D K v The Queen
[2011] VSCA 407
•6 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0198 | |
| DK | Applicant |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | ASHLEY and HANSEN JJA and ROSS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 October 2011 | |
DATE OF JUDGMENT: | 6 December 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 407 | 1st Revision 9 December 2011, [114] |
JUDGMENT APPEALED FROM: | R v [DK] (Unreported, County Court of Victoria, Judge Chettle, 24 March 2010) | |
---
CRIMINAL LAW – Conviction - Sexual penetration of a child under the age of 16 (count 3) - Possession of child pornography (count 5) – Refusal to allow recall of complainant for further cross-examination on receipt of victims of crime assistance – Miscarriage on count 3 where complainant’s credibility central – No substantial miscarriage on count 5 as overwhelming independent evidence – Judge erred in telling jury that collateral evidence rule precluded prosecution from calling evidence to contradict applicant’s denial of extramarital affair – No miscarriage in the circumstances – Appeal allowed in part.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Victoria Legal Aid |
| For the Respondent | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I have read the reasons for judgment of Hansen JA in draft, and I respectfully agree with them.
HANSEN JA:
The applicant seeks leave to appeal against his conviction, following a trial in the County Court, on one count of sexual penetration of a child under the age of 16, the child being under his care, supervision and authority (count 3), and one count of possession of child pornography on 22 September 2006 (count 5). The applicant was acquitted on the other counts, being an indecent act with or within the presence of a child under the age of 16 (count 1), sexual penetration of a child under the age of 16 (count 2), and possession of child pornography in and between June 2005 and July 2006 (count 4). For the purposes of counts 4 and 5, a child is a person aged under the age of 18 years.[1] The complainant turned 18 on March 2004.
[1]Crimes Act 1958, ss 67A and 70(1).
The applicant relies on the following grounds of appeal:
1. The trial miscarried by reason of the judge’s having:
(a)ruled against defence counsel’s application to have the complainant recalled after material was discovered which cast doubt about evidence she had earlier given under oath concerning a motive to lie; and
(b)failed at all to direct the jury on the complainant’s application for, and receipt of, compensation as a motive to lie.
2. The trial miscarried by reason of:
(a)the prosecutor’s cross-examination of the applicant about his infidelities at work in circumstances where evidence was not called to substantiate the substance of that cross-examination; and
(b) the judge’s:
(i)criticism of defence counsel’s attack of the prosecutor for his cross-examination of the applicant; and
(ii)directions to disregard the substance of defence counsel’s submissions.
Initially the applicant also sought leave to appeal against sentence. That application was abandoned earlier this year.
Background
The applicant was aged between 38 and 39 when the offending alleged in count 1 occurred and 43 at the time of the offending alleged in count 5.
The complainant had been placed in the care of the applicant and his then wife in early 1991, shortly before she turned six. Subsequently, the Children’s Court, by order made on 9 June 1995 under the Children and Young Persons Act 1989, granted the applicant and his wife custody and guardianship of the complainant and they raised her as their daughter; she was their only child. In February 2001 she changed her surname to the applicant’s surname.
Due to the applicant’s employment, the family lived at various towns in Victoria, in particular at Kerang where the offending alleged in counts 1 – 3 occurred in 2001. A week before Christmas 2001, the family moved to Mildura, where the offending alleged in counts 4 – 5 occurred.
Count 4 alleged that the applicant at Mildura between 1 June 2005 and 31 July 2006 possessed child pornography. This was constituted by a video recording of the complainant having sexual intercourse with a boyfriend, referred to below as ‘Z’, at the applicant’s house at Kerang, and seen (by the complainant) on the applicant’s computer in the period charged. The complainant’s evidence as to this is referred to at [12] below. The video was not located on the applicant’s computers (a PC and a laptop) when the police executed a search warrant on 22 September 2006 at the applicant’s house in Mildura, and it was not tendered at the trial. Hence, this charge relied for its proof upon the acceptance of the complainant’s evidence.
The child pornography the subject of count 5 comprised images 1 - 46 found on the applicant’s computer on 22 September 2006 on the execution of the search warrant.[2] The pornographic material was images of the complainant engaging in sexual activity with boyfriends at the applicant’s house, and being otherwise of a pornographic nature.
[2]The pornographic images the subject of count 5 were part of a total of 880 images in Exhibit C, 857 of which were found on the computer and the balance on the applicant’s laptop.
The applicant and his wife separated in May/June 2006, having been married for something more than 20 years.
The offending and evidence
The complainant was aged around 15 when the family moved to Kerang. There was a house rule that doors – other than the bathroom – be open all the time. The complainant deposed that the applicant, without knocking, would enter her room, and the bathroom, when she was getting dressed or showering; she would ask him to leave while she changed. Then, the complainant gave evidence of an occasion when she asked the applicant for something, and he asked for sex for it; in short, he touched her breasts (count 1) and intercourse occurred (count 2).
Subsequently, and while still in Kerang, the complainant had a boyfriend, Z, with whom she had sex in her bedroom with the door open; she said that she discovered a video camera pointing into her room. She deposed that subsequently in Mildura, some 10 months before speaking to the police in September 2006, she saw the applicant playing a video on his laptop computer which showed her and Z having sex on her bed; as mentioned earlier, the alleged possession of this video was count 4.
The complainant deposed that after about four months she broke up with Z. She then had a boyfriend, ‘Y’, and described an occasion when he came to the house and stayed overnight. She sought permission for Y to stay from the applicant who asked her what he would get in return. The complainant deposed that she replied that she would not have sex with him again. The applicant responded that the complainant obviously did not want to have Y sleep over. That is, the applicant would not agree unless the complainant gave him what he wanted. The applicant and the complainant ended up having sex in a shed outside, the complainant saying she was too scared to say no, while Y sat inside watching television. This was count 3. As mentioned, it was alleged to have occurred in 2001 at the family property in Kerang.
The complainant deposed that after the family moved to Mildura, she attended school there for four/five months until she left and commenced working. As to boyfriends, Y came from time to time and they had sex in her room. The open door policy continued to apply. Her mother said that she was not to have sex in the house, but the applicant said that she could if her mother was out or in bed asleep. In that event, the applicant said, the complainant could have her door shut, but she must have the light on, while having sex. The applicant further required that while having sex she was to have her head toward the door and feet toward the window.
