Clay (a Pseudonym) v The Queen
[2014] VSCA 269
•30 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0167
| STEPHEN CLAY (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | WEINBERG, OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 and 7 August 2014 |
| DATE OF ORDERS: | 7 August 2014 |
| DATE OF REASONS: | 30 October 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 269 |
| JUDGMENT APPEALED FROM: | DPP v [Clay] (Unreported, County Court of Victoria, Judge Pullen, 4 July 2013) |
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CRIMINAL LAW – Conviction – Appeal – Historical sexual offending against three child complainants – Whether substantial miscarriage of justice because irrelevant evidence of bedwetting and self-mutilation admitted – No objection taken – No forensic advantage in placing such prejudicial evidence before jury – Whether substantial miscarriage of justice because of admission of complaints made by alleged victims – Whether complaints concerned events ‘fresh in the memory of the person’ – 20 year delay in case of two complainants – Hearsay rule applicable – s 66 Evidence Act 2008 – Alleged admissions on part of appellant –Whether probative value outweighed by risk of unfair prejudice – Whether trial judge gave adequate directions regarding use of alleged admissions – Evidence should not have been admitted – Whether failure of trial counsel to challenge admissibility of prosecution evidence and otherwise conduct trial in competent manner gave rise to substantial miscarriage of justice – Appeal allowed – Convictions quashed – New trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Doogue O’Brien George |
| For the Crown | Ms S M K Borg | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
OSBORN JA
PRIEST JA:
In March 2013, the appellant stood trial in the County Court at Bendigo. He was arraigned on five charges of indecent assault (charges 1, 4, 6, 7 and 10), four charges of sexual penetration of a child under 10 (charges 2, 5, 8 and 12), three charges of gross indecency with a child under 16 (charges 3, 11 and 13) and one charge of attempted sexual penetration of a child under 10 (charge 9). The indecent assault under charge 10 appears to have been an alternative to the attempted sexual penetration under charge 9. As a result of the conviction on charge 9, no verdict was taken on charge 10.
After a 10 day trial, the appellant was convicted of all charges other than charges 6 and 7, which were the subject of directed acquittals.
The appellant was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Indecent assault [Crimes Act 1958 s 44(1)] | 5 years | 6 months | 2 months |
| 2 | Sexual penetration of a child under 10 [Crimes Act 1958 s 47(1)] | 20 years | 15 months | Base |
| 3 | Gross indecency person under 16 [Crimes Act 1958 s 50] | 2 years | 3 months | 2 months |
| 4 | Indecent assault | 5 years | 6 months | 3 months |
| 5 | Sexual penetration of a child under 10 | 20 years | 15 months | 7 months |
| 8 | Sexual penetration of a child under 10 | 20 years | 13 months | 6 months |
| 9 | Attempted sexual penetration of a child under 10 [Crimes Act 1958 s 47(2)] | 10 years | 6 months | 3 months |
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 11 | Gross indecency person under 16 | 2 years | 3 months | 2 months |
| 12 | Sexual penetration of a child under 10 | 20 years | 13 months | 6 months |
| 13 | Gross indecency person under 16 | 2 years | 3 months | 2 months |
| Total effective sentence: | 4 years’ imprisonment | |||
| Non-parole period: | 2 years | |||
| Pre-sentence detention declared: | 104 days | |||
| Other orders:
| ||||
On 2 April 2014, Coghlan JA granted leave to appeal against conviction on five separate grounds. His Honour also granted leave to amend the proposed grounds of appeal.
Accordingly, the grounds before this Court ultimately took the following form:
1. A substantial miscarriage of justice has occurred because of the admission of irrelevant and prejudicial evidence of bedwetting by the complainants.
2. A substantial miscarriage of justice has occurred because of the admission of irrelevant and prejudicial evidence of scratching and self-mutilation by [MW].
4. A substantial miscarriage of justice occurred because of the admission of hearsay evidence of previous representations about the allegations that were not ‘fresh in the memory of the person’ who made the representation.
6. A substantial miscarriage of justice has occurred because of inadequate directions by the trial judge to the jury as to how they could use the alleged admissions of the appellant.
