Bowden (a pseudonym) v The Queen

[2017] VSCA 46

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0055

TOBY BOWDEN (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P, PRIEST JA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2017
DATE OF JUDGMENT:	10 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 46
JUDGMENT APPEALED FROM:	DPP v Bowden (a pseudonym) [2016] VCC 297 (Unreported, County Court of Victoria, Judge Cotterell, 7 December 2015 (Conviction); 9 March 2016 (Sentence))

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CRIMINAL LAW – Application for leave to appeal – Conviction – Indecent act with a child under 16, sexual penetration of a child under 16 and incest – Fresh or new evidence – New evidence of telephone records, bank statement and pay slip – Evidence could have been adduced at trial – New evidence does not raise reasonable doubt of guilt – No substantial miscarriage of justice established – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal – Sentence – Indecent act with a child under 16, sexual penetration of a child under 16 and incest – Applicant sentenced to a total effective sentence of 10 years and three months’ imprisonment with non-parole period eight years – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T R Marsh	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr John Cain, Solicitor for Public Prosecutions

MAXWELL P

KIDD AJA:

1. We have had the advantage of reading in draft the reasons for judgment of Priest JA.  For the reasons which his Honour gives, we too would refuse both applications for leave to appeal.

1. We wish to add only two matters.  The first concerns the test to be applied by the appellate court when — as here — the ground of appeal relies on new evidence (as distinct from fresh evidence).  As Priest JA notes, this Court in Rich v The Queen defined the test in these terms:

If admissible evidence persuades the court that there has been a miscarriage of justice because the appellant was innocent, or there is a reasonable doubt as to his or her guilt, it will quash the conviction and order entry of a verdict of acquittal or a new trial.[2]

[2](2014) 43 VR 558, 571 [50].

1. This passage identifies two alternative bases for upholding the ground.  The first is where the new evidence persuades the Court of the appellant’s innocence.  The second is where the Court is persuaded that ‘there is a reasonable doubt as to his or her guilt’.

1. It was common ground on the appeal that the second of these alternatives is made out only if the appellate court, having considered the evidence led at trial together with the new evidence, itself has a reasonable doubt about the appellant’s guilt.  In the words of Barwick CJ in Ratten v The Queen,[3] the test is met if the court ‘entertains such a doubt that the verdict of guilty cannot stand.’

   [3](1974) 131 CLR 510, 517–8 (‘Ratten’).

1. There is an obvious parallel with the task of the appellate court when considering the ‘unsafe and unsatisfactory’ ground under s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’). There, the appellate court reviews the record of the trial in order to decide whether the jury ‘must… have entertained a doubt about the appellant’s guilt’.[4]  That decision turns upon whether the appellate court itself entertains a doubt, since ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.’[5]

   [4]Libke v The Queen (2007) 230 CLR 559, 596–7 [13] (emphasis in original) (citations omitted).

   [5]M v The Queen (1994) 181 CLR 487, 494.

1. In the case of new evidence, the appellate court reviews the record of the trial in the light of the new evidence, in order to decide whether it entertains a reasonable doubt.  But the nature of the task is essentially the same.  In effect, the court is deciding whether — had the new evidence been before the jury — the jury must have entertained a doubt about the appellant’s guilt.  (With fresh evidence, by contrast, it is sufficient for the appellate court to conclude that the jury might have entertained a doubt.)

1. Whether the tasks are in truth the same need not be decided.  The purpose of drawing the parallel is to underline the stringency of the ‘new evidence’ test.  It also raises an important question about the order which the appellate court should make in a case where the new evidence ground succeeds.  Logically, as counsel for the respondent acknowledged in argument, the result should be an acquittal since — ex hypothesi — the Court has concluded that the new evidence must have raised a reasonable doubt.  That was certainly the view expressed by Barwick CJ in Ratten.[6]  But, in view of the conclusion we have reached in the present appeal, it is unnecessary to pursue this question further.

   [6](1974) 131 CLR 510, 518.

1. Secondly, as to sentence, counsel for the applicant submitted that the individual sentences — five years for each charge of sexual penetration of a child under 16, and seven years for the charge of incest — were inconsistent with current sentencing for those offences following a plea of not guilty.  Reference to the helpful

‘sentence overviews’ published by the Judicial College of Victoria demonstrates that this submission cannot be sustained.[7]

[7]Judicial College of Victoria, Victorian Sentencing Manual, Chapter 31.11.5.2: ‘Overview of sexual penetration of child under 16 sentences, organised by head sentence’:  see, eg, LQv The Queen [2011] VSCA 135 and Smith v The Queen [2013] VSCA 310; Judicial College of Victoria, Victorian Sentencing Manual, Chapter 31.11.4.1: ‘Overview of incest sentences, organised by head sentence’:  see, eg, PDI v The Queen (2011) 216 A Crim R 577 and MP v The Queen [2011] VSCA 78.

