Churchill (a pseudonym) v The King
[2024] VSCA 151
•28 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0050 |
| RYAN CHURCHILL (A PSEUDONYM) | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, TAYLOR and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 June 2024 |
| DATE OF JUDGMENT: | 28 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 151 |
| JUDGMENT APPEALED FROM: | [2023] VCC 300 (Judge O’Connell) |
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CRIMINAL LAW – Appeal – Conviction – Incest – Complainant showed distress when making complaint – Judge directed that distress could be used as indirect evidence of offending – Judge failed to direct of need to be satisfied of causal link between distress and alleged offending – Judge failed to direct that distress evidence is generally of little weight – Substantial miscarriage of justice – Appeal allowed.
CRIMINAL LAW – Appeal – Conviction – Whether evidence of other misconduct admitted outside scope of agreement between prosecution and applicant – Forensic decision made by applicant to cross-examine using the evidence – Whether evidence of touching and affection irrelevant or unfairly prejudicial.
CRIMINAL LAW – Appeal – Conviction – Whether complainant’s mental conditions and descriptions of own memory so affected her reliability that the verdict was unreasonable.
Criminal Procedure Act s 276(1)(a); Jury Directions Act 2015 s 16.
M v The Queen (1994) 181 CLR 487; Nimely (a pseudonym) v The King [2023] VSCA 20; Paull v The Queen [2021] VSCA 339; Pell v The Queen (2020) 268 CLR 123; Seccull v The King (2022) 69 VR 454.
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| Counsel | |||
| Applicant: | Ms R Shann SC with Ms H Canham | ||
| Respondent: | Ms S Clancy | ||
Solicitors | |||
| Applicant: | Doogue & George Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
TAYLOR JA
ORR JA:
On 12 September 2022, following a seven day trial in the County Court, the applicant was found guilty of two charges of incest contrary to s 44(2) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991. On 7 March 2023, following a plea hearing on 6 February 2023, the applicant was sentenced to a total effective sentence of 8 years and 6 months, with a non-parole period of 5 years.[1]
[1]DPP v Churchill (a pseudonym) [2023] VCC 300 (‘Sentencing Reasons’).
The applicant now seeks leave to appeal against conviction. His proposed grounds of appeal are as follows:
1.The trial miscarried by reason of the use the jury was invited to make of evidence of the complainant’s distress and the directions given in relation to it.
2.A substantial miscarriage of justice occurred because of the admission of misconduct evidence.
3.A substantial miscarriage of justice occurred because of the admission of evidence of the applicant touching and being affectionate towards the complainant (and her sister).
4.The verdicts are unreasonable and unable to be supported having regard to the evidence.
For the reasons which follow, proposed ground 1 will be upheld; the applicant’s convictions and sentences will be set aside; and we will order a retrial.
Relevant background
Both charges related to a single complainant, one of the applicant’s stepdaughters, Isla Murphy.[2]
[2]In these reasons, we have used the same pseudonyms as those used by the trial judge in the Sentencing Reasons.
In 2003, the applicant entered into a de facto relationship with the complainant’s mother, Rachel Russo. About six months later, Ms Russo and her three daughters, including the complainant, moved into the applicant’s home.
The Crown case at trial
The Crown case at trial was that on two occasions between July and October 2005, the applicant penetrated the complainant’s vagina with his penis. At the time of each offence, the complainant was aged 13 or 14 years; and the applicant was 36 or 37.
In short compass, the Crown case was that, during 2005, Ms Russo fell pregnant. One evening, late in her pregnancy, the applicant entered the complainant’s bedroom and sat down on her bed. The complainant told him that she wanted to go to sleep. The applicant said to the complainant words to the effect, ‘Out of your sisters, I like you the most’; and that she was an attractive girl. The complainant again said to the applicant that she wanted to sleep. The applicant, however, became upset and pulled down the complainant’s bedcovers. He then climbed on top of her, pulled down her pyjamas and inserted his penis into her vagina. He continued to penetrate her for two or three minutes until he ejaculated outside her vagina. These were the events alleged to constitute the first of the two incest charges.
On 15 October 2005, Ms Russo gave birth to her fourth child. She remained in hospital for a further four or five days. During that period, the complainant and her sisters stayed at home with the applicant. On one occasion during that period, the applicant was seen by the complainant at the doorway of the bathroom, watching her while she was showering. She told the applicant to get out. He responded, however, by saying that he owned the house. That evening, the applicant went into the complainant’s bedroom when she was in bed listening to music. He again lay on top of her and inserted his penis into her vagina. These events were alleged to constitute the second charge of incest.
The trial
There being no witnesses to the applicant’s alleged offending other than the complainant, at trial, the Crown case was heavily dependent on the complainant’s evidence. Her evidence was recorded at a special hearing that took place in October 2021. In the special hearing, the complainant adopted the contents of her Video and Audio Recorded Evidence (‘VARE’), which was recorded in 2018. The recording of the VARE was played at the trial, as was the recording of the special hearing.
In addition to playing the recordings of the complainant’s VARE and the special hearing at trial, the prosecution called evidence from the complainant’s mother, Ms Russo; the complainant’s two sisters, BB and CC; and the informant. A record of interview conducted with the applicant was played to the jury during the course of the informant’s evidence. At trial, the applicant did not give evidence or call any witnesses.
