Bentley Hurst (a pseudonym)[1] v The Queen
[2021] VSCA 3
•21 January 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0267
| BENTLEY HURST (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
---
| JUDGES: | NIALL and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 January 2021 |
| DATE OF JUDGMENT: | 21 January 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 3 |
| JUDGMENT APPEALED FROM: | DPP v [Hurst (a pseudonym)] (unreported, County Court of Victoria, Judge Hampel, 18 December 2020) |
---
CRIMINAL LAW – Interlocutory appeal – One charge of indecent act with child under 16 – One charge of incest – Applicant sought leave to cross-examine complainant about two comments on her Facebook page and one ‘like’ of another Facebook page – Trial judge refused leave – Applicant applied for certification – Trial judge refused application to certify – Application to review refusal to certify – Application for leave to appeal against interlocutory decision – Evidence would not have substantial relevance to a fact in issue in the trial – Denial of leave to cross-examine not of sufficient importance to justify interlocutory appeal – Application to review refusal to certify refused – R v Frazier [2017] VSCA 370 applied – Criminal Procedure Act 2009 ss 295, 296, 297, 342, 346, 349, 352.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Lavery | Mr G Clancy, Kerry Clancy Solicitors |
| For the Respondent | Ms J L Piggott | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA
EMERTON JA:
The applicant is facing a trial in the County Court on an indictment containing two charges of sexual offending against his daughter. The alleged offending occurred on the same day, which the indictment identifies as being between 1 January 2015 and 30 March 2016. The complainant turned 14 in March 2015. Charge 1 alleges that the applicant committed an indecent act with the complainant who was a child under 16 and charge 2 alleges incest involving penile penetration of the complainant’s anus.
In mid-2017, the complainant told her boyfriend that she had been raped by her father, and a counsellor that she had been sexually assaulted but without telling the counsellor the identity of the perpetrator. In December 2018, she told her mother and then went to the police. She gave an account of the alleged offending in a VARE which was recorded on 12 December 2018. In accordance with the provisions of the Criminal Procedure Act2009 (the ‘CPA’), the VARE will constitute the complainant’s evidence-in-chief at the forthcoming trial. The applicant has been arraigned and a special hearing is to be held at which the complainant will be cross-examined and the trial continue. That cross-examination will occur with the assistance of an intermediary.
In her VARE, which is relatively brief, the complainant gives her account of the offending. She also describes an earlier incident when she was 13 or 14 years old when she says she was raped by the applicant. That incident was said to have occurred at her grandmother’s house in New South Wales. Because that conduct occurred outside of Victoria, the conduct in New South Wales will be uncharged acts, evidence of which, in accordance with a ruling of the trial judge, the prosecution will be permitted to adduce as tendency evidence. There is no challenge to that ruling.
At the special hearing the applicant wishes to cross-examine the complainant on three items of social media which he contends are connected to the complainant.
The first two comprise entries posted to the complainant’s own Facebook page on 26 February 2019. The first entry reads ‘I love cock in my arse’ and the second, which it may be inferred was posted a short time later, says ‘My mum once taught me … if it doesn’t fit ur not taking it right’.
The third entry comprises a record of the complainant allegedly attaching a ‘like’ to a Facebook page entitled ‘Daddy’s little kittens princess cage #2’. The page contains, amongst other things, a cartoon posted on 14 November 2019 made up of five frames in which a young female is in the shower. In one frame the female is depicted as fantasising about violent sex with her father. The cartoon appears as part of a Facebook page containing multiple entries. As the judge noted, some of them have no sexual connotation.
We note that there was some material before the judge to suggest that the complainant suffers from an intellectual impairment and an acquired brain injury although the material in this Court does not provide any detail as to those matters.
The applicant’s defence to the charges is that the alleged events did not occur.
The application to cross-examine
The applicant accepted before the judge that the cross-examination he wishes to undertake on the three entries would constitute cross-examination as to the sexual activities of the complainant. As a consequence, s 342 of the CPA prevents the cross-examination without the leave of the court.
