Best v The Queen
[2012] VSCA 277
•21 November 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0241
| ROBERT CHARLES BEST | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, TATE and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 October 2012 |
| DATE OF JUDGMENT | 21 November 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 277 |
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CRIMINAL LAW – Conviction – Seven counts of unlawful and indecent assault of a male under the age of 16 which occurred between 1971 and 1974 when the complainant was a pupil of the school of which the appellant was the principal – Whether verdict unsafe and unsatisfactory – Delay – Complainant recalled incidents by way of flashbacks – Complainant suffering ‘dissociation’ which led him to give incomplete evidence on previous occasion – Independent witness identified by the complainant as present during two of the offences denied that the offences occurred – Open to jury to be satisfied of appellant’s guilt beyond reasonable doubt.
CRIMINAL LAW – Evidence – Prosecutor’s failure to call material witness – Rational tactical choice by defence to seek Jones v Dunkel direction instead of pressing objection and seeking stay – No substantial miscarriage of justice in the circumstances of the case – R v Apostolides (1984) 154 CLR 563, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Morrissey SC | Stynes Dixon Lawyers |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Osborn JA. For the reasons which his Honour gives, I too would dismiss the appeal.
TATE JA:
I agree with Osborn JA.
OSBORN JA:
The appellant is a member of the Christian Brothers Order of the Roman Catholic Church and a former principal of a Catholic primary school in provincial Victoria. In 2011 he was convicted by a jury of seven counts of unlawful and indecent assault of a male under the age of 16. The alleged assaults occurred between 1971 and 1974 when the complainant, a pupil of the school, was aged between eight and 11 years old.
This appeal is brought against these convictions on two grounds:
(1) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, pursuant to s 276(1)(a) of the Criminal Procedure Act 2008.
(2) by reason of the Crown’s failures
(a) to disclose the true nature of the dissociations or other relevant mental issues or treatments, and
(b) to approach and call the mother of the complainant,
there has been a substantial miscarriage of justice, pursuant to s 276(1)(c) of the Act.
Ground 2(a) was abandoned on the hearing of the appeal.
As was stated by Maxwell P in R v Vjestica,[1] the High Court’s decision in M v The Queen[2] makes clear the approach required in considering the first ground of appeal:[3]
[1][2008] VSCA 47.
[2](1994) 181 CLR 487.
[3]R v Vjestica [2008] VSCA 47, [60]; See also R v Klamo (2008) 18 VR 644, 653-4 [38].
Since the High Court’s 1994 decision in M v The Queen,[4] the approach required of appellate courts in considering the ‘unsafe and unsatisfactory’ ground has been clear. The analysis involves the following steps:
1.The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2.In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4.It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[5]
[4](1994) 181 CLR 487, cited in R v Vjestica [2008] VSCA 47, [60].
[5]Ibid 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); MFA v The Queen (2002) 213 CLR 606, 614-5 [25] (Gleeson CJ, Hayne and Callinan JJ), 623-4 (McHugh, Gummow and Kirby JJ); Weiss v The Queen (2005) 224 CLR 300, 316 [41] (The Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).
The Court of Appeal must decide whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the required standard.[6]
[6]R v Vjestica [2008] VSCA 47, [63].
The central evidentiary issue in the present case was whether, as the trial judge stated at the outset of his charge to the jury, they were satisfied that the complainant’s evidence of the offending conduct was both truthful and reliable.
The appellant submits that the evidence properly viewed as a whole ought to have compelled the jury to have a reasonable doubt. The appellant emphasises the following matters:
(a) the consequences of the very substantial delay between the alleged offending and the date of trial, in circumstances where the allegations were unsupported by evidence other than that of the complainant;
(b) the fact that the appellant’s failure to give evidence could not add to the case against him;
(c) the complainant’s evidence as to his memory processes raised doubts as to the veracity and reliability of his account;
(d) the complainant’s evidence was uncorroborated in respect of circumstances which, if true, were capable of confirmation and should have been confirmed;
(e) the complainant’s evidence altered over time in respect of key details; and
(f) the complainant’s evidence as to the incident giving rise to counts 4 and 5 was contradicted by the evidence of the witness CB who was accepted by the Crown to be a witness of truth and reliability.
It can be seen that the matters identified raise both general and specific considerations and that they might be regarded as having greater force in combination than taken individually.
The Crown submits that the complainant provided a coherent and consistent account of the offending conduct of the appellant and the complainant’s experience of that conduct. Further, the jury was directed by the judge to each of the evidentiary sensitivities raised by the appellant and was given appropriate directions and warnings as to the manner in which the evidence should be assessed. If the evidence was assessed in accordance with these directions, in the Crown’s submission it provided a proper basis for conviction.
The appellant is, of course, correct to submit that his failure to give evidence cannot be used against him upon this appeal.[7]
[7]Azzopardi v The Queen (2001) 205 CLR 50, 76-77, [73] (Gaudron, Gummow, Kirby and Hayne JJ).
