Clark v Lamprey
[2005] TASSC 6
•4 March 2005
[2005] TASSC 6
CITATION: Clark v Lamprey [2005] TASSC 6
PARTIES: CLARK, Natalie Elaine
v
LAMPREY, Michael Frederick
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 7/2004
DELIVERED ON: 4 March 2005
DELIVERED AT: Launceston
HEARING DATE/S: 24 November 2004
JUDGMENT OF: Crawford J
CATCHWORDS:
Evidence – Admissibility and relevancy – Facts showing state of mind – Previous or subsequent conduct – Charges of indecent assault – Admissibility of evidence of previous criminal or inappropriate acts – Evidence of acts on the same day as the offences.
Aust Dig Evidence [80]
REPRESENTATION:
Counsel:
Applicant: P Sherriff
Respondent: K Edwards
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment ID Number: [2005] TASSC 6
Number of paragraphs: 36
Serial No 6/2005
File No LCA 7/2004
NATALIE ELAINE CLARK v MICHAEL FREDERICK LAMPREY
REASONS FOR JUDGMENT CRAWFORD J
4 March 2005
The respondent was charged on a complaint with four counts of indecent assault. He was aged 41 and the complainant was aged 13 at the time of the alleged offences in January 2003. A hearing before a magistrate was conducted on 3 March 2004.
The evidence-in-chief of the complainant was brief. A statutory declaration made by her concerning the alleged offences was received in evidence. She confirmed that its contents were true. She was cross-examined by counsel for the respondent. The prosecution also called evidence from T, a girlfriend of the complainant, who was of about the same age. Her evidence corroborated some of the complainant's evidence but there were also a number of inconsistencies between the evidence of the two girls.
A police officer gave evidence for the purpose of tendering in evidence an edited copy of a video recorded interview with the respondent. In it the respondent maintained denials of any unlawful conduct concerning the complainant. It was about three quarters of an hour long. The interviewing police officers put virtually all of the detail of the complainant's allegations to him and pressed him for explanations to such an extent that in the course of hearing oral submissions from prosecuting counsel, the learned magistrate commented that it was "somewhat improper questioning but anyway no issue was taken as to it" (by defence counsel).
The respondent did not give or adduce evidence. He relied on what he said in the interview. Closing addresses were made by both counsel. During the course of them, the learned magistrate raised, particularly with prosecuting counsel, that he had concerns about the inconsistencies between the evidence of the complainant and the evidence of T. His Worship suggested that counsel supplement their oral submissions with written submissions, which they did.
On 26 June 2004 the learned magistrate published detailed reasons for concluding that he could not be satisfied beyond reasonable doubt that the respondent committed any of the offences. As to submissions made by prosecuting counsel, his Worship said that "convincing as those submission [sic] may be, the inconsistencies in the evidence preclude me from making the necessary findings and be [sic] satisfied as to the defendant's guilt beyond reasonable doubt". After carefully considering the transcript of the evidence and oral submissions, the video recorded interview and the written submissions of counsel, I am satisfied that the conclusion of the learned magistrate that none of the charges had been proved beyond reasonable doubt was plainly open and not an unreasonable one.
Grounds 3 and 4
These grounds of the motion to review the dismissal of the complaint are:
"3The learned magistrate erred in fact and/or in law in finding that there were no previous 'uncharged acts' or 'criminal acts', within the meaning of R v Vonark [sic] 1999 VR 618, and that in any event the prosecution had not discharged the onus (to establish) that the (relationship) evidence went further than mere propensity or had any probative value.
4The learned magistrate erred in law in applying the test laid down in R v Vonark [sic] 1999 VR 618 as to the admissibility of relationship evidence when determining whether the said charges were proved, after such evidence had already been admitted."
The complainant's evidence was that she went to the respondent's home on four consecutive dates, from 21 to 24 January 2003. She did not give evidence of any improper or inappropriate conduct on the part of the respondent on the first of those days. The first two indecent assaults charged were alleged to have occurred on the second day at his home. The first was that he placed her hand on his penis and caused her to masturbate him. The second was that when she was sitting in his lap, he put his hands down her top and pinched her breasts. She said that on the third day, 23 January, he took her, T and his two year old son to a swimming pool. At the pool the third indecent assault allegedly took place. She said that while they were in the pool he touched her on the breasts over the top of her bathers. She said that they then went to his home where the fourth indecent assault took place at a time when she was sitting on his lap and he touched her on the vagina through her clothes.