In summary, in relation to the circumstances of the applicant’s alleged offending, the complainant’s evidence conformed with the Crown case. We will refer to other parts of the complainant’s evidence, and the evidence of the other witnesses, later in these reasons, to the extent it is necessary when dealing specifically with each of the applicant’s proposed grounds of appeal.
Proposed ground 1: complainant’s distress
Proposed ground 1 relates to evidence given by the complainant and her mother about distress exhibited by the complainant at a Children’s Court hearing in late 2006 or early 2007, approximately 12 months after the applicant’s alleged offending.
The relevant evidence of the complainant’s distress
At trial, the complainant’s mother gave evidence of an occasion at the Children’s Court in late 2006 or 2007 when the complainant had a ‘meltdown’. Ms Russo’s evidence was that, while at the Children’s Court, the complainant told her that the applicant had raped her. Ms Russo said that the complainant was ‘very upset, very, very distressed’. Ms Russo said that the complainant was ‘yelling’, saying that it was Ms Russo’s fault because she brought the applicant into their lives.
In cross-examination, Ms Russo agreed that she had described the complainant as having a ‘meltdown’, and that she had also described the complainant’s behaviour as erratic, violent and psychotic.
The complainant’s evidence on this topic was that she had run away from home, before eventually being found by police and taken to the Children’s Court. She said:
But I don’t remember much about it but mum told me that when we’re in the Children’s Court, that I was screaming at her and telling her that, you know, [the applicant] had raped me and that sort of thing.
A little later, the complainant said:
I don’t remember it because, you know, the — going to the Children’s Court was pretty traumatic for me and, admittedly, the night before, I mean, yeah, I was at my friend’s house and the cops came and picked me up in the morning … but the night before I had been drinking quite heavily … and I had been smoking marijuana too so the next day at the court was very, very — very blurry for me.
You know, I was only young and I had a lot of crap in my system … .
I only ever told people [about being raped by the applicant] in the midst of meltdowns.
In cross-examination, the complainant said that when she went to the Children’s Court, that was when she ‘chose to go into foster care’. The complainant also said that she blamed her behaviour in running away on her mother for bringing the applicant into their lives; and, at the time she was telling her mother at the Children’s Court that she had been raped, she was having a meltdown.
The complainant was asked in cross-examination about her use of the word ‘meltdown’. She said:
Well a meltdown — I will explain at the time that I was not — again I was not diagnosed with autism at the time so I did not understand at the time what exactly it was. We called them psychotic episodes back then but now we understand them to be meltdowns — if you want to add the autistic meltdowns then you can. It usually happens when somebody is extremely overwhelmed and there’s too much stimulus — stimuli whatever — and it all happens and explodes. That was the case — I was having meltdowns because I was dealing with a lot in my head and I didn’t want to be at home because I didn’t want to be around people that were making me remember it so I was having these meltdowns really bad.
Prosecutor’s request for a direction about the evidence of the complainant’s distress
At the conclusion of the evidence, and as part of a discussion between the judge and counsel about the directions to be given to the jury,[3] the prosecutor requested the judge to give a direction about Ms Russo’s evidence of the complainant’s distress at the Children’s Court. The applicant’s trial counsel[4] opposed any such direction being given, submitting that ‘the causal connection between the distress and the allegations … [was] too remote and that the link [was] too tenuous’.
[3]See s 12 of the Jury Directions Act 2015.
[4]Not counsel who appeared in this Court.
The judge, in his words, ‘short circuit[ed]’ the debate, saying that he would hear what each side said in final address, and revisit the prosecutor’s request then.
Prosecutor’s final address on the issue of distress
In final address, the prosecutor referred to the complainant telling her mother at the Children’s Court about what the applicant did to her, in the following terms:
So she brings that up with her mother at the Children’s Court, and she has somewhat of a meltdown when she says that it was all because of this that it happened to her, and there was a level of distress in that recollection that she provides.
She says effectively that that’s the reason that this has all happened to her, and you might form the view that this tormented her back then, and you might think that given the evidence of her mother about the way that complaint came out at the Children’s Court, that that distress is something that is entirely consistent with her complaint.
It’s a distress that we say is consistent with the way — with everything else that happened.
Post-address discussion between the judge and counsel
After the addresses of counsel, the judge said to counsel that, having heard the arguments put by both counsel with respect to distress, he now thought it was appropriate to give a circumstantial evidence direction. The judge said that he would use the evidence of the complainant’s distress at the time of her meltdown at the Children’s Court as ‘a concrete example as to the manner in which indirect evidence should be approached’. His Honour then foreshadowed some of what he proposed to say to the jury on this issue.
Judge’s charge
In his charge, as he had foreshadowed, the judge dealt with the evidence of the complainant’s ‘meltdown’ at the Children’s Court as part of the directions he gave about direct evidence and evidence which was capable of proving a fact indirectly. His Honour said:
Now, evidence, I should explain, comes in many forms. It can be evidence about what someone saw or heard, it can be an exhibit admitted into evidence and it can be in certain circumstances someone’s opinion. Some evidence can prove a fact directly and let me use an example. If a witness said that they saw or heard it raining outside, that would be direct evidence of the fact that it was raining. They saw or they heard it, it was raining. That is direct evidence.
Other evidence can prove a fact indirectly. Now, for example, if a witness said that they saw someone come into the court building and they were wearing a raincoat, they were carrying an umbrella and both were dripping wet, that would be indirect or circumstantial evidence of the fact that it was raining outside. You could conclude that from the witness’ evidence that it was raining even though they did not actually see or hear it raining.