In my view, however, the jury’s verdicts were not unsafe and unsatisfactory because, for the reasons elaborated below:
(a) the complainant’s evidence comprised a coherent and credible account of the offending in issue;
(b) the evidentiary factors raising sensitive issues for assessment by the jury were carefully addressed by way of detailed directions given by the trial judge and there is no reason to conclude that the jury did not properly take into account or evaluate their significance;
(c) the evidence of CB did not prevent a conclusion that the complainant’s evidence proved counts 4 and 5; and
(d) the evidentiary concerns raised on behalf of the appellant do not persuade me either individually or in combination that the jury’s verdict was unsafe or unsatisfactory.
Insofar as ground 2 is concerned, it was common ground that the Crown did not interview the complainant’s mother and ascertain whether she could give evidence either corroborative of or inconsistent with aspects of the complainant’s evidence. The course followed at the trial was to give the jury a direction that they could infer that the mother’s evidence would not have assisted the prosecution. This course was followed at the request of the defence and conferred upon the defence a forensic advantage as the result of a rational and considered tactical decision. Again, for the reasons elaborated below, the defence should not now be allowed to resile from that decision and contend that the failure to call the mother resulted in unfairness. There was no miscarriage of justice having regard to the course followed at the trial.
The facts
It is fundamental to my conclusions that the complainant’s account of the offending in issue was coherent and credible in its detail. It is accordingly necessary to summarise the evidence in some detail to demonstrate why it should be so characterised.
At the date of the trial, the complainant was aged 47 and had retired as a police officer some two years previously. His parents were Lebanese immigrants and as a small child he lived above a café operated by his parents. His parents separated when he was nine and he then lived with his mother. He moved primary schools in grade 3 and attended the school at which the appellant taught in and between 1971 and 1974. In 1974, he transferred from grade 6 to a technical school during the course of the school year.
The complainant described in evidence the physical layout of the school by reference to a series of photographs taken in recent times. He identified a series of quite substantial changes which had occurred over the years.
The first incident
The complainant recalled that at some point in the year when he first went to the school in grade 3, the appellant told the complainant to go into the sickroom. The appellant then came to the room and sat down. He told the complainant that he was there to help him, he was his friend and that he was there for him. He then told the complainant to approach him. The complainant lay on the appellant’s thighs and the appellant began to massage his back from the neck down to his waistline. The complainant recalls the appellant was breathing quite rhythmically and loudly. After massaging the complainant for some time, one of the appellant’s hands moved onto the complainant’s buttocks and rubbed around on top of the complainant’s clothing. The appellant’s hand then moved into the complainant’s trousers and after pulling the complainant’s underpants away the appellant rubbed the bare flesh of the complainant’s buttocks in a circular motion. The complainant described the interior of the sickroom and its location.
The second incident
On a subsequent occasion, the appellant approached the complainant in the schoolyard and told him to go to the western classroom with another boy. The complainant cannot recall in which year this occurred, but believes it was when he was under 10.
The other boy present was an older boy with fair hair. When he got to the classroom, the appellant told the complainant to approach him and took hold of the complainant by his shoulders. He forced the complainant’s body down so that the complainant was bent over on the appellant’s thighs. The appellant then again started to rub the complainant’s back. The appellant’s hand eventually made its way down to the complainant’s buttocks and into his trousers. The appellant again moved the complainant’s underpants and rubbed the complainant’s buttocks. The complainant was looking off towards the right hand side of the room towards the windows which looked out onto the street. The appellant attempted to put a second hand into the complainant’s trousers but could not because the complainant was plump and his trousers were tight. The appellant then felt around the front of the complainant’s trousers and the complainant felt his trouser buttons and zip loosen.
The appellant then moved his hand inside the complainant’s trousers further down between the complainant’s buttocks. The appellant’s fingertips touched the back of the complainant’s genitals. The appellant’s hand rubbed repeatedly downwards towards the genitals. This went on for some time. The appellant did not say anything but his breathing was again loud and rhythmic. The complainant then complained because his testicles were caught in his underpants causing him pain. The appellant said ‘help him’ to the other boy and the complainant saw the other boy’s feet move and felt his trousers being freed from behind. The complainant’s buttocks and the back of his thighs were then bare. The complainant felt direct pressure on his anus followed by discomfort in the anus with a feeling of fullness caused by something entering his anus. He felt sharpness and his body convulsed. He tried to struggle free. He felt he needed to go to the toilet.
The complainant understood one of the appellant’s fingers had been inserted into his anus. The penetration followed the moving of the appellant’s hand towards the anus and the application of pressure to the area with the appellant’s hand.
The appellant’s finger remained in the complainant’s anus for some time. The appellant said to the other boy ‘kiss him why don’t you kiss him’. The complainant felt pressure upon his buttocks consistent with being kissed. He did not see actual kissing. The appellant pulled his finger out suddenly causing a sharp pain and told the complainant he was ‘dirty’ and should not come to school ‘dirty’. When the incident ended, the complainant went back into the schoolyard and then went home. In response to the conversation about being dirty, the complainant started to clean his anal area very thoroughly.