Sections 344 to 349 of the CPA regulate an application for leave to cross-examine on a complainant’s sexual activities during a summary hearing, committal proceeding or trial. Section 346 provides that the application for leave to cross-examine must be in writing[2] and set out the initial question sought to be asked, the scope of the questioning sought to flow from the initial questioning and how the evidence sought to be elicited has substantial relevance to the facts in issue or why it is a proper matter for cross-examination as to credit.[3]
[2]CPA s 346(1).
[3]Ibid s 346(2).
Section 349 provides that in determining an application under s 342, a judge must not grant leave unless satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination, having regard to various stipulated matters. Those matters include whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; the need to respect the complainant’s personal dignity and privacy; and the right of the accused to fully answer and defend the charge.
In his written application under s 342 the applicant sought leave to cross-examine the complainant on the social media entries to which we have referred and also on some text messages she sent to the applicant on 3 July and 2 August 2015. Those text messages referred to engaging in sexual activity.
In relation to the three social media entries, the notice states:
The scope of the questioning will relate to whether the assertion that the complainant’s mother had taught her about anal sex is true. The questioning will also seek to explore whether posting these comments at the time close to the making of the complaint to police about the accused’s behaviour is inconsistent with the allegations of violent rape.
It is submitted that this evidence has substantial relevance as to the complainant’s veracity in matters relating to her sexual activities. It is also submitted that these posts are matters that a jury could legitimately use to assess whether the complainant’s conduct at the time of posting these matters on social media is consistent with her statement made to police on 11 December 2018 being a true statement of events that had taken place.
In his written submissions in support of the application for leave, the applicant said that the complainant would initially be asked whether she was the author of the posts and that ‘[t]he scope of the questioning to follow from that will depend upon her answers to those questions.’ The ‘Daddy’s little kittens princess cage #2’ page contained a number of items, including the cartoon described above. The applicant indicated that leave was sought to cross-examine the complainant as to whether she had liked the page and, if so, whether she had liked the cartoon. In the written submissions the applicant went on to submit that the defence is not required to identify all potential evidence as part of an application to cross-examine.
The judge’s ruling
The judge gave leave to cross-examine on the text messages because they were capable of supporting a process of reasoning that it was ‘unlikely for the complainant, after having been raped by her father a short time before, to have been asking him questions about sexual activity or talking about sexual activity with other people.’ There is no issue in this Court concerning the text messages.
The judge refused leave to cross-examine on the Facebook posts of 26 February 2019. The judge accepted that one of the posts explicitly referred to anal sex and ‘the other … possibly refers to sexual activity and possibly refers to anal sexual activity’ but said that they were made a considerable time after the events the subject of the charges and the VARE. The judge concluded that the process of reasoning on which the applicant sought to rely, namely, that it would be unlikely for the complainant to have posted such comments had she been raped by her father many years earlier and made her VARE some months earlier, was tenuous and did not pass the ‘substantial relevance’ test in s 349 of the CPA.
The judge reached the same conclusion as to relevance in relation to attaching a ‘like’ to the Facebook page containing the cartoon. In that respect the judge said there was no evidence that the complainant had ‘liked’ the particular cartoon because the cartoon appears on a Facebook page containing a considerable amount of other material, some of which was innocuous, and it was not possible to attribute the ‘like’ to the cartoon as opposed to other parts of the page. The judge concluded that the lack of direct or sufficient connection between the cartoon and the complainant’s ‘like’ meant that the evidence was too remote to pass the relevance test in s 349.
Having failed in his application for leave to cross-examine, the applicant applied for the judge to certify in accordance with s 295(3) of the CPA to facilitate an application for leave to appeal. The interlocutory decision did not concern the admissibility of evidence[4] and, accordingly, s 295(3)(b) applied. It provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies that ‘the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
[4]Which would be the subject of certification under s 295(3)(a) of the CPA.
The judge refused to certify for reasons given in a second ruling. In that ruling the judge referred to the decision of this Court in R v Frazier[5] which sets out the approach to certification, and concluded that she was not persuaded that the applicant had identified a basis on which it could be said that a proposed appeal had reasonable prospects of success or was attended by sufficient doubt to warrant certification.
[5][2017] VSCA 370 (‘Frazier’).