7. A substantial miscarriage of justice has occurred because of;
A. the admission of alleged admissions in circumstances where the probative value of that evidence was outweighed by unfair prejudice to the appellant;
B. the failure of the trial judge to withdraw from the jury’s consideration evidence of the alleged admissions by the appellant;
C. the failure of the trial judge to direct the jury that before they could use the words said to have been used by the appellant they had to be satisfied beyond reasonable doubt that they were intended as a true acknowledgement of his guilt to the allegations.
8. A substantial miscarriage of justice has occurred because of a failure of trial counsel to challenge the admissibility of prosecution evidence and to lead evidence of good character of the appellant.
On 7 August 2014, after hearing oral argument in support of these grounds, the Court ordered that the appeal be allowed and a new trial be had. We said we would publish reasons at a later date. These are those reasons.
Circumstances surrounding the offending
The following summary of the facts is largely derived from the Registrar’s neutral summary.
The charges relate to events that were said to have occurred between 1982 and 1985. The appellant was aged somewhere between 15 and 18 at the relevant time. The complainants in this matter (BM (a boy born in 1974), MW (a girl born in 1976), and TM (a boy born in 1978)) are his first cousins. Their father and his father are brothers.
During the period of the alleged offending, the appellant and the complainants lived a short distance from each other, on the same road in a town in rural Victoria.
Put simply, the Crown case was that between 1 July 1982 and 9 January 1985 the appellant sexually abused each of the three complainants.
The individual charges were particularised as follows.
Charges 1 and 2 — indecent assault and sexual penetration
Between 1 July 1982 and 1 July 1983 the appellant and MW were in a shed located on the appellant’s parents’ property. The appellant placed MW on the bonnet of an old black car in the shed and inserted his fingers into her vagina. He then put his penis into her vagina.
Charges 3, 4 and 5 — gross indecency, indecent assault and sexual penetration
Between 1 July 1982 and 1 July 1984 the appellant and the three complainants were together in the same shed. The appellant told the complainants to lick his penis. Both BM and TM did so. He then held MW’s head and put his penis into her mouth. He next placed MW on the bonnet of the black car and inserted his fingers into her vagina. He then had vaginal intercourse with her.
Charges 8 and 9 — sexual penetration and attempted sexual penetration
Between 18 September 1982 and 18 September 1984 the appellant, BM and MW were in the appellant’s bedroom at his parents’ home. The appellant was lying on his bed and his penis was erect. He made BM suck his penis. He then masturbated BM, and attempted to make BM penetrate MW with his penis.
Charges 11 and 12 — gross indecency and sexual penetration
Between 9 January 1983 and 9 January 1984 the appellant and his three cousins were once again in the shed. The appellant was masturbating in their presence. He then made TM suck his penis.
Charge 13 — gross indecency
Between 9 January 1983 and 9 January 1985 the appellant, MW and TM were in the appellant’s parents’ lounge room. The appellant attempted to make TM and MW have sex with each other.
The defence case was simply one of complete denial that any of these incidents had occurred. The defence maintained that the complainants’ evidence was all entirely untrue.
The grounds of appeal
As is clear from the grounds of appeal, the appellant called into question a number of decisions taken by his counsel at trial, and submitted that there had been a failure on counsel’s part to conduct the case in a competent manner. Of course, the appellant’s criticisms of the conduct of his trial counsel are relevant to the issue whether there was a miscarriage of justice, though that is the question to be resolved, and not whether counsel performed poorly.[2]
[2]Nudd v The Queen (2006) 225 ALR 161, 162 (Gleeson CJ). His Honour cited as authority for that proposition R v Birks (1990) 19 NSWLR 677, 685; R v Ignjatic (1993) 68 A Crim R 333; TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 214 ALR 1.
Grounds 1 and 2 – bedwetting and self-mutilation
These grounds complained of the admission of what was said to have been irrelevant and prejudicial evidence. That evidence consisted of a long-standing history of bedwetting on the part of each of the three complainants, extending into their teen and even adult years. In the case of MW, it also consisted of evidence that she had, over many years, engaged in self-mutilation.
In relation to MW, the evidence of bedwetting and self-mutilation was actually brought out by counsel for the accused in cross-examination of MW. The relevant passage in the transcript of her evidence reads as follows:
HER HONOUR: Did she go to - shortly after these, did you go to the doctor?---Yes, I did.