The spelling test incident
A third incident occurred following a spelling test in grade 3 or 4. The complainant was asked to spell the word ‘champagne’ and when he wasn’t able to do so the appellant said ‘well [the complainant’s first name], we’re going to have to do something about that aren’t we.’
After the test finished, the appellant picked out the complainant and another boy and took them both to the sickroom. The other boy was a classmate with fair hair. When they got to the sickroom, the complainant asked the appellant whether it was going to be like the first time and the appellant said yes. The appellant took hold of the complainant’s upper body, arms and shoulders. The appellant sat down, still grasping the complainant and bent the complainant over and pushed his head towards the appellant’s lap. The complainant again remembers the appellant’s breathing and contact again commencing with rubbing of the complainant’s back, extending down to his buttocks.
The appellant undid the complainant’s pants exposing the complainant’s buttocks and the back of his legs. The complainant felt cold on his buttocks and became aware of wetness in this area. The other boy was kissing his buttocks. The appellant rubbed down between the complainant’s buttocks and touched the complainant’s genitals.
As in the second incident, the appellant applied pressure to the complainant’s anus and inserted something into it which caused a sensation of sharpness followed by fullness. The complainant felt that the appellant had inserted his finger into the complainant’s anus. The complainant told the appellant he was hurting. The appellant comforted the complainant and told him he would be alright.
The appellant said to the other boy, ‘why don’t you kiss [the complainant]’s bottom’. The complainant felt pressure on his left and right buttock in the way he had during the second incident. The kissing stopped and the complainant felt the appellant remove his finger from the complainant’s anus causing a sharp pain. The door opened and the appellant released the complainant from his grasp. The complainant heard the voice of Brother Fitzgerald, another teacher at the school, and a chuckle. The appellant did up the complainant’s trousers then told the complainant to go home.
The fourth incident
A further incident occurred on an occasion when the complainant was in the next grade, when the complainant was sent to the presbytery adjacent to the school. After a conversation with a priest and the appellant took place, the complainant was told to return to the schoolyard and wait there for the appellant. The appellant came to the schoolyard and took the complainant by the shoulder. The appellant walked the complainant to the sickroom in the appellant’s grip. The appellant then lent down and pulled down the complainant’s trousers and underpants causing a button to break. There was no preliminary rubbing. The appellant put his hand directly between the complainant’s buttocks and inserted a finger into the complainant’s anus. The complainant felt a searing pain and screamed that he was hurting. The complainant was still standing up and the appellant’s action was very rough. The appellant pulled his finger out causing a sharp pain. The appellant said get out and the complainant left.
That night when the complainant tried to go to the toilet he had a lot of pain. He could not move his bowels. His mother detected blood on his underpants. The complainant attempted to communicate to her what had happened to him but believed he was not successful in communicating it to her. His mother and father took him to Ballarat Base Hospital. He attempted to communicate to the staff at the hospital that his teacher had hurt him. He was given an enema and sent home. The next day, his mother had a conversation with the appellant at school but the complainant does not know what she said.
After this incident, the appellant referred to the complainant as a ‘dirty wog’ when speaking to the other Brothers at the school. In consequence, the complainant took further steps relating to his personal hygiene, including inserting soap into his rectum and using perfume on his body. On one occasion, he injured himself and was again taken to the Ballarat Base Hospital.
The shed incident
On a further occasion, the complainant was recruited to take part in a clean-up of the church grounds. The appellant took the complainant to a shed containing garden tools on the eastern side of the presbytery. The appellant told the complainant to bend over and undid the complainant’s trousers. The appellant picked up a broom and the complainant felt a pain in his anus. When the complainant looked behind him he could see and feel a green broom handle from behind his back. The complainant was aware of something much larger than the appellant’s finger within his anal passage accompanied by pain. It eventually stopped and he was left in the shed.
The complainant also gave evidence of further uncharged acts but it is unnecessary for present purposes to go to that evidence.
The complainant was cross examined as to a wide series of matters including the fact that he had initially nominated the wrong year in which the abuse began, the fact that he had previously indicated that the sick bay in which three of the incidents occurred was located in a different wing of the school, allegedly inconsistent answers he had given about his state of mind during the offending, his generally poor recollections about primary school life, the appellant’s lack of opportunity to offend against him due to other responsibilities, the inconsistency between his assertion that he complained to the staff at the hospital and the treatment he received, and about the nature, timing and content of his flashbacks of the various incidents. He did not however contradict or depart from the central account he gave of the appellant’s offending.
I accept Mr Kidd’s submission that the complainant’s account of the abuse he suffered is coherent and that the uncertainties he acknowledges in his evidence related to contextual circumstances (eg dates, precise locations, etc) concerning which it is not surprising that he has some uncertainty, given the passage of time.