PRIEST JA:

Introduction

1. On 7 December 2015, a jury in the County Court convicted the applicant of one charge of committing an indecent act with a child under 16[8] (charge 1), six charges of sexual penetration of a child under 16[9] (charges 2, 3, 4, 5, 6 and 7) and one charge of incest (charge 8).[10]  Thereafter, on 9 March 2016, the trial judge sentenced the applicant to a total effective sentence of 10 years and three months’ imprisonment, with a non-parole period of eight years.

   [8]Crimes Act 1958, s 47(1). The maximum penalty is 10 years’ imprisonment.

   [9]Crimes Act 1958, s 45(1). The maximum penalty is 15 years’ imprisonment.

   [10]Crimes Act 1958, s 44(2). The maximum penalty is 25 years’ imprisonment.

1. The applicant seeks leave to appeal against conviction on a single ground, formulated as follows:

New evidence has become available since the time of the Applicant’s conviction that gives rise to a significant possibility that the jury might have acquitted the Applicant if the evidence had been led at the Applicant’s trial.

1. With respect to sentence, the applicant seeks leave to appeal on one ground:

The total effective sentence, the individual sentences on counts 2 – 8 and the non-parole period imposed are manifestly excessive in the light of:

a.   The absence of any relevant prior convictions or subsequent matters;

b.   The ongoing support of family and friends;

c.   The Applicant’s outstanding work history and impressive career;

d.   The Applicant’s good prospects of rehabilitation;

e.   The limited applicability of the principle of specific deterrence;

f.    No evidence of physical force in the commission of the offences;

g.   The offending, whilst very serious, was not of the worst category of such offences;

h.   That it was not necessary or appropriate to impose a disproportionate sentence;

i.    The need to avoid a crushing sentence.

1. In my opinion, both applications must be refused.  My reasons follow.

Conviction application

Background

1. The applicant first faced trial in the County Court in February 2015, but the jury were unable to reach a verdict.

1. On 26 November 2015, the applicant’s second trial commenced.  By agreement, the recorded evidence of the witnesses from the first trial (subject to necessary edits) — including that of the complainant and her mother, and that of the applicant — was played to the jury and stood as the evidence.  On 7 December 2015, the jury convicted the applicant on all charges.

Overview of the offending

1. So as to understand how the application touching conviction is put, it is necessary briefly to outline the evidence supporting the charges (which predominantly is based on the complainant’s evidence at trial).

1. ‘WNY’, the complainant, was aged between nine and 16 years[11] when the offending occurred (between 2000 and 2006), and the applicant was aged between 29 and 35 years. 

   [11]Her date of birth is 12 October 1990.

1. In 1999, the applicant lived in an apartment in Chadstone, a south-eastern Melbourne suburb.  He eventually developed a relationship with ‘WS’, the complainant’s mother, who lived with WNY in the same apartment complex.

1. After WS moved with WNY to another eastern Melbourne suburb, the applicant would regularly visit them.  On occasion, the applicant would take them on holidays.

1. The first offence — ‘the Daylesford offence’ — occurred when WNY, WS and the applicant went to Daylesford for a weekend.  The three shared one king size bed.  During the night, WS left the bed to go to the toilet.   When WS was in the toilet, the applicant touched WNY on the vagina for ‘maybe a minute — not that long’ over her ‘shorts’ (charge 1).

1. Sexual penetration first occurred in 2003 in the applicant’s apartment.  It was alleged that the applicant removed his clothes, lay on the bed and put Vaseline on his penis.  WNY removed her pants and underpants at the applicant’s request and got on top of him with her legs either side of him.  The applicant said to WNY, ‘You guide it in’ (or something similar).  WNY guided the applicant’s penis into her anus (charge 2) — because she did not want it ‘anywhere else’ — and he kept it there for ‘maybe two minutes’ until he ejaculated. 

1. Another act of penile-anal penetration took place about a week later, once more in the applicant’s apartment.  It was alleged that the applicant removed his clothes and lay on his bed.  WNY then straddled the applicant and inserted the applicant’s penis into her anus (charge 3).  She then got off the applicant and masturbated him until he ejaculated.

1. The final act of penile-anal penetration also occurred in 2003 in the applicant’s apartment.  As on other occasions, the applicant removed his clothes, lay on the bed and put Vaseline on his penis.  WNY again straddled the applicant and inserted his penis into her anus (charge 4).  On this occasion, however, WNY defecated on the applicant.  It was claimed that the applicant became angry and said that WNY had been ‘ripping him off’.  Apparently, the applicant had thought that WNY had been putting his penis into her vagina, but had come to realise that in fact his penis was being inserted into her anus.

1. WNY recalled the first occasion that the applicant penetrated her vagina with his penis.  It occurred in the applicant’s apartment.  WNY ‘would’ve been 12, maybe turned 13’, and she held a pillow over her face because she did not want to see.  The applicant removed his clothing and had WNY remove her pants and underpants.  He lay WNY on the bed, got on top of her and inserted his penis ‘probably half maybe’ into her vagina (charge 5).  Penetration continued for ‘two minutes maybe’ until the applicant ejaculated.  The applicant afterwards gave the complainant $100.