COUNSEL: For what reason?---My Mum and my Dad were concerned about my behaviour.
But not in respect to any physical injuries, for instance?---Well, if you think bed-wetting and picking my, my face and my body - - -
No, I'm asking you whether you went for any physical - - -?---No.
It is by no means clear to us why counsel thought it necessary to ask MW why she had attended, in 2006, at the doctor’s surgery. It was that question that elicited the answer that the visit resulted from concern on the part of MW’s parents about her behaviour. Instead of leaving the matter alone, as he might well have done, counsel went further and delved into the reason for the visit, thereby eliciting the response that MW had been bedwetting and self-mutilating.
Of course, having opened that matter up, and obtained these answers, counsel took no objection to the admissibility of this evidence, whether on the basis of relevance, or in the exercise of discretion. Perhaps just as importantly, counsel did not at any stage seek any direction from the judge as to how, if at all, this evidence might be used.
The matter was compounded when BM gave evidence. This time the history of bedwetting was brought out, specifically, and in detail by the prosecutor. The relevant passage from BM’s evidence was as follows:
PROSECUTOR: Did you discuss this with your parents at all, after it had happened?---No. I didn’t discuss any of that.
Did you ever discuss it with anyone?---No. Not until I actually brought it all out, um, in 2003 or - yeah.
How did that come about?---Well, um, first of all I actually brought it out with my wife.
Was she your wife at the time?---Um, no she was my girlfriend.
And what’s her name?---[EM]. And I was about 17 and I was staying at her house, and Mum and Dad’s house, and I had an incident. I had a bed wetting incident. Um - - -
Was that something that you’d had from time to time over the years?---Yeah, I had that right up until I was, yeah, 17, 18.
From what age?---From when I was a kid. As long as I can remember.
Was that something that happened regularly to you or intermittently or what was the situation?---No, it was regular. Regularly.
Was it something your parents knew of?---Yep. And they tried to get us help when we were kids.
What do you mean help? Was that medical help?---Yeah. We went to a doctor to try and, um, help us.
You’ve said you were staying at, was it [EM’s] parents’ place?---Yeah, when I had - yeah. And had an incident and I was very embarrassed about it and I told, um, I told her that I’d been abused but that’s all I’d said. I didn’t say who, I didn’t say anything then, I just said I’d been abused and that was it.
TM was somewhat less forthcoming regarding bedwetting. However, he too was questioned about this by the prosecutor. The transcript reads as follows:
PROSECUTOR: Now, over the years following that, did you have any history of bed wetting?---Not really, no, I was pretty good.
Okay, was there some episodes?---Oh there was but I wouldn’t say to a big nature, no.
The significance of this evidence of bedwetting was accentuated when the complainants’ father, CM, testified. However, before dealing with that evidence, it should be noted that there was a discussion, in the absence of the jury, as to how to deal with what both CM, and the complainants’ mother, AM, might be likely to say. The prosecutor made it clear that he was concerned about some of the material in AM’s statement that should not be led. AM spoke, for example, of a diagnosis that a doctor had given following an investigation into the complainants’ history of bedwetting. Apparently the doctor had said that this suggested that the children had been sexually abused. In the event, that evidence, self-evidently being hearsay, was not led.
However, evidence as to bedwetting was adduced from CM in the following terms:
PROSECUTOR: Did you have any problems with the children’s well-being as they grew up?---We did.
What was the nature of the problems?---Well, I'll start with - the three, for a start I had just out of control bedwetting in the early 80s.
In the early 80s? What year are you talking about? Are you able to say? And if you’re not precisely, by all means say so?--Yes. Well, I know in 1983, 1984 I was diving for gold up in the mountains and they came and camped with me and I used to keep a vigil all night on with them so as they wouldn’t wet the bed.
So when was that?---That’s 1983, 1984.
And did it continue on for some years after that?---Yeah, well even prior to that we took them to Melbourne because there was - to some specialist in Collins Street to try and help them with it but it didn’t work.
All right, so did that continue on for some time?---Yes, more so with [BM] than the others but it did continue on until probably the mid-85s.
