affirming that the impugned provisions of the Crimes Act constitute laws with respect to 'external affairs' were that, on the uncontested materials placed before this Court, they were laws with respect to a 'matter of international concern' or laws affecting Australia's external relationships with other nation states and with international organisations. Should either of these arguments be accepted? Do they sustain the provisions of the Crimes Act as valid laws, made under the Constitution?"
Matters such as citizenship, absence of a treaty, involuntary detention, relevant fundamental rights and Constitutional immunity from removal, did not prevent the High Court from upholding the validity of legislation intended to punish war crimes in Bosnia and Croatia in Vasiljkovic v Commonwealth [2006] HCA 40.
Retrospective legislation ought be tested in a manner based on whether its effect is a departure from the manifest intention of Parliament (Hogan v Hogan [1981] 2 NSWLR 768), or conflicts with another law and continues to depart from that intention even in instances where a citizen seeks to deny himself or herself the benefit of ameliorating, but retrospective, legislation (Lawrence; ex parte (1972) 3 SASR 361). Repeal of old legislation and replacement with similar but more modern forms of enforcement, although retrospective, remain valid enactments by the State (R v The Justices of Roma, ex parte Murphy [1906] SRQ 192).
General retrospective criminal legislation intended to cover acts of criminal conduct in World War II were held not to be inconsistent with the Constitution or the Constitutional power of the Commonwealth, Polyukhovich (supra).
The Code, s7, provides:
"(1) No person shall be punished as for a crime if at the time of his trial the act or omission with which he is charged no longer constitutes a crime."
Here the components which can constitute the crime of maintaining a sexual relationship were themselves crimes at the time of the events which are the subject of the indictment. The appellant, at the date of the amendments, would have remained susceptible to the application of the Code, ss122, 123, 124 and 127. The interpretative approach to s125A ought be similar to amendments which enlarge or alter the definition of the form of conduct which is to be prohibited (eg, the term "sexual intercourse", see Richardson v R [1978] Tas R 178; R v Perriman [2000] TASSC 108). That approach is consistent with the principles of statutory interpretation historically applied (R v Griffiths (supra); Waddington v Miah [1974] 1 WLR 683) including those taken by a court engaged in the interpretation of constitutional provisions (R v Cuerrier (1998) 127 CCC 3d 1). A challenge to the validity of "sentences of indefinite imprisonment", based on a similar argument has recently been unsuccessful in an appellate court (McGarry v Western Australia (2005) 159 A Crim R 216).
The amending s125A(4) does not require the prosecution "to prove the dates on which any of the unlawful acts were committed" or their exact circumstances. The amendments can be regarded as altering the traditional balance between the requirement of specificity and the impossibilities of precise recall (especially by children) of events long past. There have been alterations to or removal of the historic rules governing corroboration, abrogation of recent complaint, evidentiary uses of a complainant's sexual history and/or reputation and marital exemption to forms of sexual assault. A statement that the crime or composite events occurred during a general but identified period still requires identification of at least three events during that period. To that extent the amendment can be seen as procedural, rather than substantive (Rodway v R (1990) 169 CLR 515). The form of the legislation is similar to that considered by the High Court in KRM v R (2001) 206 CLR 221, with no disapproval of the constitutional validity, inconsistency or irredeemable unfairness in that case. It would appear that Parliament intended to provide for some care in the exercise of discretion in the use of the wide power afforded and the bringing of proceedings within the section by requiring (s125A(7)) prosecutions to be commenced only with "the written authority of the Director of Public Prosecutions". Whether the enactment of the subsection provides such protection is a different matter which cannot be a ground for a constitutional challenge (see Lafitte v Samuels [1972] 3 SASR 1; Lodhu v R [2006] NSWCA 121; R v Cuerrier (supra)).
One form of abuse of power which might arise is in circumstances where the prosecution relies on an initial or preparatory act (indecent touching), together with another act, both or all occurring within the same event or occurrence, as constituting two or three "occasions" so as to activate the procedural and evidentiary provisions of s125A. Again, inappropriate use of power in a particular circumstance would not provide a basis for constitutional challenge, but one for the strict construction of the terms of the enactment (Saraswati v R (1991) 172 CLR 1). Consideration of that potential for the misuse of statutory power is not required on the hearing of this appeal.