1. The next occasion of penile-vaginal penetration — ‘the Valentine’s Day offence’ — occurred on Valentine’s Day in 2004.   WNY asked to be driven to Southland Shopping Centre.  In exchange for sex, the applicant drove WNY to Southland and gave her ‘some money’.   The sex took place for a ‘couple of minutes’ in WS’s bed in premises at Chadstone, culminating in ejaculation (charge 6).

1. Another incident of penile-vaginal sex — ‘the birthday party offence’ — occurred in January 2005 when WNY ‘would have been 14’.  WNY had been invited to a friend’s sixteenth birthday party.  The applicant gave WNY a lift, but first took her to his apartment where he penetrated her vagina with his penis for ‘two, three minutes’ until he ejaculated (charge 7). WNY then had a shower and the applicant dropped her at the friend’s house, having given her money for alcohol.

1. The final charged act of penile-vaginal penetration occurred in 2006, when the applicant was living with WS in a de facto relationship in a south-eastern suburb of Melbourne.  One afternoon after school, when WNY was in Year 10, the applicant ‘wanted sex’.  WNY told him that she had her period.  The applicant put a towel on the bed he shared with WS before penetrating WNY’s vagina with his penis until he ejaculated (charge 8).

1. WNY gave evidence that, in addition to the charged incidents, there were ‘hundreds of other occasions where there was sexual contact’, sometimes ‘two, three times a week’ — including oral sex, ‘hand jobs’ and penetrative sex — continuing up until about 2012.

1. The applicant and WS separated at the end of 2012 or early in 2013, and in March of 2013 WNY alleged for the first time that she had been the victim of sexual offending by the applicant. 

1. When interviewed by police, the applicant answered ‘no comment’.  In sworn evidence, the applicant denied the offending.

Relevant principles

1. The applicant’s ground of appeal claims that ‘new evidence’ — not ‘fresh evidence’ — has become available since the time of his conviction ‘that gives rise to a significant possibility that the jury might have acquitted [him] if the evidence had been led at [his] trial’. 

1. Any analysis of the principles governing the resolution of the application must commence with the relevant statutory text. Section 276 of the Criminal Procedure Act 2009 (‘CPA’) provides that this Court must allow an appeal against conviction if the appellant satisfies the Court that —

(a)  the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or

(b) if as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

1. Appellate courts historically have drawn a distinction between ‘fresh evidence’ and ‘new evidence’.  Rules have been developed by the courts — those rules, of course, being developed in the context of the applicable common form criminal appeal statutes — so as to guide the approach at appellate level to fresh evidence and to new evidence.  Generally, the rules as formulated in the authorities have contemplated that fresh evidence and new evidence should be approached differently, although it has been recognised that any such rules should be applied so as to serve, rather than frustrate, the interests of justice.  Thus, in McIntee,[12] when speaking of fresh evidence, King CJ observed:

The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice.  I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.

[12]R v McIntee (1985) 38 SASR 432, 435. See also Gallagher v The Queen (1986) 160 CLR 392, 395 (‘Gallagher’).

1. As the text of s 276 of the CPA makes plain, the fundamental question for this Court must always be whether there has been a substantial miscarriage of justice as a result of the subject evidence not being adduced at the trial.[13]  Therefore, statements of principle that can be derived from the authorities concerning fresh evidence should not be regarded ‘as absolute or hard and fast rules’.[14]  So much was emphasised by Winneke P in AHK (albeit with respect to the previous common form statutory provision which governed conviction appeals):[15]

Where in this State the Court of Appeal is asked to set aside a conviction pursuant to s 568(1) of the Crimes Act 1958 on the grounds of ‘fresh evidence’, and where … there has been no wrong decision on any question of law or other irregularity at the trial and the verdict of the jury is not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the court can only allow the appeal if it considers that a miscarriage of justice has occurred by reason of the fact that the ‘fresh evidence’ was not adduced at the trial.  The fundamental question for the court, in each such case, is whether it perceives that a miscarriage of justice has occurred.[16] In answering this question authorities binding on this court have laid down three general considerations which should guide the court in coming to its conclusion.  The first of these, although it is not an inflexible rule, is that the conviction will not usually be set aside if the evidence relied on could, with reasonable diligence, have been produced by the accused at his trial.  The second and third considerations, which are inter-related, are that the ‘fresh evidence’ is apparently credible or plausible or, at least, capable of belief and, in the view of the court, is sufficiently relevant and cogent in the sense that, if considered in combination with the evidence already given at the trial, the court considers that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’ (per Mason and Deane JJ, Gallagher v The Queen^[[17]]).  It is in respect of these last considerations that there has been, over the years, some difference of judicial opinion although it was the test adopted by this court (albeit with a qualification) in R v Nguyen & Tran.[18]  However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred.  An appellate court will always receive ‘fresh evidence’ if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.

[13]See Gallagher, 395; Green v The King (1939) 61 CLR 167, 175; R v Barnett (1994) 71 A Crim R 515, 529.

[14]Gallagher, 395; Green v The King (1939) 61 CLR 167, 175.

