Brody Harley (a pseudonym)[1] v The Queen
[2018] VSCA 36
•26 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0001
| BRODY HARLEY (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, NIALL JA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 February 2018 |
| DATE OF ORDERS: | 13 February 2018 |
| DATE OF JUDGMENT: | 26 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 36 |
| JUDGMENT APPEALED FROM: | DPP v [Harley (a pseudonym)] (Unreported, County Court of Victoria, Judge Mullaly, 9 August 2017 (Conviction)) |
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CRIMINAL LAW – Appeal – Conviction – Indecent act with child under 16 – Whether verdict unreasonable – Oath-on-oath case – Whether good character and post-offence conduct inconsistent with guilt – Where credibility of complainant unchallenged on appeal – Open to jury to accept complainant’s account – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Lethbridges Barristers and Solicitors |
| For the Crown | Mr J Gullaci | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Niall JA. It was for the reasons which his Honour gives that I, too, joined in the order refusing leave to appeal.
NIALL JA:
Overview
On 9 August 2017, the applicant was convicted by a County Court jury on a single count of indecent act with a child under the age of 16. The applicant seeks leave to appeal his conviction on the ground that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
On 13 February 2018, the Court refused the application for leave to appeal and indicated that it would publish its reasons at a later date. These are my reasons for agreeing in that order.
In summary, having reviewed the totality of the evidence and the submission in support of the application, I was not satisfied that it was reasonably arguable that the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt.
The trial and the application for leave to appeal
Before recounting some critical aspects of the evidence, it is useful to encapsulate the Crown case, the defence response at trial, and the matters advanced by the applicant in support of his application for leave to appeal.
The alleged incident occurred on 13 October 2014. The complainant was then 8 years of age. The Crown alleged that the applicant, whilst looking after the complainant at his home, removed her pants, took her into his bedroom, blew ‘raspberries’ on her stomach, removed her underpants, blew into her mouth, and
then licked her vagina four times. The complainant became upset. The applicant then called the complainant’s mother, who said she would collect her
When the complainant’s mother arrived at the applicant’s home, the complainant was showing obvious signs of distress but did not tell her mother what had happened. Later that evening, the complainant wrote an account of what had happened, which included the following (errors in the original): ‘he took my undies of and holding me with his arm on my rood part and then started to blow in my stumick and then it felt like he was perpisly liking my rood part like four times’.
The accused gave a detailed record of interview to police, and gave evidence on his trial. On his account, he was play fighting with the complainant in the lounge room, blew ‘raspberries’ on her stomach, and pretended to perform CPR by blowing into her mouth. He denied that they went into the bedroom, and denied that he removed the complainant’s clothes or made any contact with the complainant’s genitals.
The applicant advanced seven matters in support of the application for leave to appeal.[2] Critically, and I might say unusually for an appeal alleging an unsafe and unsatisfactory verdict in a case such as the present, none of those matters went to the credibility of the complainant.[3] Indeed, in the course of submissions, counsel for the applicant accepted that the complainant’s account was, when taken on its own, capable of being accepted by the jury. Rather, counsel for the applicant submitted that there were a number of matters pertaining to the applicant that were said necessarily to give rise to a reasonable doubt in the jury’s mind, namely his good character, his insistence that the complainant’s mother contact the police, his early and consistent denials, his full cooperation with the police investigation, and the coherence of his account. I will return to each of those matters after I have recounted the relevant parts of the evidence.
[2]Counsel for the applicant submitted that there were eight matters of complaint, but in the result the seventh and eighth matters were combined in a single point.
[3]In the applicant’s written case, one of the matters of complaint was that the complainant had given evidence that she could not be very clear about what had happened when she was at the applicant’s house. This matter was not pursued at the hearing.
The evidence at trial
Between 2001 and 2008, the applicant was in a relationship with the complainant’s mother. They had one son together.
On 12 October 2014, the complainant’s mother asked the applicant if he would collect the complainant and her two step brothers, including the applicant’s son, from school the next day. As things transpired, the two boys made their own way home. The applicant collected the complainant from school and, as arranged, took her to his house. There were just the two of them in the house.
The evidence of the complainant and her mother
The complainant was interviewed by police on 15 October 2014. A video and audio recording was made of this interview (‘the VARE’), which was played to the jury at trial.
The complainant told police that she was watching television and the applicant then removed her tracksuit pants and took her into a bedroom. The complainant thought this was a game. She said that she was jumping on the bed ‘doing flips’.