Now, as far as the law is concerned, it makes no difference whether evidence is direct or indirect. Although people often believe that indirect or circumstantial evidence is weaker than direct evidence, that is not the case. It can be just as strong or even stronger. What matters is how strong or weak the particular evidence is, not whether it is direct or indirect.
Now, to use one example that arises from the arguments presented to you today, you will recall that [the prosecutor] argued to you that [the complainant’s] distress at the time that she had, as she described it, her meltdown at the Children’s Court when she first claimed that [the applicant] had, to use her word, raped her, his argument was to the effect that that was indicative of the trauma of having been sexually penetrated by the accused.
Now, [defence counsel] in response to that argument suggested that you could not draw that inference, you could not draw that conclusion at all and that is because [the complainant’s] meltdown was no doubt the product of a whole host of difficulties she was experiencing at that time a year or so after the alleged events and those difficulties you will recall involved running away, using drugs and alcohol, being dealt with by the police, dealt with by the Department of Human Services, her psychological difficulties and the like. So that is one example where you are being invited to draw an inference to act upon indirect evidence.
Now, you must take care when drawing conclusions from indirect evidence of that kind. You should consider all of the evidence in the case and only draw reasonable conclusions based on the evidence that you accept.[5]
For convenience, we will refer to this passage as the ‘first passage’.
[5]Emphasis added.
Later in the charge, the judge gave directions about the use the jury could make of the evidence of the complainant telling her mother, at the Children’s Court, of being raped by the applicant. As part of those directions (and at their conclusion), in a passage relied upon by the respondent, the judge said:
Now, because [Ms Russo] gave evidence of this complaint, it would be a mistake to treat her evidence — that as independent of the complainant. So it would be a mistake to treat what [Ms Russo] says as if it somehow independently confirms what occurred. It does not. Although [Ms Russo] gave evidence about the complaint in court, it was [the complainant] who was the source of that evidence, so it is not independent. You may use this evidence in the ways I have just described, as evidence of the offence or in your assessment of [the complainant’s] credibility, but you must not mistake it for independent evidence of the offence.
For convenience, we will refer to this passage as the ‘second passage’.
Proposed ground 1: applicant’s submissions
Under proposed ground 1, the applicant submitted that the use of the complainant’s ‘meltdown’ at the Children’s Court as distress evidence supportive of her allegations was impermissible for two reasons. First, the evidence of the complainant’s distress during her meltdown was not reasonably capable of being viewed by the jury as causally connected to the underlying offending. Secondly, the prosecutor wrongly invited the jury to use the complainant’s own explanation of the cause of her distress as independently supportive of her allegations.
In relation to the submission that the evidence of the complainant’s distress at the Children’s Court was not reasonably capable of being viewed by the jury as causally connected to the underlying offending, the applicant observed that the meltdown occurred over 12 months after the alleged offending, in independently distressing circumstances: the complainant had run away from home; she had been picked up by police at a friend’s house and brought to court that morning; and she had been drinking alcohol quite heavily and smoking marijuana the previous night. More fundamentally, what was characterised as distress at the time of the complainant’s attendance at the Children’s Court appears to have been the manifestation of a mental health crisis that the jury was invited to evaluate in the absence of any expert evidence.
The applicant submitted that, even if it be assumed that an invitation to use the complainant’s meltdown as distress evidence was permissible, the directions given by the judge were deficient. The applicant observed that the directions appeared to be based on the direction which was the subject of criticism by this Court in Paull v The Queen.[6] The applicant submitted that the direction failed to caution the jury that, before they used the complainant’s distress as supportive of her claims, they needed to be satisfied that it was caused by the alleged offending and not some other cause.
[6][2021] VSCA 339, [48]–[49] (Priest, Kaye and Niall JJA) (‘Paull’).
The applicant also submitted that the directions given by the judge were inadequate because the jury were not warned, as it was submitted they ought to have been, of the limitations of distress evidence;[7] and that it ‘generally will carry little weight’.[8]
Proposed ground 1: respondent’s submissions
[7]Ibid [40].
[8]Ibid.
The respondent submitted that the circumstances of the Children’s Court appearance were sufficiently connected with the offending so as to logically support the complainant’s account of it; and that it was reasonably open for the jury to infer that a causal connection existed between the offending and the complainant’s distress.
The respondent contended that, although there was evidence of the complainant having used drugs and alcohol prior to her attendance at the Children’s Court, which she described as ‘traumatic’, there was no evidence that the use of these substances was productive of the distress observed.
The respondent observed that the complainant’s evidence was that she ran away from home because every time she was around her family, they (unwittingly) reminded her of the offending. The only evidence of what was said or done by the complainant when ‘very upset, very, very distressed’ and ‘very distraught’ at the Children’s Court, was to yell at her mother that the applicant had raped her. The respondent submitted that the evidence suggested that the complainant’s disclosure to her mother was spontaneous.
The respondent noted that, while the precise date of the Children’s Court appearance was not known, it was likely ‘just over one year after the second occasion of offending’, and a short time after the family moved out of the applicant’s house in about 2006 (due to a breakdown in the relationship between Ms Russo and the applicant). The respondent observed that, at the time, the complainant was 14; the applicant had warned her not to tell anyone about the offending; and the complainant was fearful of the applicant. The respondent submitted that these circumstances are relevant in determining whether there was a causal connection between the offending and the complainant’s distress.