[15]R v AHK [2001] VSCA 220, [8] (emphasis added). See also R v Ali (2001) 122 A Crim R 498, 500–1 [8]–[9]; R v Pedrana (2001) 123 A Crim R 1, 3–5 [8]–[16]; Mallard v The Queen (2003) 28 WAR 1, 6–8 [11]–[17]; Mickelberg v The Queen (2004) 29 WAR 13, 129–132 [410]–[416]; R v White (2003) 140 A Crim R 63, 68–9 [36]–[38]; Greensill v The Queen (2012) 37 VR 257, 274–5 [71]–[72]; Weng v The Queen (2013) 279 FLR 119, 126–8 [29]–[32].

[16]Compare Gallagher, 392 (Gibbs CJ).

[17][Gallagher, 402.]

[18]R v Nguyen [1998] 4 VR 394, 400–1 (Kenny JA).

1. In this case, the applicant does not contend that the evidence upon which he now seeks to rely is ‘fresh evidence’.  Rather, it is conceded that it is ‘new evidence’.  The distinction between the two was described in Mallard as follows:[19]

Subject to questions of non-disclosure … evidence which has not been produced at trial falls into two broad categories.  One is evidence which was available at the trial or which could, with reasonable diligence, have then been discovered.  The other consists of evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered.  Only the second category comprises ‘fresh’ evidence.  The first category is frequently described as ‘new’ evidence.

[19]Mallard v The Queen (2003) 28 WAR 1, 6 [11] (Parker, Wheeler and Roberts-Smith JJ). See also Ratten v The Queen (1974) 131 CLR 510, 517, 519 (Barwick CJ).

1. Given the adversarial nature of a criminal trial, the distinction between fresh and new evidence remains important.  Without being overly prescriptive, it generally will be difficult to conclude that there has been a substantial miscarriage of justice where — after a trial free from error or irregularity — conviction has resulted, there having been a failure to adduce relevant evidence which, had reasonable diligence been employed, would have been available at trial.   The point was well-made by Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) in Ratten:[20]

As Smith J rightly said in expressing the reasons of the Full Court in this case, ‘Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence’.[21]  It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other.  Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility.  The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law.  Upon the evidence and under the judge’s directions, the jury is to decide whether the accused is guilty or not.  Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial.  It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.  Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted.  The accused, nevertheless, will have had a fair trial.  But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair.  Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.

[20]Ratten v The Queen (1974) 131 CLR 510, 517–518 (‘Ratten’) (emphasis added).

[21]Re Ratten [1974] VR 201 at 214.

1. In cases involving fresh evidence, it has been held that an appellate court will conclude that there has been a miscarriage of justice because the fresh evidence was not put before the jury if there is a ‘significant possibility’ (or, perhaps, a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial.[22]  In the case of new evidence, however, it has been held that an appellate court will set aside a conviction only if the material shows the convicted person to be innocent, or raises such a doubt about his or her guilt in the mind of the court, that the verdict should not be allowed to stand.[23]  Mason J explained the principle in Lawless:[24]

However, it is not permissible for a court of criminal appeal to set aside a conviction if the newly adduced evidence, not being fresh evidence strictly so called, reveals no more than a likelihood that the jury would have returned a verdict of not guilty.  Two considerations operate to bring about this result.  The first is that in a criminal trial the accused is entitled to decide how his case will be conducted, in particular, what evidence he will call.  He makes this decision in the light of the knowledge that he is tried but once, unless error or miscarriage of justice results in a successful appeal.  He cannot therefore conduct his defence by keeping certain evidence back in the expectation that, if he is convicted, the existence of the uncalled evidence will provide a ground for a second trial at which a different or refurbished defence may be presented.  Accordingly, an accused person, if convicted, generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.

The second consideration is that there must be powerful reasons for disturbing a conviction obtained after a trial which has been regularly conducted.  No such reason for disturbing a conviction presents itself if all that emerges is that the accused has deliberately chosen not to call evidence or that he has failed to search out evidence with reasonable diligence, unless the evidence not called at the trial demonstrates that the accused should not have been convicted of the offence charged.  If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.

[22]Gallagher, 395, 402, 410; Mickelberg v The Queen (1989) 167 CLR 259, 301. In Gallagher, Gibbs CJ emphasised, however, (at 399) that:

… no form of words should be regarded as an incantation that will resolve the difficulties of every case.  No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.  It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial.

[23]Ratten, 517–8 (see extract at [35] above), 520 (Barwick CJ).

[24]Lawless v The Queen (1979) 142 CLR 659, 675–6 (emphasis added).

1. In Rich,[25] this Court acknowledged the distinction between fresh evidence and new evidence, and noted that ‘a higher bar applies to the admission of new evidence which the accused could have called at trial’.[26]  The Court observed:[27]

If admissible evidence persuades the court that there has been a miscarriage of justice because the appellant was innocent, or there is a reasonable doubt as to his or her guilt, it will quash the conviction and order entry of a verdict of acquittal or a new trial.  That is the case whether the evidence is characterised as ‘fresh’ or only ‘new’.[28]

[25]Rich v The Queen (2014) 43 VR 558 (‘Rich’).