CM was also asked by the prosecutor about MW’s self-mutilation. The transcript reads:
PROSECUTOR: Were there any other issues with any of the children?---Yes. With [MW], she would become - she was mutilating herself.
In what way? What was happening?---Picking her - just a sec. She was picking her nose, tugging all the skin off it - - -
I'm sorry, that description might cover a number of different things? What do you mean?---Oh she just kept peeling the skin off her nose and - oh sorry, yeah, yes she was just taking the skin off her nose and it became a real mess, it was raw.
And did she have to receive treatment for that?---Yes, she did. She - we - - -
How old was she when that sort of issue arose?---I can remember taking her down to Melbourne to a hypnotherapist in 1991.
When did it first emerge though?---I’m not sure.
Was it something that happened over a period of time?---Yes. Also she’d just - yeah, she was tearing skin off her arm as well, or arms.
I want to take you on just in general terms, did you learn from information given to you that there was an allegation that [the appellant] had sexually abused your three children?---Sorry, can you just - - -
You didn’t understand?---No.
All right. Did you learn from information given to you that there was an allegation that [the appellant] had sexually abused your three children?---Not until [BM], our son, told me.
The trial judge, in her charge to the jury, reminded them of the evidence that had been given regarding bedwetting on the part of the complainants. She also reminded them of the evidence given by MW, and her father, as to her self-mutilation. The judge said nothing more about that evidence. It was simply left to the jury to deal with as they saw fit.
The problem with all this is obvious. It is understood, in some quarters, that there is likely to be a link between the sexual abuse of a child, and ongoing problems such as bedwetting extending into adulthood. That link may also extend to self-mutilation. No evidence of any kind was led from any expert as to these matters. The jury were left at large to speculate upon their possible significance.
The danger was all the greater when, coincidentally, and quite remarkably, all three siblings appear to have exhibited this distinctive feature of bedwetting. In a case such as this, where the sole issue was whether the complainants were truthful and reliable witnesses, or as the defence contended, they had fabricated their allegations of sexual abuse, evidence of this kind was very damaging. Yet surprisingly, it was simply put before the jury. No objection was taken to its admission, no application was made for a discharge of the jury once it had been elicited, and no request was made for a direction that might conceivably have ameliorated its effect.
The Crown submitted, in relation to grounds 1 and 2, that the evidence of bedwetting, and of self-mutilation, had been elicited before the jury, first as a result of cross-examination by counsel for the accused, and thereafter without objection, as a result of a conscious and deliberate forensic decision.
We were not persuaded by that submission. It is difficult to see what forensic advantage the appellant could possibly have gained from having evidence of this nature, so obviously prejudicial, placed before the jury.[3] It was, in truth, completely irrelevant. Even if it had some relevance in relation to MW (by explaining why she attended the doctor to whom she complained), its probative value was at best marginal and clearly outweighed by its likely prejudicial effect. And as regards BM and TM, the evidence should simply not have been led. That, at least, would have taken some of the ‘sting’ out of what MW had earlier said.
[3]Patel v The Queen [2012] 247 CLR 531, 562–564 [114]–[117].
For that reason, and notwithstanding trial counsel’s role in, and responsibility for what occurred, we considered that grounds 1 and 2 had been made out.
Ground 4
Each of the three complainants was permitted to give evidence of previous representations made to others, pursuant to s 66 of the Evidence Act 2008.
That section relevantly provides as follows:
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by—
(a) that person; or
(b) a person who saw, heard or otherwise perceived the representation being made—
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including—
(a) the nature of the event concerned; and
(b) the age and health of the person; and
(c) the period of time between the occurrence of the asserted fact and the making of the representation.
…
Whereas, at common law, a previous representation by a person called as a witness at a criminal trial could only be received in limited circumstances, and solely for the purpose of demonstrating consistency on the part of the witness, s 66 has the effect of excluding the hearsay rule in respect of such evidence, and rendering it admissible as evidence of the truth of its contents. That makes its admissibility potentially more potent than was the position at common law.
In cases involving sexual offences, the rule against prior consistent statements, generally applied in relation to what was called ‘recent complaint’, required as a condition of admissibility something akin to strict contemporaneity.[4] Certainly, a delay of years, months, and perhaps even weeks would render that evidence inadmissible.