The respondent submitted that, after directing the jury in orthodox terms regarding the drawing of inferences, the judge:
merely reminded the jury of the prosecution’s argument that the complainant’s distress at the Children’s Court ‘was indicative of the trauma of having been sexually penetrated by the accused’.
The respondent observed that the applicant’s trial counsel made no objection to the direction given by the judge, even though the judge informed counsel of the form of the proposed direction before charging the jury on this issue.
The respondent submitted that, while the judge did not specifically direct the jury that there needed to be a causal link between the complainant’s distress and the offending, the directions given by the judge made it clear that a causal connection was required. Moreover, while the trial judge did not direct the jury that minimal weight ought to be given to distress evidence, the form of the direction given by the judge was consistent with the model charge at the time of trial. The respondent submitted that the failure to provide that direction was not productive of a substantial miscarriage of justice.
The respondent also submitted that there was no substance in proposed ground 1 because, in the second passage, the judge specifically directed the jury that Ms Russo’s evidence of the complainant’s complaint to her at the Children’s Court was not independent of the complainant; and that it would be a mistake to treat Ms Russo’s evidence ‘as if it somehow independently confirms what occurred’.
Finally, the respondent relied upon passages in the High Court’s decisions in IMM v The Queen[9] and R v Bauer (a pseudonym)[10] to support a submission that there was little, if any, risk that the jury would misuse or misunderstand the use to which the evidence of the complainant’s distress at the Children’s Court, and thus the directions sought to be impugned by the applicant were not capable of giving rise to any miscarriage of justice. Specifically, the respondent relied upon paragraphs [73] and [74] of IMM and paragraphs [89], [90], [92] and [100] of Bauer.
Distress directions in the Charge Book
[9](2016) 257 CLR 300; [2016] HCA 14 (‘IMM’).
[10](2018) 266 CLR 56; [2018] HCA 40 (‘Bauer’).
Having regard to the applicant’s submission that the judge’s charge on distress appeared to be based on a direction which was the subject of criticism by this Court in Paull and the respondent’s submission that the direction given by the judge on distress was consistent with the model charge at the time of trial, it is necessary to give a brief history of the distress directions in the Victorian Criminal Charge Book.[11]
[11]Judicial College of Victoria, Victorian Criminal Charge Book (the ‘Charge Book’).
For some years prior to December 2021, the Charge Book contained the following direction:
If you find that NOC was distressed when [describe circumstances of recounting the alleged offence], the prosecution invites you to use this as indirect evidence that supports the complainant’s account that [describe the issue the evidence may support (e.g. ‘s/he did not consent to the penetration’). In other words, the prosecution says that the distress supports a conclusion that NOC was remembering and recounting a traumatic event. Given the circumstances, the prosecution say that the traumatic event was the alleged [identify relevant offence].[12]
[12]Charge Book, [4.9.1].
This was the charge that was criticised in Paull, where the Court said:
Distress displayed by a complainant shortly after an alleged sexual offence can in certain circumstances be a form of circumstantial evidence that independently supports a complainant’s account. To be admissible, however, it must be reasonably open to infer from the evidence that there was a causal connection between the distressed condition of the complainant and the alleged sexual offence. Even when admitted, evidence of distress generally will carry little weight. Thus, in Munro, Nettle JA said:
In R v Flannery it was held that in determining whether evidence of the distressed condition of a complainant is capable of amounting to corroboration, regard must be had to such facts as the age of the complainant, the time interval between the alleged assault and when she was observed in the distressed condition. If, having regard to such factors, the reasonable inference from the evidence is that there was a causal connexion between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. Except in special circumstances, however, evidence of distressed condition will carry little weight and the court said that juries should be so warned by the trial judge in the course of the judge’s charge.
…
In our view, as the cases earlier discussed illustrate, the second and third sentences in the extracted passage from the Charge Book are misleading, and should be deleted.[13]
[13]Paull [2021] VSCA 339, [40], [49] (citations omitted).
On 7 December 2021 (the day judgment in Paull was delivered), the direction on distress in the Charge Book was altered, as were the bench notes accompanying that direction. The bench notes added a reference to Paull, and the model charge was altered to the following:
You have heard evidence about NOC’s apparent distress [identify circumstances of distress and elaborate if necessary on the details of the distress].
If you find that NOC was distressed soon after the alleged offence, the prosecution invites you to use this as indirect evidence that supports its case that [describe the issue the evidence may support (e.g. ‘s/he did not consent to the penetration’)]. In other words, the prosecution says that the distress supports a conclusion that NOC suffered a traumatic event. Given the timing of the distress, the prosecution say that the traumatic event was the alleged [identify relevant offence].
[Insert relevant prosecution arguments]. The defence dispute this, and say [insert relevant defence arguments].[14]
[14]Charge Book, [4.9.1].
On 14 October 2022, this Court (Priest AP, Niall JA and Kidd AJA) delivered judgment in Seccull v The King.[15] In Seccull, the Court held that, absent a discernible and rational connection between evidence of a complainant’s distress and the charged acts, the evidence of distress was incapable of constituting independent evidence upon which a jury could act. The Court also held that, if such evidence did qualify for use as distress evidence, the trial judge was required to direct the jury that they could only act upon the evidence of observed distress in proof of sexual offending if satisfied that there was a causal link, and that in assessing that matter, the jury needed to consider factors such as the proximity of the observed distress to the sexual offending, and whether there were any other explanations for the presentation of the complainant’s distressed condition.[16]
[15](2022) 69 VR 454; [2022] VSCA 219 (‘Seccull’).