The complainant deposed that about six months after moving to Mildura, sex with the applicant became regular, in the shed at the property or her parents’ room. It occurred nearly every day until she moved out in September 2006. She gave evidence of one specific incident of intercourse in 2005 when she was in the car with the applicant. She deposed that the applicant provided financial assistance on the condition of sex. These were uncharged acts.
The complainant deposed that some months after they moved to Mildura her relationship with Y finished and she had another boyfriend, ‘X’, for about three months. Later, she had another boyfriend, ‘W’, for a couple of years; he came to the home and had sex with her in the shed.
Finally, the complainant deposed to a relationship with ‘V’ which commenced in about mid-2005 and was continuing; indeed by the time of the trial she had had a child by him. After some months V moved into the complainant’s house where they had sex. V was living there when the applicant’s wife moved out. The complainant deposed that a couple of times while she was with V in the shed, they heard a noise and V went outside and caught the applicant around the back of the shed. The complainant referred to the applicant having a camera and a video recorder and to him downloading pictures onto his computer. She said that she saw ‘sexual pornographic photos’ of herself and V on the applicant’s camera, that is photos of them having sex.
In her evidence the complainant identified photos of herself of a sexually explicit nature including her having sex with boyfriends in the shed, that were found on the applicant’s computer. She denied having been involved in taking the photos, of being aware they were being taken, or putting them on the applicant’s computer. There were also photos of a social nature of the complainant and boyfriends which were taken by the applicant and of which no complaint could be made. These photos were identified by the complainant and the former boyfriends ‘T’, ‘U’ and W and also V who was the complainant’s current partner.
It is important to note how the prosecutor conducted the case on count 5. He relied on photos 1 - 46 out of 880 pornographic images captured on the applicant’s computers.[3] He proved the balance to meet the defence which denied all knowledge of the photos having been taken and placed on the computers. The Crown alleged that they were taken by the applicant on his camera.
[3]Exhibit C; transcript 23.
The complainant identified the former boyfriend W in a number of the photos 1 – 46; they showed her on the mattress in the shed with a young man. She deposed that with the exception of one or two photos, the balance of the photos produced in Exhibit C showed her in some sexual activity. In cross-examination she further identified W in photos 1 – 87. And, looking through the balance of the photos, she identified a former boyfriend (as to whom the transcript is unclear but it would seem to have been Z or X), another former boyfriend U, and V (he being in all of the photos from 412). She also identified photos of her breasts and vagina.
It should be noted that there was evidence that there were holes in the wall of the shed, of sufficient size to allow vision through. It was the prosecution case that it was through such holes that the applicant secretly recorded pornographic material of the complainant.
The complainant gave evidence of V having put to the applicant that he (V) was aware of what he (the applicant) was doing with her, and of V assaulting the applicant. Subsequently, the complainant left the applicant’s house and reported the matter to the police.
In a lengthy cross-examination, defence counsel sought to undermine if not destroy the complainant’s credit and the reliability of her evidence. In addition to questions concerning the events of which she had given evidence, she admitted or denied or could not remember a number of specific matters that related to her credit. There was an incident at secondary school when she kicked a boy and was suspended for five days; there was the theft of $50 from her employer for which she received a bond at the Mildura Magistrates’ Court in January 2003, which bond she did not breach; when she was aged 15, maybe 16, she stole $600 from her grandmother’s bankcard account to pay her mobile phone bill; and there was other behaviour in the home. The latter particularly related to her relationship with her parents. As to that, her evidence indicated a sometimes stormy state of affairs with her mother; she agreed her parents criticised her for excessive use of chat sites on the computer, and her mobile phone, and that she had refused counselling; she admitted throwing a can of Coca Cola over her mother which she explained as occurring when her mother was nasty to her; she admitted hitting her mother and pulling her hair shortly before her mother left the home but said that her mother had swung first; and she admitted she had physically and verbally abused her parents, saying that occurred if they did that to her first. She said she had mood swings, and that it could be that her mother said she was uncontrollable and could not live with her. She had not spoken to her mother since her mother left the home.
As this indicates, the complainant was cross-examined about her relationship with her parents. She deposed that she felt abandoned by them, but did not resent them, and wished to reconcile with her mother although not the applicant who she did not like. She said that when her mother left the home their relationship was very poor; tensions developed between them when she was 16 or 17, they clashed on a lot of things, the complainant thinking that she knew more than anyone but she loved her mother and had not liked it when her mother moved out, thereby leaving her. She denied having made up her story to punish her parents for hurting her by their separation and her mother for leaving the home. It is to be noted that in final address defence counsel submitted that the complainant’s anger at these events, and feeling that she had been deserted constituted a motive for her to lie, and that in seeking love and attention she had told lies.
It is important to note another topic raised in the complainant’s cross-examination. This concerned the ability of the applicant to have engaged in sexual intercourse at times when the complainant alleged that he had had sex with her. This became an issue in his defence. The complainant was questioned and gave evidence on this matter as follows:
Now there’s just something I wanted to discuss with you now. He had medical problems, didn’t he? --- Yes.
Do you know what they were? --- Hernia operation or something.
He had medical problems, though, I suggest to you, that made it difficult for him to indulge in sexual intercourse, didn’t he? --- Yes.
He couldn’t, as I understand it, or my instructions are – well, you wouldn’t know this because you’ve never – on my instructions you never had intercourse. Were you aware that he was being treated for particular medical conditions? --- Yes.
Including – well, I won’t go into it, but we’ll hear the evidence. But were you aware, as a result of living in a family situation, perhaps, that from time to time he was unable to have proper sex? --- No.
Were you? --- No.
Were you aware that in Kerang and Wycheproof he was treated by doctors for different medical conditions? --- No.
But you were aware he was being treated in Mildura for different medical conditions? --- No.
You weren’t? But you told me you knew he was sick? --- The only thing I knew was the hernia operation.
I’m sorry, what did you say? --- The only thing I knew about was a hernia operation.
A hernia operation, and that was very painful? --- Yes.
It caused him to lose a bit of mobility, did it? --- Yeah.
Did it? --- Yes.
Is it a fact that he suffered from this hernia condition for quite a few years? --- Not sure.
Did he complain even in Kerang of pain and difficulty moving because of what then turned out to be a hernia? --- No.
It remains to note that having completed her evidence on Friday 12 March 2010, the complainant was recalled for further cross-examination on Monday 15 March; that occurred and the complainant was re-examined, immediately following which defence counsel further cross-examined her as follows:
Have you heard about victims of crime assistance, have you ever heard of that? --- Yes.