She said that the applicant then blew ‘raspberries’ on her tummy, removed her underpants, blew into her mouth, and licked her ‘rude spot’ about four times. The complainant said that the ‘rude spot’ was her vagina. She said that the applicant had put her underpants in his pocket and threw them back to her as he was leaving the room. He then went into the kitchen and telephoned her mother. The complainant went back to watch television until her mother arrived a short time later.
The complainant’s mother gave evidence that she was telephoned by the applicant, who told her that the complainant ‘wasn’t very happy with him.’ According to the mother’s evidence, the applicant said that ‘they were wrestling. He was blowing raspberries on her belly and in the fit of laughter or giggles, she’s obviously pushed him into the genital area.’ I note that the complainant’s mother was not cross-examined on her account of this conversation, although, in his evidence, the applicant denied saying that the complainant had pushed him into her genital area.
I also note that, in the VARE, the complainant gave the following answers to police:
Q … And what was he doing when he was licking it?
A That, like, licking it.
QMm. Can you tell me in a bit more detail in regards to what you mean by that?
AWell, he said that I knocked him, but I didn’t, and I felt like he did it four times, so …
I interpolate to note that the statement as to what the applicant had said in answer to the allegation, namely that he had been knocked by the complainant, was most likely sourced in what the complainant had been told by her mother, rather than what the complainant had heard. However, the statement does show that the mother had given her account of the telephone conversation to both the complainant and the police very soon after the incident. No objection was taken to any part of the complainant’s evidence.
When the complainant’s mother collected her daughter from the applicant’s house, she noticed that the complainant had been upset, as if she had been crying, and refused to hug the applicant when they left the house. On return to her own house, the complainant’s mother asked the complainant a number of times what had happened, but the complainant would not say. Later that evening, the complainant’s mother said that she could write it down. The full text of the complainant’s note (again, with errors in the original) was as follows:
We were resiling in his room with just my undies because he took my pants off and he was picking me up and yea and then he took my undies of and holding me with his arm on my rood part and then he started to blow on my stumick and then it feelt like he was perpisly liking my rood spot like four times and the he gave me my undies back and my pans back and then I started criying and then you picked me up oh and also he was kissing me on the lips and also blowing into my mouth for some reson …
The complainant was cross-examined at a special hearing conducted in accordance with s 370 of the Criminal Procedure Act2009 on 29 March 2017, which I note was over two and a half years after the incident. The complainant was asked some further questions in chief where she described where the applicant had licked her. The complainant was cross-examined, and acknowledged that there were some details about the afternoon that were a bit hazy. It is sufficient to note that the complainant remained consistent in her account of what had occurred.
The prosecution tendered a number of text messages exchanged between the applicant and the complainant’s mother on the evening of 13 October 2014 and the morning of 14 October 2014.
At 4:16 pm on the evening of 13 October 2014 (that is, well before the complainant had given her written account to her mother), the applicant texted the mother saying ‘I feel like I’m going to throw up. I didn’t hug her because I didn’t want to make it worse. I am so sorry. Poor thing.’
The complainant’s mother provided some reassurance to the applicant that she would ‘deal with it’. At 4:26 pm, the applicant wrote ‘[h]ow fast things can go wrong.’ At 5:14 pm, he asked ‘[i]s she alright? I’ve calmed down now. Threw up.’
At about 8:44 pm that evening, the complainant’s mother sent the applicant photographs of the note written by the complainant. He responded at 8:46 pm as follows: ‘What the fuck [mother’s name]. Who put her up to this? If this was true I would have never said anything and hid it. Call the police and let them sort it out. We were play fighting nothing more.’
At 8:53 pm, the applicant sent another text message saying ‘[i]t’s not true. If I was that sort of person you would know by now. You need to explain to her the consequences of what she is saying.’ The next morning, he texted again saying ‘[y]ou will be advised to call the police. I will fight this with everything I have.’
The evidence of the applicant
On 21 October 2014, the applicant gave a detailed record of interview to police. He answered all of the questions asked of him.
In his record of interview, the applicant explained that he had a friendly relationship with the complainant’s mother and often assisted with looking after her children, including the complainant. He said he did not often look after the complainant by herself, and that usually her step brothers were present as well. However, he said he did occasionally look after the complainant by herself, and from time to time she would go over to his house and ‘hang out with [him]’.
On the day in question, the applicant said that he had collected the complainant from school, and that she sat watching television at his house. She asked if she could come and live with the applicant as there was too much arguing at her own house. He said that the two of them started a play fight in the lounge room and that ‘[i]t was just a standard play fight. She kicked me, I gave her a wedgie. She tried to get me in a headlock, I spun her around. I pinned her down and blew raspberries on her stomach.’ He said it was just a play fight. He denied ever going into the bedroom.
He said that the complainant started crying in the play fight, and that he had thought he had hurt her. He said that he told the complainant that ‘[he] would never do anything to hurt [her].’