Accepting, for the purpose of this appeal, that the Constitution, ChIII, provides for the protection of substantive, as well as procedural rights, or that at least some of which overlap (eg, right to a fair trial, Dietrich v R (1992) 177 CLR 292, Polyukhovich v Commonwealth of Australia (supra), Deane J at 607) it does not follow that s125A(4) offends such rights. The section does not involve the "antithesis of the judicial process" (Kable v DPP (1996) 189 CLR 51). The section does not seek to usurp either the power of a presiding or sentencing judge or a jury required to consider a verdict on the indictment or transform any determination into one to be made ex parte (Criminal Proceeds Confiscation Act 2002 (Qld), Re [2003] QCA 249; Baker v R (2004) 78 ALJR 1483; Fardon v Attorney-General (2004) 78 ALJR 1519). Consequence or outcome is not necessarily an appropriate test for the determination of constitutional validity or contravention or otherwise of the Constitution, ChIII. (Al-Kateb v Godwin (2004) 219 CLR 562).
In Saraswati v R (supra), the High Court was required to deal with amendments to protective sexual legislation which had altered the time limits for the prosecution of certain offences and the definition of characterisation of acts of indecency. Although the court was divided on the outcome, both majority and minority applied the principles of strict construction. As Gaudron J observed at 17 - 18:
"It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v Attorney-General (Vict) (1961) 106 CLR 268, per Fullagar J at p 276, and per Windeyer J at p 290. More particularly, an intention to affect the earlier provision will not be implied if the later is of general application (as is the provision by which indecent dealing is constituted an offence under the Act) and the earlier deals with some matter affecting the individual (as does the limitation provision in s78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation."
That ought be the approach here. It is a test of strict interpretation, not constitutional invalidity which the Court ought apply.
Ground 1 ought not succeed.
General
The changes enacted by Parliament are to be applied in a manner which retains the integrity of the trial process. They ought not permit the conduct of an unfair trial where the capacity of a citizen, subject to sanction, to identify either his accuser or the circumstances of the crime, or to advance through evidence material which meets, explains, or weakens the strength of the allegations is prevented. One of the complex roles of a trial judge required to ensure the conduct of a fair trial is to ensure that the "true judges", the jury, are not overwhelmed by accumulated generalities (see Similar Facts after Phillips, Gans (2006) Crim L J 224). A series of statements or narratives of persons to the effect that at some time in the past a range of criminal events occurred, can cumulatively produce verdicts through sheer weight and generality of the claims or assertions. Here the prosecutor had available a number of potent evidentiary and procedural statutory provisions for use at trial. No complaint can be had that use was made of those provisions. Once the Director of Public Prosecutions had authorised in writing the indictment (s125A(7)) the prosecutor was entitled and obliged to use permitted statutory provisions in furtherance of his case or, as here, cases. But responsibility is required, together with that statutory entitlement. Use of those entitlements, warranted by experience, ought not destroy the capacity for a fair trial. Propositions stated in cases such as Kable (supra); Dietrich (supra), Re Nolan; ex parte Young (1991) 172 CLR 460; Rozenes v Baljajev [1995] 1 VR 533; Lafitte v Samuels (supra), were not and ought not become mere rhetoric. The prosecutor ought remain responsible to the State for the fair conduct of the case and the responsible exercise of power afforded by the Parliament.
Defence counsel complained to the learned trial judge about those comments. He submitted that the Crown prosecutor should not have said, "We know why they are not here", since there was no evidence, except from S, to explain their absence. Subsequently the learned trial judge directed the jury to the effect that, because the names of the individuals were not disclosed until S was giving evidence, they should not infer that the reason those individuals were not called as witnesses was that they might not give evidence that could be helpful to the Crown. She also told the jury that the late disclosure meant that the appellant could not test S's evidence "by reference to what those boys might or might not have said." Subsequently defence counsel asked for a direction in accordance with Jones v Dunkel (1959) 101 CLR 298, but her Honour refused to give one. That refusal was appropriate. See Dyers v R (2002) 210 CLR 285 at 291.