Do you believe that by bringing this prosecution you may get some money in your pocket? --- No, I didn’t know that.
Thank you.
HIS HONOUR; Thank you, you’re excused again, thank you.
Of the complainant’s boyfriends, the prosecutor called Z, W and V, and two others, U and T, each of whom had had a relationship with the complainant. In short, their evidence supported the complainant’s evidence.
W confirmed having had a sexual relationship with the complainant for about two years. The sex mainly occurred in the shed at the property where she lived in Mildura. In his evidence he said that a couple of times he heard rustling noises outside the shed when he and the complainant were inside. He was shown the folder (Exhibit C) previously shown to the complainant, and identified himself in photos 1 – 46 and up to 105 having sex with the complainant in the shed. He deposed that neither he nor the complainant had taken the photos, that they had been taken from outside the shed, and he was not aware they had been taken.
In his evidence V confirmed having had a sexual relationship with the complainant from after mid-2005. He gave evidence of an occasion after their sexual relationship had commenced, of being in the shed with the complainant at night, and on leaving the shed to go to the toilet seeing the applicant standing behind the shed looking through a peephole into the shed. He said that he went back into the shed, and that the applicant came into the shed and that he asked the applicant what he was doing behind the shed. The applicant responded that he was getting some rainwater. V deposed that there was no water tank and it had not been raining.
V deposed that subsequently he commenced living with the complainant at her parents’ house in Mildura. He deposed that the applicant had a rule that sex was to take place in the shed. V also deposed to having seen the applicant having sex with the complainant in the shed. He gave evidence of an argument in which he told the applicant that he knew everything that was going on between him and the complainant, and the applicant saying that he did not know what he was on about.
V said he often saw the applicant looking through the bathroom window when the complainant was showering; but as the window was stained it was not a clear view.
V deposed to an occasion in May/June 2006 when he told the applicant that they needed to talk and requested the applicant to ‘Come outside. Get outside. It’s on for young and old. This needs to stop.’ He went out and the complainant came also. V deposed that he told the applicant he knew he was sleeping with his daughter, that he had seen it and everything else. The applicant denied it. V assaulted and threatened to kill him, after which the applicant admitted it, saying that he did not know how it started. V said that after about a week and a half the applicant resumed having sex with the complainant.
Sometime after, an incident occurred when V tripped and fell on the complainant at the front door which resulted in her being rendered unconscious. The applicant came on the scene, bent down and touched the complainant’s backside. V again assaulted the applicant because of ‘everything he was still doing and what he was doing to the complainant in front of me’.
The folder of photos (Exhibit C) was produced to V and he was taken to the photos starting at 412 and to certain subsequent photos in particular. They showed him with the complainant. He deposed that he had not known of the existence of any of the photos before the case arose, and had never given anyone permission to photograph he and the complainant having sex. He added that neither the complainant nor himself had taken photos of them having sex.
V was extensively cross-examined on his evidence, and as to his credit. It is sufficient to mention the following.
V said that it was five or six months after he commenced going with the complainant that he saw her having sex with the applicant. He had suspected this in the second week he moved in because of messages the applicant would send the complainant while he (V) was in bed with her. In this respect he also referred to the applicant being grumpy when the complainant would not go out to the shed and help the applicant fold towels for his wife’s hairdressing salon, and ‘touchy feely that he was doing to her’. He admitted some prior convictions for theft and burglary. Finally, after being questioned about the last time he assaulted the applicant, V said that he hated the applicant. He deposed that he and the complainant lived together as partners, that he would do anything to protect her but would not lie for her.
Then, in re-examination V deposed that at the time when he first assaulted the applicant, the applicant’s wife had moved out of the house.
The first boyfriend, Z, gave brief evidence. He confirmed having had a sexual relationship with the complainant in 2001 when he was about 17 and of attending at her parents’ home. He recalled a video camera on a tripod just in the door of her bedroom, and that the complainant used to check it to see if it was on or not. He could not recall in which direction it faced.
U gave evidence of having been in a sexual relationship with the complainant from roughly December 2004 to May 2005. They had sex in the shed at her house in the early hours of the morning, her mother being asleep and the applicant being on his computer or out the back having a smoke. One night when he and the complainant were in the shed he heard a couple of noises coming from the back of the shed. Prior to that he had seen a little hole in the back of the shed where he heard the noise.
U deposed that he moved into the house and slept upstairs. He gave evidence of an occasion when at between 1 am and 3 am the applicant came part way up the stairs, U thought to see if he was asleep, then went down to the complainant’s bedroom from which he heard noises.
On another occasion, after midnight, and after having had sex with the complainant, U said that he left the shed for a drink and saw the applicant sitting outside with a digital camera. In cross-examination he said that the applicant was sitting in the dark.
U identified some ‘ordinary everyday’ photos which the applicant had taken of the complainant and himself. These photos were in Exhibit L which also included some sexually explicit photos of the complainant and himself and which he was not aware had been taken. He was not aware that any sexually explicit photos of them had been taken. He had never taken or arranged or given permission for photos to be taken of them having sexual contact and nor had the complainant taken such photos. U was then shown Exhibit C and identified many photos of himself and the complainant between numbers 218 and 251.
Finally, in cross-examination U said that he lived at the complainant’s house for something like three months.
The last of the former boyfriends was T who deposed that he had a sexual relationship with the complainant for three or four months in the first half of 2005. Once the relationship developed he attended the complainant’s home most nights. The complainant’s parents told him that there was to be no sex in the house, so it was carried out in the back shed. He identified a number of photos of himself and the complainant of a social nature which he said were taken by the applicant. He also identified photos[4] of himself and the complainant engaged in sexual activity in the shed; he had no knowledge of such photos being taken, there was no person in the shed taking the photos, and neither he nor the complainant took the photos. In cross-examination he said he had no idea how the photos of him having sex were taken, and he knew nothing about them until the police showed them to him.
[4]In Exhibit G some of which were in Exhibit C, and some in Exhibit C between numbers 632 and 650.
The balance of the Crown case was taken up with police witnesses, evidence as to the applicant’s computer on which the sexually explicit photos of the complainant and the boyfriends U, T and W were discovered, and evidence relating to a defence alibi as to the applicant’s location at a particular time. While noting these areas of evidence, in the light of the grounds of appeal it is not necessary to elaborate upon them.