I also accept that the complainant’s account is compelling in its circumstantial detail and, in particular, both as to the conduct of the appellant and the complainant’s experiential details such as physical sensations and awareness of the appellant’s breathing.
I further accept that there is a gradual but definite escalation in the level of seriousness and accompanying degradation of the complainant involved in the sequence of assaults which the complainant describes. This is inherently credible and would constitute a particularly subtle fabrication.
In consequence, the appellant faces a difficult task in persuading the Court that it was not reasonably open to convict. The complainant’s evidence as a whole plainly substantiated a credible basis for the appellant’s convictions. Moreover, the jury had the considerable advantage of observing the complainant give evidence. It is plain from the transcript that he was emotionally affected in the course of his evidence and required a series of breaks. It was for the jury to evaluate the overall credibility of the complainant’s evidence within this context. In my judgment, the benefit of seeing and hearing the witness is likely to have been substantial in the present case.
The question remains, nevertheless, whether there are particular aspects of the evidence which taken alone or in combination should be regarded as necessarily giving rise to a reasonable doubt.
Factors affecting the overall assessment of the complainant’s credibility and reliability
There are a series of considerations which the appellant submits point powerfully to reasonable doubt about the credibility and reliability of the complainant’s evidence. Whilst it is ultimately necessary to have regard to their combined effect, it is convenient first to deal with them individually.
Delay
The very long delay between the events in issue and the date of trial, coupled with the absence of witnesses, other than the complainant, as to the criminal conduct in issue, raised a serious issue as to the reliability of the complainant’s evidence and the appellant’s capacity to rebut it.
It is the experience of the law that there are many cases of sexual assault upon children which do not result in complaint being made until many years later. The law seeks to address the evidentiary consequences of the delay by requiring directions and warnings be given to the jury. In the present case, the trial judge gave a series of careful and comprehensive directions as to the assessment of the complainant’s evidence and as to the forensic disadvantage to the appellant resulting from the consequences of the delay between the events in issue and the date of trial.
Insofar as the assessment of evidence was concerned the delay in issue was plainly relevant to a range of considerations which the judge highlighted to the jury.
Questions you have been invited to consider, and obviously you should consider, are questions such as; was the evidence consistent? Did the witness give a consistent account? Was it internally consistent? Was it in conflict with other evidence? Did the witness recall events with the recollection of detail that you would expect if the witness was telling the truth? Was the detail sufficient to think the witness was reliable? These are all obvious matters that you should pay regard to.
As to the potential effect of delay upon the reliability of the complainant’s evidence specifically the judge coupled reference to the complainant’s evidence about his mental processes with directions relating to the consequences of delay. He said in part:
I am sure you will easily understand that the passage of time may affect any witness' memory. While in some cases people simply forget, they forget things, in other cases memory may become distorted. That is, people may come to remember things that did not really happen. Human recollection is frequently erroneous and liable to distortion in this way and the likelihood of this error increases with delay or the passage of time.
The risk is enhanced if the complainant was young when the alleged offending took place. Our recollection many years later of events occurring in childhood may be distorted or mistaken. It's for you, using your common sense, to assess the evidence of the complainant concerning his memories and the manner in which they emerged as flashbacks and other evidence he's given about his mind returning to the events in what he described as a disassociated state. You should consider all of this evidence in assessing not only whether the complainant is honest in the sense of trying to tell the truth, but also, even if you are so satisfied, whether his recollections are also reliable.
The judge went on to say:
The law says that every jury must take this potential unreliability - that I have tried to summarise as pertinent to the facts in this case - into account when considering evidence that is given after a long passage of time, particularly in the context of the other circumstances that I have just summarised. So you should examine all of the evidence given concerning this passage of time and what happened and consider the impact of the passage of time on the reliability of the claimed memories in addition to the issue of truthfulness in light of the factors that I have just identified.
You must take this potential unreliability into account in determining whether you accept the complainant's evidence at all, and if you do accept it, in whole or in part, in deciding what weight you give to it. In making this assessment, you must carefully consider not only whether the complainant's evidence is honest in the sense that the complainant believes it to be true, but also whether it is in fact true, whether it is reliable, whether it represents what in fact happened.
While you should use your common sense and experience in assessing the effect of delay upon the complainant's memory, you must also consider the possibility that he honest[ly] believes what he is saying, but is mistaken due to the distortion of his memory. I have repeated that fundamental direction in a number of ways. Accordingly, you need to be cautious before accepting the complainant's evidence and need to be cautious about what weight you attach to any of his evidence that you do accept.
In turn, the judge gave a very detailed and extended direction as to potential forensic disadvantage to the appellant flowing from the delay in issue. He directed the jury that because of the delay the accused had lost the opportunity to make enquiries at or close to the time of the alleged incidents and had lost the ability to explore the alleged circumstances in detail soon after the offences were said to have occurred. By way of example, he pointed out that school and hospital records might have been available that bore on the context of the alleged offences. Evidence as to the contemporaneous behaviour of the complainant was no longer available. The precise dates of the offences were no longer able to be identified depriving the appellant of any realistic chance of an alibi. The complainant had not been able to be medically examined proximate to the offending. Potential witnesses were no longer available such as Brother Fitzgerald, a teacher at the school since deceased. Other persons were not able to be satisfactorily identified, other than in the general terms in which the complainant referred to them.