In written submissions, counsel for the prosecution referred to what she described as "relationship evidence". She itemised it in the following way:
1Evidence of the girls that the respondent kissed the complainant on the lips when they were at his home.
2 T's evidence that the three of them discussed "head jobs" when at his home.
3T's evidence that the respondent told the complainant to "wear mini skirts so that he could get his hand up there easier".
4T's evidence that quite often the complainant sat on the respondent's knee.
5The respondent's acceptance in the course of the video recorded interview that it was possible that he may have mentioned to the girls that his ex-partner was a prostitute. (He did not admit positively that he mentioned it and he added that it was common knowledge that his ex‑partner was a prostitute and that she freely let it be known.)
Counsel for the prosecution submitted that those examples of "relationship evidence" supported the prosecution case that the respondent had a guilty passion for the complainant and illustrated that there was an "inappropriate relationship" between the two. She further submitted:
"The totality of the 'relationship evidence' is relevant and admissible to prove the defendant's guilty passion towards the complainant and is relevant to the context in which the offences are alleged to have occurred and the defendant's state of mind. See The Queen v Vonarx BC 9502541 Unreported Court of Appeal Victoria 15 November 1995. The evidence is thereby admissible for a non-tendency purpose."
Counsel for the respondent did not submit to the learned magistrate that such evidence was not admissible. It was admitted at the hearing without objection. In her written submissions, counsel for the respondent briefly addressed the evidence under the hearing of "Guilty Passion" by saying:
"Defence would firstly submit that if it is found that inappropriate conversations did take place this could never prove the commission of the actual offences. The most it can do is go to the credit of the defendants [sic] evidence. Whether inappropriate conversation took place is a question of credit between the two witnesses and the defendant. When assessing this, the evidence in total needs to be looked at. The huge disparities between the two accounts of the Prosecution witnesses means little weight can be given to either of their accounts."
R v Vonarx has little relevance and does not directly bear on the circumstances of this case. It concerned a man who was convicted of four counts of sexual penetration of his son, who was 10 years old at the time of the crimes, and one count of attempting to commit such a crime. The victim was allowed to give evidence that there were many other occasions, when he was aged between seven and 10, when the accused had unnaturally interfered with him, and some detail of the acts involved was given. At the trial the evidence in question was referred to as "evidence of uncharged acts". It was held by the Court of Appeal that evidence of uncharged acts was clearly prejudicial and was inadmissible if it showed no more than a criminal disposition or propensity on the part of the accused. For it to be admissible, the prosecution had to establish that the evidence had an additional probative value which justified its admission despite that prejudicial effect. It was further held, in the particular circumstances of the case, that the evidence of the uncharged acts was admissible to prove that a relationship of sexual attraction or passion existed between the accused and the victim and to give contextual meaning to the counts that were charged. The Court of Appeal added at 622 that it may be that evidence of previous criminal acts sought to be adduced is so far removed in point of time that it would be inappropriate to admit it.
The learned magistrate briefly dealt with the submissions of prosecuting counsel concerning the so-called "relationship evidence", but in a confusing way. After commenting that he did not see that Vonarx's case was applicable and quoting a passage from the Court of Appeal's judgment, his Worship held:
"In this instance, there are no previous acts, which I would classify as 'uncharged acts' or 'criminal acts', but in any event, the prosecution has not discharged the onus that the evidence goes further than mere propensity or has any probative value."
The learned magistrate did not identify the "relationship evidence", but I presume that he was considering the written submissions of the prosecuting counsel when he made those comments.
I do not regard the learned magistrate as erring when he said there were no previous acts which he would clarify as uncharged or criminal acts. It is arguable that the evidence of the girls that the accused kissed the complainant was evidence of indecent assaults that were not charged, but they could hardly be described as previous acts in the sense considered in R v Vonarx. According to the prosecution evidence, the respondent kissed her at his home on the day he committed the first two offences. It formed part of the circumstances that led to the alleged commission of those offences that day.