There remain two further matters of evidence in the Crown case. First, a person engaged in the sexual assault area, Joanne Patricia Sheehan, deposed that victims of prolonged sexual abuse can experience a range of behavioural/psychological disturbances as the result of the associated trauma. The purpose of this evidence was to provide an understanding or explanation of the complainant’s anti-social behaviour.
Secondly, at the end of the Crown case the informant was recalled and gave evidence that during the investigation of the matter he received a police file that contained a complaint by the complainant’s father relating to sexual abuse of the complainant when she was five and in the care of foster parents. The allegation was that a couple had digitally and orally penetrated the complainant. Apparently the complainant had also complained. This was prior to her being placed in the care of the applicant and his wife. The defence sought to obtain an advantage from this evidence in the following way.
The applicant argued that the complainant’s false allegations against him were, in the light of Ms Sheehan’s evidence, to be understood as the consequence of this alleged early abuse. None of this had been put to the complainant, and the allegation was not otherwise established.
The applicant was interviewed by the police on 22 September 2006. In short, he either denied or made no comment as to the complainant’s allegations. Consistently with that, the defence at the trial was that the alleged offending the subject of counts 1 – 3 simply did not occur, that the complainant had made it up, and the applicant gave evidence in support of that position. The applicant denied that he had taken the alleged video the subject of count 4, and that he had placed the photos the subject of count 5 on his computers, or that he knew they were there. He suggested, in his evidence, that the complainant put the photos and film on his computers. The Crown case was to the contrary.
The applicant’s former wife gave evidence, as well as witnesses as to his alibi defence, his good character, and as to his computer.
There are some aspects of the evidence of the applicant and his former wife that ought be mentioned.
In his evidence-in-chief the applicant said that in information provided in the process prior to the complainant being placed in their care, they were led to believe that she had ‘a past history of sexual abuse of some shape and form’. He said that the complainant had ‘some counselling’, and that they attended ‘courses and things’ to help them deal with the issue. Behavioural issues were anticipated, and they occurred: there were problems with other children at school and the complainant had tantrums to get what she wanted. But, they had a loving relationship.
The applicant gave evidence to the effect that the complainant was skilled in using the computers. He deposed that she was better than he was at manipulating the computers. This related to his denial that he had placed the pornographic material on his computers, and her having had the ability to have done so.
And, as to the complainant’s evidence of the applicant’s video camera being set up pointing into her bedroom, the applicant said it was placed there in the hallway to be near a power point to charge the battery. It could have been pointed in any direction. It was there when the battery was being charged.
Further, he never saw the complainant check to see if the video was on, and he denied taking photos of the complainant in her bedroom.
The applicant was directed to the complainant’s evidence that about six months after the family moved to Mildura, sex with the applicant became regular, and nearly every day, which he denied. He was then asked as to his capacity ‘to indulge in sexual conduct at that time’. He deposed that he had a medical condition which turned out to be an infected hernia from which he suffered from approximately mid-2001 until a correcting operation in 2006. He then gave the following evidence:
What was the consequences of that condition in respect to your capacity to indulge in medical – in sexual behaviour? --- I had trouble ejaculating and maintaining an erection.
Your wife will give evidence that you were unable to maintain an erection, is that true? --- Yes.
Your wife will give evidence that in order to have any sexual contact with you at all, she had to take the lead and masturbate you, is that correct? ---- Yes.
Your wife will give evidence to say that in order to have any sexual conduct at all it was necessary for her to place your penis in her vagina, is that correct?
PROSECUTOR: Your Honour, this is not the correct way to do it, what I would ask my friend to do is to ask the witness ---
HIS HONOUR: There’s been no non-leading questions been asked by [defence counsel] for a long while, I agree.
PROSECUTOR: Yes but on this topic I’d like ---
HIS HONOUR: Your point’s valid, stop leading, all right.
PROSECTOR: Just ask him what ---
COUNSEL: Well, are you able to describe, well, first of all, how often were you capable of having sexual intercourse with your wife? --- Not very often.
How often was that?
(Mobile phone rings)
VOICE (from body of court): Sorry.
HIS HONOUR: It’s all right.
Yes, can you answer my question? --- Early on, you know, perhaps monthly. As it got further in and it got further worse, six monthly.
Why was this? --- The level of pain I had in my abdomen, I couldn’t take any weight on my stomach region. I couldn’t even lean up against a bench.
Did you have medical – or did you go to medical practitioners and discuss this issue? --- Yes, I did.
What were their names? --- Um, I had a GP in Kerang by the name of Dr Keo.
Doctor? --- Keo.
Yes, anyone else? --- Um, he referred me to a Mr Freedman in Swan Hill.
What for? --- Further tests.
For what? --- Um, I had a barium meal test or something similar to a colonoscopy, I believe.
What did you ask him to find out? --- Why I was experiencing the pain in my abdomen.
The pain in your abdomen, can you tell us, please, exactly how it affected your attempts to have sexual intercourse? Let me stop you there. Where was the pain in your abdomen? Can you stand up and show us? --- It was here.
HIS HONOUR: In your left groin? --- Yes, sir.
COUNSEL: Now when you had sexual intercourse or --- attempted to have sexual intercourse, where would the pain occur? --- In that particular region and it went right down into my testicles area.
How severe was that pain? --- It was enough to have me screaming or doubling up at times.
How long did this persist for? --- Half an hour or more.
Over what period of time did that condition persist? --- Well, it was ongoing over that period, 2001 to 2006, when I had the operation.
The applicant denied (in addition to denying having been peeping into the shed through a hole in the wall) that on the occasion of the assault in the shed V had said that he (the applicant) was having a sexual relationship with the complainant. And, as to the assault at the front of the house, he denied he had touched the complainant on her backside; the applicant said he asked V what this was about and that V said he knew.
As to the complainant’s evidence that until she was 11 or 12 she had a normal, happy childhood with the family, that they ‘had their moments’, and that she was ‘mainly’ loved, the applicant deposed that ‘on average’ that was how he saw it. He deposed that until they left Kerang they managed to get through most problems with the complainant, adding that from time to time she had counselling. He knew that if it got too hard he could have taken steps to have her placed elsewhere, but they did not want to do that.
The applicant was cross-examined as to his medical condition in relation to his ability to engage in sexual activity. He deposed that he had pains when they lived at Kerang. Doctor Keo did not diagnose a hernia in 2001, and the specialist, Dr Freedman, diagnosed it as possibly diabecular disease. For five years until the hernia operation in 2006 the doctors could not diagnose the problem. He said that it interfered with his sexual life and other aspects of his life such as driving a car and on sitting down. He did participate in lawn bowls and was able to engage in his employment as a bank manager.