[16]Ibid 463–9 [30]–[45], 471 [53] (Priest AP), 481–2 [97]–[101] (Niall JA and Kidd AJA).
On 22 October 2022, the model direction on distress in the Charge Book was altered to take account of Seccull. Two alterations were made. First, the word ‘soon’ in the second paragraph of the post-Paull charge was replaced with the word ‘immediately’. Secondly, a fourth paragraph was added to the model charge in these terms:
I must give you the following directions of law about this piece of evidence. First, you can use the evidence in the way the prosecution suggests. But you may only do so if you are satisfied there is no other reason why NOC could have appeared distressed at that time. Second, the experience of the law is that evidence of observed distress is a weak type of evidence and you should not give this evidence much weight.
The above form of model charge, as amended shortly after Seccull was decided, remains in the Charge Book as the charge to be given today in relation to any apparent pre-trial distress exhibited by a complainant in the trial of an alleged sexual offence.[17]
Authorities on distress evidence
[17]Charge Book, [7.3.1.7.1]. (Last updated on 1 January 2023.)
We have already referred to the decisions of Paull and Seccull. It is not necessary to say anything further about those authorities at this stage. There is, however, one further authority on the issue of distress evidence to which we should also refer: Nimely (a pseudonym) v The King.[18]
[18][2023] VSCA 20 (‘Nimely’).
Nimely was a case involving a complaint made by a complainant, who was upset and crying, some six weeks after the alleged sexual offending. This Court held that, in the circumstances of that case, the evidence of the complainant’s alleged distress was ‘simply inadmissible as evidence providing independent support for the complainant’s account’.[19] The Court then said:
Moreover, even if it be assumed that a direction on distress was warranted in the circumstances of this case, the direction that the judge gave was deficient in at least two respects: first, the judge failed to direct the jury that, before they could act upon the evidence of distress, they had to be satisfied that JP’s distressed condition was caused by the applicant’s sexual offending (and not some other cause); and, secondly, the judge failed to warn the jury that evidence of distress carried little weight.
Although no exception was taken to the impugned direction, it is impossible to conclude other than that there has been a substantial miscarriage of justice. The direction may well have had the effect of improperly bolstering the complainant’s credibility in the eyes of the jury, in circumstances where her credibility was pivotal in the case against the applicant.[20]
The current Charge Book directions and the authorities on distress
[19]Ibid [26] (Priest, Taylor and Kaye JJA).
[20]Ibid [27]–[28] (citations omitted).
Before commencing our analysis of proposed ground 1, it is necessary to make some observations about the current directions in the Charge Book about distress evidence. As we have said, the Charge Book currently contains a model charge dealing with pretrial distress.[21] The Charge Book also contains a charge to be given about distress shown when a complainant gives evidence.[22] That direction was not relevant in the present case, and was not the subject of any argument before us. In the circumstances, we do not propose to say anything about it. We wish, however, to say the following about the pretrial distress direction.[23]
[21]Charge Book, [7.3.1.7.1].
[22]Ibid [7.3.1.7.2].
[23]Ibid [7.3.1.7.1].
First, while the use of the word ‘immediately’ in the model direction might suggest that pre-trial distress is only relevant if it is observed immediately after an alleged offence, the authorities do not expressly confine the relevance of pre-trial distress only to cases where the distress is immediate. The use of the word ‘immediately’ is obviously appropriate in a case where the distress was observed immediately after the alleged offence. There may, however, be cases (albeit a limited number) where distress observed at some later point in time can still be causally linked to the alleged offending.[24]
[24]Seccull (2022) 69 VR 454, 464 [32] (Priest AP), 481–2 [97], [100] (Niall JA and Kidd AJA); [2022] VSCA 219; Nimely [2023] VSCA 20, [27] (Priest, Taylor and Kaye JJA).
Secondly, the statement in the model direction that distress evidence can be used in the way described only if the jury is ‘satisfied there is no other reason why [the complainant] could have appeared distressed [at the relevant time]’, overstates the requirement for a causal connection. At the risk of repetition, what is required is that the jury be satisfied that there is a discernible and rational causal link between the alleged offending and the observed distress. The alleged offending does not have to be the sole reason why a complainant could have appeared distressed.
Thirdly, while it might be appropriate in many cases involving distress (if not the vast bulk of such cases) for the judge to tell the jury that it is ‘the experience of the law … that evidence of observed distress is a weak type of evidence’ and that the jury ‘should not give this evidence much weight’, there may be cases (particularly where the distress is immediate, and no other possible causes for it can be identified) where evidence of distress carries greater weight. The terms of the model charge do not allow for this possibility. It would be more consistent with the authorities for the the judge to direct the jury that they ‘should generally not give this evidence much weight’.[25]
Proposed ground 1: analysis
[25]Paull [2021] VSCA 399, [40] (Priest, Kaye and Niall JJA); Seccull (2022) 69 VR 454, 465 [37] (Priest JA); [2022] VSCA 219, quoting R v Byczko [No 2] (1977) 17 SASR 460, 463 (Bray CJ, Mitchell J agreeing at 467, Zelling J agreeing at 467). Cf Nimely [2023] VSCA 20, [27] (Priest, Taylor and Kaye JJA).