[4]R v Freeman [1980] VR 1. The requirement was that the complaint be made at the ‘first reasonable opportunity’ in order to be admissible as an exception to the rule against prior consistent statements.
Section 66 may not be so constrained. However, it does require, as a condition of admissibility that the occurrence of the asserted fact be ‘fresh in the memory’ of the person who made the representation. Otherwise, that representation is regarded as ‘hearsay’ and is inadmissible.
Shortly after the Evidence Act 1995 (NSW) was enacted, the High Court dealt with s 66, but in a way that the legislature eventually deemed unsatisfactory. In Graham v The Queen,[5] the majority stated:
The word ‘fresh’, in its context in s 66, means ‘recent’ or ‘immediate’. It may also carry with it a connotation that describes the quality of the memory (as being ‘not deteriorated or changed by lapse of time’ but the core of the meaning intended, is to describe the temporal relationship between ‘the occurrence of the asserted fact’ and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.[6]
[5](1998) 195 CLR 606 (‘Graham’).
[6]Ibid 608 [4] (citations omitted).
That interpretation largely accorded with the common law position regarding the admissibility of prior consistent statements by complainants in cases involving sexual offences. We note that it was held in Graham that evidence of a complaint made six years after the last of the acts alleged against the accused was not admissible under s 66.
Nonetheless, there was a line of authority after Graham which allowed for some greater measure of flexibility than this. In R v Le,[7] representations about a course of conduct which had taken place over the preceding six months were held to be admissible. It should be borne in mind, however, that in that particular case, the complainant’s evidence was that the sexual offending, though not charged, had continued right up until the day the representations were made.
[7][2000] NSWCCA 49.
There are other cases where delays of some months were considered acceptable, in terms of the requirement that the representation be ‘fresh’ in the memory.[8]
[8]See, eg, Skipworth v The Queen [2006] NSWCCA 37, where a delay of 66 days was said to be acceptable. In Langbein v The Queen (2008) 181 A Crim R 378, a similar delay was held to be excessive.
After the introduction of s 66(2A), in response to Graham, it was generally accepted that still more flexibility was required in assessing whether that requirement had been met. A court is no longer confined to focussing primarily, still less exclusively, on the lapse of time between an event, and the making of a representation about it.
The application of s 66(2A) was first considered by the New South Wales Court of Criminal Appeal in R v XY.[9]The alleged offending occurred between 2003 and 2005, but there were no complaints of sexual abuse until the latter part of 2007 (to a friend), and mid 2009 (to the complainant’s parents). It was held that all these complaints satisfied the test in s 66(2), even in the absence of evidence from the complainant to the effect that the occurrence of the asserted abuse was fresh in his memory in both 2007 and 2009. Considerable weight was given to ‘the nature of the event’ in s 66(2A), rather than the temporal connection between that event and the making of the complaint.
[9](2010) 79 NSWLR 629 (‘XY’).
Odgers comments that the approach in XY focussed heavily upon the ‘vividness’ of the asserted memory of the event, making it clear that the amount of detail and any striking or unusual aspects would be a very significant factor in considering admissibility.[10] The learned author observes that, in his opinion, the interpretation accorded to s 66(2A) by the Court in XY goes further than required by the text, and that there is no warrant in effect for giving primacy to any one of the three factors specifically identified in that subsection.[11]
[10]Stephen Odgers, Uniform Evidence Law in Victoria (Lawbook, 2nd ed, 2013) 294–5.
[11]Ibid.
Odgers reserves his strongest criticism for a decision of this Court, LMD v The Queen.[12] He notes that, in that case it was held (in his terms ‘rather surprisingly’) that a finding that a complaint made 10 years after the alleged sexual abuse was fresh in the complainant’s memory was clearly correct. The Court based that assessment upon the complainant’s ‘reaction to the approaches made by her boyfriend when sexual intercourse between them was contemplated’, she having then told him of the decade old alleged abuse, that being the explanation for her unwillingness, or inability, to engage in sexual activity.[13]
[12][2012] VSCA 164 (‘LMD’).
[13]Ibid [25].