Later in cross-examination, the applicant said he was not saying that he was physically incapable of having sex, rather that he was incapable of doing so ‘all the time’. As to him being unable to have sex with his wife except about once every six months and under great difficulty and she taking the lead role, he said:
[I]t didn’t start off that way, it just eventually got there over that period between 2001 and the operation in 2006.
He deposed that in 2005 when V said he caught him having sex with the complainant, he could not have been doing so. It was physically impossible. His doctor, who he saw between seeing Dr Freedman in 2001 and the surgery in 2006, was Dr Russell, but no-one could tell him what was wrong. He took painkillers. He had no treatment for sexual dysfunction.
Much later in cross-examination the applicant deposed that the collapse of his marriage was in part because of the complainant. The following exchange then occurred:
What I’m going to put to you is that your marriage failed because you formed interest in other women? --- That is incorrect, absolutely not.
And that you were having an affair with one of the staff at the bank? --- That is absolutely incorrect.
You had a sex life that was independent of your wife? --- I did not.
Your lack of sexual activity with your wife has got nothing to do with your so-called medical condition, it was based on the fact that you didn’t want to have sex with her? --- That is incorrect.
Your marriage was in strife for about four years before she left, wasn’t it? --- That’s incorrect.
At this, defence counsel, in the absence of the jury, said that the suggestion in these questions was new and he would comment to the jury on the failure of the prosecution to call evidence of what was alleged. The judge observed that the cross-examination arose out of evidence-in-chief and was presumably based on instructions, and went to credit. Defence counsel stated that he had no application and requested the judge rule as to whether he could make a comment. The judge, in effect, said that the request was premature and the cross-examination resumed.
In re-examination the applicant deposed that he was never in any relationship with any of the staff at work or anywhere. He was then asked ‘how long’ and ‘when it was’ that he was incapable of sexual activity, and answered:
It started in 2001, it slowly got worse as it got through, until 2006 I had a hernia operation and that operation was for a repair of an infected hernia. That didn’t fix the problem, so 12 months later I had another operation after a few more tests and it was found that I had a growth called an (indistinct) on a nerve, so they had to remove that growth and part of the nerve. Because ---
Yes, go on? --- And because of that growth that was on the nerve, it caused a huge amount of pain in the lower abdomen area so it was impossible to take any weight in that particular area at all towards the end, so it’s definitely got worse and we got through with it, so the closer we got to 2006, the less that I could do.
I now refer to aspects of the evidence of the applicant’s former wife. She said that in the process that led to the complainant being placed with them, they were advised that her situation had been unstable, and that she was removed from her mother after a complaint from a neighbour of a child being locked in a room for three days. They were also told of an allegation of abuse by a family member.
A deal of her evidence involved describing and commenting on the complainant’s behaviour over the years, and I refer to it only summarily and then not to all of it. By the age of eight or nine, her relationship with the complainant was a bit strained; there was stealing lollies from the milk bar and money from her purse and not following house rules such as not running or bouncing balls inside or picking up what the complainant had left around, the general routine of household running and within herself. The complainant did not like these rules being imposed and would get angry, yell abuse and lock herself in her room ‘just as a child would’.
Moving forward to Kerang, the complainant was generally disruptive, skipped school, fought with girls at school, and stole items such as pens and pencils. The school raised these matters but the complainant denied them. She deposed that their relationship became very strained, and she also tried to talk to the complainant about the way she displayed and promoted herself to boys; this was when she was 10, 11, 12.
As to the complainant’s relationship with the boyfriend Z, the applicant’s former wife deposed that she did not know this was sexual until the complainant told her after the relationship finished. She further deposed that there was a rule that doors in the house remain open and that there be no sexual activity under the roof of the house.
The applicant’s former wife deposed that she had no suspicion that the applicant had a sexual relationship with the complainant before she turned 15, and the complainant did not complain to her of it. Nor was she aware of the complainant going into the shed with boys. She recalled the video being charged on its tripod in the hallway, pointing into her sewing room but not, she believed, into the complainant’s bedroom. I interpolate that in cross-examination on this topic she said that she would not say that it never faced into the complainant’s room.
She further deposed that after moving to Mildura, the complainant’s general behaviour was disruptive at school and out of control in the house. There were issues of trust over rules of no boys in her bedroom, use of the computer after hours and use of the mobile phone in bed. The complainant rebelled against these rules, threw things, punched holes in walls, swore and abused them. Her relationship with the complainant was very stressed and not very trusting; the applicant’s relationship with the complainant was just bearable. And the complainant tried to manipulate them.
On the matter of her sexual relationship with the applicant, his former wife deposed as follows:
Can you tell us, please, what – did you and [the applicant] have a sexual relationship? --- Probably not a successful one for the last three years of our marriage – two, three years of our marriage.
It wasn’t successful? --- Every now and then, yes, a bit of sex was involved.
Who wanted sex or did you want to have sex with him? --- Yes, we both wanted to.
Did he want to have sex with you? --- Yes.
Did you try to have sex together? --- Yes, we tried.
What was the result of those tries? --- [The applicant] was in a lot of pain um and sex didn’t really happen.
Can you perhaps be a bit more explicit? When you say ‘[the applicant] was in a lot of pain’ and sex didn’t happen, now I take it, were you in bed together? --- Yes.
Sex was mooted and he would try? --- He would try, yes.
What would happen? --- Um he wouldn’t be able to get an erection um, through the pain.
Because of the pain, yes? --- So I would help.
What would you do? --- I would try to masturbate him a little bit um, and it would never – occasionally last a little bit of time but not long enough.
Did you try, even when his penis was flaccid, to continue to have sex? --- Tried, yes.
And what would you do in that circumstance? --- Massage, um just try and make it ---
Over what period of time did this situation occur? --- Probably the last two years, three years.
Can you tell us which years they were? --- Four, five and six – 2004, 5 and 6.
Was any of that period whilst you were in Kerang? No, we were here.
Whilst you were in Kerang, was [the applicant] capable of having normal sex? --- To a degree, yes. Not normal.
When you say, ‘To a degree’, what do you mean? --- There was pain there (indistinct) some tests and they didn’t know what they were looking for, couldn’t find anything at that particular time.
Was he able to enjoy sex with you while you were in Kerang? --- Yes. Also here, yes.