I accept that, as the judge made clear, the history of delay provides a significant context for the assessment of the evidence overall. Nevertheless, it is not in itself sufficient to raise a reasonable doubt concerning the essential truth and reliability of the complainant’s evidence. Nor, having regard to the judge’s directions, is there any basis for concluding that the jury failed to properly take account of this factor.
The complainant’s mental processes
The complainant’s evidence was that after leaving the school he repressed his memories of the sexual assaults he suffered and only began to recall them by way of detailed flashbacks which he first experienced when he was about 13 or 14 through to the age of 18. These occurred in the context of experiences associated with increased awareness of his own sexuality. I find nothing improbable in this.
The complainant also explained a failure at the committal hearing to accurately mark the location of the sick room (in which the majority of the assaults took place) on a sketch plan by saying that he was ‘disassociating’ at the time. When asked what he meant by ‘disassociating’, he said that he lost physical sensation of his body and felt his mind was receding into the moment of a particular incident. He would then be jolted back into the present and begin again to feel physical sensations.
It should be noted first that the matter in issue was not the location of the abuse as such. The complainant’s consistent evidence was that the abuse took place in the sickroom which he described in convincing circumstantial detail. The question in issue went to the correct plotting of the location of the sickroom on a sketch plan.
It is also, in my view, of some significance that the complainant made clear in his evidence that the form of the school had altered in material respects from that at the time of the offending to that depicted in the photographs by reference to which he was asked to give evidence.
In my opinion, the complainant’s evidence as to dissociation did not compel the conclusion that his evidence as to the alleged offending was inherently unreliable. Rather, it raised issues which it was for the jury to evaluate having regard to the evidence as a whole. The judge carefully directed the jury’s attention to the relevant aspects of the evidence:
You need to consider the evidence that the complainant was, apparently, if I have understood [it] correctly, apparently not aware of the abuse during a period of family disharmony and unhappiness and then the memories emerging as flashbacks beginning at about the age of 13 or 14 and continuing until about 18. You need to consider that evidence he gave on that topic. You need to consider the way in which the memories, as he put it, emerged. You need to consider the way in which the memories may have changed over that period between the ages of 13 or 14 and 18, providing more detail as to how other events came back to him. Just summarising his evidence here.
You need to consider the evidence which was given that at the committal, there was this diagram produced touching on the location of the sick room and how this turned out to be false. You need to consider the explanation that he gave to you about that, how he was unable to tell the truth - I am summarising it, it is a matter for you, but as I understood the evidence, he was unable to tell the truth because he was psychologically blocked.
You need to consider his evidence that he was or may have been ‘disassociated’, as he describes it, at other times during the committal. To the extent that you find inaccuracies and inconsistencies in his evidence, you need to consider not only whether these may be the product of untruthfulness but also [un]reliability.
This direction led into the direction I have already set out to the effect that the jury needed to be cautious before accepting the complainant’s evidence.
In turn, that direction was followed by a final direction that the jury must scrutinise the evidence of the complainant with particular care.
Before moving to tell you what the elements of the crime of unlawful and indecent assault of a male under the age of 16 are, and then finishing my charge with a review of the evidence and counsel's final addresses, I need to give you a final direction concerning the need for caution. Because the case depends entirely on the evidence of [the complainant], in such circumstances you will readily appreciate the need for caution on your part.
You can only find the accused guilty of any count if you are satisfied beyond reasonable doubt that the elements of that count are proven. That means, concerning any count, before you could find guilt, you would have to be satisfied beyond reasonable doubt that [the complainant] is both honest and reliable concerning the central allegation of sexual touching relied upon in each count.
In short, you would have to be satisfied beyond reasonable doubt that the alleged sexual touching that is relied upon in each count occurred as he claims. So much, I am sure, is perfectly obvious to you. As I am sure it is that he is unsupported by any other evidence. Indeed, with respect to some matters, for example Counts 4 and 5, he is directly contradicted by the evidence of [C B], who also, of course, gave evidence contrary to [the complainant]'s credibility or reliability on other matters, the other alleged sexual contact between Brother Best, [C B] and [the complainant] and also, as I recall it, [C B] said that, as he recalled, [the complainant] had the capacity or a reasonable capacity, a good capacity, you will remember the evidence better than me, to communicate in English.
All of this, particularly when added to the other directions I have given concerning the need for caution, highlight the need to scrutinise the evidence of the complainant with particular care to determine whether it does in fact satisfy you of the elements of any count to the required degree. So this is a direction I am giving you, focusing on the need for careful scrutiny in this case before you could reach any conclusion of guilt.