Odgers comments:
The Court considered that it did not matter that she did not provide any details to her boyfriend – ‘[t]he events to which the complainant referred when she said that she had been “molested” were inherently likely to remain firmly in her mind, if not as to detail, then as to the general nature of the behaviour to which she says she was subjected’ (at [24]). It appears that it was the nature of the events allegedly remembered that was the critical factor in supporting the conclusion that the memory was ‘firm/fresh’. However, it should be noted that, in ISJ v The Queen [2012] VSCA 321, the Victorian Court of Appeal at [49] reserved for consideration ‘on an appropriate occasion whether XY gives sufficient emphasis to the temporal factor that remains within the concept of “fresh in the mind”.’[14]
[14]Odgers, above n 10, 295.
Whatever view one takes of the correctness of LMD, the facts of that case were very different from those that presented themselves in this matter. There was nothing, in the present case, to suggest that the appellant’s conduct was ‘fresh’ in the memory of any of the three complainants at the time they complained to others about it.
In that regard, it should be noted that MW first complained that the appellant had abused her to her friend, EM (who eventually became BM’s wife), when they were both aged around 13. In 2006 she discussed the appellant’s conduct with her treating doctor (the same doctor at whose surgery she had attended to deal with her self-mutilation). MW also complained in 2008 and 2009 to a friend of having been molested by the appellant when she was a young child. BM first told his then girlfriend, and later wife, EM, about the appellant’s behaviour in 2003. TM told his girlfriend in 2003 that the appellant had abused him.
While it is true that the ‘nature of the event’ concerned is a relevant factor in determining whether to permit evidence of previous complaint to be led, so too, in terms, is ‘the period of time between the occurrence of the asserted fact and the making of the representation’.[15] Wherever the line is to be drawn, a period that, in the case of at least two of the complainants, exceeded 20 years seems to us to have been so far beyond what the legislature could ever have contemplated when it enacted s 66(2A) as to make it impossible to say that the requirements of the section were met. In this case, absent any evidence to suggest that these matters were relevantly ‘fresh in the memory’ of the individual complainant concerned, the hearsay rule was applicable. Evidence of each of the complaints should, accordingly, have been excluded.
[15]Evidence Act 2008 s 66(2A)(c).
Of course, it would have assisted had counsel for the appellant sought the exclusion of this evidence, instead of standing by, passively, while it was led. Even so, and assuming that counsel saw some forensic advantage in bringing out the fact that no complaint had been made for such an inordinately lengthy period, one might have expected the trial judge herself to have raised the question whether this evidence should be received. Had she done so, trial counsel may have been alerted to the fact that there was a real problem with the admissibility of this evidence, and objected to it.
In our opinion, notwithstanding counsel’s failure to object, ground 4 was made good.
Grounds 6 and 7A, 7B and 7C
These grounds related to the evidence led at trial of so-called ‘admissions’ on the part of the appellant. Grounds 7A, and 7B complained of the decision to permit the evidence to be led. Ground 6 complained that the trial judge should have given more detailed directions to the jury as to the use that could be made of that evidence. Ground 7C elaborated upon ground 6.
The evidence regarding these so-called admissions was given by CM, the father of the three complainants, and EM, BM’s wife, and BM.
CM testified that the appellant had come to his home on the evening of Boxing Day in either 2004 or 2005, accompanied by his mother. CM asked him what the problem was. The appellant replied that he had come to say sorry for what had happened. However, he added that he had no recollection of the matter.
CM replied ‘how can you not remember getting little kids to suck your dick?’.
According to CM, the appellant remained silent. However, his mother said ‘oh well, take that to the police, report it’.
CM then said to the appellant ‘you don’t want that to happen do you?’ and he replied ‘no’. The appellant and his mother then left.
There was also evidence given by EM. She said that on one occasion she had accompanied her husband to confront the appellant at his home. They walked in, and according to her, the appellant looked ‘sheepish’. They said they needed to sort something out. BM told the appellant that he was not interested in taking the matter further but wanted him to admit what he had done and at least apologise. According to EM, the appellant said:
I’m really sorry, I know I’ve done something to you guys. I don’t remember but I’ve obviously done something and I’m really sorry …
BM then said ‘don’t you remember making me suck your cock?’.