On the broader question of whether the decision was otherwise of sufficient importance to justify it being determined on an interlocutory appeal, the judge referred to the principles summarised by this Court in Frazier and in Lewis (a pseudonym) v The Queen,[6] and concluded that she did not consider the ruling to be of ‘very real significance to the trial’ but was:
at best, a credit issue relating, at its highest, to attitudes about anal sex and incest expressed by a complainant with an intellectual impairment and an ABI three to four years after the events the subject of the charges. The potential probative value of the evidence must also be seen in the context of the mandatory directions about good reason for delay in disclosure and report by children, and adult complainants, of sexual assault.
[6][2018] VSCA 40.
The judge went on to say that further delay is of real concern given when the offending was said to have occurred.
Application for leave to appeal
In order for the applicant to be permitted to seek leave to appeal he must seek first from this Court a favourable review of the judge’s refusal to certify. Section 296 of the CPA provides for such a review and requires this Court to consider the matters in s 295(3) and, if satisfied as required by s 297(1), this Court may give the applicant leave to appeal against the interlocutory decision.
In Frazier, Maxwell P and Kyrou JA addressed the importance of the certification process to the regime for interlocutory appeals. They said:
The requirement for certification is no mere formality. Certification is a statutory precondition of the right to seek leave to appeal. As discussed more fully below, the requirement for certification reflects Parliament’s recognition that the judge who has made the interlocutory ruling will usually be best placed to decide whether the applicable precondition to certification in s 295(3) of the Act — in this case, whether the subject-matter was ‘of sufficient importance to the trial to justify it being determined on interlocutory appeal’ — is satisfied.
Accordingly, on an application to review a refusal to certify, this Court will ordinarily attach considerable weight to the judge’s decision regarding the applicable precondition. In any case, such an application is governed by the principles in House v The King. Accordingly, appellate intervention is only justified if specific error is established or the Court is persuaded that the decision to refuse certification was not reasonably open in the circumstances.[7]
[7]Frazier [2017] VSCA 370, [7]–[8] (citations omitted).
After referring to the terms of the CPA and extrinsic material their Honours went on to observe:
It is, of course, no accident that the responsibility for certification rests with the judge whose ruling is sought to be challenged. Parliament clearly recognised that the judge will usually be in the best position to judge whether the ruling — or, more accurately, the subject-matter of the ruling — satisfies the applicable precondition to certification.
The precondition in s 295(3) applicable in this case was that the interlocutory decision ‘is otherwise of sufficient importance to the trial’. This phrase must be read in its context. The word ‘otherwise’ refers back to s 295(3)(a), which sets the standard of ‘importance’ where the interlocutory decision concerns the admissibility of evidence.
In such a case, the judge who made the decision must be satisfied — in order to certify — that
the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.
As this Court has made clear repeatedly, that test was intended to limit interlocutory appeals on evidence to questions of very real significance to the trial. The notion of ‘sufficient importance’ in s 295(3)(b) should be approached in a similar way.[8]
[8]Ibid [29]–[31].
In support of his application for review of the refusal to certify, the applicant submits that questions of credit are critical to the task to be undertaken by the jury and that the evidence he seeks to elicit would be capable of explaining how the complainant may have knowledge of experiences of anal sex that she would not otherwise be expected to have. This second aspect, which is said to relate to the facts in issue rather than the credit of the complainant, relates to ground 2 of the proposed appeal. Under that ground the applicant would seek to contend that:
A jury may be entitled to reason that the complaint of less than 18 years of age would be unlikely to fabricate an account of anal sexual penetration because the knowledge of the detail of that activity is not what they might ordinarily expect from the complainant of that age. The Facebook posts of 26 February 2019 are direct evidence that the complainant possesses knowledge of that activity, either on a first hand experience basis, or on the basis that it is activity which has been explained to her in detail by her mother.
In our view, the judge’s conclusion that the evidence sought to be adduced by cross-examination of the complainant on the social media entries would not have substantial relevance to a fact in issue in the trial and therefore, the refusal of leave would not have sufficient importance to the trial to justify an interlocutory appeal, was plainly correct.
We note that ss 342 to 349 of the CPA appear to draw a distinction between evidence going to a fact in issue and evidence going to credit: see for example s 346(2)(c) and s 352. However, in this case it is not necessary to consider whether the requirement in s 349 for this Court to be satisfied that the evidence proposed to be elicited has substantial relevance to a fact in issue extends to evidence that only goes to credit.[9] That is because from either perspective it has not been demonstrated that the evidence would have substantial relevance in the trial.