Counsel for the appellant made a submission to the effect that it was inappropriate for the prosecutor to tell the jury, on the basis of the evidence of S alone, that the reason the individuals referred to by S did not come forward was that they lacked stamina, and did not want to give evidence of what had happened to them. The comments to that effect were certainly inappropriate. The jury could not properly have made any finding as to why the individuals in question had not given evidence. It was not fair to tell the jury that the obvious reason was a lack of stamina. That unfair comment was not corrected by the learned trial judge.
Cause of drug and alcohol abuse by S
The Crown prosecutor said this to the jury about S:
"The Defence have painted his life as one of crime, he is not denying it, he is not denying he was – he had possession of drugs, he is not denying he used them, he is not denying he got drunk, he is not denying the accusations they put to him, he frankly admitted them. He is not trying to build himself up into some hero that you would admire. He was a child of entrapment I say and he made his life and thereafter a quasi criminal one, why? But I suggest you might infer that that behaviour came because of his experiences, maybe at home, but most particularly his experiences at that school, Marist College."
Counsel for the appellant submitted that the evidence of S abusing drugs and alcohol did not support the Crown case, and could properly be taken into account only as evidence adversely affecting his credibility. I disagree. That evidence tended to support the Crown case, because of Dr Sale's evidence to the effect that child sexual abuse victims tend to abuse drugs and alcohol. I think the Crown prosecutor overstated the significance of the evidence when he suggested that the jury should infer from that evidence that S must have been sexually abused at the school. That overstatement must be taken into account in assessing whether there has been a miscarriage of justice.
S gave evidence on the second voir dire that he had been sexually abused not just by the appellant, but also by another priest, whom he named. That evidence was not before the jury. If it had been, they probably would have given less weight to the evidence of S abusing drugs and alcohol as evidence tending to support the Crown case. It was improper for the Crown prosecutor to urge the jury to give any weight at all to that evidence when he knew, and they did not know, of the evidence concerning sexual abuse by a second priest.
At the trial, defence counsel told the learned trial judge of allegations that S had been sexually abused by a number of other people. On the appeal, counsel for the appellant relied on those assertions as part of his argument. There is no need to analyse the evidence that was received on the voir dires in relation to the individuals other than the second priest named by S since the Crown prosecutor's knowledge of the allegations concerning the second priest, without more, was sufficient to make the comments in question absolutely improper.
Crown prosecutor's views about N
The Crown prosecutor said this to be jury about N:
"I felt that he was a very angry and emotional man, really caught up, he held himself very, very close to the bone if you can put it that way. I think, I saw there a sort of, an anger I hadn't seen in any witnesses, certainly not in this trial. I'd ask you to reconsider that and think of how he gave evidence and you would, I suggest, be satisfied by his demeanour and the nature of his evidence and other evidence coming from priests that what he's telling you is the truth, he did have a sexual relationship with this man."
It was improper for the Crown prosecutor to tell the jury of his own reaction to N's evidence. By doing that, he was giving evidence from the bar table in relation to N's credibility. In R v Liristis (2004) 146 A Crim R 547, the New South Wales Court of Appeal considered a passage in a Crown prosecutor's closing address in which he told the jury of his own reaction to the accused's evidence, and also told them that defence counsel was just as surprised as he was at some of the accused's answers. Kirby J, with whom Studdert and Hislop JJ agreed, said that complaint about those comments was warranted.
The improper comments by the Crown prosecutor must be taken into account in deciding whether there has been a miscarriage of justice.