His account in his record of interview was:
And then she started crying. We had a conversation about it. Like I said, I thought I hurt her in the play fight.
[Police officer] Yeah.
It turns out that wasn’t the case at all. She, you know, she basically thought I’d done something inappropriate. So we had a conversation about it and then I called her mum and told her mum straight away.
A little later in his account, the applicant said the complainant had told him that she did not like the way he had touched her.
The applicant repeatedly denied any wrongdoing during the record of interview.
The applicant also gave evidence at trial and denied the allegations. He denied the account given by the complainant’s mother of his telephone conversation with her. Although he accepted that there was a telephone call, he denied that he had told the mother that ‘in a fit of laughter or giggles [the complainant] … pushed him into the genital area.’
The applicant’s submissions
As noted above, the applicant relied on seven matters in support of the application for leave to appeal. These matters were:
(a) the applicant’s history of good parenting;
(b) the applicant’s good character, particularly the fact that he had no history of sexual offending;
(c) the applicant’s behaviour after the incident and, in particular, his encouragement to the complainant’s mother to speak with the complainant and to take the allegation to the police;
(d) the applicant’s repeated and consistent denials in his initial response to the complainant’s mother, the record of interview, and his evidence before the jury;
(e) the steps that the applicant and his partner took to make the bed clothes available for forensic analysis by the police;
(f) that the applicant gave a DNA sample in the context where the allegation was that he had handled the complainant’s underwear; and
(g) that the applicant’s account in his record of interview and his evidence at the trial was clear and coherent, and largely untouched by cross-examination.
The applicable principles
The applicable principles that this Court must apply when a conviction is said to be unsafe or unsatisfactory are well established.[4] It is necessary for this Court to 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. That task must be undertaken in a context where the jury has the primary responsibility of determining guilt and has the benefit of seeing and hearing the witnesses. In most cases, a doubt experienced by the appellate court will be a doubt which a jury ought also to have experienced. As explained by the plurality in M v The Queen:
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experience by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[5]
[4]M v The Queen (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J); R v Klamo (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P); Bullmore v The Queen [2017] VSCA 41.
[5]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
In Libke v The Queen,[6] Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised that the question is whether it was reasonably open to the jury to reach the verdict that it did. In that respect, his Honour said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.[7]
[6](2007) 230 CLR 559.
[7]Ibid 596–7 [113] (Hayne J) (emphasis in original) (citations omitted).
This Court is required to carry out its own independent assessment of the evidence in order to determine whether the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt.
Analysis
Applying those principles to the application for leave to appeal, it is necessary to note immediately that all seven matters relied on by the applicant went to the credibility and reliability of the applicant’s account. However, none of them directly undermined the complainant’s version of events.
The application for leave to appeal fell to be determined in a context where the two people who were present at the incident gave evidence at trial and were cross-examined. There was no issue at trial that the applicant and complainant were alone together in the house, that there was physical contact between them, and that the complainant was noticeably upset. The applicant acknowledged in his record of interview that the complainant thought that he had touched her inappropriately. The complainant gave evidence that the indecent act occurred, and the applicant strongly denied it, saying that there had only been innocent horse play.
The jury was well placed to assess that evidence and was charged appropriately on the evidence and the law, including as to the burden and onus of proof. Indeed, before us, counsel for the applicant described the primary judge’s charge as ‘impeccable’.
The applicant did not submit that there were any inconsistencies, improbabilities or other factors in the way the complainant gave evidence that rendered it unreliable. I have closely read the transcript of the VARE and of the special hearing, and have no doubt that it was open to the jury to accept the complainant’s account. There was no reason for the jury to treat her evidence as being less reliable because of her young age.
The complainant’s evidence was coherent and consistent across the written note that she gave to her mother and the police, the VARE (which took place only a couple of days after the incident), and in the special hearing, yet her evidence does not come across as tutored. There was nothing in the relationship between the applicant and the complainant or the applicant and the complainant’s mother that suggested animus or ill feeling. It was open to the jury to accept, to the criminal standard, the complainant’s evidence as an accurate account of what had occurred.
There were no inconsistencies or self-contradictions in the complainant’s account that would have called for a consideration of the particular issues that can arise with child witnesses, as detailed by this Court in Ward v The Queen.[8]
[8][2017] VSCA 37.
The evidence given by the complainant’s mother as to her telephone conversation with the applicant was also important evidence in support of the Crown case. Her account that the applicant had told her, shortly after the alleged incident, that the complainant was upset because she had knocked his head towards her genitals was consistent with the complainant’s account that there had been contact with her genitals. It was evidence of the applicant’s explanation for how contact had come about, yet he later denied any such contact had occurred. As was acknowledged by counsel for the applicant before us, it was open to the jury to accept the mother’s account of this conversation.