When you came to Mildura, were you able to enjoy sex together at the beginning? --- Yes.
How long after you arrived in Mildura, did this condition that he had commence? --- Well, it got progressively worse from when we moved here.
From? --- From when we came here in 2001, 2002.
The applicant’s former wife referred to V moving into the house and to his first assault of the applicant. V told her that he had ‘bashed the shit out of him’ but did not say why, and the complainant told her that it was none of her business. She tried to get rid of V from the house, and suggested that the complainant move out. She felt it was up to the applicant to call the police but he was not sure what to do. With the four of them living there, it was ‘awful’, and she decided to leave. They were overruled and overrun by the complainant and V. In fact, she packed up and left about three weeks after the complainant hit her. She did not return, and since then neither she nor the complainant have contacted each other.
The applicant’s former wife was cross-examined about her evidence as to the complainant’s behaviour and her view of it. It is unnecessary to elaborate upon that. However, on the matter of her sexual relationship with the applicant, she deposed that they had a ‘normal’ sexual relationship in Kerang but it ‘started to wane in Mildura’.
As to V’s assault of the applicant in the shed, she deposed that the applicant did not give her a reason for it, he just said it was an altercation. She still had no idea what caused it. No-one would tell her. Similarly with the assault at the front door, she did not know what caused it but she said that V was drunk. The police came and after speaking to the others they came and told her that no-one would talk.
In the circumstances, and as the judge emphasised to the jury, there was a ‘clear conflict’ between the evidence of the complainant and other witnesses like V on the one hand, and the applicant on the other hand. Effectively, the judge told the jury, unless they rejected the applicant’s evidence beyond reasonable doubt they could not convict him:
[B]ecause if there was a reasonable possibility that his evidence was true, you would have a reasonable doubt as to his guilt, because he says ‘I’m not guilty of any of that, it didn’t happen’.
The judge added that the corollary of this was that to be able to convict, the jury had to accept the complainant’s evidence beyond reasonable doubt.
Ground 1
The consideration of this ground commences with the complainant’s evidence given in the further cross-examination referred to at [26] above.
Initially, in his written submissions in this Court the applicant’s counsel said that in cross-examination it had been put to the complainant that she had three motives to lie: first that she resented the applicant for the breakdown in the relationship with her mother; secondly, that she was a child starved for attention; and, thirdly, that she sought to gain financially by the receipt of compensation as a victim of sexual assault. It was then submitted that in her evidence the complainant had denied that she hoped to receive any such payment.
This submission was ill-founded. While the first two motives were raised in cross-examination, the third was not put in the above passage in the evidence (and that was the evidence relied upon in this respect). Specifically, the complainant’s answer to the second question did not constitute a denial that she hoped to receive a payment.
The next step is that three days later in the trial, defence counsel raised the matter of a subpoena to the County Court under which documents had been produced pertaining to an application by the complainant for victims of crime assistance. Counsel stated that the documents showed that the complainant had received a payment, which he had not been aware of when he cross-examined as set out above. He sought her recall to be asked if she had received a payment.
The judge, having perused the file, said that with the removal of psychological reports obtained by the court for the purpose of assessing the application, the file was available to counsel. The judge then summarised the file: it disclosed that the complainant applied by solicitors for VOCAT assistance on 13 November 2006, and that the court granted assistance of $6,500 in July 2008. The judge then said that he would not allow counsel to recall the complainant to put the material to her.
Counsel then asked the judge whether he took the complainant’s evidence ‘as a denial that she’s got nothing?’ (I interpolate that what counsel meant was that the complainant denied having received something.) Correctly, the judge said ‘No’. Then, in further answer to counsel, the judge said that he would stop counsel from telling the jury that she had received money. On counsel asking ‘Why?’ the judge stated that counsel had not asked the complainant if she had ever received money, and counsel agreed that he had not. The following exchange then occurred:
HIS HONOUR: Even if you had of asked her that question and she says, ‘Yes, I have already been paid $6,500 by way of – for all the damages I’ve got’, in my view, it doesn’t help you one bit for two reasons. One: it would indicate that the court was satisfied, on the balance of probabilities, that the crime had occurred and she was the victim and that she was worthy of compensation and secondly: it’s done, finished. She’s got her money, she doesn’t have to go on with this any longer.
COUNSEL: But it’s indicative of why she made the complaint. She wanted to get financial assistance.
HIS HONOUR: Well, you didn’t ask her that.
COUNSEL: No, I didn’t ask her that but ---
HIS HONOUR: And you didn’t ask her that and you didn’t ask her whether she’d had any money.
Shortly thereafter the judge concluded the discussion by ruling that for the reasons he had indicated the complainant would not be recalled and counsel could not use any of the subpoenaed material. Hence, the jury were not informed of the fact of the VOCAT application for assistance and of the assistance awarded.[5]
[5]The applicant’s written submission erroneously stated that the VOCAT material was tendered by agreement. It was not. The submission also erroneously placed reliance on an alleged failure by the judge to address s 103 of the Evidence Act 2008. It was conceded in the course of argument that no such failure occurred. The reference was misconceived.
Counsel for the applicant submitted that by refusing counsel’s application to recall the complainant, the judge denied the applicant the forensic benefit of a line of enquiry on the issue whether the complainant was motivated to a false complaint by a desire for money. While the evidence she had thus far given was responsive to the question and did not deny having applied for and received an award, yet there were still questions that counsel could ask and as to which, depending on the complainant’s response, forensic benefit could be obtained.
In these circumstances, counsel submitted, it was wrong of the judge to rule as he did, and the ruling caused the trial to miscarry.
It is important to pause and note two things about this submission. The first is that it constituted a departure from the ground and the written case which were based on the premise that the complainant’s answer to the second question constituted a denial that she hoped to receive any payment of compensation as a victim of sexual assault. This had also been how defence counsel at trial approached the matter when he sought the recall of the complainant for further cross-examination on the issue. But, as noted, he accepted that his understanding of the complainant’s answer to his question was erroneous. This meant that if the complainant was to be further cross-examined it was not on the basis that new material cast doubt on her evidence but that it provided a basis for a fresh approach on the matter. In essence, what counsel sought to do on recall was to ask the complainant if she had sought and received compensation, and hope that some mileage on credit – in addition to the mere fact of receipt of an award – might fall out of some answers.