I am not persuaded that the limited evidence of dissociation[8] to which I have referred precluded satisfaction beyond reasonable doubt of the appellant’s guilt if evaluated in accordance with the judge’s directions and warnings.
[8]The prosecution admitted and the judge directed the jury that the complainant did not, as he had said in evidence, tell the prosecution prior to trial of the dissociation which he said occurred in the course of the committal hearing.
Lack of corroboration
It is submitted that if sexual assault upon the complainant caused anal bleeding, resulted in some complaints to his mother, and led to observation by the complainant’s mother of bloodstains upon his underpants, and treatment at the Ballarat Base Hospital, these matters could and should have been corroborated.
There is no requirement at law that the complainant’s evidence be corroborated. It was for the jury to assess its truth and reliability. They did so subject to very clear directions from the trial judge that because the Crown case rested on the evidence of the complainant alone, they must be cautious and scrutinise that evidence carefully.
I do not accept that the lack of corroborative circumstantial evidence rendered the verdicts unsafe and unsatisfactory either in itself or in combination with the other matters raised on behalf of the appellant.
Alterations in evidence
The complainant conceded in cross-examination that he had previously said the offending commenced in 1972 not 1971. In turn, his evidence as a whole supported the conclusion that he moved the sequence of offending back a year when he was advised and accepted that the appellant did not teach at the school in 1974. Difficulty with dates is not uncommon in cases such as this, or in human experience generally when describing events of childhood many years earlier. It was open to the jury to find that the complainant had previously got the dates wrong but nevertheless to accept his evidence as to the abuse which he said he suffered.
The complainant also conceded that he erred in the evidence he gave at the committal hearing in respect of the location of the sickroom in which the offending constituted by counts 1, 4, 5 and 6 occurred. The prior error as to the precise location of a particular room was not such as to require the jury to reject the complainant’s evidence as to the offending conduct. His explanation raised the question of dissociation to which I have already referred. The error in itself was not, however, such as to compel reasonable doubt as to the truthfulness or reliability of his evidence as to elements of the offences.
Complaint is also made that the complainant’s evidence was inconsistent and/or involved an alteration in his position in that he initially stated he was comforted when the appellant massaged his back during the first incident but subsequently said he was in fear of the appellant during this incident. In re-examination the complainant said that he remembered that when the appellant was massaging his back that was comforting but he also remembered that he felt cold and became aware that the coldness reflected his fear of the appellant. This explanation was a matter for the jury to assess in the context of the evidence as a whole. It was not inherently improbable.
CB
CB gave evidence that he had been a classmate of the complainant’s and, for a period of time, a friend. The friendship grew out of their mutual interest in making plastic models of airplanes and other vehicles. It ended in grade 5 when they fell out over who should take possession of a model tank the purchase price of which they had both contributed to. In cross-examination, he said that it was not true he was ever ‘in a room with Brother Best and [the complainant] having sex.’ He also denied that he had ever engaged in sexual play with the complainant on other occasions as the complainant alleged.
The complainant said in his evidence in chief concerning the incident forming the basis of counts 4 and 5 that, after the spelling test, the appellant picked out two boys and took them to the sickroom. The complainant’s evidence in chief as to the identity of the other boy was:
There was a boy that was the same age as me and I remember that he had fair hair and I recall that he came from what I would call my class at the time, so he was a classmate.
He was asked ‘can you identify who this boy is?’ He answered:
There are two – two boys that I might – it’s between two boys. I don’t know that I can positively identify him singularly.
In cross-examination, the complainant agreed that he told police the other boy was the boy who lived above the post office. He agreed that he now understood this boy to be CB and that he had had a friendship at school with CB based on a mutual interest in making model toys. It was put to the complainant that his evidence was that the other boy was the boy in his class who lived above the post office. He said there were two candidates. He agreed that he had had sexual play with the post office boy but said there was still doubt that it was the post office boy who was present during the incident after the spelling test. He denied that the possibility of the second boy had only emerged when he was told CB would deny anything of the kind he alleged had happened.
Before this Court, Mr Kidd properly conceded that the Crown case below was put to the jury on the basis that CB was a witness of truth and reliability and that it was not the Crown case that the complainant’s evidence might simply be preferred to that of CB as more detailed and credible.
The Crown case at trial and before this Court is simply that the complainant got the wrong boy in saying that the other boy involved in the relevant incident was (in previous evidence) or could be (at trial) the post office boy.
In my view, the complainant’s evidence plainly left open the possibility that the other boy was not CB. In turn, CB’s evidence did not require rejection of the complainant’s evidence as to the abuse suffered by him in the incident in question. The net effect of the evidence was a matter for the jury to assess.
I would only add that the principal actors involved in the alleged incident were the appellant and the complainant. The other boy was directed to undertake supplementary acts behind the complainant. These circumstances render more credible the possibility that the complainant may be uncertain as to the identity of the correct boy.
It is plain that CB’s evidence provided a basis for doubting the truth and reliability of the complainant’s evidence. It did not however compel such a doubt.