[26]Ibid 570–1 [49]. See also Gentry (a pseudonym) v The Queen [2016] VSCA 54, [63]–[66].

[27]Rich, 571 [50].

[28]Ratten v R (1974) 131 CLR 510 at 518 and 520 per Barwick CJ, McTiernan J agreeing.

1. It is not said by the applicant in this case that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, or that there was an error or an irregularity in, or in relation to, the trial.  Thus, the applicant bears the onus of persuading the Court that ‘for any other reason there has been a substantial miscarriage of justice’.  Although it might be acknowledged that there are no hard and fast rules, and that great latitude must be extended to an accused person in determining what evidence by reasonable diligence he or she could have had available at trial, in its treatment of new evidence it is legitimate for this Court to take into account the adversarial nature of a criminal trial, and the obligation of an accused person to adduce such relevant evidence at trial as might be garnered through the exercise of reasonable diligence.  This is not characterised as the kind of unusual case where the Court might intervene to protect the applicant from his own counsel and from the bad management or misconduct of his case at trial.[29]  Hence, as I have indicated, this Court will be slow to conclude that justice has miscarried in circumstances where the applicant has been convicted following a trial free from irregularity, but where evidence that could have been adduced was not.

   [29]Re Knowles [1984] VR 751, 767 (Crockett, McGarvie and Gobbo JJ); R v Sarek [1982] VR 971, 987 (Brooking J). See also Allen (a pseudonym) v The Queen [2016] VSCA 59, [74]–[77] (Maxwell P, Redlich and Priest JJA); Nudd v The Queen (2006) 80 ALJR 614, 617–8 [3]–[8] (Gleeson CJ); TKWJ v The Queen (2002) 212 CLR 124, 133 [27]–[28] (Gaudron J).

1. As earlier observed, the applicant accepted that the evidence that he wished now to rely on was new evidence, yet his ground of appeal and written and oral submissions in support of it, invoked notions ordinarily applicable to fresh evidence.  Hence, the ground of appeal and submissions were to the effect that there was a ‘significant possibility’ that the jury might have acquitted the applicant if the relevant evidence had been led at the applicant’s trial.  In other words, although the applicant accepted that the evidence was new, nonetheless the applicant advanced the ‘significant possibility’ test usually reserved for cases involving fresh evidence.  That conflation (and, perhaps, confusion) of ideas has as its source, I think, the following statement in Knowles:[30]

Nonetheless, in rare cases, evidence which was available at trial but which was not called may be adduced as demonstrating that there was a miscarriage of justice by reason of its not being adduced at trial.  The rare cases in which such evidence is received can generally be described as cases in which[31] —

it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted [the accused]’.

It should not be thought, however, that the Court in Knowles was positing a test applicable to cases of new evidence, since the passage cited from Mickelberg is a clear reference to the test applicable in cases of fresh evidence.  In the result, however, not much turns on the manner in which the ground of appeal was formulated.      

[30]Knowles (a Pseudonym) v The Queen [2015] VSCA 141, [105] (Ashley, Redlich and Priest JJA) (citations in original).

[31]Mickelberg v R (1989) 167 CLR 259, 301 (Toohey and Gaudron JJ) (citations omitted). See also Werden v R [2015] VSCA 72, [68]–[71] (Osborn JA).

1. When I come to review the new evidence upon which the applicant seeks to rely, it will become clear that, in my view, that evidence lacks cogency and, in a number of respects, credibility.  In my assessment of it, the evidence neither shows that an innocent person has been convicted, nor raises a reasonable doubt in my mind about the applicant’s guilt (the test often applied to new evidence).  Furthermore, I am not persuaded that the evidence, if believed, would have led the jury to acquit the applicant if the evidence had been before it at the trial (the test often applied to fresh evidence).

1. It is now necessary to turn to the ‘new evidence’ and the submissions advanced with respect to it.

The new evidence and the applicant’s submissions: overview

1. At the risk of repetition, the applicant contends that new evidence which has become available since the time of the applicant’s trial gives rise to a significant possibility that the jury might have acquitted him had the evidence been led at trial.  It is to be noted, however, that the new evidence directly relates only to charges 1, 6 and 7.

1. Before turning to the detail of the evidence, I should observe at the outset that, in my opinion, the applicant failed to provide any adequate explanation for the failure to adduce the evidence at trial. 

1. In the written case, it was asserted that ‘the new material presented has been obtained through the involvement of the Applicant’s family who only became aware of the charges against the Applicant after the jury in the second trial had found him guilty of the offending’; and that ‘the new material presented in this application was not obtained due to the Applicant’s inability to accurately recollect past events and his inability to overcome feelings of anxiety and depression as well as feelings of fear and shame and allow his family and former employers to assist with preparation of his case’.  It is telling, however, that the sole source of these assertions is — as counsel conceded in oral argument — a psychologist’s report.  Among other things, consultant psychologist, Ms Carla Lechner, said:

It was not until [the applicant’s] sister was apprised of his situation (post second trial) and began assisting him in this regard that he realised he could potentially disprove some or all of the allegations.  He stated that he was not aware of how to access certain types of information such as work records, telephone records, bank details etc. that would assist with his case and was surprised that his sister could seek this out.  [The applicant] is an unsophisticated man who is unfamiliar with complex legal processes, however it is his mood state that seems to have undermined his ability to assist his lawyers, rather than cognitive limitations as such.