In the first passage, the judge directed the jury that it was open to them to use the evidence of the complainant’s distress at the Children’s Court as indirect evidence, supportive of the complainant’s direct evidence that she had been raped by the applicant. The judge also directed the jury that, although it was often believed that indirect evidence is weaker than direct evidence, ‘that is not the case’: indirect evidence ‘can be just as strong or even stronger’. The respondent’s submission that, in the second passage, the judge qualified (if not eliminated) the effect of the first passage by telling the jury that Ms Russo’s evidence was not independent of the complainant, and did not independently confirm what the complainant said, must be rejected for two interrelated reasons:
(1)First, read fairly, the judge’s directions in the second passage relate only to Ms Russo’s evidence about the terms of the complaint of rape made by the complainant at the Children’s Court. The second passage was concerned solely with the evidence of the complaint itself, not with any distress exhibited by the complainant when she made that complaint.
(2)Secondly, in giving the directions contained in the first passage, his Honour directed the jury as he foreshadowed he would. The construction put on the second passage by the respondent is at odds with what the judge said he would do when dealing with the issue of distress. Specifically, the respondent’s construction of the second passage is not borne out by a fair reading of the whole of the judge’s charge.
On any view, the causal link between the applicant’s alleged offending and the distress exhibited by the complainant at the Children’s Court was a weak one. Further, if a distress direction of the kind given by the judge was to be given, it required the judge to do more than explain the arguments put by the prosecutor and defence counsel about what had caused the complainant’s observed distress, as part of a direction about evidence capable of proving a fact indirectly. It required more than the general warning the trial judge gave about ‘drawing conclusions from indirect evidence of that kind’. It required the trial judge to direct the jury specifically about the need for the jury to be satisfied that there was a rational causal link between the distress and the alleged offending; and also to warn the jury of the fact that distress evidence generally carries little weight.
Although no exception was taken to the judge’s failure to give those directions, as in Nimely,[26] we are unable to conclude other than that the failure to give these directions has occasioned a substantial miscarriage of justice. On the evidence given at trial, there were substantial and compelling reasons for giving directions of the kind we have just described.[27] It is for that reason that we have concluded that there must be a retrial. Contrary to the respondent’s submissions, nothing said by the High Court in IMM or Bauer is relevant to the question of whether or not there should be a retrial in this case. IMM and Bauer were cases about the admissibility of tendency evidence. They did not concern the question of whether a complainant’s distress at any particular point in time could be used as evidence supportive of a complaint of sexual offending. Notwithstanding the references to distress in those two cases, the issues before this Court were not the subject of any relevant consideration by the High Court.
[26][2023] VSCA 20, [28].
[27]See s 16 of the Jury Directions Act 2015. Cf Dunn (a pseudonym) v The Queen [2017] VSCA 371, [78]–[86] (Maxwell P, Beach and McLeish JJA).
As we have already said, on the evidence given at trial, any causal link between the applicant’s alleged offending and the complainant’s distress some 12 or more months later was weak. However, in the unusual circumstances of this case, we are unable to conclude that, if the jury had been properly instructed, it would not have been open to it to conclude that a rational causal link had been established.
That said, having regard to the fact that there will be a retrial at which the issue of the applicant’s distress is likely to be explored in greater detail than it was at the first trial, and at which different (and perhaps more complete) evidence will be elicited, we do not propose to say anything further about whether the judge hearing the retrial should give any particular directions about distress. That will be a matter for argument at the conclusion of the evidence in the retrial.
Before leaving this ground, we make three further observations:
(1)First, to the extent that evidence might again be elicited from the complainant about her distress at the Children’s Court when complaining of the applicant’s sexual offending against her, that evidence cannot be independently supportive of her complaint. To conclude otherwise would be to countenance a form of bootstraps reasoning of the kind deprecated by this Court in Paull.[28]
(2)Secondly, the applicant’s trial counsel could, to an extent, be forgiven for not asking for directions of the kind which we have concluded ought to have been given by the trial judge. The possibility of the complainant’s distress being relied upon as independently supportive evidence was not raised by the prosecutor until the conclusion of the evidence. Defence counsel opposed the distress direction sought by the prosecutor. Moreover, at the time the direction was sought and given, the Charge Book was in the form of the post-Paull direction — Seccull not having been decided, and the Charge Book not having been amended to provide for specific directions to be given about the need for a causal link and the weakness of distress evidence generally.
(3)Thirdly, and for like reasons, the trial judge could, to the same extent, be forgiven for giving a direction based upon the model direction then contained in the Charge Book.
[28][2021] VSCA 339, [44] (Priest, Kaye and Niall JJA).
Proposed ground 2: misconduct evidence
Proposed ground 2: applicant’s submissions
Under proposed ground 2, the applicant submitted that there had been a substantial miscarriage of justice because of the admission of an array of evidence falling into ‘three broad categories’: first, ‘broad opinions about the applicant being very aggressive and the complainant and her sisters and her mother all being scared of him’; secondly, ‘other discreditable conduct by the applicant’; and thirdly, ‘allusions to other offending’. The three categories of evidence about which he now makes complaint related to both the complainant and her sisters.