Thus this explanation given by the applicant to the complainant’s mother was that there was contact made to the genital area, but it was accidental and innocent and occurred in the context of horse play. This account or defence was not advanced as an explanation by the applicant in his record of interview or given in evidence by him at trial. The account given in the record of interview and at trial was different. He said that such contact never occurred at all. Indeed, as I have said, he denied ever having given this different version to the mother. It was open to the jury to accept the mother's evidence and to view this significant change in the applicant’s version of events as being highly damaging to his credibility.
The evidence of the complainant’s mother was not challenged by the applicant although he did deny that her account was accurate when cross-examined. Indeed, the applicant relied on her evidence to establish that he had been a caring father and step father, and that he had provided support to her in dealing with their son who had challenging behaviour. He also relied on her evidence to establish that the complainant had often voiced a desire to visit and stay with him.
I turn now to the applicant’s seven matters in support of the application. First, the evidence that the applicant was a good parent, that the complainant had been keen to stay with him, and his general good character were all matters that the jury was able to weigh in considering whether the applicant was the type of person who could commit such a serious crime. They were matters that the jury could reasonably weigh in his favour when assessing the evidence.
Similarly, the applicant’s conduct after the incident in encouraging the complainant to speak to and involve the police might have been seen by the jury as consistent with innocence. The jury could have reasoned that this was not the behaviour of a guilty person. However, they were not bound to so reason. Indeed, his conduct was capable of being seen more neutrally.
As discussed above, on the evening of 13 October 2014, the complainant’s mother texted the applicant photographs of the complainant’s note. The applicant responded saying ‘[c]all the police and let them sort it out.’ Given the content of the complainant’s note and the earlier telephone conversation between the applicant and the complainant’s mother, the applicant might reasonably have thought that the involvement of the police would be inevitable and that it was in his interest to, in effect, take the initiative in support of his denials.
The jury might have reasonably regarded another text message as relevant to its interpretation of the applicant’s conduct. In the message sent at 8:53 pm on 13 October 2014, the applicant told the complainant’s mother that ‘[y]ou need to explain to [the complainant] the consequences of what she is saying.’ Counsel for the applicant suggested that this message was merely an exhortation to the complainant (and her mother) to ‘stop and think’ in view of the seriousness of what was alleged. In my view, however, that message could cast the applicant’s earlier statements about involving the police in a different light, or could lessen the weight that might otherwise have been attached to those statements.
The consistent denials of the applicant were also matters for the jury to consider. In a word-against-word trial such as this one, the credibility and reliability of the applicant’s evidence (including his denials) was a key issue, and one for the jury to assess.[9] The jury was directed that, in order to convict, they would have to be able to reject completely the applicant’s denials and be satisfied, beyond reasonable doubt, of the complainant’s account.[10]
[9]See, eg, Bullmore v The Queen [2017] VSCA 41 [55].
[10]In the course of submissions, counsel for the applicant indicated that the applicant had no complaint about the primary judge’s charge to the jury, which, as noted above, he described as ‘impeccable’.
The jury must be taken to have rejected the applicant’s evidence and accepted, beyond reasonable doubt, the complainant’s account. In my view, it was open to the jury to do so.
I can deal with the fifth and sixth matters together. Both concern the applicant’s willingness to facilitate or undergo forensic testing. The extent to which either the bed clothes or the complainant’s underwear would have yielded any relevant forensic evidence is a matter of speculation. The applicant relied on his conduct not to establish that there was the possibility of exculpatory forensic evidence, but in support of the point that his conduct was consistent with innocence. The applicant’s post-incident conduct was a matter for the jury to take into account in assessing all of the evidence. For my own part, I consider that they were of little significance in the trial and they were not matters that would, of themselves, give rise to a reasonable doubt.
Finally, I have read the applicant’s record of interview and his evidence at
trial carefully. There is nothing in that evidence, in addition to that considered above, that represented an obstacle to conviction.
Conclusion
None of the matters advanced by the applicant precluded the jury from finding the applicant guilty. None of the matters relied on by the applicant, either alone or in combination, give rise to a reasonable doubt as to the applicant’s guilt and, having reviewed the totality of the evidence myself, I do not entertain a doubt as to the applicant’s guilt. That being so, it is not necessary for me to determine whether the jury’s advantage in seeing and hearing the evidence would be capable of resolving any doubt.
For these reasons, I agreed in the order refusing the application for leave to appeal against conviction.
KIDD AJA:
I agree with Niall JA.
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