Comments about the Longman warning
The Crown prosecutor anticipated that the learned trial judge would give the jury a warning in relation to delay in accordance with Longman v R (supra). In the course of his closing address, he said the following:
"… we will have, appropriately from Her Honour, in her directions to you a warning given about the dangers of convicting on cases such as this. And it's given in respect of the difficulty it places defendants in that it's difficult to answer something that happened 35 years ago – or 30 years ago, by coming to this court and calling evidence. Where are the witnesses they could have called – and such circumstances such as that. Well, I suggest members of the jury they haven't been too short of witnesses in this case. The Fathers they have called have quite - expressed to have very good memories of what went on in that school at that time. They may be telling you the truth. You might find they're not. But nevertheless Her Honour must give you that direction. It applies particularly where you have no supporting evidence. As Mr Byrne said corroborating evidence - let's call it simple supporting evidence. But you do have supporting evidence in this case, yes you have a long-time complaint, but there is supporting evidence, there is corroborating evidence and it comes from firstly of course the two [G's], [G's brother] corroborates [G] about the went too far, he grabbed the wrong organ. I think we all understand and as did [G's brother] what [G] was talking about then. And the law is that if a person makes a complaint to somebody shortly after the episode of abuse or anger or fight or whatever occurs evidence of that complaint can corroborate the substance of the victim's complaint. So you have that piece of corroboration for [G] … .
And then you have, if you accept it, the cross-admissibility of [G's] case through [S, N, and H]. Likewise you have the evidence of [H] to cross, being cross-admissible of the other three men. So you do have corroboration in this case, you do have similar facts, you do have the law of 'it ain't just coincidence'. Nevertheless her Honour must give you a warning about the timing and how hard it is to mount a defence, and I don't quibble with that warning, it is one all Courts make at all times. But I must say that her Honour will not say as part of that warning you cannot convict. You can, that is your decision and we cannot trespass on it."
Three witnesses gave evidence for the appellant before the jury. All of them were priests with whom he had worked at the school. Essentially their evidence concerned the opportunity, or lack of it, for the appellant to have committed the alleged assaults, as well as the appellant's good reputation.
The Crown prosecutor misquoted G's brother when he used the words, "he grabbed the wrong organ". The brother's evidence was that G told him that he had pulled a muscle when he was playing rugby; that he had been treated with linament on his legs; and that, "He said that they'd grabbed the wrong muscle." G's evidence, however, was that the appellant had kissed him on the mouth, stuck his tongue in his mouth, handled his penis, moved his own penis against his thigh, and ejaculated onto his stomach; that he had run away from the school; that his brother had found him; and that he had told his brother that the appellant had touched his genitals, and that he had responded by punching him. It was open to the jury to treat the brother's evidence as evidence that G had complained of the appellant touching his genitals.
In the passage I have quoted, the Crown prosecutor was obviously trying to take the sting out of the Longman warning that the learned trial judge was required to give. For one thing, he was suggesting that the Longman warning was inapplicable because of G's brother's evidence and the coincidence evidence. Also, he seemed to be suggesting that the warning was a routine direction that did not warrant much weight. He was trying to minimise the effect of the warning when he suggested that the appellant had not been "too short of witnesses". I think he went too far. Similar comments were considered by the New South Wales Court of Criminal Appeal in R v MM (2004) 145 A Crim R 148. Howie J said the following at 176:
"The Prosecutor addressed the jury at some length about the warnings to be given by the trial judge about the effect of delay. This in my opinion had no place in the Crown Prosecutor's address, especially where, as here, the Crown sought to explain to the jury why those warnings were required and how the jury were to use them. The Crown was at pains to point out to the jury that the trial judge was not going to indicate his personal opinion about the evidence of the complainant, nor was he going to invite the jury to acquit the accused, but rather that these warnings were always given in criminal trials and were in effect 'just common sense'.
In my opinion it is no business of the Crown to seek to explain the reasons for the giving of directions or warnings by the trial judge or what they mean or how the jury is to use them. This is a matter for the trial judge: not the Crown Prosecutor. Counsel should understand that their principal function is to address on the facts and not to anticipate directions and warnings to be given by the trial judge and to put a gloss on them to assist the case they are presenting to the jury. In particular, the Crown should not use the consequences of delay in an attempt to explain or excuse the unreliability of the complainant as was done in DBG [R v DBG (2002) 133 A Crim R 227] and to some extent in the present case.