While the evidence sought to be impugned under proposed ground 2 was too voluminous to identify in full during the course of oral argument, the applicant identified a number of specific examples, including:
•the complainant’s evidence that the applicant stood at the doorway of the bathroom, watching her while she was showering, in circumstances where the complainant had asked him not to, but he had responded with words to the effect, ‘It’s my house’;
•the evidence of the applicant having engaged in the same behaviour with the complainant’s sisters;
•the complainant’s evidence that when the applicant was assaulting her, he told her that he was ‘planning to go after [her] sisters’; and
•the complainant’s evidence that, upon moving in with the applicant, ‘he got aggressive with us’.
The applicant submitted that, notwithstanding the fact that no objection was taken to any of this evidence by the applicant’s trial counsel, none of the evidence now sought to be impugned should have been admitted at trial. While the applicant accepted that there was an agreement between his trial counsel and the prosecutor about the nature and extent of the context and relationship evidence to be adduced at trial, he contended that there was a ‘lack of clarity about the purpose for which this evidence was led’; and that it was ‘unclear whether what was in fact led went beyond the scope of the agreement’.
The applicant submitted that the issue was exacerbated by the fact that there were edited gaps in the transcript of the complainant’s VARE and the transcript of the applicant’s record of interview. He submitted that, because of these gaps, the jury might speculate that what had been edited out was evidence of other offending by the applicant.
Proposed ground 2: analysis
Proposed ground 2 is without substance. It is plain that the admission of the evidence now sought to be impugned by the applicant was the subject of agreement between his trial counsel and the prosecutor. It is equally plain that the applicant’s trial counsel made a forensic decision when she agreed to the admission of evidence of the applicant’s discreditable conduct with the complainant’s sisters. That evidence formed the basis for a line of cross-examination of the complainant that, if the evidence were true, the complainant would have complained earlier because she would not have wanted the applicant to ‘go after’ her sisters.
Having regard to the obvious forensic choices made by the applicant’s trial counsel, and the fact that no objection was taken to any of the evidence now sought to be impugned, it is not possible for this Court to conclude that the admission of any of this evidence gave rise to any miscarriage of justice (much less a substantial miscarriage of justice). That said, as there will be a retrial, the applicant’s counsel on the retrial will be in a position to reconsider the forensic choices previously made, and to make any argument they wish to make about the admissibility of any of the context or relationship evidence sought to be led against the applicant.
Similarly, if there is any substance in the applicant’s complaints about edited gaps in the transcript of the VARE or the transcript of the record of interview, we have little doubt that these documents can be reformatted in such a way so as to remove or appropriately limit the size of the deletions.
Proposed ground 3: evidence of the applicant touching and being affectionate
The relevant evidence
The evidence sought to be impugned under proposed ground 3 was given by Ms Russo, during her evidence-in-chief, as follows:
Now whilst you were living in [the applicant’s house], would it be correct to say that you noticed [the applicant] to be affectionate towards [the complainant]?---Yes.
Was that any different to the way that he would treat [BB] and [CC]?
---Yes.And could you give an example of how that may have been different?---Ah a lot more physical.
And when you say a lot more physical what exactly does that mean?---Ah, he often had his arms on her or touching different parts of her body or putting her on his knee.
How often would he put her on his knee?---Everyday.
And would he do that with the other girls?---Not as much, ah less — I don’t remember him doing it with [CC] she was a lot — she was the oldest, but he probably did it about half as much with [BB].
Proposed ground 3: applicant’s submissions
Under proposed ground 3, the applicant submitted that Ms Russo’s evidence of the applicant being affectionate towards the complainant ‘was relevant minimally, if at all’. The applicant submitted that, over the objection of trial counsel, this evidence had originally been admitted as supportive of the complainant’s evidence that the applicant favoured her and/or paid her more attention. The applicant, however, observed that the complainant’s actual evidence was that she was not the applicant’s favourite. The applicant thus submitted that, the premise upon which the evidence was admitted having been false, the evidence was not relevant; and therefore, its probative value was outweighed by the danger of unfair prejudice to the applicant.[29]
[29]See s 137 of the Evidence Act 2008.
The applicant submitted that, while Ms Russo’s evidence was not led for the purpose of demonstrating a sexual interest in the complainant (or BB), ‘it was plainly open to be interpreted in that way’. The applicant submitted that, the evidence being open to be interpreted in that way, meant that the danger of unfair prejudice plainly outweighed the probative value of the evidence, and required its exclusion under s 137 of the Evidence Act 2008.
The applicant also submitted that, in admitting the evidence over the objection of the applicant’s trial counsel, the judge said that the jury would need to be told that ‘it has a limited utility and that is as to credibility and not as to tendency’. When it came to charging the jury, the judge, however, gave no such direction.
Proposed ground 3: analysis
There is little substance in proposed ground 3. Ms Russo’s evidence was supportive of the complainant’s evidence that the applicant said that he liked the complainant the most out of her sisters, and that she was an attractive girl. While we do not think there was any error in the judge admitting, or any miscarriage of justice caused by the admission of, the evidence sought to be impugned under proposed ground 3, we would observe that the judge should have given the directions which he said he would give to the jury about the use that they could make of that evidence.
For completeness, notwithstanding our conclusion that the applicant has not made out proposed ground 3, nothing we have said on this ground is intended to preclude any argument that, in the context of the evidence which might be led on the retrial, the evidence given by Ms Russo (set out above) should be ruled inadmissible. That said, if the evidence sought to be impugned under this proposed ground of appeal is given again on the retrial, we expect that the judge hearing the retrial would give appropriate directions as to the limited use the jury would be permitted to make of it.
Proposed ground 4: were the verdicts unreasonable?