The second thing to note is the contention in ground 1(b) that the judge failed to direct the jury on the complainant’s application for, and receipt of, compensation as a motive to lie. It is true that the judge did not so direct the jury. But he was correct not to do so because there was no evidentiary basis for such a direction. It would seem that this part of the ground was based on the erroneous view that the complainant had denied receiving a payment or that the VOCAT material had been tendered by agreement. In fact, all that was before the jury were the complainant’s two answers set out above, and they provided no basis for alleging a motive to lie for financial gain. Accordingly, while the judge directed the jury as to a motive to lie in relation to the matters of resentment of the applicant and for the breakdown of the complainant’s relationship with her mother, and that she was a child wanting attention, there was no basis on which to direct the jury as to a motive to lie based on seeking to gain financially by the receipt of compensation as a victim of sexual assault.
In these circumstances ground 1 is inapt as expressed. It is thus that the applicant’s submissions came ultimately to be understood as I have stated above.
This brings me to the judge’s refusal to allow the complainant to be recalled. The judge gave two reasons for his ruling in the passage set out above.
A question arose in argument whether the ruling was a discretionary judgment the review of which was subject to the principles in House v The King.[6] Whether or not that be so is unnecessary to consider, for however the matter be approached the reasons given were not a proper basis on which to found the decision. I can shortly state why.
[6](1936) 55 CLR 499, 504-5.
The first reason seems to be a consideration that is protective of the applicant whereas the applicant wanted to cross-examine the complainant to establish the payment of an award of VOCAT assistance, in the hope she may trip herself up and thereby provide an additional basis for suggesting a motive to lie. The second reason also missed the point. It was not a question whether the complainant had received money but whether as a matter of fairness it was appropriate in the circumstances that she be recalled for further cross-examination on the topic. Furthermore, if the judge’s statement that the complainant ‘doesn’t have to go along with this any longer’ referred to the fact that her application for compensation was finalised, that too was an irrelevant consideration. Perhaps the judge considered that the recall of the complainant would simply be a waste of time and was unwarranted in the circumstances, but that was not what he said and no such reasoning was stated. Of course, the difficulty in any such reasoning is that it would have involved speculation as to what the complainant might have said if recalled and further cross-examined.
Notwithstanding, counsel for the respondent submitted that the judge was not in error in refusing leave to recall the complainant. Several reasons were advanced why this was so. First, it had not been put to the complainant that she had a financial motive to lie. Secondly, the VOCAT documents did not demonstrate her answer was a lie, and the judge had taken this into account. Thirdly, it should not be open to a party to briefly cross-examine on a topic going to credit, then gather further evidence on that topic in the hope of the witness being recalled and discredited, and then seek leave to recall the witness to answer questions raised by the further enquiries. Fourthly, the defence had had ample time prior to trial in which to subpoena the VOCAT documents, the normal return date for such a subpoena being the first day of the trial, and they may have been aware of the fact of the compensation. The Court should be careful not to assume otherwise. Fifthly, this was an important issue and defence counsel may have deliberately left the issue dangling in front of the jury. Counsel may have been concerned that if he went further, and the receipt of compensation was disclosed, that the prosecutor could use it to his advantage. Sixthly, the judge correctly recognised that the evidence sought to be adduced to cast doubt on the complainant’s answers would have breached the collateral evidence rule. Seventhly, no exception was taken to the judge’s charge in respect to the omission of a reference to a motive to lie for financial gain based on a desire for VOCAT compensation.
In my view these matters, whether considered separately or in combination, did not constitute good reason to refuse the application to recall the complainant. As to them, it is sufficient to say the following.
I would not act on the suggestion that defence counsel may have been aware that the complainant had received compensation prior to the day when the VOCAT file was produced in court, and he addressed the judge on the matter. That is consistent with the limited questions he had asked on the topic, and with counsel’s statement to the judge that at the time when he asked those questions he did not know that she had received a payment. That, he said, was the reason why he wanted to recall her to ask her whether she had received a payment. It is important to note that counsel’s bona fides in that respect were not questioned by the prosecutor or the judge.
Then, the omission of an exception to the charge is to be understood in light of the judge’s prior ruling and the fact that there was no evidentiary foundation on which to direct on a motive to lie for financial gain.
In my view the judge ought to have exercised his discretion to permit the complainant to be recalled as defence counsel sought. It is true that she had already been recalled once, and then further cross-examined at some length, but this was a criminal trial in which credit was a central issue and the trial would have been little prolonged, and the complainant not unduly vexed, if she was recalled on the issue. In my view considerations of fairness and balance required that the complainant be recalled.
In the event of that conclusion, counsel for the applicant submitted that the trial had miscarried, and that the complainant not having been recalled, the proviso ought not be applied. For his part, counsel for the respondent submitted that there had not been a substantial miscarriage of justice.
In my view, the applicant is correct as to count 3. That is because the issue of the complainant’s credit was fundamental to proof of that charge.
As to count 5, however, the position is different. The Crown case relied not only on the complainant’s evidence (denying that she had taken the photos and placed them on the applicant’s computers) but also on the evidence of the former boyfriends U, T and W, and the current partner V. U, T and W had long since ceased involvement with the complainant, and thus presented as witnesses with no interest in the outcome of the proceeding. V’s position was different in that he remained in a relationship with the complainant and was the father of her child. Nevertheless, his evidence concerning the photos was consistent with that of the former boyfriends and the complainant. In short, the evidence on count 5 included W identifying himself in the photos that constituted count 5, and the additional evidence of U, T and V which included their identification of pornographic photos found on the applicant’s computer. Further, there was U’s evidence that he had seen the applicant outside at night with a digital camera, as well as V’s evidence that he had seen the applicant peeping through a hole into the shed. The evidence of the complainant, U, T, W and V was that they had never taken photos of themselves having sex. Once the jury accepted the pertinent evidence of the former boyfriends and V, which it plainly did, there was no reasonable basis on which it could have concluded that the complainant had taken the photos the subject of count 5. In these circumstances, there was no reasonable basis on which to suppose that the complainant even knew of the existence of the photos, let alone placed them on the applicant’s computers. The applicant’s suggestion that the complainant placed the photos on his computer was fanciful speculation rather than a real possibility raised by the evidence or inferences that properly flowed therefrom. The fact, which affects the probability, is that both the camera and the computers were the applicant’s and he used them. Having read and considered the whole of the evidence, the case on count 5 was overwhelming even making allowances for any reservations the jury may have had as to the complainant’s evidence, including after any further cross-examination as to the receipt of victims of crime assistance. After all, the possibility of such assistance had already been flagged to the jury. In reality, having regard to the verdicts, the fact of such assistance, even if it were to be initially denied or doubted or not recalled, was hardly likely to have influenced the jury to reach the opposite conclusion on count 5. In my view, the jury’s verdict on that count could not have been affected by the judge’s error. It follows that no substantial miscarriage of justice has occurred in relation to count 5.