The Crown must recognise, as the jury is required to do, that the defence has been prejudiced by the delay because of the inability to test the complainant, because of the vagueness and inconsistency in accounts where these occur, and because of the inability to carry out those investigations that might have raised a doubt about the truth of the complainant's account. There is no point in the Crown addressing the jury on some basis other than that which the law accepts is the consequence of long delay, and it is dangerous for the Crown to do so. The law not only binds the judge and the jury, but also the Crown Prosecutor in the submissions and arguments that can be put to the jury.
This does not mean that the Crown cannot seek by legitimate means to persuade the jury to accept the account of the complainant notwithstanding the delay and consequential dangers involved in doing so. It can of course counter what it anticipates will be any specific matter of prejudice which the defence will raise, by a reference to the evidence in the particular case. But it cannot attempt to attack or undermine the basic principles upon which such trials are conducted and which are manifest in the Longman warning."
I agree with those comments. In this case, the Crown prosecutor went beyond the limits of permissible comment.
Counsel for the appellant submitted that the Crown prosecutor transgressed by describing G's brother's evidence as "corroborating evidence". The brother's evidence, to the effect that G had said that the appellant had grabbed his genitals, was admissible as evidence of the fact asserted: Evidence Act, s66(2); Papakosmas v R (1999) 196 CLR 297. It was appropriate for the Crown prosecutor, at some stage during his address, to remind the jury of that evidence and to rely on it. He did not launch into a technical explanation as to what can and cannot constitute corroboration. I do not think that sparing the jury such an explanation can have contributed to a miscarriage of justice. But I think he transgressed by mentioning the brother's evidence when he did, in such a way as to try to rob the Longman warning of its force.
Law reform
The Crown prosecutor made the following comment to the jury:
"When I opened, I said how the law had accommodated investigation of prosecution of age and historical sexual crimes. It does not make any conviction easier, all it does is allow children the process – children who are now adults the process to go through the law to prosecute and for you to decide guilty or not guilty."
Those comments could have related to a number of amendments that have been made to the Criminal Code. The Crown prosecutor could have been referring to an amendment in 1987 by which the former s136 was repealed. Prior to that amendment, an indecent assault by a male upon another male amounted to the crime of "indecent practice between male persons" contrary to s123. However a man could not be convicted of that crime without corroboration of the evidence of the alleged victim, unless that victim was not a consenting party to the crime, and not an accomplice in the crime. Another possibility is that the Crown prosecutor was referring to the enactment of s125A. Before its enactment, whenever it was alleged that a person had committed a series of sexual offences against one or more complainants, it was necessary for there to be a separate charge in relation to each alleged offence.
Counsel's closing speeches were made on a Friday. The learned trial judge commenced her summing up on the Friday afternoon, and concluded it on the Monday. Before the jury was sworn out on the Friday afternoon, their forewoman asked her Honour some questions. In particular, she asked for an explanation of the Crown prosecutor's comments about a change to the law that enabled the charges against the appellant to be brought. Her Honour explained the change resulting from the enactment of s125A. In particular, she made it clear that victims of indecent assaults had always been able to come forward, but that s125A made it easier for charges to be laid.
It was unnecessary and inappropriate for the Crown prosecutor to make any comment to the jury about changes to the law concerning sexual crimes. The comments that he made came only seconds before his comments concerning the Longman warning. Although the jury was left in no doubt that victims of indecent assault had always been able to complain to the authorities, they may have been left with the impression that some or all of the complainants had complained years after the alleged assaults, and not earlier, because it was harder to complain earlier, and easier to complain in recent years. There was no evidence to that effect. The jury might have taken that possibility into account in assessing the credibility of the complainants. It follows that the comments by the Crown prosecutor might have caused the appellant serious prejudice.