…
I interviewed [the applicant] on two occasions for the purpose of a pre-sentence report.  During that time he indicated to me that upon being charged he was virtually ‘paralysed’.  Whilst not a verbally gifted man nor one who is able to easily express his feelings, [the applicant] is not cognitively impaired.  His inability to actively participate in his defence appears to relate to his level of depression, total passivity, level of denial and attendant use of alcohol to block out his anxiety and depression, this further undermining his ability to think clearly about his situation and to actively problem-solve.  Furthermore, he did not ask for assistance (from his family) for fear of being rejected by them on account of the nature of the allegations.  It would appear that his sister’s support has provided him with the motivation to appeal the Court’s decision.

1. It seems to me that little of what appears in the psychologist’s report can properly be characterised as the expression of expert opinion — indeed, it was not relied upon as being such — much (if not most) of the report being devoted to the mere recitation of bald assertions made by the applicant to the psychologist.  Those bald assertions strain credulity and are, in my view, deserving of little or no weight.  They are in the nature of hearsay, and were not bolstered by any direct evidence from the applicant.  Moreover, a number of the assertions  — including that the applicant was not aware of how to access certain types of information such as work records, telephone records, bank details and the like — beggared belief;[32] and, in any event, remained unsupported by any material from the applicant’s trial counsel, who, it might be thought, would have been the person best placed to provide evidence of the applicant’s supposed inability to assist his lawyers.  Indeed, it is telling, in my view, that no concerns were raised, or applications made, at trial, based upon the applicant’s asserted incapacities.

   [32]The fact that, for the purposes of the first trial, the applicant’s counsel sought a forensic disadvantage direction — purportedly because of ‘the lack of opportunity to produce documents and other things’ that might provide an alibi (‘particularly in relation to those charges that are on particular dates’) — demonstrates that the applicant and his counsel must have turned their minds to the desirability of obtaining such records.  Ultimately, the applicant was the beneficiary of a forensic disadvantage direction at both trials, no exception being taken to the content of the direction. 

The new evidence and the applicant’s submissions: the Daylesford offence (charge 1)

1. Turning to the evidence in a little more detail, it will be remembered that the events founding the Daylesford offence, charge 1, were alleged to have taken place between 1 January and 31 December 2000.  In his evidence, the applicant accepted that he, WS and WNY had holidayed in Daylesford that year.  In the written case it is now claimed, however, that in light of new evidence, ‘it is now apparent’ the applicant’s recollection ‘was erroneous’.

1. The supposed new evidence consists of a Suncorp-Metway bank statement in the applicant’s name showing a transaction at Daylesford on 3 November 2001.  It was asserted in both written and oral submissions that this was the only occasion that the applicant was ever in Daylesford.  Significantly, however, there is no admissible evidence to support that assertion.  Hence, at best, the bank statement is capable of supporting the possible inference that the applicant was in Daylesford on 3 November 2001.  But it does no more.  It certainly does not support the contention that the applicant was in Daylesford only once.  (I note in this regard that no statements for the previous year were produced.)

1. Further, WNY, WS and the applicant all gave evidence that they took only one trip to Daylesford together.  WS thought that trip would have been in 2000.  In his evidence, the applicant said that he thought that the trip was early in the period when the two had started dating (which, on the evidence, seems to have been in the period 2000 to 2001).  Thus, even if the bank statement is capable of establishing that the applicant, WNY and WS were all mistaken about the year that the trip took place, nonetheless there was no dispute that the three travelled to Daylesford early in the relationship.  Taken at its highest, the evidence of the bank statement can do no more than show that WNY was mistaken about the date of that trip.

1. In my opinion, the evidence of the bank statement could have made no difference to the verdict.  It certainly raises no reasonable doubt in my mind as to the applicant’s guilt.

The new evidence and the applicant’s submissions: the Valentine’s Day offence (charge 6)

1. Charge 6, the Valentine’s Day offence, related to events that were said to have occurred on 14 February 2004 in premises situated in Chadstone.  WNY said that she recalled the day of the offence because she had received her first Valentine’s Day flower.  At committal, when asked what time of day the offence took place, WNY stated, ‘Um, it would have been probably early — early lunchtime maybe 12 o’clock …’.[33]  When asked whether the offending was definitely on Valentine’s Day, 14 February 2004, her evidence was that she knew it was Valentine’s Day.

   [33]This evidence was not placed before the jury. 

1. The applicant submitted that new evidence is capable of proving that the applicant was at work on 14 February 2004, not finishing until around 3.00pm.  A pay slip for the week ending 15 February 2004 shows the applicant worked seven hours of ‘time and half’, and seven and a half hours of ‘double time’ that week.  From this, so it is submitted, it can be inferred that the applicant worked on Saturday, 14 February 2004. 