The complainant’s mother
The defence submitted before the trial judge that a miscarriage of justice would occur because the complainant’s mother was not to be called to give evidence in circumstances where her evidence may have materially contradicted the complainant’s.
It is necessary to identify what the complainant himself said concerning his mother’s involvement in the facts in issue. The complainant’s evidence was first that his mother saw bloodstains upon his underpants following the spelling test incident. Secondly, that the complainant tried unsuccessfully to tell his mother what had happened to him in this incident. Thirdly, that because of the bloodstains the complainant was taken to Ballarat Base Hospital where he was treated with an enema (as the complainant believed, for putative constipation). Fourthly, that his mother went down to the school and spoke with the appellant the following day, although the complainant could not say what she said to the appellant.
It follows that the complainant’s mother was not an eyewitness to events in issue.[9] Nor was it the complainant’s evidence that she was the recipient of and understood a complaint of sexual assault made immediately after the event.
[9]Cf R v Tran (1998) 4 VR 294; R v Armstrong (1998) 4 VR 533.
On the other hand, there was evidence from the complainant that his mother was obsessive about his anal cleanliness and it might reasonably be thought she was likely to recollect an incident in which she found blood in his underpants and took him to hospital, if in fact, those events occurred.
In R v Apostilides,[10] the High Court made the following observations:
A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.[11]
[10](1984) 154 CLR 563.
[11]Ibid, 576.
In Dyers v The Queen,[12] Callinan J said with respect to this passage:
There is no universal current practice with respect to the nomination of witnesses on an indictment. The reference to it in the joint judgment should be taken to be a reference to reasonably available material witnesses. The obligation of the prosecution is to call all material witnesses. Whilst counsel and judges should be vigilant to ensure that trials are not needlessly prolonged, ‘material’ in this field of discourse should not be given any narrow meaning. A witness will not cease to be a material witness merely because he or she is a witness to a relevant circumstantial matter or event.
…
A broad practical view of materiality should be taken. All the available admissible evidence which could reasonably influence a jury on the question of the guilt or otherwise of an accused is capable of answering the description ‘material’.[13]
[12](2002) 210 CLR 285.
[13]Ibid, 326 [118].
The complainant’s evidence was that at the date of trial his mother was 72 years old and a person under stress. He had requested that the police not speak to her about the case against the appellant.
In turn, the informant’s evidence was that he had not spoken to the complainant’s mother in deference to the complainant’s wishes. The prosecutor had accepted the complainant’s mother should not be called without further investigation.
After making complaint to the trial judge that the resultant position was fundamentally unfair to his client, Mr Morrissey sought a Jones v Dunkel[14] direction from the trial judge concerning the Crown’s failure to call the mother as a witness. The matter was debated at some length and before the judge ruled on the defence application the prosecutor agreed that such a direction should be given. The Crown consent provided a proper basis for the direction despite the fact:
[14](1959) 101 CLR 298.
(a) that it was plain that the prosecution did not know what evidence the mother might give, such that there was in fact no basis for any adverse inference to be drawn;
(b) the underlying question was not whether the jury might properly reach conclusions about issues of fact but, whether in the circumstances they should entertain a reasonable doubt about the guilt of the accused;[15] and
(c) the intermediate steps which would otherwise be required before a Jones v Dunkel direction were given had not been completed.[16]
[15]RPS v The Queen (2000) 199 CLR 620, 623-33 [27]-[29] (Gaudron A-CJ, Gummow, Kirby and Hayne JJ); Mahmood v Western Australia (2008) 232 CLR 397, 406 [27] (Gleeson CJ, Gummow, Kirby and Kiefel JJ).
[16]As to which see the observations of Gaudron and Hayne JJ in Dyers v The Queen (2002) 210 CLR 285, 295 [17].
In the event, the trial judge directed the jury as follows:
However, the prosecution as you have been told has an obligation to call all relevant evidence. That is part of their duty to ensure a fair trial. The prosecution has that duty. So as Mr Livitsanos explained to you, CB was called.
The prosecution in this case has been criticised for not calling … the complainant's mother. The complainant, [the complainant], said that after the events constituting Count 6 he bled anally, there was blood on his underpants which was observed by his mother. He said he attempted to tell her the reason for this. He said he was taken to the hospital. He said his mother also attended the school the next day and spoke to the accused.
So she is a person who you might expect to have heard evidence from in this trial. However, the prosecution did not call her, chose not to call her as a witness. Indeed, the informant said that he did not speak to her. He said he did not speak to her at the complainant's request. And he said that the prosecution did not instruct him to speak to her.
The law says where the prosecution may have been expected to ask a particular witness to give evidence but failed to do so without providing a satisfactory explanation, then you may infer that the witness's evidence would not have assisted the prosecution. It is for you to determine whether the prosecution has provided a satisfactory reason for not asking [the complainant’s mother] to give evidence. However, on the evidence before you, the prosecution has not put forward or relied upon any evidence that could provide a satisfactory reason.