Conclusion as to ground 9
The improper comments of the Crown prosecutor should be considered in the aggregate, rather than individually, for the purpose of determining whether there has been a miscarriage of justice. See R v Ireland (1970) 126 CLR 321. Of the six comments and submissions complained of by counsel for the appellant, I think that only the first comment – that relating to defence counsel not having put to the complainants that the appellant's alleged conduct had simply not happened – was inconsequential or harmless. The other five passages referred to in his submissions were all prejudicial or potentially prejudicial. In my view, they resulted in a miscarriage of justice.
Ground 10 – Evidence of the appellant's good character
This ground reads as follows:
"The trial judge erred in failing to direct the jury on good character evidence."
Each of the three defence witnesses gave evidence to the effect that they had never heard any complaints about the appellant's conduct. There was evidence that his reputation, both as a teacher and as a sports coach, was intact. The Crown prosecutor cross-examined the appellant about his reputation and character, with the result that evidence favourable to the appellant was elicited. In substance he said that he had not previously heard any complaints about himself, and that he had remained celibate all his life in accordance with his vow. The learned trial judge did not give the jury a direction as to the evidence of the appellant's good character. At the conclusion of her summing up, she invited submissions from counsel, but defence counsel did not then seek a direction on the subject. He sought supplementary directions as to a number of other subjects. Her Honour brought the jury back and gave some. After the jury returned to the jury room, defence counsel sought a further supplementary direction as to the character evidence, but her Honour refused to call the jury back for further directions.
In Simic v R (1980) 144 CLR 319 at 333, the High Court said:
"There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. … No doubt, speaking generally, it is right to add … that if such a direction is asked for it would be wise to give it."
In some cases, the failure to give such a direction is so significant that the appropriate course is to order a new trial: R v Warasta (1991) 54 A Crim R 351.
In my view, it would have been desirable for the learned trial judge to have directed the jury to bear in mind the appellant's good character when considering the question of his guilt, and in particular to consider good character as a factor affecting the likelihood of him having committed the crimes charged, and to consider good character when assessing his credibility as a witness. However it was abundantly clear that the crimes alleged were not in keeping with the standards of conduct expected of a priest, and the jury is hardly likely to have overlooked the fact that three priests gave evidence to the effect that the appellant had an untarnished reputation. In the circumstances, I do not think that the failure to give a direction concerning the character evidence caused or contributed to a miscarriage of justice. This ground must fail.
Ground 11 – Definition of indecent assault
This ground reads as follows:
"The directions given to the jury on the elements of the offence of indecent assault were erroneous."
This ground raises a question of law which I dealt with when considering ground 7. At the trial, defence counsel made a submission to the effect that gentle touching, without hostility, did not amount to an assault for the purposes of the Criminal Code. That submission was misconceived. A gentle application of force, such as that described by H, amounts to an assault. This ground must fail.
Disposition of the appeal
In my view, the significant errors and irregularities at the trial were as follows:
·The learned trial judge erred by not permitting defence counsel to cross-examine in relation to the counselling received by the complainants from Dr Crowley and Sister Chapman, insofar as that could be done without asking questions about communications. (Ground 4.)
·The Crown prosecutor made inappropriate and prejudicial, or potentially prejudicial, comments and submissions to the jury as to potential witnesses not coming forward, the cause of S's drug and alcohol abuse, his personal views about N, the Longman warning, and law reform. (Parts of ground 9.)
It was submitted on behalf of the Crown that this would be an appropriate case for this Court to "apply the proviso", ie to dismiss the appeal pursuant to the Criminal Code, s402(2), on the basis that "no substantial miscarriage of justice has actually occurred." I reject that submission. But for the errors and irregularities that I have just listed, the jury might well have acquitted the appellant of the charges, or one or more of them. I am not persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, that the appellant was guilty of all four charges. Further, a significant denial of procedural fairness resulted from defence counsel not being permitted to cross-examine, in relation to counselling, about matters other than communications. In those circumstances, the appeal must be allowed: Weiss v R (2005) 80 ALJR 444 at 455.
For these reasons I would allow the appeal, quash the convictions, and order a new trial in relation to all four charges.
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