1. Moreover, newly obtained telephone records show (so it was submitted) that on 14 February 2004 the applicant’s mobile telephone was used in the vicinity of Williamstown at 12.14pm, Southbank at 1.46pm and Clayton at 3.01pm.  The applicant was at that time a crane driver, and the place of employment to which he returned the company’s cranes at the completion of work was Clayton.

1. Further, the applicant also relied on statements from the managing director of the crane company that employed him, and from two work colleagues.  It was submitted this evidence confirms that the location of the applicant’s workplace was Clayton, and that the standard work practice was for the applicant to return cranes to the yard at Clayton at the end of the day.  Taken together with the telephone records, so it was contended, the evidence supports the inference that the applicant worked on 14 February 2004, returning to the yard in Clayton at the end of the day.

1. It was submitted that the combination of these pieces of new evidence provides the applicant with an alibi with respect to charge 6.  Had evidence of that alibi been put before the jury, so it was argued, the jury would likely have entertained a reasonable doubt as to the applicant’s guilt.  Further, the doubt raised by this alibi evidence has a ‘ripple effect’, and goes generally to WNY’s credibility with respect to all of the allegations that she made concerning the applicant.

1. Notwithstanding the forceful and earnest nature of the submissions on this aspect put on the applicant’s behalf, I accept the analysis of the evidence advanced by the respondent’s counsel.  Thus, I am prepared to accept that, taken in combination, the pay slip and the telephone records might support an inference that the applicant worked until around lunchtime (or, perhaps, until around 3.00pm) on 14 February 2004.  Very helpfully, the respondent’s counsel prepared a table of the relevant telephone calls and messages from the applicant’s telephone which, in large measure, I am grateful to adopt:

Time	From	Tower	To	Type
6.29 am	Applicant	Altona	‘MM’, a fellow worker	SMS
8.36 am	Applicant	Williamstown	unknown	Call
11:23 am	Applicant	Williamstown	12488	Call
12.02 pm	Applicant	Williamstown	MM	SMS
12.06 pm	Applicant	Williamstown	MM	SMS
12.09 pm	Applicant	Williamstown	MM	Call
12.14 pm	Applicant	Williamstown	MM	Call
1.46 pm	Applicant	Southbank	MM	Call
3.01 pm	Applicant	Clayton	‘SS’, a fellow worker	Call
3.09 pm	A worker	Beaconsfield	Applicant	Call
3.12 pm	Applicant	Clayton	SS	Call
3.14 pm	Applicant	Clayton	MM	Call

1. No evidence was forthcoming as to the inferences that might be available from the fact that a telephone call or message was monitored by a particular tower at a given geographical location.  It is well known that the fact that any given telephone call is first connected via a particular mobile telephone tower provides only a general guide to the location of the mobile telephone making the call.[34]  Accepting, for the sake of argument, that the calls in Altona and Williamstown might support an inference that the applicant was working in the morning of 14 February 2004, by 1.46pm he had travelled from suburbs in the west of Melbourne so that a call passed through the Southbank tower (Southbank being closer to central Melbourne).  Thereafter, in the mid-afternoon, three calls passed through the Clayton tower.  The precise location of that tower and the range at which calls can be connected to it are again unknown — the applicant bearing the ultimate onus of persuasion — but the records are consistent with the applicant’s telephone being used to make calls in the general region of Clayton (a south-eastern suburb).  It is legitimate for the Court to take notice of the fact that Clayton is geographically proximate to Chadstone, the suburb in which the offence in charge 6 was alleged to have occurred.

   [34]For example, see Bayley v The Queen [2016] VSCA 160, [119]–[120].

1. I agree with the respondent’s submissions that the telephone records and the pay slip are insufficient to give rise to a reasonable doubt about the applicant’s guilt on charge 6, or to establish his innocence.  The applicant relies on WNY’s evidence at committal that the offending ‘would have been probably early — early lunchtime maybe 12 o’clock’.   That evidence, however, can hardly be described as unequivocal or definitive as to the time that the offence took place.  Accepting that the telephone records might suggest that the offending was unlikely to have occurred before 1.46pm, they amply leave open the possibility that the incident founding charge 6 occurred that day shortly after that time.  To my way of thinking, WNY’s somewhat tentative evidence at committal about the time of day — taken together with the telephone records and pay slips — would not have been considered of much moment by the jury had the evidence been before them.  Certainly I do not regard it as being of much significance.  It does not create any reasonable doubt in my mind.

1. The new evidence on charge 6 cannot bring down the conviction on that — or any other — charge.

The new evidence and the applicant’s submissions: the birthday party offence (charge 7)

1. The birthday party offence, charge 7, was alleged to have occurred between 1 January and 31 January 2005.  More particularly, it was alleged to have occurred around the time of a friend’s sixteenth birthday party, the friend’s birthday falling on 10 January.

1. The supposed new evidence relating to the birthday party offence consists of an unsigned statement of the applicant’s niece, ‘GJ’.[35]  In the statement, GJ asserts that she visited Melbourne and stayed with the applicant, WS and WNY, between 2 and 10 January 2005.  Parts of the statement are as follows:

During my trip I was either with [the applicant] or [WNY] and was not left alone.  [WNY] did not mention to me that my uncle was harming [her].