[9]Lancasterv The Queen (2014) 44 VR 820; [2014] VSCA 333; Bauer (a pseudonym) v The Queen (2015) 46 VR 382; [2015] VSCA 55.
Assuming that the complainant authored the February 2019 posts, they do not cast any light on whether the sexual offending occurred about four years earlier in the way alleged. It is clear from the terms of the s 342 notice and submissions that were made to the judge that the applicant hopes to expose some inconsistency between what the complainant wrote on her Facebook page in 2019 and what might be expected from a victim of incest of the kind alleged. The existence of any inconsistency is not obvious from the text of the posts and the submission requires a high degree of speculation as to what the complainant might say in cross-examination. In contrast to the position in R v ERJ[10] or Roberts v The Queen,[11] the posts do not directly contradict, and are not inconsistent with, the complainant’s account of the alleged offending in her VARE. Whether the statements were flippant or a crude statement of sexual preference is unclear from the text. Given the age of the complainant, the possibility that she has some intellectual impairment and the nature of social media, the contention that cross-examination on the posts would undermine the prosecution case for offending that allegedly occurred about four years earlier is speculative.
[10][2010] VSCA 61 (‘ERJ’).
[11][2012] VSCA 313 (‘Roberts’).
To the extent that the posts might show that by February 2019 the complainant had knowledge of, or had participated in, anal intercourse, it would not materially assist the jury in considering what had happened in 2015 or 2016.
For similar reasons, the posting of the February 2019 entries does not in any obvious or apparent way render the account given by the complainant in her VARE less reliable.
It was also submitted in this Court, although not before the judge, that the post referring to what the complainant’s mother had ‘taught’ her might be relevant to whether there was a reason for her delay in telling her mother about the offences. At this stage, we cannot be satisfied that the post will be of any forensic value in testing the reasonableness of any delay. The submission assumes a number of affirmative answers to questions about whether she made the post and what she meant. Further, excluding the cross-examination on the post will not prevent the applicant from exploring delay in complaint by reference to discussions she may have had with her mother. Any cross-examination will be under the continuing direction of the trial judge.
The applicant submits that the jury might infer that a victim of incest would not post such comments within a few months of the VARE. Whether a jury might so infer is far from clear and an unlikely pathway of reasoning in the circumstances. The applicant might be hopeful of using the posts to elicit some evidence that opens up a line of attack on the complainant’s credit, but mere hope provides an insufficient basis for a conclusion that to deny cross-examination would undermine the defence case in any appreciable way. Of course, in advance of it occurring, the potential outcome of cross-examination will always be uncertain. The cross-examiner may not know what answers that he or she may obtain. However, it is to be remembered that the applicant was required to persuade the judge that leave should be granted to overcome the statutory prohibition in s 342. In order to ascertain whether a line of cross-examination will be fruitful, more is required than a hope that some inconsistency might be revealed.
The position in relation to the November 2019 ‘like’ of the Facebook page is even stronger. On the findings of fact made by the judge, it is not possible to attribute the complainant’s ‘like’ of the Facebook page to the particular cartoon as opposed to another part or parts of the page. Indeed, as the respondent submitted, there appears to be no evidence connecting the complainant to the Facebook page. Further, even if it be assumed that she indicated a ‘like’ of the Facebook page, that in itself does not reveal any inconsistency with her account in the VARE and how any cross-examination might proceed is also a matter of speculation.
In short, we are not persuaded that the denial of leave to cross-examine is of sufficient importance to the trial to justify being determined on an interlocutory appeal. That being so there is no basis to overturn the refusal to certify.
In reaching our own assessment of the matters required to be considered in s 295(3)(b) we have taken into account, and given weight to, the conclusion reached by the judge and the kind of assessment required. The judge was well-placed to assess the possible benefit of a line of cross-examination in the context of the trial as a whole. We agree with her Honour’s assessment. Contrary to the submission of the applicant, that assessment was not affected by any view as to the reasons for delay in preparing the matter for trial.
The application to review the refusal to certify must be refused. Accordingly the applicant is not entitled to seek leave to appeal the interlocutory decision.
–––
6
0