If you find the prosecution have not provided a satisfactory reason, then you may infer that [the complainant’s mother]'s evidence would not have assisted them, and you should keep this in mind when determining whether the prosecution has proven the [guilt] of the accused to the required standard.
Mr Morrissey now submits that this direction did not remove the prejudice inherent in the possibility that the complainant’s mother might in fact have been able to give evidence which materially differed from that of the complainant and was thus exculpatory in its effect.
The relevant test was stated by the High Court in Apostilides:[17]
A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.[18]
[17]The Queen v Apostilides (1984) 154 CLR 563.
[18]Ibid, 575.
In the present case, the failure to call the complainant’s mother as a witness or to ascertain what evidence she might give, cannot be said to have resulted in a miscarriage of justice because the course adopted conferred a material forensic advantage upon the appellant in accordance with a rational tactical decision made by his counsel.
The direction was one which invited the jury to positively infer the evidence of the complainant’s mother would not have assisted the prosecution. Such a direction was advantageous to the defence in fact and potentially significantly more favourable to the appellant than the complainant’s mother’s evidence might prove to be if she were called.
As the High Court has recently reiterated in Patel,[19] it is a cardinal principle of litigation including criminal litigation that parties are bound by the conduct of their counsel.[20] Where a party elects to take a course at trial which conveys a forensic advantage upon that party, he or she cannot ordinarily resile from and complain of that course upon appeal. It is not to the point that the course adopted may also have involved some incidental hypothetical possibility of detriment to the party. It is sufficient that it plainly conveyed a forensic benefit which the party made a considered rational choice to obtain.[21]
[19]Patel v The Queen [2012] HCA 29.
[20]Ibid, [114] (per French CJ, Hayne, Kiefel and Bell JJ); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, 618 [9]; [2006] HCA 9; 225 ALR 161, 164.
[21]Patel, [117].
Where it can be seen that the course adopted followed a rational tactical decision, the Court is entitled to conclude that no unfairness attached to the process.[22] In the present case, the defence obtained agreement that such a direction should be given and the direction was given where the circumstances did not, on their face, in fact warrant any inference of fact adverse to the prosecution.
[22]Patel, [114]; Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769, 772 [13], 773-774 [22]-[23], 780 [55]-[56]; [1998] HCA 23; 153 ALR 145, 149, 151, 160; [1998] HCA 23; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, 664 [7], 677 [98]-[99]; [2005] HCA 8; 214 ALR 1, 4, 21-22; [2005] HCA 8; Tully v The Queen [2006] HCA 56; (2006) 230 CLR 234, 280 [149]; [2006] HCA 56; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, 618-619 [9]; [2006] HCA 9; 225 ALR 161, 164-165.
As Mr Morrissey conceded, it was open to the defence at trial to seek a stay[23] on the basis that unless the nature of the evidence available from the complainant’s mother was ascertained the trial would not be fair.[24] A tactical choice was made not to do so, and instead to pursue a direction favourable to the defence. It is not surprising this choice was made, but the appellant cannot now have it both ways and obtain a retrial on the basis that the trial should have followed an alternative course to that previously sought on his behalf.
[23]A stay might have been sought of the counts arising out of the first incident or of the trial as a whole. The stay sought might have been conditional in the first instance, namely until the prosecutor obtained a proof of evidence from the complainant’s mother, or it might have been argued that in all the circumstances of the case (including other trials affecting the appellant) the stay should be permanent.
[24]Jago v District Court (NSW) (1989) 168 CLR 23, 31-33 per Mason CJ; Barton v The Queen (1980) 147 CLR 75, 102 per Gibbs ACJ and Mason J; Dietrich v The Queen (1992) 177 CLR 292; R v Chimirri [2010] VSCA 57; R v Smith (Unreported, Supreme Court of Queensland, Court of Appeal, 9 May 1997, Davies JA, Ambrose and White JJ).
It is unnecessary to decide whether on the evidence as it stood a stay, if requested, should have been granted at least until the nature of any evidence available from the mother was ascertained. The question was not argued at trial or ruled upon by the trial judge who was vested with the conduct of the proceeding. It is sufficient for present purposes to say that a stay application might have been made.
The trial judge went to great lengths to ensure this issue was fully and fairly ventilated before him. It would be grossly incorrect to characterise the trial as unfair. The course which was followed was adopted at the appellant’s request, when defence counsel was fully cognisant of both its potential limitations and its palpable advantages. Having regard to the way in which the trial was conducted and the issues joined, there was no substantial miscarriage of justice.
Conclusion
For the above reasons, the appeal fails. I am not persuaded that having regard to the evidence as a whole the jury’s verdicts were unsafe and unsatisfactory.
I am not satisfied that the particular matters agitated by the appellant, either taken individually or in combination, establish that the jury acting reasonably was precluded from being satisfied of guilt beyond reasonable doubt.
I am also not persuaded that viewed against the conduct of the trial as a whole, the failure to call the complainant’s mother as a witness gave rise to a substantial miscarriage of justice.
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