…
My trip in Melbourne lasted a week.  [The applicant] purchased my plane ticket and I left on Monday 10^th January 2005.  [The applicant] drove me to the airport early in the morning with [WNY].  We waited until it was time for me to proceed to check in.  Over that weekend I do not recall [WNY] going to a party.  I do not recall talk of a party when we were with [WNY’s] friends.  During my trip I was with either [WNY] or [the applicant]. …

[35]In the written case, reliance had been placed upon a document purportedly showing that the applicant’s apartment had been sold on 24 November 2004, so as to found an argument that the incident founding charge 7 could not — as was alleged — have taken place in the apartment.  This aspect was, however, abandoned in oral argument.

1. It will immediately be noticed that none of GJ’s putative evidence is inconsistent with the birthday party offence having occurred in January 2005.  Whilst WNY’s friend’s birthday fell on 10 January — a Monday — there is no evidence as to whether the party was on, before or after, 10 January 2005.

1. Nothing in GJ’s statement would cause me to have a reasonable doubt about the applicant’s guilt on charge 7.

Conclusion

1. There being no substance in the ground of appeal, the application for leave to appeal against conviction must be refused.

Sentence application

1. It is convenient to set out the sentences imposed on the applicant in tabular form:

Charge	Offence	Date of commission	Sentence	Cumulation
1	Indecent act with a child under 16	Between 1 January and 31 December 2000	1 year	3 months
2	Sexual penetration of a child under 16	Between 1 January and 11 October 2003	5 years	6 months
3	Sexual penetration of a child under 16	Between 1 January and 11 October 2003	5 years	6 months
4	Sexual penetration of a child under 16	Between 1 January and 11 October 2003	5 years	6 months
5	Sexual penetration of a child under 16	Between 1 January and 11 October 2003	5 years	6 months
6	Sexual penetration of a child under 16	14 February 2004	5 years	6 months
7	Sexual penetration of a child under 16	Between 1 January and 31 January 2005	5 years	6 months
8	Incest	Between 1 January and 31 May 2006	7 years	Base
Total effective sentence		10 years and 3 months’ imprisonment
Non-parole period		8 years’ imprisonment
Pre-sentence detention		93 days
Other orders		·     Sentenced as a serious sexual offender on charges 3, 4, 5, 6, 7 and 8. ·     Life reporting under the Sex Offenders Registration Act 2004. ·     Forensic sample.

1. In support of the application for leave to appeal, the applicant did not submit that the sentencing judge failed to take into account any relevant matter, and his counsel ‘took no issue’ with the sentence imposed on the first charge.  Otherwise, however, it was submitted that the individual sentences on charges 2 to 8, the total effective sentence and the non-parole period were manifestly excessive.  Largely, the applicant sought to support the contention of manifest excess by recourse to statistics published by the Sentencing Advisory Council.  Further, it was contended that the non-parole period — which  represents 78 per cent of the period of the head sentence — was disproportionately lengthy, particularly in light of the judge’s finding that the applicant had good prospects of rehabilitation.

1. The respondent submitted that the sentence imposed properly reflected a number of factors:

·     The offending commenced when WNY was aged nine years, and continued until she was aged 15.  They were not isolated events, but occurred in the context of an ongoing pattern of sexual behaviour directed towards the complainant.

·     Each of charges 2 to 8 involved penile penetration without the use of a condom.

·     At relevant times the applicant was in a position of trust as WS’s boyfriend, or, in the case of charge 8, as a de facto father.

·     The impact of the offending upon WNY and WS was significant.

·     There was no mitigation flowing from any plea of guilty.

·     Although the offending did not involve threats or violence, it preyed upon the vulnerability of a child.

·     On some occasions the applicant demanded sexual activity in return for favours (such as transport, money, snacks or cigarettes).

1. In my opinion, the applicant’s submissions cannot be accepted.  It seems to me that, even were it to be assumed that the individual sentences of five years’ imprisonment on each charge of sexual penetration were towards the top of the range, they could not properly be characterised as being manifestly excessive.  The sentences imposed on charges 2 to 7 represent a third of the available statutory maximum, in circumstances where there was no amelioration of sentence flowing from a plea of guilty.  Moreover, although it cannot be concluded that they represented the worst examples of the relevant offence, nonetheless each was a serious example of the offence. 

1. Similarly, even assuming the individual sentence of seven years’ imprisonment on charge 8, incest, to be towards the top of the available range, I am not persuaded that it falls altogether outside the range.  Incest is punishable by up to 25 years’ imprisonment.  Although again it cannot be concluded that the incest in charge 8 represented the worst example of that offence, nonetheless it remained a serious example.

1. Furthermore, the level of cumulation ordered as between the sentences on individual charges was, in my view, moderate, and did not render the total effective sentence manifestly excessive.  Finally, I regard the non-parole period as falling within the bounds of the sound exercise of discretion.

1. For these reasons, the application for leave to appeal against sentence must be refused.

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