For these reasons, ground 1 is made out in relation to the conviction on count 3 but not in relation to the conviction on count 5.
Ground 2
This ground relates to the applicant’s defence that at the time when the offending charged in counts 2 and 3 is alleged to have occurred, he was impotent and thus incapable of having had sexual intercourse with the complainant. I have set out the evidence of the complainant, the applicant and his former wife on that issue. The evidence also went to a lesser degree to the applicant finding it difficult to have sexual intercourse. But the primary point, and that which was emphasised by the applicant’s counsel before this Court, was that he was impotent at the relevant times. This line of defence was, of course, additional to the denial that any of the offending alleged by the complainant ever occurred.
Ground 2(a) refers to the applicant’s evidence in cross-examination in which it was put to him that he was having an affair with one of the staff at the bank, which he denied; see at [61] above.
It is to be noted that the issue as to the applicant being unable to engage in sexual intercourse was first raised by him when he gave evidence. It had not been squarely put to the complainant in cross-examination.
The prosecutor did not seek leave to re-open his case to call evidence to substantiate his suggestion to the applicant in cross examination that he was having an affair with one of the staff at the bank.
In his charge to the jury, the judge directed the jury that they were to determine the case on the evidence and that the evidence was the answer to the question and not the question itself. As an example of this distinction, he referred to the prosecutor’s cross-examination of the applicant in which it was suggested that the applicant had troubles in his marriage and was involved in an affair with someone at the bank. The answer, the judge said, was the evidence, not the question.
Continuing, the judge said that in his address defence counsel:
… berated the Crown and said something to the effect of – and you remember it yesterday – if there had been one shred of truth in [the prosecutor’s] suggestion, the witnesses would have been called by the Crown to come here and give evidence.
Well, no, they would not have. It is a collateral issue as to credit. [The prosecutor] is not entitled to call witnesses in relation to those matters, and the suggestion that you would have heard from them is not, in fact, true. So I ask you to bear in mind when you assess the evidence in this case, it is the answers given is the evidence and that in relation to witnesses who were not called in this case, you do not speculate about what they may or may not have said had they been called. You determine the case on the evidence you have before you.
Unfortunately, in correcting defence counsel as he did, the judge himself fell into error. The issue to which evidence in substantiation of what the prosecutor put in cross-examination went, was the issue of fact raised by the applicant as to his ability to engage in sexual intercourse at the relevant times. Of course, it would also have gone to his credit, but not only to his credit as the judge stated. As any such evidence would have gone to a fact in issue, which issue had been raised by the applicant in his evidence, the prosecutor could have sought leave to re-open his case, and it is possible that leave may have been granted, although that would have been a matter of discretion to be determined in light of the relevant circumstances.[7] Hence, it was wrong for the judge to tell the jury, as a matter of law, and in absolute terms, that such evidence would have gone to a collateral issue as to credit and that in consequence the Crown would not have been permitted to call such evidence.
[7]The Queen v Chin (1985) 157 CLR 671, 676-677 (Gibbs CJ and Wilson J), 684-687 (Dawson J, Mason J agreeing). See now Criminal Procedure Act 2009, s 233(2).
There is a further vice. After repeating that the evidence was the answers given, the following warning not to speculate as to what witnesses may have said had they been called, may have carried the implication that there might in fact have been such witnesses who were prepared to depose as suggested in cross-examination but who could not give evidence for the reasons stated by the judge.
Allowing for these matters, and that what the judge said had the effect of negating defence counsel’s forensic point, I do not consider that the errors occasioned a miscarriage of justice. That is for two reasons.
In the first place, the offending the subject of count 3 was alleged to have occurred at Kerang between March and November 2001. Plainly, the defence evidence was not that the applicant was impotent or incapable of sexual intercourse during this time. And, of course, the complainant’s evidence, which the jury accepted, made the position clear. Further, the applicant did not call any medical witness to substantiate his claims.
Once the applicant raised the issue in his evidence, the prosecutor was entitled to cross-examine him without calling evidence to substantiate the puttage. Whether, if the prosecutor had applied to do so, he would, or should, have been given leave to do so is a matter that is not necessary to decide. It should not be assumed however that the judge ought, if requested, have given leave to re-open the Crown case. If that application had been made the matters to be considered would have included an assessment of the relative strength of the defence evidence on the issue, that the applicant had firmly denied the puttage, the strength of the direction to decide on the evidence, and the relative prejudice, and fairness, to the applicant if such evidence were called.[8]
[8]Ibid; R v Langer [1972] VR 973; R v Kern [1986] 2 Qd R 209.
In the second place, the judge made it abundantly plain that the jury were to decide the case on the evidence and the example he gave must have had the effect of ensuring that relevantly the jury did just that. I do not consider it is reasonably to be allowed that on the present issue the jury disregarded a direction so clearly given and emphasised. Indeed, the verdicts overall indicate that the jury attended to the direction.
Moreover, defence counsel took no exception to the charge and it must be considered that on this point he was best placed to consider any lack of balance or unfairness that ought be corrected.
In my view, ground 2 is not made out.
Conclusion
For the above reasons, ground 1 being made out in relation to count 3, and considering that a substantial miscarriage of justice has occurred in relation to the
conviction on that count, I would grant leave to appeal against that conviction, allow the appeal, set aside the conviction on count 3, quash the sentence imposed thereon, and order a retrial of that count. The sentence of 18 months’ imprisonment on count 5 will stand. In view of the length of time already served under the sentence, I would not fix a non-parole period.
I would affirm the forfeiture and disposal orders made under the Confiscation Act 1997. I would set aside the forensic sample order made under s 464ZF(2) of the Crimes Act 1958, as that order ceases to have effect by operation of s 464ZF(7) on the setting aside of the conviction on count 3. Finally, I would vary the declaration made under the Sex Offenders Registration Act 2004 so as to provide that the length of the applicant’s reporting period is 8 years.
ROSS AJA:
I have had the benefit of reading the draft reasons for judgment of Hansen JA and I also respectfully agree.
- - -
0
2
0