By holding that there were no "previous acts" in the sense I have been discussing, his Worship was rejecting a possible basis for rendering the so-called "relationship evidence" inadmissible, and such rejection is consistent with what the learned magistrate said at the outset of his consideration of Vonarx, that he did not see that it was applicable. By adding that "in any event, the prosecution has not discharged the onus that the evidence goes further than mere propensity or has any probative value" the learned magistrate appears to have been suggesting that the evidence had no probative value. It did have probative value, provided of course it was accepted. To that extent, the third ground of the motion appears to have been made out. However, I do not regard the fourth ground as made out, for the learned magistrate did not rule that the evidence was inadmissible. It was his view that Vonarx did not apply.
I note that Vonarx was a Victorian case to which common law rules of evidence applied. No reference was made by counsel, either before the learned magistrate or this Court, to the Evidence Act 2001 which governed the rules of evidence for this case. Because counsel did not refer to it, I will not do so either, other than to comment that its provisions should have formed the basis of the submissions and not Vonarx.
Ground 5
The ground is:
"5The learned magistrate erred in fact and/or in law in ruling that he could not make findings of credit on the basis of observations of a video recorded interview and make deductions from the manner in which a person answered questions."
In her written submissions, prosecuting counsel submitted that the respondent's "demeanour on the video lacked genuineness" and that "he was unconvincing". The learned magistrate dealt with the submissions in the following way:
"The prosecution has sought to rely on the demeanour of the defendant and the manner in which he responded to questions during a video recorded interview, but frankly I am unimpressed with these submissions. To suggest that this Court could make findings of credit on the basis of observations of a video recorded interview, which contains denials of any unlawful conduct, and to make deductions from the manner in which a person answered questions during a police interview is, in my view, untenable. Whilst in some instances this may be possible, particularly where there is strong evidence, there is a real risk that the defendant's right to silence could be eroded."
The first impression gained from the second sentence of his Worship's remarks is that he was ruling that it is impossible to make findings of credit when observing a video recorded interview. That, of course, is plainly wrong. At the commencement of the last sentence, his Worship at first appears to have accepted that it is not right for every case. The closing words concerning "a real risk that the defendant's right to silence could be eroded" are difficult to understand and with respect, reveal an error in logic. At the commencement of the interview the respondent had his right to silence explained to him and he indicated that he understood what he had been told. It may safely be inferred that whatever he said and did in the course of his participation in the interview was voluntary. There was no risk that his right to silence may have been eroded if regard was had to his demeanour in the course of the interview.
In the circumstances of the interview, which I watched, there was nothing that I could see about the respondent's demeanour, as opposed to the content of what he said, that could be regarded as detrimental to his credit.
Ground 6
The ground is:
"6The learned magistrate erred in fact and/or in law in that, having found that there was evidence of inappropriate behaviour by the respondent and conduct which may deserve moral condemnation, it was not a basis upon which the issues could be decided."
In the course of his reasons, the learned magistrate said:
"As I have observed, in this case there much is [sic] inconsistency between the complainant and the prosecution witness [T]. Whilst findings could be made that the defendant's conduct has been inappropriate, that is not a basis upon which a Court could find the charges proved beyond reasonable doubt."
Later, the learned magistrate expressed himself similarly:
"Whilst there is evidence of inappropriate behaviour by an adult and conduct which may deserve moral condemnation, that is not the basis upon which issues can be decided."
What his Worship was referring to as "inappropriate behaviour" or conduct was not identified. Counsel for the respondent suggested that it was a reference, at least in part, to what was common ground, that there may have been conversations between the respondent and the girls that contained some sexual content.
It is another example of the learned magistrate failing to express himself clearly, but I do not conclude that the ground has been made out. It is clear from all of his Worship's reasons that the major reason for not being satisfied beyond reasonable doubt of the respondent's guilt was that there were many inconsistencies between the evidence of the two girls. I consider that all the learned magistrate was saying in the passages I have cited was that the fact that the respondent may have acted inappropriately was not a factor that persuaded him to accept the complainant's version of the events and to find the charges proved.
Ground 8
The ground is:
8The learned magistrate erred in fact and/or in law in finding that the complainant lied to her corroborative witness when making a recent complaint about the act alleged in charge 1, or in the alternative, failed to state proper reasons for so finding."