The appellant replied:
I don’t remember. I’m really sorry, I’ve obviously hurt you and done something but I don’t remember.
BM gave evidence to a similar effect.
We might deal firstly with grounds 6, and 7C. In her charge, the trial judge directed the jury about these alleged admissions. She warned them about some of the matters that might cause them to be unreliable, in particular, the fact that both CM and EM, in particular, might have had reasons for giving untruthful evidence of what had been said, and that this matter might be difficult, years later, to test in court.
However, it was submitted on behalf of the appellant that her Honour should have given further directions. It was submitted that she should have warned the jury that even if these two witnesses had given truthful evidence, their recollection of precisely what the appellant said, as well as his demeanour at the time, may not have been accurately recounted.
Grounds 7A and 7B are perhaps more fundamental. They complain of this evidence having been led when, so it was said, the statements attributed to the appellant could not properly have been regarded as admissions on his part.
It is fair to say that we are at a loss to understand why (a) no objection was taken to the admissibility of this evidence, and (b) no request was made for further directions regarding the use to be made of what the appellant had allegedly said. In our view, the probative value of this evidence was far outweighed by its likely prejudicial effect, and it should have been excluded pursuant to s 137 of the Evidence Act 2008. The evidence of the alleged admissions in each case lacked precision and specificity. When combined with the appellant’s claim to have had no recollection of the events in question, any probative value is significantly diminished, and the possible misuse of this evidence is enhanced.
In effect, this evidence was of poor quality, and should not have been admitted.
If, however, we were wrong about that, this was a case that called for a careful direction on the part of the trial judge as to how the jury might use this evidence. The vagueness, and opaque nature of what was attributed to the appellant required a specific warning to the jury as to its inherent weakness.
Counsel’s failure to object, and further failure to take any exception to her Honour’s charge regarding this matter, would normally count heavily against the appellant. In this case, however, it was part of a pattern of indifference or ineptitude on the part of counsel in discharging his proper responsibility in the trial, and supports the appellant’s contention that he suffered a substantial miscarriage of justice. In that sense, the matters complained of under these grounds, as well as a number of the grounds previously considered, made good the first part of ground 8.
Ground 8
That takes us to the last part of ground 8. Here, the appellant complained of the failure of his trial counsel to call evidence of good character at the trial. It seems that the appellant had available to him powerful evidence of prior good character, especially in relation to his dealings with children. Yet counsel did not adduce any of this evidence, nor did he elicit from the informant the fact that the appellant had no prior convictions of any kind for offending of this nature.
The written case for the appellant asserted that there were at least three character witnesses who could have given such character evidence. In addition, it is clear that the appellant had only been to court once, in 1998, in relation to possession of what seems to have been a small quantity of marijuana for which he received a good behaviour bond.
It is true that trial counsel did elicit from one witness, a friend of MW, that the appellant had been a ‘perfect father figure’ to the witness’ daughter, from the time she was about 12 months old. It need hardly be said that evidence of that kind fell well short of what might have been adduced on the appellant’s behalf as to his behaviour with somewhat older children.
During the course of oral argument, we were referred to the evidence that might have been given by one witness in particular, a former police officer who had known the appellant for almost 30 years. It seems that they had been close friends throughout that period. We were told that the former police officer would say that the conduct alleged against the appellant was totally out of character. We were also told that the appellant had been the godfather to the police officer’s first child, and that the police officer had attended the appellant’s trial throughout, apparently in the expectation that he would be called to give such evidence.
None of this was challenged.
For our part, we can think of no conceivable reason why this evidence was not led before the jury. The case seems to us to have some parallels in that regard with Saw Wah v The Queen.[16]Nonetheless, ground 8, had it stood alone, may not have established that, in the particular circumstances of this case, there had been a substantial miscarriage of justice. However, in combination with the other grounds already discussed, it strengthened our conclusion that there should be a new trial.
[16][2014] VSCA 7 (currently restricted). See also, Bishop v The Queen [2013] VSCA 273.
Conclusion
Far too many things went wrong with this trial to have allowed these convictions to stand. It was for the reasons set out above that we quashed the convictions and ordered that a new trial be had.
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