Proposed ground 4: applicant’s submissions
Under proposed ground 4, the applicant submitted that it was not open for the jury to exclude a reasonable possibility that the complainant’s memory of one or both of the specific acts, which formed the basis of the two charges, was honest but erroneous. The applicant accepted that the complainant gave evidence that she recalled two occasions of sexual penetration. His argument was that the evidence given at trial about the complainant’s cognitive impairment and mental health, together with the complainant’s various descriptions of her memory and the way her mind worked, meant that the jury could not exclude the possibility that the complainant had an honest but wrong belief that she had been sexually assaulted by the applicant.
In support of these submissions, the applicant relied upon various descriptions given by the complainant of her memories being ‘fragmented’, ‘very blurred’, ‘an unfocussed image’, and having ‘different memories come up at different times’. The applicant also relied upon various passages in the complainant’s evidence in which she referred to ‘going numb’, ‘zoning out’, and ‘going to the dark place’. Reference was also made to the complainant’s evidence of having been diagnosed with autism; borderline personality disorder; panic disorder with agoraphobia; generalised anxiety disorder; social anxiety disorder; and major depressive disorder.
Additionally, the applicant relied upon various passages in the complainant’s evidence, including one where she described herself as a ‘neurodiverse person’. For example, in cross-examination, the complainant was asked whether she was careful with the detail that she provided to police in her statement, to which she responded:
Yes, but one thing I’ll point out, that careful to a neurotypical person is different to careful for a neurodiverse person. My brain doesn’t work the way everyone else’s does.
To like effect, the applicant relied upon a statement made by the complainant in cross-examination that:
The best way I can explain it to you is, my psychologist told me, trauma survivors do not have memories they have symptoms. I have a lot of symptoms, I don’t have a lot of memories.
And again to like effect, the applicant relied upon the complainant’s statements in the VARE that she had ‘repressed a lot of it for a long time’; and ‘all these years later there’s only bits of it that have come back to me and … other bits that have stayed there’.
Relying upon the New South Wales Court of Criminal Appeal’s decision in R v E,[30] the applicant submitted that, as in the case of the complainant in E, there was a reasonable possibility that the complainant’s memories were honestly experienced, false memories. The applicant submitted that, in all the circumstances, it was not open to the jury to be satisfied beyond reasonable doubt that the honest ‘recollections’ of the complainant reflected what had occurred between her and the applicant at the time of the alleged offending.
Proposed ground 4: analysis
[30](1997) 96 A Crim R 489 (‘E’).
Proposed ground 4 is based on s 276(1)(a) of the Criminal Procedure Act 2009, which provides that the Court must allow an appeal if it is satisfied that a verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.
As has been said before,[31] this requires the Court to ask itself whether it thinks ‘upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[32]
[31]See, eg, Palliyaguruge v The Queen [2022] VSCA 159, [64] (Beach and McLeish JJA); Palise v The King [2024] VSCA 51, [100] (Priest and Kaye JJA).
[32]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); Dansie v The Queen (2022) 274 CLR 651, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25 (‘Dansie’).
In determining that question, this Court must:
(a)give full weight to the principle that the jury is the body entrusted with the responsibility of determining the guilt or innocence of the accused, and has the advantage of having observed the witnesses, and of having aspects of the evidence explained to it in a visual form;[33]
(b)undertake an independent assessment of the whole of the evidence;[34]
(c)assume, in a case of this type, that the complainant’s evidence was assessed by the jury to be credible and reliable, but nonetheless examine the record to see whether ‘either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’ the jury, acting rationally, ought nonetheless have entertained a reasonable doubt.[35]
[33]M (1994) 181 CLR 487, 493; [1994] HCA 63; R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35; Fennell v The Queen (2019) 93 ALJR 1219, 1233 [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); [2019] HCA 37.
[34]Morris v The Queen (1987) 163 CLR 454, 473 (Deane, Toohey and Gaudron JJ); [1987] HCA 50; Dansie (2022) 274 CLR 651, 659–70 [12] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25.
[35]Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
Having undertaken an independent assessment of the whole of the evidence for ourselves, we are not persuaded that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of both charges. True it is that the complainant gave evidence of memory difficulties in relation to certain details of the circumstances of, and surrounding, the applicant’s alleged offending. She was, however, certain of the basic facts which comprised the offending. Moreover, unlike the complainant in E, there was no evidence of any period of time during which the complainant did not remember the applicant’s offending against her. Specifically, in cross-examination, the complainant said:
My memories are very clear about what happened it’s just regarding the little pieces being connected, but my memory has no trouble remember [sic] what happened to me.
…
I get confused sometimes, I’m not going to pretend that I don’t. It doesn’t change the fact that what happened, happened.
While it was open to the jury to conclude that the complainant had a particular interest in the way her mind and memory worked (having regard to the detailed evidence she gave on that topic, which included the repetition of information she had received from others in relation to that matter), in truth, there was nothing in this evidence which required the jury to doubt the reliability of the complainant’s account of the core facts of the applicant’s offending against her. More particularly, having examined all of the evidence, we are not persuaded that the jury ought to have had any doubt about the reliability of the complainant’s evidence of the sexual offending the applicant allegedly committed against her.
Conclusion
Leave to appeal will be granted on proposed ground 1, but refused on proposed grounds 2, 3 and 4. The appeal will be allowed. The applicant’s convictions and sentences will be set aside; and we will order that there be a retrial.
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