I do not accept that the learned magistrate made a finding that the complainant lied to T when making a "recent complaint" about the act alleged in count 1.
The evidence of the complainant was that immediately after the first indecent assault took place in the respondent's bedroom, she came out of the bedroom and T asked her what had happened. She said that she would tell her later. Shortly after they went to T's home for tea and she then told T "everything that happened" including that the respondent made her touch him. She also said that she told T that she was scared and that she made it fairly obvious that she did not want to go back to the respondent's house. She did not tell T that the respondent had made her give him a head job.
The evidence of T was that when the complainant came out of the bedroom she said nothing about what had happened but when they went home for tea the complainant told her that the respondent forced her to give him a hand job. On it being suggested to her that she told the police that the complainant said that she was forced to give the respondent a head job, T said that she was not sure but it was one or the other. She did not believe that the complainant had said anything to indicate that she did not want to go back to the respondent's home and in fact she asserted that between the two of them, it was the complainant who was the one who wanted to go there again.
The learned magistrate said, concerning recent complaint, that "I doubt whether the evidence of [T] could be utilised for the purposes of making a finding as to consistency as to the complainant's evidence". Having regard to the difference between the evidence of the two witnesses I am unable to conclude that his Worship erred either in fact or in law. The learned magistrate also stated that "I note that it has been previously held that the mere fact that a lie is repeated often, does not in itself change the character of a lie because of its consistency; it remains a lie, notwithstanding it is consistently stated". In saying those things the learned magistrate was not making a finding that the complainant had lied to T. It was merely a comment that if T was lying about what the respondent had done to her, the making of the same assertion to T did not change the nature of what she was saying. In my view there is no substance in ground 8.
Ground 9
This ground is:
"9The learned magistrate erred in fact and/or in law in finding that the only explanation for there being two diametrically opposed statements by the complainant and her corroborative witness respectively about the complainant being pulled onto the defendant's stomach was that one of them was being dishonest."
This ground concerns what was a major difference between the evidence of the complainant on the one hand and the evidence of T on the other hand. In a statutory declaration made on 26 January 2003, the complainant said when referring to the second of the four days, Wednesday, 22 January, that the respondent was lying on a couch and T said to her to go and lie on him, to which she said "no". Her declaration continued that T "dragged me up anyway and Mick pulled me over towards him and pulled me down on top of him so I was laying on his stomach". Her evidence about that was different. She said that the incident happened on the following day, 23 January, and that the statutory declaration was in error because the police officer who was writing down what she said incorrectly wrote that it was on the previous day. Another difference in her evidence was that she did not simply say that T dragged her up and that the respondent pulled her over towards him and down on top of him. Instead she agreed with a question which asked whether she said that T dragged her on top of the respondent. The difference may be minor. However, T's evidence was to firmly deny that the event took place.
The learned magistrate referred to the evidence of the witnesses about the alleged incident and concluded:
"The two statements are diametrically opposed to each other and cannot be resolved without finding one or the other is not being honest in her response. The witness T was very convincing in her denial of the conduct alleged against her by the complainant."
Counsel for the applicant submitted that the learned magistrate erred because he ignored a possible explanation that one of the witnesses was mistaken. However, I agree with counsel for the respondent that it was reasonably open to the learned magistrate to conclude that the most likely explanation was that one of the two witnesses was not being honest. He added that T was very convincing in her denial, inferring that it may well have been the complainant who was being dishonest. I am not persuaded that the learned magistrate made a reviewable error in fact or in law in treating the conflict in the way he did.
Grounds 1, 2 and 7
These grounds were not pursued by the applicant's counsel.
Conclusion
I have found that errors were made by the learned magistrate when dealing with grounds 3 and 5 and with respect, to them can be added poor expression when his Worship stated some of his reasons. Despite the errors, I am satisfied that no substantial miscarriage of justice occurred and that the motion to review should be dismissed. See the Justices Act 1959, s110(2)(ab). It was made very clear by the learned magistrate that his conclusion that he was not satisfied beyond reasonable doubt that any of the charges had been proved was based upon the conflicts between some of the evidence of the complainant and that of T. There were also consistencies in their evidence but nevertheless, it was open to the learned magistrate not to be satisfied to the requisite degree because of those conflicts.
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